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[2011] ZALCJHB 2
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Suid Afrikaanse Onderwyserunie and Another v Head of Department, Gauteng Department Education and Others (J2468/10) [2011] ZALCJHB 2; [2011] 7 BLLR 720 (LC); (2011) 32 ILJ 1427 (LC) (25 January 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Case number
J2468/10
In the matter
between:
SUID AFRIKAANSE
ONDERWYSERUNIE
….............................
1
st
Applicant
NATIONAL
PROFFESSIONAL TEACHERS’
ORGANISATION OF
SOUTH AFRICA
…..................................
2
nd
Applicant
And
THE HEAD OF
DEPARTMENT, GAUTENG
DEPARTMENT
EDUCATION
…...............................................
1
ST
Respondent
THE MEC FOR
EDUCATION, GAUTENG
…........................
2
ND
Respondent
THE MEC FOR
FINANCE, GAUTENG
…..............................
3
RD
Respondent
THE PREMIER OF
GAUTENG
…..............................................
5
th
Respondent
THE DIRECTOR
GENERAL OF
TREASURY PERSAL
…...............................................................
6
th
Respondent
SITA (PTY) LTD
…........................................................................
7
th
Respondent
Judgement
Molahlehi J
Introduction
This is an urgent
application in terms of which the applicants sought an order to have
the second to the sixth respondents declared
to be in contempt of
court for failing to comply with the order which was made by
Steenkamp J on the 21 December 2010. In that
order the respondents
were ordered to refund all monies deducted from the salaries of the
applicants’ members pertaining
to the public service sector
strike that took place towards the end of 2010. The refund was to be
made pending the compilation
of a factually correct database
regarding attendance at schools by members of the applicants during
the strike action. The respondents
were also ordered to pay the
applicants’ costs.
On the 11
th
January 2011 this court made an order on the following terms:
“
The
first, second, fifth and sixth Respondent are ordered to comply with
the order of this Honourable Court made by Steenkamp
J (on 21
December 2010) on or before 14th January 2011;
In the event of
the Respondents failing to do so , they will be in contempt of the
aforesaid order and to show cause on or before
25
th
January 2011 why an order in terms of the notice of motion dated 3
rd
January 2011 should not be granted;
The judgment in
relation to costs is reserved.”
The only issue
which this court needs to determine in this judgement concerns to
the issue of costs. The applicants as will appear
more in details
later contend that the respondents should be ordered to pay costs on
a punitive scale.
Background facts
The general
background concerning the deductions which were effected by the
respondents are set out in the judgement of Steenkamp
J. It is not
necessary in my view to repeat the same in this judgement. However,
those facts are taken into account to the extent
that the applicant
argued that they form part of the case to support their contention
that they are entitled to be paid costs
on a punitive scale.
The case of the
applicant as concerning the present matter is that after the
judgement was made on the 21
st
December 2010, the
applicant heard nothing from the respondents. On 28
th
December 2010, the applicants’ attorney telephonically
enquired from the respondents’ attorney as to what progress
had been made regarding compliance with the court order. During that
conversation the respondents’ attorney indicated that
he had
sent an email to the applicants’ attorney regarding the issue
of the compliance with the court order. The deponent
to the founding
affidavit of the applicants, Mr Delport, says that on enquiry their
attorney confirmed that the email was indeed
sent. The email dated
28
th
December 2010 reads as follows:
“
Please
advice (sic) that, we instructed our client to implement the court
judgment as ordered by the court. It was brought to our
attention
that it will not be possible to implement it as persal was closed on
the 20
th
December 2010 and that the next sitting of persal committee will be
on the 3
rd
of January 2011. The reversal will be tabled then for supplementary
run, which could take two to three weeks.
We trust you will
find this in order.”
The applicants
responded to the above email on the same day, 28
th
December 2010 and stated amongst others that:
“
The
terms of the court order are patently clear. Payment to affected SAOU
and NAPTOSA members should be made not later than 31 December
2010.
