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2024
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[2024] ZALCJHB 183
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Public Servants Association of South Africa obo Msibi v Department of Correctional Services and Another (J873/23) [2024] ZALCJHB 183; (2024) 45 ILJ 2049 (LC) (29 April 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
case
no:
J873/23
In
the matter between:
PUBLIC
SERVANTS’ ASSOCIATION OF SOUTH AFRICA
Applicant
OBO LUCKY NHLANHLA
MSIBI
and
DEPARTMENT
OF CORRECTIONAL SERVICES
First Respondent
MAKGOTHI
SAMUEL THOBAKGALE
Second Respondent
Heard
:
19 April 2024
Delivered
:
This judgment was handed down electronically by emailing a
copy to the parties on 29 April 2024. This date is deemed to be the
date
of delivery of this judgment.
Summary:
Application to hold respondents in contempt following failure to
implement arbitration award or review it. Applicant failed to
prove
requirements of contempt. Respondents challenged constitutionality of
section 143(4) of the LRA but laid no basis for challenge.
Non
joinder of Minister of Labour fatal to the constitutional challenge.
Application dismissed.
JUDGMENT
DANIELS
J
Introduction
[1]
This judgment relates to an application to hold the respondents in
contempt for their failure to comply with an arbitration
award issued
by the General Public Service Sector Bargaining Council (hereafter
the “GPSSBC” or the “Bargaining
Council”)
under case number GPPBC266-22 (hereafter “the award”).
[2]
For ease of reference, the first respondent will be referred to as
“the Department” or “DCS” and
second
respondent will be referred to as “the National Commissioner”.
Although the applicant in this matter is the
Public Servants
Association (the “PSA”) in this judgment “the
applicant” refers to the affected member
of the PSA, Mr Lucky
Msibi.
[3]
On 7 September 2023, Baloyi AJ issued a rule nisi
inter alia
ordering the National Commissioner to appear in court on 9 November
2023 to show cause as to why he was not in contempt, as contemplated
in section 143(4) of the Labour Relations Act No. 66 of 1995 (the
“LRA”). Baloyi AJ directed that the court order (issued
on 7 September 2023) be served personally on the National
Commissioner, and further ordered that respondents must bear the
costs
of the application if they opposed it.
[4]
On 9 November 2023, the rule was extended to 15 February 2024, with
costs reserved.
[5]
On 15 February 2024, once again, the rule was extended to 19 April
2024, with costs reserved. The matter came before me
on 19 April
2024. On that day, the National Commissioner was in attendance. After
argument, the matter was postponed to 14 May
2024, the rule nisi was
extended to that date, and judgment was reserved.
[6]
In his founding affidavit, applicant seeks an order that he is
entitled to his wages from the date of the award to the
date when the
application is launched. However, no such relief is sought in the
notice of motion. In the circumstances, there is
no need to determine
this issue in this judgment.
Material
facts
[7]
The Department dismissed the applicant, Mr Msibi, for alleged
misconduct on or about 28 February 2022. The applicant referred
a
dispute about the fairness of his dismissal to the Bargaining Council
for conciliation, and, when that failed, he referred the
dispute to
arbitration.
[8]
The arbitrator issued an arbitration award on 9 August 2022
reinstating Mr Msibi with effect from the date of his dismissal.
The
arbitrator ordered the Department to pay him backpay in the amount of
R132 706.25 on or before 26 August 2022.
[9]
Upon receipt of the award, on or about 5 September 2022, the DCS Area
Commissioner drafted and submitted a memorandum
to the DCS Regional
Commissioner. In it, the Area Commissioner advised that he and the
Regional Coordinator for Legal Services
believed there were prospects
of successfully reviewing the award. They recommended the review and
sought authorisation from the
Regional Commissioner to institute the
review. The Regional Commissioner accepted their recommendation on 6
September 2022.
[10]
On 13 October 2022, following receipt of a further memorandum
relating to the award, the DCS Director for Legal Services
approved
the institution of legal proceedings to review and set aside the
award.
[11]
On 21 October 2022, the DCS Area Commissioner addressed a letter to
the Office of the State Attorney instructing it to
launch an
application to review and set aside the award.
