Gauteng Department of Health v Malatse and Others (J112/20) [2021] ZALCJHB 44 (24 March 2021)

The Labour Court of South Africa, JOHANNESBURG

Not Reportable

case no: J112/20

In the matter between:

GAUTENG DEPARTMENT OF HEALTH

Applicant

and

LINDIWE PATRICIA MALATSE AND OTHERS

Respondents

Heard: 23 March 2021 (Due to Covid19 lockdown, this matter was determined on the papers)

Delivered: 24 March 2021 (Due to Covid19 lockdown, this judgment was handed down electronically by sending a copy through email and the date of delivery shall be deemed to be 24 th March 2021)

Summary: Urgent application – interim interdict – requirements met - employee interdicted pending the outcome of a review application. Order of Mangena AJ does not prevent the granting of the interdict. Egregious abuse of court process and contempt in the extreme. Applicant is entitled to punitive costs. Held: (1) The application is granted. Held: (2) The first respondents to pay costs on the scale of attorney and own client. The conduct of the advocate to be investigated.

Judgment

MOSHOANA, J

Introduction

[1] This application typifies egregious abuse of Court processes and perspicuous and open disobedience of Court orders deserving of scowling by this Court. Had it not been for the open defiance and mendacious conduct of the first respondent (Lindiwe Patricia Malatse) and her legal team, this application would not have been conceived. This Court’s thinly spread resources would not

have been kicked into gear had it not been the meanly avaricious conduct of the first respondent and her legal team. This Court is bereft of words to describe the conduct of the first respondent and her legal team.

Background facts

[2] This matter is replete of incidents of acrimony and it shall be unnecessary to punctiliously render the facts of this case. It suffices to state that the first respondent was dismissed by the applicant. The said dismissal was found to be unfair and the applicant was ordered to reinstate the first respondent and pay her a huge sum as backpay. Anticipating to review and set aside the arbitration award, the applicant launched an application seeking to stay the operation of the arbitration award pending the outcome of a review application. On 11 February 2020, the stay application served before this Court. The stay was granted and conditioned upon the launching of the review application within 14 days of the issuance of the order.

[3] Indeed, within the stated period the applicant launched the review application. Such an application is still pending the decision of this Court. Despite the order of 11 February 2020, the first respondent brought a section 143 application seeking to certify the impugned arbitration award. The award was duly certified. Later, the Labour Court per my sister Mahosi J set aside the certification owing to the stay order issued on 11 February 2020. The first respondent made an

attempt to appeal the judgment and order of my sister Mahosi J, such prompted the applicant to launch an application in terms of section 18 of the Superior Courts Act[1]. Such an application emerged before Acting Justice Mabaso for consideration. The learned Acting Justice granted the applicant the

relief sought.

[4] In the meanwhile, on or about 22 March 2020, the first respondent launched an application seeking to make the arbitration award an order of this Court. I interpose to state that that was notwithstanding the order of Mahosi J to set aside the certification, which certification had the same effect as a section 158 (1) (c) application, on the strength of the stay. This section 158 (1) (c) application was duly opposed by the applicant. That notwithstanding, the application was enrolled on the unopposed roll. The application featured before Acting Justice Mangena on 25 February 2021, who was allocated to deal with the unopposed roll. I interpose

and mention that I doubt that the learned Acting Justice was advised that the application was opposed. Had he been advised, this Court believes that he would not have issued an order granting the application as he did.

[5] In the meanwhile, on 26 January 2021, the first respondent caused the registrar of this Court to issue a writ of execution in order to levy execution onto the properties of the applicant to satisfy the monetary order made in the stayed award. Around March 2021, the applicant became aware of a letter addressed by first respondent instructing the Sherriff to levy execution on the strength of the writ issued on 21 January 2021. Again I interpose and ask on what strength was the writ issued? The certified award was set

aside. Is it on the strength of a pending application for leave to appeal my sister Mahosi J’s order? If necessary, I shall revert to these questions in due course.

[6] With all these eccentric happenings, the first respondent presented herself for work. She was accompanied by Mr Teffo, her counsel in the matter. The conduct of Mr Teffo, as testified by the Director of Legal Services, Mr Van Heerden is despicable beyond measure. Again I interpose and state that his conduct is deserving of investigation by the Legal Practitioners Council. Owing to the above happenings, the applicant launched the present application on an urgent basis. The application is technically opposed by the first respondent.

