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[2019] ZALCJHB 122
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Mashaba v Citibank NA SA Branch and Others (JR1294/13) [2019] ZALCJHB 122; [2019] 11 BLLR 1265 (LC); (2019) 40 ILJ 2762 (LC) (29 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
case
no: JR 1294 / 13
In
the matter between:
CAIPHUS SIBUSISO
MASHABA
Applicant
and
CITIBANK N.A. SA
BRANCH First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION Second
Respondent
TIMOTHY BOYCE
N.O. Third
Respondent
Heard
:
13 November 2018
Delivered
:
29 May 2019
Summary: Application
for amendment of Court order – Rule 16A(1)(a) considered –
principles relating to ambiguity in
order considered –
intention of order and underlying arbitration award considered
Court order –
interpretation of order – principles considered and applied –
where proper interpretation of order
requires clarification of order
– Court entitled to vary orders for the purposes of clarity
provided substance of order not
changed – amendment competent
Reinstatement and
re-employment – differences discussed – substitution of
reinstatement with re-employment cannot be
assumed in the absence of
a specific order to this effect
Court
order – order containing ambiguity and clarification required –
applicant made out proper case for variation –
application
succeeds.
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The application in this matter is somewhat
unique and is a prime illustration of what can go wrong if orders
granted by a Court
are not motivated and supported by proper
reasoning contained in a judgment. What I am now left with is the
unenviable task of
divining what a Judge of this Court may have meant
where such Judge simply gave an order, without providing reasons for
the order.
Also, and why none of the parties requested reasons for
the order, which would surely have been the appropriate course of
action,
is beyond me.
[2]
But be the above as it may, what is now
before this Court is an application by the applicant in terms of Rule
16A(2)(a) of the Labour
Court Rules to vary an order granted by this
Court, by way of Saloojee AJ, on 11 January 2017. The application was
brought on 27
February 2017 and is opposed by the first respondent.
The application came before me for argument on 13 November 2018, and
was
argued by both parties. Argument was concluded, and I reserved
judgment. I will now proceed to decide the applicant’s
application,
starting with setting out the relevant background facts.
The
relevant background
[3]
The background facts in this matter are
fortunately mostly either common cause, or undisputed.
[4]
The applicant was dismissed by the first
respondent on 25 September 2012 for alleged misconduct. The applicant
pursued an unfair
dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (‘CCMA’),
challenging the fairness
of his dismissal. This dispute came before
arbitrator Timothy Boyce (the current third respondent) for
arbitration under case number
GAEK 6712 – 12.
[5]
In an arbitration award dated 3 June 2013,
arbitrator Boyce determined that the applicant’s dismissal by
the first respondent
was substantively unfair, in that it was not for
a fair reason. Because of its specific relevance to deciding the
applicant’s
current application, the consequential relief
afforded by arbitrator Boyce resulting from his finding of a
substantively unfair
dismissal needs to be set out in full.
Arbitrator Boyce determined as follows in paragraph 5.2 of his award:
‘
5.2.1
The employer, Citibank NA, is ordered to reinstate the employee,
Caiphus Sibusiso Mashaba, on or before 14 June 2013, with
retrospective effect to the date of his dismissal on terms no less
favourable than those which were applicable at the time of the
dismissal, and without the forfeiture of any benefits which could
have accrued to him his unfair dismissal.
5.2.2
The employee is required to report for duty on later than 14 June
2013. (sic)
5.2.3
The employer, Citibank NA, is ordered to pay to the employee, Caiphus
Sibusiso Mashaba, 2 months backpay in the amount of
R39 673.52.
5.2.4
The backpay referred to in paragraph 5.2.3 supra is to be paid on or
before 14 June 2014.
’
[6]
Dissatisfied
with this award, the first respondent (then in the capacity as
applicant) brought a review application in terms of
section 145 of
the Labour Relations Act (‘LRA’)
[1]
to review and set aside the award made by commissioner Boyce as
aforesaid. This review application was brought on 16 July 2013
and
was opposed by the current applicant (who was the third respondent in
those proceedings).
[7]
The review application came before Saloojee
AJ on 11 January 2017. After hearing argument by both parties,
Saloojee AJ then made
the following order:
‘
The
application is dismissed and paragraph 5.2 of the award is
substituted with an order: ‘The employee is required to report
to duty on or no later than 23 January 2017’
’
.
As
touched on above, there are unfortunately no reasons provided by
Saloojee AJ for this order.
[8]
Pursuant to this order granted by Saloojee
AJ, the applicant indeed reported for duty on 23 January 2017. The
applicant demanded
that he be reinstated in his former position on
the same remuneration, and be paid his arrear salary and increases
since his dismissal.
