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[2011] ZALCD 33
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Communication Workers Union v Tlhalafeng Placements and Another (D 306/11) [2011] ZALCD 33 (1 June 2011)
STEENKAMP J
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN DURBAN
Not Reportable
Case No: D 306/11
COMMUNICATION WORKERS UNION
...........................................................
Applicant
and
TLHLALEFANG PLACEMENTS
...........................................................
First
Respondent
MR D SIYAKHANE
..........................................................................
Second
Respondent
Date of Hearing: 31 May 2011
Date of Judgment: 01 June 2011
JUDGMENT
_____________________________________________________________
STEENKAMP J
Introduction
[1] This is a judgment in the urgent application that I heard
yesterday. The relief sought in this matter is the following:
1. Declaring that this application be heard as one of urgency and
dispensing with the provisions and rules of the Court relating
to
time limits and manner of service.
2. That a
rule nisi
is issued for the respondents to show
cause, on a date to be determined, why a final order should not be
granted in the following
terms:
[These are then the following terms]:
2.1. That the respondents be declared to be in contempt of the order
of this Court of 19 April 2011.
2.2. That the respondents be ordered immediately to pay the
remuneration owing to the applicant’s members from 10 April
until 8 May 2011.
2.3. Declaring that the second respondent, that is Donald Otto
Siyakhane, be joined to these proceedings.
2.4. That the second respondent be committed to detention in prison
for a period of 15 days from date of this order.
2.5. That on the expiry thereof they shall be brought before the
Court again to show cause why a further period of committal should
not be imposed.
2.6. In the event of the respondents complying with the order of
court, or tendering to comply, that they may be brought before
the
Court on an earlier date than the expiry period of 15 days.
Paragraph 3 significantly asks that the provisions of paragraphs 2.1
and 2.5 operate as an interim order pending the return date.
[2] Ms
de Klerk,
who appeared for the respondents, pounced on
this prayer 3 with alacrity. She pointed out that the only interim
relief that was
sought was for contempt, even though Ms
Harries
,
who appeared for the applicant, argued the matter on the basis that
she was also seeking payment for the outstanding period. Despite
Ms
de Klerk’s reliance on this prayer, there was no application to
amend the notice of motion or application for postponement,
and I
have to consider the application on this basis.
[3] Despite some initial confusion, Ms Harries clarified that,
despite the fact that the matter had been opposed, she was still
seeking interim relief at this stage. I will therefore deal with the
application on that basis and consider the requirements for
interim
relief, i.e. whether the applicant has established a
prima facie
right, the aspect of the apprehension of irreparable harm and the
balance of convenience.
[4] The Court order that the applicant Union referred to was one
granted by consent by His Lordship Cele J on 19 April of this
year.
That order reads as follows:
The respondent, that is Tlhlalefang Placements CC, is ordered to
immediately reinstate the remuneration and further benefits
of their
contracts of employment to the applicant’s members with effect
from 10 April 2011.
It is ordered that each party pays its own costs.
[5] The wording of that first paragraph is crucial and I am
constrained to say that it may well be that when consenting to the
order on that day, the respondent may have snatched at a bargain, but
the reason why I express that sentiment will become clear
in the
course of my judgment.
[6] Firstly, dealing with the question of urgency, the order as I say
was granted on 19 April 2011. This further application was
brought on
27 May 2011. The reason for that, as set out in the applicant’s
papers, is that they usually get paid on the 25
th
of each
month. When it came to 25 May 2011, they realised that they had not
been paid, as they would have been in terms of the
court order, with
effect from 10 April 2011. The next day, that is 26 May 2011, the
applicant’s attorneys sent a letter to
the respondent, pointing
this out and stating the following:
“
We are
instructed that our client’s members are paid on the 25
th
of each month. Upon our members seeking to access the remuneration
from 10 April 2011 which was payable on 25 May 2011, our
client’s members discovered that they had not been paid in
terms of court order. . You are accordingly in contempt of the
order
of court. Our instructions are therefore to move a further urgent
application declaring your Mr Donald Siyakhane to be in
contempt of
the order of court. That application will be made on Monday 30 May
2011. We are in the process of preparation of the
papers, which will
be served on you shortly.”
[7] At the hearing of this matter, I asked Ms de Klerk why her client
or her attorneys did not respond to that letter and I expressed
the
view that the conduct of the litigation in this matter smacks of a
lack of common sense on the side of the attorneys on both
sides. She
responded by pointing out that this letter was sent at 13:09 on 26
May and merely two hours later, at 15:31, the application
was
launched, hence the lack of response.
[8] I remain of the view, though, and this is simply
obiter
,
that had the parties and their legal representatives displayed more
willingness to engage with each other rather than approaching
this
Court, this matter could well have been resolved. That as an aside,
though. The matter is before me and I have dealt with
it.
