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[2021] ZALAC 27
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Ntsimane and Others v Memela (JA25/2020) [2021] ZALAC 27; (2021) 42 ILJ 2400 (LAC); [2021] 12 BLLR 1202 (LAC) (6 September 2021)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JA 25/2020
In the
matter between:
MOEKETSI
NTSIMANE First
Appellant
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY Second
Appellant
DIALE MOGASHOA
ATTORNEYS Third
Appellant
And
NONTOBEKO
MEMELA Respondent
Heard:
19
August 2021
Delivered:
Deemed
to be on 06 September 2021
Coram:
Waglay
JP, Coppin JA,
et
Kubushi AJA
JUDGMENT
COPPIN JA
[1] This
appeal is against the orders of the Labour Court (Prinsloo J) which
found the first appellant (Mr Ntsimane)
guilty of contempt of a court
order made by Whitcher J and finally ordering the third appellant
(Diale Mogashoa Attorneys), the
attorneys of record of the
appellants, to pay the costs of the contempt proceedings
de bonis
propriis
, i.e in their personal capacity, on the scale as between
attorney and client. Leave to appeal was granted on petition to this
Court.
[2] The
issues in this matter are, essentially, whether Mr Ntsimane was
correctly convicted of being in contempt
of the court order of
Whitcher J and whether it was regular and appropriate to mulct the
attorneys personally with the costs of
the contempt proceedings that
were brought by the respondent.
[3] No
heads of argument were submitted on behalf of the respondent. Shortly
before the hearing we were informed
by the appellants’
attorneys , through the Registrar that the respondent was no longer
legally represented and was not likely
to make any submissions in
respect of the appeal, despite all applicable notices having been
served upon her and her awareness
of the appeal date.
Re: the Factual matrix
[4] On
30 November 2018, the former city manager of the second appellant
(“the municipality”), on behalf
of the municipality,
suspended the respondent in terms of clause 16 of The South African
Local Government Bargaining Council Collective
Agreement (“the
disciplinary code”) on allegations of financial misconduct.
[5] In
terms of clause 16 of the disciplinary code, the suspension could be
for an initial three month period,
which could be extended for
another three month period pending the finalisation of investigations
into the alleged misconduct.
[6] On
28 February 2019, the municipality, through Mr Masola, extended the
initial three month period of suspension
for another three months.
This was permissible in terms of the disciplinary code.
[7] However,
being of the view, albeit mistakenly, that this futher suspension was
unlawful, the respondent unsuccessfully
sought the intervention of
the Labour Court,
inter alia
, for a declarator that the
extension was impermissible.
[8] After
expiry of the six month suspension period, the respondent again
approached the Labour Court alleging
that her continued suspension
was unlawful and in breach of her employment contract.
[9] In
response, the appellants purported to extend the suspension by yet
another three months. This was clearly
not permissible in terms of
the disciplinary code. On 20 June 2018, Whitcher J found accordingly
and made the following order:
“1. The continued suspension of
the applicant is unlawful and the respondents are to immediately
uplift same; 2. The [municipality]
must pay the applicant’s
costs.”
[10] On
24 June 2019, the appellants delivered an application for leave to
appeal the order of Whitcher J, the
effect of which was to suspend
its operation, and on 11 July 2019 Whitcher J granted the appellants
leave.
[11] A
day before the grant of the leave to appeal, the respondent had
brought an application in terms of section
18 of the Superior Courts
Act
[1]
for an order directing
the immediate implementation of the order made by Whitcher J pending
the outcome of the application for
leave to appeal, or any future
appeal that is to be noted by the appellants against that order.
[12] The
section 18 application was heard by Prinsloo J on 5 September 2019,
and was dismissed on 11 September
2019. The court made no costs order
in respect of that application, having found, in essence, that since
the appellants had done
nothing further to prosecute the appeal after
having been granted leave to appeal by Whitcher J, the appeal had
lapsed, and that,
in effect, a section 18 order was not appropriate
as the order of Whitcher J had become operative again and that the
appellants
had to comply with it.
[13] A
letter from the respondent’s attorneys to the appellants’
attorneys informing them that, in
light of the judgment in the
section 18 application the respondent would be returning to work,
prompted the appellants (through
their attorneys) to contemplate
delivering an application in terms of which they sought condonation
for the late delivery of the
notice of appeal (i.e. in their appeal
against the order made by Whitcher J). They accordingly informed the
respondent’s
attorneys that they would not allow the respondent
to return to work pending the finalisation of the contemplated
condonation application.
