Minister of Health and Another v Bruckner (JA11/04) [2006] ZALAC 5; [2007] 5 BLLR 418 (LAC); (2007) 28 ILJ 612 (LAC) (6 December 2006)

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[2006] ZALAC 5
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Minister of Health and Another v Bruckner (JA11/04) [2006] ZALAC 5; [2007] 5 BLLR 418 (LAC); (2007) 28 ILJ 612 (LAC) (6 December 2006)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JA11/04
In
the matter between:
THE
MINISTER OF HEALTH
FIRST
APPELLANT
(Second Respondent in Court
a quo
)
THE
DIRECTOR GENERAL OF
THE
DEPARTMENT OF HEALTH
SECOND
APPELLANT
(Third Respondent in Court
a
quo
)
and
CHRISTELLE
BRÅ°CKNER
RESPONDENT
(Applicant in Court
a quo
)
J
U D G M E N T
McCALL
AJA
[1] The respondent
in this appeal is a graduate pharmacist who, until 24 March 1998, was
employed as the Deputy Director: Medicines
Registration in the
Department of Health (“the Department”). Because there have been
different respondents at various stages
of the proceedings leading up
to this appeal, she will be referred to, for convenience, as Ms
Brückner.
[2] Ms Brückner and
her immediate superior in the Department, Professor J. Schlebusch
(“Prof. Schlebusch”), who held the position
of Director:
Medicines Administration and Registrar of Medicines in terms of s. 12
of the Medicines and Related Substances Control
Act, No. 101 of 1965,
were removed from their respective positions on 24 March 1998.
[3] This removal
followed the submission to the then Minister of Health of a report by
a “
Review Team
” which had been
appointed by the Minister to review the existing process for the
regulation of medicines in South Africa and to
make recommendations
on this and related issues.
[4] The report had
concluded that the process of reform would be facilitated if Prof.
Schlebusch and Ms Brückner were “
released to undertake
other tasks in the health sector
”. This was
apparently because “
in the restructured organization
presented in the review team’s report, their present positions no
longer exist”
. The review team also concluded,
for reasons which it is not necessary to repeat here, that Prof.
Schlebusch and Ms Brückner were
not suitable for any posts to be
created in the new organization.
[5] The insensitive
and degrading manner in which Prof. Schlebusch and Ms Brückner were
deprived of their posts after many years
of service to the Department
is regrettable.
[6] Prof. Schlebusch
and Ms Brückner initially decided not to accept certain severance
packages which they were offered and, for
a period of five and a half
months, they were effectively suspended from their posts. After the
intervention of the Public Servants’
Association and its attorneys,
they were given positions different from their original positions and
which had been specially created
for them. Although these posts were
at the same salaries and with the same benefits which applied at the
time of the removal, they
were not of equal status and importance.
[7] Prof. Schlebusch
and Ms Brückner initiated proceedings in terms of Item 2(1)(b) of
Schedule 7 of the Labour Relations Act, No.
66 of 1965 (“the LRA”)
alleging that their removal from their positions had constituted
unfair conduct on the part of the Department
relating,
inter
alia
, to their demotion.
[8] The dispute was
referred to the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”). The arbitration proceedings
commenced
on 8 July 1999. On 26 November 1999 the Commissioner, Advocate J.
Hiemstra (“the Commissioner”), having heard evidence
over a
period of months, handed down his arbitration award. Implicit in
that award is a finding by the Commissioner that Prof. Schlebusch
and
Ms Brückner had been unfairly demoted.
[9] A summary of the
evidence led in the arbitration and the conclusions reached by the
Commissioner appear from his award which has
been reported under the
heading
Public Servants Association obo
Schlebusch and Another v Director General: Department of Health
(2000) 21 ILJ 706 (CCMA) and I shall refer to them only where
necessary for the purposes of this judgment.
[10] Although the
Commissioner apparently accepted evidence that Ms Brückner’s
position had been abolished, he said (734):-
“
No reason has, however,
been suggested why it cannot be restored.”
The Commissioner
proceeded to make the following award:-
“
The Department of Health is
ordered:-
To reinstate Mr J.
Schlebusch as Director: Medicines Registration and Registrar of the
Medicines Control Council.