[12]
On 10 November 2022, the Director of the CCMA certified the award in
the manner contemplated by section 143 of the LRA.
[13]
The papers do not reveal that anything of significance occurred
between 10 November 2022 and the end of July 2023.
[14]
On or about 1 August 2023, the PSA launched this contempt
application. It served the application on the DCS, but only
included
an unsigned version of the founding affidavit. The PSA states that it
did so as a courtesy because the DCS was not entitled
to a copy of
the contempt application given that clause 13 of the Practice Manual
states that contempt applications must be brought
on an
ex parte
basis.
[15]
As previously mentioned, this court issued an order on 7 September
2023, in which it ordered
inter alia
that the National
Commissioner attend court on 9 November 2023. It also ordered the
respondents to file answering affidavits explaining
their failure to
comply with the certified arbitration award. The order stated that,
in the absence of the National Commissioner
attending court, or the
respondents explaining their failure to comply with the award, the
respondents would be found in contempt.
[16]
The respondents argue that they are not in contempt, and, in any
event, the provisions in section 143(4) of the LRA is
unconstitutional. When I heard the matter, the respondents had filed
an affidavit explaining their non-compliance with the court
order (s)
and the National Commissioner was in court.
Procedural
issues
[17]
In
SA
Municipal Workers Union v Minister of Cooperative Governance and
Traditional Affairs & another
[1]
(hereafter “
SAMWU
”)
Van Niekerk J (as he then was) considered whether Rule 16A of the
Uniform Rules of the High Court was applicable in this
court. Uniform
Rule 16A requires a party who raises a constitutional issue in the
High Court to prepare and place a notice on the
dedicated notice
board at court to alert all persons with an interest in the matter.
Van Niekerk J (as he then was) held that this
court was governed by
its own rules and, while this court may look to the Uniform Rules for
guidance, if necessary, this was a
matter for the court’s
discretion. In
SAMWU
,
Van Niekerk J found that Rule 16A need not be applied. I see no
reason to take a different approach in this matter.
Constitutional
challenge
[18]
In its answering affidavit, and during argument, the second
respondent contended that section 143(4) of the LRA is
unconstitutional
on the following basis:
Section
143(4) allegedly impinges several rights in section 35 of the
Constitution including: the right to freedom and security
of person,
the right to remain silent, the right to be promptly informed of the
right to remain silent, the right not to be compelled
to make any
confession or admission, the right to a fair trial, the right to be
presumed innocent until proven guilty.
18.1
Section 143(4) allegedly permits the granting of an interim order
against a respondent without the knowledge of
that respondent.
Analysis
of the constitutional challenge
[19]
The crime
of contempt of court, in the form of scandalising the court, survived
early constitutional scrutiny. In
S
v Mamabolo
[2]
the Constitutional Court, per Kriegler J (as he was then) explained
the importance of the institution as follows:
“…
the
constitutional position of the judiciary is different, really
fundamentally different. In our constitutional order the judiciary
is
an independent pillar of state, constitutionally mandated to exercise
the judicial authority of the state fearlessly and impartially.
Under
the doctrine of separation of powers it stands on an equal footing
with the executive and the legislative pillars of state;
but in terms
of political, financial or military power it cannot hope to compete.
It is in these terms by far the weakest of the
three pillars; yet its
manifest independence and authority are essential. Having no
constituency, no purse and no sword, the judiciary
must rely on moral
authority. Without such authority it cannot perform its vital
function as the interpreter of the Constitution,
the arbiter in
disputes between organs of state and, ultimately, as the watchdog
over the Constitution and its Bill of Rights —
even against the
state.”
[20]
In the pre-constitutional era, under our common law, applicants in
contempt proceedings were required to prove the elements
of contempt
on a balance of probabilities. This has changed with the introduction
of our Constitution, our supreme law.
[21]
The Supreme
Court of Appeal (the “SCA”) in
Fakie
NO v CCII Systems (Pty) Ltd
[3]
(hereafter
“
Fakie
”)
with the majority judgment penned by Cameron JA (as he then was)
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
.”
(Own
emphasis)
[22]
Unlike
public prosecution for a criminal offence, an order of contempt of
court usually
has
,
as its primary object, inducing the contemnor to obey the terms of
the previous order.
