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2021
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[2021] ZALMPPHC 82
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Kgoete v Member of the Executive Department of Health, Limpopo Province and Others (4129/2021) [2021] ZALMPPHC 82 (15 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES:
NO/
YES
(3)
REVISED.
CASE NO:
4129/2021
In the matter between:
DR. SHATALEGOLO EPHRAIM KGOETE
APPLICANT
and
MEMBER OF
THE EXECUTIVE DEPARTMENT
FIRST RESPONDENT
OF HEALTH,
LIMPOPO PROVINCE
THE CHIEF
EXECUTIVE OFFICER, VAN VELDEN
SECOND RESPONDENT
N.E
RAMODIKE N.O.
THIRD
RESPONDENT
HEAD
OF THE DEPARTMENT OF HEALTH,
FOURTH
RESPONDENT
LIMPOPO
PROVINCE
DEPUTY
DIRECTOR-GENERAL: CORPORATE SERVICES,
FIFTH RESPONDENT
LIMPOPO
DEPARTMENT OF HEALTH
In Re:
DR.
SHATALEGOLO EPHRAIM KGOETE
APPLICANT
and
THE
MEMBER OF EXECUTIVE COUNCIL
FIRST RESPONDENT
FOR THE
DEPARTMENT OF HEALTH, LIMPOPO PROVINCE
THE
CHIEF EXECUTIVE
OFFICER,
SECOND RESPONDENT
VAN
VELDEN HOSPITAL
N.E
RAMODIKE
N.O.
THIRD RESPONDENT
JUDGMENT
NAUDÈ
AJ:
[1] This is an
application for contempt of court in terms whereof the Applicant
applies
that the Respondents be declared to be in contempt of the
Court Order granted on 25 June 2021 and be sentenced to a period of
six
(6) months imprisonment or period the court may deem appropriate
for such contempt, which period of imprisonment to be suspended
on
conditions deemed appropriate by this court. In the alternative
to imprisonment, the Applicant applies for an order imposing
a fine
of R500 000.00 for each of the Respondents or any other amount
this court may deem appropriate for such contempt.
[2] The
Applicant launched an application for an urgent review. The
following orders
were made against the First, Third and Fifth
Respondents on 25 June 2021:-
“
1.
The Applicant’s non-compliance with rules relating to form,
services and time frames is
condoned.
2.
The Applicant is granted leave to bring and treat this matter as one
of urgency.
3.
The First Respondent’s decision to terminate the Applicant’s
employment
contract is declared unlawful, invalid and of no force and
effect.
4.
The decision to terminate the Applicant’s employment contract
is reviewed
and set aside.
5.
The First Respondent is ordered to pay costs of this application.”
[3] According
to the Applicant, the above orders were read out by Judge MG Phatudi
in
the presence of all parties, including counsel for the First,
Third and Fifth Respondents, as well as a candidate attorney of the
State Attorney. The original hard copy of the orders were
handed down on 25 June 2021.
[4] The
Applicant submits that during the evening of the 25
th
of
June 2021, his attorneys of record wrote a letter to the Respondents
wherein the following was stated:-
“
We refer to the urgent
application launched by our client, Dr. Kgoete which was heard on the
22
nd
June 2021 and 25
th
June 2021.
As
you are probably aware, the aforesaid application was granted in
favour of our client.
Please find a self-explanatory
copy of the Court Order delivered by the honourable Justice MG
Phatudi on the 25
th
June 2021.
As
a result of the aforesaid Court Order, our client will be reporting
for duty with effect from Monday, 28 June 2021 as he never
ceased to
be an employee of the department stationed at Van Velden Hospital.
Therefore, you are requested to
ensure compliance with the Court Order and attend to:
Restore ALL benefits due to our
client as of date of termination of employment, 1
st
March 2021. Such benefits includes but not limited to,
activation of our client’s persal, pensions etc. Please
provide our client with all facilities and assistance in order for
him to render his services as he is required to do.
We
hereby request for your corporation and compliance with the Court
Order.
We
are of the view that it is in the best interests of both parties that
a meeting be convened for purpose of discussing this matter
so as to
ensure practical and proper compliance with the court order. In
so doing the members of the public benefits will
continue to benefit
from our client’s services.
You are at liberty to contact our
office for any assistance and corporation in the implementation of
the Court Order.
We
trust you shall find the above to be in order.”
[5] According
to the Applicant, he tendered his services to the First Respondent at
Van
Velden Hospital under the control of the Second Respondent on 28
June 2021. Upon his arrival at the hospital premises, he
visited the office of the Second Respondent who told him that he must
go back home as he has not received any communication form
the First
Respondent’s office. According to the Applicant he
informed the Second Respondent that he came to render
services as
required by his contract of employment and court order.
[6] The
Applicant submits that during a morning meeting with other doctors, a
security
guard and a one Mr. Ngobeni approached him and asked that he
should leave the hospital premises until the First Respondent has
communicated with the Second Respondent. According to the
Applicant, he was instructed to leave the premises despite having
shown the security guard and Mr. Ngobeni a copy of the court order.
[7] The
Applicant further submits that the Respondents, despite having
knowledge of the
court order, refuses him to render services.
The Respondents have furthermore failed to pay the Applicant his
salary and
benefits since March 2021 due to the unlawful termination
of his contract of employment by the Second Respondent and the
Hospital
Human Resource Officials. The Applicant submits that
he is unable to meet his financial obligations which includes
maintaining
his household, wife and children.
[8] According
to the Applicant the Respondents are in flagrant, willful and
mala
fide
contempt of the court order. The Applicant submits
that he has attempted to avoid bringing this application and tried to
exhaust internal remedies as he was of the view that this matter can
be resolved, without any success.
[9] In
opposition, the Respondents submit in their answering affidavit that
they intend
on applying for leave to appeal against the order of 25
June 2021 and have proceeded to request reasons from Judge MG
Phatudi.
[10] According to the
Respondents, their intention to apply for leave to appeal in terms of
Section 18
of the
Superior Courts Act, 10 of 2013
has the
effect that the order is suspended pending the appeal.
Section
18(1)
and (2) of the
Superior Courts Act, 10 of 2013
states as
follows:-
“
18. Suspension of
decision pending appeal.
(1)
Subject to
subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision of
the application
or appeal.
(2)
Subject to
subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision
that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application for leave to appeal,
is not
suspended pending the decision of the application or appeal.”
[11]
Section 18(5)
of the
Superior Courts Act, 10 of 2013
stipulates as follows:-
“
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave
to appeal or of an appeal, as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in
terms of the rules.”
[12] The Respondents
submit that in the circumstances, the Applicant’s application
for contempt
of court is premature and ill-advised, bearing in mind
that the execution of the judgment is automatically suspended upon
the noting
of an appeal, with the result that pending the appeal, the
judgment cannot be carried out and no effect can be given thereto,
except
with leave of the court which granted the judgment.
[13] The Respondents’
opposition to the application for contempt of court is solely based
on
the fact that the Respondents intend on appealing against the
order made on 25 June 2021. It however needs to be stated that the
Respondents’ counsel at the hearing of this application
confirmed that there is no appeal pending, nor an application for
leave to appeal.
[14] In a supplementary
affidavit filed by the Applicant, the Applicant submits that after
the request
for reasons for the order granted on 25 June 2021 was
delivered by the Respondents, he took the liberty to transcribe the
records
of the proceedings of the 25
th
of June 2021.
The transcribed records were served on the Respondents on 12 August
2021.
[15] The Applicant further
submits that Judge MG Phatudi, through his secretary or registrar
responded
to the Respondent’s request for reasons notice in
terms of
Rule 49(1)(c)
on 7 September 2021, which response reads as
follows:-
“
I
have been directed by the Honourable Judge MG Phatudi who heard the
application to respond to your notice as follows:
1.
