About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2011
>>
[2011] ZAKZDHC 46
|
|
Ndlovu v Mangosuthu University of Technology and Another (8781/10) [2011] ZAKZDHC 46 (27 October 2011)
In
the KwaZulu-Natal High Court, Durban
Republic
of South Africa
Case
No : 8781/10
In
the matter between :
A
M Ndlovu
….....................................................................................................
Applicant
and
The
Mangosuthu University of Technology
…..........................................
1
st
Respondent
The
Government Employees Pension Fund
…........................................
2
nd
Respondent
Judgment
Lopes J
[1] In this application the applicant
seeks an order that the first respondent be held to be in contempt of
court for disobeying
an order handed down by Mokgohloa J on the 7
th
December 2010.
[2] The history of this matter may be
summarised as follows :-
Professor Ndlovu (the applicant) was
employed by the University of Zululand from approximately 1977 until
the end of 1996 and
during his time at the university was a member
of the Associated Institutions Provident Fund;
from the 1
st
January 1997
he was appointed to the position of principal and vice-chancellor of
the first respondent and became a member of
the Government Employees
Pension Fund. The amount standing to the credit of the applicant
with the Associated Institutions Provident
Fund was transferred to
the second respondent for his ultimate benefit;
on the 30
th
December 2009
on his 65
th
birthday, the applicant reached pensionable
age and retired from his employment with the first respondent. At
the time of his
retirement his pensionable income was R2 202 120 per
annum entitling him to a gratuity of R4 883 421 and a monthly
pension payment
of R110 107. These figures appear from an
application brought before Mokgohloa J by the applicant during
December of 2010. The
amounts in question are not disputed in the
answering affidavits put up on behalf of the first respondent in
those proceedings.
The parties in the application before Mokgohloa J
were the same parties in this application;
the applicant and the first
respondent resolved their differences in the application before
Mokgohloa J and on the 7
th
December 2010 an order by
consent between the parties was granted in the following terms :
“
It is
ordered
That the 1
st
Respondent
is directed to complete and sign the “Withdrawal from Fund”
document (Form Z102) on or before 10
th
December 2010 and
to sign any further documents as may be required to effect payment
to the Applicant of his pension interest
in and to the second
Respondent (Member’s No. : 61068974).
That the 1
st
Respondent
is directed to pay the costs of the application.
That the Applicant is to pay the
amount of R90 000.00 for purchase of the 2006 Jaguar XJ with
registration letters and numbers
NUR3996 currently in his
possession and the 1
st
Respondent shall do all things
necessary to ensure that the Applicant is reflected as the
title-holder and registered owner
of the aforesaid motor vehicle.
That the only amount to be deducted
from the Applicant’s benefits in and to the 2
nd
Respondent in terms of ss 21 (3) and (4) of the Government
Employees Pension Fund Laws, 1996, is the aforesaid amount of R90
000.00;”
The part of that order which gives
rise to this application was the requirement that the first
respondent complete the form referred
to as Z102 and to sign such
further documents as may have been required to ensure the payment to
the applicant of his pension
interest in and to the second
respondent;
during the employment of the
applicant in the first respondent, he had, from time to time,
received salary increases. Those increases
had become the subject of
an action between the parties under case number 3941/2010. The first
respondent had instituted an action
against the applicant for
repayment of the sum of R6 652 625,39 (together with interest) which
amounts it claims were overpaid
to the applicant. The basis of the
first respondent’s action was that by reason of the
applicant’s position and influence
he unlawfully persuaded
employees of the first respondent to agree to salary payments which
were not due to him in terms of his
contract of employment;
in its action the first respondent
alleged that the applicant was only entitled to have been paid a
salary which was much lower
than that which he was in fact paid. The
pensionable amounts which had been deducted from the applicant’s
salary from time
to time and the income tax which the applicant paid
were calculated on the basis of the higher amounts – i.e. what
he was
actually paid;
the first respondent purported to
comply with the order of Mokgohloa J by completing the form Z102 and
forwarding it to the second
respondent to enable the applicant’s
pension benefits to be calculated and paid out by that party;
however, when the first respondent’s
employees filled out the Z102 they entered the salary scales which
they believed the
applicant was entitled to be paid – i.e.
corresponding with the allegations in case number 3941/2010;
the upshot of the aforegoing is that
the applicant contends he is only being paid slightly over half of
what he is entitled to
receive as pension benefits from the second
respondent;
the applicant views the first
respondent’s conduct as a deliberate and mala fide attempt by
the employees of the first respondent
to frustrate his right to
receive pension benefits based on the actual income which he was
receiving when he was employed in
the first respondent.
[3] In assessing whether or not any of
the employees of the first respondent were in contempt of court, I
have considered what was
said regarding contempt proceedings by
Cameron JA in
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) at page 332, para 6 ff where he stated :-
“
[6]
It is a crime unlawfully and intentionally to disobey a court order.
This type of contempt of court is part of a broader offence,
which
can take many forms, but the essence of which lies in violating the
dignity, repute or authority of the court. The offence
has, in
general terms, received a constitutional ‘stamp of approval’,
since the rule of law – a founding value
of the Constitution –
‘requires that the dignity and authority of the courts, as well
as their capacity to carry out
their functions, should always be
maintained.’
…
[8] In the hands of a
private party, the application for committal for contempt is a
peculiar amalgam, for it is a civil proceeding
that invokes a
criminal sanction or its threat. And while the litigant seeking
enforcement has a manifest private interest in securing
compliance,
the court grants enforcement also because of the broader public
interest in obedience to its orders, since disregard
sullies the
authority of the courts and detracts from the rule of law.
[9] The test for when
disobedience of a civil order constitutes contempt has come to be
stated as whether the breach was committed
‘deliberately and
mala fide
.’ A
deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled
to act
in the way claimed to constitute the contempt. In such a case, good
faith avoids the infraction. Even a refusal to comply
that is
objectively unreasonable may be
bona fide
(though unreasonableness could evidence lack of good
faith).
…
[42] To sum up :
(a) The civil contempt
procedure is a valuable and important mechanism for securing
compliance with court orders, and survives constitutional
scrutiny in
the form of a motion court application adapted to constitutional
requirements.
(b) The respondent in
such proceedings is not an ‘accused person’, but is
entitled to analogous protections as are appropriate
to motion
proceedings.
(c) In particular, the
applicant must prove the requisites of contempt (the order; service
or notice; non-compliance; and wilfulness
and
mala fides
)
beyond reasonable doubt.
(d) But, once the
applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential 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 was wilful and
mala fide
, contempt will have
been established beyond reasonable doubt.
(e) A
declarator
and other appropriate remedies remain available to a civil applicant
on proof of a balance of probabilities.”
(footnotes omitted)
[4] What remains for me to consider
then is whether or not the facts as demonstrated by the affidavits
provide a sufficient basis
for any of the employees of the first
respondent to be held in contempt of court.
[5] There are a number of disputes
which arise on the papers as follows :-
whether there was required to be, or
was in fact, service of the order. In my view where an order is
taken by consent between
the legal representatives present at court,
service generally becomes superfluous. In any event, there is no
doubt that the order
reached the attention of the first respondent
and its legal representative. The applicant’s attorneys admit
that a copy
of the order was faxed to them on the date on which the
order was made. The first respondent’s deponents do not
contend
that failure to serve the order resulted in its contents not
coming to their notice. In those circumstances any suggestion that
the order did not come to the attention of the first respondent or
its legal representatives cannot be sustained;
the reason why the service of the
order was raised as a dispute was perhaps because the applicant
avers that the order of court
had to be complied with by the 10
th
December 2010, and it is common cause that it was not complied with
by that date. That that was required is clear from paragraph
1 of
the order of Mokgohloa J. However, in its opposing affidavits the
first respondent’s representatives allege that an
agreement
was concluded between the legal representatives in terms of which
the order would be complied with by the 15
th
December
2010. The first respondent alleges that there was proper compliance
by no later than the 12
th
January 2011. As there seems to
be no prejudice to the applicant as a result of this particular
non-compliance, and because it
appears that the applicant’s
attorneys were on Christmas vacation for much of the intervening
period, nothing arises from
this period of non-compliance;
a further dispute between the parties
was whether it was necessary for the applicant to attach to the Z102
forms the information
regarding transfer of the applicant’s
service period, whilst he was in the employ of the University of
Zululand between
1977 and 1996, to the second respondent. The
allegation is made in the respondent’s opposing affidavit that
the applicant’s
attorney informed the respondent’s
attorney that that information was eventually given to the second
respondent by the
applicant, and that it should no longer concern
the first respondent. In addition there is no indication on the Z102
form that
this information is required.
