About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2020
>>
[2020] ZALCJHB 8
|
|
Panorama Park Retirement Village v Commission for Conciliation Mediation and Arbitration and Others (JR2472/2015) [2020] ZALCJHB 8; (2020) 41 ILJ 1200 (LC) (21 January 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 2472/2015
In the matter between:
PANORAMA PARK
RETIREMENT VILLAGE
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First
Respondent
B FROHNAPFEL
N.O
Second
Respondent
NEHAWU obo SHABALALA
ABEL
Third Respondent
Heard:
31 July 2019
Delivered:
21 January 2020
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The question that arises in this review application is whether it is
substantively
fair to dismiss an employee on allegations of being in
contempt of a Court order. The applicant (Employer), sought an order
reviewing
and setting aside the arbitration award issued by the
second respondent (Commissioner) dated 11 November 2015. In
the
award, the Commissioner found that the dismissal of the third
respondent (Employee) by the Employer on 6 August 2015 was
procedurally and substantively unfair, and had ordered his
reinstatement together with an amount of R9160.00 as backpay.
[2]
The Employer also seeks condonation for the late filing of the review
application; the late filing of the record of the arbitration
proceedings, and also the reinstatement of the review application.
The Employee as assisted by NEHAWU opposed the applications.
[3]
The facts of this case are fairly uncomplicated and may be summarised
as follows;
3.1
The Employee was employed as a general worker with effect from
12 September 2011
and was dismissed on 8 August 2015.
The Employer provides residence for elderly people and sickbays in
Klerksdorp in
the North West Province.
3.2
Some 49 employees at the Employer are members of NEHAWU. In early
2015, NEHAWU
and the Employer were engaged in negotiations on matters
of mutual interests. When conciliation failed, a certificate of
outcome
was issued, enabling the employees to embark on a protected
strike.
3.3
Picketing rules were agreed to between the parties as facilitated by
the Commission
for Conciliation Mediation and Arbitration (CCMA). On
3 July 2015, the Employer had approached this Court with an
urgent
application after it complained of acts of intimidation and
malicious damage to property perpetrated by the employees. This Court
(per Whitcher J) had issued a
Rule Nisi
, returnable on
25 September 2015.
3.4
Of relevance to this dispute is the interim order under 2.3, which
provided
that;
‘
Interdicting
and restraining the first Respondent as union and the second to 49
th
Respondents from striking and/or picketing closer than 100 meters
from each sides left or right and within fifty meters in front
of
each entrance of the entrances (Green and Reg gates) in Best street,
Klerksdorp to the Applicant’s property”.
3.5
On 3 July 2015, NEHAWU addressed correspondence to the
Employer, advising
that its members will no longer be at the
picketing lines as it was pursuing its legal options. The Employer
had then during the
course of the strike, engaged the services of
replacement labour.
3.6
The allegations against the Employee are that on 23 July 2015
and
during the course of the strike, he was seen at about 16h00
cycling from town on his way home in Best Street close to the
Employer’s
premises in contravention of the terms of the Court
order. The Employee allegedly came across two replacement workers,
(Portia
and Anna) and stopped to speak to them. The Employee was seen
by one of the Employer’s assistant managers (Ms Louise Hills)
as she was leaving the premises at about 16h00. Hills then informed
the Employer’s Manager, Mrs Engelbrecht, who in turn
advised Mr
Burgert Adriaan Botes, who dealt with the Employer’s labour
matters.
3.7
Botes was the Employer’s representative in the arbitration
proceedings
in his capacity as a board member (co-opted member of the
Employer) and managing Director (CEO) of Just Labour Law CC, a labour
law consultancy. A Mr William Alfred Botes, who is Botes’ son,
is also a director of the consultancy.
3.8
Flowing from the above events, the Employer charged the Employee
with;
“
Contempt of Court:
On Thursday 23
rd
July 2015 at approximately 16h00 you were observed by the assistant
manager of Panorama Aftree Dorp, riding up and down Best Street,
Oudorp, passing the Red gate, which is one of the entrances to
Panorama Park Aftree Dorp. Your actions … is contravention
of
the ruling of the honourable Justice Whitcher’s Court order on
2
nd
July 2015, Case No. J1309/15, paragraphs 2.2 and 2.3,
in that you harassed and threatened replacement labour and striking
closer
than 100 meters from each side left or right and within fifty
meters in front of each gate of the entrances (Green and red gates)….
Your behaviour amounts to contempt of a Labour Court order”
(Sic)
3.9
Having been subjected to a disciplinary enquiry, the Employee was
only required
to answer to the allegations of contempt of court. The
Employer had abandoned the charges related to allegations of
intimidation
and threatening violence. The Employee was subsequently
found guilty and dismissed.
3.10
The dismissal having been referred to the CCMA, it came before the
Commissioner for arbitration.
At those proceedings, the Employer was
represented by Adriaan Botes who also testified on its behalf. His
testimony was limited
to his role in the facilitation of the
picketing rules, the fact that an interim interdict was obtained
during the course of the
strike on 2 July 2015, the viewing
of the CCTV footage and the procedure followed leading to the
dismissal of the Employee.
He was the chairperson of the disciplinary
enquiry.
3.11
Botes had further confirmed that from 3 July 2015, NEHAWU
and its members stopped picketing
within 100 meters in compliance
with the Court order. When a complaint was received that the Employee
had spoken to the replacement
workers near the premises in a
prohibited area, CCTV footage was viewed to confirm same.
3.12
The interim interdict having been issued, Botes’ contention at
the arbitration proceedings
was that the Court through its order had
established a rule to be adhered to, which however the Employee had
contravened. This
was viewed as insubordination and a serious
transgression as the Employee had refused to carry out a legal and
lawful instruction
from the Labour Court not to be within a radius of
100 meters of the Employer’s gates. According to legal advice
the Employer
had obtained, a disciplinary hearing was the correct
route to follow to deal with the misconduct in question. He confirmed
that
the charges related to intimidation and harassment were not
pursued against the Employee.
3.13
Botes further testified that in further considering a sanction, it
was taken into account that
the Employee was issued with a final
written warning in 2014 for gross insubordination for failing to
carry out a lawful instruction.
That final written warning was on
record for the rest of the period that the Employee remained
employed.
3.14
Under cross-examination, Botes’ view was that by being in an
area in contravention of the
Court order, the Employee was on strike
and picketing. It was however put to him that the strike was
suspended on 17 July 2015
as an agreement was reached.
3.15
Botes further agreed when it was put to him, that only a Court had
the authority to determine
whether there was contempt of its orders.
He nonetheless denied that the dismissal of the Employee for contempt
of court was unfair.
[4]
It was common cause that at the arbitration proceedings, only Botes
had
testified. The parties had agreed after his testimony that there
would be no need to call any further witnesses, including the
Employee, in the light of the undisputed facts pertaining to the fact
that the Employee was indeed seen in the area falling within
the
restrictions imposed by the Court order; was further observed
speaking to the two employees at the time, and further since
the
charges of intimidation and harassment were not pursued at the
disciplinary hearing.
[5]
The Commissioner having considered the evidence and the parties’
written closing arguments concluded that;
5.1
Only the Courts were empowered to determine whether there was
contempt of its
orders and if so, what sanction to impose. A court
order however could not be said to be an instruction issued by an
employer and
that disobedience of a court order cannot amount to
insubordination within the employment context.
5.2
The Employer failed to prove on a balance of probabilities that a
workplace
rule existed in respect of which it had the power to
discipline and dismiss the Employee. In the absence of such a rule
related
to contempt of court, it could not be said that the Employee
was guilty of a breach of a rule.
5.3
Even if such a rule existed, it could not be said that the Employee
had breached
that rule since the Court order did not restrain or
prohibit employees from being in the area when they were not
picketing and
on strike. The Employee as observed in the area was not
‘striking or picketing’, but was on his way home from
town,
which was his usual route. He had stopped to speak to the two
other employees at the end of their shift, and there was nothing
wrong with what he did.
Preliminary
issues:
(i)
Non-compliance with the provisions of section 145(7) of the
LRA:
[6]
A
concerning factor needs to be raised with this review application as
with other review applications that routinely come before
the Court.
Other than its late filing, and the late filing of the transcribed
record of proceedings, it was only in amended notice
of application
filed in October 2016 that the Employer had sought an order to
be absolved from furnishing security in terms
of the provisions of
section 145(7) and (8) of the Labour Relations Act (LRA).
[1]
[7]
In
City
of Johannesburg v SAMWU obo Monareng and Another
[2]
,
it was held that;
“
[7]
The Labour Court has a discretionary power under section 145(3) of
the LRA to stay the enforcement
of an arbitration award pending its
decision in the review application. It may stay the enforcement of an
arbitration award pending
finalisation of a review application
against the award with or without conditions. It may in terms of
section 145(8) of the LRA
dispense with the requirement of furnishing
security. Properly construed, section 145(3) read with section 145(7)
and (8) should
be interpreted to mean that where an applicant in a
review application furnishes security to the Labour Court in
accordance with
section 145(8) of the LRA, the operation of the
arbitration award is automatically suspended pending its decision in
the review
application. In other words, the employer need not make an
application in terms of section 145(3) of the LRA to stay the
enforcement
of the arbitration award pending the finalisation of the
review application.
[8]
However, should the employer wish to be absolved from providing
security or to provide
security in an amount less than the threshold
in subsections (8) (a) and (b), then it is required to make an
application to the
Labour Court, in terms of section 145(3), for the
stay of the enforcement of the arbitration award pending its decision
in the
review application. The employer must make out a proper case
for the stay as well as for the provision of security in accordance
with section 145(8) to be dispensed with or reduced.”
[8]
Sadly, it has become a practice in this Court for parties seeking a
review
of unfavourable arbitration awards, to simply file such
applications without furnishing the security required, and to only
put
an obscure prayer somewhere in the pleadings, seeking to be
absolved from payment of security. In some instances, reviewing
parties
do not even make an attempt to be absolved from payment of
security, and simply close their pleadings and request a set down
date.
It is appreciated that opposing parties in review applications
can raise non-payment of security as preliminary point in the
answering
affidavit. Be that as it may, in most instances, as is in
this case, it is only after a year or three when the matter comes
before
the Court, that these preliminary points are addressed. By
then, the reviewing party had by default, been absolved from payment
of security.
[9]
The above
practices are an affront on the very purpose of the provisions of
section 145(7) and (8) of the LRA, and must come to
an end. The
purpose of these provisions is to essentially dissuade employers in
particular from bringing frivolous review applications
with no
prospects of success and ensure that they are timeously and
expeditiously prosecuted
[3]
.
[10]
For reasons that are obvious, reviewing parties have taken advantage
in the
lacuna
created by the provisions of section 145(7) of
the LRA, as it is not specified as to how the payment of security
should be made,
when and to whom. Furthermore, the provisions of
section 145(8) of the LRA do not indicate how and when a reviewing
party may approach
the Court in order to be absolved from furnishing
security. The fact that the provisions of section 145(7) of the LRA
makes reference
to; “
The institution of review proceedings…”
does not appear to occur to reviewing parties that such security must
be furnished at the institution of such proceedings.
[11]
This Court
and the Office of the Registrar does not have sufficient resources to
monitor whether or not reviewing parties comply
with the peremptory
provisions of section 145(7) and (8) of the LRA, and is dependent on
the practitioners in particular, to comply
with statutory
requirements when arbitration awards are reviewed, rather than
circumventing them. To the extent that the LAC’s
decision as
above requires a reviewing party to make an application to the Labour
Court, either in terms of section 145(3) for
the stay of the
enforcement of the arbitration award pending its decision in the
review application, or to be absolved from payment
of security, a
proper case in that regards needs to be made out. This in my view
implies that a separate application from the review
application ought
to be made. It is not uncommon for parties to bring separate
applications to stay enforcement of arbitration
awards, even though
this often happens when writs have been obtained. Ordinarily, the
provisions of Rule 11 of the Rules of this
Court
[4]
will be best suited for applications to be absolved from payment of
security, so that they can be treated as interlocutory, and
be placed
on special court rolls, so that they can be dealt with before it can
be said that the review application is ripe for
a hearing.
[12]
It is my view that ordinarily, where the requirements of section
145(7) of the LRA have
not been complied with, and where an
application under section 145(8) of the LRA has not been made, the
opposing party should be
in a position to enforce the favourable
award, as effectively, the review application is not properly before
the Court. My view
in this regard is premised on the very provisions
of section 145(7) of the LRA, which provides that the institution of
review proceedings
does not suspend the operation of an arbitration
award,
unless
the applicant furnishes security to the
satisfaction of the Court in accordance with subsection (8) of the
LRA. [
My underlining]
[13]
In this case, the Employer only raised the issue of being absolved
from payment of security
in the amended notice of motion. Other than
contending that it is an old age home and non-profit organisation for
the elderly,
the Employer further contended that in any event, since
the Employee did not seek to enforce the award or report for duty, he
effectively
condoned the non-furnishing of security in the main
review application. The Employer clearly misses the point. It is only
the Court
in accordance with the provisions of section 145 (8) of the
LRA that can made any determination and give direction as to whether
or not any security should be furnished upon a proper case being
made. The mere fact that the Employee did nothing to enforce the
award has no impact whatsoever on whether the peremptory provisions
were complied with or not.
[14]
In conclusion on this point, and to the extent that the issue of
security only came before
the Court some three years since the award
was issued and when the review application was heard, no purpose
would be served by
even considering whether the Employer should be
absolved or not. This is so in that, if for some reason it is
established that
a proper case has not been made out why the Employer
should be absolved, at most, all that the Court can do is to remove
the matter
from the roll so that such security can be furnished
before the review application is heard. That exercise would not only
be academic
but also prejudicial to the Employee, who had waited for
over three years to enforce a favourable award.
(ii)
The premature filing of the answering affidavit
.
[15]
The review application having been filed and served on
9 February 2016, the Notice
of intention to oppose together
with the answering affidavit were filed on 7 March 2016.
This was obviously prior to
the Employer having complied with the
provisions of Rule 7A (6) and (8) of the Rules of this Court. In this
regard, it was submitted
on behalf of the Employer that technically,
there was no opposition to the review application in the light of the
irregular step
on the part of NEHAWU and the Employee.
[16]
Inasmuch as I agree that the filing of the answering affidavit in the
manner it was done
constituted an irregular step, it is my view that
this on its own cannot render the whole answering affidavit
defective. In any
event, the Employer had subsequently filed an
amended notice of application, and I did not understand its case to
be that it suffered
some prejudice as a result of the irregular step.
In this regard, I am satisfied that the answering affidavit is
properly before
the Court.
(iii)
Condonation for the late filing of the review application and
the late filing of the record of proceedings:
[17]
The arbitration award having been issued on 11 November 2015,
the review application
was delivered on 9 February 2016.
The Registrar of this Court informed the Employer on 23 February 2016
that
the record of the arbitration proceedings was available. The
record was only filed on 18 October 2016.
[18]
Insofar as the record was filed out of time and the application to
review was deemed withdrawn
by virtue of the provisions of Clause
11.2.3 of the Practice Manual of this Court, I am satisfied with the
explanation proffered
by the Employer in that regard, and agree that
good cause was shown for the review application to be revived.
[19]
In respect
of the late filing of the review application, the Constitutional
Court in
Steenkamp
and Others v Edcon Limited
[5]
reiterated
the principles applicable to applications for condonation. Thus,
where time limits are set, whether statutory or in terms
of the rules
of court, a court has an inherent discretion to grant condonation
where the interests of justice demand it and where
the reasons for
non-compliance with the time limits have been explained to the
satisfaction of the court
[6]
.
[20]
In explaining the delay, the Employer’s Managing Director, Ms
Engelbrecht, averred
the award only came to her attention on
11 January 2016 after NEHAWU had sent a letter by email on
6 December 2015,
making enquiries about arrangements for
the Employee to report for duty and the compensation amount. She
averred that she was away
on leave from 4 December 2015
until 11 January 2016, and was not at any time aware of the
arbitration award.
She further averred that a copy of the award could
not have been received as the Employer’s telephone lines were
out of order
between 12 and 15 November 2015. She further
denied that Botes had received a copy of the award on
13 November 2015.
[21]
According to Engelbrecht, the correspondence from NEHAWU was then
sent to Botes on the
same date. Consultations were then held with
Botes on 12 January 2016 in regards to taking the
arbitration award on review.
Attorneys and Counsel were then
consulted and briefed in the matter. NEHAWU had in the meanwhile
sought to certify the arbitration
award in terms of section 143 of
the LRA. It was only on 14 January 2016 after legal opinion
was obtained, that instructions
were given to the Employer’s
attorneys of record to proceed with the review application. The
pleadings were then settled
after 19 January 2016.
Engelbrecht however does not give any further explanation as to
what had transpired until
9 February 2016 when the review
application was ultimately filed and delivered.
[22]
In opposing the application for condonation, Mr Galane of NEHAWU in
his answering affidavit
denied that NEHAWU had sent a copy of the
arbitration award to the Employer, and that all that was done was to
serve it with the
section 143 application with a copy of the award
attached to it. He further averred that on 4 December 2015,
the Employer
addressed correspondence to NEHAWU advising that the
Employee should not report for duty on 7 December 2015 as
per the
arbitration award, as a review application was to be launched
in the following week. Galane further pointed out that despite the
Employer allegations that it did not receive the award on time were
not true, as the Employer had made an application to the Registrar
of
this Court for a case number in December 2015.
[23]
There is something that does not add up with the Employer’s
explanation for the delay
to the extent that Engelbrecht averred that
they only became aware of the arbitration award on 11 January 2016.
As it
was correctly pointed out on behalf of NEHAWU, an organisation
called SA (ATEA Employers Association) had made an application for
a
case number on 10 December 2015. As to how Botes could have
sent correspondence to NEHAWU on 4 December 2015
advising
it that the Employee should not report for duty as the matter was to
be taken on review is a mystery, and clearly the
Employer’s
contention that he could have done so without having received a copy
of the award is nonsensical in the extreme.
In the same token, an
attempt was made by counsel for the Employer to disassociate Botes
from the Employer insofar as steps were
taken to secure a case
number, and again contended that Botes had no authority to file a
review. This however again does not make
sense as Botes as the
evidence had demonstrated throughout, had acted for the Employer in
regards to its labour matters. In my
view, the attempt to
disassociate Botes and the Employer’s Association from the
Employer’s actions in December 2015
insofar as the award
was received is disingenuous and lame in the extreme. The invariable
conclusion to be reached is that indeed
the Employer received a copy
of the award on 13 November 2015, which copy was sent to
Botes’ fax address. Botes
was acting on behalf of the Employer
at the time, and if he did not forward a copy of the award to it upon
its receipt, any blame
in that regard cannot be imputed to the CCMA.
[24]
Having concluded that a copy of the award was sent to the Employer
(
albeit
through Botes), it follows that the delay in filing
the review application is indeed about six weeks. The delay might not
be excessive
in the extreme. Be that as it may, the explanation
proffered in that regard is not
a full
explanation, nor is it reasonable. At worst, and as correctly pointed
out on behalf of the Employee, the Employer in its
application for
condonation had failed to take the Court in its confidence.
Furthermore, the explanation by Engelbrecht for the
delay merely
gives a timeline of events from 12 January 2016
from
when consultations were held with Botes, attorneys of record and
counsel, without giving much detail about what the Employer
had done
in view of it being aware of the time periods.
[25]
Even if there is any cause to accept the Employer’s explanation
for the delay, it
is apparent from the facts of this case, that its
prospects of success are non-existent, and that on the whole the
interests of
justice would not be in favour of granting condonation
based on the factors considered below.
[26]
The
Employer seeks to have the award reviewed on a variety of grounds
including that the Commissioner ‘did not properly, rationally
or justifiably apply her mind to the facts and the law’. It was
correctly pointed out on behalf of the Employee that the
review
application is more akin to an appeal, and I agree.
In
Goldfields
,
it was stated that in a review conducted under section 145(2)(a) (ii)
of the LRA, the review court is not required to take into
account
every factor individually, and to consider how the arbitrator treated
and dealt with each of those factors, and then determine
whether a
failure by the arbitrator to deal with one or some of the factors
amounts to process-related irregularity sufficient
to set aside the
award
[7]
.
[27]
To the extent that the Employer’s grounds of review and heads
of argument does the exact
opposite to what is postulated in
Goldfields
,
I do not intent to deal with all these grounds, as the primary
function of this Court is to determine whether on the facts,
the
arbitrator considered the principal issues before her; evaluated the
facts presented at the hearing and came to a conclusion
which was
reasonable to justify the decisions he or she arrived at.
[28]
Certain allegations of gross irregularities were unfairly made
against the Commissioner. The
first is that she did not allow the
Employer’s representative at the arbitration proceedings to
make an opening statement
without interfering, and thus denied the
Employer a fair hearing as he could not assess the Employer’s
true submissions,
and thus committed a gross irregularity. This
submission is clearly devoid of any truth and not supported by the
transcribed record
of proceedings at pages 208 – 210
[8]
,
which clearly demonstrates that the Commissioner granted Botes the
opportunity to make opening remarks, and at no stage did the
Commissioner interfere with his submissions. The allegations made
against the Commissioner in this regard are a classic case of
throwing anything at the award, with the hope that something will
stick.
[29]
There is further no merit in the Employer’s contentions that
the Commissioner assisted
the Employee’s representative and
laid the ground work for him to prove an allegation of bias of the
chairperson in the disciplinary
hearing. The record reflects that the
Commissioner was merely ascertaining the nature and basis of the
allegations made on behalf
of the Employee, that Botes was biased in
the disciplinary hearing. Clearly the Commissioner was entitled to do
that in order to
understand the gist of each party’s case. The
same conclusions should be made in regards to the Employer’s
contention
that the Commissioner took part in the cross-examination
of Botes in the arbitration proceedings. Again, a Commissioner is
entitled
to ask questions to clarify certain issues that arise from
evidence led, and cannot sit passively in proceedings if the evidence
presented is not clear to him or her.
[30]
It is further trite that central to any determination of a
substantive fairness of a dismissal,
the Commissioner is obliged to
have regard to the substance of the allegations made against an
employee, and not be swayed by the
labels attached to those
allegations. Insofar as the allegation was made that the Commissioner
ignored certain material evidence
and took into account irrelevant
considerations and facts, the Labour Appeal Court recently in
Edumbe
Municipality v Thabo Putini & Others
[9]
reiterated
the test on review in the following terms;
“
It
is a trite principle of law that for a defect in the conduct of
the proceedings to amount to a gross irregularity as contemplated
by
s 145(2)(a)(ii) of the LRA, the arbitrator must have misconceived the
nature of the enquiry or arrived at an unreasonable result.
It is not only the unreasonableness
of the outcome of an arbitrator's award which is subject to scrutiny,
the arbitrator “must
not misconceive the inquiry or undertake
the inquiry in a misconceived manner”, as this would not lead
to a fair trial of
the issues. Mere errors in the law and fact as
well as other process related errors are not sufficient to show that
the arbitrator
misconceived the inquiry. It must be shown that “the
arbitrator undertook the wrong enquiry, undertook the enquiry in a
wrong
manner” or “arrived at a decision which no
reasonable decision-maker could reach on all the material that was
before
him or her”.
[Citations
omitted]
[31]
In this case, I fail to appreciate how it can possibly be concluded
that the Commissioner
misconceived
the inquiry or undertook the inquiry in a misconceived manner.
The
Employee was charged with contempt of a court order. The charge is
clearly unusual if not unheard of. The Employer for some
strange
reason viewed the Court order as part of its rules in concluding that
the Employee was guilty of insubordination. The Constitutional
Court
in
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited
[10]
has provided an elucidation of the principles applicable to contempt
of court orders. In this regard, it was reiterated that the
essence
of contempt of court “lies in violating the dignity, repute, or
authority of the Court”
[11]
,
and civil contempt, as in this case, involves the disobedience of
court orders
[12]
.
[32]
The Commissioner in this case had regard to the essence of the charge
of contempt of Court and
correctly concluded that it is only the
Court that could pronounce on whether there was contempt of its
orders or not. An employer
in possession of a Court order cannot make
that pronouncement, nor can that order automatically morph into a
workplace rule for
the purposes of a charge of insubordination. To
the extent that the Employer held the view that the employees were in
contempt
of the interim Court order issued by Whitcher J, it was at
liberty to approach the very same Court to make a finding whether
there
was in fact contempt. Only a Court has supervisory and
enforcement powers over its orders.
[33]
Notwithstanding the above conclusions, it is trite that nothing
prevents an employer from subjecting
employees to disciplinary
proceedings in cases of misconduct committed in the course of a
strike action. At the very least, the
Commissioner, in trying to make
sense of the charge against the Employee considered whether in fact
ordinarily, he should have
been dismissed for insubordination by
analysing the evidence in regards to his conduct on 23 July 2015.
[34]
It was not in dispute that the Employee was seen in an area covered
by the interim interdict
talking to other employees who had just
ended their shift at about 16h00. The Commissioner had concluded that
the Court order referred
to striking and picketing within the
identified area. She correctly concluded that there was nothing wrong
with the employees being
in the area if they were not striking or
picketing.
[35]
It is my view that based on the substance of the charge against the
Employee, it would be nonsensical
to charge a single employee with
being on strike or involved in a picketing, as at the heart of a
strike or a picket for that matter,
is collective action by
employees. Furthermore, it was not in dispute that the Employee
ordinarily used the road in question for
his daily commute to and
from the premises. To have charged the Employee for simply cycling in
or around the restricted area when
no evidence was proffered to
demonstrate that his conduct had posed a discernible harm to the
Employer or other employees cannot
be fair. To the extent that the
Employer did not pursue any allegations of intimidation and
harassment against the Employee, and
further to the extent that the
charge of contempt of Court was unsustainable, clearly the Employer
had not discharged the onus
placed on it to prove that the dismissal
was substantively fair. In the light of the conclusions reached, it
is not even necessary
to consider other grounds of review related to
the procedural unfairness findings made by the Commissioner.
[36]
In summary, and in line with the approach set out in
Goldfields
[13]
,
I am satisfied that on the facts and the material placed before the
Commissioner, in terms of her duty to deal with the matter
with the
minimum of legal formalities, she had afforded the parties a full
opportunity to have their say in respect of the dispute,
had properly
identified the dispute she was required to arbitrate, understood the
nature of the dispute she was required to arbitrate,
dealt with the
substantial merits of the dispute, and most importantly, her decision
is one that another decision-maker could reasonably
have arrived at
based on the evidence placed before her.
[37]
In the end, the Employer has not been able to establish good cause
for the delay in filing the
review application, and it follows that
review application ought to fail. I have further had regard to issue
of costs, and since
the Employee was represented by NEHAWU in this
case, no order as to costs ought to be made. Accordingly, the
following order is
made;
Order:
1. The review application
that was deemed withdrawn in accordance with the provisions of Clause
11.2.3 of the Practice Manual of
this Court on account of the late
filing of the transcribed record of arbitration proceedings is
reinstated.
2. The application for
condonation for the late filing of the review application is
dismissed.
3. The review application
is dismissed.
4. There is no order as
to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv
M.E Coetzee, instructed
by Manong Badenhorst INC
For
the Third Respondent:M.S Maraka, NEHAWU Official
[1]
Act 66 of 1995 (as amended)
[2]
(2019) 40 ILJ 1753 (LAC)
[3]
City of
Johannesburg v SAMWU obo Monareng and Another
at
para 10
[4]
“
11
Interlocutory applications and procedures not specifically provided
for in other rules
(1)
The following applications must be brought on notice, supported by
affidavit:
(a)
Interlocutory applications;
(b)
other applications incidental to, or pending, proceedings
referred to in these rules that are not specifically provided for
in
the rules; and
(c)
any other applications for directions that may be sought
from the court
(2)
The requirement in subrule (1) that affidavits must be filed does
not apply to applications that deal
only with procedural aspects.
(3)
If a situation for which these rules do not
provide arises in proceedings or contemplated proceedings,
the court
may adopt any procedure that it deems appropriate in the
circumstances.
(4)
In the exercise of its powers and in the
performance of its functions, or in any incidental matter, the
court
may act in a manner that it considers expedient in the circumstances
to achieve the objects of the Act.”
[5]
2019 (7) BCLR 826
(CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189
(CC)
[6]
At
para 26. Also, at para 36 – 37 where it was held;
“
Granting
condonation must be in the interests of justice. This Court
in
Grootboom
set out the factors that must be
considered in determining whether or not it is in the interests of
justice to grant condonation:
“
[T]he
standard for considering an application for condonation is the
interests of justice. However, the concept ‘interests
of
justice’ is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes:
the
nature of the relief sought; the extent and cause of the delay; the
effect of the delay on the administration of justice
and other
litigants; the reasonableness of the explanation for the delay; the
importance of the issue to be raised in the intended
appeal; and the
prospects of success. It is crucial to reiterate that
both
Brummer
and
Van Wyk
emphasise
that the ultimate determination of what is in the interests of
justice must reflect due regard to all the relevant factors
but it
is not necessarily limited to those mentioned above. The
particular circumstances of each case will determine which
of these
factors are relevant.
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling
it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation
for the non-compliance
with the rules or court’s directions. Of great
significance, the explanation must be reasonable
enough to excuse
the default.
The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably
be left out of consideration in certain circumstances. For
example, where the delay is unacceptably excessive and there
is no
explanation for the delay, there may be no need to consider the
prospects of success. If the period of delay is short
and
there is an unsatisfactory explanation but there are reasonable
prospects of success, condonation should be granted.
However,
despite the presence of reasonable prospects of success, condonation
may be refused where the delay is excessive, the
explanation is
non-existent and granting condonation would prejudice the other
party. As a general proposition the various
factors are not
individually decisive but should all be taken into account to arrive
at a conclusion as to what is in the interests
of justice.”
All
factors should therefore be taken into account when assessing
whether it is in the interests of justice to grant or refuse
condonation.”
[7]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at paragraphs
18 - 19
[8]
The
Paginated bundle
[9]
Case
no: DA20 (Delivered on 11 December 2019)
(Reportable)
[10]
CCT 99/16) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1
(CC)
[11]
At
para 52
[12]
At
para 53 – 54, where it was stated;
“
Civil
contempt, in contrast, involves the disobedience of court orders.
The continued relevance of the distinction between
civil and
criminal contempt also seems to lie, on occasion, in the ability to
settle the dispute and to waive contempt.
Not
every court order warrants committal for contempt of court in civil
proceedings. The relief in civil contempt proceedings
can take
a variety of forms other than criminal sanctions, such as
declaratory orders,
mandamus
, and structural interdicts.
All of these remedies play an important part in the
enforcement of court orders in civil contempt
proceedings. Their
objective is to compel parties to comply with a court order.
In some instances, the disregard of
a court order may justify
committal, as a sanction for past non-compliance. This is
necessary because breaching a court
order, wilfully and with
mala
fides
, undermines the authority of the courts and thereby
adversely affects the broader public interest. In the
pertinent words
of Cameron JA (as he then was) for the majority
in
Fakie
:
“
[W]hile
the litigant seeking enforcement has a manifest private interest in
securing compliance, the court grants enforcement
also because of
the broader public interest in obedience to its orders, since
disregard sullies the authority of the courts and
detracts from the
rule of law.”” (Citations omitted)
[13]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
at para 20