[4]
[23]
Cameron JA (as he then was) noted that although t
he
respondent in contempt proceedings is not an 'accused person' (as
contemplated in section 35 of the Constitution) he or she is
still
entitled to analogous protections in motion proceedings.
[24]
At para 42, Cameron JA (as he then was), succinctly set out
the requirements for contempt.
The SCA held that
an applicant must prove all the requirements for contempt –
existence of the order; service of the order;
non-compliance;
willfulness and
mala fides
– and all these elements must be proved beyond reasonable
doubt. The applicant bears the onus but, once the applicant has
proven the order, service or notice of the order, and non-compliance,
then the respondent bears an evidential burden in relation
to
willfulness and
mala fides
.
If the respondent fails to advance evidence that establishes
reasonable doubt as to whether the non-compliance was willful
and
mala
fide
then
contempt will have been established beyond reasonable doubt. The
weightier onus marks a significant shift from our common
law - which
only required the applicant to prove the elements of contempt on a
balance of probabilities.
[25]
Accordingly, primarily because civil contempt may
lead to loss of liberty, the applicant bears the onus of proving the
elements
of contempt beyond reasonable doubt. These protections still
exist in section 143(4) of the LRA. Civil contempt does not permit
the arbitrary deprivation of liberty.
[26]
In
Pheko
and others v Ekurhuleni Metropolitan Municipality
[5]
the issue of contempt was again considered by our Constitutional
Court. The court endorsed the findings in
Fakie
,
and, seemingly, also endorsed its view that the respondent in civil
contempt is not an accused person entitled to the rights under
section 35 of the Constitution. The court confirmed that “civil
contempt”, a form of relief sought through civil proceedings,
relates to conduct
ex
facie curiae
apropos a wilful disregard of order of court. The court also
confirmed that because civil contempt is a criminal offence, it may
also be determined through criminal proceedings, the object of which
would be punitive. The court held that civil contempt may
be both
punitive and coercive, but usually it is only coercive (upholding the
dignity of court by coercing compliance with the
court order).
[27]
Turning to
the challenge in this matter, it is important to bear in mind that
the Labour Court Practice Manual is binding on the
parties and this
court.
[6]
[28]
Clause 13 of the Practice Manual provides for a court order summoning
the respondent to court to explain his or her conduct
(re non
implementation of the award) through an affidavit. The Practice
Manual requires personal service of the court order on
the
respondents. The Practice Manual does not shift the onus, which
remains with the applicant – who must prove all the
requirements for contempt beyond reasonable doubt (although the
burden of proof shifts to the respondent after the applicant has
proven the existence of the order, service of the order, and
non-compliance).
[29]
The
respondents assume that the court order dated 7 September 2023 makes
an interim finding that they are in contempt. This is incorrect.
The
order merely directed the respondents to appear before court and to
provide an explanation on affidavit.
[7]
The order states that
if
the respondents fail to comply with
its
order, they will be found guilty of contempt. Accordingly, the
respondents are not simply found guilty of contempt because of their
non-compliance with a certified award. Instead, by not complying with
an order of this court, after it has been served on them,
the
respondents’ risk being found in contempt of this court.
[30]
The
respondents assume, without any real foundation or analysis, that the
fundamental rights enshrined in section 35 of the Constitution
(which
appears to relate only to criminal case proper) are also applicable
in the context of civil contempt. This is incorrect.
While civil
contempt has a criminal dimension, it follows the rules of civil
procedure.
[8]
As Cameron JA (as
he then was) put it: “
the
civil
process for a contempt committal
is an oddity that is distinctive in its
combination
of civil and criminal elements
,
and
it
seems undesirable to straitjacket it into the protections expressly
designed for a criminal accused under section 35
.”
[9]
(Own emphasis)
[31]
Furthermore, while the respondents cry foul because section 143(4)
impinges certain rights in section 35 of the Constitution,
they do
not engage with the limitations analysis required by section 36(1) of
the Constitution.