Evaluation

[7] As indicated in the introductory parts of this judgment, this matter typifies abuse of Court processes. The opposition of this application is wholly unjustified and is actually unreasonable in the extreme. In opposing this application, the first respondent raised an avalanche of points in limine. I shall deal with them ad seriatim hereunder.

Non-compliance with the 14 days period

[8] The first respondent contends that the applicant failed to comply with the order of the Labour Court issued on 11 February 2020. According to the first respondent, the applicant failed to launch the review application within the specified period. On the undisputed version of the applicant the application was launched about 4 days earlier than the stipulated period. The applicant contends that the alleged failure suggests that the review application is deemed dismissed. This contention is without merit and actually illogical. A failure, if it happened, would have simply meant that the stay expires. The conclusion this Court reaches is that the application was launched within the time period specified by this Court. Accordingly, this point falls to be dismissed.

Lack of security bond and review application not launched with a ‘JR’ case number

[9] The first respondent contends that in the absence of a bond of security the review application is defective. I disagree. In terms of the LRA, operation of an arbitration award is suspended by either the furnishing of security or an order to stay. In terms of section 145 (3) of the LRA this Court is empowered to stay an enforcement of arbitration award pending its decision. On 11 February 2021, this Court did exactly that. Accordingly, the furnishing of security within the contemplation of section 145 (7) and (8) of the LRA is not required[2]. The usage of the letters “JR” is nothing but an internal arrangement of the registrar’s office. Rule 3 of the Labour Court Rules only requires an application for a case number and empowers the registrar to refuse any document without an allocated case number. Accordingly, the point also falls to be dismissed.

The order of Mangena AJ prevents this Court to interdict.

[10] As an opening gambit, the order of Mangena AJ is palpably rescindable. The applicant had not sought an order to rescind it. For that reason, the order stands. The cardinal question is the effect of the order to the relief sought by the applicant. To my mind, the order has no effect at all. Section 158 (1) (c) of the LRA solely empowers the Labour Court to make an arbitration award an order of this Court. The certification that was set aside by my Sister Mahosi J achieve the same purpose and effect. The purpose of making an arbitration award an order of Court is to ensure execution of an arbitration award. In other words an employee armed with a Court order may enforce it in accordance with section 163 of the LRA. The Labour Appeal Court (LAC) in South African Post Office Ltd v CWU obo Permanent Part-Time Employees[3] decreed as follows:

“What all this means is that before the Labour Court will grant an order sought in terms of Section 158(1)(c) of the LRA, it must be satisfied that, at the very least:

i. …

ii. That the … award is sufficiently clear to have enabled[4] the defaulting party to know what it is required to do in order to comply with the … award.”

[11] The LAC went further to say[5]:

“Once the Labour Court is satisfied with all the above then it must nevertheless, exercise its discretion whether to grant or refuse the order. In exercising the discretion, the Court must take relevant facts and circumstances into account, such as are necessary to satisfy the demands of the law and fairness …”

[12] The LAC emphasised, as being crucial, the purpose of this type of applications – to compel compliance, or enable its execution. An order sounding in money is executed through an issue of a writ, whilst an order to do something, like reinstating an employee, is enforceable by way of contempt proceedings. In other words, where an employer fails to reinstate an employee the available legal remedy is contempt proceedings and not a conduct displayed by Mr Teffo. This Court takes a firm view that the conduct of Mr Teffo is wholly unprofessional and is deserving of an investigation and a possible censure by the professional body.

