About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2019
>>
[2019] ZALAC 37
|
|
Ncanana and Another v Dual Products International (SA) CC and Others (JA150/17) [2019] ZALAC 37; [2019] 11 BLLR 1238 (LAC) (13 June 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA150/17
In the matter between:
MUSAWENKOSI
THEMBANI NCANANA
First
Appellant
NATIONAL UNION OF
METALWORKERS
OF
SOUTH
AFRICA
Second Appellant
And
DUAL
PRODUCTS INTERNATIONAL (SA) CC
First
Respondent
GERRY
VAN
RENSBURG Second
Respondent
STEPHEN
VAN
RENSBURG Third
Respondent
JACO
KOEN Fourth
Respondent
Heard:
23 May 2019
Delivered:
13 June 2019
Summary: Appeal
against adverse costs order upheld.
CORAM: COPPIN JA,
MURPHY
et
SAVAGE AJJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against the judgment of the Labour Court (Prinsloo
J) in a contempt application,
ordering the appellants, in effect, to
jointly and severally pay the costs of the fourth respondent (“Mr
Koen”), the
one paying the other to be absolved. Leave to
appeal was granted on petition.
[2]
The appellants contend that the Labour Court, in making such an
order, had not exercised
its discretion judicially. Mr Koen, who has
opposed this appeal, submits, in effect, that the costs order was
correctly made, in
that the appellants had cited him together with
the other respondents in contempt proceedings, but had failed to make
out a case
against him and the costs order was, therefore, justified.
The background facts
[3]
Until his dismissal on 29 July 2013, the first appellant (“Mr
Ncanana”),
a member of the second appellant (“NUMSA”),
was employed by the first respondent (“Dual Products”) as
an
assistant boilermaker at its plant in Boksburg. Mr Koen was the
workshop manager. Dual Products, a closed corporation, at all times
had two members namely the second respondent (Mr Gerry Van Rensburg)
and his son, the third respondent, Mr Stephen Van Rensburg
(“Mr
Van Rensburg”).
[4]
Following his dismissal, Mr Ncanana referred an unfair dismissal
dispute to the Metal
Industries Bargaining Council. The matter
eventually proceeded to arbitration, following an unsuccessful
conciliation. The arbitrator
found that Mr Ncanana’s dismissal
was substantively and procedurally unfair and required Dual Products
to retrospectively
reinstate him to the same position he held at the
time of his dismissal and on the same conditions that pertained then.
In addition,
Dual Products to pay him back pay in the amount of R
39,114 – 9 and Mr Ncanana was to resume work on 17 March 2014.
The employer
was to comply with the terms of the award within seven
days of the award having been served on it. The award was served on
the
employer on 18 March 2014, but there was no compliance with it.
[5]
On 27 May 2014, the award was certified by the Commission of
Conciliation Mediation
and Arbitration (the CCMA) in terms of section
143(3) of the Labour Relations Act
[1]
(“the LRA”) declaring the award binding. This enabled its
enforcement as contemplated in that section. Section 143(4)
of the
LRA provides – “if a party fails to comply with an
arbitration award certified in terms of subsection (3) that
orders
the performance of an act, other than the payment of an amount of
money, any other party to the award may, without further
order,
enforce it by way of contempt proceedings instituted in the Labour
Court”.
[6]
Mr Ncanana’s attempts to be reinstated were fruitless and he
was given “the
run-a-round”. On 24 January 2017, he again
attended at the premises of Dual Products in an attempt to achieve
compliance
with the award. In his affidavit in support of the
application for contempt, he states that he was told by Mr Koen to
come back
on 30 January 2017, as he (Mr Koen) wanted to consult with
the employer’s Legal Department. According to Mr Ncanana, when
he returned on 30 January he was met by Mr Van Rensburg and Mr Koen.
He was told by Mr Koen to only return on 1 February 2017 as
Mr Koen
wanted to check with the employer’s Human Resources Department
as to how they were going to comply with the terms
of the award.
According to Mr Ncanana when he returned on that date he was told by
Mr Koen that they were not going to comply with
the arbitration award
and Mr Koen gave Mr Ncanana a letter dated 31 January 2017, on the
letterhead of Dual Products and signed
on its behalf.
[7]
The letter advised Mr Ncanana as follows: “the Company received
notification
from your attorneys on 17 January 2017 that you would
report for duty at the premises of Dual Products International (SA)
CC on
24 January 2017. You then arrived at the premises of the
company on 30 January 2017 and were told to arrive at the company on
1
February 2017. The company places on record that your
representatives, as well as the sheriff of the court, was informed
that the
wrong entity was cited on the documentation presented and
that the documentation was therefore not binding. Despite the above,
the company attempted to resolve the matter and an offer was made by
means of a financial settlement, failing which to accept the
offer,
you had to report for duty. No response was received and you failed
to report for duty and it was deemed that you abandoned
your claim.
The company is unsure why you are attempting to revive your claim to
be reinstated after such a lengthy period as it
can be claimed that
you have absconded. It is proposed that a meeting be scheduled
between yourself, your representatives and the
company to resolve the
matter in an amicable manner”.
[8]
However, according to the appellants, it was the respondents,
including Mr Koen, who
had failed to take steps to comply with the
award. The appellants consequently brought an application in the
Labour Court, seeking
an order,
inter alia
, that all the
respondents be found guilty of contempt of court. On 20 April 2017,
the Labour Court issued a rule
nisi
,
inter alia
,
calling upon the respondents to explain their conduct by way of
affidavit. They were also to show cause why they were not to pay
the
costs of the application.
[9]
Mr Koen filed an affidavit in which he proclaimed his innocence, but
he did not directly
traverse the appellants’ averments
concerning his conduct when Mr Ncanana had come to the premises of
the employer, especially
on 24 January 2017, 30 January 2017 and 1
February 2017. Instead, Mr Koen spoke about events of 21 February
2017, March 2017, July
2017 and in August 2017 and, seemingly,
expressed surprise at his implication in the contempt proceedings.
He,
inter alia
, states in his affidavit that he was not aware
of the Labour Court orders that had been served and says that if he
had been aware
of them he would have appeared in court in response.
[10]
Mr Koen denies being involved in Mr Ncanana’s disciplinary
hearing and states that, apart
from knowing that Mr Ncanana’s
employment had been terminated after a disciplinary hearing, he had
no further knowledge of
the matter. He states: “to my knowledge
I cannot assist the honourable court in any manner or form pertaining
to the aforementioned
matter”. He goes on to request that he
should not be held liable for contempt, because his failure to attend
court on 24
March 2017 and 20 April 2017 was not due to his fault.
[11]
What is obviously missing from Mr Koen’s affidavit is a
response to the pointed averments
made by the first appellant (Mr
Ncanana) concerning Mr Koen’s complicity in the failure
or refusal of Dual Products
to comply with the award. Save for his
general denial of knowledge of the court orders, he failed to engage
the detailed averments
made by the appellants concerning his conduct,
particularly on the dates referred to above, which could be construed
as aiding
and abetting non-compliance with the certified award.
[12]
It appears that before the hearing, Dual Products and Mr Ncanana
entered into a written agreement
of settlement, in terms of which
Dual Products was to pay Mr Ncanana an amount of money. Even though
it is recorded in the preamble
of the settlement agreement that the
parties to the agreement were Dual Products and Mr Ncanana, clause
4.1 purports to extend
the settlement to all the parties. It is
recorded in clause 4.1 that the agreement was in full and final
settlement of the disputes
between the “applicants”
(referring to the appellants) and the “respondents”
(seemingly referring to all
the respondents identified on the face of
the settlement agreement, including Mr Koen). Alongside that clause
appear multiple endorsements
(i.e. not just of two parties). The
settlement agreement is dated 11 August 2017.
[13]
However, on that same date, the Labour Court made an order in the
following terms, which, at
best, is ambiguous about whether Mr Koen
was part of the settlement:
“
1.
The court order issued on 20 April 2017 is discharged.
2. The settlement
agreement entered into by and between the applicant and the first
respondent on 11 August 2017 and marked “X”
is made an
order of court.
3. The first and second
applicants are ordered to pay the fourth respondent’s costs,
the one paying the other to be absolved.”
[14]
Reasons for the costs order were requested on behalf of the
appellants on the same day as the
order. These were furnished on 24
August 2017. The Labour Court found,
inter alia
, that Mr Koen
had filed an affidavit in compliance with its rule
nisi
,
calling upon him to show why he should not be found guilty of
contempt of court. The Labour Court further made reference to
submissions
that were made on behalf of Mr Koen to the effect that
the appellants were to pay his costs because no case of contempt had
been
made out against him. The court then found that there had been
no proof that an award had been made against Mr Koen, or that he
was
in a position, or had the capacity to execute the order, as he was
merely a workshop manager.
[15]
Even though the Labour Court went on to refer to the broad discretion
that it had in terms of
the LRA to make costs orders according to the
law and fairness – it ultimately made its order on the basis
that the appellants
had “dismally failed to make out a case for
contempt against” Mr Koen, and found that “fairness
dictates that
he cannot be expected to endure costs for defending
litigation that ought not to have been brought against him in the
first place”.
[16]
This Court may only interfere with the Labour Court’s decision
on costs if it satisfied
that there has not been a judicial exercise
of its discretion in that regard.
[2]
This includes a situation where the Labour Court based its decision
on the wrong view of the facts or the law, or where it failed
to take
into account relevant facts. As has been held by this Court, the
award of costs does not necessarily follow on the result,
but is to
be based on an assessment of all the relevant facts, the law and
fairness,
[3]
success being only
one of the factors, albeit an important one, that is to be considered
in conjunction with other factors.