[32]
Section 36(1) of the Constitution provides that limitations of
fundamental rights must be reasonable and justifiable
in an open and
democratic society based on human dignity, equality and freedom,
taking into account all the relevant factors
including
: (a)
the nature of the right; (b) the importance of the purpose of the
limitation; (c) the nature and extent of the limitation;
(d) the
relation between the limitation and its purpose; and (e) less
restrictive means to achieve the purpose. It is not enough
to say
that a particular statutory provision impinges on other fundamental
rights. Most fundamental rights are limited by statute
in some or
other manner. The issue is whether the limitation is reasonable and
justifiable as contemplated in the Constitution.
[33]
It is improper for a party to raise a constitutional challenge by
simply stating that the impugned statutory provision
limits
fundamental rights and to then leave it to the court to conduct the
analysis required by section 36(1). The respondents
do not attempt to
deal with the factors in section 36(1). The respondents do not say
why the limitation of the rights in section
35, assuming such rights
are applicable in civil contempt, do not pass constitutional muster.
On this basis alone, the constitutional
challenge falls to be
dismissed.
[34]
In any
event, assuming section 143(4) of the LRA does indeed limit
fundamental rights under section 35 of the Constitution, which
I do
not accept, I believe that the limitation of such rights is
reasonable and justifiable in an open and democratic society based
on
equality and freedom taking into consideration all the factors in
section 36(1) of the Constitution. The limitation analysis
must begin
with the purpose of section 143(4). Section 143(4) of the LRA is
essential to the functioning of key dispute resolution
processes in
the LRA, the rule of law,
[10]
the effective resolution of labour disputes, and, of course, the
constitutional right to fair labour practices – which
encompasses
the right against unfair dismissal. Given that the
respondents do not engage in the limitations analysis at all, it is
unnecessary
to explore these issues further. The respondents should
have explained why they contend that section 143(4) falls foul of
section
36(1) of the Constitution. It is not for this court to do the
work of the respondents.
[35]
As earlier explained, the fundamental rights of an accused person,
under section 35 of the Constitution, are not implicated
in civil
contempt proceedings. Even if I am wrong on this, there are no
submissions to the effect that the limitation of such rights
is
unreasonable as contemplated in section 36(1) of the Constitution.
For these reasons, the constitutional challenge is misconceived
and
falls to be dismissed.
[36]
During argument, the respondents asked which court or body are the
respondents in contempt of? The respondents argued
that where the
award is certified (but not made an order of court) there can be no
contempt of court. With respect, this misses
the point. The order is
that of this court taken on an
ex parte
basis. The
ex parte
order holds no consequence for the respondents unless they fail or
refuse to comply with the order. The respondents can only be
found in
contempt if they fail to appear in court as directed by this court,
or if they fail to provide an explanation (satisfactory
to this
court) under oath for their failure to comply with the certified
arbitration award. By failing to comply with an order
of this court a
respondent would violate the dignity, repute, or authority of the
court.
Contempt
of court: general principles
[37]
Disregard
of a court order “
not
only deprives the other party of the benefit of
that
order
but also impairs the effective administration of justice
”.
[11]
[38]
As previously mentioned, the applicant in contempt
proceedings, must prove the existence of an order, service of the
order
on the respondents, non-compliance with the order. These
requirements must be proved beyond reasonable doubt. Thereafter, the
respondents
must raise reasonable doubt as to the wilfulness and male
fides of their non-compliance. If the respondents cannot do so, the
applicant
is deemed to have proved those elements beyond reasonable
doubt. The onus of showing that the non-compliance was wilful and
male
fides remains on the applicant, such onus to be discharged
beyond reasonable doubt.
Contempt
by the first or second respondents?
[39]
The facts demonstrate that the respondents took concrete steps to
review the award, and they took such steps within the
statutory time
periods to launch a review application. Unfortunately, the Office of
the State Attorney let them down. The facts
demonstrate that the
respondents held a bona fide, though mistaken, view that review
proceedings had been initiated. Of course,
it may be argued that the
respondents should have followed up with the State Attorney, but
there was no reason for them to believe
that the State Attorney had
not complied with their instructions.
[40]
It is correct that that reviews do not, by themselves, suspend the
operation of the award, but the launch of a review
application -
where security is furnished in accordance with section 145(8) - does
suspend the operation of the award. The first
respondent, being a
government department, has the resources to easily furnish such
security. The first and second respondents
therefore had every reason
to apprehend appropriate security was furnished.
