Maanaso and Another v Techniflex CC and Another (J2501/15) [2019] ZALCJHB 50 (19 March 2019)
- Citation
- [2019] ZALCJHB 50
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- Raphulu L
- Case number
- J2501/15
More details
- Court
- Labour Court Johannesburg
- Panel
- Raphulu L
- Case number
- J2501/15
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the respondents had not complied with the reinstatement portion of the court order dated 8 September 2015. Despite being aware of the order and the applicants' tender of services, the respondents took no steps to reinstate the applicants and instead contested the contempt proceedings. The court held that this conduct demonstrated wilfulness and mala fides beyond reasonable doubt. The respondents were therefore found to be in contempt of court and ordered to reinstate the applicants and pay a fine.
Court disposition
Respondents found in wilful contempt of court for failing to reinstate applicants as ordered.
Orders
- The respondents are held to be in wilful contempt of the court order dated 8 September 2015.
- The respondents are to reinstate the applicants within 15 days of the date of this order.
- The respondents are to pay a fine of R50,000, being R25,000 payable to each applicant, within 15 days of this order.
- No order as to costs.
02
Material facts
Parties
Andrew Sello Maanaso
Applicant Counsel: Self-RepresentedThokozani Emmanuel Zulu
Applicant Counsel: Self-RepresentedTechniflex CC
Respondent Counsel: S LancasterBeatrice Dorothy Tonkin
Respondent Counsel: S LancasterAmounts and remedies
- Compensation to First Applicant: ZAR 15,600
- Compensation to Second Applicant: ZAR 14,400
- Fine Payable to First Applicant: ZAR 25,000
- Fine Payable to Second Applicant: ZAR 25,000
03
Procedural history
Posture
Contempt Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the respondents are in contempt of the Labour Court order dated 8 September 2015.
- 02
Whether the respondents wilfully and in bad faith failed to reinstate the applicants as ordered.
- 03
Whether the respondents complied with the compensation portion of the order.
Party arguments
- Applicant
- The applicants contend that although compensation was eventually paid, it was only after execution proceedings. They allege that they tendered their services for reinstatement but were turned away by agents of the first respondent. They argue that the respondents have wilfully failed to comply with the reinstatement order and have taken no steps to reinstate them, demonstrating contempt for the court's authority.
- Respondent
- The respondents admit to delayed payment of compensation but assert that full payment has now been made. They deny that the applicants ever tendered their services for reinstatement and claim that, as a result, they could not comply with that portion of the order. They further argue that the application is ex parte and only concerns the first applicant.
05
Court’s reasoning
Legal principles
- 01
Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)
To succeed in a contempt application, the applicant must prove the existence of a court order, service or notice of the order, non-compliance with the order, and wilfulness and mala fides beyond reasonable doubt.
- 02
Labour Court authority
Court orders must be respected and complied with; failure to do so attracts consequences for the non-compliant party.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the respondents had not complied with the reinstatement portion of the court order dated 8 September 2015. Despite being aware of the order and the applicants' tender of services, the respondents took no steps to reinstate the applicants and instead contested the contempt proceedings. The court held that this conduct demonstrated wilfulness and mala fides beyond reasonable doubt. The respondents were therefore found to be in contempt of court and ordered to reinstate the applicants and pay a fine.
Obiter and limits
- The precise date and manner of the applicants' tender of services is immaterial, as the respondents failed to reinstate them regardless.
- Ex parte applications are not limited to a single applicant party; the respondents' argument on this point is incorrect.
- The respondents' focus on contesting the contempt proceedings rather than complying with the reinstatement order further evidences their disregard for the court's authority.
Court disposition
Respondents found in wilful contempt of court for failing to reinstate applicants as ordered.
- The respondents are held to be in wilful contempt of the court order dated 8 September 2015.
- The respondents are to reinstate the applicants within 15 days of the date of this order.
- The respondents are to pay a fine of R50,000, being R25,000 payable to each applicant, within 15 days of this order.
- No order as to costs.
Source and reliance status
Labour Court Johannesburg
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Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case no: j 2501/15
In the matter between:
ANDREW
SELLO MAANASO
First Applicant
THOKOZANI
EMMANUEL ZULU
Second Applicant
and
TECHNIFLEX CC
First Respondent
BEATRICE
DOROTHY TONKIN
Second Respondent
Heard: 29 January 2019
Delivered: 19 March 2019
Summary: Application for contempt of court.
