Daniel Kitimi Lekganyane v Commission for Conciliation Mediation and Arbitration and Road Accident Fund

The applicant was employed by the Road Accident Fund (RAF) from 1 July 2008 and was dismissed for misconduct in November 2015. His dismissal was upheld by the CCMA after an arbitration hearing. The applicant successfully reviewed and set aside the award, and on 12 February 2019, Gush J ordered that the matter be referred back to the CCMA to be arbitrated de novo before a different arbitrator. The matter was remitted to the CCMA and enrolled for arbitration on 23 April 2019 but was postponed by agreement to 23 May 2019 on the basis that the RAF had filed an application to rescind the court order. On 23 May 2019, the RAF sought a further postponement, and the presiding commissioner stayed the matter sine die pending the outcome of the rescission application. The matter was again enrolled for 18 July 2019, but the commissioner ruled that the arbitration could not proceed while the rescission application remained outstanding. The applicant then brought an urgent application to hold the CCMA in contempt of court for failing to execute the order of 12 February 2019.

• Whether the CCMA was in contempt of court for postponing the de novo arbitration hearing pending the outcome of a rescission application
• Whether the applicant's urgent application was properly constituted and met the requirements for contempt proceedings
• Whether the application was urgent
• Whether costs should be awarded on a punitive scale

The application was struck from the roll for lack of urgency, with costs awarded against the applicant on the scale as between attorney and client (punitive costs).

An arbitrator's decision to postpone a de novo arbitration hearing pending the determination of a rescission application directed at the court order remitting the matter does not constitute contempt of that court order, where the matter remains remitted to the CCMA and arbitration proceedings remain pending. Contempt applications must comply with formal requirements, including proper formulation of allegations of wilful and mala fide non-compliance, use of prescribed forms, and joinder of responsible persons. An applicant who has alternative remedies available (such as review under s 158(1)(g) of the LRA) and who fails to establish urgency cannot succeed in an urgent application. Costs on a punitive scale may be awarded in frivolous and vexatious applications in accordance with s 162 of the LRA where the requirements of law and fairness so dictate.

Van Niekerk J observed that abuse of the urgent court remains rife and that practitioners who continue to clog the court's roll with misguided applications must expect that orders for costs will be made. The court noted that while it is often reluctant to make orders for costs against individuals who feel genuinely aggrieved by their employers' conduct, the applicant in this case was legally trained and had completed his articles of clerkship, and therefore should have recognized that the application was misguided. The court expressed concern that the RAF, a statutory body funded by taxpayers, should not have to bear the costs of opposing proceedings that had no merit whatsoever.

This case is significant for reinforcing the Labour Court's warnings about abuse of the urgent court and the misuse of contempt proceedings. It clarifies that: (1) A commissioner's decision to postpone an arbitration hearing pending a rescission application does not constitute contempt of a court order remitting a matter for rehearing; (2) Contempt applications must comply with the specific formal requirements set out in the practice manual; (3) The Labour Court will not tolerate being used as a court of first instance for grievances that should be resolved through alternative mechanisms; (4) Punitive costs may be awarded in cases of frivolous and vexatious applications, even against individual applicants, particularly where they are legally trained and ought to have known better; (5) Urgency must be properly established and cannot be confused with requirements for interdictory relief. The judgment serves as a stern warning to practitioners about the consequences of bringing misguided applications and clogging the court's roll.