Food and Allied Workers Union v Scandia Delicatessen CC

On 7 October 1998, the Industrial Court ordered the first respondent (Scandia Delicatessen CC) to reinstate individual appellants (employees) and pay compensation equivalent to six months' wages. The order was served on both the first respondent and the second respondent (the sole member of the CC). On 23 November 1998, an application for rescission of the order was dismissed. The first respondent failed to comply with the Industrial Court's order, and on 7 December 1998 the second respondent refused to reinstate the employees when they tendered their services. The appellants were unable to obtain enforcement relief from the Industrial Court and brought an application in the Durban and Coast Local Division of the High Court seeking: (1) a declaration that respondents were obliged to comply with the Industrial Court order; (2) a directive to comply; and (3) costs on an attorney-client scale. The application was unopposed.

• Whether the High Court has power to grant a mandatory interdict to enforce an Industrial Court order where the Industrial Court itself lacks the power to commit for contempt
• Whether criminal prosecution under section 53(1) of the Labour Relations Act 28 of 1956 constitutes an adequate alternative remedy, precluding the grant of a mandatory interdict
• Whether the criminal sanction in section 53(1) of the Act survived the repeal of the 1956 Act by the Labour Relations Act 66 of 1995
• Whether one of the essential requirements for a final mandatory interdict - that there be no other satisfactory remedy available - was satisfied

The appeal was dismissed. The order of Page J in the court a quo dismissing the application was upheld.

An applicant seeking a final mandatory interdict must demonstrate that there is no other satisfactory remedy available. Where a criminal prosecution is available as an alternative remedy for breach of a statutory order, the applicant must establish on the facts that such criminal prosecution would be an inadequate remedy. The mere existence of a criminal sanction does not per se and in every case preclude the availability of civil enforcement proceedings, but equally its existence is not automatically irrelevant - the adequacy of the criminal remedy must be assessed on the particular facts. Where an applicant provides no evidence as to why criminal prosecution would be inadequate, fails to indicate whether charges were laid, and does not demonstrate any specific difficulties that would arise with prosecution in the particular circumstances, the applicant has not discharged the onus of showing that there is no other satisfactory remedy. Criminal sanctions under the Labour Relations Act 28 of 1956 survive the repeal of that Act in respect of pending disputes by virtue of Items 21 and 22 of Schedule 7 to the Labour Relations Act 66 of 1995.

The Court indicated it was prepared to assume, without deciding, that: (1) the High Court has jurisdiction to grant a mandatory interdict to compel compliance with an order made under specific legislation despite the legislation providing an enforcement procedure not including committal for contempt; and (2) the Industrial Court did not possess power to commit persons who breached its orders for contempt. The Court noted it was unnecessary to decide whether the Uncedo Taxi Service Association v Maninjwa case (holding that even in civil contempt proceedings in the High Court the standard of proof is beyond reasonable doubt) was correctly decided, as no onus difficulty was shown in the present case. The Court observed that in certain cases a criminal prosecution may well be an adequate remedy such as to disentitle a person from obtaining an interdict, noting the reservation made by Dowling J in Ebrahim v Twala. The Court did not need to decide whether all other requisites for an interdict were satisfied given its conclusion on alternative remedies.

This case establishes important principles regarding the enforcement of Industrial Court orders and the relationship between civil interdicts and criminal sanctions in South African labour law. It clarifies that the availability of a criminal prosecution may constitute an adequate alternative remedy that precludes the granting of a mandatory interdict, and that applicants must positively establish that such alternative remedy is inadequate. The judgment also provides important guidance on the transitional provisions in Schedule 7 of the Labour Relations Act 66 of 1995, confirming that criminal sanctions under the repealed 1956 Act survived in respect of pending disputes. The case is significant for establishing that the mere existence of criminal sanctions does not automatically bar civil enforcement, but nor does it automatically permit it - the adequacy of the criminal remedy must be assessed on the facts of each case.