[13] The first respondent by forcing to be present at work despite the refusal by the applicant is tantamount to self-help a conduct inimical to the rule of law[6]. Ultimately the conduct becomes one that is not lawful[7]. A party confronted by an unlawful act is well entitled to approach a Court of law for an interdict. The order of Mangena AJ cannot prevent a party to obtain an interdict of an unlawful act. Accordingly, this point falls flat on its face. At best, for the purposes of reinstatement, the order of Mangena AJ enables the first respondent to seek a contempt order. As pointed out above the certification

already set aside by Mahosi J has similar effects. In relation to an order sounding in money it simply allows then suing of a writ of execution. What Mangena AJ order cannot do is to remove the stay order and or the setting aside of the certification by Mahosi J. The fact that an application for leave to appeal Mahosi J’s order is pending is meaningless, regard being had to the unappealed order of Mabaso AJ issued in terms of section 18 (3) of the Superior Courts Act allowing the judgment of Mahosi J to operate irrespective of the appeal processes. It is thus clear that the sued writ of execution is null and void ab initio. The award it seeks to carry into execution is not operational. It has been issued without an underlying causa in law. The writs involved in this matter were ostensibly issued before the order of Mangena AJ was made.

Application to archive the review

[14] The first respondent took an irregular step by requesting the registrar to archive the review application. On the uncontested evidence, the review application may be ripe for determination on an unopposed basis. The applicant has already issued a notice to stand by. The first respondent has failed to file an answering affidavit within the time period prescribed by the rules. Therefore such a review application is not archiveable. In any event, the power to archive lies with the registrar of this Court. On the uncontested evidence the exercise of such a power is still pending. There is no semblance of evidence that the registrar has archived the review application. Similarly, this point is faced with a foil.

The merits of the interdict

[15] Other than raising the meritless technical points dealt with above, the first respondent provided no answer to the merits of the interdict sought. The requirements of an interim interdict are well known, they are; namely (a) a prima facie right; (b) suffering of an irreparable harm; (c) lack of an alternative remedy; and (d) the balance of convenience favouring the applicant for an interdict.

[16] In my view the applicant has a prima facie right better still a clear right regard being had to the fact that the arbitration award has been suspended. The order of this Court in that regard is not the subject of an appeal and is effective. It is the arbitration award that ordered the reinstatement and payment of back pay. Since the arbitration award is put on ice, any steps to put it into effect are unlawfully taken and are interdictable. Clearly, if the injunction is not issued, the applicant stands to suffer an irreparable harm when it has an automatic right of review. The applicant cannot take the law into its own hands like the first respondent and her legal team did. Accordingly the applicant has no other alternative remedy other than an interdictory relief. The balance of convenience favours the applicant in that the injunction has a limited life span. It only lives until the outcome of the review application. If the applicant fails on review, the rights of the first respondent emanating from the impugned arbitration award remains untainted.

The issue of costs

[17] The applicant motivated for punitive costs de bonis propriis. This Court was tempted to make a de bonis order, however it noted that the conduct of Mr Teffo is only unprofessional and unconscionable and not necessarily egregiously

reckless as required[8]. However, given the frivolity and vexatiousness of the conduct of the first respondent, aptly described at the introductory part of this judgment, a punitive costs order is, without any hesitation, warranted.

[18] In the results, I make the following order:

Order

1. The application is heard as one of urgency.

2. The first respondent is interdicted and restrained from presenting herself for duty at the premises of the applicant until the review proceedings are terminated.

3. The first respondent is interdicted and restrained from enforcing the arbitration award dated 21 January 2020 issued under case number PSHS439-15/16 until the review proceedings are terminated.

4. The first respondent is to pay the costs of this application on a scale as between attorney and own client.

5. A copy of this judgment must be placed before the secretary of the Legal Practitioners Council (LPC) for consideration of an investigation into the conduct of practitioner Malesela Daniel Teffo with membership number 100260 enrolled as an advocate.

_______________________

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

No appearances.

[1] Act 10 of 2013.

[2] See City of Johannesburg v Samwu obo Lucas Monareng case (JA120/2017) delivered on (20 March 2019) at para 7 of the judgment.

[3] (2014) 35 ILJ 455 (LAC); [2013] 12 BLLR 1203 (LAC) at para 21.

[4] My own underlining and emphasis.

[5] Ibid at para 22.

[6] See Minister of Finance and others v Ramos 1998 (4) SA 1096 (CC)

[7] See Midvaal Local Municipality v The Meyerton Golf Club case A3038/14 dated 15 October 2015 ( Gauteng Local Division JHB) per Wepener J para 17

[8] See SA Liquor Traders Association V Gauteng Liquor Board 2009 (1) SA 565 (CC).