The application
was heard on the 22
nd
June 2021 during which occasion the proceedings were mechanically
recorded.
2.
The ruling in
respect of prayers 1, 2, 3, 4 and 5 of the Notice of Motion was
deferred to the 25
th
June 2021 for determination thereof.
3.
On the return
date, the court handed down judgment ex tempore in which the reasons
for the order/s made were circumscribed.
4.
A party seeking
the reasons is therefore requested, at own costs, to obtain a
transcript of the record of the judgment from whence
the reasons
sought, would appear. This record shall assist in the intended
leave to appeal, if any.”
[16] To date of hearing of
this application for contempt of court, there was no notice to apply
for
leave to appeal against the judgment of 25 June 2021 filed by the
Respondents and furthermore, the time within which the Respondents
ought to have delivered its notice of application for leave to
appeal, has lapsed. The argument and defense raised by the
Respondents
are therefore without any merit.
[17] In addition to the
above, the Respondents’ Counsel at the hearing of this
application raised
a
point in limine
that the Applicant has
failed to join, alternatively cite the relevant parties in their
personal capacities. According to
the Respondents, the Fourth
and Fifth Respondents were neither cited as parties in the main
application, nor do they appear as
parties in the Court Order dated
25 June 2021. It is thus contended that they are mis-joined in
this contempt of court proceedings.
[18] The Respondents’
counsel argued that it is common cause that the Applicant has cited
the
Respondents in their official capacity, and not in their personal
capacity in this application for their committal to prison.
[19] It was argued by the
Respondents’ counsel that
Section 2 of the State Liability
Act, Act, 20 of 1957
, provides how a process against a department
must unfold and provides as follows:-
“
Proceedings to be taken
against Executive Authority of Department concerned, 2(1) In any
action or any other proceedings instituted
against a Department, the
Executive Authority of the Department concerned must be cited as
nominal Defendant or Respondent.”
[20] In the present
matter, neither the Fourth, nor the Fifth Respondents were parties to
the main
application and court order. The Applicant furthermore
failed to allege and prove in the contempt of court application on
what grounds the Fifth Respondent is to be held in contempt of
court. It is however clear that the Fourth Respondent, despite
having knowledge of the court order and as Head of the Department of
Health fails, alternatively refuses to allow the Applicant
to resume
his duties in that the Fourth Respondent wrote a letter to the
Applicant’s attorneys of record on 29 June 2021
which states as
follows:-
“
The above matter refers.
The department is in receipt of
your letter dated 25
th
June 2021 attaching Court Order of the Limpopo High Court under case
number 4129/2021 regarding the above-named.
Kindly be informed that the
department intends appealing the said court order. (judgment) and you
and your client will be served
with the papers in due course.
Take notice further that given the
intention to appeal, your client, Dr. Kgoete will not be required and
allowed to report on duty
until the matter is heard by the appeal
court.”
[21]
To ensure that courts’ authority is effective,
Section
165(5) of the Constitution
makes
orders of court binding on “all persons to whom and organs of
state to which it applies”. The purpose of a finding
of
contempt is to protect the fount of justice by preventing unlawful
disdain for judicial authority. (See
S
v Mamabolo 2001 (3) SA 409 (CC)
).
Discernibly, continual non-compliance with court orders imperils
judicial authority.
[22] It “is a
crime unlawfully and intentionally to disobey a court order”.
(See
Fakie N.O. v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para
6).
The crime of
contempt of court is said to be a “blunt instrument”.
