Mbano and Another v Moodyblue Trade Invest 14 (Pty) and Others (JA58/2023) [2024] ZALAC 68 (20 January 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Labour Appeal Court South Africa: Labour Appeal Court You are here: SAFLII >> Databases >> South Africa: Labour Appeal Court >> 2024 >> [2024] ZALAC 68 | Noteup | LawCite sino index ## Mbano and Another v Moodyblue Trade Invest 14 (Pty) and Others (JA58/2023) [2024] ZALAC 68 (20 January 2024) Mbano and Another v Moodyblue Trade Invest 14 (Pty) and Others (JA58/2023) [2024] ZALAC 68 (20 January 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALAC/Data/2024_68.html sino date 20 January 2024 LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG Not Reportable Case no: JA58/2023 In the matter between: MANDLA MBANO First Appellant TONGAYI CHEKENYU Second Appellant and MOODYBLUE TRADE INVEST 14 (PTY) LTD                             First Respondent NIEL DAMARAS Second Respondent DIANA SMUTS Third Respondent Heard: 21 November 2024 Delivered:    20 January 2024 Coram:        Savage ADJP, Nkutha-Nkontwana JA and Mooki AJA JUDGMENT SAVAGE, ADJP Introduction [1] This appeal, with the leave of the Labour Court, is against the judgment and order of the Labour Court which dismissed the appellants’ contempt application brought against the respondents. In that application, the appellants sought that the second respondent, Mr Neil Damaras, the Operations Manager of the first respondent, Moodyblue Trade Invest 14 (Pty) Ltd (Moodyblue), and the third respondent, Ms Diana Smuts, Moodyblue’s Accountant, be ordered to appear in the Labour Court to show cause why they should not be found guilty of contempt of court for failing to comply with the certified arbitration award of the Commission for Conciliation, Mediation and Arbitration (CCMA) issued in the appellant’s favour on 11 November 2018. In addition, the appellants sought that Moodyblue and the second and third respondents explain their conduct by affidavit or on the date of hearing, failing which they would be found guilty of contempt of court and the second and third respondents be incarcerated or fined for a period or an amount that the Court deemed appropriate. [2] The appellants, Mr Mandla Mbano and Mr Tongayi Chekenyu, were employed by Moodyblue as truck drivers. Both were members of the South Africa Transport and Allied Workers Union (SATAWU). They were dismissed by Moodyblue for alleged misconduct related to intimidating and coercing co-workers to join a trade union. Following their dismissals, the appellants referred an unfair dismissal dispute to the CCMA. After the conciliation of the dispute was unsuccessful, the matter was referred to arbitration. The arbitrator found that the dismissal of the appellants was both procedurally and substantially unfair. Moodyblue was ordered to reinstate both appellants on the same terms and conditions of employment that existed prior to their dismissal, with the appellants ordered to report for duty at Moodyblue’s premises on 20 November 2018. In addition, Moodyblue was ordered to pay the appellants R49 000 and R47 000 in backpay respectively by no later than 20 November 2018. [3] In their founding affidavit filed in support of the contempt application, the appellants stated that on 20 November 2018, they had reported for duty at Moodyblue’s premises and had spoken to the second respondent. He informed them that Moodyblue did not have any work for them and advised the appellants that Moodyblue had applied for the rescission of the award. On 25 January 2019, Moodyblue’s rescission application was dismissed by the CCMA. Both appellants stated that they therefore reported for duty on 6 February 2019. On that date, the second respondent again refused to reinstate them. . [4] On 28 February 2019, the appellants had the arbitration award certified in terms of section 143 of the Labour Relations Act [1] (LRA). On 18 March 2019, the Sheriff served the certified award on the respondents, with the amount awarded reflected as due and payable to both appellants. The appellants stated that they were thereafter not reinstated by Moodyblue. On 27 March 2019, they again reported for duty at Moodyblue’s premises but were told by the third respondent that they would not be reinstated and that they should report for duty at RP Africa Fleet Services (RP Africa), an outsourcing company. On 25 April 2019, the appellants instituted contempt proceedings against the respondents in the Labour Court. [5] In opposing the contempt application the second respondent stated that the appellants were paid in terms of the award, with proof of payment made to each appellant on 18 March 2019 attached to the respondents’ opposing affidavit. The second respondent stated further that at a meeting on 11 February 2019, the appellants were informed that Moodyblue had transferred its transport operations and drivers to Hermis Transport (Hermis) as a going concern in terms of section 197 of the LRA, which included the appellants’ positions. He stated that he had arranged with Hermis Transport for the reinstatement of the appellants and that, as with all drivers, their employment would be managed by RP Africa on the same terms and conditions as their employment with Moodyblue. The appellants were therefore instructed to report to RP Africa on 12 February 2019 at 08h00, but failed to arrive. A final ultimatum was issued to the appellants on 15 February 2019 that they report to RP Africa on 18 February 2019, but again the appellants failed to report for duty. On 19 February 2019, the appellants were notified to attend a disciplinary hearing on 21 February 2019 for absconding and refusing to abide by a lawful instruction. They failed to attend the hearing and were summarily dismissed from their employment. Judgment of the Labour Court [6] The Labour Court dismissed the contempt application with no order as to costs. It found that the respondents were not in contempt of court given that their transport operations had been transferred to Hermis, which had its registered offices in the Democratic Republic of Congo, with RP Africa the outsourcing agent