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[2018] ZALCJHB 291
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Molefe v Dr Kenneth Kaunda District Municipality (J1443/17) [2018] ZALCJHB 291 (19 September 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
no: J1443/17
In
the matter between:
MANKWELE
B MOLEFE
Applicant
and
DR
KENNETH KAUNDA DISTRICT MUNICIPALITY
First
Respondent
Heard
:
5 September 2018
Delivered
:
19 September 2018
Summary:
(S 158(1) (c ) application inextricably linked to application to
archive the same – matters to be heard jointly)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an opposed application launched on 7 August 2017 to make an
award an order of court brought by Mr M B Molefe (‘the
applicant’). The award, which was issued on 11 December 2014
ordered the applicant’s reinstatement with retrospective
effect
to the date of his dismissal on 10 July 2014.
Material
chronology
[2]
After the notice of set down of the s 158(1) (c) application was
issued on 2 July 2018, the respondent brought an application
to
permanently archive the same file on the basis that the applicant has
not prosecuted his claim timeously (‘the archiving
application’). Strictly speaking, the archiving
application was obviously not set down for a hearing on 5 September
2018, because it was only filed after the notice of set down in the
enforcement application had been issued. Counsel for the respondent
strongly resisted the suggestion that the two applications should be
heard jointly, though common sense, the principles governing
consolidation of matters and the expeditious conduct of litigation
dictates they should be. It is plainly nonsensical to
hear an
application to make an award an order of court, while another
application is pending to archive the very same application.
[3]
The respondent had also requested that the application to archive the
s 158 application be enrolled on the unopposed roll as
the applicant
had supposedly not filed an answering affidavit. However, according
to the court file, the archiving application
was only filed on 22
August 2018, the same day the letter requesting it to be enrolled was
submitted. The applicant filed his opposing
affidavit on 24 August
2018, so there appears to be no reason why this ought to be enrolled
on the opposed roll.
[4]
Quite apart from launching the archiving application, the respondent
also sought to oppose the s 158(1)(c) application on two
bases.
Firstly, it contended that there is still a pending petition for
leave to appeal before the Labour Appeal Court, following
the Labour
Court refusing leave to appeal against the dismissal of the
respondent’s review application. Obviously, if the
petition is
indeed pending, and if leave to appeal were granted any application
to make the award an order of court should be stayed
pending the
outcome of such an appeal.
[5]
However, as things stood when this matter was heard, the court
ascertained that on 20 August 2018, the petition had been struck
off
the roll on account of incomplete documentation being filed. The
respondent claimed it was intent on correcting the deficiencies
in
the petition but, quite extraordinarily, was expecting the Labour
Appeal Court to explain to it why its application was deficient.
Respondent’s counsel strenuously and relentlessly argued that
just because the petition had been struck of the roll, that
did not
mean there was no petition pending before the LAC. However,
despite being invited to do so, he could not cite a single
authority
in support of this contention. It appears the respondent
confused a matter being removed from the roll with it
being struck
off.
[6]
In the course of argument, it was also brought to the court’s
attention that there was a previous application launched
by the
applicant to make the award an order of court.
[7]
The first s 158(1)(c) application, under case JR 2702/2014 was
dismissed by the Labour Court on 13 October 2015. It is
common
cause that at that stage, the review application was pending.
Clearly, the review application having been dismissed,
subject to
there being a pending appeal, nothing prevents the applicant from
launching a fresh application to enforce the award.
The relief sought
might be the same, but the factual circumstances before the court are
not the same as when a review application
was pending.
[8]
The applicant later launched this application to make the award an
order of court on 7 August 2017. On 15 September 2017, he
also
brought an
ex parte
application under case number J 1963/17
against the respondent to hold it, and the responsible executives in
contempt of court for
not complying with the court order. On 18
October 2017, the respondent launched another application under case
number J 2526/27
to set aside a writ of execution issued on 20
September 2017 (‘the stay application’).
[9]
The stay application was removed from the roll by agreement on 5
December 2017. The contempt application proceeded and on 26
June 2018
was dismissed. The reasons for the contempt application being
dismissed were two fold. Firstly, at that stage, the court
concluded
that a petition for leave to appeal against the review application
was pending. It is important to emphasise this petition
was only
struck off the roll in August 2018, which was
after
judgment
was handed down in the contempt application. The second reason for
dismissing the contempt application was that, there
was nothing
before the court to show that the award had been made and an order of
court or of being certified under s 143(4) of
the LRA.
[10]
Respondent’s counsel also alluded to an attempt by the
applicant to enforce the award by obtaining a writ from the
magistrate’s
court. According to the respondent, a writ was
issued which is the subject of a pending appeal in the magistrate’s
court.
The facts in that matter, in so far as they might be relevant,
are not before the court in this application, nor in the archiving
application.
[11]
As matters currently stand, the only pending matters before this
court are the s 158(1)(c) application and the related application
to
dismiss it, though the latter was not set down for hearing on 5
September 2018. At the time of hearing the matter, there
was no
pending petition for leave to appeal against the dismissal of the
respondent’s review application following it being
struck off
the roll.
[12]
In view of what I mentioned earlier, it is quite inappropriate to
determine the s 158(1)( c) application separately from the
counter-application to order that it be archived and they should be
determined jointly. In view of the long and winding path
this
matter has taken, I am directing that they be enrolled on an
expedited basis.
[13]
In order not to delay the matter further, the respondent is also
ordered to file any replying affidavit in the archiving application
together with a condonation application.
Order
[1]
The s 158(1)(c) application is postponed and must be re-enrolled to
be heard jointly with the respondent’s application
to order the
archiving of the application on the opposed motion roll on an
expedited basis.
[2]
In the event that the respondent seeks to file any replying affidavit
in the application to archive the application, it must
file such
affidavit within 5 days of receipt of this order, together with a
condonation application for the late filing thereof.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
RESPONDENT:
P
L Dikolomela instructed by Morathi & Motaka Attorneys