(See
Meadow Glen
Home Owners Association v City of Tshwane Metropolitan Municipality
[2014] ZASCA 209
;
2015 (2) SA 413
(SCA) at para 35)
)
Because of this, “[w]ilful disobedience of an order made in
civil proceedings is both contemptuous and a criminal
offence”.(See
Pheko v Ekurhuleni
Metropolitan Municipality (No 2)
[2015] ZACC 10
;
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC)
)
All contempt of court, even civil contempt, may be punishable as a
crime.
[23] In determining whether the
Respondents are guilty of contempt of court the following
requirements as set
in
Compensation Solutions (Pty) Ltd v
Compensation Commissioner
[2016] ZASCA 59
; (2016) 37 ILJ 1625 (SCA)
should be proved:-
“
The
question which then arises is whether the appellant proved that the
Commissioner’s failure to comply with the [consent
order]
amounted to civil contempt of court, beyond a reasonable doubt to
secure his committal to prison. An applicant for this
type of relief
must prove (a) the existence of a court order; (b) service or notice
thereof; (c) non-compliance with the terms
of the order; and (d)
wilfulness and mala fides beyond reasonable doubt. But the respondent
bears an evidentiary burden in relation
to (d) to adduce evidence to
rebut the inference that his non-compliance was not wilful and mala
fide. Here, requisites (a) to
(c) were always common cause. The only
question was whether the Commissioner rebutted the evidentiary burden
resting on him.”
[24] In
Matjhabeng Local
Municipality v Eskom Holdings Limited and Others; Shadrack Shivumba
Homu Mokhonto and Others v Compensation Solutions
(Pty) Limited
[2017] ZACC 35
, the Nkabinde ADCJ at para 67
held as follows:-
“
Summing up, on a reading of Fakie, Pheko
II, and Burchell, I am of the view that the standard of proof must be
applied in accordance
with the purpose sought to be achieved,
differently put, the consequences of the various remedies. As I
understand it, the maintenance
of a distinction does have a practical
significance: the civil contempt remedies of committal or a fine have
material consequences
on an individual’s freedom and security
of the person. However, it is necessary in some instances because
disregard of a
court order not only deprives the other party of the
benefit of the order but also impairs the effective administration of
justice.
There, the criminal standard of proof – beyond
reasonable doubt – applies always. A fitting example of this is
Fakie.
On the other hand, there are civil contempt remedies −
for example, declaratory relief, mandamus, or a structural interdict
− that do not have the consequence of depriving an individual
of their right to freedom and security of the person. A fitting
example of this is Burchell. Here, and I stress, the civil standard
of proof – a balance of probabilities – applies.”
[25]
In
this matter the onus to prove contempt of court remains on the
Applicant seeking a finding of contempt. The Respondents
bear
an evidentiary burden in relation to willfulness and
mala
fides
and had to
adduce evidence to rebut the inference that their non-compliance was
not wilful and
mala
fide.
As the
Applicant applied for imprisonment, the standard of proof applicable
is beyond reasonable doubt.
[26] It is not in dispute
that there was a court order granted on 25 June 2021, nor that the
Respondents
had knowledge of the court order. It is further not
in dispute that the Respondents refuse the Applicant to resume his
duties
and have not paid him his salary since March 2021.
[27] The question however,
to be answered in the present matter, is whether the Applicant has
shown
that the Respondents are in contempt of the court order and the
specific provisions of the court order granted on the 25
th
of June 2021 by refusing the Applicant to resume his duties and the
payment of his salary.
[28] In order to determine
whether there was non-compliance with the court order, the court
order
and provisions contained therein will have to be interpreted.
The principles which apply to the interpretation of court orders are
well-established.
Trollip JA
observed in
Firestone South
Africa (Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A) at 304; [1977] 4
All SA (A) at 604
that the same principles apply as apply to
construing documents. Thus,
‘
..(T)he
court’s intention is to be ascertained from the language of the
judgment or order as construed according to the usual,
well-known
rules... Thus, as in the case of a document, the judgment or order
and the court’s reasons for giving it must
be read as a whole
to ascertain its intention.’
