Red Ant Security and Eviction Services (Pty) Ltd v Raubenheimer and Others (J424/24) [2024] ZALCJHB 476 (25 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case Number: J424/24

In the matter between:

RED ANT SECURITY RELOCATION AND EVICTION SERVICES (PTY) LTD First Applicant FUZILE BALINTULO Second Applicant HERMAN BREEDT Third Applicant and ALEX MUNROE RAUBENHEIMER First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (CCMA) Second Respondent COMMISSIONER LIVHU NENGIVHELA N.O. Third Respondent THE SHERIFF OF THE HIGH COURT JOHANNESBURG Fourth Respondent FIRST NATIONAL BANK Fifth Respondent

Considered in chambers

Delivered: 25 November 2024

(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLII. The date on which the judgment is delivered is deemed to be 25 November 2024.)

JUDGMENT

FORD, AJ

Introduction

[1] On 21 August 2024, I handed down an order, in favour of the applicant in the main application (the first respondent in the leave to appeal application), in the following terms:

1. The respondents are guilty of contempt of court.

2. The respondents are ordered to effect payment of the arbitration award with interest, to the applicant, within 7 (SEVEN) days of this order and to permit the applicant to resume his duties on 1 September 2024;

3. Should the respondents fail to effect the payment of the arbitration award, as set out in prayer 2 above, the sixth respondent is ordered to attach the first respondent’s banking account, held with the seventh respondent, and recover such monies due to the applicant in satisfaction of the award, with interests;

4. In the event that the respondents fail to comply with this order, the directors of the third respondent including but not limited to [FUZILE BALINTULO and HERMAN BREEDT] are each to be sentenced to a period of 30 days’ imprisonment and the Department of Correctional Services is authorised to take them into imprisonment to serve their committal.

5. Prayer 4 of this order is wholly suspended, for a period of 14 [court days] pending the payment and compliance with prayers 2 and 3 of this order.

6. There is no order as to costs.

[2] The applicants (“Red Ants”) lodged an application for leave to appeal, which the first respondent (“Raubenheimer”) opposes.

[3] Raubenheimer’s submissions were filed 3 days late. I have considered the application for condonation, and decided to condone the late filing of the submissions (as prayed for) by the exercise of this court’s discretion.

The grounds of appeal

[4] The Red Ants contend that I erred in concluding that the applicants were in contempt of court. In amplification it states that:

The court a quo erred in only glossing over the requirements of contempt as the test of contempt is one of beyond reasonable doubt.

The court a quo failed to consider the common cause facts between the parties in determining the requirements of contempt. The applicants submits that the requirements for contempt, especially the requirement that it must be mala fide were not met.

The court a quo erred in not following the dicta in Aspen Pharmacare Ltd v CEPPWAWU obo Tabata and Another (PR184/15) (2024) ZALCPE 16 (14 May 2024) whereby it was found that section 145(7) and 145(8) of the LRA, still apply when a review has been deemed archived or withdrawn.

Alternatively, the applicant submits the Labour Appeal court should pronounce and provide clarity on conflicting judgments on the crisp issue of does a revival application suspend operation or execution of an arbitration award. The applicants submit that there is conflicting case law on this point in law.

The court erred in not following dicta in South African Municipal Workers Union and Others v Thaba Chweu Local Municipality and Another whereby the court held that the applicant in contempt proceeding should satisfy the court beyond a reasonable doubt that : (1) there was a refusal to comply with the Order; (2) this refusal was wilful (deliberate); and (3) the deliberate refusal to comply must be mala fide, in other words there must be a complete absence of any kind of bona fide justification for the refusal to comply, even if this justification relied on is ultimately found to be objectively unreasonable or unsustainable). The applicants contend that on the plain reading of the papers of this matter the learned judge erred in coming to such a drastic conclusion of contempt.

The court erred in not making any adverse finding in the conduct of “Raubenheimer”, whereby “Raubenheimer” on his own version attempted to execute writ of execution on four or more occasions. The conduct was improper and mala fide. The correct remedy to satisfy reinstatement is through contempt proceedings.

“Raubenheimer”, followed the correct remedy only because the judgment in case J260/2024 directed him to do so. The relevant judgement is attached hereto as annexure “B”. It seems from the plain reading of the writ of executions that “Raubenheimer” provided to the court a quo, that he was legally represented during this time.

[5] In considering the application before me, I categorise the grounds of appeal as follows:

5.1 failure to consider the requirements for contempt in light of the dicta in South African Municipal Workers Union and Others v Thaba Chweu Local Municipality[1];

5.2 failure to follow the dicta in Aspen Pharmacare Ltd v CEPPWAWU obo Tabata and Another[2];

5.3 clarity on conflicting judgments; and

5.4 failure to make an adverse finding in respect of Raubenheimer’s conduct.

