Menoe and Another v Khumalo (J1976/17) [2024] ZALCJHB 480 (25 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J 1976/17

In the matter between:

ANNAH MENOE First Applicant ISISEKOE PRIMARY SCHOOL Second Applicant and NTOMBI JOANAH KHUMALO Respondent In re: NTOMBI JOANAH KHUMALO Applicant and ISISEKOE PRIMARY SCHOOL First Respondent ANNAH MENOE Second Respondent

Heard: 14 November 2024

Delivered: 25 November 2024

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 25 November 2024.

JUDGMENT

PRINSLOO, J

Background facts

[1] This matter has a long and unfortunate history and more than eight years after the Respondent (Ms Khumalo) obtained an arbitration award in her favour, this Court is faced with a rescission application. A brief exposition of the litigation history is necessary to give context to the current application.

[2] Ms Khumalo was employed by the Second Applicant (the school) as a cleaner with effect from 1 July 2014. In August 2016 Ms Khumalo was requested to sign a fixed term contract in terms of which her employment would terminate three months later. She referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and on 19 October 2016 an arbitration award was issued wherein the presiding arbitrator found that Ms Khumalo’s dismissal was substantively and procedurally unfair and the school was ordered to reinstate her on the same terms and conditions prior to her dismissal, until a post had been identified in which she could be absorbed. Ms Khumalo was not reinstated as per the arbitration award and in November 2016 the arbitration award was certified in terms of the provisions of section 143(3) of the Labour Relations Act[1] (LRA).

[3] On 7 November 2016 the arbitration award was sent to the Applicants by way of email. The Applicants did not comply with the arbitration award, nor did they file a review application to challenge the award, wherefore it remained valid and binding.

[4] On 6 February 2020 the arbitration award was made an order of Court and the Respondent’s undisputed version is that a copy of the Court order was delivered to the Applicants on 24 October 2020, but they still refused to reinstate her.

[5] With the assistance of Legal Aid South Africa the Respondent filed an ex parte application for contempt of court in September 2020, citing only the school as respondent. In September 2021 another ex parte application for contempt of court was filed, joining the First Applicant (Ms Menoe) as being the principal of the school, as a party to the application.

[6] On 8 October 2021 Mahosi J issued a rule nisi and ordered inter alia that Ms Menoe should appear in Court on 4 February 2022 to show cause why she should not be found guilty of contempt of Court for the Applicants’ failure to comply with the Court order of February 2020. The Court order specifically ordered that:

‘2. The respondents may explain their conduct by way of an affidavit on the date of the hearing or before that date (although this does not excuse them from being present in Court).

3. In the absence of providing an explanation to the satisfaction of the Court or failing to appear in Court despite being properly served, the first and second respondents may be found guilty of contempt of Court.

4. The first and second respondents may be incarcerated for such period as the Court may deem appropriate; or the respondents may be fined in an amount the Court deems appropriate or any other alternative relief.

[7] On 4 February 2022 Moshoana J extended the rule nisi to 29 April 2022.

[8] On 29 April 2022 Mahosi J extended the rule nisi to 5 August 2022.

[9] On 5 August 2022 Phehane J extended the rule nisi to 11 November 2022.

[10] On 11 November 2022 Phehane J ordered that:

1. The first and second respondents are in contempt of the court order dated 6 February 2020 and the subsequent extensions of the rule nisi;

2. The Registrar is directed to issue a writ of arrest to the sheriff to bring the second respondent before this court on 10 February 2023 to show cause why she should not be incarcerated, alternatively, fined for the periods and amounts as determined by the court in its discretion for contempt of the aforesaid orders;

3. The respondents are to pay the costs of this application.

[11] On 10 February 2023 the sheriff indeed brought Ms Menoe before Court and the rule nisi was once again extended until 28 April 2023. It was ordered that Ms Menoe had to appear in Court on 28 April 2023 to show cause as to why an order that she be incarcerated for a period to be determined by the Court, alternatively a fine be imposed in an amount to be determined by the Court, should not be granted. Ms Menoe was also ordered to pay the costs on a punitive scale.