[9]
However, the applicant was not allowed by
the first respondent to return to work at this time. Instead, the
applicant was informed
by the first respondent, which was later
confirmed by way of a letter, that he remain at home whilst fully
remunerated, until certain
issues could be resolved. These issues
were based on a contention by the first respondent that the order of
Saloojee AJ in fact
substituted the relief afforded to the applicant
in the arbitration award of arbitrator Boyce in its entirety, to the
effect that
the applicant was no longer reinstated, but re-employed.
It was further contended by the first respondent that there is no
retrospectivity
attached to the order.
[10]
The applicant did not take kindly to these
contentions. He addressed a letter to the Registrar of this Court on
9 February 2017,
which he copied to the first respondent, indicating
that he disagreed with the interpretation the first respondent
attached to
the order of Saloojee AJ, and requested that the Court
clarify the situation.
[11]
The first respondent answered the letter of
the applicant on 20 February 2017. It reiterated its contentions that
the substitution
order granted by Saloojee AJ resulted in a
substitution of the entire consequential relief contained in the
arbitration award,
with one of re-employment with no retrospective
consequences. It also contended that the applicant had no intention
of returning
to the employment of the first respondent and simply
wanted payment for the time period between the award and the ultimate
order.
The first respondent also complained that the applicant was
surreptitiously trying to rescind the judgment which would be
improper.
The applicant was invited to file a substantive application
if he had a problem with the order.
[12]
The applicant then obliged, and filed the
current application on 27 February 2017. The basis of this
application was a case that
Saloojee AJ simply intended to change the
date when the applicant was required to report for duty, as
contemplated by paragraph
5.2.2 of the award, and did not seek to
vary the consequential relief afforded in the award.
[13]
The first respondent not only opposed the
application, but also raised a number of further issues in its
answering affidavit. These
were that the applicant’s function
(meaning the position he held at the time of dismissal) had in the
interim been outsourced
and no longer existed. It was thus not
possible to allow him to return to work in the same position. The
first respondent further
stated that the applicant was not entitled
to the increases he demanded.
[14]
The respondent also spent some effort in
the answering affidavit dealing with the conduct of the applicant
upon being offered a
re-employed position by the first respondent.
According to the first respondent, it offered the applicant another
position, but
the applicant failed to take up what the first
respondent then called a ‘
re-employed
position
’. The first respondent
stated that the applicant reported for work again on 27 February
2017, but refused to sign take on
documents for this re-employed
position, and was the sent home until this could be resolved.
Ultimately, the first respondent resorted
to instructing the
applicant to report for work on 2 March 2017, but the applicant
failed to do so. The applicant’s attorneys
then became
involved, and these attorneys then informed the first respondent that
the applicant would return to work on 5 March
2017, which he also
failed to do.
[15]
I will now turn to deciding the applicant’s
application, based on the above facts.
Analysis
[16]
At
the heart of the current application must be the proper
interpretation of the order of Saloojee AJ. Where it comes to the
interpretation
of Court orders, the applicable principles have been
summarized by the Constitutional Court (CC) in
Eke
v Parsons
[2]
as follows:
‘
The
starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court’s intention
is to
be ascertained primarily from the language of the judgment or order
in accordance with the usual well-known rules relating
to the
interpretation of documents. As in the case of a document, the
judgment or order and the court’s reasons for giving
it must be
read as a whole in order to ascertain its intention.
’
The
CC in
Department
of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited
and Others v Road Traffic Management Corporation
and Others
[3]
also added the following considerations:
‘…
As
in the case of any document, the judgment or
order
and the court’s reasons for giving it must
be read as a whole in order to ascertain its intention. If on such a
reading, the
meaning of the judgment or order is clear and
unambiguous, no
extrinsic fact or evidence is admissible to contradict, vary or
qualify, or supplement it.
’
[17]
But
in addition to the aforesaid, there is in my view a further
consideration. This consideration is that it must always be borne
in
mind that Court orders must grant effective relief, and the order as
it stands must be capable of being construed so as to give
effect to
the purpose for which it was intended. This is evident from the
following
dictum
in
SOS
Support Public Broadcasting Coalition and Others v South African
Broadcasting Corporation (SOC) Limited and Others
[4]
:
‘
Court
orders are intended to provide effective relief and must be capable
of achieving their intended
purpose. That must be the starting
point in interpreting a court order …’
The
Court added that:
[5]
‘…
A
determination of the legal context within which the words in
an
order
are used is also required. …’
[18]
Applying
all the above principles
in
casu
,
the actual nature of the proceedings that came before Saloojee AJ
must be considered. It was a review application, and such proceedings
are regulated by section 145 of the LRA. The very purpose of review
proceedings is to determine whether an arbitration award issued
by a
CCMA commissioner is an award a reasonable decision maker could come
to.
[6]
What this means to the
current application, in my view, is that any interpretation of the
order of Saloojee AJ must also involve
also considering and
interpreting the award handed down by arbitrator Boyce, as this award
is the very subject-matter of what the
learned Judge had to consider,
and then decide on, in the review before him. However, and in the
end, it must be considered whether
the ultimate outcome arrived at by
the learned Judge in granting an order in the review application,
would lead to a clear order
that effectively determines the review
application and achieves the objectives of the LRA in this regard.
[19]
Where
this Court decides a review application relating to a CCMA
arbitration award, on the merits of the application (i.e. whether
the
award constitutes a reasonable outcome), and of course depending on
the grounds of review raised by the review applicant, this
Court must
either uphold (grant) the review application and then set aside the
award (whether in whole or in part), or dismiss
the application. That
has to be the starting point of any order granted. This is apparent
from the clear wording of section 145(1)
of the LRA which provides
that ‘
Any
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court
for
an order setting aside the arbitration award
…
’
(emphasis added). It is only when the Labour Court decides to set
aside the award in the first place, that the Labour Court
can then
exercise its powers under section 145(4) of the LRA,
[7]
and determine the matter as it deems appropriate, or grant an order
as to what process must be applied going forward to finally
and
properly determine the dispute. This is commonly known as
substitution of the award, or remitting the matter back to the CCMA
for arbitration
de
novo
.
[20]
Turning now to the facts
in
casu
, it is undoubtedly so that in the
arbitration award of arbitrator Boyce, he found that he dismissal of
the applicant by the first
respondent to be substantively unfair,
because it was not for a fair reason. It is equally beyond
contestation that the arbitrator
awarded the applicant fully
retrospective reinstatement as consequential relief flowing from this
unfair dismissal finding. All
this is clear from the wording of the
determination made by the arbitrator in the award itself.
[21]
The
word ‘
reinstatement
’
as it is recorded in the award of arbitrator Boyce is important. The
reason for this is that the arbitrator had a choice
under section
193(1) of the LRA as what consequential relief he could afford,
having found the dismissal of the applicant to be
substantively
unfair.
[8]
He could award either
reinstatement, re-employment or compensation. These three remedies
are distinct and separate and operate
to the exclusion of one
another.
[9]
It has to therefore
follow that there is a material difference between ‘
reinstatement
’
and ‘
reemployment
’.
[10]
[22]
With
the applicant having been specifically awarded reinstatement in the
ward, this means, as said in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[11]
:
‘
The
ordinary meaning of the word 'reinstate' is to put the employee back
into the same job or position he or she occupied before
the
dismissal, on the same terms and conditions. …. It is
aimed at placing an employee in the position he or she would
have
been but for the unfair dismissal. It safeguards workers' employment
by restoring the employment contract. Differently put,
if employees
are reinstated they resume employment on the same terms and
conditions that prevailed at the time of their dismissal.
As the
language of s 193(1)
(a)
indicates, the extent of retrospectivity is dependent upon the
exercise of a discretion by the court or arbitrator. The only
limitation
in this regard is that the reinstatement cannot be fixed
at a date earlier than the actual date of the dismissal. The court or
arbitrator may thus decide the date from which the reinstatement will
run, but may not order reinstatement from a date earlier than
the
date of dismissal. …’
[23]
Applying
the aforesaid
ratio
in
Equity
Aviation supra
,
the Court in
Themba
v Mintroad
Sawmills
(Pty) Ltd
[12]
held:
‘
,,,
reinstatement means the restoration of the
status
quo ante
. It is as if the employee was
never dismissed. Where reinstatement is awarded, an employer will be
in compliance with such an award
if the employer, on (or as from) the
date of the award having been made, takes the employee back into its
service on the same terms
and conditions of employment of the
employee as it existed at the time of dismissal of the employee.
Also, and as a necessary
consequence, the original starting date of
employment of the employee will remain the same and applicable, if
such reinstatement
is awarded.
’
[24]
And
recently, the Labour Appeal Court (LAC) in
National
Commissioner of the SA Police Service and Another v Myers
[13]
said:
‘…
Equity
Aviation
established
the principle that where an employee is reinstated by the employer,
he or she resumes employment on the same terms and
conditions that
prevailed at the time of the dismissal of the employee. This means
that the employer does not conclude a new contract
when reinstating a
dismissed employee. It merely restores the employment relationship to
what it was before the dismissal. …
’
[25]
Re-employment does not require the
restoration of the
status quo ante
as if a dismissal has not happened. Re-employment is relief that in
effect affords the employer greater flexibility where it comes
to
taking the employee back to work. Examples of where re-employment, as
opposed to reinstatement, would be competent is:
25.1
Where
there had been operational changes to the employee’s position
in the interim, or a change in conditions of employment,
which do not
go so far as to render taking the employee back into employment
impracticable, but which makes a complete restoration
of the
status
quo ante
as required by reinstatement impossible, re-employment would be
appropriate.
[14]
In simple
terms, the employee is returned to work in an alternative
position.
[15]
The Court or the
arbitrator however still retains the discretion to decide the
retrospectivity of such an award of re-employment,
so it does not
follow that all re-employment awards necessarily mean that it must be
new employment with no retrospectivity.
[16]
25.2
Also,
re-employment, as opposed to reinstatement, can have conditions
and/or terms attached to taking the employee back to work,
not
contemplated by the employee’s original employment and/or
employment terms.
[17]
For
example, it may be ordered that an employee is re-employed on a
different medical aid.
[18]
Another example is
AFRAWU
on behalf of Mgidlana v Bonnita (Pty) Ltd
[19]
where
the
Court held that an arbitrator acted
ultra
vires
when ordering reinstatement, but then ordering different terms as
being applicable where it came to the provident fund, which according
to the Court meant re-employment in this respect.
25.3
Re-employment
would also occur where it is decided to regard the previous
employment relationship as terminated and the replacement
thereof
with new employment which may or may not be on different terms. As
said in
Tshongweni
v Ekurhuleni Metropolitan Municipality
[20]
:
‘…
Re-employment
implies termination
of a previously existing employment relationship and the creation of
a new employment relationship, possibly
on different terms both as to
period and the content of the obligations undertaken.’
[26]
I have specifically set out the differences
between reinstatement and re-employment above, because of the
position adopted by the
first respondent in this instance. It
contended that the order of Saloojee AJ substituted the award of
reinstatement made in the
arbitration award of arbitrator Boyce, with
an award of re-employment. I believe this position adopted by the
first respondent
is opportunistic and devoid of merit, for the
reasons to follow.
[27]
In
its notice of motion in the original review application, the first
respondent sought an order that the arbitration award of arbitrator
Boyce be reviewed and set aside. Next, the first respondent
asked the Court, having reviewed and set aside the award, to
substitute the award with a determination that the dismissal of the
applicant was substantively fair. Alternatively, the first
respondent
prayed that the matter be remitted back to the CCMA for arbitration
de
novo
.
These are prayers fully in line with the provisions of section 145(4)
referred to above. The first respondent never sought to
make out an
alternative case of re-employment as a substitution for
reinstatement, which it needed to do for this even to be considered
by Saloojee AJ.
[21]
[28]
In
the founding affidavit in the review application, the applicant never
sought to make out a case that the relief of reinstatement
awarded by
arbitrator Boyce was inappropriate, and should not have been awarded
by the arbitrator. Such a case would have to be
founded on section
193(2) of the LRA,
[22]
and
would have to be fully motivated in the founding affidavit.
[23]
None of this was done, and there was simply no reason for Saloojee AJ
to have interfered with the consequential relief granted
by the
arbitrator, having actually dismissed the review on the undisputed
facts where it came to the finding of the existence of
an unfair
dismissal.
[29]
Therefore, Saloojee AJ decided the review
application by first and foremost dismissing it. As I have discussed
above, the dismissal
of a review application can only lead to one
plausible and logical conclusion, being that the arbitration award of
arbitrator Boyce
was not set aside, and stands. If the award was not
set aside, then Saloojee AJ simply could not exercise any of the
powers of
the Labour Court under section 145(4) of the LRA which
would include the power to substitute any part of the award made and
in
particular any part thereof relating to consequential relief.
[30]
But even if it is by way of a generous
stretch of the imagination assumed that Saloojee AJ could have
substituted part of the award
of arbitrator Boyce, even if he
dismissed the review application, it is my view that in order for it
to be accepted that the learned
Judge indeed substituted the award of
reinstatement with an award of re-employment, this would necessitate
the learned Judge specifically
saying so in his order. The material
and distinct differences between the concepts of reinstatement and
re-employment requires
that such kind of substitution be specifically
expressed in an order. It simply cannot be inferred or implied from
an order that
such kind of substitution took place, especially in the
absence of any written reasons.
[31]
What did Saloojee AJ then intend when he
granted the order that he did? In my view, the answer is actually
simple, and it is only
complicated by the legal wrangling of the
first respondent in trying to escape the clear consequences of the
dismissal of its review
application by Saloojee AJ. In the award of
arbitrator Boyce, he chose to specify when the applicant had to
actually report for
work, being 14 June 2013. However, because of the
intervening review application of the first respondent, the applicant
could not
report for work by that date. So all that Saloojee AJ did,
upon dismissing the review application, was to seek to amend this
date
when the applicant had to report for work, so that the award
would be given proper effect to. It was an integral part of the award
of the arbitrator that the applicant had to report for work by a
specific date, which needed to be changed only as a result of
the
intervening litigation having been disposed of. Thus, and having
dealt with the review application which removed the impediment
to the
applicant reporting for work, Saloojee AJ simply stipulated a new
date when the applicant had to report for work in terms
of the
original award of arbitrator Boyce.
[32]
The opportunistic approach of the first
respondent was in my view triggered by the unfortunate use of a wrong
paragraph reference
by Saloojee AJ, in referring to the arbitration
award, when the learned Judge sought to change the date by which the
applicant
had to report for work. The learned Judge referred to
paragraph 5.2 of the award, when he should have referred to
paragraph
5.2.2
. The first respondent pounced on
this, in essence reasoning that the entire paragraph 5.2 of the award
was now substituted with
this one and single determination: ‘
The
employee is required to report to duty on or no later than 23 January
2017’
’. I am however
convinced that this could never have been what Saloojee AJ meant,
considering that the order of the learned
Judge, other than simply
dismissing the review application, simply repeats the text of
paragraph 5.2.2 of the award of arbitrator
Boyce
verbatim,
but just substitutes a new date in that paragraph.
[33]
In addition, it is my view that the
interpretation the first respondent seeks to attach to the order of
Saloojee AJ makes little
sense, and is illogical. On the first
respondent’s own reasoning, paragraph 5.1 of the award would
stand, as it was not dealt
with in the order of Saloojee AJ. In
paragraph 5.1 of the award, arbitrator Boyce not only concluded that
the dismissal of the
applicant was substantively unfair, but he also
dealt with reinstatement as a remedy, finding it to be appropriate.
With Saloojee
AJ having dismissed the review application, this
paragraphs stands, and thus a finding of unfair dismissal and
reinstatement being
the appropriate remedy equally stands. Paragraph
5.2 then dealt with the specifics of consequential relief,
in
toto
, pursuant to the finding by
arbitrator Boyce in paragraph 5.1 of the award. If that consequential
relief is now taken to mean that
the applicant must report for work
on 23 January 2017, and nothing else, as the first respondent
suggests, it makes the award of
consequential relief a nonsense, and
actually contradicts the remaining part of the award which was
unassailed as a result of the
dismissal of the review.
[34]
Further,
and if the first respondent is correct, then there would be no
indication on what basis the applicant must report for work.
The
first respondent assumes re-employment. But it may just as well be
reinstatement. The latter proposition is actually fully
in line with
specific reasoning by arbitrator Boyce in his award, which reasoning
stands as a result of the dismissal of the review.
In short, if there
is any inference to drawn, it tilts heavily in favour of
reinstatement, and not re-employment. Also, and if
the first
respondent’s reasoning is correct, there would be no apparent
exercise of a discretion as to the retrospectivity
of the award
and/or back pay, which is essential in deciding any award of either
reinstatement or re-employment, leaving another
lacuna
.
[24]
This interpretation of the first respondent thus renders the order
ineffective and ambiguous, and completely undermines the arbitration
award in circumstances where the review application was actually
dismissed and the award stands. This simply cannot be allowed.
[35]
In sum, the dismissal of the applicant by
the first respondent was substantively unfair and he was reinstated
with retrospective
effect to date of his dismissal, in terms of the
award of arbitrator Boyce. The review application of the first
respondent challenging
this award was dismissed. Proper effect must
thus be given to the award, and considering the objectives of the
LRA, it must be
enforced. The order of Saloojee AJ must be
interpreted to give effect to these primary objectives, and it must
therefore follow
that learned Judge only intended to amend the date
the applicant was required to report for work in terms of paragraph
5.2.2 of
the award of the arbitrator, so that this award could be
given proper effect to.
[36]
In
conducting this matter, both the applicant and the first respondent
unfortunately went off track and became embroiled in irrelevant
issues. The applicant demanded, as part of what he considered to be
compliance with the award, that he paid a sum of some R4.4
million,
being his salary from the original award reinstatement date to date
when he finally returned to work following the order
of Saloojee AJ.
But the payment of this amount (even if due) has no relevance to the
issue of compliance with the award. It is
not a claim arising from
the award, but is a distinct and separate contract claim. As held in
Themba
supra
:
[25]
‘…
The
applicant has been reinstated, and this reinstatement applied from 28
December 2009. The pending challenge by the respondent
of the
arbitration award by way of the review application does not change
this. This means that the applicant’s entitlement
to be paid by
the respondent whilst the review is pending does not arise from the
reinstatement award, but actually arises directly
from his contract
of employment which has been restored to all its former glory by the
reinstatement. Contractually, the applicant
is an employee of the
respondent and as from 28 December 2009 he is entitled to be paid his
salary in terms of his contract of
employment, being such an
employee.’
[37]
In
Coca
Cola
Sabco
(Pty)
Ltd v Van Wyk
[26]
the Court similarly said:
‘
Therefore
if the employee, after the reinstatement order and during the time
that the employer exercises its review and appeal remedies
to
exhaustion, tenders his/her labour he/she does so in terms of the
employment contract. He/she is therefore entitled to payment
in terms
of the contract of employment. The claim is therefore a contractual
one, wherein the employee would have to set out sufficient
facts to
justify the right or entitlement to judicial redress. The employee
would inter alia have to prove that the contract of
employment is
extant; that he/she tendered his/her labour in terms thereof; and
that the employer refuses or is unwilling to pay
him/her in terms of
that contract. The employer on the other hand would have all the
contractual defences at his/her disposal.
’
[38]
Therefore, the issue of the applicant’s
payment from the original reinstatement date in the award of
arbitrator Boyce and
until he finally returned to work in terms of
the order of Saloojee AJ, has absolutely no bearing on deciding this
case. It is
not an issue that is in any way relevant to interpreting
either the arbitration award of arbitrator Boyce, or the order of
Saloojee
AJ. It is, in simple terms, another fight for another day
based on a different cause of action.
[39]
The first respondent similarly misconceived
its defence by raising issues relating to the applicant’s
conduct in making undue
demands after returning to work, refusing to
complete take on documents, failing to come back to work when
instructed and acting
in what the first respondent perceived to be a
generally obstructive manner. Again, these issues have nothing to do
with the arbitration
award of arbitrator Boyce or the order of
Saloojee AJ. These are similarly part and parcel of the kind of
issues that can be raised
by the first respondent in a contract claim
brought by the applicant, in which he would claim salary following
the date of reinstatement
in terms of the award of arbitrator Boyce.
[40]
Further,
and if the first respondent believes that the applicant by way of his
conduct after 23 January 2017 had shown that he in
some way abandoned
or waived or otherwise compromised his right to reinstatement, this
is equally an issue of no relevance in interpreting
the order of
Saloojee AJ. Even should a dispute develop in a case where the
applicant contends that the first respondent
did not comply with the
arbitration award in effecting his reinstatement in terms of that
award, that is a separate issue of enforcement
[27]
which could ultimately end up in contempt proceedings, and in those
proceedings all the issues raised by the first respondent as
to why
the applicant should not be reinstated could then be raised as a
defence.
[28]
Again, none of
this has a bearing on the matter
in
casu
.
[41]
So
all that now remains is to take proper steps to ensure complete
clarity were it comes to the order of Saloojee AJ and what is
intended by it. There are a number of provisions designed to correct
any ambiguity in Court orders and to ensure that these orders
can
effectively be applied. These include Rule 42 of the Uniform Rules of
the High Court,
[29]
as well as
Rule 16A of this Court. In addition, there is also section 165 of the
LRA
[30]
that is virtually
identical to the relevant part of Rule 16A applicable in this case.
All these provisions are aimed at the same
thing, being to allow a
Court to vary an order where there is an ambiguity in the order or a
patent error or omission in the order.
Seeing the applicant has
relied on Rule 16A, I will set out the relevant part of this Rule,
which reads:
‘
(1)
The court may, in addition to any other powers it may have
(a)
of
its own motion or on application of any party affected, rescind or
vary any order or judgment- …
(ii) in
which there is an ambiguity or a patent error or omission, but only
to the extent of such ambiguity, error or omission
…’
[42]
It
is competent for this Court to utilize the provisions of Rule
16A(1)(a)(ii) to correct an ambiguity which may arise out of the
interpretation of a particular order, just as long as the actual
substance of the order is not altered. This was recognized by
the CC
in
Minister
for Correctional Services and Another v Van Vuren and Another; In re
Van Vuren v Minister for Correctional Services and
Others
[31]
where the Court considered Rule 42 of the Uniform Rules and held:
‘
A
court may clarify
its order
or judgment
to give effect to its true intention which is to be ascertained from
the language used without altering the sense and
substance of the
judgment if, on its proper interpretation, the meaning remains
unclear …’
The Court in
Butters
v Mncora
[32]
also
articulated the position, also with reference to Rule 42, as follows:
‘…
The
principle that a court may clarify its judgment or
order if,
on a proper interpretation, the meaning remains uncertain and it
seeks to give effect to its true intention is trite.
The sense and
substance of the order ough
t not to be altered.
…’
The
same reasoning can in my view clearly be applied to Rule
16A(1)(a)(ii).
[43]
In
Firestone
South Africa (Pty) Ltd v Genticuro AG
[33]
,
the
Court gave the following apt summary of the circumstances under which
the Court would be inclined to effect a variation of an
order in the
interest of clarity:
‘…
provided
the court is approached within a reasonable time of its pronouncing
the judgment or order, it may correct, alter, or supplement
it in one
or more of the following cases:
(i)
The principal judgment or order may be
supplemented in respect of accessory or consequential matters, for
example, costs or interest
on the judgment debt, which the Court
overlooked or inadvertently omitted to grant …
(ii)
The Court may clarify its judgment or
order, if, on a proper interpretation, the meaning thereof remains
obscure, ambiguous or otherwise
uncertain, so as to give effect to
its true intention, provided it does not thereby alter “the
sense and substance”
of the judgment or order …
(iii)
The Court may correct a clerical,
arithmetical or other error in its judgment or order so as to give
effect to its true intention
… This exception is confined to
the mere correction of an error in expressing the judgment or order;
it does not extend
to altering its intended sense or substance. …
(iv)
Where counsel has argued the merits and
not the costs of a case (which nowadays often happens since the
question of costs may depend
upon the ultimate decision on the
merits), but the Court, in granting judgment, also makes an order
concerning the costs, it may
thereafter correct, alter or supplement
that order …’
[44]
In this instance, varying the order of
Saloojee AJ in line with what I have discussed above will not change
the substance of the
order. The variation will simply clarify the
order so as to set out its true and proper intention. It will remove
any ambiguity,
and make enforcement of the order effective (if
needed). In my view, Rule 16A(1)(a)(ii) was intended for this very
eventuality.
[45]
A
final issue remains. Saloojee AJ made no pronouncement in his order
on the issue of costs. It is however clear from the pleadings
in the
review application that both parties asked for costs. Saloojee AJ was
thus required to exercise a discretion in terms of
section 162(1) to
decide this issue. I believe the
lacuna
in the order to this effect was simply an oversight. Considering the
history of this matter and especially the kind of disputes
that have
arisen between the parties as discussed above, it is essential to
clarify this issue of costs as well, so as to avoid
a possible
further bone of contention between the parties in the future. In line
with the principle as set out in
Firestone
Africa supra
I shall therefore further vary the order of Saloojee AJ, by
reflecting that no costs order be made, which I consider would have
been an appropriate exercise of the discretion in this regard,
applying the reasoning in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[34]
.
Conclusion
[46]
Accordingly, the applicant’s
application in terms of Rule 16A must succeed. It is my view that the
applicant has made out
a proper case as contemplated by Rule
16A(1)(a)(ii) for a variation of the order of Saloojee AJ so as to
clarify the order and
remove any ambiguity, and thus ensure certainty
where it comes to the effective enforcement thereof, which has been
lacking until
now. The variation is in line with what Saloojee AJ in
my view intended and would be consistent with the clear terms of the
underlying
arbitration award of arbitrator Boyce which stands as a
result of the review application being dismissed, and the relevant
provisions
of the LRA. For the sake of clarity, I specifically state
that the variation is granted only in the terms specifically set out
in the order at the conclusion of this judgment.
[47]
This only leaves the issue of costs. I
reiterate that in terms of the provisions of section 162(1) of the
LRA, I have a wide discretion
where it comes to the issue of costs.
Overall considered, and even though the applicant was successful, I
cannot blame the first
respondent for adopting the view that it did.
After all, it is undeniably true that the order of Saloojee AJ as it
stood in fact
did create an ambiguity and contained an error, which
is not the fault of the first respondent. The situation was
exacerbated by
the absence of written reasons. Even though some of
the first respondent’s arguments were in my view somewhat
opportunistic,
I do not believe the first respondent was
mala
fide
. I also consider that there seems
to be more to come between the parties in respect of litigation
relating to implementing reinstatement,
back pay and the contract
claim I have referred to, and I do not intend to mulch any of the
parties with a costs order pending
all of this. In all these
circumstances, it is my view that the only fair order where it comes
to costs is to make no order as
to costs.
[48]
In the premises, I make the following
order:
Order
1.
The applicant’s application is
granted.
2.
The order of Saloojee AJ dated 11 January
2017 is varied to read as follows:
‘
1.
The applicant’s review application is dismissed.
2.
The date when the third respondent is required to report for work in
terms of paragraph 5.2.2 of the arbitration award of the
second
respondent dated 3 June 2013, is substituted with the date of 23
January 2017.
3.
There is no order as to costs.’
3.
There is no order as to costs in this
application.
_____________________
S Snyman
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant:
Advocate E Sithole
Instructed by: Mabaso
Attorneys
For the First Respondent:
Advocate A Snider
Instructed by: Cliffe
Dekker Hofmeyr Inc Attorneys
[1]
Act 66 of 1995 (as amended).
[2]
2016
(3) SA 37
(CC)
at
para 29. See also
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Limited
and Others
2013 (2) SA 204 (SCA) at para 13.
[3]
2018
(9) BCLR 1067
(CC) at para 43.
[4]
2018
(12) BCLR 1553
(CC) at para 52.
[5]
Id at para 54.
[6]
See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC)
at
para 110;
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Duncanmec
(Pty
)
Ltd v Gaylard NO and Others
(2018)
39 ILJ 2633 (CC) at paras 42 – 43;
Herholdt
v Nedbank Ltd and Another
(2013)
34
ILJ
2795 (SCA)
at
para 25;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96;
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14.
[7]
The
section reads: ‘
If
the award is set aside, the Labour Court may- (a)determine the
dispute in the manner it considers appropriate; or (b) make
any
order it considers appropriate about the procedures to be followed
to determine the dispute’
.
[8]
The
section reads: ‘
If
the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may-
(a) order the employer to reinstate the employee from any date
not earlier than the date of dismissal; (b) order
the employer
to re-employ the employee, either in the work in which the employee
was employed before the dismissal or in other
reasonably suitable
work on any terms and from any date not earlier than the date of
dismissal; or (c) order the employer
to pay compensation to the
employee’
.
