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[2019] ZAECPEHC 36
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Tonise v Director General for the Department of Labour; Kritzinger v Director General for the Department of Labour (4353/16; 3250/17) [2019] ZAECPEHC 36 (11 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO: 4353/16
In
the matter between:
ERIC
ZOLILE
TONISE APPLICANT
and
THE DIRECTOR GENERAL
FOR RESPONDENT
THE DEPARTMENT OF
LABOUR
and
CASE NO: 3250/17
In the matter between:
IGNATIUS WILLEM
KRITZINGER APPLICANT
and
THE DIRECTOR GENERAL
FOR RESPONDENT
THE DEPARTMENT OF
LABOUR
JUDGMENT
D
VAN ZYL DJP:
[1]
This judgment deals with two applications wherein the applicants
(conveniently referred
to as “
the
applicants”
or as “
Tonise”
and “
Kritzinger”
respectively), request that the Director-General of the Department of
Labour (the respondent and the Department respectively) personally
be
held in contempt of court, and that he be sentenced to a term of
imprisonment.
[2]
The applications were instituted pursuant to the failure of the
respondent to comply
with the orders of this Court directing him to
consider and decide upon the two applicants’ claims for the
payment of compensation
in terms of the provisions of the
Compensation for Occupational Injuries and Diseases Act, 130 of
1993 (the Act). The
orders gave the applicants 30 days in which
to comply with the order. It is common cause that both the
orders have since
been complied with.
[3]
In the original notices of motion in both applications, orders were
sought against
the Director-General in his official capacity, that
is, in his capacity as “
the official
who, in terms of section 4 (of the Act), is obliged to adjudicate
claims for compensation brought in terms of the Act,
and responsible
for the proper performance of the compensation commission
functions.”
The applicants
subsequently applied for, and was granted leave to join the incumbent
in the position of Director-General,
Mr Thobile Lamati (“
Lamati”
)
as a party to the applications in his personal capacity.
[4]
In terms of section 1 of the Act the Minister responsible for the
administration of
the Act, is the Minister of Labour. In terms
of section 4(1)(c) the adjudication of claims in terms of the Act is
a function
of the Director-General of the Department. Section
2(1)(a) mandates the Minister to appoint an officer called the
Compensation
Commissioner (the Commissioner) to assist the
Director-General. The assistance contemplated in section 2 is
given effect
to in section 3, in terms whereof the Director-General
may delegate any of his powers, or assign any of his duties to the
Commissioner.
[5]
In his affidavit filed in the proceedings, Lamati explained the
organisational structure
of the Department, his position and the
functions of the different role players in the administration of the
Act. In order
to fulfil his statutory responsibilities and
duties, Lamati had delegated to various officials, the functions
assigned to him in
the Act. The Department comprises of various
district offices across the Republic. The office of the
Director-General
is based at the head office of the Department in
Pretoria. According to Lamati, he is the administrative head of
the Department.
He is based in Pretoria and does not personally
deal with any claim for compensation lodged in terms of the Act, or
with any litigation
that may arise therefrom. The functions and
the authority to deal with such matters lie with the Commissioner and
the officials
based in the various districts.
[6]
Further, all matters of a legal nature that concern the Department
are dealt with
by its legal services section. This includes all
legal matters and court applications against Lamati in his official
capacity.
The authority to decide whether or not to oppose any
legal proceedings and to instruct the State Attorney, vests in the
legal services
section to whom that authority has been delegated.
[7]
A claim for compensation in terms of the Act is lodged with the
Commissioner to whom Lamati
had delegated those functions. As a
consequence, all documentation in respect of a claim for compensation
are received and
held by the Commissioner. It is also the
function of the particular Commissioner to deal with any litigation
that may arise
in relation to a claim for compensation.
[8]
The Department also performs functions other than the administration
of the Act.
Any litigation that involves a section in the
Department that is for matters arising from the implementation of the
Act, will be
channelled to that section by the legal services
section. To this extent, according to Lamati, the legal
services section
would liaise with the relevant Commissioner with
regard to litigation that emanates from the administration of the
Act, and involves
the exercise of that Commissioner’s
functions. It is standing procedure in the Department that all
court orders against
the Director-General in relation to his
statutory duties in terms of the Act would be referred to the
Commissioner in question
to ensure that that the court order in
question is complied with within the prescribed period.
[9]
The position, according to Lamati, is therefore, that while the
overall oversight
and accountability remains with him, he does not
personally deal with compensation claims in terms of the Act, and
will ordinarily
not have personal knowledge of individual claims, or
of any legal proceedings that may arise therefrom.
[10]
The requirements for contempt of court are the following: (a)
the existence of the
order of the court; (b) the order
must be duly served on, or brought to the notice of, the alleged
contemnor;
(c) there must be non-compliance with the
order; and (d) the non-compliance must be wilful and
mala
fide
. If the contempt order sought is
committal, as in the present matter, the criminal standard of proof
beyond a reasonable
doubt would apply. (
Matjhabeng
Municipality v Eskom
2018 (1) SA 1
(CC) at
para [73].) (
Matjhabeng
)
Once an applicant in contempt proceedings has proved the requirements
in (a), (b) and (c), the respondent bears an evidentiary
burden in
relation to wilfulness and
mala fides
.
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance with the
order was
wilful and
mala fide
,
contempt will have been established beyond reasonable doubt.
(
Meadow Glen Home Owners Association and
Others v City of Tshwane Metropolitan Municipality and Another
[2015] (2) SA 413
(SCA) at para [16].) (
Meadow
Glen
)
[11]
Before dealing with the merits of the application, there is the
matter of the objection raised
by the applicants in their replying
affidavits, to the late filing of the answering affidavits. The
said affidavits were
filed outside the time periods stipulated in
earlier court orders. The position is that subsequent to the
granting of the
said orders, and after notices to oppose were filed,
the two applications were postponed on several occasions before it
was firstly
enrolled for hearing. As correctly pointed out by
counsel for the respondent, the postponement of the matters was
clearly
with the view of affording the respondent time to file his
answering papers. It is indicative of the applicants not
holding
the respondent to the stipulated time lines.
[12]
There was further no obvious prejudice that has resulted from the
late filing of the affidavits,
and none has been suggested.
Another relevant consideration is the nature of these proceedings,
and the fact that the relief
that is asked for, affects the
respondent’s right to freedom. The court has a wide
discretion to condone the late filing
of the affidavits, and a formal
application is not an indispensable condition for the exercise of the
court’s discretion.
(Erasmus, Superior Court Practice,
Volume 2 D 1 – 321) The failure of the respondent to
comply with the time limits
in the relevant court order is
accordingly condoned.
[13]
The question whether the four requirements for contempt have been
established must be determined
on the papers filed of record.
The approach to be adopted in this regard is the one set out in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
1984 (3) SA 620
(A) (at 634 E to
635 C). A party who seeks final relief in motion proceedings
must, in the event of conflict, accept the
version set up by his
opponent, unless the latter’s allegations are, in the opinion
of the Court, not such as to raise a
real, genuine or
bona
fide
dispute of fact, or are so far-fetched
or clearly untenable, that the court is justified in rejecting them
merely in the papers.
This approach to the determination of
issues in motion proceedings is unaffected by the burden of proof
that may arise in any particular
matter. (
Ngqumba
en ʼn Ander v Staatspresident en Andere & 2 Other Cases
1988 (4) SA 224
(A) at 258 H – 263 D;
Delta
Motor Corporation (Pty) Ltd v Van der Merwe
2004 (6) SA 185
(SCA) at 194 F.)
[14]
The first and third requirements are not in dispute. With
regard to the second requirement,
the applicants are relying on the
service of the order in accordance with the Rules of Court. In
both instances the orders
were served on an official in, what the
deputy sheriff described as, the legal department of the
Director-General of the Department
of Labour. The returns
rendered by the sheriff accordingly, do not provide evidence that the
respondent had personal knowledge
of the orders, or that it must have
been brought to his notice. In both the applications the
respondent only acquired personal
knowledge of the matters involving
the two applicants after the relevant Commissioner had complied with
the order to consider the
claims of the two applicants. The
manner in which the Department is structured, and the delegation of
functions to the relevant
functionaries within the section of the
Department tasked with the administration of the Act, lends support
to Lamati’s evidence
that he did not have personal knowledge of
the orders, or the failure of the Commissioner to timeously comply
therewith.
Lamati’s denial is therefore not
unsubstantiated, and cannot simply be rejected on the papers.
[15]
I am further of the view that the fourth requirement for contempt has
similarly not been established.
As stated in Matjhabeng supra
(at para [76]) “
In order to give rise to
criminal contempt, an official’s non-compliance with a court
order must be wilful and mala fide
.
In general terms, this means
that the official in question, personally must deliberately defy the
court order. Hence,
where a public official is cited for
contempt in his personal capacity, the official himself or herself,
rather than the institutional
structures for which he or she is
responsible, must have wilfully or maliciously failed to comply.”
[16]
There is no evidence that Lamati personally, as the Director-General
knowingly and deliberately
defied the orders. In fact, it was
not the applicants’ pleaded case that he personally defied the
orders. The
general rule is that the applicant in motion
proceedings must make out his case in his founding affidavit.
