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[2024] ZALCJHB 125
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South African Commercial Catering and Allied Workers Union obo Members v Transem (Pty) Ltd (JS1004/2016) [2024] ZALCJHB 125 (12 March 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 1004/ 2016
In the matter between:
SOUTH AFRICAN
COMMERCIAL CATERING
AND ALLIED WORKERS
UNION obo MEMBERS Applicant
And
TRANSEM (PTY)
LTD
First Respondent
ATTIE DU PLESSIS
Second
Respondent
Heard:
14 May 2021
Date of Reasons:
12 March 2024
This
judgment was handed down electronically to the parties by circulation
to them via email. The date for hand-down is deemed to
be on 12 March
2024.
REASONS
FOR ORDER
PRINSLOO, J
Background
[1]
The
Applicant
filed
an
ex
parte
contempt
application with this Court on 14 April 2021 for the Second
Respondent (Mr du Plessis), to appear in Court to show cause
why the
Respondents should not be found in contempt for failure to comply
with a Court order of 30 January 2020. The
ex
parte
application
was enrolled for hearing on 14 May 2021, when the Respondents opposed
the matter. It is apparent that the Applicant
served the
ex
parte
application
on the Respondents and did not comply with the provisions of the
Practice Manual of the Labour Court
[1]
.
[2]
The Respondents instructed counsel to
present their case in Court.
[3]
The
Court order
of 30 January 2020 ordered that the dismissal of the employees whose
names appear in annexure “A” of the
notice of motion was
substantively unfair and that they were reinstated retrospectively
with a backdated period of 12 months, from
date of the order.
[4]
The First Respondent (Transem) filed an
application for leave to appeal and when that was dismissed, a
petition was filed to the
Labour Appeal Court (LAC). On 31 March
2021, the LAC granted an order in the following terms:
‘
1.
The petitioner is granted leave to appeal to the Labour Appeal Court
against the judgment and order of the Labour Court
with the exception
of the findings in paragraphs 25 and 31;
2. The petitioner
is required to deliver the record of appeal within sixty (60) days of
this order;
3. Costs shall be
cost in the appeal.’
[5]
On
6 April 2021,
the Applicant wrote to Transem that the union’s members would
report and resume their duties on 12 April 2021.
Transem responded on
13 April 2021 to advise the Applicant that their interpretation of
the petition of appeal was incorrect as
paragraphs 25 and 31 of the
judgment, which was excluded from the appeal, only reinstated two
individual employees and that no
further employees would be
reinstated.
[6]
It
is
evident from the judgment that paragraph 25
thereof dealt with Ms Bettie Manganyi, who Transem conceded should
not have been dismissed
and paragraph 31 dealt with Mr Thabo Jonas,
whom Transem also conceded should not have been dismissed. Those two
employees were
the only ones who were excluded from the appeal.
[7]
The
Applicant
however insisted that all the employees were to be reinstated by 12
April 2021, failing which it would be approaching
this Court for
contempt. Transem insisted that the Applicant’s interpretation
of the petition of appeal was incorrect.
[8]
On 14 April 2021, the Applicant filed a
contempt application, seeking the
incarceration
of Mr du Plessis, alternatively that he be fined
for being in contempt of Court.
[9]
The Applicant submitted that Transem is
fully aware of the Court’s order of 30 January 2020, that it
failed or refused to
comply with the order and that the Respondents’
conduct is deliberate and intended to undermine compliance with the
Court
order.
[10]
When the matter was argued, Mr Ngoato,
appearing for the Applicant,
conceded
that Ms Bettie Manganyi and Mr Thabo Jonas were
back at work. Mr Ngoato argued that the contempt application was
brought in respect
of the other individuals mentioned in paragraph 31
of the judgment. It is evident that paragraph 31 did not grant any
relief, let
alone reinstate, the individuals mentioned in the said
paragraph. There was no finding made in respect of any other
individual,
apart from Mr Jonas, in paragraph 31 of the judgment.
[11]
The LAC only excluded
the
findings in paragraphs 25 and 31 of the judgment from the appeal,
which means that the remainder of the judgment was subject
to appeal.
Mr Venter for the Respondents submitted in Court that Transem wanted
to appeal the judgment of 30 January 2020, but
could not appeal
against the concessions that were made and for that reason, they were
excluded from the petition, and it was so
specified in the notice of
motion for the petition.
