NUMSA obo Nhlabathi v Cabin Steel (Pty) Ltd and Another (J529/2024) [2024] ZALCJHB 537 (8 October 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J529/2024

In the matter between:

NUMSA obo ANDREW NHLABATHI

Applicant

and

CABIN STEEL (PTY) LTD

First Respondent

NEVILLE WILSON

Second Respondent

Heard: 8 October 2024

Delivered: 8 October 2024

EX TEMPORE JUDGMENT

PHEHANE, J

Introduction

[1] This is the return date in contempt of court proceedings instituted by the applicant against the respondents.

[2] A rule nisi was issued on 1 August 2024, inter alia, calling upon the respondents to show cause on the return date, as to why they should not be found guilty of contempt of court for failing to comply with the arbitration award dated 28 November 2023, certified by the Commission for Conciliation, Mediation and Arbitration (CCMA) on 9 April 2024 in terms of section 143 of the Labour Relations Act[1] (LRA). The application is opposed by the respondents as set out below.

[3] The arbitration award was issued under the auspices of the Metal and Engineering Industry Bargaining Council (MEIBC), in which award, the Commissioner found the dismissal by the applicant member from the employ of the first respondent was both procedurally and substantively unfair. In the circumstances, the Commissioner ordered the first respondent to reinstate the applicant member with back pay.

Background and chronology

[4] A useful chronology of the sequence of the main events relevant to this matter has been filed by the respondents and appears from the explanatory affidavit filed by the respondents in compliance with the rule nisi. There is no further affidavit filed by the applicant contesting the allegations as contained in the explanatory affidavit.

[5] It is necessary to set out this chronology. It follows hereunder.

[6] On 6 December 2023, the applicant became aware of the arbitration award.

[7] On 20 December 2023, the first respondent launched an application at the MEIBC to rescind or vary the arbitration award.

[8] On 15 January 2024, the applicant member reported for duty at the premises of the first respondent but was turned away.

[9] The applicant union (NUMSA) opposed the rescission application and filed its answering affidavit on 23 January 2024. As such opposition was filed out of time, it was accompanied by a condonation application for its late filing.

[10] Although the rescission application was still pending at the MEIBC, on 9 April 2024, the arbitration award was certified by the CCMA.

[11] The respondents contend that the application to certify the arbitration award was not served on them and they were thus unaware that the arbitration award was certified. The respondents accordingly contend that the Court order that is a subject matter of this dispute was at no point served upon them and that on this basis alone, this application should fail.

[12] In a letter dated 7 May 2024, NUMSA informed the respondents that the Applicant would return to work on 13 May 2024.

[13] In a letter of response dated 10 May 2024, the first respondent stated that the applicant member would not be permitted to return to work until the litigation in the dispute is exhausted. In this regard, the respondents explain that the litigation referred to was the rescission application that was pending at the MEIBC at that point in time.

[14] Notwithstanding, the applicant proceeded to launch an application for contempt of Court in this Court on 18 June 2024.

[15] On 1 August 2024, the rule nisi was issued as aforesaid.

[16] The rule nisi and the contempt of Court application were served on the first respondent on 19 August 2024. The respondents lament that they were constrained to file their explanatory affidavit at extremely short notice before the return date.

[17] The respondents further contend that the applicant has failed to comply with orders 4 and 5 of the rule nisi, which provide that the applicant is to serve the rule nisi personally on the second respondent and must file proof of service of the rule nisi on the respondents 10 days before the hearing date. This was not done.

[18] The first respondent made numerous enquiries at the MEIBC on the outcome of the rescission application. The outcome was received by the first respondent on 28 August 2024, where the MEIBC in a ruling dated 16 February 2024, ruled that it lacked jurisdiction to determine the rescission application and recorded that the first respondent may pursue a review application.

[19] The second respondent has since launched a review application in this Court under case number JR1532/24 and filed security as contemplated in section 145 (7) and (8) of the LRA. It is not disputed that the respondents have filed a bond of security. Mr. Manasoe, the applicant’s legal representative insists however, that no review application was served on it. These were submissions made from the Bar by Mr. Manasoe, as no replying affidavit was filed.

Opposition and evaluation

[20] The essence of the opposition is that the certified arbitration award was not served on the respondents, therefore, it cannot be said that they are in wilful non-compliance with the Court order. They were not aware of the certification of the arbitration award nor the existence of the certified award and only became aware of its existence when this contempt of Court application was served on them. On this basis alone, the respondents contend the application must fail. I agree. Mr. Manasoe concedes that the certified arbitration award was not served on the respondents and further concedes that no averment is made in the founding affidavit that the certified award was served on the respondents.

[21] To succeed in contempt of court applications, the applicant must first prove beyond a reasonable doubt, i) the order; ii) service thereof; iii) wilful non-compliance; iv) and mala fides by the respondent, after which, the evidential burden shifts to the respondent relating to wilfulness and mala fides.[2]

[22] In the circumstances, the contempt of court application does not emerge from the starting blocks and is doomed.

[23] The respondents further aver that the applicant failed to disclose to this Court in its application that the first respondent had launched an application to rescind the arbitration award. The respondents accordingly contend that this is a material

non-disclosure. I agree

[24] It is a settled principle in our law that in ex parte applications, the applicant is duty-bound to make a full disclosure of all material facts which might influence a Court in coming to a decision and the withholding or suppression of material facts entitles the Court to set aside the order.[3]

[25] In the present matter, the fact that the arbitration award was pending a rescission application, which rescission application was launched before the arbitration award was certified and before the contempt of court proceedings were brought, is a material fact that ought to have been brought to the attention of this Court, as this Court would in all probability, had it been aware of this fact, not issued the rule nisi.

[26] This is yet another ground upon which this application ought to be dismissed.

[27] In view of the application to review and set aside the arbitration award, the contempt of court application cannot succeed.

[28] This application falls to be dismissed for the following three reasons:

30.1 the non-disclosure of material facts as aforesaid;

30.2 the applicant having failed to serve the certified arbitration award on the respondents; and

30.3 the review application to review and set aside the arbitration award.

Costs

[29] The respondents seek a costs order against the applicant due to the manner in which the applicant has conducted itself in these proceedings.

[30] Section 162(2) of the LRA provides that in deciding whether or not to order the payment of costs, this Court may take into account the conduct of the parties in proceeding with or defending the matter before Court and during the proceedings.

[31] I have considered the conduct of the applicant in launching these proceedings, well aware that the first respondent had instituted a rescission application which it opposed and which was pending at the time. I have also taken into consideration the failure of the applicant to contest the allegations by the respondents as contained in the explanatory and supplementary affidavit by the respondents. As such, the version by the respondents stands. Thus, the conduct of the applicant in failing to serve the certified award on the respondents yet approaching this Court stating that the respondents are in contempt of Court, which is not the case, and in failing to place material facts before this Court, warrants an order for the payment of costs.

[32] Mr. Manasoe submits that NUMSA should not be ordered to pay the costs, it is the respondents who dragged their feet in challenging the arbitration award. He further submits that no costs order should be made against NUMSA, as there is a relationship between NUMSA and the first respondent. I have considered the relationship between the parties and the concessions that the applicant was aware that the respondents were challenging the arbitration award, yet, persisted with this application. NUMSA at all material times, represented the applicant member, Mr. Nhlabathi. I exercise my discretion to make an order for the payment of costs for the reasons set out above in respect of the conduct of the applicant party in these proceedings.

[33] In the premises, the following order is made:

Order

1. The rule nisi issued on 1 August 2024 is discharged.

2. The applicant union, NUMSA, is to pay the costs.

M. T. M. Phehane

Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] See: Fakie NO v CCI Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA); Readam SA (Pty) Ltd v BSB International Link CC and Others 2017 (5) SA 184 (GJ).

[3] See: Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs and a related matter [2019] ZASCA 1; [2019] 2 All SA 1 (SCA).