[12] On 28 April 2023 Ms Menoe did not appear in Court and the Court (per Phehane J) issued the following order:

1. The First and Second Respondents are guilty of contempt of the Court order dated 6 February 2020;

2. The First and Second Respondents are found guilty of contempt of the Court order dated 10th of February 2023;

3. A fine is imposed on the the First and Second Respondents in the amount of R10 000.00 (Ten Thousand Rand) each payable at the office of the Registrar of this Court by no later than 3pm on Friday, 5 May 2023;

4. The Second Respondent is sentenced to 1-month imprisonment in the event of the fine mentioned in paragraph 3 above not being paid, and in which event, the Registrar is directed to issue a writ of commitment for contempt of Court in accordance with form F of the uniform Rules of Court;

5. The Respondents are to pay the Applicant’s costs on a scale as between attorney and client

[13] On 16 May 2023 the Applicants filed an application, seeking an order for the rescission of the ‘judgment’ issued on 28 April 2023. Ms Khumalo opposed the application.

[14] The Applicants’ case is that the order was erroneously sought and / or granted in their absence.

The applicable legal principles

[15] The rescission of court orders is provided for section 165 of the Labour Relations Act[2] (LRA) and was provided for in Rule 16A of the now repealed Rules of the Labour Court.

[16] Section 165 provides as follows:

‘165. The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order

(a) erroneously sought or erroneously granted in the absence of any party affected by that judgment or order;

(b) in which there is an ambiguity or an obvious error or omission, but only to the extent of that ambiguity, error or omission;

(c) granted as a result of a mistake common to the parties to the proceedings.’

[17] The wording of Rule 16A(1)(a)(i) – (iii) was identical to section 165 of the LRA and there is no need to set out both.

[18] Rule 16A(1)(b) provided that the Labour Court may, on application of any party affected, rescind any order or judgment granted in the absence of that party, upon good cause shown. An application in terms of rule 16A(1)(b) must be made within 15 days after acquiring knowledge of the order or judgment granted in the absence of the applicant party.

[19] The essence of the difference between these two provisions is that in applications in terms of rule 16A(1)(a)(i), where an order was erroneously granted in the absence of a party, the applicant is not required to show good cause, whereas that is required if the application is brought in terms of rule 16A(1)(b). However, the explanation for default to be tendered does not change regardless of which legislative rubric the application is brought under or, for that matter, whether it has been brought under the common law.

[20] In casu the Applicants approached this Court in terms of the provisions of section 165(a) of the LRA, averring that the order of 28 April 2023 was erroneously sought and / or granted in their absence.

[21] An order or judgment was granted erroneously, as contemplated in section 165 of the LRA, if, at the time the order was granted, a fact existed of which the presiding judge was unaware but had he or she been aware of it, would have induced him or her not to grant the order.

[22] The Applicants must provide a reasonable explanation for their default and must show that the order was erroneously granted.

[23] The questions this Court has to consider is whether the explanation for the Applicants’ default was reasonable and whether the order was erroneously sought or granted.

Explanation for the default

[24] It is undisputed that Ms Menoe was aware of the Court order of 10 February 2023, which ordered her to to appear in Court on 28 April 2023 to show cause why an order that she be incarcerated or fined, should not be granted. On her own version, she knew that she had to return to Court on 28 April 2023 ‘with a full explanation in an affidavit as to why I was not present in court in (sic) the previous occasion.’

[25] It is evident that Ms Menoe knew since 10 February 2023 that she had to appear in Court on 28 April 2023, that she had to file an affidavit to explain her conduct and that her failure to do so, could result in her being incarcerated or fined.

[26] It is common cause that Ms Menoe did not appear in Court on 28 April 2023, nor did she file an affidavit to explain her conduct and as a result she was fined and should she fail to pay the fine, she was to be incarcerated.

[27] Ms Menoe submitted that at all material times she had the intention to attend Court. Her explanation for her default is that on 19 April 2023 two grade 1 learners at the school were killed by their grandmother. This attracted the attention of the provincial government and the premier, Mr Panyaza Lesufi. Ms Menoe was tasked to be at the forefront to make funeral arrangements for the said two learners.

