IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable Case no: C363/2017

In the matter between:

NATIONAL UNION OF METAL WORKERS OF

SOUTH AFRICA                                                                                              1st Applicant

ZENANI HERBERT                                                                   2nd to Further Applicants And

PLATINUM LEAGUE t/a

PROFAB ENGINEERING cc                                                                  First Respondent JACO VAN BREED                                                                             Second Respondent

VERNA ASIA                                                                                           Third Respondent

Date heard: 13 May 2020 in Chambers

Delivered: By fax on 15 May 2020

JUDGMENT

RABKIN-NAICKER, J

[1]       This application is heard on the papers by agreement between the parties. This is in terms of the Directives of the Judge President pursuant to the Covid 19 Lockdown.

[2]       The application to find the respondents in contempt of Court is opposed by the respondents. For reasons unknown to me, the application was not dealt with as required by Clause 13 of the Practice Manual of the Labour Court. No ex parte order was granted by this Court although same was sought in the Notice of Motion. The application was instead treated as a normal opposed application and enrolled some years after it was filed on 21 November 2017. It appears from the Court file that the applicants requested a set down date on the 4 July 2019.

[3]       The founding affidavit makes the allegation that on the 2 June 2016, the Award under case number MEWC 9610 was certified in terms of section 143(3) of the Labour Relations Act. However, no proof of same is annexed to the founding papers. Given that evidence of such certification is a necessary jurisdictional fact for this Court to be able to hand down a contempt order, the omission is fatal to applicants’ case.

[4]       The opposing affidavit does not answer to specific allegations. It makes no mention of a certification of the Award or receipt of same. Its case is to the effect that it complied with the financial obligations ordered in the Award (which is not disputed) but alleges that on the 4 April 2016 when the employees were supposed to tender their services only some did so. Those that did were told that they could enter into a retrenchment process if they chose. The company did not hear from them again on its version, and considered the matter closed. No replying papers were filed by the applicants.

[5]       The respondent company seeks costs in this matter. I find no exceptional grounds whatsoever to order these. It is not necessary for the Court to consider the submissions made on the law in civil contempt matters. This case stands to be dismissed on the grounds that a case was not made out on the founding papers. I therefore make the following order:

Order

1.      The application is dismissed.

2.      No order as to costs.

H. Rabkin-Naicker

Judge of the Labour Court

Representatives on the papers: Applicant: Numsa

Respondents: Swemmer and Levin