[41]
In these circumstances, the applicant cannot prove beyond a
reasonable doubt that the respondents’ failure to implement
the
award was deliberate and male fides. The respondents held a bona
fide, but mistaken, belief that the operation of the award
had been
suspended. For this reason, the applicant cannot succeed.
[42]
However, although the application falls to be dismissed, the
respondents are now aware that the award has not been reviewed
nor
has the award been implemented. It is a simple matter for the
applicant to demand compliance, or to demand the filing of a
review
application by a specified date, and thereafter (if necessary) to
bring a further contempt application based on new facts
and
circumstances. All is not lost for the applicants who can still
enforce the award.
Non
joinder
[43]
Unfortunately,
though this issue was not raised at the hearing, the non-joinder of
the Minister of Employment and Labour (the “Minister”)
renders a fatal blow to the constitutional challenge. The Minister,
the most senior person in the executive who is directly responsible
for the administration of the LRA, has a clear interest in any
constitutional challenge relating to the LRA and should have been
joined. In
Helen
Suzman Foundation v President of the Republic of South Africa and
others
[12]
the Constitutional Court stated:
“
13] Parliament
is, however, not to be cited when the substance of a provision is
challenged, save under exceptional circumstances,
like where
Parliament or the provincial legislature itself initiated and
prepared legislation as was the case in Premier,
Limpopo
Province.
Ordinarily, it is the executive branch that
initiates, prepares and introduces draft legislation in the National
Assembly.
Only thereafter does Parliament get down to
the business of ensuring that constitutionally prescribed procedures
are followed
in passing Bills into law.
For this
reason, when the content of legislation is impugned, it is usually
only the executive that must be cited
.
” (Own
emphasis)
Conclusion
[44]
For the
reasons set out above, the challenge to the constitutionality of
section 143(4) of the LRA must fail.
[13]
However, even if I am incorrect on my analysis of that section, the
constitutional challenge falls to be dismissed on the basis
that the
respondents failed to join the Minister.
[45]
In the circumstances, the applicants have failed to prove all the
requirements for contempt beyond a reasonable doubt.
They have not
proven beyond reasonable doubt that respondents’ non-compliance
was wilful and male fides. The application
to find the respondents in
contempt is therefore dismissed. There is no order as to costs, nor
is costs awarded in respect of other
dates when costs were reserved
by this court.
R Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Mr Ngomane
Instructed
by:
Ngomane Attorneys
For the Respondent:
Adv C Erasmus SC
Instructed
by:
State Attorney
[1]
(2024) 45 ILJ 595 (LC)
[2]
[2001]
ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (11 April
2001)
[3]
2006 (4) SA 326 (SCA)
[4]
Fakie
at
para 7
[5]
2015 (5) SA 600
(CC);
2015 (6) BCLR 711
(CC) (7 May 2015)
[6]
See
clause 2.2 of the Practice Manual. See
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner &
others
(2014)
35 ILJ 1672 (LC) at para 11,
Ralo
v
Transnet Port Terminals & Others
(2015) 36 ILJ 2653 (LC) at paras 8 and 9,
Samuels
v Old Mutual Bank
(2017) 38 ILJ 1790 (LAC) at para 15, and
Macsteel
Trading Wadeville v Van der Merwe NO & others
(2019) 40 ILJ 798 (LAC) at para 22.
[7]
The
affidavit must set out the reasons for non-compliance with the
certified award.
[8]
Fakie
at
para 11
[9]
Ibid
at para 26
[10]
Respect
for the role and authority of the courts is fundamental to rule of
law
.
See
Burchell v Burchell
(ECJ
010/2006) [2005] ZAECHC 35 (3 November 2005);
See
also
Fakie
at
para 35
[11]
Love
and Sufrin in
The
Law of Contempt
3rd Ed (Butterworths London) 1996 at 656
[12]
2015 (2) SA 1 (CC)
[13]
When
the court asked the respondents representative whether contempt of
the CCMA, as envisaged in section 142(8) of the LRA was
also
unconstitutional, the respondents answered that such section was
constitutional because it fulfills an important purpose.