[28] The funeral was set to take place on 28 April 2023 and Ms Menoe explained that from 19 April until the date of the funeral, she was ‘immensely occupied with the funeral arrangements as instructed by the Provincial Government.’ She was one of the speakers at the funeral.

[29] After the funeral, it ‘dawned’ on her that she had to attend Court on 28 April 2023 and Ms Menoe went to the Labour Court on 3 May 2023, when she was advised about the Court order that was issued on 28 April 2023. She immediately went to the legal service department at the office of the Gauteng Department of Education to seek assistance. The Department addressed a letter to the State Attorney, requesting legal representation for purposes of filing a rescission application.

[30] It is evident from the said letter dated 3 May 2023 that Ms Menoe’s explanation for her non-attendance at Court on 28 April 2023 was that she had to attend the funeral of two students and that ‘she was responsible to ensure that the GDE gives the necessary financial and emotional support to the family and that [the] Department is represented.’ This explanation differs from the explanation presented in this application where Ms Menoe averred that ‘she was at the forefront to organise the funeral arrangements.’

[31] Be that as it may, Ms Menoe’s version is that she was well aware of the fact that she had to appear in Court on 28 April 2023 and she had the intention to do so, but due to the death of the learners and the instruction from the Provincial Government, she “was overwhelmed with the multiply (sic) tasks I had to execute” and she was instructed by the provincial government to attend to the funeral arrangements.

[32] Ms Menoe stated that “as a consequence thereof I am advised that the judgment granted on 28 April 2023 was erroneously sought and / or erroneously granted in the absence of the applicants.”

[33] Ms Menoe further submitted that the sanction imposed on the Applicants is not appropriate or enforceable. This Court is not in a position to decide on the appropriateness of the sanction that was imposed by Phehane J – this Court has to decide whether to rescind the order of 28 April 2023.

[34] In her answering affidavit Ms Khumalo explained that the only occasion that Ms Menoe attended Court was on 10 February 2023, after a writ of committal was issued and she was brought to Court by the sheriff. Ms Menoe never willingly presented herself at Court and she ignored other Court orders, she only attended Court after she was arrested and brought to Court. Ms Menoe was present on 10 February 2023 when the Court order was issued, in terms of which she had to appear in Court on 28 April 2023, and she was well aware of the consequences that would follow if she failed to attend the proceedings on 28 April 2023 but “the Applicants still ignored the order like they did all the previous orders.”

[35] Ms Khumalo submitted that the Applicants had ample time and opportunity to find a legal representative between 10 February and 28 April 2023, but they failed to do so. In her replying affidavit Ms Menoe disputed the Respondent’s contention that the Applicants failed to find a legal representative as being ‘a non-issue’ that lacks merit. Ms Menoe’s version is that she escalated the matter to the Applicants’ legal representatives upon being informed about the Court order on 3 May 2023.

[36] Ms Menoe’s version is not supported by the documents placed before this Court. She tries to paint a picture that on 3 May 2023, after she became aware of the Court order of 28 April 2023, she escalated the matter to get legal assistance. However, the State Attorney, acting on behalf of the Applicants, filed a notice of intention to oppose on 20 April 2023 and served such notice on the Respondent’s attorney of record on 21 April 2023.

Analysis

[37] Section 165(5) of the Constitution of the Republic of South Africa, 1996 (the Constitution) provides that '(a)n order or decision issued by a court binds all persons to whom and organs of state to which it applies’. It is not open for a party to litigation to unilaterally elect whether or not to comply with orders of court. In the absence of an

application for rescission or appeal, court orders must be complied with. This is so to ensure that the rule of law remains intact and to enforce the principle that no one is above the law.

[38] Public functionaries, as arms of the State, are vested with the responsibility, in terms of section 7(2) of the Constitution, to

‘respect, protect, promote and fulfil the rights in the Bill of Rights’. In Khumalo and another v Member of the Executive Council for Education: Kwazulu-Natal[3] (Khumalo) the Constitutional Court dealt with the duties of public functionaries, and held inter alia that the rule of law is a founding value of our constitutional democracy and that it is the duty of the courts to insist that the state, in all its dealings, operates within the confines of the law and, in so doing, remains accountable to those on whose behalf it exercises power. It was held that[4]:

“The supremacy of the Constitution and the guarantees in the Bill of Rights add depth and content to the rule of law. When upholding the rule of law, we are thus required not only to have regard to the strict terms of regulatory provisions but so too to the values underlying the Bill of Rights.”

