Tsoane v Precious Garment (Pty) Ltd and Another (LC 28 of 8) [2010] LSLC 4 (26 March 2010)

IN THE LABOUR COURT OF LESOTHO LC/28/08 HELD AT MASERU IN THE MATTER BETWEEN SELLO TSOANE APPLICANT AND PRECIOUS GARMENT (PTY) LTD JOHN LEU 1ST RESPONDENT 2ND RESPONDENT JUDGMENT Date: 02/03/10 Contempt of court – Respondents willfully and malafide refusing to comply and/or be bound by order of the DDPR to reinstate the applicant – Section 228E(5) – DDPR award final and binding and enforceable as if it is an order of the Labour Court – Respondents found guilty of contempt and sentenced – Court emphasized that penalty imposed is not a substitute for compliance – Non-compliance with court order is a continuing offence as such fine will be effective after every 14 days if there is still no compliance. 1. 2. The applicant filed the present application out of the Registry of this court on the 31st October 2008. It was served on the respondents on the 3rd November 2008. This is evidenced by the official rubber stamp of the 1st respondent endorsed at the bottom of the first page of the Notice of Application. The application has been made pursuant to section 24(J) of the Labour Code (Amendment) Act 2000 (the Act) which provides that the Labour Court has power: “to commit and punish for contempt any person who disobeys or unlawfully refuses to carry out or to be bound by an order made against him or her by the court under the Code.” The applicant prayed for an order: “committing and punishing for contempt the respondents for disobeying or unlawfully refusing to carry out or to be bound by an order to reinstate the applicant to his position as Transport Manager in terms of arbitration award No. A0523/07” It is common cause that the applicant was employed by the 1st respondent on the 4th August 2003 as Transport Manager. He was dismissed on the 28th May 2007 for alleged gross negligence and gross dishonesty. He referred a dispute of unfair dismissal to the Directorate of Disputes Prevention and Resolution (DDPR). It was arbitrated and an award ordering the reinstatement of the applicant to his job without loss of remuneration, seniority or other entitlements or benefits was handed down on the 21st August 2007. The award directed that the applicant be reinstated within 30 days of the receipt of the award by the respondents. Applicant has annexed a DDPR note as proof that the respondents were served with the award on the 6th September 2007. Applicant averred in his Founding Affidavit that he reported for duty on the 18th September 2007. He averred further that the respondents through their Personnel Manager Mr. Ralengana Tsepe refused to reinstate him. He submitted that in the circumstances “the respondents have willfully disobeyed and/or refused to carry out or to be bound by the said award in contempt of this Honourable Court.” Only the 1st respondent has filed an Opposing Affidavit through the Personnel Manager Tsepe Tsepe, who deposed in paragraph 1 that he is authorized to depose to the affidavit on behalf of the 1st respondent. However, in paragraph 3 of the Opposing Affidavit, Tsepe sought to answer for both the 1st and 2dnd respondents without alleging authorization to answer on behalf of the 2nd respondent as well. That is clearly irregular 3. 4. 5. 6. 7. 8. and improper. As things stand, the 2nd respondent has not opposed this contempt application, as such he has failed to refute the allegation that he has willfully disobeyed or refused to carry out the order of the court to reinstate the applicant. Tsepe Tsepe deposed that the 1st respondent could not be in willful and malafide disobedience or refusal to abide by the arbitration award in as much as he, as the Personnel Manager instructed the former Assistant Secretary of Lesotho Textile Exporters Association, one Mr. Letsie to apply for review of the said arbitration award. He averred that he was giving the instructions on behalf of the 1st respondent. He contended that neither the 1st nor the 2nd respondent or anybody else whomsoever on behalf of the 1st respondent could have known that the said instructions had not been carried out. Ms Nku on behalf of the applicant contended that she disputes the instructions allegedly given to Mr. Letsie in as much as Mr. Letsie has not filed a supporting affidavit to confirm the allegations of Mr. Tsepe. She brought to the attention of the court that the same Mr. Letsie is the Commissioner of Oaths who swore deponent to the Opposing Affidavit. We are in full agreement with Ms Nku’s submission that for Mr. Tsepe’s averrement to carry weight, it ought to have been supported by a supporting affidavit of Mr. Letsie, giving reasons why, if at all the allegations are true he did not act on the instructions. This is made more necessary by the fact that deponent has ready access to Mr. Letsie who has even helped him depose to the opposing affidavit. Ms Nku contended further that in any event the respondents had the responsibility to follow up their instructions in order