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IN THE LABOUR COURT OF SOUTH AFRICA

SITTING IN DURBAN

OF INTEREST

CASE NO D601/00

DATE HEARD 2003/04/24

DATE DELIVERED 2003/04/24

In the matter between:

CTL GROUP (PTY) LIMITED Applicant

and

G F MEMELA First Respondent

SHERIFF OF THE HIGH COURT,

SANDTON Second Respondent

JUDGMENT ON POINT IN LIMINE DELIVERED BY

THE HONOURABLE MS JUSTICE PILLAY ON 24 APRIL 2003

ON BEHALF OF APPLICANT: ADVOCATE B DA COSTA

INSTRUCTED BY : KERN AND PARTNERS

ON BEHALF OF RESPONDENTS: MR P O JAFTA OF JAFTA AND

CO.

TRANSCRIBER

SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN

JUDGMENT

(ON POINT IN LIMINE)

PILLAY D, J

[1] The employer makes the submission that the employee is not entitled to payment other than that which is set out in the award. In the award back pay due to the employee was calculated in an amount of R25 718, and the arbitrator awarded reinstatement with effect from 15th April 2002.

[2] Ms Da Costa, for the employer, submits that the employee is not entitled to any further payment for the period from the 15th April to the date when this Court made the award an order of Court, or until the applicant is physically reinstated.

[3] She submits that the only remedy available to the employee is to proceed by way of contempt of court. In support of that argument, Ms Da Costa relied on the Zimbabwean decision of Chegutu Municipality v Manyora 1997 18 ILJ 2 323, and Brassey, volume 3, at A8 65, where the meaning of "reinstatement" was discussed.

[4] That case refers to South African case law based on the old Labour Relations Act of 1956, which predates the Constitution of the Republic of South Africa Act No 108 of 1996 and its notion of fair labour practices. The discussion of the meaning of “reinstatement” in that case, I agree with Mr Jafta for the employee, is also distinguishable from the context in which it is used in this case.

[5] At the heart of the matter, the effect of the employer's submission, if it were to be accepted, is to permit an employer who defies an award or order of Court to profit from it. That, as an elementary principle of the common law, cannot be tolerated. As a matter of course, this has been the response of the Labour Court when exercising its powers in terms of section 158(1)(c) of the Labour Relations Act 66 of 1995 (the “LRA’) to make awards orders of this Court and issuing writs therefore.

[6] Orders for the payment for the period between the date of the award or the date on which the award orders reinstatement and the date of the order of the Labour Court have been granted regularly by this Court without debate. It is manifest, for instance, in the judgment of LANDMAN J in Ntombela v Herridge Hire & Haul CC and Another (1999) 20 ILJ 901 (LC), where the learned Judge said that more than a financial penalty should be imposed on an employer who fails to abide by orders of the Court. In that case the Court went on to impose a fine, with the alternative of imprisonment.

[7] Implicit from that judgment is the acceptance that there can be a monetary remedy over and above the contempt remedy that might be available to an employee who is deprived of physical reinstatement in terms of a valid award and order of this Court.

[8] In the circumstances, the submission by the employer is rejected with costs.

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PILLAY D, J

21 June 2003.

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