Biyela v Lakeside City Trading 226 (Pty) Ltd and Another (J123/24) [2024] ZALCJHB 475 (25 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J123/24

In the matter between:

NKOSINATHI BIYELA Applicant and LAKESIDE CITY TRADING 226 (PTY) LTD (trading as PICK N PAY PROTEA NORTH) First Respondent LUNGILE NOMAHLUBI DECHABE Second Respondent

Heard:5 November 2024

Delivered:25 November 2024 (This judgment was handed down electronically by emailing a copy to the parties. The 25 November 2025 is deemed to be the date of delivery of this judgment).

JUDGMENT

RAMJI, AJ

Introduction

[1] This is an application for the respondents to be held in contempt of court for failing to comply with “the Arbitration Award which was certified to be Court order by the above Honourable Court”. In terms of the notice of motion, the applicant seeks the following further relief:

“2. That a Criminal case of contempt of Court be opened against the Respondents and a warrant of arrest be issued against the Respondents their refusal to comply with the Court order.

3. That the Respondents be ordered to pay the Applicant an amount equivalent to his unpaid salaries as from the 3rd July 2023 to date of finalization of the above matter” (sic).

[2] The application was served by registered mail by the applicant himself. He is, however, legally represented. The application is unopposed.

[3] The applicant was an employee of the first respondent until his dismissal on 8 February 2023. The first respondent is a juristic person. The second respondent is described in the founding affidavit as “an adult female director of the 1st Respondent”.

[4] On or about 16 June 2023, the Commission for Conciliation, Mediation and Arbitration (the CCMA) found that the dismissal was substantively unfair and awarded reinstatement from 3 July 2023, and backpay in the sum of R21,600 to be paid on or before 3 July 2023. The former entitles the employee to reinstatement and a contractual claim of arrear wages in the event of delayed reinstatement, and the latter is a judgment debt which is enforceable with a writ of execution.

[5] The applicant was paid the backpay awarded by the CCMA on 7 October 2023. He is approaching this Court in respect of the reinstatement component of the award.

[6] The applicant alleges that he reported for duty on 3 July 2023 and “the Respondents refused to reinstate [him] and directed [him] to return to the CCMA.” Where a certified award orders something other than the payment of money, the award may be enforced by way of contempt proceedings in

the Labour Court. It appears from other documents included in the founding papers, that the applicant has not been reinstated.

This averment is supported by correspondence between the applicant’s and the first respondent’s representatives. The admissibility of some of this correspondence is debatable, however, the exceptions to using “without prejudice” documents as proof of certain facts may be applicable. Because of how this application was brought, this is not for me to determine.

Contempt proceedings in the Labour Court

[7] The Supreme Court of Appeal (the SCA) in Fakie NO v CCII Systems (Pty) Ltd[1] set out the requirements that an applicant must satisfy to succeed in a contempt application. They are as follows:

7.1 First, the applicant must prove –

“the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.”

7.2 Second, once the applicant has proved the above beyond reasonable doubt –

“the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.”

[8] The SCA noted finally that “[a] declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.”[2]

[9] The applicant seeks, among other things, an order by this Court that a criminal case of contempt be opened and that a warrant of arrest be issued against both respondents.

[10] I cannot consider any of the merits of this application because the mandated procedure in cases of alleged contempt of a court order was not followed.

Incorrect procedure

[11] This application was signed on 1 December 2023. The court stamp shows that the application was then only filed on 17 July 2024 – the date on which the current Labour Court Rules, 2024 (the New Rules) came into effect. I am of the view that because the application was served on the respondents (by registered mail) when the previous Labour Court Rules, 1996 (the Old Rules), and the Labour Court Practice Manual, 2013, were operational, the old system applies. That said, this is of no consequence because the new rules relating to contempt proceedings contained in rule 58(2) of the New Rules are substantively unchanged from the old system.

[12] In terms of clause 13 of the Practice Manual an applicant is required to first bring an ex parte application for a court order requiring that the respondent/s (a) depose to an affidavit explaining why they should not be held in contempt of court; and (b) appear in court on a specified date. Once this ex parte order has been obtained, it must be served personally on the respondent/s.

[13] To obtain the ex parte order, the application must, among other things, show that there is an enforceable arbitration award. An arbitration award will only be enforceable if it has been certified by the CCMA director in terms of section 143(3) of the Labour Relations Act, 1996 (LRA) or if it has been made an order of this Court in terms of section 158(1)(c) of the LRA.

[14] Clause 13.2 of the Practice Manual makes this process mandatory [3] and it sets out precisely what an applicant (or their representatives) must do, how to approach the court and what to ask for.

[15] The procedure that was followed in this application is precisely what the drafters of the Practice Manual sought to avoid – clause 13.1 of the Practice Manual states:

“It has been found that applications for contempt of court are so varied and often fail to meet the minimum requirement to obtain the relief sought. This is often discovered months after the application was launched. In order to avoid this and the prejudice which results therefrom an application for contempt of Court must be launched on an ex parte basis on a Friday in Motion Court, where the applicant must seek an order that the respondent be ordered to appear at the Labour Court to show cause why it should not be held to be in contempt.”

[16] For this reason, the Fakie N.O contempt inquiry does not arise.

[17] Even if the applicant was entitled to disregard the rules and Practice Manual, the first requirement in a contempt application in terms of Fakie N.O is proof of a court order beyond reasonable doubt.

[18] The notice of motion refers to “the Arbitration Award which was certified to be court order by the above Honourable Court”. The founding affidavit refers to the arbitration award as a court order frequently, but the applicant failed to plead on how the award came to be an order of this Court and therefore enforceable. In the absence of any averment, my concern was that neither the section 143(3) CCMA process nor the section 158(1)(c) Labour Court process were followed. During argument I was directed to the first page of the arbitration award which bears a stamp of the CCMA Director ostensibly indicating that the award was indeed certified. The stamp reads:

“In terms of section 143(3) of the LRA 66 and 1995, I hereby certify that the above arbitration award is a final and finding award by a Commissioner as contemplated by section 143(1).”

[19] There is only a stamp. The page is not signed, and it is not dated. Ordinarily, the director would not only stamp the award to mark its certification, but the director would also sign the LRA form 7.18 (Application to Certify CCMA Award) completed by the applicant or their representative. It is also standard practice that a letter is issued to the Deputy Sheriff explaining the status of the arbitration award. This Court was presented with only the stamped (but unsigned and undated) arbitration award. None of the other documents referred to above were included. Finally, the notice of motion and pleadings are not clear on whether that arbitration award was certified by the CCMA or made an order of court by this Court. It is therefore unlikely that the applicant would have made out a case beyond reasonable doubt that there is an order of court in existence.

[20] This apparent failure to meet the first requirement would have made an inquiry into the remaining three requirements for a final contempt order unnecessary.

Conclusion

[21] To date, it appears that the applicant has not been reinstated. Should this be proved along with the other requirements for contempt proceedings in the Labour Court, the applicant will be able to compel reinstatement, and upon reinstatement, he will become entitled to backpay for the period starting on 3 July 2023 until the date of his reinstatement (albeit through a separate claim).

[22] However, I cannot grant this application in its present form. I have not pronounced on the merits and if the prescribed contempt procedure is properly followed, the applicant’s new application ought to seek different relief from the relief sought in this application.

[23] In the results the following order is made:

Order

1. The application is struck from the roll.

B. Ramji

Acting Judge of the Labour Court of South Africa.

Appearances:

For the Applicant: Adv S Tshivhase

Instructed by: Sidondi Attorneys c/o Munyai Attorneys

For the Respondent: No appearance

[1] [2006] ZASCA 52; 2006 (4) SA 326 (SCA) para 42 (Fakie NO).

[2] Fakie NO at para 42.

[3] See also: Kitimi v Commission for Conciliation Mediation and Arbitration and Another (J 1695/2019) [2019] ZALCJHB 387 (13 August 2019) (unreported); South African Municipal Workers Union obo Ngalo and Others v Mangaung Metropolitan Municipality and Others (J2038/19) [2022] ZALCJHB 5 (1 February 2022).