[6] Deciding on these disputes of fact
as I have done, I have applied the test set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634 H – 635 C.
[7] What remains for me to consider is
whether the first respondent complied with the court order, and if
not, whether its employees
acted wilfully and mala fide.
[8] It is clear that the first
respondent used the salary scales which, in its view, were those to
which the applicant was entitled.
It did not use the salary scales
which had actually been paid to the applicant during his last years
of employment. Was the first
respondent entitled simply to complete
the form in such a way that it complied with the first respondent’s
own view of what
the applicant was entitled to earn?
[9] In argument before me, Mr
Quinlan,
who appeared for the first respondent, maintained that the first
respondent was obliged to use the salary scales contained in its
action, because to do otherwise would mislead the second respondent.
This could lead to an incorrect computation of the pension
fund
benefits applicable to the applicant, and could have resulted in the
second respondent subsequently proceeding against the
first
respondent to recover any overpaid amounts. This could occur in
circumstances where the first respondent was successful in
its action
against the applicant.
[10] The real problem which arises is
that nowhere in the application papers before me does it emerge that
the applicant or his
representatives addressed their minds to the
salary scales applicable when the consent order was discussed between
the parties’
legal representatives prior to the 7
th
December 2010. Had that been discussed and had it been made clear to
the first respondent that what it was expected to provide
in the Z102
form was the salary scales which had actually been paid, the consent
order would probably not have been taken. All
that the order required
was that the first respondent complete and sign Z102 form on before
the 10
th
December 2010 together with any further documents
as may be required ‘to effect to the applicant the payment of
his pension
benefit in and to the Second Respondent’.
[11] What the first respondent did was
fill in the form in accordance with what its employees believed were
the appropriate salary
scales. Both parties were, of course, aware of
the fact that the action under case number 3941/2010 had already been
instituted.
This should, perhaps, have alerted the applicant and his
legal representatives to articulate more fully the requirements of
the
consent order.
[12] The first respondent’s
representatives appear to have assumed that because the action had
been instituted by it, the
applicant’s representatives would
understand that those were the salary scales contended for by the
first respondent, and
therefore those were the salary scales they
would use. The applicant, on the other hand, steadfast in his
intention to claim what
he viewed as his rightful entitlement,
expected his actual salary payments to be reflected in the Z102 form.
[13] Because of the lack of any
evidence which deals with this aspect I am unable to decide, even on
a balance of probabilities
(which I appreciate is not the test), that
the first respondent has not complied with the terms of the order of
the 7
th
December 2010. Even were I to be so persuaded,
there is no basis on the papers before me from which I could conclude
that such
actions of the first respondent were mala fide or made with
the intention to frustrate or ignore the order of court.
[14] In those circumstances the
application to hold the first respondent’s employees in
contempt of the court order of the
7
th
December 2010
cannot succeed.
[15] I have considered the question of
costs. Whilst they would normally follow the result, I believe that
the problem arose as
a result of a misunderstanding on the part of
both parties. With a little more goodwill and co-operation between
the parties this
application could, and should, have been avoided. In
those circumstances I believe that it would be just and equitable
were each
party to bear their own costs.
[16] In the result I make the
following order :-
the application is dismissed.
Each party is pay their own costs in
the contempt application, such costs to include the costs of the
Application to Strike Out,
the Notice of Irregular Proceedings in
terms of Rules 30 and the reserved costs of the previous hearing.
Date of hearing : 24
th
October 2011
Date of judgment : 28
th
October 2011
Counsel for the Applicant : R
Padayachee SC (instructed by Nompumelelo Radebe & Company)
Counsel for the Respondent : P Quinlan
(instructed by Jafta Incorporated)