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[2017] ZALCCT 6
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Solidarity and Others v Department of Correctional Services and Others (C834/2015) [2017] ZALCCT 6 (3 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
REPORTABLE
Case
no: C834/2015
Not
Reportable
In
the matter between:
SOLIDARITY
1
st
Applicant
PJ
DAVIDS
2
nd
Applicant
CF
FEBRUARY
3
rd
Applicant
AJ
JONKERS
4
th
Applicant
LJ
FORTUIN
5
th
Applicant
GM
BAARTMAN
6
th
Applicant
DS
MERKEUR
7
th
Applicant
TS
ABRAHAMS
8
th
Applicant
DR
JORDAAN
9
th
Applicant
JJ
KOTZE
10
th
Applicant
DMA
WEHR
11
th
Applicant
and
DEPARTMENT
OF CORRECTIONAL SERVICES
1
st
Respondent
THE
MINISTER OF CORRECTIONAL
SERVICES
2
nd
Respondent
THE
NATIONAL COMMISSIONER OF THE DEPARTMENT OF
CORRECTIONAL
SERVICES
3
rd
Respondent
THE
MINISTER OF
LABOUR
4
th
Respondent
Heard:
6 November 2016
Delivered:
3 February 2017
JUDGMENT
RABKIN-NAICKER
J
[1]
This matter came before me on the return day of an ex parte contempt
application on the 6 November 2015. I did not prepare
a
judgment on the applicant in the normal time period as the main
dispute between the parties was to be heard at the Constitutional
Court during the next week. The Constitutional Court finally handed
down its judgment in the main matter on the 15 July 2016.
[2]
In the wake of the Constitutional Court judgment under case number
CC78/15 which was handed down on the 15
th
July 2016, and
on 12
th
August 2016, I asked the parties if there were any
aspects of the contempt application they still wished to be
adjudicated by this
court. I requested an indication to be
given by no later than the first week of the 4
th
term of
the Labour Court being 9-16 October 2016.
[3]
The Court was unaware that submissions had been received on behalf of
the applicants and on 22 November 2016 I dismissed the
application on
the basis that the matter was moot. The applicants then brought to my
attention that they had sent in submissions
by email and I rescinded
my judgment in terms of section 165 of the LRA on the 1 December
2016. The applicants were of the view
that I should give judgment on
the merits of the contempt application. I now do so.
[4]
The contempt application was brought on the basis that the Third
Respondent (the National Commissioner) was in contempt of a
court
order dated 18 October 2013. That order was appealed to the LAC which
handed down judgment on the 19 February 2015, upholding
the Labour
Court’s judgment. In the interim on 6 February 2014, Steenkamp
J had handed down an order which inter alia read
as follows:
“
[37.1]
Pending the finalisation of the appeal and cross-appeal under case
number CA 23/13 the respondent is ordered to implement
and enforce
the order granted by this court (per Rabkin-Naicker J) on 18 October
2013.”
[5]
The order of Steenkamp J, premised on Rule 49(11)
[1]
,
ceased to be of force and effect once the appeal was finalised by the
LAC on 19 February 2016. The applicants appealed the LAC
judgment to
the Constitutional Court.
[6]
The contempt application was brought on the following premise:
“
15.
The applicants are pursuing an appeal to the Constitutional Court,
but because that appeal is limited
in the same way as the one to the
LAC before, the obligation on DCS to take regional demographics into
account in the setting of
employment equity targets stands. The
respondents have not sought to cross appeal, so that the obligation
is not affected by the
appeal to the Constitutional Court. …”
[7]
The above reasoning is flawed given that the execution of a judgment
is automatically suspended upon the noting of an appeal,
with the
result that, pending the appeal, the judgment cannot be carried out
and
no
effect can be given thereto
,
except with the leave of the Court which granted the judgment
[2]
.
(my emphasis)
[8]
In all the premises, in particular given the leave granted by
Steenkamp J had long lapsed by the time this application was brought,
I regard it as ill-conceived. I see no reason why costs should not
follow the result. I make the following order:
Order
1.
The application is dismissed with costs.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicants:
MJ Engelbrecht instructed by Serfotein Viijoen ad Swart
Respondents:
MTK Moerane S.C. with Lecose instructed by the State Attorney
[1]
Sub
Secton 11 of Rule 49 was repealed with effect from 22 May 2015
see GN 317 of 17 April 2015.
[2]
SOUTH
CAPE CORPORATION (PTY) LTD v ENGINEERING MANAGEMENT SERVICES (PTY)
LTD
1977 (3) SA 534
(A) at p.545