JUDGMENT
RAPHULU, AJ
Introduction
[1] This in an application to hold the Respondents in contempt of a Commission for Conciliation, Mediation and Arbitration (CCMA) award of 7 September 2015 which was made an order of this Court on 8 September 2015. In terms of the order, the Respondents were ordered to reinstate the Applicants, and to pay the First Applicant compensation in the amount of R15 600, and to pay the Second Applicant compensation in the amount of R14 400.00.
Background
[2] It is common cause that the due compensation was paid to the Applicants. However, this was only done following the Applicants having to approach the Sheriff of the High Court after obtaining a warrant of execution. The Respondents concede that the compensation payment was delayed, but contend that full payment has now been made to the Applicants.
[3] As to the re-instatement portion of the award, the Applicants allege that they tendered their services at the First Respondent on 25 September 2015, but that they were turned away by Patrick, the security guard employed by Thomson Security, the company which provides security services to the First Respondent, and/or they were turned away Mr Michael Walker of the First Respondent. The Respondents allege that the Applicants never tendered their services at all, and that accordingly, the Respondents could not comply with the reinstatement portion of the order.
[4] There is some contention around the following:
4.1 Whether the Applicants allege to have tendered their services on 25 September 2015 or 25 October 2015;
4.2 Whether the Applicants allege to have walked to the First Respondent’s premises together or if they met there;
4.3 Whether it was Patrick or Mr Walker that allegedly turned the Applicants away.
[5] In my view, none of the above are material, as it is a common cause fact that the Applicants were not reinstated, and thus that the reinstatement portion of the order was not complied with.
[6] The Respondents argue that this being an ex parte application, it is only in respect of the First Applicant, and not the Second Applicant. This is not correct. The nature of an ex parte application is that is in an application with only an applicant party, and no respondent party. It is not limited to one applicant party.
[7] In order to get relief in this application, the Applicants must prove the following:
7.1 the existence of a court order
7.2 service or notice of the court order
7.3 non-compliance with the terms of the order
7.4 wilfulness and mala fides beyond reasonable doubt
[8] It is common cause that there is an existing court order, and that same was served on the Respondents. It is also common cause that there has been non-compliance with the reinstatement portion of the court order. What is in dispute is whether, beyond reasonable doubt, such non-compliance is due to the wilfulness and mala fides of the Respondents.
[9] The Respondents have to date, not taken a single step to try and comply with the court order which directs them to reinstate the Applicants. Seeing as they hold an order of this Court directing them to reinstate the Applicants, they had a legal responsibility to take steps to do so. Even though the Respondents do allege[1] that once the First Respondent became aware of the award, it implemented measures to ensure that it complied with the arbitration
award, absolutely no measures to reinstate the Applicants has been demonstrated to this Court. As late as from the time that the
Applicants launched these contempt proceedings, there could have been no doubt in the minds of the Respondents that the Applicants were unhappy with not having been reinstated, and that they were tendering their services to the First Respondent.
[10] The Respondents took no steps to reinstate the Applicants, but instead used their time and resources to contest these contempt proceedings. As at the date of the contempt proceedings, the Respondents are still not trying to reinstate the Applicants. The conduct of the Respondents shows beyond reasonable doubt that they have no intention of reinstating the Applicants, as at 25 September 2015, or any other date.
[11] Orders of this Court are to be respected and complied with, failing which consequences follow for parties who choose to disregard same.
Order:
1. The Respondents are held to be in willful contempt of the court order dated 8 September 2015.
2. The Respondents are to reinstate the Applicants within 15 days of the date of this order.
3. The Respondents are to pay a fine in the amount of R50 000 (Fifty Thousand Rand), being R25 000.00 (Twenty-Five Thousand Rand) payable to each of the Applicants. This fine is to be paid within 15 days of this order.
4. No order is made as to costs.
_______
Raphulu L
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicants: Self-Represented
For the Respondents: S Lancaster of Lancaster Kungoane Attorneys
[1] At para 12 of the Opposing Affidavit.
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