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[2018] ZALCJHB 236
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Molefe v Kenneth Kaunda Municipality and Another (J3408/17; JR2702/14) [2018] ZALCJHB 236 (26 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: J3408/17
JR2702/14
In the matter between:
MANKWELE
MOLEFE
Applicant
and
KENNETH KAUNDA
MUNICIPALITY
First
Respondent
MS LS
LESUPI
Second
Respondent
Application heard: 22 June 2018
Judgment delivered: 26 June 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an application to hold the
respondents in contempt of court for their alleged failure to comply
with an order of this
court.
[2] This matter has a sorry history,
most of which is recorded in the judgment delivered by this court on
2 May 2018. In short,
on 11 December 2014, the SA Local Government
Bargaining Council issued an arbitration award reinstating the
applicant into the
employ of the first respondent. On 22 June 2017,
per Salojee AJ, this court dismissed an application to review and set
aside that
award. On 14 December 2017, Salojee AJ dismissed an
application for leave to appeal against his judgment. The applicant
filed an
application to hold the respondents in contempt. On 9
February 2018, Whitcher J dismissed the application on the basis that
the
respondents had filed a petition for leave to appeal. The
applicanmt filed a fresh application to hold the respondents in
contempt,
the application that served before the court on 20 April
2018 and the subject of the judgment delivered on to May 2018, the
court
was faced with two competing submissions. First, the applicant
contended that the petition for leave to appeal on which the
respondents
relied to avoid the contempt application was invalid. He
stated under oath that he had visited the court on a number of
occasions
and that officials here had confirmed to him that no
petition had been filed. Of particular concern to him was the absence
of an
appeal court (or ‘JA’) case number. The petition on
which the respondents relied had been filed under case number JR
2702/2014, the case number allocated to the review application. The
respondents on the other hand contended that a valid
petition
had been lodged, and that pending the outcome of that petition, they
could not be said to be in contempt of court by failing
to implement
the arbitration award. The court made the following order:
1.
The application is postponed
sine
die
.
2.
The court official who is responsible for the administration of
appeals to the Labour Appeal Court is directed to file an affidavit,
within seven days of this order, as to the status of the document
filed by the respondents on 10 January 2018. The affidavit must
address, in particular, whether the document is regarded as a valid
petition in terms of the rules of the Labour Appeal Court,
with a
file for any petition has been opened and record the progress that
has been made (if any) in placing the document before
the Labour
Appeal Court for consideration.
3.
After the affidavit has been filed, either party may reenroll the
present application for hearing.
4.
The costs of the application are reserved.
[3] Mr CT Phopi, who is the registrar
of the Labour Appeal Court, deposed to an affidavit on 2 May 2018 in
compliance with the above
order. He says the following:
4.
The Labour Appeal Court which is under my administration has never
received a petition under
Kenneth
Kuanda Municipality and Mankwele Molofe
.
The procedure to be followed when a party petitions the Labour appeal
Court is to prepare the petition and approach my office
for a case
number which will be different from the one at the Labour Court. The
petition will then be recorded on the appeared
appeals and petition
register as having been filed. No petition has been filed as my
office on the 10
th
January 2018 between the above parties.
[4] On the next day, 3 May 2018, the
applicant requested that the matter be reenroll which it was for
hearing on 22 June 2018.
[5] On 11 June 2018, the respondent’s
filed an affidavit in reply to that filed by Mr Phophi. The deponent
says the following
5.
On or about 15 December 2017, the Dr Kenneth Kaunda district
municipality launched and served a petition prepared and settled
by
Adv Dikolomela under the style of case number JR 2702/14. Further,
that the said petition was successfully served on both the
applicant
and the Labour Court on about the 15 December 2017, as annexures
‘
DRKK-1 and J’
herein will confirm. Further, that
the applicant has in all the hearings of this matter on the 9
February 2018 and 20 April 2018,
admitted to have been served with
the said petition on 15 December 2017. Further, that this Honourable
Court is made aware that
the
dies non
period, operates from 15
December 2017 to 15 January 2018.
6.
On or about 10
th
of January 2018, the same petition was
personally delivered at the Labour Court by the attorneys of record
of the first respondent
herein. Further that the main file under JR
2702/14 was retrieved by MASHABA, CALVIN and together with the three
(3) originals
handed to NGCOBO, TSHEPISO in the office of the
petition for processing.
7.
Further, that at the hearing of this matter on the 20 April 2018, the
said NCOBO, TSHEPISO, was available to this Honourable
Court, to
confirm the receipt of the said petition. Further, that on the 20
April 2018, the said NGCOBO, Tshepiso, accordingly
personally
allocated an appeal number as JA-42/18, as annexure DRKK-K herein
will attest.
8.
Further, that there is a valid and standing order of this Honourable
Court, and the case number J 3408/2017, as per annexure
DRKK-A
herein, confirming the existence of a petition. Further, that it is
not for PHOPI, CIVILOUS THICHAKWA, to decide whether
the petition is
submitted is valid or not. Further, that the attorneys of record have
never met and/or dealt with PHOPI, CIVILOUS
THICHAKWA, on this
petition and/or any other enquiries, but only with NGCOBO, TESHEPISO,
in the said office…
9.
Accordingly, this Honourable Court must accept that there exist a
petition as per the order of court as annexure DRKK-A herein
and is
accordingly allocated JA 42/18, as annexure DRKK-K herein will
confirm.
[6] It warrants mention that the
annexure DRKK-K relied on by the applicant is the petition bearing
the date stamp of the Labour
Court dated 10 January 2018, and on the
face of which the number ‘JA 42/18’ has been inserted in
handwriting above
the case number JR 2702/2014. The explanation
proffered by the respondents is not entirely coherent. First, if the
petition was
indeed delivered on 10 January 2018 and handed to
Ngcobo, there is no explanation as to why a ‘JA’ case
number was
not immediately allocated then. Further, there is no
explanation as to why Ngcobo is said to have ‘personally
allocated an
appeal number as JA 42/18’ only on 20 April 2018,
which coincidentally, is the date on which the contempt proceedings
had
been enrolled. There is no explanation as to why the respondents
did not submit at that hearing that a JA case number had indeed
been
allocated. Finally, it is clear from Phopi’s affidavit that he
is the person charged with the administration of the
Labour Appeal
Court. His affidavit records that as it 2 May 2018, there was nothing
in the register that indicated that this matter
had been allocated a
JA case number.
[7] Be that as it may, I am
constrained to accept for present purposes that a case number has
been allocated to the petition filed
in this matter, and that the
petition remains pending. In those circumstances, it is not open to
the court to make any finding
of contempt.
[8] There is a further reason why the
application cannot, at this point in any event, be entertained. The
applicant has an arbitration
award in his favour. The challenge to
that award, by way of the application for review, has been dismissed.
That appears to be
the basis on which he seeks to hold the
respondents in contempt. There is nothing in the court file that
indicates that the award
has been made an order of this court. On the
contrary, an application in terms of s158(1)(c) was dismissed by
Basson J on 13 October
2015, presumably on account of the pending
review. The applicant does not assert in his founding papers (nor is
there any proof
attached those papers) that establishes that the
award has been certified in terms of s 143 of the Act. In these
circumstances,
it would not be open to the court in any event to hold
the respondents in contempt of the order, it not having been made an
order
of this court nor enforceable in terms of s 143 (4).
[9] For these reasons, the application
stands to be dismissed.
[10] In relation to costs, in my view,
the interests of the law and fairness dictate that each party bears
its own costs.
I make the following order:
1.
The application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant:
For
the respondent: