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[2020] ZALCJHB 87
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Ramovha v Fidelity Security Services (Pty) Ltd (J4016/2018) [2020] ZALCJHB 87 (1 June 2020)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J4016/2018
In the matter between:
LANGANANAI JOYCE
RAMOVHA
Applicant
and
FIDELITY SECURITY
SERVICES (PTY) LTD
Respondent
Enrolled:
20 May 2020
Decided
on the papers
Delivered:
This judgment was handed down electronically by
circulation to the parties' legal representatives by email,
publication on the Labour
Court’s website and released to
SAFLII. The date and time for hand-down is deemed to be 10h00 on
1 June 2020
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1]
With
this application, the applicant seeks an order to have the
arbitration award dated 1 March 2016 issued under the
auspices of the Commission for Conciliation Mediation and Arbitration
(CCMA) be made an order of Court in accordance with the provisions
of
section 158(1)(c) of the Labour Relations Act (LRA).
[1]
The respondent opposed the application.
[2]
Arising from the declaration of the
national state of emergency, the parties had agreed that the matter
be disposed of on the papers.
The applicant’s attorneys of
record in accordance with a directive issued by the Court on
11 May 2020 had filed
supplementary heads of argument.
[3]
Following the referral of an alleged unfair
dismissal dispute to the CCMA by the applicant together with four
other employees, Commissioner
D.K Nkadimeng had on 1 March 2016,
issued an award, in terms of which the respondent was ordered
to reinstate the
applicant and the four other individuals, and to
further pay to each of them, an amount of R22 800.00 in the form
of back-pay.
[4]
This application was brought before the
Court on 5 April 2019. In her founding affidavit, the
applicant averred that the
respondent has failed/refused or neglected
to either reinstate or pay her the compensation amount in accordance
with the arbitration
award.
[5]
The respondent had opposed the application,
in which it submitted that the applicant’s application was an
abuse of the Court’s
process, since she was aware of a review
application which was pending before the Court. In substantiation of
the defence, it was
submitted on behalf of the respondent that;
a)
A review application was launched under
case number JR750-2016, and that in this regard, a notice in terms of
Rule 7A(8)(a); a notice
in terms of Rule 7A(6) and a certificate in
terms of Rule 7A(5) of the Rules of this Court were served on the
applicant’s
attorneys on 23 May 2017.
b)
The notice in terms of Rule 7A(6) was
accompanied by a transcribed record and CCMA documentation, and an
affidavit of service confirmed
such service.
c)
The applicant’s attorneys of record
had on 19 October 2017 addressed correspondence to the
respondent’s attorneys
requesting proof that the record of
proceedings had been served. This was responded to on 20 October 2017
with the required
proof attached
d)
On 31 October 2017, the
applicant’s attorneys of record had complained about the
incomplete record and requested
another copy. The respondent’s
attorneys responded on 31 October 2017, indicating that
service was complete, and
that another copy of the record would be
provided if the applicant’s attorneys paid for the pages.
e)
On 3 November 2017, the
applicant’s attorneys addressed correspondence to the
respondent’s attorneys indicating
that payment for the pages
was made on 1 November 2017 and that these would be
collected from the respondent’s
attorney’s offices on
6 November 2017.
f)
In the midst of an exchange of the above
correspondence, the applicant had then served and filed a notice to
remove the cause of
complaint in terms of Rule 11 which the
respondent had opposed.
g)
Only on 22 March 2018 did the
applicant file an answering affidavit to the review application. The
respondent had in its
response, raised the fact that the answering
affidavit was filed out of time without an application for
condonation.
[6]
In her replying affidavit, the applicant
denied that her application was an abuse of the Court’s process
and contended that
the respondent has failed to prosecute its review
with the necessary degree of urgency. She further averred that the
respondent
was aware that its review application was ‘deemed
dismissed’, and that her attorneys had advised the respondent
that
a section 158(1)(c) of the LRA application was to be launched.
In this regard, reference was made to correspondence sent to the
respondent’s attorneys on 19 October 2017 and
8 November 2017 indicating that the review application
was
‘deemed dismissed’, and that the section 158(1)(c)
application was to be proceeded with.
[7]
The applicant had further averred that the
respondent was also made aware in the answering affidavit in the
review application that
its review application was deemed dismissed,
and to the extent that there was no application before the Court to
revive the review
application, it was currently not before the Court.
The legal framework
and evaluation:
[8]
This
Court is enjoined with wide powers in terms of the provisions of
section 158(1)(c)
of
the LRA
[2]
to make arbitrations
awards and/ or settlement agreements orders of the Court. The Labour
Appeal Court (LAC) in
South
African Post Office Ltd v CWU obo Permanent Part-Time Employees
[3]
outlined
the principles that Courts must take into consideration when
exercising its discretion under section 158(1)(c) of the LRA.
Thus,
before the Labour Court can grant an order sought in terms of section
158(1)(c) of the LRA it must be satisfied that, at the
very least the
award satisfies the criteria set out in section 142A of the LRA; that
the award is sufficiently clear to have enabled
the defaulting party
to know exactly what it is required to do in order to comply with it;
and, that there has not been compliance
by the defaulting party with
the terms of the award.
[9]
The Court’s discretion however to
make an arbitration award an order of Court is constrained by the
provisions of section
145(3) of the LRA, in terms of which the Court
in the face of a review application may stay the enforcement of the
arbitration
award pending its decision. Under the provisions of
section 145(7) of the LRA however, the institution of review
proceedings does
not suspend the operation of the arbitration award,
unless the applicant (the respondent in this case), has furnished
security
to the satisfaction of the Court. To the extent that the
arbitration award in this case ordered a reinstatement and backpay,
the
security envisaged under the provisions of section 145(8),
entails 24 months remuneration, or the amount equivalent to the
amount
of compensation ordered by the Commissioner.
[10]
As to whether this Court should exercise
its discretion and grant the order sought by the applicant must be
considered against a
variety of disconcerting factors arising from
her pleadings, the heads of argument and the supplementary heads of
argument filed
on her behalf.
10.1
The first concern is that as can be gleaned
from the pleadings, the applicant for the first time in the replying
affidavit raised
an issue surrounding the ‘deemed dismissal’
of the review application. Furthermore, it was the first time in the
written
heads of argument and the supplementary heads of argument
that detailed submissions were made as to the reason the review
application
ought to be deemed withdrawn, and also the first time
that issues were raised pertaining to the delay in instituting the
review
application, and the failure to seek condonation in that
regard.
10.2
It
is trite that a case ought to be made out in the founding papers, and
not in the reply or the heads of argument. It is in the
founding
affidavit that it is expected of the applicant to
accordingly
disclose facts that would make out a case for the relief sought, and
sufficiently inform the other party of the case
it was required to
meet
[4]
.
In
the end, the applicant must stand or fall by the allegations made in
the founding affidavit. This is so in that it is a trite
principle of
our law that the court will not allow a new matter in reply, when no
case was made in the original application or
if the reply reveals a
new cause of action
[5]
.
10.3
In the light of the above legal principles,
all that the applicant did in her founding affidavit was to give a
background leading
to the arbitration award, and a general statement
that the respondent had failed/refused or neglected to comply with
the arbitration
award. Not once did she mention anything about the
pending review application, even if she was of the view that the
application
was not properly before the Court.
10.4
The failure to mention, let alone advance
any attack on that review application in the founding affidavit was
fatal in my view.
In the end, the contents of her founding affidavit
were clearly not sufficient for the Court to exercise its discretion
in her
favour, particularly in the light of the more detailed
answering affidavit, in which it was averred that the review
application
was properly before the Court.
10.5
Even
if the Court was inclined to have consideration to the new issues
raised in the replying affidavit or the heads of argument,
in
accordance with Clause 11.2.3 of the Practice Manual of this Court,
if the applicant in review proceedings fails to file a record
within
the prescribed period, the applicant will be deemed to have
withdrawn
the
application, unless the applicant has during that period requested
the respondent’s consent for an extension of time and
consent
has been given
[6]
.
10.6
One would assume that the point being
raised by the applicant in her replying affidavit was that as a
consequence of delays in filing
the transcribed record, the review
application was deemed to be withdrawn, and not ‘deemed
dismissed’ as she contended.
Be that as it may, and as already
concluded, no such case was made out in the founding affidavit.
[11]
One appreciates the applicant’s
frustrations with the fact that she is in possession of a favourable
arbitration award which
she cannot enforce. To the extent that she
was of the view that the respondent was intent on frustrating her in
enforcing her award,
no case was made out for the purposes of an
order under section 158(1)(c) of the LRA. A simple assertion that
respondent has not
complied with an arbitration award, when there is
a review pending without attacking that review application, is not
sufficient
for this Court to apply its discretion in favour of the
applicant.
[12]
I have had regard to the requirements of
law and fairness insofar as an award of costs is concerned. Even
though the applicant’s
application in its form was
ill-conceived, I am of the view that any costs order is not warranted
in this case.
[13]
Accordingly, the following order is made;
Order:
1.
The applicant’s application in terms
of section 158(1)(c) of the Labour Relations Act is dismissed.
2.
There is no order as to costs.
___________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
REPRESENTATION:
For the
Applicant:
Grovè Attorneys
For
the Respondent:
Crawford Attorneys
[1]
Act
66 of 1995, as amended
[2]
Section 158: Powers of Labour Court (1) The Labour
Court may –
(a)...
(b)
(c)
make any arbitration award or any settlement agreement an order of
the Court.
[3]
[2013] ZALAC 20
; (2014) 35 ILJ 455 (LAC);
[2013] 12 BLLR 1203
(LAC)
at para [21]
[4]
See
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999
(2) SA 278
(T);
Juta
& Co Ltd v De Koker
1994
(3) SA 499
(T)
at 508 B-D
[5]
See
Mashamaite
and others v Mogalakwena Local Municipality and others, Member of
the Executive Council Coghsta, Limpopo and another
v Kekana and
others
[2017]
ZASCA 43
;
[2017] 2 All SA 740
(SCA)
at para 21;
Obsidian
Health (Pty) Limited v Makhuvha
[2019] JOL 46118 (GJ)
[6]
Paragraph
11.2.3
provides;
‘
If
the applicant fails to file a record within the prescribed period,
the applicant will be deemed to have withdrawn the application,
unless the applicant has during that period requested the
respondent’s consent for an extension of time and consent has
been given. If consent is refused, the applicant may, on notice of
motion supported by affidavit, apply to the Judge President
in
chambers for an extension of time. The application must be
accompanied by proof of service on all other parties,
and
answering and replying affidavits may be filed within the time
limits prescribed by Rule 7
.
The Judge
President will then allocate the file to a judge for a ruling, to be
made in chambers, on any extension of time that
the respondent
should be afforded to file the record.’