There is no allegation
supported by any facts that the respondent was
personally responsible for the wilful default in complying with the
court orders.
(
Meadow Glen supra
at para [20].) The applicant’s case is, on a reading of
the respective founding affidavits filed in support of the
applicant,
that the Director-General as the official responsible for the overall
administration of the Act, should be held in contempt
for the
failures of the relevant functionaries to comply with the court
orders. The applicants have accordingly failed to
make out a
prima facie
case for
the relief claimed, and the application can on that ground alone be
dismissed. (
Pearson v Magrep Investments
(Pty) Ltd and Others
1975 (1) SA 186
(D) at
187 C – E).
[17]
Lamati’s explanation for the failure to comply with the court
orders in any event dispels
any notion that the failure was
deliberate and
mala fide
.
He explained that the Department deals with thousands of claims
in terms of the Act, and that at the relevant time, it did
not have
the capacity to deal therewith expeditiously. As a consequence,
a backlog occurred, that necessitated the procurement
of a new system
to enhance service and the turnaround time in finalising claims.
In the Eastern Cape there was, what he describes
as “
an
unexpected surge”
in the number of
claims in 2016, and that the available resources could not cope
therewith. It unfortunately adversely affected
the applicants’
claims, and steps have since been taken to address the problems that
led to the situation that presented
itself at the time.
[18]
Insofar as the position of the two applicants are concerned,
according to Lamati, when he personally
received the order joining
him in the proceedings and the
rule nisi
issued in the contempt proceedings, he raised his concerns about the
situation. He convened a meeting with the relevant officials
in
the legal services section, and was assured that the matter would
receive priority attention and be dealt with expeditiously.
Counsel for the applicants instead urged this court in argument to
consider as evidence of
mala fides
and a deliberate defiance of the court orders, what he contended was
the taking of obvious wrong decisions by the respondent, when
the
applicants’ claims were eventually adjudicated. This,
according to counsel was nothing more than a stratagem to
defy
compliance with the two court orders.
[19]
There is no merit to this argument. What this requires is a
finding on the correctness
or otherwise of the decisions taken by the
Commissioner on the applicants’ claims for compensation.
This Court is not
equipped to decide that issue. The reason
being that it was effectively only raised in reply without having
afforded the
respondent an opportunity to deal therewith. A
further obstacle is that, as Lamati stated, the adjudication of
compensation
claims in terms of the Act are made by the Commissioner
who received the claim, and not by him personally. It may be
added,
that counsel confirmed that in other similar matters the
decisions taken by the Commissioner in response to court orders were
correct,
and that it led to the applications for contempt being
resolved. To isolate two wrong decisions as constituting a
deliberate
stratagem as contended, can simply not be accepted.
[20]
Counsel for the respondents further suggested in argument, that
should this Court not be prepared
to use committal as a remedy, it
must consider granting alternative relief. For the reasons
stated earlier the applicants
have not made out a case for holding
the respondent in contempt. Further, what the alternative form
of the relief is that
must be granted, was not stated. In
Matjhabeng
supra
, the
Court said that the purpose of relief in civil contempt proceedings
is to compel parties to comply with a court order.
(at para
[54]). As stated, the two orders of this Court that form the
subject matter of the two contempt applications, have
been complied
with. The concerns raised by the applicants are now rather
focused on the correctness of those decisions.
The present
proceedings are not an appropriate vehicle to determine the issues
that arise in that context.
[21]
That leaves the question of costs. Ordinarily the party in
contempt will be ordered to
pay the costs of the proceedings.
In the present matters however, the applications for contempt were
totally defective from
its inception. The attempt to rectify
that by the joinder of Lamati was unsuccessful without having alleged
that he had personal
knowledge of the orders, and that he wilfully
and maliciously failed to comply with the court orders. The
result was that
unnecessary issues were raised, which in turn
unnecessarily caused the volume of the papers filed in the
applications to exceed
250 pages in each case. I am accordingly
of the view that the costs should follow the result.
[22]
In the result it is ordered that:
“
The
applications under case numbers 4353/2016 and 3250/2017 are dismissed
with costs.”
__________________
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT
Counsel
for the Plaintiff:
Adv M
F Horn
Instructed
by: O’Brien
Attorneys
2
nd
Floor
University Chambers
26 Bird Street
Central
PORT ELIZABETH
REF: 170/2016/AV
Counsel
for the Defendant: Adv Msizi
Instructed
by:
State Attorney
29 Western Road
Central
PORT ELIZABETH
REF: L.
HART/3230/2018D
Date
heard: 30
May 2019
Date
delivered: 11 June
2019