[29] The starting point,
it was held in
Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy
Coal South Africa Limited and others
2013 (2) SA 204
(SCA) para [13]
[2012] ZASCA 49.
, is to determine the manifest purpose of the
order. This was endorsed by the Constitutional Court in
Eke v
Parsons
2015 (11) BCLR 1319
(CC) para [29].
The Supreme Court of
Appeal, in
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) para [18]
, described the
process of interpretation as involving a unitary exercise of
considering language, context and purpose. It is an
objective
exercise where, in the face of ambiguity, a sensible interpretation
is to be preferred to one which undermines the purpose
of the
document or order.
[30] In the present
matter, when the judgment or order is considered, the reasons for the
order must
be considered as well, as a whole. The reasons for
the order given by the presiding Judge on 25 June 2021 states as
follows:-
“
Turning
back to this case. This court has heard on 22 June 2021
extensive arguments regarding the, whether the matter is urgent
and
whether a case has been made for the setting aside of the decision of
the tribunal and the fairness of that process was also
considered.
Now I am of and I am of the view that having heard counsel in this
matter and having read the documents filed
of record and considered
the matter the draft order handed up in which:
1. The
Applicant’s non-compliance with rules relating to form,
services and time
frames is condoned.
2.
That the Applicant is granted leave to bring and treat this matter as
one of
urgency.
3.
The First Respondent’s decision to terminate the Applicant’s
employment
contract is declared unlawful, invalid and of no force and
effect.
4.
The decision to terminate the Applicant’s employment contract
is reviewed
and set aside.
5.
Further that the First Respondent is ordered to pay costs of this
application
on party and party [scale]. The order is granted.
”
[31] Although short
reasons, it is clear from the reasons given and order handed down by
Judge Phatudi,
that only the decision of the tribunal to terminate
the Applicant’s service agreement and the fairness of the
process followed
in doing so, were considered, nothing more and
nothing less. The court order only deals with the review
and setting
aside of the decision to terminate the Applicant’s
employment contract, which termination is declared unlawful, invalid
and
of no force and effect. The court order does not deal with
the specific performance of the employment agreement between the
parties, nor does it state that the Applicant must resume his duties
and the Respondent must allow him to do so and pay his salary.
[32] In my view, the
Applicant in the present application attempts to enforce specific
performance
in terms of the employment agreement by the Respondents
through this contempt of court application. The Applicant as grounds
for
their contempt of court application only states that he was
refused to resume his duties and his salary has not been paid.
The court order does not state by any interpretation thereof that the
Respondents must allow the Applicant to resume his duties
or that his
salary must be paid. The fact that in terms of the
agreement the Applicant must render certain services
and in turn be
paid a salary for such services rendered, are consequences flowing
from the employment agreement between the parties
and not the court
order. The Applicant in order to compel the Respondents to
comply with the terms and conditions set out
in the employment
agreement, should have instituted proceedings for specific
performance and not contempt of court proceedings.
[33] In the result, the
Applicant has failed to show how the Respondents are in contempt of
the court
order of 25 June 2021. The application therefore
stands to be dismissed.
[34] The only issue
remaining is the issue of costs. The general rule is that costs
should follow
the event. In the present matter there is no
reason to deviate from the general rule and no grounds were advanced
by Counsel
in this regard either.
[35] I therefore make the
following order:-
1.
The application is
dismissed with costs on a party and party scale.
M.
NAUDÈ
ACTING
JUDGE OF
THE
HIGH COURT
APPEARANCES:
HEARD
ON:
28 OCTOBER 2021
JUDGMENT
DELIVERED ON: 15 NOVEMBER 2021
For
the Applicant:
Adv. T.M Malatji
Instructed
by:
Maloka Sebola Inc.
C/o Maloka Thulare Attorneys
Polokwane
For
the Respondents:
Adv. L.M. Nkoana
Instructed
by:
The State Attorney
Polokwane