[39] Ms Menoe, a primary school principal in the employ of the Department of Education, is a public functionary who has a clear obligation to uphold the rule of law and she has an undeniable obligation to comply with orders of court.

[40] In casu Ms Menoe failed to comply with an order of Court and the question is whether her explanation for such failure is reasonable and acceptable.

[41] It is evident from the undisputed facts that the Applicants were aware of the fact that Ms Menoe had to appear in Court on 28 April 2023, that she had to file an affidavit to explain her conduct and that her failure to do so, could result in her being incarcerated or fined. This fact was known to Ms Menoe since 10 February 2023.

[42] Ms Menoe not only failed to appear in Court on 28 April 2023, but she also failed to file an affidavit to explain her conduct, notwithstanding the fact that there was a Court order which ordered her to file such an affidavit and of which she was aware since 10 February 2023. Ms Menoe tendered no explanation for failing to comply with the Court order which ordered her to file an affidavit and the only inference is that Ms Menoe had no intention to comply with the Court order, alternatively she simply ignored the Court order and did not regard it as something which was binding on her or which she had to take serious note of, let alone comply with. The

attitude adopted by Ms Menoe is unacceptable and not indicative of a person who respects an order issued by a Court of law.

[43] In respect of her failure to appear in Court on 28 April 2023 Ms Menoe’s explanation in short is that two learners at her school passed away, she was tasked by the Provincial Government to attend to the funeral arrangements and she was overwhelmed with the tasks she had to execute. The funeral took place on 28 April 2023 and Ms Menoe attended the funeral instead of appearing in Court.

[44] Ms Menoe explained that she was ‘immensely occupied with the funeral arrangements as instructed by the Provincial Government’ and that she was one of the speakers at the funeral. Logic dictates that the arrangements for the funeral had to be finalised before the funeral took place on 28 April 2023 and it is unclear how Ms Menoe’s occupation with the arrangements prevented her from

attending Court on 28 April 2023. Ms Menoe had attached the funeral program to her founding affidavit, from which it is evident that she was listed as a speaker from 08:35 – 08:40. She had to appear in Court at 10:00 and it is not explained how her commitment as a speaker, which ended at 08:40 prevented her from attending Court at 10:00.

[45] According to Ms Menoe the order was erroneously granted or sought. This is so because she was overwhelmed by the tasks she had to execute and she was instructed by the provincial government to attend to the funeral arrangements. I invited counsel for the Applicants to make submissions as to what the error was which resulted in the ‘erroneous’ granting of the order and Mr Salela submitted that had the Court known about the funeral, it would not have granted the order.

[46] This cannot be.

[47] The State Attorney was on record for the Applicants and filed a notice of intention to oppose on 20 April 2023, well in advance and evidently the Applicants had legal representation prior to 28 April 2023. It remains unexplained why no affidavit was filed, notwithstanding the fact that the Applicants’ were legally represented and that at taxpayers cost, why the State Attorney did not reach out to Ms Khumalo’s legal representative to explain the situation and requested an extension of the rule nisi or why the Applicants’ legal representatives did not show up at Court on 28 April 2023 to explain Ms Menoe’s absence to the Court, when she had to appear or face dire consequences.

[48] It is evident that Ms Menoe took the instruction from the provincial government far more serious than the Court order she had to comply with. In my view this constitutes wilful default.

[49] The rule of law and the decorum of this Court would be undermined and Court orders would become a mockery if Court orders are to be rescinded on the ground that the defaulting party, well aware of the Court order and the consequences to follow by not complying with it, received instructions to attend to funeral arrangements and was overwhelmed by the tasks she had to execute. This is more so where absolutely no effort was made to alert the Court or the Respondent of the position and where there was no attempt whatsoever to comply with the Court order.

