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[2020] ZALCJHB 102
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Kobua v AVK Valves Southern Africa (JS 556/16) [2020] ZALCJHB 102 (8 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No
:
JS
556/16
In
the matter between:
NKABELA
RICHARD KOBUA
Applicant
and
AVK
VALVES SOUTHERN AFRlCA
Respondent
Heard:
17 January 020
Delivered:
This judgment was handed down electronically by circulation to the
parties' legal representatives on the 08 June 2020.
Summary:
Quantification of compensation - Judgement granted in favour of the
Applicant to be compensated in an amount equivalent
to remuneration
payable
,
from
the date of dispute until date of final adjudication of this matter.
Period exceeding 20 months and exceeding the prescribed
limitations
per Section 194 of the Labour Relations Act,1995. Compensation of 12
months' salary granted with costs.
JUDGMENT
RAMDAW,
AJ
Back
g
round
[1]
On 26 January 2018 Mamosebo AJ handed
down judgement where she· found that the Applicant was
unfairly dismissed and made
the following order:
"1
.
The dismissal of the Applicant was both
procedurally a
nd
substantively
unfair.
2.
The Respondent is ordered to pay the
Applicant compensation for the remuneration he would have been paid
be and the last day of
adjudication of this case calculated employee
rate of remuneration.
3.
The Respondent is to pay the cost of the
application on a party and party scale.’
[2]
This application was set down on the
opposed roll on 14 January 2020. The Respondent sough a
postponement to file
opposing papers/heads. The matter
was adjourned to 17 January 2020 and costs were reserved.
[3]
The Appl
ic
ant
files his Heads of Arguments and also filed supplementary Heads. The
Respondent filed a notice to oppose the application but
did not file
any opposing papaers nor heads of arguments. Leave to appeal against
the initial order was made to the Labour Appeal
Court but was refused
with no orders as to costs.
[4]
Applicant seeks the following order:
"1
.
Declaring that the Judgement and
consequent court order dated 26 January 2018 ordered by the
Honourable Acting Judge Mamosebo is
quantifiable and has been
quantified as per annexure "C" to this Application.
2.
Declaring that the amount calculated and
quantified per annexure C is the capital amount due to the Applicant
in terms of the judgement
and consequent court order dated 26 January
2018 and that the Respondent pays the same with interest from the
date of the said
order.
3.
That the costs of this Application be
paid by the Respondent.
4.
Further or alternative relief.
[5]
The Applicant was employed by the
Respondent as a Supply Chain on 1 February 2016 and his employment
was terminated on 3 Ma operational
requirements.
[6]
He earned R55,482.54 per month and with
effect from 1 July 2016 he would have received a salary increase of
10%, thereby making
his salary R61,146.29 per month. As per
the quantification affidavit the salaries owing from 3 March
2016 to 30 June
2016 is R106, 1
.
22
.
T salary owing from 1 July 2016 to 30
July 2017 is R61,146.28 per
–
month wh
ich includes a 10% increment and
totals R733,755.48.
[7]
The salary from 1 January 2017 to 26 January
2018 is R67, 260.92 per month and total R470,826.44. the total claim
is R1,303,185.87.
the prescribed interest rate as applicable is
10,25% per annum.
[8]
The
salary payable for a maximum period of 12 months per section 194 of
the Labour Relations Act
[1]
including any increments will be R106,891.22 plus R611,146.90
totalling R718,354
.
12.
[9]
The C
ourt has to quantify the judgement
of the Honourable Acting Justice
Aamosebo
, delivered on 26 of January
2018.
[10]
As per Annexure C to the quantification
affidavit the Applicant's salary as at date of dismissal was
R55,487.54 which is decisive
per the wording of section 194 of the
LRA.
[11]
The maximum compensation payable in
terms of section 194 of the LRA is 12 months for an unfair dismissal
and 24 months for an automatically
unfair dismissal. It is common
cause that this matter does not relate to an automatically unfair
dismissal and as such the compensation
is limited to 12 month's
remuneration calculated at the employers rate of remuneration on the
date of dismissal.
[12]
The Applicant's Counsel argued for an
amount exceeding 12 month’s compensation whilst the Respondent
Counsel argued
that the maximum which can be awarded is 12
months which in fact is still excessive. A judgement has been handed
down and this
Court is not sitting as a Court of Appeal and as such I
cannot interfere with the order made. I need to quantify the said
order
and such quantification has to be in compliance with
legislation in particular section 194 of the LRA.
[13]
In
Engen
Basson's Service Station v Vanqa
[2]
the
Labour Court set out the following:
‘
A
Writ of Execution will be set aside s
et
as incompetent if the judgement was not definite and certain,
as
where
the
amount payable can be ascertained only a further legal problem."
[14]
The-submission as to the amount owing has been made by way of
an Affidavit by the Applicant.
. The Respondent did not file any
answering affidavit and I am obliged to accept what is before me to
adjudicate on a ‘further
legal problem’.
[15]
The Judgement is capable of being quantified within the ambits and
limitations as set out in
section 194 of the LRA which is clear that
compensation must be just and equitable in all circumstances but may
not be more than
the equivalent of 12 months' remuneration.
[16]
In determining the maximum compensation
of 12 months, the salary as at date of dismissal is of paramount
importance and this was
R55,587.54 per month. The total for a 12
months period will be R667,050.48 and any increments are ·not
taken into consideration
for purposes of this quantification given
the wording of Section 194 of the LRA.
[17]
As this amount is a Judgement debt, same
attracts interest at the prescribed rate of 10,25%
per annum
calculated from 26 January 2018
date of payment.
[18]
The Applicant was entitled to bring this
application for quantification such is entitled to the costs
including the cos
ts of 14
January
2020 which is now unreserved.
[19]
In the premises the following order is
made:
Order
1.
The Respondent AVA Valves Southern
Africa (Pty) Ltd is hereby ordered to pay to the
App
licant
the sum of R667,050,48 being the equivalent 12 months' remuneration
calculated at the rate of R55
587.54 per
month together with interest thereon at the rate of 10.25% per
annum calculated from 26th January 2018 to date
of payment
2.
The Re
s
pondent
is to pay the costs of this application which includes the cost of
the 14th January 2020.
A.
Ramdaw
Acting
Judge of the Labour Court of South Africa
A
pp
earances:
For
the Applicant:
Mr A Goldberg of Goldberg
Attorneys
For
the Respondent:
Mr IT Allis from Allis Attorneys
[1]
No 66 of 1995, as amended.
[2]
(2014) 35 ILJ 1568 (LC) at para 14.