There is
absolutely no reason why payment should not be made timeously. If
necessary, Persal’s staff members’ leave
should be
cancelled and all forces mustered to implement the court order.
The email goes
further to indicate that the delay in implementing the court order
would cause prejudice to the members of the applicants
because they
would not be able to meet their financial obligations. The author of
the email goes further to say:
“
It
is my instructions to proceed with a further urgent application
against the heads of the applicable departments of the GDE and
Persal
for their incarceration for contempt of court, should they persist in
their failure to implement the court order by the
31
st
instant.
We hereby give notice that if our clients are forced to bring such
the application, we shall ask the court to order that
the delinquent
heads pay the Applicants legal cost on an attorney and client scale
in their personal capacities.”
The respondents’
attorney replied to the above communiqué of the applicants on
3
rd
January 2011 and indicated that the persal committee
would “
definitely be sitting to work on the repayment
process.”
The respondents,
whilst conceding that they have not complied with the court order,
contend that they have not committed a contempt
of court. They
provide three reasons for not implementing the court order, which
are:
due to security
measures that have been put in place to avoid fraud;
the fact that the
relevant people who are responsible for effecting the changes were
on leave; and
The National
Treasury had stopped accepting system change control requests.
The respondent’s
further state in their answering affidavit that a special
supplementary reverse of the deductions will
occur on the Persal
system on the 10
th
January 2011 and refunds will be
effected on the 14
th
January 2011.
Principles
governing awarding of costs
In considering
whether or not to grant costs the court is guided by the provision
of s 162 of the LRA. In terms of that section
the court has
discretion to make an order as to costs, according to the
requirements of law and fairness. Section 162 of the
LRA reads as
follows:
“
(1)
The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.”
The first aspect of
s 162 (1) is that costs may be awarded according to the requirements
of the law. The courts have interpreted
this to mean that costs
would follow the results. In other words a successful party would be
entitled to costs. See
City of Cape Town v SAMWU
[2008] ZALC 30
;
(2008) 7 BLLR
618
(LC).
The second aspect
of s 162 of the LRA, concerns the consideration of fairness. It is
this aspect of the legislation that makes
costs in labour matters
not to automatically follow the results. In
Apollo Tyres (Pty)
Ltd (formally Dunlop Tyres Internal (Ladysmith (Pty) Ltd) v NUMSA &
Others
2009 JOL 24326(LC)
,
this court in dealing with the same
issue and relying on the authorities of
Jacob James v Reguest
Life Company Ltd JS268/06
– unreported and
Collguard
Security Services (Pty) Ltd v Transport & General Workers Union
& Others (1997) 18 ILJ380
, held that:
“
Costs
in this Court do not automatically follow their results because of
the provisions of
section 162
of the
Labour Relations Act 66 of 1995
which provides that the court may make an order for the payment of
costs, according to the requirements of the law and fairness
(see
also SAMWU & another v SA Local Government Association,
unreported judgment case number C229/07 and City of Cape Town
v SAMWU
[2008] ZALC 30
;
[2008] 7 BLLR 618
(LC) also reported at
[2008] JOL 21770
(LC).
The court went
further quoting from
Collguard Security
to say:
”
It
seems to me that what the Act has decreed is that whether or not this
court should or should not make an order of costs in a
particular
matter depends on the requirements of the law and fairness.’ In
my view it is therefore important to appreciate
that consideration
should be given not only to the requirements of the law in disregard
of the requirements of fairness nor should
consideration be given
only to the requirements of fairness in disregard to the requirements
of the law.”
It seems to me that
the reason why the court in
Collguard Security
said that both
the requirements of law and fairness should be treated equally in
considering whether or not to grant costs is
because the underlying
consideration which is to be informed by the general purpose of
awarding costs. The general purpose of
awarding costs as set out by
Van Winsen at all, in The Civil Practice of the Supreme Court of
South Africa (4
th
Ed Juta) page 701, is to indemnify the
successful litigant for the expense to which he or she has been put
through by having
been unjustly compelled to initiate or defend
litigation.
