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[2016] ZAECBHC 10
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Elefu v Lovedale Public Further Education and Others (282/2016) [2016] ZAECBHC 10 (11 October 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO: 282/2
016
In the matter between:
ERNERST
BULELANI ELEFU
Applicant
and
LOVEDALE
PUBLIC FURTHER EDUCATION
First
Respondent
MINISTER
OF HIGHER EDUCATION AND
TRAINING
Second
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
THE
DEVELOPMENT OF EDUCATION, EASTERN
CAPE
PROVINCE
Third
Respondent
JUDGMENT
MBENENGE J:
[1]
This contempt of court application originates from an order granted
by this court
[1]
in terms
whereof the court dismissed, with costs, an application that had been
launched by the first respondent and wherein an
interdict compelling
“
[the
second and third respondents] to remove the
[
applicant
]
from
the payroll system of the
[
first
respondent
]
and
not to pay
[
the
applicant
]
any
further salary
”
had been sought.
[2]
The applicant has, at all times material hereto, been in the employ
of the first respondent as
Assistant Director: Human Resource
Manager. It is common cause that the applicant is
presently not receiving any salary
and/or emoluments from the first
respondent. His current employment status is shrouded in mystery, but
that is not a matter that
concerns this court. In these
proceedings, the applicant seeks an order of committal for contempt
against the first respondent.
Apart from embodying a prayer for
costs and that this Court grant such “
other relief
as
[
it
]
may deem appropriate
,” the applicant’s
notice of motion prays:
“
1.
That the First Respondent or its representative be ordered to appear
to show cause why should
they be not found to be in contempt of the
Court Order granted on the 10
th
of March 2016 by still withholding the salary of the applicant
amounting to R1, 158 086.65(one million one hundred and fifty
eight thousand and eight sixty rands and sixty five cents) and not
reinstate him on the payroll system of the Second and Third
Respondent when the application to do so has been dismissed with
costs by this Honourable Court under case no. 379/12.
2.
That the First Respondent or its representative be ordered to appear
to show
cause why they cannot pay the salary of the applicant as
stated above plus 15.5% per annum of the 15
th
June 2016 backdated from 16 August 2012 and continue until the appeal
is finalised
.
”
Sic.
[3]
The view held by the applicant on which this application is
predicated is that his success in
opposing the application to have
him removed from the payroll has had the effect of conferring on him
the right to being paid a
salary, which he has not received, since 16
August 2012. He furthermore alleges that the conduct of the
first respondent
is malicious and deliberate.
[4]
The applicant’s cause of action is summed up in his founding
affidavit as follows:
“
31.
I submit that
although
the order might have not clearly
stated that I should be reinstated as it has been argued by the first
respondent’s lawyers but equally it … doesn’t
provide entitlement to withdraw my salary when the application to do
so was dismissed by this honourable Court”
[2]
[5]
The first respondent’s opposition to the application is
two-pronged. It is contended,
in the first place, that because
the applicant has since been dismissed by the first respondent and is
currently embroiled in a
labour dispute justiciable before the labour
court, this court lacks the jurisdiction to entertain this
application. On the
merits it is contended that the first
respondent has not disobeyed any court order in as much as the
initial order did not direct
the first respondent to perform any act.
[6]
At the hearing of the application Mr
Notshe
, who appeared for
the first respondent, did not persist in the argument that this court
lacks the jurisdiction to entertain the
application and was content
to pin the first respondent’s basis of opposition down to
contending that, by its nature, the
subject order can hardly form the
basis of a contempt of court application.
[7]
The order allegedly breached by the first respondent was granted by
this court; it is therefore
inconceivable that the court would lack
jurisdiction to vindicate its authority and dignity in the event of
the order it granted
having been disobeyed. The concession in
this regard was correctly made.
[8]
It is trite law that an applicant in civil contempt proceedings must
prove beyond a reasonable
doubt (i) the existence of the order; (ii)
service of the order on the respondent; (iii) non-compliance with the
order by the respondent;
and (iv) wilfulness and
mala
fides
.
[3]
Once the applicant proves the existence of the order, service or
notice and non-compliance, an evidentiary burden shifts
to the
respondent to refute the existence of wilfulness and
mala
fides
.
[4]
[9]
There is merit to the submission that the order relied on by the
applicant, by its nature, confers
not on the applicant the right to
seek the relief being sought in these proceedings. There is nothing,
from a reading of the order
that the first respondent was required to
do, which he has not done; the first respondent was not directed to
pay the applicant
his salary.
[10] In
conclusion, therefore, the applicant has not established one of the
requisites for the grant of civil
contempt namely, non-compliance
with an order, with the result that, on this ground alone, the guilt
of the first respondent for
the alleged contemptuous behaviour has
not been proven. This renders it unnecessary for me to consider
whether the other
requisites for the grant of an order of committal
for contempt have been fulfilled.
[11]
The applicant resorted to arguing, in the alternative, that the
papers do make out a case for the grant of
an order directing the
first respondent to pay him his salary pursuant to the prayer that
this court grant “
other
relief it deems appropriate
”.
To begin with, that is not the case that the first respondent was
called upon to meet in answer. Moreover,
such relief may only
be granted if it is consistent with the case made out by the
applicant in her/his founding affidavit.
[5]
In the
Geza
matter
the court held that:
“
whatever
the ambit of a prayer for further or alternative relief, such relief
may only be granted if it is consistent with the case
made out by the
applicant in her founding affidavit and is consistent with the
primary relief claimed. In
Johannesburg
City Council v Bruma Thirty-Two (Pty) Ltd
,
Coetzee J described the prayer for alternative relief as being
‘redundant and mere verbiage’ in modern practice adding
that whatever a court ‘can validly be asked to order on papers
as framed, can still be asked without its presence’
and that it
‘does not enlarge in any way “the terms of the express
claim” as pointed out by Trindall JA’
in
Queensland
Insurance Co Ltd v Banque Commercial Africaine
”
[6]
[12]
The applicant has also not made out a case for an order directing the
first respondent to pay him his salary
in these proceedings.
[13]
The first respondent has been victorious in resisting the relief
being sought by the applicant, after incurring
costs. There is
no reason why costs should not follow the result. The fact that
the applicant, who was not championing
a constitutional cause, was
appearing in person can hardly serve as justification for depriving
the first respondent of its costs.
[14] In
these circumstances,
the application is dismissed with costs.
S M MBENENGE
JUDGE OF THE HIGH
COURT
Applicant
:
In
person
Counsel
for the Respondents:
Mr
S V Notshe SC
Instructed
by :
Dyushu
Majebe Attorneys
East
London
C/O
Mlonyeni & Lesele Incorporated
King
William’s Town
Date heard:22 September
2016
Judgement delivered:11
October 2016
[1]
Per
Malusi AJ, on 10 March 2016.
[2]
My
emphasis.
[3]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(A) at para
[14]
and the authorities cited therein
with approval.
[4]
Uncedo
Taxi Service Association v Mtwa
1999
(2) SA 495 (E).
[5]
Geza
v Minister of Home Affairs & Another
[2010] ZAECGHC 15 (22 February 2010) at para [12].
[6]
Ibid.
Footnotes
omitted.