[14] The
respondent’s attorneys contested the implied assertion by the
appellants that the delivery of the
contemplated condonation
application could have the legal effect of suspending the operation
of the order of Whitcher J and asserted
the respondent’s right
to return to work pending the grant of the contemplated condonation
application.
[15] By
letter dated 12 September 2019 the appellants’ attorneys
informed the respondent’s attorneys
(at the time) that the
municipality had filed its notice of appeal in respect of the order
made by Whitcher J and contended that
such filing would have the
effect of suspending that order, and that the respondent could not
rely on it to return to work. The
letter also informed the
respondent, through her attorneys, that the disciplinary hearing
against her was to commence “in
the next week or two” and
that she would be served with a charge sheet by 17 September 2014.
[16] The
respondent’s attorneys took issue with the views expressed by
the appellants’ attorneys and
in the letter dated 12 September
2019 proffered the view that unless and until condonation for the
late filing of the notice of
appeal had been granted, the order of
Whitcher J “was operational and must be given effect to.”
[17] The
dispute escalated, when, a reply to the respondent’s attorneys,
dated 13 September 2019, the appellants’
attorneys intimated
that the municipality would not accept the respondent’s tender
of services pending the finalisation of
the disciplinary proceedings
against her.
[18] In
their response, the respondent’s attorneys pointed out that any
further suspension of the respondent
(i.e. in excess of the six-month
period allowed by the disciplinary code) would be unlawful.
[19] Despite
such intimation, on 16 September 2019, a letter signed by Mr Moeketsi
Ntsimane, then acting city manager
of the municipality, was delivered
to the respondent, yet again extending the respondent suspension for
another three months. According
to the letter, this came about
because the allegations of misconduct against the respondent had not
been finalised. The letter
also advised that the disciplinary charges
would be served on the respondent before the end of September 2019,
and informed the
respondent,
inter alia
, that “all
conditions previously set down in the initial suspension, [are] still
valid and in force.”
[20] After
the appellants refused to heed a demand from the respondent that they
withdraw this further suspension
letter, the respondent brought the
application in the Labour Court for an order holding them in
contempt, in particular, for the
failure of the municipality to
comply with the order of Whitcher J, and because of the letter of Mr
Ntsimane extending the respondent’s
suspension yet again
despite that order.
[21] The
court
a quo
(per Prinsloo J) rendered two judgments in the
contempt matter. The first dealt to the merits and costs, and the
second with the
issue of costs only. In the first, which was handed
down on 29 November 2019, Mr Ntsimane was found to have been in
contempt of
the order of Whitcher J and was committed to imprisonment
for a period of three months, suspended on condition that he complied
with that order, and Mr Ntsimane and the appellants’ attorneys
(Diale Magashoa Attorneys) were (provisionally) held to be
jointly
and severally liable for the costs of the application, de
bonis
propriis
and on the scale as between attorney and client. They
were given seven days within which to make submissions why the
provisional
costs order was not to be made final.
[22] The
rationale for the costs order in the first judgment being provisional
is apparent since both Mr Ntsimane
and the attorneys had not been
cited originally in the contempt application. Originally, the former
city manager, Mr Moeketsi Mosola
had been cited with the
municipality, as respondents.
[23] Submissions
were duly made on behalf of Mr Ntsimane and the attorneys,
respectively, to stave off the provisional
costs order. The second
judgment was then rendered in which the court a quo held the
following in respect of Mr Ntsimane:
“
[22] In
the submissions filed, it was explained that Mr Ntsimane was
oblivious of the fact that the appeal record
had not been filed and
that the appeal was consequently deemed to have been withdrawn until
the date of the contempt hearing. Until
then, Mr Ntsimane was under
the impression that that appeal was being prosecuted and that pending
the appeal, you are not required
to implement the court order granted
on 20 June 2019.
[23] It
was further submitted that Mr Ntsimane had the
bona fide
belief that the appeal was pending, which later turned out to be
deemed to have been withdrawn because the municipality’s
attorneys failed to file the record. This should not attract a
personal cost order against Mr Ntsimane, who was merely acting in
the
position for a period of three months.
[24] I
accept that, at the time when Mr Ntsimane had issued the suspension
letter to the applicant, he was
bona fide
in his belief that
the noting of the appeal suspended the execution and operation of the
court order that ordered that the continued
suspension of the
applicant was unlawful and which ordered the upliftment of the
applicants suspension with immediate effect.
[25] However,
this position had changed on 7 October 2019, when the deal became
deemed to be withdrawn. Based on
the submissions filed, it seems as
if Mr Ntsimane only learned of this fact on 22 November 2019 and that
this state of affairs
was not caused by Mr Ntsimane’s conduct,
but rather by his belief that the appeal was prosecuted in
circumstances where the
attorneys failed to file the record.