[50] There is another reason why this application has to fail.

[51] This Court has to endorse the aim of the LRA namely to resolve labour disputes speedily and without delay. In casu the Respondent was dismissed in 2016, she obtained an arbitration award in her favour in October 2016, the award was certified and was made an order of Court in February 2020. The contempt of Court application was filed in September 2020 and in October 2021 an order was issued for the Applicants to appear in Court. The contempt application was in Court on four occasions before Phehane J directed the Registrar to issue a writ of committal and only after the sheriff arrested her, Ms Menoe appeared in Court in February 2023, when the matter was postponed to 28 April 2023 and she was afforded an opportunity to file an affidavit and explain her conduct. On 28 April 2023 Ms Menoe did not appear in Court and after an order was issued, she approached this Court to rescind the order.

[52] In November 2024 there is still no compliance with the 2016 arbitration award, which was made an order of Court and Ms Khumalo has taken every possible step permissible in law to ensure compliance and for her to be reinstated, but for a period of eight years it appears that justice kept on escaping her due to the actions and the conduct of Ms Menoe. Granting rescission in a case like this would not be in the interest of justice as it would undermine the statutory purpose of expeditious dispute resolution.

Costs

[53] In so far as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness.

[54] The general accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[5] it was emphasized that:

‘……unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[55] Mr Seepamore for the Respondent submitted that the application should be dismissed with costs. He argued that Ms Khumalo was unemployed and cannot be expected to pay the costs of defending a meritless application.

[56] Mr Salela on the other hand submitted that the Applicants cannot be ordered to pay the costs. The school is a non-paying school which rely on fund raising events for funding and it does not have funds to pay the costs as it is not well resourced. He submitted that Ms Menoe acted in her capacity as a government official, being represented by the State Attorney and she should also not be ordered to pay the costs.

[57] In Zungu v Premier of Kwazulu-Natal and others[6] the Constitutional Court confirmed the rule that costs follow the result does not apply in labour matters, but that the Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court and have their disputes dealt with and, on the other hand allowing those parties to bring to this Court cases that should not have been brought to Court in the first place.

[58] This is a case where this Court has to strike a balance.

[59] In casu the Applicants came to Court with a meritless application, which should not have been pursued. Ms Menoe abused the process by bringing this application and taxpayers money was wasted in that she was represented by the State Attorney, who briefed counsel to appear in Court to argue a meritless application.

[60] The Respondent, an unemployed lay person, who worked as a cleaner was compelled to engage in litigation and to oppose a meritless application and eight years after her dismissal, she had not received any justice due to the delaying and frustrating conduct of the Applicants and more specifically Ms Menoe.

[61] A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the law and the prospects of success. This is a matter where a cost order is warranted and where the interest of justice will be best served by making a cost order.

[62] In my view Ms Menoe should be liable to pay the Respondent’s costs in her personal capacity. There is no reason why taxpayer’s money should be wasted on bringing a rescission application in respect of an individual who had no respect or regard for a Court order and whose conduct undermined the rule of law.

[63] Ms Menoe is afforded an opportunity to file an affidavit within seven days of date of this judgment setting out reasons, if any, as to why an order in these terms should not be confirmed. If no submissions are received within the prescribed time, the cost order will have final effect.

[64] In the premises I make the following order:

Order

1. The application for rescission is dismissed;

2. The Respondent’s costs are to be paid de bonis propriis by the First Applicant (Ms Menoe), on the scale as between party and party;

3. The order for costs in paragraph 2 supra is provisional and Ms Menoe is afforded seven days to make written submissions as to why the order should not be confirmed, failing

which the cost order will be final.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Advocate S Salela Instructed by: State Attorney, Johannesburg For the Respondent: Mr S Seepamore from SG Seepamore Inc Attorneys

[1] Act 66 of 1995, as amended.

[2] Act 66 of 1995, as amended.

[3] 2014 (5) SA-579 (CC).

[4] Khumalo (Ibid) at para 29.

[5] 2012 33 ILJ 2117 (LC) at para 176.

[6] (2018) 39 ILJ 523 (CC).