J1074/03-LR
JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
JOHANNESBURG
CASE NO J1074/03
REPORTAB
LE
DATE 2005-05-17
In the matter between
LAZARUS CUSA obo MOTHLE L Applicant
and
MERCHANDISING MANAGEMENT SOLUTIONS 1st Respondent
ALLAN RAINS 2nd Respondent
KALAI GOVENDER 3rd Respondent
__________
J U D G M E N T
__________________________________________________________
REVELAS, J:
[1] Lazarus Mothle a member of the applicant (SECCWU or
"the union") had been in the employ of the first respondent
(Merchandising Management Solutions) since 15 September
1999 as a supervisor, when he was dismissed on 21 February
2002. He referred a dispute about an unfair dismissal to the
Commission for Conciliation, Mediation and Arbitration ("the
CCMA") where it was eventually arbitrated in the absence of his
employer (the first respondent) and on 20 November 2002 he
obtained a default award in his favour. In terms of the award
the first respondent was to reinstate him which it failed to do.
[2] The award was subsequently made an order of court in
terms of section 158(1)(c) of the Labour Relations Act 66 of
1995 ("the Act"). There was no compliance with that order. The
Union now seeks compliance with that order in the form of an
application to hold the respondents in contempt of court and to
direct the respondents to reinstate Mr Mothle and direct that he
be paid additional compensation. The Union has also in the
same application, asked for an order to join the second, third
and fourth respondents to these proceedings.
[3] In the founding affidavit, no grounds for joinder are set
out. The application is opposed on the basis that Mr Mothle
cannot be reinstated in the employ of a company which no
longer exists. In the answering affidavit the first respondent
stated that the second respondent, that is Mr Allan Rains, was
no longer employed by the first respondent as an officer or
director for that matter, and that the second respondent had
not been employed by/or associated with the first respondent
since that time. According to the first respondent it ceased
trading at the beginning of 2002 and in addition it was
deregistered as a corporate entity that no longer existed.
[4] The third respondent Mr Kalai Govender, was never
employed by the first respondent according to the same
answering affidavit.
[5] In its replying affidavit the applicant did not dispute any of
the aforesaid facts except for denying that the third respondent
was not employed by the first respondent. The affidavits before
J1074/03-LR
JUDGMENT
me were deposed to by Mr F. Tjatji of SECCWU. The grounds
upon which the applicant relies in support of the application are
very sparse.
[6] There are no facts set out in the founding affidavit which
could persuade me to join any party to these proceedings.
There has been no attempt by the applicant to pierce the
corporate veil. As it stands there is no entity such as the first
respondent upon whom an order can be served and executed.
[7] The applicant was unable to dispute conclusively that the
first respondent was deregistered and that the second
respondent left the services of the first respondent long before
the award was granted. As that evidence is uncontested I am
compelled to accept it. (In this regard see Plascon Evans Paints
v Van Riebeeck Paints 1984 (3) SA 623 (A) at 634E to 635C.) In
any event, if there is such a dispute of which the effect is
mutually destructive of the facts and there was no request for
evidence, I have to determine this factual dispute in favour of
the respondent. (In this regard see Morapa Technology (Pty)
Ltd v Schroeder & Others (2000) 23 ILJ 2031 (LAC) p 38;
Ampofo & Others v Member of the Executive Council for
Education, Arts, Culture, Sports and Recreation: Northern
Province & Another (2001) 22 ILJ 1975 T p 35; Denel Informatics
Staff Association & Another v Denel Informatics (Pty) Ltd (1999)
20 ILJ 137 (LC) p 26.
[8] In addition, the entire version before me is based on
hearsay since the affidavits were deposed to by Mr Frattoria
Tjatji. Insofar as the issue of contempt of court is concerned, it
must be emphasised that it is a serious offence which could
invite a criminal sanction. There must be a certain wilfulness on
the part of the party against whom such an allegation is levelled
before finding contempt. In this regard I wish to refer to the
matter of National Union of Mineworkers & Another v BKH
Mining Services CC t/a Dancarl Diamond Mine & Others (1999)
20 ILJ 885 (C) where it was held as follows at paragraph 4:
"This Court, being a superior court with powers equal to
those of a provincial division of the High Court (see section
151(2) of the Labour Relations Act 66 of 1995) has the
power to enforce its orders by contempt proceedings.
Such proceedings may, as in the present case, be
instituted by the aggrieved party on notice of motion: see
for example, Ntombela v Herridge Hire and Hall CC &
Another D359/97 dated 13 November 1998 (unreported).
That these proceedings are instituted by notice of motion
does not alter the facts that the aim is essentially penal: if
the second and further respondents are guilty of contempt
of court, they can be punished by fines or imprisonment,
or both. This means that applicants can only succeed if
they satisfy this court beyond reasonable doubt that the
respondents are guilty of an offence: Uncedo Taxi Service
Association v Maninjwa & Others [1998] 6 BLLR 683 (E).
What must be proved according to that standard is: (a)
that an order of court was granted against the
respondents, (b) that the respondents were aware of the
order and its terms, (c) that the respondents were in fact
in breach of the order and, if so (d) that their failure to
comply with the order was wilful."
And further at paragraph 10:
"An essential element of the offence of contempt of court
is that the alleged offender's non-compliance must be
wilful. This means (a) that he must be responsible for the
breach and/or (b) that he must intend to defy the order."
[9] On the facts of this case there is more than a reasonable
J1074/03-LR
JUDGMENT
doubt that the first, second and third respondents are not in
contempt of court. There is no evidence of any wilful conduct.
On the evidence that I have to accept the contrary is true. It is
also clear from the evidence that the first respondent could not
have known about the order since it ceased trading and in fact
had been deregistered long before that. There is no evidence
that the third respondent knew of the order and, although the
second respondent subsequently knew of the order it was only
handed down after he had ceased to be in any way associated
with the first respondent and the order is not applicable to the
second respondent.
[10] Then there is also the question that it is impossible for any
of the respondents to comply with the order and as such there
is no wilful non-compliance. Therefore the application falls to be
dismissed, and accordingly such an order is made. I make no
order as to the costs.
____________________
E.REVELAS
DATE OF HEARING: 21 APRIL 2005
DATE OF JUDGMENT: 17 MAY 2005
ON BEHALF OF THE APPLICANT: F. Tjatji (Union Official)
ON BEHALF OF THE RESPONDENT: Snyman van der Heever
Heyns