Mokoka v Shutterlock Mining Supplies (Pty) and Another (JR445/06) [2014] ZALCJHB 344 (5 September 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

NOT REPORTABLE

CASE NO: JR 445/06

In the matter between –

MALESELA FRANK MOKOKA

Applicant

And

SHUTTERLOCK MINING

SUPPLIES (PROPRIETARY)

First Respondent

VAN ZYL DEAN

Second Respondent

Heard: 16 April 2014

Delivered: 05 September 2014

Summary: Contempt of Court. Arbitration award made an order of Court. The arbitration award finds dismissal unfair but not providing the relief. Nothing indicated in the award which subsequently made an order of Court as to why the respondent was to do. The onus to proof non compliance with the Court order rests with the applicant. The respondent has the onus of showing that the non compliance was not wilful.

MOLAHLEHI J

Introduction

[1] This is an application to have the second respondent as managing director of the first respondent committed for contempt of Court in that he is alleged to have caused the first respondent not to comply with the order of this Court made 11September 2013.

[2] The order which the respondents are alleged to have failed to comply with was made consequent to the arbitration award made under case number GAJB 27281-05.

The history of the litigation

[3] The applicant referred an alleged unfair dismissal to the CCMA arising from his dismissal for the alleged misconduct of theft of the property of the first respondent. The applicant subsequently obtained an arbitration award which found his dismissal to have been both substantively and procedurally unfair.

[4] It was on the strength of that arbitration award that the applicant filed an application to have it made an order of the Court. As stated above the arbitration award was made an order of the Court on 11 September 2013. The order was according to the applicant served on the respondents on 10 October 2013. The first Respondent however refused to comply with it.

[5] On 6 December 2013, the applicant obtained an interim order calling on the respondents to show cause why they should not be committed for contempt of Court for failing to comply with the Court order. The application is opposed by the respondents.

[6] The enquiry when determining whether a person has committed contempt of Court entails the following:

1. whether there exist a Court order which is the subject of the complaint concerning non-compliance.

2. whether the respondent was served with or notified of the order in question.

[7] The onus to satisfy the Court that the above enquiry had been complied with rests with the applicant. The second part of the enquiry once the above requirements are satisfied is whether the failure to comply with the order was wilful and mala fide on the part of the respondent.

[8] The onus is on the applicant to proof beyond reasonable doubt that the respondent is guilty of wilful and mala fide non-compliance with the Court order.

[9] Upon proved by the applicant that the order which is the subject of the complaint was served on the respondent and that it was not complied with the onus is on the respondent to show that non-compliance was not wilful and mala fide.

[10] In short the applicant will be entitled to an order declaring the respondent to be in contempt of the Court order the first part of the enquiries is satisfied and the respondent having failed to produce evidence that establishes reasonable doubt as to whether non compliance was wilful or mala fide

[11] In the present instance the order which the applicant seeks to enforce with the contempt proceedings originates as indicated from the arbitration award made by the Commissioner. It is trite that once made an order of the Court in terms of section 158 (1) (c) of the LRA, an arbitration award has the same effect as an order made by the Court after determining the merits of the case.

[12] The other basic principle in contempt proceedings is that in order to be enforced or executable its wording must be clear and unambiguous as to what is expected of the respondent.

[13] In their opposition to the contempt application the respondents contended that they could not be guilty of contempt for two reasons:

1. the award which was made an order of the Court was improperly obtained in that the applicant had amended and or changed the wording of the award.

2. The award does not state what is expected of the respondent in that there is no relief provided therein.

[14] The copy of the arbitration award which was filed in the application to make the award the order of court reads as follows:

“1 The dismissal of Frank Malesela Mokoka by Shutterlock Mining Supplies CC was both procedurally and substantively unfair.

2. I make no order as to costs.”

[15] The respondents contended that the correct finding of the Commissioner in the dispute between them and applicant was that the dismissal of the applicant was both procedurally and substantively fair. It was further contended on behalf of the respondents that the applicant had amended the award by replacing the word "fair" with the word "unfair."

[16] The applicant insisted that the copy of the arbitration award attached to his application in terms of section 158 (1) (c) of the LRA was the one given to him by the CCMA. After some debate regarding the validity of the arbitration award, the matter stood down for the following day for the CCMA to be approached and requested to furnish the copy of the award they have on record. The copy of the arbitration award which was subsequently received from this CCMA reads as follows:

“1 The dismissal of Frank Malesela Mokoka by Shutterlock Mining Supplies CC was both procedurally and substantively fair.

2. I make no order as to costs.”

[17] In my view not much turns on the issue of the amendment or changing of the award in as far as the determination of whether the respondents

are guilty of contempt of Court. The key issue, which is common cause, is that the Commissioner in making the award did not provide

for the relief. In other words even if the award submitted by the applicant was to be inverted as and correct, the

applicant’s case would still not be sustainable because the award does not state is it that the respondent were to do.

[18] In my view, in light of the above the applicant's application stands to fail.

[19] As concerning the issue of costs, the respondents have prayed for costs on the punitive scale. The issue of costs in labour matters is governed by section 162 of the LRA which provides:

[20] In considering whether costs should be awarded against the losing party in labour matters consideration as to be given to both the law and fairness.

[21] In contending that the applicant should be held liable for costs on punitive scale the respondents relied on the case of MacPherson v Teuwen [2012] ZAGPJHC18.

“[57] Attorney and client costs are mostly only awarded under extraordinary circumstances or where they are part of the parties’ agreement. For a party to be saddled with an order of costs on attorney and client scale, such a party would most probably have acted or conducted itself mala fide and/or misconducted itself in one way or another during the litigation process. Normally, such a party would have been capricious, brazen and/or cow boyish in its approach to the litigious process and not have cared what the consequences of its acts or actions would be on the legal process and/or the other side.”

[22] On face value, it could be said that the applicant acted in bad faith that he sought the enforcement of the award after amending or changing its wording. The applicant contended that the copy of the award which he presented in his application in terms of section

158(1) (c) is the one given to him by the CCMA.

[23] It is apparent that the applicant is an unsophisticated lay litigant who conducted the proceedings on his own. The issue of costs should be approached with that in mind. Whilst it does appear that the wording of the award was changed, there is no proof that that was done by the applicant. There is also no proof that the award he presented was not the one given to him by the CCMA. Account should also be taken of the fact that he instituted the contempt proceedings on the basis of a Court order which had erroneously made the arbitration award an order. The fact that the order which made an order did not provide for a relief is a technical point which in all possibilities could not be identified as such by a lay litigant. .

Order

[24] In the premises the following order is made:

1. The application to have the first and second respondent's committal for contempt of court is dismissed

2. There is no order as to costs.

Molahlehi J

Judge of the labour court of South Africa

Appearances:

For the Applicant: In person

For the respondent: Adv A J Nel

Attorney L V Ryneveld

Instructed by : Geldenhys Van Ryneveld Inc