[17]
While the joinder of a party in contempt proceedings could have been
dispensed with where the
party merely acted as an agent of the
principal, the joinder may, nevertheless, be reasonable and thus
justified in the light of
the facts. Even though the award had not
been made against Mr Koen personally, he was implicated by the
appellants as an agent
of the employer who participated in the
employer’s efforts to frustrate the appellants and to not
comply with the award.
Even though he may not have been guilty of
contempt of court himself, the Labour Court failed to take into
account that he could
nevertheless be held liable for his conduct in
the contempt saga. In particular, the Labour Court did not take into
account that
even though he filed an affidavit, Mr Koen failed to
deal with the averments made by the appellants concerning his conduct
on specific
dates.
[18]
As regards the settlement, it is not altogether clear what the
intention with clause 4.1 was,
and whether the Labour Court had been
informed that Mr Koen was not part of the settlement. The fact that
the application against
Mr Koen was not dismissed supports the
perception that Mr Koen was part of it, but the fact that his costs
were still an issue
detracts from that perception, because the
settlement in clause 4.1 contemplates a full and final settlement of
all the disputes
between the parties identified in that clause. It
does not appear from the record before us how Mr Koen’s costs
still remained
an issue in those circumstances, but the Labour Court
should have clarified that aspect. In argument before us, counsel for
Mr
Koen informed us that Mr Koen was not part of the settlement. This
was not contested. There is, therefore, no need to deal any further
with the settlement.
[19]
Notwithstanding, the joinder of Mr Koen it cannot be said to have
been unreasonable in the circumstances,
in particular since the
conduct attributed to him is reasonably susceptible of being
constructed, at least
prima
facie
,
as aiding and abetting a wilful non-compliance with the certified
award. As has been held by the Constitutional Court in
Pheko
and Others v Ekurhuleni Metropolitan Municipality
:
[4]
“When a court order is disobeyed, not only the person named for
the party to the suit but all those who, with the knowledge
of the
order, aided and abetted the disobedience or wilfully, are party to
the disobedience [and] are liable. The reason for extending
the ambit
of contempt proceedings in this manner is to prevent any attempt to
defeat and obstruct the due process of justice and
safeguard its
administration. Differently put, the purpose is to ensure that no one
may, with impunity, wilfully get in the way
of, or otherwise
interfere with, the due course of justice or bring the administration
of justice into disrepute.
”
[20]
The facts, in that case, illustrate that even though the agent may
not be guilty of contempt
his, or her, conduct in relation to
non-compliance with a court order could merit censure in the form of
an adverse costs order
against him, or her. The appellants’
case against Mr Koen was essentially that he interfered in a manner
that was tantamount
to aiding and abetting the disobedience and
wilfulness of the employer in complying with the certified award. The
appellants’
pointed averments about the nature and extent of
his interference went unanswered. On the appellants’ version,
which was
not addressed by Mr Koen, he had knowledge of the certified
award at the relevant, material times.
[21]
In any event, Mr Koen’s conduct called for an explanation and
the appellants did not act
gratuitously and thus unreasonably, in
joining him in the contempt application. The fact that it may not
have been proven beyond
a reasonable doubt that Mr Koen’s
conduct amounted to contempt, was not (solely) determinative of the
question of costs.
His joinder to those proceedings was not without
reason and was justifiable. Since the issue of Mr Koen’s actual
liability
is not before us, I make no finding in that regard.
[22]
Although it is our view that the appeal should succeed it does not
follow that Mr Koen should
pay the costs of the appeal. Taking all
the facts, the law and fairness into account, there should,
similarly, be no order of costs
at this juncture.
[23]
In the result, the following order is made:
1.
The
appeal is upheld.
2.
The
order of the Labour Court that “the First and Second
Applicants… pay the Fourth Respondent’s costs, the one
paying the other to be absolved” is set aside, and is replaced
with the following order: “There is no order as to costs.”
3.
No
order is made in respect of the costs of the appeal.
___________________________
P
Coppin
Judge
of the Labour Appeal Court
Murphy
and Savage AJJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT: NE
Sithole
Instructed
by Mabaso Attorneys
FOR THE
RESPONDENT:
JP Duvenhage
Instructed
by Dippenaar Nieuwoudt Spector Attorneys
[1]
Act
66 of 1995.
[2]
See:
Merber
v Merber
1948 (1) SA 446
(A) 453;
NUMSA
and Others v Fibre Flair CC t/a Kango Canopies
[2000]
6 BLLR 631
(LAC) at 633-634;
Ball
v Bambalela Bolts (Pty) Ltd
[2013] 9 BLLR 843
(LAC) para 28.
[3]
See,
inter
alia
:
section 162
of the
Labour Relations Act, 66 of 1995
;
MEC
Finance: KwaZulu-Natal and Another v Dorkin NO and Another
[2008] 6 BLLR 540
(LAC) paras 19-20.
[4]
2015
(5) SA 600
(CC) para 47.