[9] With regard to urgency, Ms
de Klerk
, who appeared for the
respondents, referred me to the case of
Democratic Nursing
Organisation of SA and Another v Director-General, Department of
Health and Others.
1
In that case at paragraph [15] Molahlehi J had the following to say
with regard to the facts of that cqsa:
“
The
applacation further stands to fail kn uhå ground that the
applicant has failud tn demonstrate the exirtenae of0urgenc}.
`In
Hultzer0vStajdqrd
Bank of SA (Pty) Ltd (
1999)
20
ILJ
1806 (LC);
[1999] 8 BLLR 809
(LC) at paragraph 13 the court held that
financial hardship or loss of income is not regarded as a ground of
urgency.”
[10] And he then referred back to the earlier decision in
University
of the Western Cape Academic Staff Union and Others v University of
the Western Cape.
2
He went on to say,:
“
The
Court in
Malatji
v University of the North
[2003]
ZALC 32
(LC), and following the decision in
Nasionale
Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO and
andere
(1990)
11
ILJ
971
(T), held that, in general, financial hardship and loss of income are
not considered to be grounds for urgent relief. In order
to succeed
when reliance is placed on financial hardship,
exceptional
circumstances
must be shown before urgent interim relief can be granted.”
3
[11] Although I consider myself bound by those
dicta,
I am
satisfied that this is a case where there are exceptional
circumstances. Exceptional circumstances are that there is an
existing
court order and the allegation is that the respondents are
in contempt of that order. The applicant Union and its members only
became aware of that situation when the members who are present here
in court saw in their bank accounts that they had not been
paid as
they had thought they would be. They immediately instructed their
attorneys and the attorneys acted with due haste. I am
satisfied that
the matter is indeed urgent.
[12] That brings me to the question of whether the applicants have
established a
prima facie
right, and in this regard I
specifically refer to the issue of whether they have established that
the respondents are in contempt
of court. In the same matter of
Democratic Nursing Organisation of SA
that I have just
referred to, Molahlehi J also considered the requirements for a
successful application for contempt of court, and
he said in
paragraph [14]:
“
In
contempt proceedings, the applicant must show that both the court
order and the contempt application have been served on the
individual
who is responsible for the implementation of the court order. This is
important because the
consequences
of the
contempt
proceedings are that an individual’s liberty may be restricted.
It is for this reason that I find this application
[referring to the
one before him] to be fatally defective in that the applicants have
failed to show that the application was served
on the individuals
responsible for the implementation of the court order in their
personal capacity for the purposes of the contempt
proceedings.”
[13] Unfortunately for the applicants in these proceedings, Ms
Harries
was constrained to concede that the court order in
this case had not been served on the second respondent, Mr Siyakhane,
in his
personal capacity. She pointed out that this may be academic,
because Mr Siyakhane in fact deposed to the answering affidavit and
he must therefore have had knowledge of the court order. I agree with
her, but once again I am bound by earlier decisions of this
Court and
it appears to me that, in a technical sense, the application is
defective, and on that ground it must fail.
[14] However, even if I am wrong in that regard, I have considered
the other requirements for a successful application for contempt,
as
set out most succinctly by Cameron JA in
Fakie NO v CCII Systems
(Pty) Ltd,
4
and specifically at paragraph 9 and 10. He said:
“
The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed ‘deliberately
and
male
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 the infraction. Even a refusal
to comply that is
objectively unreasonable may be
bona
fide
,
(though unreasonableness could evidence lack of good faith.)”
[15] And he went on to summarise the requirements in paragraph 42 as
follows:
“
The
applicant must prove the requisites of contempt, (the order; service
or notice; non-compliance; wilfulness and
male
fide
)
beyond reasonable doubt.”
[16] I have already dealt with the issue of service or notice. With
regard to the question of whether the respondents acted
male fide,
or wilfully, I have to deal with it on the basis of the rules set
out in
Plascon-Evans v Van Riebeeck Paints,
5
in circumstances where no replying affidavit has been filed.
[17] The respondents say, in short, firstly that they are not in
contempt because they have paid in terms of the contract of
employment
as the order says. Secondly, though, they say that their
client, which is MTN, has not had cause to seek the services of the
individual
members here in court, for various reasons, principally
among those that they fear that these workers may again embark on an
unprotected
strike, as they had done before, and that they may
interfere with the business of the client, that is MTN, and that they
may destroy
certain information such as e-mail correspondence
attached to the answering papers.
[18] What bedevils this application is the specific employment
relationship between the Union’s members, their employer,
which
is a temporary employment service, and the employer’s client.
This is a typical example of the tripartite employment
relationship
involving a labour broker, or in the words of the Act, temporary
employment service, that has led to much criticism
and potential
amendments to our labour law.
[19] The contract of employment, or a
pro forma
contract that
pertains to these applicants, is attached to the answering papers. It
states,
inter alia,
the following, and is of course signed by
each employee:
“
My
remuneration by Tlhlalefang Placements is on a pre-agreed hourly
basis. In the event of me not working a full day or part thereof
for
any reason whatsoever, I accept that the principal of ‘no work,
no pay’ will apply.”
[20] The approach taken by the respondents in this matter is, if I
may say so, a cynical one. They say quite simply that the client
where these workers have been working, that is MTN, don’t
require their services. Because of that they are not working. Because
of that and in terms of the contract they are not being paid. Despite
that, the respondents have complied with the court order,
because the
court order only states that the respondent is ordered to reinstate
the remuneration and further benefits
of the contract of
employment
to the applicant’s members.
[21] The terms of this contract have bothered me, because the
non-payment of the workers in these circumstances is in my view
clearly not in the spirit of the court order, and in any normal
employment relationship the principle that goes far back in our
common law would have applied, namely as set out in the case of
Johannesburg Municipality v O’Sullivan
6
as far back as 1923:
“
The
duty to pay and the commensurate right to remuneration arise not from
the actual performance of work, but from the tendering
of service.”
[22] However, the terms of the contract in this case are clear. They
are also not unusual, and may be opened to constitutional
challenge.
As Craig Bosch has argued in his article titled “Contract as a
Barrier to ‘Dismissal’: The Plight
of the Labour Broker’s
Employee” (2008) 29
ILJ
at 813-840:
“
In
recent decisions the Supreme Court of Appeal (SCA) has acknowledged
that ‘public policy in its modern guise is now rooted
in our
Constitution and the fundamental values it enshrines’.”
7
[22] And quoting from Cameron JA’s judgment in
Brisley v
Drotsky
8
:
“
It is
not difficult to envisage situations in which contracts that offend
these fundamentals of our new social compact will be struck
down as
offensive to public policy. They will be struck down because the
Constitution requires it, and the values it enshrines
will guide the
courts in doing so. The decisions of this Court that proclaim that
the limits of contractual sanctity lie at the
borders of public
policy will therefore receive enhanced force and clarity in the light
of the Constitution and the values embodied
in the Bill of Rights.”
And Bosch concludes by saying, at 840, that:
“
Many
of the problems relating to the relationships between a TES and its
employees and those employees and the client of the TES
arise because
of the legislative instruction that the TES is the employer of the
employees concerned. In many cases the client
is the real wielder of
power in the triangular relationship established by labour broking
and should rightfully be regarded as
the employer, or an employer of
the workers supplied by a TES. Until that changes we will continue to
be confronted with difficulties
such as those alluded to above and
need to ensure that we respond to them appropriately in order to
ensure the full and proper
protection of fundamental rights.”
[23] I align myself with those sentiments. This is a prime example of
a situation where, had these workers been employed by the
client,
they could not have been suspended without pay following – or
rather pending disciplinary procedures. However, the
contract
submitted by the respondents stands as it is and I have to accept the
facts as set out in the answering affidavit. This
is not a case where
the constitutionality of that contract has been challenged and I am
not empowered to decide whether that contract
is either
constitutional or perhaps contrary to public morals. I must apply it
as it stands.
[24] On those facts, I cannot find that the respondents have acted
male fide.
The application must therefore fail.
[25] With regard to costs, even though both parties have asked that
costs should follow the result, I am not inclined to accede
to that
request. I am enjoined to apply both law and fairness when deciding
on costs. In this case, there is an ongoing relationship
between the
parties; that is the Union and the temporary employment service,
albeit a fraught one. It may be that they will need
to forge a better
relationship going forward, and I fear that a costs order at this
stage may have a chilling effect on such a
relationship. Cool heads
have not prevailed in this matter up till now, and one hopes that it
may do so in future.
[26] Before I make the final order I may just add
obiter
that
this is a matter in which the conclusion to which I have come does
not fill me with any sense of comfort, and I want to express
the wish
again that the parties will continue talking to each other, perhaps
with the help of a mediator, and that they will be
able to seek a
proper solution to the disputes between them.
[27] The order is then:
1. That the application is dismissed.
2. No order as to costs.
____________________
STEENKAMP
J
Appearances
For the
Applicant: Ms J Harries
Instructed
by: Brett Purdon
For the
Respondent: Ms M De Klerk
Instructed
by: Futcher Attorneys
1
(2009)
30 ILJ 185 (LC) at para 15.
2
(1999)
20 ILJ 1300 (LC) at para 17.
3
Above
n: 1 at
para16.
4
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA).
5
[1984] ZASCA 51
;
1984
(3) SA 623
(A),
6
1923
AD 201.
7
Bosch
“Contract as a Barrier to ‘Dismissal’: The Plight
of the Labour Broker’s Employee” (2008)
29
ILJ
817.
8
2002
(4) SA 1
(SCA);
2002 (12) BCLR 1229
(SCA) at para 92 as cited by
Bosch “Contract as a Barrier to ‘Dismissal’: The
Plight of the Labour Broker’s
Employee” (2008) 29
ILJ
817..
11