MEC and Department head fined for contempt of court

In SAUO obo Moller v MEC for Department of Education: North-West Province an arbitrator directed the respondents to place the applicant on the correct post level and to pay her backpay with interest.

The award was certified in terms of s143 (1) read with s143 (3) of LRA. A certified award is deemed to be an order of the Labour Court.

The respondents didn’t comply with this award for the best part of a year, and when they finally paid the applicant her backpay it was paid without interest as ordered.

The court held that: “Where a certified award orders something other than the payment of money, the award may be enforced by way of contempt proceedings in the Labour Court. Inasmuch as the certified award is deemed to be an order of the Labour Court, the LRA requires that it be accorded due respect.”

The court had to determine whether the failure to pay the interest amounted to contempt of court.  It found the answer in a SCA judgment, Fakie NO v CCII Systems (Pty) Ltd, which held that “It is a crime unlawfully and intentionally to disobey a court order”. Such disobedience constitutes contempt of court.

Relying on this principle the court concluded that the MEC and the former acting head of the Department were in contempt of court and fined them jointly and severally R100 000.00.

However, because the Constitutional Court said in Pheko v Ekurhuleni Metropolitan Municipality that “contempt in the context of civil proceedings is coercive, and not punitive, in character”, the MEC and the former head of Department were given 60 days to comply fully with the arbitration award. If they failed to do so, the fine would become due and payable.

This is not the first judgment where the employer was found guilty of contempt of court and given a suspended fine and thus an opportunity to make good the fact that they ignored a certified arbitration award. Last year the owner of Super SPAR Polofields was given a suspended fine of R1 million and only 30 days to make good the error of his ways when he was found guilty of contempt of court after he had disregarded a certified arbitration award.

These judgments show that employers who ignore certified arbitration awards risk large chunks of their bank balances!