Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4070/00
2002-02-13
In the matter between
NUMSA Applicant
and
TOTAL SERVICE STATION Respondent
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J U D G M E N T
Delivered on 13 February 2002
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REVELAS, J:
1. The second applicant was dismissed on 25 November 1998
for allegedly arguing with a customer of the first
respondent. The dispute in this regard was referred to
the Motor Industry Bargaining Council ("MIBCO") for
conciliation on 5 January 1999, together with an
application for condonation.
1. 2. Condonation was initially refused, and the first
applicant was invited by MIBCO to appeal against this
decision in terms of its internal procedures. The
appeal was successful and condonation was granted on 11
May 1999.
1. 3. There was an allegation by the respondent’s
representative that no documentation of the written
record of the appeal could be found. However Miss
Edmunds, appearing on behalf of the first and second
respondents, was able to produce such a document.
4. The respondent in the person of Mr H S Schoeman,
Senior, the father of the second and third respondents
herein, was present at the conciliation meeting. The
arbitration hearing was held on 9 July 1999 after
several postponements were granted per the request of
the first respondent. The first respondent was properly
notified of the arbitration hearing. It failed to
attend the hearing and, in the person of Mr Schoeman,
Senior, simply addressed a fax to MIBCO in this regard.
The whereabouts of this fax has not been disclosed by
the respondents.
5. The arbitrator found that the dismissal of the second
applicant was procedurally and substantively unfair,
and ordered the first respondent to reinstate the
second applicant as from the date of his dismissal, on
terms and conditions no less favourable than those
which governed his employment prior to his dismissal.
The first respondent was ordered to pay the second
applicant all arrear wages from the date of his
dismissal to the date of arbitration. The first
respondent was further ordered to comply with the award
within 14 days of the date thereof.
1. 6. On 31 August 1999 the first respondent launched a
rescission application with MIBCO. In this application
Mr Schoeman, Senior confirmed under oath that he was
the manager of Total Service Station and that the first
applicant had been employed by Total Service Station.
The rescission application was opposed by the
applicants, and set down for hearing on 20 April 2000.
7. At the commencement of the hearing the commissioner
noted that the dispute was referred out of time in
this regard I may just mention that the dispute was
referred one or two days late and it was not clear to
the commissioner where the condonation was granted, and
therefore the commissioner did not proceed with the
hearing.
8. The applicants' attorney then addressed correspondence
to MIBCO, and was advised that condonation had been
properly applied for and granted as stated
hereinbefore. The respondents' attorneys were advised
hereof and invited to set the matter down for
rescission again, on 28 July 2000, failing which
application would be made to the Labour Court to have
the arbitration award made an order of court.
9. On 31 July 2000 the first respondent's attorneys
advised that they would revert by 4 August 2000, and
failed to do so. On 14 August 2000 the first
respondent's attorneys were advised that an application
in terms of section 158(1)(c) of the Labour Relations
Act, 66 of 1995, to have the award made an order of
court, would proceed in the event of no further steps
taken. No further steps were taken by the first
respondent's attorneys.
1. 10. The application was proceeded with, and on 28
November 2000 Jammy AJ made an order to the effect that
the arbitration award issued by the dispute resolution
centre under case number FSA032/99 dated 23 July 1999,
(by Mr Bronkhorst), is made an order of court.
11. The respondents did not comply with this order either,
and the applicants were compelled to approach the
deputy sheriff and have a writ of execution issued.
12. Several attempts were made to execute, but the first
respondent failed to comply with the order because the
first respondent, Total Service Station, was, it
contends wrongly cited as OR Motors which was in actual
fact the second applicant’s former employer.
13. It was argued that since the award was obtained against
Total Service Station it was invalid against OR Motors.
That is not entirely correct. Even during argument it
became apparent, and it was conceded today, that Mr
Schoeman, Senior and the first and second respondents
are involved with both entities. Ms Ruth Edmunds stated
in open court that she had "gone and done her
homework", and had established that the former employer
of the second applicant was indeed OR Motors CC, t/a
Total Service Station. It was not disputed.
14. In desperation and frustration the applicants have
brought an application, which was before me, for the
following relief:
1. a declarator that the respondents are in contempt of an
order of this court (Jammy AJ's order);
2. that the second and third respondents be committed to
detention in prison for a period of 15 consecutive days
from the date of this order;
3. that at the expiry thereof the second and third
respondents be brought before court again to show cause
why a further period of committal should not be
imposed; or
4. that in the event of the second and third respondents
complying with the order of this court, or intending to
comply therewith, they may at their instance be brought
before this court at an earlier date than the
expiration of the said period of 15 consecutive days;
5. that the respondents pay the costs of the application
on the attorney and client scale.
15. In my view it is not possible for one judge to amend
the order of another judge, or even his or her own
order, by simply substituting the name of one party for
another in the absence of an application for joinder.
Amended pleadings have to be served on the other party.
16. In this matter repeating service of amended papers is
not necessary since it would appear that Total Service
Station, the first respondent and the second and third
respondents and Mr Schoeman, Senior, are all
commercially connected in such a way that they all
participate in the daily running of the first
respondent's business as well as that of OR Motors CC.
1. 17. OR Motors CC, t/a Total Service Station, is in
fact the person against whom the award was made, and
the subsequent award was made an order of court.
18. In the light of the new evidence from the bar, not
disputed, as to the real identity of the employer by
Miss Edmunds in court I am not able to find beyond
reasonable doubt that the respondents were in contempt
of a court order, for the reasons I have just set out.
That relief the applicants are not entitled to.
19. It would be of no assistance to the applicants if I
were to grant an order to correct the citation of the
respondents.
20. There is a prayer for alternative relief in the notice
of motion, and under that prayer I make a declarator
which reads as follows:
"The first respondent, Total Service Station, also does
business under the name and style of OR Service Station
CC, t/a Total Service Station.”
21. Insofar as the question of costs is concerned there is
no reason why the respondents should not be liable for
the applicants' costs in this matter. All along they
were aware of the real state of affairs. Mr Schoeman,
Senior had under oath stated that he was the managing
director of Total Service Station on affidavit. I
gained a strong impression that the second and third
respondents, at the behest of the first respondent,
were playing a cat and mouse game with the applicants.
This matter could have been resolved long ago.
1. 22. Consequently the respondents are to pay the
applicants' costs, the one paying the other to be
absolved.
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E. Revelas