National Union of Mineworkers and Another v Seriti Coal (Pty) Ltd t/a New Vaal Colliery (J1766/19) [2021] ZALCJHB 133; (2021) 42 ILJ 2291 (LC); [2021] 11 BLLR 1107 (LC) (5 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: J 1766/19

In the matter between:

NATIONAL UNION OF MINEWORKERS

First Applicant

WILLIAM KHOLISILE MOYAKE

Second Applicant

and

SERITI COAL (PTY) LTD t/a NEW VAAL COLLIERY Respondent

Heard: 25 May 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for hand-down is deemed to be 10h00 on 05 July 2021.

Summary: Civil Jurisdiction-S 77(3) of BCEA - Application granted.

JUDGMENT

MABASO, AJ

Introduction

[1] This Court has been approached by the Applicants, to exercise its civil jurisdiction in terms of section 77(3) of the Basic Conditions of Employment Act (BCEA),[1] seeking a declaratory order against Seriti Coal (Pty) Ltd (the Respondent),[2] to be ordered to pay the Second Applicant (the Employee) arrear remuneration and interest thereon for the period between 2 May 2013

and the date of reinstatement.[3]

Point in limine

[2] The Respondent in its opposing affidavit raises a two-fold defence, namely that the Applicants have cited the incorrect party, but indicates that this Court may substitute the Respondent to Seriti Coal (Pty) Ltd, and that the Applicant has failed to make out a case in their founding papers, in support of the prayer in the notice of motion.

[3] The Applicants in para 2.3 of the founding affidavit confirms that Anglo Operations Limited (New Vaal Colliers) (hereinafter referred to as the Employer) was transferred to Seriti Coal (Pty) Ltd (hereinafter referred to as the Respondent). The Respondent in para 5 of the answering affidavit contends that New Vaal Colliers was sold to it as a going concern. Therefore, by operation of law the Respondent is a new employer. Furthermore, considering the application in its entirety, it is clear that the Applicants in their notice dated 09 September 2019 they are correcting the citiation. The notice is unopposed and the Respondent in the answering affidavit asked this Court to correct the citation, therefore, the application is granted.

Brief background

[4] The Employee was dismissed by the Employer[4] following allegations of misconduct in June 2012; he then declared an unfair dismissal dispute with the Commission for Conciliation

Mediation and Arbitration (CCMA), which the later appointed Commissioner Smith (the Arbitrator) to arbitrate the dispute. At the conclusion of the arbitration, the Arbitrator issued an arbitration award, ruling that the dismissal was substantively unfair

and thereafter ordered the Employer to reinstate the Employee with no back pay and that the latter was to report for duty on 2 May 2013.

[5] It is uncontested evidence that the Employee’s remuneration[5] was inclusive of leave bonus, housing allowance, commuting allowance, production bonus and provident fund contribution.

[6] It is common cause that following the arbitration award, the Employee reported for duty on 02 May 2013, but the Employer did not reinstate him; instead they took the arbitration award on review, which was subsequently dismissed by this Court, per Learned Cele J on 18 May 2017. It is further common cause that the Applicants sent a letter to the Employer notifying them that the Employee was to report for duty again on 07 June 2017. The Applicants were advised that the Employer intended to appeal the court order of Cele J; therefore, the Employee was not allowed to report for duty. Following an unsuccessful leave to appeal, the Employee was finally reinstated in January 2018. The Applicants contend that the Respondent refused to back pay the Employee from the 02 May 2013 to date of reinstatement which is January 2018, “which this application is all about”.

[7] The Respondent accepts that legally the Employee may have contractual damages against it, but contends that the Applicants must quantify these contractual damages in order to sustain the Employee’s claim, in essence, it contends that the Employee should address questions such as:

“17.1 whether during this period, [the Employee] had been employed or took steps to litigate his losses.The applicants do not deal with these issues in the founding affidavit, nor do they allege that [the Employee] reported for work during this period.

17.2 The founding affidavit does not address the contractual damages claim upon which [the Employee] bases his claim for monies for the period between 2 May 2013 and January 2018. The background regarding the letter of demand does not take this matter further.

17.3 the forms of remuneration do not assist the above Honourable Court in quantifying the amounts claimed by the Applicants themselves aver a specific amount that they seek is contractual damages. In the absence of an attempt to calculate the amount claimed by the Applicants, this application lacks the material and the essential allegations to sustain this claim and is therefore fatally defective and should be dismissed with costs[6]”

[8] The Respondent during argument, submitted that the Applicants are trying to make out a case in the replying affidavit, and this Court should reject such averments where the Applicants are trying to demonstrate amounts of money as per “the claim”.

[9] I must flag that in the founding papers, the Applicants neither attached the arbitration award nor letters exchanged with the Respondent and specifically acknowledge such, and in respect of the exchanged letters they state that because the issue herein is common cause.