to make sure that the application for review has indeed been filed. We once again agree with this submission. Respondent’s irresponsibility has continued even after receipt of the contempt application papers. One would have expected that they would then follow up their instructions and ensure that the review is filed when they saw the papers. But even as this matter was heard there was still no review application filed, two years after the award was handed down. 4 9. The respondents are clearly not taking the award seriously and are contemptuously and malafide refusing to abide by it. The excuse advanced on behalf of the 1st respondent simply comes nowhere near disproving willful disobedience of the award and indeed refusal to comply with it. As we observed, the 2nd respondent has not even bothered to oppose the serious allegations against him that as the Managing Director of the 1st respondent he is willfully disobeying an order to reinstate the applicant in his job as ordered by the DDPR. 10. Section 228E(5) of the act provides that “an award issued by arbitrator shall be final and binding and shall be enforceable as if it was an order of the Labour Court.” It follows that the respondents are by law bound to abide the order of the arbitrator that they should reinstate the applicant. Their failure to do so as has happened in casu constitutes contempt of the lawful order of the DDPR which by operation of the law is enforceable as an order of this court, hence the applicant’s referral of the contempt application to this court. 11. Section 24(J) of the act empowers this court: “to commit and punish for contempt any person who disobeys or unlawfully refuses to carry out or to be bound by an order made against him or her by the court under the Code.” An order of court that a person may be punished for failing to obey, includes an order of the arbitrator in terms of section 228E(5) of the Act. In terms of the law “person” refers to both a natural person and a legal personality like the 1st respondent. 12. This court has dealt with similar cases of willful and malafide refusal to be bound by the orders of the court. (See Tiisetso Sarele .v. Jun Wei Wang & Another LC15/04). The Labour Appeal Court also dealt with a similar case in Blandina Lisene .v. Lerotholi Polytechnic LAC/CIV/05/09. In both these cases the court imposed a fine as a mark of displeasure at the refusal by a judgment debtor to abide with the order of the court. 5 13. In casu there is no denial that the respondents are aware of the order to reinstate the applicant. Their only excuse is that they were unaware that their lawyer had not filed an application for the review of the award in accordance with their instructions. This is clearly a lame excuse for the reasons that we have given. Even assuming it was a genuine excuse, by now a review application would have been filed. We were not advised that any has since been filed. 14. On the contrary the respondents through their Personnel manager contend themselves with a broad statement in paragraph 4 of the Opposing Affidavit, to the effect that the respondents “have now instructed the present legal representative of the 1st respondent to apply for review of the said arbitration award No. A0523/07 and for condonation of late filing thereof.” The truth of the matter is that the respondents are not represented by a different firm of attorneys. It is the same office with only the practitioner they are seeking to hide in his shadow out of that office. To make matters worse even at the hearing hereof the representative could not say that he has since filed the review. Clearly, respondents have no respect of the orders of the court. They are therefore both found guilty of contempt. 15. Deliberate and malafide disobedience of an order of court is a serious offence as it undermines the administration of justice and brings it into disrepute. It must therefore be punished with a view to deter recurrence of similar behaviour in the future. It must be stressed that imposition of a fine is not a substitute for the due compliance with the order of the court. It is only a mark of displeasure at the abhorrent conduct of a litigant. Accordingly, the following fines are imposed for the contempt the respondents have committed. a) The 1st respondent shall pay M10,000-00 fine into the Public Purse. b) The 2nd respondent shall pay M5,000-00 fine or be imprisoned for five (5) months. c) The fines shall be paid into the Government account at 6 Labour Department within 14 days of the service of this order on the respondents. d) Failure to comply with an order of court is a continuing offence. Accordingly, the respondents shall be liable for further fines of M10,000-00 and M5,000-00 after every fourteen (14) days if the order of reinstatement would still not be complied with. THUS DONE AT MASERU THIS 26TH DAY OF MARCH, 2010 L. A. LETHOBANE PRESIDENT J. M. TAU MEMBER M. MAKHETHA MEMBER I CONCUR I CONCUR FOR APPLICANT: FOR RESPONDENTS: ADVOCATE NKU MR. MOHALEROE 6