To
reinstate Ms C. Brückner as Deputy-Director: Medicines
Registration.
To
pay the costs of Mr Schlebusch and Ms Brückner at the scale
applicable in the Labour Court of South Africa.”
[11] The Department
instituted review proceedings in the Labour Court in an attempt to
have the Commissioner’s award set aside.
Prof. Schlebusch and Ms
Brückner, on the other hand, applied to have the arbitration award
made an order of the Labour Court in
terms of s 158(1)(c) of the LRA.
[12] The only basis
upon which the Department opposed the application to have the award
made an order of Court was that Prof. Schlebusch
and Ms Brückner did
not have
locus standi
,
in that they were not cited as parties to the proceedings and it was
not pleaded by their trade union that the application was being
brought on their behalf.
[13] The presiding
Judge in the Labour Court, Pillay J, dismissed the application for
review of the award, with costs, and granted
the application for the
Commissioner’s award to be made an order of the Labour Court, with
costs. Her judgment was handed down
on 6 August 2001. The
Department did not seek leave to appeal against the judgment and
order of the Labour Court.
[14] A
settlement was reached with Prof. Schlebusch but Ms Brückner
required the Department to comply with the order of court. It
is
common cause that Ms Brückner has never been reinstated to the
position of Deputy Director: Medicines Registration which she
held
prior to 24 March 1998.
[15] On 6 September
2001 Ms Brückner’s attorneys wrote to the Director-General of the
Department recording that Ms Brückner had
not yet been reinstated to
her former position (incorrectly described in the letter as “
deputy
director, medicine administration”
instead of
“Deputy Director: Medicines Registration
”),
and pointed out that the Department was in contempt of the order of
the Labour Court. The attorneys called upon the Director-General
to
ensure that there was full compliance with the court order and said
that should this not occur within seven days they would have
no
option but to file an application in the Labour Court for “
an
order directing that the Honourable Minister of Health be
incarcerated pending compliance with the court order”.
[16] On 1 October
2001 the Department, through the offices of the State Attorney,
responded, saying:-
“
Kindly be advised that the
Department of Health will comply with the Court Order herein and Ms
Brűckner will be reinstated to the
position she previously
occupied
.”
[17] On
2 October 2001 the Director-General wrote to Ms Brückner, as
follows:-
“
I hereby inform you that you
have been re-instated in a post of Deputy Director in the Cluster:
Medicines Regulatory Affairs with
immediate effect. Please report
for duty in consultation with Ms Matsoso.”
Attached to the
letter was a job description of the post, in which the post is
designated “Deputy Director: Medicines Administration
and Document
Control.” It described the “Job purpose” of the position as
being:-
“
To provide administrative
support for the registration of medicines prior to the marketing to
ensure their safety, quality and efficacy.
Manage
and co-ordinate the activities of the subordinates within the
Sub-directorate: Medicines Administration and Document Control.”
The first of a
number of duties listed under the “
Duties attached to the
post
” is “
Professional control of the
medicines database
”.
[18] Ms Brückner
contends that the job description attached to the said letter
contained mostly administrative tasks which she had
previously
carried out in addition to her main functions as Deputy Director:
Medicines Registration. In her founding affidavit in
the proceedings
giving rise to this appeal (“
the contempt of court
application
”), she said:-
“
In my former position I
headed all activities related to the medicine registration process
and some control functions. In the alleged
re-instatement, my
functions are mainly of an administrative and supportive nature
.”
[19] To
this Ms Matsoso, the Chief Director: Medicine Regulatory Affairs of
the Department, who deposed to the answering affidavit
on behalf of
the Department, the Minister and the Director-General, responded as
follows:-
“
Save to deny that the
Applicant’s functions would be of administrative and supportive
nature and to state that the creation of the
position of Deputy
Director: Medicine Administration and Document Control was only
proposed to the Applicant during
our
consultations, the contents of this paragraph are admitted.”
Because Ms Brückner
refused to accept the newly created post, she remained in the
inferior position that had previously been created
for her, namely
that of Deputy Director: Pharmaceutical Expenditure.
[20] Ms Brückner’s
complaint is articulated by her counsel, in his Heads of Argument, as
follows:-
“
The principal issue is that Ms
Brűckner had, in her former position, been responsible to manage and
control the process of clinical
evaluation of applications for
registration of medicines,
inter alia
managing and
co-ordinating the professional staff who had to screen and evaluate
applications. Data control, the focus of the new
position, was a
minor adjunct to the former position.”
[21] It
is common course that on 14 October 2001 the Department caused an
advertisement to be published in a Sunday newspaper for
the position
of Director: Medicine Evaluation and Research. Ms Brückner contends
that the duties specified in the advertisement
are substantially the
same duties which she carried out before she was removed from her
post. The only difference was that the position
advertised was that
of Director, whilst the position she had previously held was that of
Deputy Director. Ms Matsoso, in her answering
affidavit, denies that
the two positions were substantially the same. Ms Brückner applied
for the position of Director: Medicine
Evaluation and Research, but
her application was unsuccessful. The position was subsequently
filled by one Mr Frank Hlangwane, who
was formerly one of her
subordinates.
[22] After an
exchange of correspondence between Ms Brückner’s attorneys and the
State Attorney, in which the latter alleged that
the Department had
complied with the order of the Labour Court, Ms Brückner, on 16
April 2002, instituted proceedings in the Labour
Court, by way of
notice of motion, to,
inter alia,
commit the Minister and the Director-General to gaol for contempt of
court.
In the case heading
in the contempt of court application, the Department of Health is
cited as first respondent, the Minister of Health
as second
respondent and the Director-General: Department of Health as third
respondent. However, in her founding affidavit in the
contempt of
court application, Ms Brückner says:-
“
3.3 The second respondent
is MANTO TSHABALALA-MSIMANG, the Honourable Minister of Health who
has been cited in these proceedings
as the Minister of State to whom
the executive functions of the first respondent have been assigned,
in terms of section 92 of the
Constitution of the Republic of South
Africa Act 108 of 1996…”
The
third respondent is AYANDA NTSABULA, the Director-General of the
first respondent, whose principal place of office is situate
at
Civitas Building, Cnr. Andries & Struben Streets, Pretoria.
The third respondent has been cited in the proceedings
in his
capacity as the head of the first respondent in terms of section
7(3)(a) as read together with schedule 1 of the Public
Service
Act, 1994.”
These averments were
admitted by Ms Matsoso in her answering affidavit.
[23] In
her founding affidavit Ms Brückner alleged that the first respondent
(“the Department”):-
“
has
purposefully gone out of its way to avoid compliance, despite the
numerous communications from my attorneys which recorded that
I was
left with no alternative but to approach the above Honourable Court
for the relief set out in the notice of motion”.
[24] She
further alleged:-
“
26. The
second respondent is the Minister of State to whom the executive
powers and functions regarding the first respondent have
been
assigned. The third respondent is the head of the department. He is
the accounting officer of the department. The second
and third
respondents are the functionaries who are responsible to ensure
compliance by the first respondent, with the court order”.
The
contents of this paragraph were admitted, without qualification, by
Ms Matsoso in her answering affidavit.
[25] The relief
sought by Ms Brückner in the Notice of Motion was an order in the
following terms:-
“
1. Declaring that the first
respondent has failed to comply with the court order dated 6 August
2001 which is annexed to the founding
affidavit marked “CB2”.
2. Declaring
that the second and third respondents are, jointly and severally, in
contempt of the court order in failing to reinstate
the applicant to
her former position of Deputy-Director, Medicine Registration or a
similar position.
3. Directing
that the second and third respondent (sic) be imprisoned for a period
of thirty (30) days or such other period as the
court deems
appropriate.
4. Directing
that the period of imprisonment of the second or (sic) third
respondents be suspended for a period of thirty (30) days
pending
compliance with the court order.
5. Directing
that the respondents be ordered to pay the costs of this application,
jointly and severally, the one paying the other
to be absolved.
6. Further
and/or alternative relief.”
[26] In her
answering affidavit Ms Matsoso says that she is authorized to depose
to the affidavit on behalf of the respondents (that
is to say all
three respondents). A supplementary affidavit was deposed to by Dr
Ayanda Ntsaluba, who was then the Director-General
of the Department
and the third respondent in the contempt of court application. At
the hearing of the appeal, it was common cause
that Dr Ntsaluba had
ceased to be the Director-General of the Department in August or
September 2003 and is now the Director General
of the Department of
Foreign Affairs.
[27] The contempt of
court application was heard by the Labour Court on 27 March 2003 and,
in a judgment handed down on 20 October
2003, Francis J. held that:-
“
(1) The second and third
respondents are found guilty of contempt of the Court order of 6
August 2001 and are committed for a period
of fifteen days’
imprisonment.
(2) The
order of imprisonment is suspended for sixty days to enable the
second and third respondents to make such arrangements as
might be
necessary to reinstate the applicant to her former position in terms
of the Court order of 6 August 2001.
(3) The respondents are to pay
the costs of this application, jointly and severally, the one paying
the other to be absolved.”
[28] The Minister
and the Director-General sought leave to appeal against the whole of
the judgment of the Court
a quo,
including the order for costs. The Department did not seek leave to
appeal despite the fact that it had been ordered to pay the
costs of
the contempt of court application, jointly and severally with the
other two respondents in that application. The heading
in the
documents relating to this appeal is incorrect and should have
referred to the Minister of Health as the first appellant and
the
Director General of the Department as the second appellant.
[29] Francis J
granted leave to appeal on 25 March 2004. In his judgment granting
leave he recorded that a new ground of appeal was
raised in the
appellants’ heads of argument. It was that the State Liability Act
No. 20 of 1957 (“the State Liability Act”)
precluded the granting
of paragraphs 3 and 4 of the Notice of Motion in the contempt of
court application, and that the Court was
accordingly precluded from
making the orders in paragraphs 1 and 2 of the order made by the
Court
a quo
. The
learned Judge further recorded that Mr Barrie, counsel for Ms
Brückner in this appeal, had contended that since the first
and
second appellants were cited in their personal capacities, as opposed
to their official capacities, the provisions of
sections 2
and
3
of
the
State Liability Act were
not applicable. He said that counsel
had advanced other reasons why another court would not follow the
decisions in
York Timbers Ltd v Minister of
Water Affairs and Forestry
2003 (4) SA 477
(T) (“the
York Timbers case
”)
and
Jayiya v MEC for Welfare, Eastern Cape
Provincial Government and Another
[2003] 2
All SA 223
(SCA) and
2004 (2) SA 611
(SCA) (“the
Jayiya
case
”). The learned Judge held that there
was no substance in Mr Barrie’s contention since it was quite clear
that the Minister and
the Director-General were cited in their
“official capacities”. As it was reasonably possible that
another court may find that
the Labour Court was precluded from
granting the orders it made, in terms of the
State Liability Act, he
granted leave to appeal.
[30] In their heads
of argument on appeal counsel for the appellants, in addition to
dealing with the merits of the findings of the
court
a
quo
, persisted in their contention that
s 3
of the
State Liability Act had
precluded the Court
a
quo
from granting the relief in paragraphs 1
and 2 of the order which it made relating to contempt of court. Mr
Barrie, in his heads
of argument, referred to the fact that the
defence based on
s 3
of the
State Liability Act was
raised for the
first time in the application for leave to appeal. He indicated that
in the event of the Court finding that
s 3
of the
State Liability Act
presented
a bar to the relief which the Court
a
quo
had granted to Ms Brückner, she intended
to apply for an order that the said
s 3
be declared to be contrary to
the Constitution and invalid and that a notice to this effect had
been delivered. It emerged that
such a notice in which the Minister
and the former Director-General were, for the first time, cited in
the case heading by name,
and which was dated 6 October 2004, was
telefaxed to the State Attorney and filed with the Registrar of this
Court on 11 November
2005, six days before the hearing of this
appeal. The notice does not cite nor is it directed to the
Department, as such.
[31] The position
is, therefore, that in the award made by the Commissioner, it was the
Department which was cited as the employer
party and it was the
Department, and not the Minister and/or the Director-General which
was ordered to re-instate Ms Brückner.
It was that award which was
made an order of the Labour Court. Although in the case heading in
the contempt of court application
the Minister and the
Director-General were cited as such, counsel for Ms Brückner
insisted, in argument before us, that they had
been cited in their
personal capacities, relying,
inter alia
,
on paragraphs 3.3 and 3.4 of Ms Brückner’s founding affidavit,
reproduced above.
[32] It will be
convenient to deal, at the outset, with the possible effect of the
State Liability Act on
these proceedings.
[33] When leave to
appeal was granted in the present matter, the
York
Timbers and Jayiya cases (supra)
had been
decided. Subsequent to the granting of leave to appeal, judgment was
delivered, on 21 July 2004, in the case of
Kate
v MEC for the Department of Welfare, Eastern Cape
2005 (1) SA 141
(SECLD) (“
Kate
’s
case”). In
Kate
’s
case Froneman J analysed the decision in
Jayiya’s
case (supra)
and counsel for the respondent
in the present case relied upon Kate’s case in support of certain
propositions. Before judgment
in the present case could be
finalized, the appeal against the decision in
Kate
’s
case was heard by the Supreme Court of Appeal. The judgment on
appeal is now reported as
MEC, Department of
Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 (4) SA 478
(SCA) (“
Kate
on
appeal”). It contains certain comments about what was said in the
Jayiya case (supra)
.
In addition, on 31 March 2006, the important judgment in
SA
Fakie N.O. v CCII Systems (Pty) Ltd
(“Fakie
N.O.”), now reported in
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) was delivered. It
deals with the question of the standard of proof in an application
for committal for contempt of court.
[34] In the light of
these two judgments, this Court considered it expedient to direct
that the parties submit further written heads
of argument dealing
with matters raised in those judgments. Because of administrative
problems, the respondent delivered her additional
heads of argument
first. After some delay, the appellants’ heads were delivered to
which the respondent was, in the circumstances,
permitted to reply.
The additional heads were very helpful and this court appreciates the
trouble taken by counsel in preparing them.
[35] The applicant
in the
York Timbers case (supra)
had applied, by way of notice of motion, for,
inter
alia
, an order that the first and second
respondents, being the Minister of Water Affairs and Forestry and the
Director-General of that
Department, respectively, be committed to
prison for contempt of court for failing to take the necessary steps
to comply with certain
undertakings which the Department of Water
Affairs and Forestry had given to the applicant, as set out in a
consent order of court.
Southwood J found that the Department and
the respondents knew about the consent order and had failed to comply
with certain of
their obligations in terms thereof. One of the
objections raised by the respondents to the grant of a committal
order was that the
State Liability Act, and
particularly
s 3
,
precluded the grant of a committal order against servants of the
State. This argument had been considered in
Mjeni
v Minister of Health and Welfare, Eastern Cape
2000
(4) SA 446
(Tk) (“Mjeni’s case”), one of a series of cases
resulting from the alarming tendency of certain government
departments not
to comply with judgments and orders of court.
[36] The preamble
and relevant sections of the
State Liability Act provide
as follows:-
“
ACT
To consolidate
the law relating to the liability of the State in respect of acts of
its servants.
1.
Claims
against the State cognizable in any competent court
. –
Any claim against the State which would, if that claim had arisen
against a person, be the ground of an action in any competent
court,
shall be cognizable by such court, whether the claim arises out of
any contract lawfully entered into on behalf of the State
or out of
any wrong committed by any servant of the State acting in his
capacity and within the scope of his authority as such servant.
2.
Proceedings
to be taken against Minister of department concerned.
–
(1) In any action or other proceedings instituted by virtue of the
provisions of section
one
, the Minister of the
department concerned may be cited as nominal defendant or respondent.
(2) For the purposes of subsection (1),
“Minister” shall, where
appropriate, be interpreted as referring to a member of the Executive
Council of a province.
3.
Satisfaction
of judgment
. – No execution, attachment or like
process shall be issued against the defendant or respondent in any
such action or proceedings
or against any property of the State, but
the amount, if any, which may be required to satisfy any judgment or
order given or made
against the nominal defendant or respondent in
any such action or proceedings may be paid out of the National
Revenue Fund or a Provincial
Revenue Fund, as the case may be.”
[37] Jafta J, who
delivered the judgment in the
Mjeni case
(
supra
) said,
regarding
section 3
of the
State Liability Act:-
“The
section and indeed the whole Act was not intended to place ministers
of State above the law but the intention of the Legislature
in
promulgating the Act was to prohibit attachment and/or execution
against the personal property of the Minister cited or that of
the
State. It forbids the process normally embarked upon by the sheriff
or messenger of the court in order to enforce a court order.
The
section does not deal with the arrest of Ministers found to be in
contempt of court orders.
In my conclusion that
Ministers of State and other public officials can be held in contempt
of court, I am fortified by the provisions
of s 173 of the
Constitution.”
Mjeni’s case
was followed in a number of other reported judgments referred to in
the
York Timbers case (supra)
at 501G.
[38] In the
York
Timbers case
(supra)
counsel for the respondents argued that all
of these judgments were wrong in finding that committal orders could
be made against Ministers
of State and other public officials on the
grounds of contempt of court. He referred to the Crown Liabilities
Act 1 of 1910, the
predecessor of the
State Liability Act, and
to the
interpretation of the Crown Liabilities Act in
Minister
of Finance v Barberton Municipal Council
1914
AD 335
(“the
Barberton Municipal Council
case”) and
Schierhout
v Minister of Justice
1926 AD 99
(“
Schierhout’s
case”), neither of which were referred to in
Mjeni’s
case (supra)
. The relevant extracts from the
judgments in those two cases are quoted in full in the
York
Timbers case (supra)
at 502-504 and I do not
intend to repeat them here. In the
York
Timbers case (supra)
Southwood J found that
the interpretation in the
Barberton Municipal
Council case (supra)
and
Schierhout’s
case (supra)
of the Crown Liabilities Act 1
of 1910 applied equally to the
State Liability Act. He
said, at
505D-E:-
“
I
consider this interpretation to be binding on me. I therefore
reluctantly conclude that
s 3
of the
State Liability Act would
preclude the execution of a committal order against a Minister or
other public official where the State has deliberately not complied
with an order of court. I say reluctantly because I find the
reasoning of Jafta J in
Mjeni
(at
452C-453H) and of Ebrahim J in the
East
London Transitional Council
case
(at 1138C-1140I) compelling”.
[39] Southwood
J said that the courts would have to comply with
s 3
of the
State
Liability Act (properly
interpreted) until that section had been
declared unconstitutional, but there was no application before the
court to declare it unconstitutional.
He found that although
s 3
of the
State Liability Act is
inconsistent with the provisions of s
195(f) of the Constitution that “
public
administration must be accountable
”,
it must be declared to be inconsistent with the Constitution and
invalid before the court may order the committal of the Minister
and
the Director-General on the grounds of contempt of court. He found,
however, that there was nothing wrong with declaring that
the
respondents were in contempt of the court orders “
as
the primary object of such exercise is to vindicate the rule of law
rather than to punish the transgressor
”
and accordingly granted such a declaratory order.
[40] In
his additional heads of argument, counsel for the respondent
submitted that the judgment in the
York
Timbers case (supra)
was wrong, but on the basis that after the enactment of the
Constitution, and, in particular, s 165(5), court orders do bind the
State and accordingly State officials whose responsibility it is to
see that the State complies with court orders
ad
factum
praestandum
can be held in contempt of court for their failure to do so. Counsel
for the appellants, on the other hand, argued that the
State
Liability Act must
be given effect to and that, in this regard, the
finding of Southwood J in the
York
Timbers case (supra)
was correct. They submitted that the finding of Southwood J was
supported by the decision in
Jayiya’s
case (supra)
paragraph [17].
[41] Much
of the confusion about the effect of the
State Liability Act and
about the interpretation of certain things which were said,
obiter,
by
Conradie JA in
Jayiya’s
case (supra)
have been cleared up by the judgment of Nugent JA in
Kate
on appeal. Regarding
Jayiya’s
case (supra)
Nugent JA said, at 487G-H:-
“(19) Much of what was
said in Jayiya is indeed
obiter
and the ratio in that case was decidedly narrow. Jayiya decided only
that the money judgment given against a Provincial Government
(which
is the construction that was placed on the relevant order) is not
enforceable by incarcerating for contempt a defendant who
has been
cited nominally for the Government if the Government fails to comply
with the order.”
He
further said, at 492E-H:-
“It goes without saying
that a public functionary who fails to
fulfil
an obligation that is imposed upon him or her by law is open to
proceedings for a
mandamus
compelling him or her to do so. That remedy lies against the
functionary upon whom the statute imposes the obligation, and not
against
the Provincial Government. If Jayiya has been construed as
meaning that the remedy lies against the political head of the
Government
department, as suggested by the Court below, then that
construction is clearly not correct. The remarks that were made in
Jayiya
related to claims that lie against the State, for which the
political head of the relevant department may, for convenience, be
cited
nominally in terms of
s 2
of the
State Liability Act 20 of
1957
, though it is well established that the government might be
cited instead. Moreover, there ought to be no doubt that a public
official
who is ordered by a court to do or to refrain from doing a
particular act, and fails to do so, is liable to be committed for
contempt,
in accordance with the ordinary principles, and there is
nothing in Jayiya that suggests the contrary.”
[42] The purpose of
the Crown Liabilities Act was summarized by Lord de Villiers, CJ in
the
Barberton Municipal Council case (supra)
at 345 as follows:-
“The act was
intended as a remedial measure to meet the numerous cases in which
redress was sought by individuals from the Government
for the
obtaining of which they had not even the Petition of Rights to fall
back upon. The real object of the Act is stated in the
first part of
the first section,
viz
,
that any claim which would as against a subject be the ground of an
action shall be cognizable by the Court if made against the
Government.”
That
intention is repeated in
section 1
of the
State Liability Act. The
purpose of
s 2
of the
State Liability Act, and
its predecessor, is to
permit a party bringing an action against the State to cite the
minister of the department concerned or a
member of the executive
council of a province as nominal defendant or respondent. This does
not mean that an action may only be
brought against the State or a
province by citing the Minister of the department concerned or a
member of the executive council for,
as pointed out by Nugent JA in
Kate
on appeal, the Government itself can be cited as defendant or
respondent.
[43] The purpose of
s 3
of the
State Liability Act is
to provide that where, in actions
against the State, a minister (as defined) is cited as the nominal
defendant or respondent, and
a judgment or order is made against the
minister as nominal defendant or respondent, no execution, attachment
or like processes may
be issued against the minister in his or her
personal capacity or against the property of the State.
[44] The
State
Liability Act is
not a bar to bringing an action against a public
official or functionary (including a minister), for an order to
compel that official
or functionary to fulfill an obligation imposed
upon him or her by law. Such an action is an action against the
public official
or functionary concerned and not an action against
the State.
[45] Finally, the
State Liability Act does
not prevent the institution of proceedings
for contempt of court against a public official or functionary who
has been ordered by
the court to carry out an obligation imposed upon
him or her by law and who has failed or refused to carry out that
obligation.
The remarks by Southwood J in the
York
Timbers case (supra)
to the effect that
s 3
of the
State Liability Act would
preclude the execution of a
committal order against a minister or other public official must now
be read as only applying to cases
in which action has been instituted
against the State, and either the State has been cited or the
Minister of the department concerned
has been cited as nominal
defendant representing the State.
[46] In the present
case, the Department of Health was cited as the employer party in the
arbitration proceedings and the arbitration
award (which was made an
order of the Labour Court) ordered that Department to reinstate Ms
Brückner.
No order was then made against the
Minister or the Director-General
, as being
the persons capable of bringing about the reinstatement of Ms
Brückner, to do whatever was necessary to achieve that purpose.
In
my view, what Ms Brückner ought to have done was to have applied for
a
mandamus
compelling
the Minister and/or the Director-General to take the steps necessary
to effect her reinstatement as Deputy Director: Medicines
Registration. Without first obtaining such a
mandamus
it was not, in my view, competent for Ms Brückner to seek an order
for the committal of the Minister and the Director-General to
gaol
for contempt of court.
[47] It was argued
on behalf of Ms Brückner, however, that contempt proceedings could
be brought against the Minister and the Director-General
as the
“organs of State”, as defined in s 239 of the Constitution,
responsible for ensuring that the order was carried out, on
much the
same basis as a director of a company may be held to be in contempt
of an order granted against the company. He referred
to
Twentieth
Century Fox Film Corporation and Others v Playboy Films (Pty) Ltd and
Another
1978 (3) SA 202
(W) where King AJ
said, at 203C-E:-
“
A director of a company who,
with knowledge of an order of Court against the Company, causes the
Company to disobey the order is himself
guilty of a contempt of
Court. By his act or omission such a director aids and abets the
Company to be in breach of the order of
Court against the Company.
If it were not so a court would have difficulty in ensuring that an
order
ad factum praestandum
against a company is
enforced by a punitive order.
Vide Halsbury
4
th
Ed Vol 9 at 75.”
That
case is distinguishable on the facts from the present case. The
director concerned had said that he would not comply with the
order
of Court, which the Court took to mean he would not cause the company
to comply with the order of Court. He was, therefore,
in the Court’s
view, guilty of aiding and abetting. In the present case the
appellants did not refuse to comply with the Court
order, they
contended that there had been substantial compliance by the
Department.
Counsel also
referred to
Höltz v Douglas and Associates
(OFS) CC en Andere
1991 (2) SA 797
(O) at
801D-802E, in which it was held that a person who contributes to the
offence of contempt of a court order, can, without being
a principal
offender, be punishable as an accomplice. That was not the basis on
which it was sought to commit the appellants for
contempt of court in
this case. In any event the order in this case was against the State,
which distinguishes the case from one
in which an order is granted
against a company. There is no provision such as the
State Liability
Act which
is available to protect a director of a company against
proceedings for contempt of court for failure to obey an order
against the
company.
[48] Ms Brückner’s
counsel relied heavily on the fact that in the contempt proceedings
in the Court
a quo
the
appellants were cited by name in the body of the founding affidavit
and upon the admission by the appellants in the court
a
quo
of paragraph 26 of Ms Brückner’s
founding affidavit in which she alleged that:-
“
The second and third
respondents are the functionaries who are responsible to ensure
compliance by the first respondent, with the
Court order.”
What Ms Brückner’s
counsel’s submissions overlook is the fact that the citing of the
appellants by name first took place in the
contempt proceedings.
Furthermore, whilst the admission by the appellants that they are the
functionaries who are responsible to
ensure compliance by the
Department with the court order, would obviously have been relevant
in an application brought against those
parties for a
mandamus
,
the admission alone could not have rendered the appellants guilty of
contempt of an order which was not made against them personally.
[49] I am
accordingly of the opinion that it was not competent for Francis J in
the court
a quo
to
find the appellants guilty of contempt of court and to order their
imprisonment. It was submitted on behalf of Ms Bruckner that
the
Court a quo should also have granted the declaratory order in par 1
of the order sought in the Notice of Motion. We were asked
to make
such an order. We are unable to consider Francis J’s failure or
refusal to make that declaratory order because Ms Bruckner
did not
note a cross appeal in regard to it.
[50] Although this
appeal must succeed it is still open to Ms Brückner to apply for a
mandamus
against
whoever would now be responsible for ensuring compliance by the
Department with the Court order for Ms Brückner’s reinstatement.
[51] The Department
did not appeal the order for costs against it in the Court
a
quo
. Therefore the order that the costs in
the Court
a quo
be
paid by the first respondent in that court must stand. As none of the
orders sought against the appellants should have been made,
there
should have been no order for costs against them in the Court
a
quo
.
[52] As far as
concerns the costs of appeal, as the appellants have been successful
the costs should follow the result and the appellants
are therefore
entitled to the costs of appeal.
[53] The
following order is made:-
The
appeal succeeds.
The
order granted by the Court
a quo
is set aside and the following order is substituted for it:-
“
1. The
application is dismissed.
2.
The first respondent is to pay the costs of
the application.”
C. The respondent on
appeal is ordered to pay the first and second appellants’ costs of
appeal.
………………………………………
..
McCALL
AJA
I
agree : ………………………………………..
ZONDO
JP
I
agree : ………………………………………
COMRIE
AJA
Date
of Hearing : 17 November 2005
Date of Judgment
: 6 December 2006
Appearances
For
the appellants : Adv. MJK Moerane SC and Adv. B Vally
Instructed by
: The State Attorney
For
the respondent : Adv. FG Barrie SC
Instructed by
: Bowman Gilfillan Inc.