The provisions of
s
162
of the LRA is not different to those of
s 17
C (2) of the 1986
Act.The decision in
National Union of Mineworkers v East Rand
Gold Mine & Uranium Co Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A),
was endorsed
by Mlambo AJA, as he then was, in
Chevron Engineering (Pty) Ltd v
Nkambule & Others
2004 (3) SA 495
(SCA) para 42.
In that
case which was decided under
s 17
C (2) of the 1956
Labour Relations
Act the
court in dealing with the issue of costs had the following
to say:
“
Although
the appellant succeeds on appeal, when deciding the question of costs
discretion must be exercised after taking into account
the
requirements of law and fairness.
Section 17C
(2) specifically
enjoins this Court to decide the question of costs “according
to the requirements of law and fairness”.
The guidelines as to
fairness are set out in National Union of Mineworkers East Rand Gold
& Uranium Ltd 1992 (1) SA 700
(A) at 738F–739G
(see also Performing Arts Council of the Transvaal v Paper Printing
Wood & Allied Workers Union 1994 (2) SA 204
(A) at
221A–C). The proper approach is to take account of the conduct
of the parties during the dispute and in the conduct
of the
litigation. The general approach developed by courts acting in terms
of this Act is that costs do not automatically follow
the result,
unless there are special or exceptional circumstances justifying a
costs order. Mala fides, unreasonableness and frivolousness
have been
found to be factors justifying the imposition of a costs order.”
Evaluation
The counsel for the
applicants in support of the contention that the respondents should
be ordered to pay costs relied on the
Minister of Health &
Another v Bruckner
[2007] 5 BLLR 418
(LAC) and Fakie NO v CCII
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA).
He also argued that
account should be taken that Steenkamp J, did issue costs in this
matter despite the ongoing relationship
between the parties. In
reasoning as to why the respondents had to pay the costs of the
applicants the Learned Judge had the
following to say in his
judgment:
“
[51]
The applicants have made out a case for the relief sought. Although
they have an ongoing relationship with the respondents,
they were
forced to incur significant legal costs to approach this court only
after attempts at an amicable resolution failed.
In law and fairness,
costs should follow the result in this case.
In my view the case
of
Minister of Health & Another[supra],
does not provide
any assistance in considering whether or not costs should be awarded
because in that case whilst the court was
dealing with contempt
proceedings and the court awarded costs against the respondent on
appeal the court did not give reasons
for awarding such costs. The
same applies to the costs which had been granted by the court a quo.
The Labour Appeal Court simply
confirmed the decision of the Court a
quo without providing reasons as to why it agreed with that decision
concerning the awarding
of costs. There is no citation provided for
the judgement in the Court a quo and therefore this Court is unable
to determine
why costs were awarded in that case.
In as far as the
decision of Steenkamp J, in the application to interdict the
deductions in this matter is concerned, it is apparent
that the
Court awarded costs having regard to the principles set out in
National Union of Mineworkers v East Rand Gold & Uranium
[supra] in which the LAC held that as a general principle costs
should not be granted where a relationship exists between them.
In my view the
facts in the present matter are different to those presented when
this matter came before this Court in the urgent
application to
interdict the deductions from the salaries of the applicants’
members. It is clear that in that case the
Court arrived at the
decision to award costs in favour of the applicants because their
endeavour at seeking an amicable solution
to the dispute was
frustrated by the respondents. I will in this regard revert back to
the facts and circumstances of this case
later in this judgment.
In order to satisfy
the aspect of the legal requirements of
s 162
of the LRA, the
applicants needed to show that they had been successful not only in
that there has been no-compliance with the
order issued on the 21
st
December 2010, but also that such non-compliance was wilful and
malafide. See
Frankel Max Pollak Vinderine Inc v Menell Jack
Hyman Rosenberg Co Inc
[1996] ZASCA 21
;
1996 (3) SA 355
(A) at 367H-I.
In other
words in as far as the law requirements are concerned the applicants
needed to show that the facts of the case satisfied
the test for
determining whether or not the non-compliance with the order
constituted contempt of court. The test for determining
the
existence of contempt of court is set out in
Fakie No CCII
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA),
the case which both
parties in this case relied on from their different respective
perspectives. The tests for determining whether
non-compliance with
an order of the court amounts to contempt was set out in
Fakie
by Cameroon JA as he then was, in the following terms:
“
The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed deliberately
and mala fide. A deliberate disregard is not enough, since the
non-complier may genuinely, albeit mistakenly, believe him or herself
entitled to act in the way claimed to constitute the contempt. In
such a case, good faith avoids infraction. Even a refusal to
comply
that is objectively unreasonable may be bone fide (though
unreasonableness could evidence lack of good faith). These
requirements-
that the refusal to obey should be both wilful and mal
fide, and that unreasonable non-compliance, provided it is bona fide,
does
not constitute contempt- accord with the broader definition of
the crime, of which non-compliance with civil orders is a
manifestation.
They show that the offence is committed not by mere
disregard of a court, but by the deliberate and intentional violation
of the
court’s dignity, repute or the authority that this
evinces.”
In my view, the law
aspect of the provisions of
s 162
of the LRA in the present instance
has to be determined not only on the surrounding circumstances that
led to the making of the
order made by this court.
In my view the
proper reading of the order made by this court on the 11
th
January 2011, does not in any manner suggest that any of the parties
has been successful in the institution or defending the
action. What
is also clear from the order is that the respondents have failed to
comply with the order made during December 2010.
There is no
indication that such failure was deliberate and malafide. The
background facts indicate that the respondent conceded
that they had
complied with the order and that they would not be able to do so
until the 10
th
January 2011, the day before this matter
came before the court.
In their
submissions the applicants were highly critical of the reasons given
by the respondents for their failure to comply with
the court order.
Whilst there may be merits in the complaints of the applicants that
the respondents could have called back from
leave those of its
employees who were on leave, the applicants have not shown that the
reasons given shows a deliberate plan
on the part of the respondent
to undermine or frustrate the implementation of the court order. In
my view the reasons given why
the court order was not timeously
implemented are reasonable, acceptable and do not in any manner even
suggest a strategy for
undermining the court. At best the
respondents should be encouraged to avoid such incidences in the
future. In this respect it
needs to be pointed out to the
respondents the seriousness and the importance of compliance with
court orders. Failure to comply
with court orders does not only
undermine the rules of the law but has also serious implications to
industrial peace in the labour
market. In addition to this, the
applicants have not made a case why costs should be made against
some of the respondents in
their personal capacity.
In my view the
above reasons equally answers the aspect of fairness in terms of
s
162
of the LRA. In essence it would not be fair to impose a cost
order if regard is had to the fact that the respondents indicated
that they were committed to comply with the court order. The
commitment may have not been as clear and concise as the applicants
may have wished it to be. It would also not be fair to impose a cost
order in the circumstances where the court order was essentially
consensual. In this regard I need to point out that the court order
was not made on the basis of the determination of the merits
of the
matter. It may well be said that the applicants are partially
successful in that the order directed the respondent to
comply with
the earlier court order. The dictates of fairness would however not
support the awarding of costs if regard is had
to the background
facts and the circumstances of this case.
Conclusion
It is common cause
that the respondent failed to comply with the court order made on
the 20
th
December 2010. The applicants have not made out
the case that shows that the non-compliance was deliberate and
malafide. The
order of the court made on the 11
th
January
2010, does say that the failure to comply with the order amounted to
contempt but simply confirmed the non-compliance
with the court
order.
In the premises no
order as to costs is made.
_______________
Molahlehi
J
Date of Hearing :
11
th
January 2011
Date of Judgment :
25 January 2011
Appearances
For the Applicant:
W.H.J Van Reenen, instructed by L M Erasmus Inc.Instructed by: T.F
Mathibedi, instructed by the State Attorney.
15