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[2011] ZALCJHB 274
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National Union of Mineworkers and Others v Billard Contractors CC and Another (J2801/07) [2011] ZALCJHB 274 (5 October 2011)
Not
reportable
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO J 2801/07
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
1
st
Applicant
EPHRAIM
CHULU AND OTHERS
2
nd
and further Applicants
and
BILLARD
CONTRACTORS CC
1
st
Respondent
VAN
ROOYEN G
2
nd
Respondent
Date
of hearing: 8 September
2011
Date
of judgment: 5 October 2011
JUDGMENT
VAN
NIEKERK J
[1] This is an
application for an order declaring the first respondent to be on
contempt of an order made by this court on 25 April
2006 under case
no JS 929/02. The applicant further seeks to have the second
respondent, as sole member of the first respondent,
committed to
prison for a period to be determined by this court. Thirdly, the
applicants seek an order directing the first respondent
to pay to the
individuals set out in annexure EK2 to the founding affidavit the
monthly wages set out in the annexure for the period
from May 2006 to
date of judgment.
[2] This application was
first heard on 4 December 2010, when an order was made that the
matter be referred to oral evidence on
the question whether the first
respondent’s compliance with the order concerned was wilful and
mala fide. Certain conditions
were attached to that order relating to
the calling of witnesses and the discovery of documentation.
[3] In the event, the
second respondent did not give evidence. A medical certificate to the
effect that he was medically incapacitated
and unable to attend the
proceedings was submitted. Only Mr de Beer, a chartered accountant
who has since 1980 provided services
to the second respondent and his
group of companies, gave evidence. In the course of his evidence, De
Beer stated that the first
respondent had been placed in liquidation.
[4] The fact of the first
respondent’s liquidation is supported by public records held by
the Companies and Intellectual Property
Commission. It transpires
from those records that the first respondent was de-registered in
error in November 2009, and that consequent
on an order of court, the
de-registration process was cancelled during April 2010, and that on
23 July 2010, the first respondent
was placed in liquidation. The
current status of the first respondent is reflected as ‘voluntary
liquidation’.
[5] With that background,
I deal first with the applicant’s claim for wages. The claim is
made on the basis of a tender of
services by the affected
individuals. To the extent that the second element of the applicants’
claim is a contractual claim,
the effect of the liquidation of the
first respondent is to stay the proceedings pending the appointment
of a liquidator. There
is nothing before me to suggest that a
liquidator has been appointed, or that an appointment is imminent,
but on the assumption
that an appointment has been made, it remains
open to the applicant to join any liquidator to these proceedings.
[6] Turning next to the
question of contempt, the purpose of contempt proceedings is to
compel compliance with orders of court and
to vindicate the court’s
honour consequent on the court’s disregard of its orders. The
principles relevant to contempt
were set out by Cameron J in
Fakie
NO v CCI Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). The order in
question must be one
ad factum praestandum
, the order must
have been served on the respondent or the respondent must have been
advised of the order in circumstances where
there are no reasonable
grounds for disbelieving the information, and respondent must have
failed to comply with the order, and
the failure to comply must be
both
mala fide
and wilful (see also
Uncedo Taxi Service
Association v Maninjwa & others
[1998] BCLR 683
(E)). Once it
has been proved that the order in question was issued and that the
respondent failed to comply with it, there is
an evidentiary burden
on the respondent to demonstrate
bona fides
and that that the
disobedience of the order was not
mala fides
.
Fakie NO
(
supra
), the court made the point in the following way:
“
Should
the respondent fail to advance evidence that establishes a reasonable
doubt as to whether non-compliance was wilful and mala
fide, contempt
will have been established beyond reasonable doubt.”
[7] In these proceedings,
as indicated by the terms of the order made on 27 March 2011, the
first three requirements are not in
dispute. The first respondent
denies that it was in wilful and
mala fide
disobedience of the
order granted on 25 April 2006, principally on the basis that it was
unable to comply with the order since
it had had been dormant for
some four years before the order was issued, and had no assets.
[8] As stated above, what
is before the court is the uncontested evidence of De Beer to the
effect that the first respondent has
been placed in liquidation. In
these circumstances, and given the nature of the first respondent’s
defence, it seems to me
that the appropriate order in the contempt
proceedings is that which I intend to make in respect of the claim
for the payment of
wages.
[9] To the extent that
the applicant’s claim against the second respondent is
predicated on his having caused the first respondent
to disobey the
order, it follows that no purpose would be served in dealing any
differently, and in any event, it is not a matter
that can be dealt
with on a piecemeal basis. I intend therefore, for the
reasons reflected above, similarly to stay
the contempt proceedings
against the second respondent.
[10]
Finally, it is appropriate that at this stage, there be no order as
to costs. The costs of the hearing on 4 December 2010 were
effectively reserves, and I intend to adopt the same approach in
respect of the referral to oral evidence.
I
accordingly make the following order:
1.
The proceedings against the first and
second respondents are stayed pending the appointment of a
liquidator, or in the event of
a liquidator having been appointed,
any application to join the liquidator.
2.
The costs of the proceedings in relation
both to 4 December 2010 and 8 September 2011 are reserved.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT