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[2017] ZALCPE 23
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Naidoo v Minister of Home Affairs (P223/16) [2017] ZALCPE 23 (3 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case No: P 223/16
In
the matter between
V
K NAIDOO
Applicant
and
THE
MINISTER OF HOME
AFFAIRS
Respondent
Heard:
12 October 2017
Delivered:
3 November 2017
Summary:
An order directing the respondent to comply with a certified
arbitration award may not be stayed pending the finalization
of an
application to review and set aside an arbitration award that no
longer exists.
JUDGMENT
LALLIE,
J
Introduction
[1]
The applicant approached this Court mainly for an order in the
following terms:
“
1
That the Respondent, the Minister of the National Department of Home
Affairs appear
at the Labour Court on the 20
th
September
2017 at 10h00
to
show cause why he should not be
found guilty of Contempt of Court in failing to comply with the Order
of this Honourable Court under
Case Number P223/2016 and as passed
down on 3 March 2017.
2
That the Respondent may explain his conduct by way of Affidavit on
the date
of the hearing or before that date (although this will not
excuse him from being present at Court).
3
That in the absence of providing an explanation to the satisfaction
of the
Court or failing to appear in Court despite being properly
served, the Respondent be found guilty of contempt and that
3.1
The Respondent be fine in an amount that the above Honourable Court
deems appropriate; Or
other alternative relief.
3.2
The Respondent be fined in an amount that the above Honourable Court
deems appropriate,
alternatively that he/she be incarcerated for such
period as the Court deems appropriate.”
[2]
The application is opposed by the respondent who filed an application
to stay the order of compliance issued by this Court on
3 March 2017
pending the outcome of the review application under case number PR
164/16. The respondent further sought an order
staying the award
which was certified on or about 17 May 2016 pending the outcome of
the review application.
[3]
The salient facts which preceded the applications before Court are
that; the applicant is an employee of the Department of Home
Affairs
(the Department) and she referred a dispute to the PSCBC (the
bargaining council) against the Department. On 7 March 2016
the
bargaining council issued an arbitration award in terms of which it
directed the Department to upgrade the applicant’s
salary level
to salary level 10 with effect from 1 August 2012. The Department was
further directed to pay the applicant retrospective
payment resulting
from the upgrade by 30 April 2016. On 17 May 2016, the arbitration
award was certified by the Commission for
Conciliation Mediation and
Arbitration (the CCMA) in terms of section 143 (3) of the Labour
Relations Act
[1]
(the LRA). The
applicant asked the respondent to comply with the arbitration award.
The award was not complied with but in August
2016, the respondent
filed an application to review and set aside the certified
arbitration award. The applicant opposed the review
application. In
an attempt to compel the Department to comply with the certified
arbitration award and to have the respondent sanctioned
for the
non-compliance, the applicant brought contempt of court proceedings
against the respondent. The respondent opposed the
application. In a
judgment handed down on 3 March 2017, the respondent was found not
guilty of contempt of court. He was however
ordered to comply with
the certified arbitration award.
The
application for contempt of court
[4]
The respondent did not comply with the order of March 2017 and the
applicant filed the application for contempt of court at
hand on 28
June 2017 with a view to compel the respondent to comply with the
order and to have the respondent sanctioned for the
Department’s
non-compliance. The respondent opposed the application on the grounds
that he is not in wilful default of the
order of 3 March 2017. He
submitted that the reason for the non-compliance is that he is
exercising his right to have the certified
award reviewed and set
aside. The test for contempt of court is settled; it is whether the
party who is not complying with an order
of court is acting
deliberately and
mala
fide
[2]
.
It is common cause that the respondent’s non-compliance with
the order of 3 March 2017 is deliberate. I accept the respondent’s
explanation that his conduct is not
mala
fide
because he is pursuing his review application which will be rendered
superfluous should the order be complied with. The correctness
of the
respondent’s view is immaterial. Absent the element of
mala
fides
the respondent cannot be said to be in contempt of the order of 3
March 2017.
Application
to stay the order of 3 March 2017
[5]
The respondent sought an order staying the compliance order of 3
March 2017 pending the outcome of the review application under
case
number PR 164/16. In addition, he seeks an order staying the
certified award pending the outcome of the review application.
The
respondent also sought an order ordering the Minister to furnish
security in an amount the Court deemed reasonable. The applicant
responded to the respondent’s application by filing a notice to
the effect that the respondent’s application constituted
an
irregular step in the proceedings because there is no longer an
arbitration award that is capable of being reviewed. He submitted
that the application was of no force and effect and required the
respondent to withdraw it. The respondent did not withdraw the
application. The applicant did not file an answering affidavit. Her
counsel argued on the respondent’s papers. Counsel for
the
respondent took issue with the applicant’s failure to file an
answering affidavit and expressed the view that it was
impermissible
for the applicant’s counsel to argue her case on the papers. I
do not agree. Nothing precluded counsel for
the applicant from basing
his argument on the respondent’s papers.
[6]
It is common cause that this Court has jurisdiction to stay its
orders. The question whether the respondent has made out a case
to
have the order stayed has no effect on the jurisdiction. The
respondent’s application therefore did not constitute an
irregular step in the proceedings.
[7]
The respondent submitted that he has the right to pursue the review
application. The respondent relied on the following dictum
of
CCMA
v MBS Transport CC and Others, CCMA v Bheka Management Services (Pty)
Ltd and Others
[3]
in arguing that
both the order of 3 March 2017 and the certified award should be
stayed:
“
[40] I
fail to understand the court
a quo
’s reasoning. Section
145 (3) is clear. The enforcement of an arbitration award may be
stayed by the Labour Court. The section
has no qualification or
limitation. The enforcement of any arbitration award issued in terms
of the Act may be stayed by the Labour
Court. Therefore, the
enforcement of a certified award which is deemed to be an order of
the Labour Court in respect of which a
writ was issued maybe stayed
by the Labour Court pending its decision. The Labour Court may
therefore stay the enforcement of an
award pending its decision in
the review application. It follows that the court
a quo
’s
conclusion in relation to the Labour Court’s jurisdiction to
stay CCMA certified awards is incorrect”.
[8]
The applicant conceded that the enforcement order of 3 March 2017
falls within the purview of the enforcement orders referred
to in the
above
dictum
. It was however argued on behalf of the applicant
that an order granting the stay of the certified award could not be
granted because
there was no award to be stayed as in the order of 3
March 2017, the respondent was ordered to comply with the certified
arbitration
award. It was further argued that as the award did not
exist any longer, the order of 3 March 2017 could also not be stayed
pending
the review of a non-existent arbitration award. The remedy
open to the respondent, so went the argument, was to appeal against
the order of 3 March 2017.
[9]
Counsel for the respondent eventually conceded that the certified
award no longer exists. Its enforcement could therefore not
be
stayed. He insisted that the enforcement order of 3 March 2017 should
be stayed pending the review application. I accept the
respondent’s
argument that it is possible to stay the enforcement order of 3 March
2017. However, each case is decided on
its merits. In the enforcement
order the respondent is ordered to comply with the certified
arbitration award. In the review application
the respondent seeks an
order to have that very same certified award reviewed and set aside.
Effectively, the respondent seeks
the Labour Court to review its own
judgment. The order is incompetent as the Labour Court lacks
jurisdiction to review its own
judgments. An order of this court may
not be stayed to afford the respondent an opportunity to seek an
incompetent order. The respondent’s
application can, in the
circumstances, not succeed.
[10]
In the application for contempt of court the applicant sought a
rule
nisi
for the respondent to show cause why the orders the
applicant is seeking should not be made final. Both parties dealt
with all
the issues in full and placed me in a position to make a
final order. The purpose of contempt of court proceedings is both to
sanction
the non- complaint party and to compel enforcement of a
court order. The applicant did not prove that the respondent was in
contempt
of the court order of 3 March 2017. She, however,
established valid grounds for the respondent to be compelled to
comply with the
order.
[11]
The applicant sought a costs order against the respondent. I could
find no reason both in law and fairness for not granting
costs
because the applicant should not be out of pocket when asserting her
rights in terms of a court order.
[12]
In the premises, the following order is made:
Order
1.
The respondent is not guilty of contempt of court.
2.
The application to stay the compliance order dated 3 March 2017
pending the outcome
of the review application under case number PR
164/16 is dismissed.
3.
The application to stay the arbitration award certified on 17 May
2016 pending
the outcome of the review application is dismissed.
4.
The respondent is ordered to comply with the compliance order dated 3
March 2017.
5.
The respondent is ordered to pay the applicant’s costs.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Advocate Dyke SC
Instructed
by:
Brown Braude & Vlok
For
the Respondent:
Advocate Zondo
Instructed
by:
The State Attorney
Appearances:
For the
Applicant:
For the
Third Respondent:
[1]
Act 66 of 1995 as amended.
[2]
See:
Pheko
and Others v Ekurhuleni Municipality (No.2)
(
2015)
6 BCLR 711
(CC);
2015 (5) SA 600
(CC). at para 47 and 50.
[3]
[2016]
10 BLLR 999 (LAC); (2016) 37 ILJ 2793 (LAC).