[10] It has to be reiterated that the cause of action before this Court relates to what happened in or should have happened post 02 May 2013 (reporting date), as the arbitration award indicates that the Employee should report for duty. However, the arbitration award was submitted through replying affidavit. I must indicate that no prejudice is claimed by the Respondent for the introduction of the arbitration award through replying affidavit. And I see no prejudice because the parties are not at war about the terms of the arbitration award as both properly set them out in the papers. Furthermore, the relevance of the arbitration award is that it indicates that the employment contract revived and clarifies what the Employee was supposed to do i.e. report for duty

The law and application thereof

[11] A party approaching the Court may do so by way of motion proceedings or in terms of Rule 6 of the Rules of this Court (commonly known as a statement of case). If it uses the latter process, such party will have an opportunity to tender viva voca evidence; however, if the former process is used, such party might not have an opportunity to present oral evidence except in exceptional circumstances.

[12] It is trite that an applicant in motion proceedings must set out the allegations upon which it relies and make out a proper case in its founding papers. It follows that an applicant cannot be allowed to extend issues in dispute between the parties by making fresh allegations in the replying affidavit. Cf. Director Of Hospital Services v Mistry[7], The SCA in NCSPCA v Openshaw[8] where was held that,

"[29] It is trite law that the Applicant in motion proceedings must make out a proper case in the founding papers. Miller J in Shakot Investments (Pty) Ltd v Town Council of the Borough of Stanger, puts the matter thus:

"In proceedings by way of motion, the party seeking relief ought to appear in his founding affidavit to disclose such facts as would, if true, justify the relief sought and which would, at the same time, sufficiently inform the other party of the case he was required to meet."

With this principle in mind, this Court concludes that the Applicants are not permitted to introduce a new cause of action through replying affidavit, as they fall and/or stand with their founding affidavit.

[13] The Labour Appeal Court (LAC) in Coca-Cola Sabco (Pty) Ltd v Van Wyk (Coca-Cola Sabco)[9] said the following regarding these type of claims,

“Since the LRA does not cater for relief between the date of the award and the date of implementation, how then should be reinstated employee recover that money if he tendered his services, during that period?”[10]

And,

“She/he is therefore entitled to payment in terms of a contract of employment. The claim is, therefore, a contractual one wherein the employee would have to set out sufficient facts to justify the right or entitlement to judicial redress. The employee will among other things have to prove that the [a] contract of employment is extant; [b] that she or he tendered his or her labour in terms thereof and [c] that the employer refuses or is unwilling to pay him or her in terms of that contract. The employer, on the other hand, would have all the contractual defences at her or his disposal.”[11]

[14] This judgement, Coca-Cola Sabco, was the subject of deliberation before the Constitutional Court in National Union of Metalworkers of South Africa obo M Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings

(Fohlisa),[12] in part this judgement agreed with the Coca-Cola Sabco, that an employee who claims for payment for a period that he did not work, but had nevertheless tendered his services, which tender an employer had refused on basis of a pending or contemplated review application, such a claim is a contractual claim which such employee would be entitled to the payment thereof.[13]

[15] To consider the first question as to whether the employee had been employed or took steps to mitigate losses, as contended by the Respondent. Considering the undisputed evidence that the Employee reported for duty and was turned away by the Employer. In an employment relationship, there is a dual obligation on the part of an employee; he has to report for duty and tender his services to the employer, which will qualify his entitlement for salary.

[16] However, if an employee reports for duty following a reinstatement order, through an arbitration award, after such employee’s employment relationship with such an employer had been terminated by way of dismissal, but the employer prevents such employee from resuming work because the employer says it intends on challenging the same arbitration award through review processes, such employee is automatically entitled to his full remuneration; because he did not cause failure to work but the employer prevented him from doing so. I say this based on what the Constitutional Court said in Fohlisa supra where it was held that: “…would automatically restore the contract of employment which had previously governed the relationship [between the parties]”. See also Kubeka and others v Ni-Da Transport (Pty) Ltd (DA10/19) [2020] ZALAC 55.

[17] So in this matter is common cause that the reinstatement order was made by the Abitrator, which made the employment relationship intact, and that the Employee did report for duty but was prevented by the Employer to perform his duties. Cf. Fohlisa supra at paras 77 and 172[14] read with paras 121, 130, 80,118,130,183. 130,167,182 to 185. Normally,when an employee attempts to claim “liability” an employer has a right to raise defences such as that the employee did not comply with an award as he did not report for duty, despite the award ordering him to do so. In casu, this is not the defence of the Respondent, instead it raises no defence except mentioning what is stated in para 7 above.

[18] The Respondent herein seems to suggest that the Employee ought to have pleaded “losses” in the founding affidavit. Paras 15 and 16 of the founding affidavit suggest that the Employee expected payment for the period between 02 May 2013 to January 2018 but the Respondent refused to do so. The reading of the papers reveals that the Employee is claiming liability and asks this Court to make an order that the Respondent should pay him for that period that he did not work despite tendering services as he was prevented by the Respondent from rendering services.

[19] Considering both Fohlisa and Coca-Cola Sabco supra an employee has to convince the Court that he did comply with the terms of the arbitration award but was prevented to work so is

entitled to be paid, meaning the employer is liable. I say this because the arbitration award in this matter has no pronouncement

about the payment between 02 May 2013 and the date of reinstatment . And this period is an issue of facts that had to be presented before this Court, which the Respondent is not disputing that the Employee did report for duty but was not allowed to tender services. Cf Coca-Cola Sabco at paras 19 and 24, and see also Mobile Telephone Networks (Pty) Ltd v Pillay and others [15](MTN) at para 23. So, it was on the Respondent to raise contractual defences as highlighted by the CC, in Fohlisa, specifically paras 182, 183, 184 read with Coca-Cola Sabco at para 18,19 ,24 and 29.

[20] I, therefore, do not think that the Employee should have quantified the contractual claims because it is not in dispute that the contract of employment was revived by the reinstatement order and he did report for duty but was prevented to do so by the Respondent. I must say that if the Employee’s claim was about specific increment of the remuneration that could have been a different scenario, but here the Employee claims the amount that their contract of employment determines and this declaratory order is not a normal one as the LAC said in MTN supra at para 39 where it held that,

“…a declaratory order is no more than what its name suggests. It does not implicitly order that the appellant pay the respondents any specific amount as remuneration, but declares that the appellant is liable to pay the respondents such remuneration as may be due to them, for the requisite period, in terms of their contracts of employment and the law.”

The amount claimed is known to both parties, therefore, this Court has to determine if the Employer is liable or not.

[21] My view is that, if we read Coca-Cola Sabco to say it requires this Court to expect an employee to show that “whether during this period, [an employee] had been employed or took steps to litigate his losses” it will be an incorrect proposition of that case if an employer has not raised a counter claim to say an employee during the period was working elsewhere and earned a specific amount. In summary, this Court can only ask this question if an employer is in a position to say an employee is not entitled to payment for the claimed period or part thereof because he could not have tendered his services as he was working elsewhere or raise any valid defence.

[22] Therefore, the Applicants claim considering the founding affidavit relates to whether the Respondent is liable for the claimed period or not, because the Applicants demanded the payment but the Respondent refused to pay. Therefore, the liability is the issue, then the one about quantum will only be relevant if parties are bickering about what and how much is the remuneration the Employee is entitled to. Therefore, the questions and or lack of averments as suggested by the Respondent mentioned above are incorrect because the Applicants packed the pleadings the way they want their case to be decided. Meaning dealing with the issue that the Court has to decide. So, the attempt by the Applicants to introduce quantification in the replying affifdavit, following wrenching by the Respondent, this Court cannot take such into consideration.

Costs

[23] Costs in civil claim always follows the result. However, this Court has taken into account that the employee is represented by the trade union and no legal practitioner is involved. Therefore, no costs incurred by the trade union.

[24] In the circumstances, the following order is made:

Order:

1. The Respondent is ordered to pay Mr William Kholisile Moyake the remuneration, which he would have been entitled for the period 02 May 2013 to date of reinstatement (in January 2018) together with interest thereon at the prescribed rate calculated from 02 May 2013 to date of payment.

2. No order as to costs is made.

S Mabaso

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicants: B Zwane(Union Official from NUM)

For the Respondent: Ms F E Leppan/Mr Mila

Instructed by : Cliffe Dekker Hofmeyer Inc.

[1] Act 75 of 1997, as amended.

[2] As substituted party, see Substituted application and answering affidavit at para 9.

[3] According to the founding affidavit, it says "in the second part of June 2018."

[4] Later transferred to the Respondent.

[5] 'remuneration' means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and 'remunerate' has a corresponding meaning

[5] 'remuneration' means any payment in money or in kind, or both in money and in

kind, made or owing to any person in return for that person working for any other

person, including the State, and 'remunerate' has a corresponding meaning

[6] Answering affidavit.

[7] [1979] 1 All SA 292 (A) at 635H - 636D

[8] [2008] 4 All SA 225 (SCA)

[9] [2015] 8 BLLR 774 (LAC)

[10] Ibid at para 19.

[11] Ibid at para 24; Cf. paras 114,118,120,121 of Fohlisa’s judgment infra.

[12] 2017 (7) BCLR 851 (CC)

[13] Cf. Coca-Cola Sabco at para 80,112,114,115,118.

[14] “…[172] Upon Hendor putting the second and further applicants back into the positions they had occupied before they

were dismissed on the same terms and conditions of employment as they enjoyed at the time of their dismissal, the contract of

employment of each one of the second and further applicants was restored. The contracts of employment were then deemed to have been in operation for the whole time since 16 April 2007 when Cele AJ handed down his judgment. Since Hendor did not accept the second and further applicants' tender of their services on 23 April 2007, Hendor would be contractually liable for the payment of the remuneration of the second and further applicants for the second period (23 April 2007 to 28 September 2009) in so far as each Applicant would have worked for the whole period had he or she not been prevented by Hendor from performing his or her duties pending the outcome of the application for leave to appeal."

[15] [2019] 8 BLLR 761 (LAC)