[12]
Mr Venter submitted that the Respondents
could only be in contempt of an order of this Court and the order
granted on 30 January
2020, which
ordered
that the dismissal of the employees whose names appear in annexure
“A” of the notice of motion was substantively
unfair and
that they be reinstated retrospectively with a backdated period of 12
months, is subject to appeal.
[13]
Mr Venter argued that it was unfortunate
that the Respondents were
dragged
to
Court in contempt proceedings as their attorney tried to engage with
the Applicant to explain that the petition did not exclude
the
remainder of the employees, yet the Applicant persisted with the
contempt of court application. The Respondents tried to dissuade
the
Applicant from proceeding and pleaded that they reconsider the
position. The Applicant was warned that the Respondents would
be
seeking a punitive cost order if the contempt application was
persisted with.
[14]
Mr Venter further argued that the
Respondents were forced to come to Court to defend an application
which was wrong in so many respects
– it was not brought on an
ex parte
basis,
the notice of motion was defective, there is no merit in the
application and it was vexatious. Mr Venter argued that the
Respondents are entitled to punitive costs, that the application be
so dismissed and that no further time and resources would be
spent on
it.
[15]
In
reply,
Mr Ngoato argued that the Applicant should not be
penalised for misunderstanding the Court order and should not be
ordered to pay
the costs.
[16]
The application was dismissed and the
Applicant was ordered to pay the costs on a party and party scale.
Request for reasons
[17]
Surprisingly
on 1
February 2024, two years and eight months after the matter was heard
and dismissed, Dockrat Inc. Attorneys, acting on behalf
of the
Applicant, requested reasons for “
Judgment
was handed down dismissing a rule 11 application on the 21 May 2021.
Kindly furnish us with written reasons for the judgment.
The Court
order is attached hereto for ease of reference”.
[18]
There are a few observations to be made.
Firstly, Dockrat Attorneys
requested
reasons almost three years after the matter was
dealt with. It is not clear what the purpose would be for requesting
reasons after
such a long period, but the request contributed
significantly to the burden of this Court. As the matter was dealt
with in May
2021, I had no recollection of what transpired and the
transcript of the Court proceedings had to be requested, at a cost
for this
Court, contributing to a further strain on the already
limited financial resources of this Court. I had to peruse the file
afresh
and provide reasons in 2024 on a matter that was dealt with in
2021. The load of this Court is well known, and it is regrettable
that limited resources should be spent on a request such as this one.
The Applicant is entitled to reasons, but the request should
in all
fairness be made within a reasonable time to avoid the unnecessary
spending of limited resources.
[19]
Secondly
, the
request made is confusing. Dockrat Attorneys requested reasons for a
judgment that was handed down, dismissing a Rule 11 application
on 21
May 2021. The attorneys should know that if a judgment was handed
down, it contains the reasons for the judgment and it is
non-sensical
to request ‘written reasons’ for a judgment that was
handed down.
[20]
This Court never dealt with a Rule 11
application and did not dismiss such an application on 21 May 2021.
The court order the attorneys
themselves attached to their request
for reasons is clearly an order issued on 14 May 2021.
[21]
To the extent that Dockrat Attorneys seek
reasons for the order issued on 14 May 2021, they are set out
infra.
Contempt of Court:
general principles
[22]
In
Bruckner
v Department of Health and others
[2]
,
the
Court dealt with the requirements for contempt and it was held that:
‘
It
is trite that an applicant in a contempt of court application must
prove beyond a reasonable doubt that the respondent is in
contempt.
An applicant must show:
(a)
that the order was granted against the respondent;
(b)
that the respondent was either served with the
order or informed of the grant of the order against him and could
have no reasonable
ground for disbelieving the information; and
(c)
that the respondent is in wilful default and mala
fide disobedience of the order.’
[23]
In
Anglo
American Platinum Ltd and another v Association of Mineworkers and
Construction Union and others
[3]
,
the
Court has held that:
‘
The
principles applicable in an application such as the present are
well-established. In
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)
,
the Supreme Court of Appeal observed that the civil process for a
contempt committal is a 'peculiar amalgam' since it is a civil
proceeding that invokes a criminal sanction or its threat. A litigant
seeking to enforce a court order has an obvious and manifest
interest
in securing compliance with the terms of that order but contempt
proceedings have at their heart the public interest in
the
enforcement of court orders (see para 8 of the judgment). The court
summarized the position as follows at para 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 on a balance of probabilities.”'