for Hermis in South Africa. Since in terms of the certified arbitration award the respondents were ordered to reinstate the appellants at Moodyblue, not into Hermis, the Labour Court found that they had not acted mala fides in failing to comply with the certified award. On appeal [7] The appellants accepted on appeal that on 15 February 2019, they were informed that Moodyblue was closing down and that its employees had been transferred to Hermis, with RP Africa serving as the outsourcing agent for Hermis. They also accepted that they were instructed to report to RP Africa but had not done so and were thereafter issued with a final demand to return to work. They disputed however that the business of Moodyblue had been transferred as a going concern, or that their contracts of employment had been transferred to Hermis when they were requested to attend a disciplinary hearing with Moodyblue. They contended that Moodyblue uses different names to hide its true identity from the appellants, that the appeal should be granted and the judgment and order of the Labour Court set aside and substituted with an order that the application is granted with costs. Discussion [8] Contempt proceedings are directed at imposing a penalty on a party to vindicate the court’s honour , following the disregard of the court’s previous order, as well as to compel performance with such previous order. [2] The purpose of such proceedings is to allow the court to guard the probity of its orders so as to ensure that civil disobedience is not countenanced and the Court’s dignity, repute and authority is not deliberately violated. [3] In Secretary of the Judicial Commission of Enquiry into allegations of State Capture v Zuma [4] , with reference to SA Fakie NO v CCII Systems (Pty) Ltd [5] and Pheko and Others v Ekurhuleni City [6] , it was reiterated that an applicant who alleges contempt must establish that (a) an order was granted against the alleged contemnor; (b) the alleged contemnor was served with the order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order. Once these elements are established, wilfulness and mala fides are presumed and the respondent bears an evidentiary burden to establish the existence of a reasonable doubt. If the respondent fails to discharge this burden, contempt will have been established. [9] There is no dispute in this matter that an order of Court was granted of which the respondents had knowledge. In issue is whether they failed to comply with the order. As was made clear in Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [7] , the meaning of “reinstatement” is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions that prevailed at the time of the dismissal of the employee. The effect is to restore the employment relationship that existed prior to dismissal. [10] In opposing the contempt application the respondents stated that Moodyblue had transferred its operations as a going concern to Hermis under the provisions of section 197 and that RP Africa served as its outsourcing agent. The appellants did not dispute this. The Labour Court did not err, on the basis of the facts placed before it and the application of the rule set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Limited [8] , in accepting that such transfer had taken place. This was so in circumstances in which the appellants had failed to include important facts in their founding affidavit before the Labour Court. These included that Moodyblue had paid them the back pay ordered; that they had been informed on 11 February 2019 that Moodyblue had transferred its transport operations and drivers to Hermis as a going concern in terms of section 197, which included their positions; and that their employment would be managed by RP Africa, on the same terms and conditions as their employment with Moodyblue. The appellants also failed to state that they had been instructed to report at RP Africa on 12 February 2019 at 08h00 but failed to arrive, and that a final ultimatum was issued to them on 15 February 2019 but again they failed to report for duty. [11] It follows that the Labour Court did not err in finding that it had not been shown that the respondents had failed to comply with the order of Court made. The facts averred in the appellants’ affidavit, which were admitted by the respondents, together with the facts alleged by the respondents, did not justify the granting of the contempt order sought. It cannot be said that the respondents did not raise a real, genuine or bona fide dispute to the facts advanced by the appellants. [12] The facts show that the respondents had sought to restore the employment relationship that existed prior to dismissal and place the appellants back into the same job or position occupied before the dismissal, on the same terms and conditions that prevailed at the time of the dismissal of the employee, but following the section 197 transfer with the new employer. Since the appellants failed to comply with the instruction to report to RP Africa to enable such reinstatement to occur, the Labour Court did not err in finding that the respondents had not failed to comply with of its order. [13] For these reasons, t he appeal cannot therefore succeed. Given that the matter was not opposed, there is no reason why an order of costs should follow. [14] The following order is therefore made: Order 1. The appeal is dismissed with no order of costs. SAVAGE ADJP Nkutha-Nkontwana JA and Mooki AJA concur. APPEARANCES: FOR THE APPELLANTS:                       Mr Tooka A Mafenya Attorneys FOR THE RESPONDENTS:                  No appearance [1] Act 66 of 1995, as amended. [2] See: Pheko and Others v Ekurhuleni City [2015] ZACC 10 ; 2015 (5) SA 600 (CC) ( Pheko II) at para 28. [3] SA Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA). [4] Secretary of the Judicial Commission of Enquiry into allegations of State Capture v Zuma and others [2021] ZACC 18; 2021 (5) SA 327 (CC). [5] Supra fn 3. [6] Supra fn 2. [7] [2008] ZACC 16 ; 2009 (1) SA 390 (CC) at para 36. [8] [1984] ZASCA 51 ; 1984 (3) SA 623 (A) at 634E-G. sino noindex make_database footer start