Failure to consider the requirements for contempt

[6] The requirements for contempt are trite, namely:

6.1 an order was granted in favour of a party against an alleged contemnor;

6.2 the alleged contemnor was served with the order or had knowledge of it; and

6.3 the alleged contemnor failed to comply with the order.

[7] When the above elements are established, wilfulness and mala fides are presumed and the alleged contemnor bears an evidentiary burden to establish a reasonable doubt.

[8] From the facts before me it was apparent that a court order was granted in favour of Raubenheimer, the applicants had been served with that order, and the applicants refused to comply with that order. The onus accordingly shifted to the applicants to demonstrate reasonable doubt.

[9] The only defence raised by the applicants was that it instituted a reinstatement application. As previously stated, a reinstatement application is not recognised in the LRA as a basis to stay compliance with a court order.

[10] In the present application, the case that the applicants seem to advance is this. A reinstatement of a review application constitutes bona fide justification for its refusal to comply with a court order, even if the justification relied upon may ultimately be found to be

objectively unreasonable or unsustainable.

[11] I have at least two difficulties with this proposition. Firstly, all a reinstatement application does, is to bring a defective review application to a state of compliance. Even if such a state is achieved, it does not constitute a basis for a party’s failure to comply with an arbitration award. A review application does not stay a court order or an arbitration award. Secondly, if it is so that reinstatement applications have the effect of suspending the enforcement of an arbitration award or a court order, and given the inordinately large number of cases before this court dealing with contempt proceedings, all a recalcitrant party would need to do is file an application to reinstate a review, bringing an end to the contempt proceedings and its duty to comply. If such a practice is to be allowed, it will visit manifest injustice on employees seeking compliance with arbitration awards and court orders.

[12] The reinstatement application does not discharge a party from its duty to comply with a court order or an arbitration award.

[13] In the circumstances, I cannot see how the conclusions I arrived at, offends the dicta in Samwu.

Failure to follow the dicta in Aspen Pharmacare

[14] The applicants contend that I failed to consider the dicta in Aspen Pharmacare Ltd v CEPPWAWU obo Tabata and Another[3] wherein the court found that section 145(7) and 145(8) of the LRA, still apply when a review has been deemed archived or withdrawn.

[15] It is perhaps useful, in dealing with the cited authority, to first consider what the status, of a review application which is deemed withdrawn, is. For present purposes reference to “deemed withdrawn” and “archived”, is accorded the same meaning.

[16] The erstwhile Practice Manual provided in summary on this issue that:

16.1 when the time period for filing a record expires, a review application is deemed to have been “withdrawn” in terms of paragraph 11.2.3 of the Practice Manual;

16.2 At the instance where all the papers in a review application are not filed within 12 months then the review application “will be archived and be regarded as lapsed” in terms of paragraph 11.2.7; and

16.3 If an applicant fails to take any steps for a period of six months, then the Registrar will “archive” the file and “it shall have the same consequences as to the further conduct by any respondent party as to the matter having been dismissed”.

[17] The above provisions have largely been retained in the new Rules of this court.

[18] In the present matter, the applicants failed to pursue their review application diligently. It failed to deliver the arbitration record within the sixty (60) day period contemplated in paragraph 11.2 and 11.3 of the Practice Manual, rendering the review application withdrawn.

[19] In E Tradex (Pty) Ltd t/a Global Trade Solution v Finch & Others[4], Sutherland JA held as follows:

The use of the term ‘archived’ is peculiar to the Labour Court Practice Manual. In the general civil courts, for example, the failure to prosecute an appeal timeously results in the appeal having lapsed. The effect of that is that the case shall not be dealt with by a court unless an application to reinstate the appeal is made. It is, in our view, plain that the archiving of a Labour Court case was intended to have the identical effect; indeed, clause 16.3 goes even further, to equate the consequence of an archiving of a case to be understood to mean the application is ‘dismissed’, albeit that a procedure exists to reinstate the case on good cause shown.

[20] In Randburg Towers v Masilo; In re Masilo v CCMA and Others[5] (Randburg Towers) this court as per Van Niekerk J, as he then was, held that the decision of the LAC[6], dealing with the issue pertaining to the need to file a Rule 11 application in circumstances where the review is deemed withdrawn, ought to, more appropriately, be considered in the following context:

‘To the extent that the applicant submits that the court is empowered to entertain an application to dismiss, that may be so in respect of review applications where an applicant has failed, generally speaking, to prosecute the application with due diligence or where one or more factors, other than one that has the consequence of a deemed withdrawal of the review application, is at play. I do not understand the decision of the Labour Appeal Court in Macsteel Trading Wadeville v François van der Merwe & others (2019) 40 ILJ 798 (LAC) to entitle an applicant to file a Rule 11 application regardless of the state of the review application itself. That decision concerned a review application which in terms of the practice manual had been archived and regarded as lapsed. The

reference to the opportunity to file a separate Rule 11 application made in paragraph 28 of the judgment must necessarily be understood

in that context. In the present instance, the applicant in the review application is deemed to have withdrawn the application. It is not an application that has lapsed, or which has been archived. Simply put, there is no longer a review application that serves before the court. In those circumstances, in my view, the applicant in the present application is entitled to a declaratory order that gives effect to the consequences visited by clause 11.2.3 on an applicant that fails to comply with the time limits within which to file a record of proceedings sought to be reviewed.’

[21] As a court of equal standing with the court in Aspen Pharmacare, I align myself fully with the decision of the LAC in E Tradex. An archived review application is as dead as a doornail.

[22] Aspen Pharmacare, on the facts before me, offers little comfort to the applicants as the decision therein dealt with a security bond issued in compliance

with the LRA. In the present instance, apart from the difference I hold with the dicta espoused in Aspen Pharmacare, there has not been compliance by the applicants with section 145(7) and (8) of the LRA.

Clarity on conflicting judgments

[23] The issue of clarity which the applicants seem to advocate for, does not absolve the applicants from a duty to comply with the court order. Its failure to do so, on their version, is the reinstatement application. The supposed conflicting judgments in E Tradex and MacSteel, has to do with the status of the proceedings. In the present case, the issue concerns the compliance with a court order, to give effect to an arbitration award. There is no justification for the applicants not to comply.

Failure to make an adverse finding in respect of Raubenheimer’s conduct

[24] The applicants sought for me to make an adverse finding in respect of Raubenheimer’s conduct. Apart from the fact that the complaint against Raubenheimer, appears to be a new issue, it was not placed before me to make a finding in respect thereof at the contempt application. The matter before me, which remains to be the case, is the applicants’ wilful disregard and non-compliance of a court order.

The law

[25] In terms of s 17(1)(a) of the Superior Courts Act 10 of 2013, leave to appeal "may only be given" when:- the appeal would have a reasonable prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration."

[26] Touching on the question whether leave to appeal ought to be granted, the court in MEC Health, Eastern Cape v Mkhitha[7], held that:

"[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there is truly a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success, or there is some other compelling reason why it should be heard.

[17] An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable or realistic chance on appeal. A mere possibility of success, an arguable case or one that is not hopeless is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal." (Emphasis added).

[27] In Smith v S[8] the Supreme Court of Appeal, also had occasion to consider what "reasonable prospects of success" in section 17(1)(a)(i) meant:

"What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed therefore the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound. rational basis for the conclusion that there are prospects of success on appeal."

[28] The full court in Fair Trade Tobacco Association v President of the Republic of South Africa and Others[9] held that:

''As such, in considering the application for leave to appeal, it is crucial for this Court to remain cognizant of the higher threshold that needs to be met before leave to appeal may be granted. There must exist more than just a mere possibility that another court, the SCA in this instance, will, not might find differently on both the facts and the law. It is against this background that we consider the most pivotal grounds of appeal."

[29] I have considered, the application for leave to appeal, the parties’ respective submissions and the authorities quoted therein. I am of the view that the applicants do not have any prospects of success on appeal. I find no reason why the Labour Appeal Court ought to be burdened with a matter of this nature.

[30] I accordingly make the following order:

Order

1. The application for leave to appeal is refused.

2. I make no order as to costs.

Bart Ford

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicants: Adv. M. Pienaar Instructed by: Pranav Jaggan Attorneys For the first respondent: Mr. Goldberg (Goldberg Attorneys)

[1] SAMWU obo Members v Thaba Chweu Local Municipality and Another (J2106/2013) [2015] ZALCJHB 31 (11 February 2015)

[2] Aspen Pharmacare Ltd v CEPPWAWU obo Tabata and Another (2024) 45 ILJ 2024 (LC) (14 May 2024)

[3] (2024) 45 ILJ 2024 (LC) (14 May 2024)

[4] (CA 12/2021) [2022] ZALAC 106 para 10

[5] (JR 1758/2016) [2021] ZALCJHB 10 (19 February 2021) at para 5.

[6] Macsteel Trading Wadeville v François van der Merwe & others (2019) 40 ILJ 798 (LAC)

[7] 2016 JDR 2214 (SCA)

[8] 2012 (1) SACR 567 (SCA) at para 7

[9] 2020 JDR 1435 (GP) at [6]