[24]
In
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited
[4]
(Matjhabeng),
the
Constitutional Court confirmed the requisites for contempt of court
as follows:
‘
I
now determine whether the following requisites of contempt of court
were established in
Matjhabeng
:
(a) the existence of the order; (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
.
It needs to be stressed at the outset that, because the relief sought
was committal, the criminal standard of proof − beyond
reasonable doubt − was applicable.’
[25]
The
Applicant
had to prove the aforesaid requisites beyond reasonable doubt.
[26]
To
establish non-compliance requires more than a failure to comply with
the order. In
Matjhabeng,
[5]
the
Constitutional
Court
affirmed
that contempt of court does not consist of mere disobedience of a
court order, but of “
contumacious
disrespect for judicial authority
”.
The requirement of wilfulness and
mala
fides
means that contempt is committed not by a mere disregard of the court
order, but by the demonstration of a deliberate and intentional
violation of the court’s dignity, repute or authority.
[6]
[27]
In casu,
Transem
was granted, on petition, leave to appeal the judgment of 30 January
2020, with the exception of paragraphs 25 and 31 of
the judgment. It
was common cause that the two employees, in respect of whom findings
made in the said paragraphs, were reinstated
and that the remainder
of the judgment was subject to appeal.
[28]
Section
18(1) of the Superior Courts Act
[7]
provides that:
‘
(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.’
[29]
It is trite that
the
default position is that the operation and execution of a decision
(other than a decision not having the effect of a final judgment)
are
suspended pending the outcome of an application for leave to appeal
or an appeal.
[30]
The Respondents did not comply with the
Court order of 30 January 2020, as it was
subject
to appeal. Non-compliance with a suspended Court order is not willful
or
mala fide
and
does not constitute contempt.
[31]
The Applicant could not prove contempt
beyond reasonable doubt and failed to satisfy the requirements to
prove that the Respondents
were in contempt of Court.
[32]
Insofar as costs are concerned, this Court
has a broad discretion in terms of section 162 of the Act to make
orders for costs according
to the requirements of the law and
fairness.
[33]
The
generally accepted purpose of awarding costs is to indemnify the
successful litigant for the expense he or she has been put
through by
having been unjustly compelled to initiate or defend litigation.
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[8]
,
it was emphasized that:
‘…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.’
[34]
The Respondent had to defend a contempt
application where the application should not have been brought in the
first place and where
the Applicant dismally failed to make out a
case for contempt. The Respondents’ attorneys attempted to
dissuade the Applicant
from proceeding with the application and
warned the union that if the contempt application was persisted with,
they would seek
a punitive cost order.
[35]
Fairness dictates that the Respondents
could not be expected to endure costs defending litigation that ought
not to have been brought
and SACCAWU,
a
well-established trade union was quite capable of considering the
consequences of instituting litigation where it was unable to
satisfy
even the basic requirements for contempt. The Applicant failed to
consider the effect and consequences of a pending appeal.
[36]
The Applicant had to put in some earnest
thought and consideration into the merits of this case before
proceeding and dragging the
Respondents to Court, more so where it
was warned by the Respondents’ attorneys that a cost order
would be sought.
[37]
It is for these reasons that the order on
14 May 2021 was issued and costs were awarded in favour of the
Respondents.
Connie Prinsloo
Judge of the Labour Court
of South Africa
[1]
Practice
Manual of the Labour Court of South Africa, effective 2 April 2013.
[2]
(2003)
24 ILJ 2289 (LC) at para 26.
[3]
[2014]
ZALCJHB 60; (2014) 35 ILJ 2832 (LC) at para 4.
[4]
[2017]
ZACC 35
;
2017 (11) BCLR 1408
(CC) at para 73.
[5]
Ibid
at para 65.
[6]
Dibakoane
NO v Van den Bos and Others; Van den Bos and Others v Gugulethu and
Others
[2021] ZAGPJHC 652 (17 August 2021) at para 29.5.
[7]
Act
10 of 2013.
[8]
[2012]
ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.