IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
OF INTEREST
CASE NO D601/00
DATE HEARD 2003/04/24
DATE DELIVERED
2003/04/24
In the matter between:
CTL GROUP (PTY) LIMITED Applicant
and
G F MEMELA First Respondent
SHERIFF OF THE HIGH COURT,
SANDTON Second Respondent
JUDGMENT ON POINT IN LIMINE DELIVERED BY
THE HONOURABLE MS JUSTICE PILLAY ON 24 APRIL
2003
ON BEHALF OF APPLICANT: ADVOCATE B DA
COSTA
INSTRUCTED BY : KERN
AND PARTNERS
ON BEHALF OF RESPONDENTS: MR P O JAFTA OF
JAFTA AND
CO.
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
JUDGMENT
(ON POINT IN LIMINE )
PILLAY D, J
[1] The employer makes the submission that the employee is
not entitled to payment other than that which is set out in
the award. In the award back pay due to the employee was
calculated in an amount of R25 718, and the arbitrator
awarded reinstatement with effect from 15th April 2002.
[2] Ms Da Costa, for the employer, submits that the employee is
not entitled to any further payment for the period from the
15th April to the date when this Court made the award an
order of Court, or until the applicant is physically reinstated.
[3] She submits that the only remedy available to the employee
is to proceed by way of contempt of court. In support of that
argument, Ms Da Costa relied on the Zimbabwean decision of
Chegutu Municipality v Manyora 1997 18 ILJ 2 323, and
Brassey, volume 3, at A8 65, where the meaning of
"reinstatement" was discussed.
[4] That case refers to South African case law based on the old
Labour Relations Act of 1956, which predates the
Constitution of the Republic of South Africa Act No 108 of
1996 and its notion of fair labour practices. The discussion
of the meaning of “reinstatement” in that case, I agree with
Mr Jafta for the employee, is also distinguishable from the
context in which it is used in this case.
[5] At the heart of the matter, the effect of the employer's
submission, if it were to be accepted, is to permit an
employer who defies an award or order of Court to profit
from it. That, as an elementary principle of the common law,
cannot be tolerated. As a matter of course, this has been the
response of the Labour Court when exercising its powers in
terms of section 158(1)(c) of the Labour Relations Act 66 of
1995 (the “LRA’) to make awards orders of this Court and
issuing writs therefore.
[6] Orders for the payment for the period between the date of
the award or the date on which the award orders
reinstatement and the date of the order of the Labour Court
have been granted regularly by this Court without debate. It
is manifest, for instance, in the judgment of LANDMAN J in
Ntombela v Herridge Hire & Haul CC and Another (1999) 20
ILJ 901 (LC), where the learned Judge said that more than a
financial penalty should be imposed on an employer who fails
to abide by orders of the Court. In that case the Court went
on to impose a fine, with the alternative of imprisonment.
[7] Implicit from that judgment is the acceptance that there can
be a monetary remedy over and above the contempt remedy
that might be available to an employee who is deprived of
physical reinstatement in terms of a valid award and order of
this Court.
[8] In the circumstances, the submission by the employer is
rejected with costs.
_________________
PILLAY D, J
21 June 2003.