[9]
See
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
(2008)
29 ILJ 2507 (CC)
at para 42.
[10]
Compare
Benicon
Earthworks and Mining Services (Pty) Ltd v Dreyer NO and Another
(1999)
20 ILJ 118 (LC).
[11]
(2008)
29 ILJ 2507 (CC) at para 36.
[12]
(2015)
36 ILJ 1355 (LC) at para 22.
See
also
Nel
v Oudtshoorn Municipality and Another
(2013)
34 ILJ 1737 (SCA) at paras 8 and 10;
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing and Textile Workers Union and
Others
(2012)
33 ILJ 160 (LAC) at para 26
[13]
(2018)
39 ILJ 1965 (LAC) at para 52.
[14]
See for example
National
Construction Building and Allied Workers Union and Others v Natural
Stone Processors (Pty) Ltd
(2000)
21 ILJ 1405 (LC) at para 19.
[15]
Compare
Bidair
Services (Pty) Ltd v Mbhele NO and Others
(2016)
37 ILJ 1894 (LC) at para 43
[16]
Both sections 193(1)(a) (reinstatement) and 193(1)(b)
(re-employment) refer to ‘…
from
any date not earlier than the date of dismissal …’,
which
is exactly the same discretion.
See
Genrec
Engineering (Pty) Ltd v Metal and Engineering Industries Bargaining
Council and Others
(2016)
37 ILJ 2649 (LC) at para 12.
[17]
See
National
Union of Metalworkers of SA and Others v Genlux Lighting (Pty) Ltd
(2009)
30 ILJ 654 (LC).
[18]
See
Johnson
Matthey (Pty) Ltd v National Union of Metalworkers of SA and Others
(2012) 33 ILJ 2420 (LC) at paras 19 – 20.
[19]
(2000)
21 ILJ 2691 (LC) at para 19.
[20]
(2012)
33 ILJ 2847 (LAC) at para 37.
[21]
See
Gijima
AST (Pty) Ltd v Hopley
(2014)
35 ILJ 2115 (LAC) at para 46.
[22]
In
terms of section 193(2), an employee found to have been unfairly
dismissed must be reinstated or re-employed by the Labour
Court or
an arbitrator, as the case may be, unless one or more of the
following specified exceptions are shown to exist: ‘
(a)
the employee does not wish to be reinstated or re-employed; (b) the
circumstances surrounding the dismissal are such that
a continued
employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or (d) the dismissal is unfair only
because
the employer did not follow a fair procedure
.’
[23]
Mediterranean
Textile Mills
(
supra
)
at para 28;
Independent
Municipal and Allied Trade Union on behalf of Strydom v Witzenberg
Municipality and Others
(2012)
33 ILJ 1081 (LAC) at para 30;
Elliot
International (Pty) Ltd v Veloo and Another
(2015) 36 ILJ 422 (LAC) at para 53;
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and Others
(2016) 37 ILJ 2313 (LAC) at paras 6 and 8.
[24]
See
Mediterranean
Textile Mills
(
supra
)
at para 27;
Coca
Cola
Sabco
(Pty)
Ltd v Van Wyk
(2015)
36 ILJ 2013 (LAC) at para 16;
Themba
(
supra
)
at para 23.
[25]
Id at para 31. See also
Myers
(
supra
)
at paras 54 – 56.
[26]
(2015)
36 ILJ 2013 (LAC) at para 24.
[27]
See Sections 143 and 158(1)(c) of the LRA.
[28]
Compare
Independent
Municipal and Allied Trade Union on behalf of Joubert v
Modimolle
Local
Municipality and Another
(2017) 38 ILJ 1137 (LC).
[29]
Rule 42(1) reads: ‘
The
court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or
vary: …
(b) an order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent
of such ambiguity, error
or omission …
’
.
[30]
Section
165 reads: ‘
The
Labour Court, acting of its own accord or on the application of any
affected party may vary or rescind a decision, judgment
or order-
(b) where there is an ambiguity , or an obvious error or omission,
but only to the extent of that ambiguity, error or omission
…
’
[31]
2011
(10) BCLR 1051
(CC) at para 8. See also
Minister
for Justice and Constitutional Development v Chonco and Others
2010
(7) BCLR 629
(CC) at paras 6 – 7.
[32]
[2014]
3 All SA 259
(SCA) at para 15. See also
Mostert
NO v Old Mutual Life Assurance Co
(
SA
)
Ltd
2002 (1) SA 82
(SCA) at para 5.
[33]
1977 (4) SA 298
(A) at 306G–307H. See also
McDonalds
SA (Pty) Ltd v CCMA and Others
[2003]
10 BLLR 1020
(LC) at 1022-1023;
SAFRAWU
on behalf of Mgidlana v Bonnita (Pty) Ltd
(2000) 21 ILJ 2691 (LC) at paras 12 – 13.
[34]
(2018)
39 ILJ 523 (CC) at para 25.