[26] The
municipality appointed attorneys to prosecute the appeal and in
circumstances where they failed to do
so, Mr Ntsimane should not be
burdened with an order for costs. As it is, Mr Ntsimane has been
found guilty of contempt as a direct
result of the attorneys’
failure to prosecute the appeal in accordance with the rules of the
LAC.
[27] In
my view it would not be fair to burden Mr Ntsimane with a personal
cost order in these circumstances.”
[24] The
portion of the second judgment was quoted in full because the
findings therein beg the question how Mr
Ntsimane was found to have
been in contempt of the order of Whitcher J in the first place, given
the circumstances which the court
accepted existed. And more
particularly, how a wilful and
mala
fide
disregard of the order of Whitcher J on the part of Mr Ntsimane could
be said to have been established, given that the establishment
of the
same, beyond a reasonable doubt, was essential before Mr Ntsimane
could be committed to imprisonment for being in contempt
of the
order.
[2]
[25] It
was not disproved that Mr Ntsimane was acting city manager for a
brief period; that he was oblivious of
the fact that the necessary
documents were not delivered by the appellants’ attorneys and
that he had
bona fide
belief that the order had been suspended
when he wrote the letter purporting to further suspend the
respondent. Mr Ntsimane only
became aware of the true state of
affairs subsequently and as a result of the contempt hearing.
[26] Mr
Ntsimane’s conduct was clearly not proved beyond a reasonable
doubt to have been wilful and
mala fide
in disobedience of the
order of Whitcher J, and he should therefore not have been found to
have been in contempt of it and to have
been committed to a term of
imprisonment. Accordingly, his conviction and sentence cannot stand
given the circumstances that were
accepted by the court
a quo
in the second judgment.
[27] Turning
to the costs order made against the attorneys - the order is premised
on the fact of Mr Ntsimane’s
alleged contempt. Significantly,
the court
a quo
did not find the municipality itself guilty of
contempt, but assigned the blame for the municipality’s failure
to comply
with the court order and to prosecute the appeal to the
attorney’s failure to adhere to the rules and procedures
relating
to appeals, aspects which an attorney could reasonably be
expected to have been very familiar with.
[28] In
the second judgment, the court
a quo
was justifiably
dismissive of the submissions made by the appellants’ attorneys
in which they sought to exonerate themselves
of all blame. They,
inter-alia
, argued that there was no factual or legal basis
for the costs order to have been made against them and, surprisingly,
contended
that it was instead their client, the municipality, that
had to be burdened with the costs.
[29] Needless
to say, the excuses made by the attorneys for their failure to comply
with the rules are patently
unacceptable. They were engaged for their
supposed expertise and professionalism, and the municipality could
reasonably have assumed
that all the procedural aspects would be
competently and timeously attended to.
[30] If
it were not for the fact that contempt had not been established, one
would have had no hesitancy to leave
the court
a quo
’s
punitive costs order intact. However, and fortunately for the
attorneys, since the contempt application itself cannot be
said to
have been successful, the stated rationale for justifiably penalising
them is absent. Therefore the costs order against
them cannot stand.
[30] Taking
all of the circumstances into account, it would have been fair and
appropriate in the circumstances
to make no costs order, instead of
burdening the respondent with the costs of the appellants’
opposition to the contempt
application.
[31] The
appeal against the order made by Whitcher J was not pursued in the
end and the matter before us only related
to the contempt application
(the first and second judgments of Prinsloo J).
[32] In
the result:
1.
The appeal against the orders of the court
a quo
is upheld;
2. The
orders of the court
a quo
are set aside and are substituted
with the following: “1. The application (for contempt) is
dismissed; 2. There is no costs
order.”
3.
There is no costs order in respect of the appeal.
P
Coppin
Judge of the Labour
Appeal Court
Waglay
JP and Kubushi AJA concur in the judgment of Coppin JA.
APPEARANCES: (There was a
virtual hearing via Teams)
FOR
THE APPELLANTS: JL
Basson and I Hlalethoa
Instructed
by Diale Mogashoa Attorneys
FOR
THE RESPONDENT: No
appearance and no heads submitted
[1]
Act
10 of 2013.
[2]
See,
inter
alia
,
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
others v Compensation Solutions (Pty) Limited
2017
(1) BCLR 1408
;
2018 (1) SA 1
(CC) ( 26 September 2017) paras 46-61
and 76;
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA).