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[2019] ZALCJHB 50
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Maanaso and Another v Techniflex CC and Another (J2501/15) [2019] ZALCJHB 50 (19 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
j
2501/15
In
the matter between:
ANDREW
SELLO MAANASO
First Applicant
THOKOZANI
EMMANUEL ZULU
Second Applicant
and
TECHNIFLEX
CC
First Respondent
BEATRICE
DOROTHY TONKIN
Second Respondent
Heard
:
29
January 2019
Delivered
:
19 March 2019
Summary:
Application for contempt of court.
JUDGMENT
RAPHULU,
AJ
Introduction
[1]
This in an application to hold the Respondents in contempt of a
Commission for Conciliation,
Mediation and Arbitration (CCMA) award
of 7 September 2015 which was made an order of this Court on 8
September 2015. In terms
of the order, the Respondents were ordered
to reinstate the Applicants, and to pay the First Applicant
compensation in the amount
of R15 600, and to pay the Second
Applicant compensation in the amount of R14 400.00.
Background
[2]
It is common cause that the due compensation was paid to the
Applicants. However, this was
only done following the Applicants
having to approach the Sheriff of the High Court after obtaining a
warrant of execution. The
Respondents concede that the compensation
payment was delayed, but contend that full payment has now been made
to the Applicants.
[3]
As to the re-instatement portion of the award, the Applicants allege
that they tendered
their services at the First Respondent on 25
September 2015, but that they were turned away by Patrick, the
security guard employed
by Thomson Security, the company which
provides security services to the First Respondent, and/or they were
turned away Mr Michael
Walker of the First Respondent. The
Respondents allege that the Applicants never tendered their services
at all, and that accordingly,
the Respondents could not comply with
the reinstatement portion of the order.
[4]
There is some contention around the following:
4.1
Whether the Applicants allege to have tendered their services on 25
September 2015 or 25 October
2015;
4.2
Whether the Applicants allege to have walked to the First
Respondent’s premises together
or if they met there;
4.3
Whether it was Patrick or Mr Walker that allegedly turned the
Applicants away.
[5]
In my view, none of the above are material, as it is a common cause
fact that the Applicants
were not reinstated, and thus that the
reinstatement portion of the order was not complied with.
[6]
The Respondents argue that this being an ex parte application, it is
only in respect of
the First Applicant, and not the Second Applicant.
This is not correct. The nature of an ex parte application is that is
in an
application with only an applicant party, and no respondent
party. It is not limited to one applicant party.
[7]
In order to get relief in this application, the Applicants must prove
the following:
7.1
the existence of a court order
7.2
service or notice of the court order
7.3
non-compliance with the terms of the order
7.4
wilfulness and mala fides beyond reasonable doubt
[8]
It is common cause that there is an existing court order, and that
same was served on the
Respondents. It is also common cause that
there has been non-compliance with the reinstatement portion of the
court order. What
is in dispute is whether, beyond reasonable doubt,
such non-compliance is due to the wilfulness and mala fides of the
Respondents.
[9]
The
Respondents have to date, not taken a single step to try and comply
with the court order which directs them to reinstate the
Applicants.
Seeing as they hold an order of this Court directing them to
reinstate the Applicants, they had a legal responsibility
to take
steps to do so. Even though the Respondents do allege
[1]
that once the First Respondent became aware of the award, it
implemented measures to ensure that it complied with the arbitration
award, absolutely no measures to reinstate the Applicants has been
demonstrated to this Court. As late as from the time that the
Applicants launched these contempt proceedings, there could have been
no doubt in the minds of the Respondents that the Applicants
were
unhappy with not having been reinstated, and that they were tendering
their services to the First Respondent.
[10]
The Respondents took no steps to reinstate the Applicants, but
instead used their time and resources to contest
these contempt
proceedings. As at the date of the contempt proceedings, the
Respondents are still not trying to reinstate the Applicants.
The
conduct of the Respondents shows beyond reasonable doubt that they
have no intention of reinstating the Applicants, as at 25
September
2015, or any other date.
[11]
Orders of this Court are to be respected and complied with, failing
which consequences follow for parties
who choose to disregard same.
Order:
1.
The Respondents are held to be in willful
contempt of the court order dated 8 September 2015.
2.
The Respondents are to reinstate the
Applicants within 15 days of the date of this order.
3.
The Respondents are to pay a fine in the
amount of R50 000 (Fifty Thousand Rand), being R25 000.00
(Twenty-Five Thousand Rand) payable
to each of the Applicants. This
fine is to be paid within 15 days of this order.
4. No
order is made as to costs.
_______________________
Raphulu
L
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants:
Self-Represented
For
the Respondents: S
Lancaster of Lancaster Kungoane Attorneys
[1]
At para 12 of the Opposing Affidavit.