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[2010] ZALCJHB 378
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National Union of Mineworkers and Others v H & S Oprigters (GK) and Another (J2031/07) [2010] ZALCJHB 378 (22 June 2010)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: J 2031/07
In
the matter between:
NATIONAL UNION OF
MINEWORKERS
1
ST
Applicant
P. A. MOGOLA & 4
OTHERS
2
nd
and Further Applicants
and
H
& S OPRIGTERS
(GK)
1st Respondent
HERMAN
STEYN
2
nd
Respondent
REASONS
FOR JUDGMENT
LAGRANGE, J
1.
When handing down judgment in this matter on 22 June 2010, I advised
that brief written reasons would be provided for my decision.
These
are set out below.
2.
This is an application for an order finding the first and second
respondent guilty of contempt for failing to comply with an
award
issued by the second respondent on 4 April 2007 reinstating the five
individual applicants. The award was subsequently made
an order of
court on 5 December 2007, in a default hearing.
3.
In April 2008 the first respondent apply to rescind the court order,
but this application has never been heard. Despite a number
of
written requests by the applicants to the respondents to comply with
the award, the respondents did not.
4.
Not only is it common cause the first respondent and second
respondent were aware of the order, but the first and second
respondents
were aware of the contempt application. The second
respondent attended court on 21 June 2010 and gave evidence in his
own and the
first respondent’s defence.
5.
It should be mentioned that it was clarified at the hearing by the
respondents’ representative, Mr Voyo, that the correct
citation
of the first respondent is ‘H & S Oprigters (GK)’
rather than the english trade name ‘H & S
Erectors’.
It was also confirmed in an explanatory affidavit that the sole
member of the closed corporation is Mrs J S E
Steyn, the second
respondent’s spouse.
6.
In terms of the decision of the Supreme Court of Appeal in Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA), once it is established
that a court order exists, which has been served on the alleged
contemnor, and it has not been complied
with, then an evidentiary
burden, but not an overall evidentiary onus, falls on the accused to
establish a reasonable doubt that
the failure to comply was neither
wilful nor mala fide.[1] Given that the first three elements had been
met in casu, only the last
two issues need to be addressed.
7.
According to the evidence of Mr Steyn, he attended to the day-to-day
operations of the business, while his wife, the sole member
of the
corporation, attended to administrative matters. Steyn performs some
managerial functions but is an employee of the corporation.
He relied
for labour relations advice on a labour consultant who had been
engaged by the business since 2000. All correspondence
and process he
received in the matter were referred to the consultant who said he
would handle everything. From time to time Steyn
was required to sign
affidavits and the like. He could not dispute that he was aware
of the contempt proceedings but as a
rescission application had been
launched and based on the assurances of the labour consultant he was
confident the matter was being
dealt with.
8.
On the evidence available, I cannot say with confidence that Steyn’s
evidence has not raised a reasonable doubt that he
mala fide failed
to ensure the first respondent complied with the court order.
Accordingly, it cannot be said that the applicant
has established
that the respondents mala fide failed to comply with the court order.
9.
In the circumstances, the respondents’ cannot be held guilty of
contempt on this occasion. In any event, as Steyn
himself was
not a member of the corporation, but his wife, he was also probably
not correctly cited in his personal capacity as
responsible for
ensuring that the order was complied with. However, in the light of
my finding on the question of mala fides, it
is not necessary to
decide this.
10.
Nevertheless, the first respondent accepted that it had not complied
with the order reinstating the individual applicants despite
an
obligation to do so and undertook through Mr Vuyo, that it would do
so, thereby also demonstrating its intention of curing its
previous
failure in this regard.
11.
On the question of costs, Mr Vuyo conceded that an award of costs
against the respondent might be appropriate even if the application
was dismissed, in view of the respondent’s conduct in the
contempt proceedings. Had the applicants warned the respondents
they
would be seeking a punitive cost award, I would have been willing to
award the same, but as no special costs award was sought
none has
been made. However, despite the contempt application been dismissed,
the respondents conduct of proceedings and its failure
to give effect
to the award while taking no steps to expedite its rescission
application, leaves much to be desired. Had it not
adopted a dilatory
approach to the matter, these proceedings might have been brought to
a conclusion considerably earlier. For
this reason, the applicants
should not bear the cost of bringing matters to a head.
12.
In passing, I should mention that Mr Faku for the applicants pressed
the argument that as the award of the commissioner had
been made an
order of court, the first respondent’s failure to comply with
the court order meant that its failure to make
payment of the backpay
due to the applicant’s was a further act in contempt of the
court’s order. In this regard,
I must agree with Mr Vuyo,
that it is only orders ad factum praestandum that can be the subject
of contempt proceedings. All orders
which seek enforcement of a
judgment debt must be enforced by means of an issue of a writ of
attachment, and the consequent procedures
leading to a sale in
execution. In this case the debt for payment of backpay becomes
due and payable 48 hours after the reinstatement
of the individual
applicants in terms of the award. It is true that it is linked to
their reinstatement in terms of the award,
but I do not think this
robs the obligation to pay backpay of its essential character as a
debt owing to the applicants.[2]
13.
Should the first respondent fail to comply with its obligations to
pay the applicants’ backpay in terms of the award,
that part of
the arbitration award may still be enforced by means of execution of
a writ.
Order
14.
In the circumstances, the following order was made:
a. The citation of the
first respondent in the arbitration award and in this matter is
amended to read ‘H & S Oprigters
(GK)’.
b. The contempt
application against the first and second respondents is dismissed.
c. The first respondent
is ordered to pay all the applicants’ costs in the contempt
application proceedings.
d. The first respondent
must reinstate the second and further applicants by no later than 28
June 2010, failing which the applicants
may reinstitute contempt
proceedings in this matter.
ROBERT
LAGRANGE
JUDGE
LABOUR
COURT
Date
of Hearing: 21 June 2010
Date
of Judgment: 22 June 2010
Appearances
For
the Applicant:
Mr
T Faku of E S Makinta Attorneys
For
the Respondents:
Mr
N P Voyi of Ndumiso P. Voyi Attorneys
[1]
At
338, par [22] of the judgment.
[2]
See
in this regard
Minister
of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd and
Others
2006
(5) SA 333
(W) at 344-5, paras [14.3] to [14.5]