THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JR791/23
In the matter between:
MORGAN LESESE Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER NATHALIE WILEMSE N.O. Second Respondent
ESKOM HOLDINGS (SOC) Third Respondent
Heard: 10 October 2024
Delivered: 10 October 2024
Reasons: 25 February 2025
REASONS FOR ORDER
PHEHANE , J
2
[1] On 10 October 2024, this Court issued an order in the following terms :
‘1. The explanatory affidavit delivered by the respondents on 26 July 2024
is struck out .
2. The applicant ’s affidavit delivered on 0 9 September 2024 in reply to the
respondents ’ explanatory affidavit is struck out .
3. The applicant ’s notice of confirmation delivered on 02 August 2024 is
struck out .
4. The contempt of court application is dismissed.
5. The applicant is to pay the costs.’
[2] The brief reasons for the order follow below.
Background
[3] The applicant launched a review application on 8 May 2023 in this Court
under the same case number, to review and set aside an arbitration award by the
second respondent.
[4] On 29 May 2023, the first and respondents (collectively referred to as the
Commission for Conciliation, Mediation and Arbitration – CCMA), filed a notice in
terms of the former R ule 7A (3) of the then- Rules of this Court .
1
[5] On 8 June 2023, 6 September 2023 and 13 November 2023, further notices in
terms of the former R ule 7A( 3) were filed by the CCMA.2 In addition, a further notice
in terms of the former Rule 7A(3) was filed on 8 December 2023 following a
reconstruction meeting that was held on 30 October 2023, attaching the
reconstruction ruling.3
1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed, 17 July
2024). pp 15 to 16.
2 pp 18 to 26.
3 pp27 to 30.
3
[6] The applicant subsequently launched an application on 9 February 2024 to
compel the CCMA to file handwritten notes, a copy of the arbitration award and the
tape recording of the proceedings of 14 July 2022.4
[7] The CCMA filed correspondence dated 30 April 2024, indicating that at the
conclusion of the reconstruction meeting, the CCMA handed a flash drive to the
applicant containing the missing audio of the arbitration proceedings and that the
applicant was provided with the second respondent ’s typed notes . Further, that the
complaints of the applicant regarding the procedure at the CCMA are a matter for the
review court to determine.
[8] On 28 May 2024 , this Court per Molotsi AJ issued an order directing the
CCMA to provide the applicant with specified documentation relating to the record of
the arbitration proceedings within 30 days of that order (the Court order).5 The court
order was served on the respondents on 3 June 2024.
[9] The Court file is in a state of disarray. It transpired that o n 26 July 2024, the
CCMA filed an explanatory affidavit. It is unclear why this explanatory affidavit was
filed. On receipt of this explanatory affidavit by the CCMA , on 9 September 2024, the
applicant filed a voluminous “answering aff idavit” in reply to the CCMA’s explanatory
affidavit delivered on 26 July 2024.
[10] Thereafter , the applicant launched this present application, a contempt of
Court application on 23 August 2024.6 The CCMA filed a notice to oppose this
application on 12 September 2024, together with its opposing affidavit. No replying
affidavit was filed.
[11] The opposed contempt of Court application served before me on 10 October
2024.
4 See: notice of motion in the application to compel.
5 p 14.
6 Notice of Motion, pp 1 to 4.
4
[12] The CCMA’s explanatory affidavit and the applicant’s “answering affidavit”
were struck out as at the time of their filing, there was no dispute between the parties
relating to the application to compel the filing of parts of the record.
[13] The CCMA avers in its opposing affidavit, that it has complied with the Court
order . It explains that no handwritten notes by the second respondent exist, as
stated in the Court order, but typed notes, which had been provided to the applicant.
In addition, the applicant confirms that it filed the recording of 13 January 2023 as far
back as 13 November 2023. In the premises, the CCMA contends that no case has
been made out for contempt of Court and the application must accordingly be dismissed with costs as the application is frivolous and vexatious.
Evaluation
[14] In Secretary , Judicial Commission of Inquiry into Allegations of State Capture
v Zuma and others ,
7 the Constitutional Court restated the requirements to succeed in
a contempt of court application and held as follows:
‘… [I]t is trite that an applicant who alleges contempt of court must establish
that (a) an order was granted against the alleged contemnor ; (b) the alleged
contemnor was served with the order or had knowledge of it ; and (c) the
alleged cont emnor failed to comply with the order . Once these elements are
established, wilfulness and mala fides are presumed and the respondent
bears an evidentiary burden to establish a reasonable doubt. Should the
respondent fail to discharge this burden, contempt will have been established .’
[15] The applicant has failed to prove that the CCMA failed to comply with the
Court order. It has not demonstrated any contumacious disrespect of judicial
authority by the CCMA.8
Costs
7 [2021] ZACC 18; 2021 (5) SA 327 (CC) at para 37.
8 See: Matjhabeng Local Municipality v Eskom Holdings Ltd and Others [2017] ZACC 35; 2018 (1) SA
1 (CC).
5
[16] The applicant did not disclose to this Court that the CCMA issued a variation
ruling explaining that typed and not written notes existed; he also failed to disclose to
the Court that he was furnished with the recordings of 13 January 2023. Being an ex
parte application9 it is trite the applicant had a duty to disclose all material facts to
the Court. He failed to do so. This alone is a basis for dismissing the application.
[17] The CCMA took steps to assist the applicant to proceed with his review
application, yet at every turn, he filed a total of five applications to compel the CCMA
to file records
10 and filed this application when he ha d already been served with
records and in circumstances where the CCMA was not in contempt of Court.
[18] The conduct of the applicant as aforesaid is an abuse of Court process and
warrants a costs order.
[19] In view of the afore- going, the above order was made.
M. T. M. Phehane
Judge of the Labour Court of South Africa
9 Although served on the respondents.
10 See: para 9.2 to 9.11 at pp 6 to 7.