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[2012] ZALCJHB 129
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PSA obo Botha and Another v MEC for Health: North West Provincial Government and Others (J847/11) [2012] ZALCJHB 129; (2013) 34 ILJ 1574 (LC) (31 October 2012)
Reportable
Of interest
to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Case
no: J 847/11
In the matter between:
PSA OBO M BOTHA & J M KOTZE
Applicant
and
MEC FOR HEALTH: NORTH WEST PROVINCIAL GOVERNMENT
First Respondent
DEPARTMENT OF HEALTH, NORTH WEST PROVINCIAL GOVERNMENT
Second Respondent
HEAD OF DEPARTMENT, DEPARTMENT OF HEALTH, NORTH WEST PROVINCIAL
GOVERNMENT
Third Respondent
Heard
:
19 October 2012
Delivered
:
31 October 2012
Summary:
Application for contempt of court arising from
settlement agreement made order of court. Factual dispute over
implementation of
collective agreement. Referred to oral evidence in
terms of rule 7(7)(b).
JUDGMENT
STEENKAMP J
Introduction
This is an application to hold the respondents in contempt of an
order of this court. Certain factual disputes have arisen, and
along
with those, the question whether application proceedings were
appropriate; and if not, whether the application should be
dismissed
or whether the dispute should be referred to oral evidence in terms
of rule 7(7(b).
The applicant, the Public Servants Association of South Africa
(PSA), represents two of its members, nurses M Botha and JM Kotze.
They argue that the respondents are in contempt of a court order of
4 August 2010. That order made an arbitration award an order
of
court. The arbitration award, in turn, purported to give effect to a
settlement agreement of 7 August 2009. And the agreement
attempts to
settle a dispute relating to the interpretation and application of a
collective agreement based on a document known
as “the
Matrix”. The respondents are the Member of the Executive
Committee (MEC) for Health in the North West Provincial
Government;
the Department itself; and the Head of Department.
The relief sought by the applicant is that the respondents be held
in contempt of court and that the MEC and the Head of Department
be
committed to prison for 15 days; alternatively, that the respondents
be ordered to implement the court order and give effect
to the
settlement agreement of 4 August 2010.
Background facts
Botha and Kotze are nurses who were employed as facility managers –
also referred to as team leaders of mobile clinics
– by the
Department.
The trade union parties – including the PSA – and the
employer (ie the State) entered into a collective agreement
known as
Resolution 3 of 2007 on 10 September 2007 under the auspices of the
Public Health and Social Development Sectoral Bargaining
Council.
The Department is bound by that resolution.
The resolution embodies an agreement on the implementation of an
occupation specific dispensation (OSD) for nurses. The intention
of
the resolution was, inter alia, to –
attract and retain nursing professionals;
introduce differentiated salary scales for the various nursing
categories; and
incorporate into salaries the scarce skills allowance payable to
specialty nurses.
On 8 December 2008, the trade union parties in the Bargaining
Council – including the PSA – referred a dispute over
the interpretation and application of the collective agreement to
the Bargaining Council. The parties reach a settlement agreement
and
it was made an arbitration award in terms of section 142A(1) of the
Labour Relations Act
1
on 7 August 2009. That award was made an order of this court on 4
August 2010.
According to the OSD for nurses incorporated in the collective
agreement –
all nurses that meet the requirements of the OSD had to “translate”
to an appropriate salary scale based on the
duties they performed
as at 30 June 2007; and
according to the applicant, team leaders in mobile clinics should
have translated as operational managers as they did the same
functions regardless of their physical environment.
An integral part of the settlement agreement was referred to as “the
matrix” (apparently without any ironic reference
to the motion
picture of the same name). Clause 3.19 of the matrix states the
following in the left hand column under the heading,
“area of
dispute”:
“
Misunderstanding
on the translation of team leaders in mobile clinics.
They translate as operational
managers in PHC/Specialty as they do same functions regardless of the
physical environment that differs.”
In the right-hand column of the matrix, under the heading,
“remarks”, the following remarks appear:
“
Parties
agree that all nurses that meet the requirements of the OSD must
translate to the OSD based on the duties they performed
as at 30 June
2007.
Parties agree that there may be
a need where applicable to translate team leaders of mobile clinics,
where these clinics are not
part of a health facility, to posts of
operational managers.
Parties also agree that the
mobile clinic service may differ from province to province, or even
from one district to another within
the same province.
Parties therefore agree that
where applicable, the translations would be dealt with on a
case-by-case basis.
The matter is no longer in
dispute.”
Unfortunately, the remark that “the matter is no longer in
dispute” proved to be neither prescient nor correct. The
parties are in dispute as to whether Botha and Kotze should have
been “translated” to the positions of operational
managers. They were not. The applicant says that they should have
been and, by not “translating” them to those positions,
the respondents are in contempt of the court order that compelled
them to give effect to the settlement agreement. It argues
that the
employer had no discretion: Botha and Kotze were team leaders in
mobile clinics;
ergo
, they had to translate as operational
managers.
The respondents’ case
Mr
Brassey,
for the respondents, argued that the applicant’s
argument suffered from the fallacy of the excluded middle. He
pointed
out that, pursuant to the remarks in the right-hand column
of the matrix, “there may be a need where applicable to
translate
team leaders of mobile clinics, where these clinics are
not part of a health facility, to posts of operational managers.”
This implies that the employer has a discretion whether or not to
translate those incumbents where the clinics are
not
part of
a health facility. That does not mean, of necessity, that the
employer has no discretion where clinics
are
part of a health
facility. In the case of Botha and Kotze, their mobile clinics were
part of a health facility; in these circumstances,
the argument
went, the employer retains a discretion whether or not to translate
them and it had to be dealt with on a case-by-case
basis. In this
case, the MEC exercised his discretion not to translate them.
The respondents argue, in short, that they are not in contempt of
court. As a preliminary point, though, they argue that the
applicant
should have anticipated a dispute of fact over whether the agreement
had the effect for which it contends. Therefore,
the respondents
say, the applicant should have proceeded by way of trial and not
motion proceedings.
Evaluation / Analysis
The requirements for contempt of court are well known. In
SAOU v
Head of Department, Gauteng Department of Education (2)
2
this court applied the same principles that the Supreme Court of
Appeal summarised in
Fakie NO v CCII Systems (Pty) Ltd
:
3
“
To sum
up:
(a)
The
civil contempt procedure is a valuable and important mechanism for
securing compliance with court orders,
and survives constitutional
scrutiny in the form of a motion court application adapted to
constitutional requirements.
(b)
The
respondent in such proceedings is not an 'accused person', but is
entitled to analogous protections as are
appropriate to motion
proceedings.
(c)
In
particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance;
and wilfulness and
mala
fides
)
beyond reasonable doubt.
(d)
But,
once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential
burden in relation
to wilfulness and
mala
fides
:
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.
(e)
A
declarator
and other appropriate remedies remain available to a civil applicant
on proof on a balance of probabilities.”
In the present case, the respondents argue that they have not
breached the terms of the settlement agreement embodied in the
court
order; or, at the very least, they have not acted wilfully or
mala
fide.
In order to assess the parties’ conflicting contentions,
though, the court has to have regard to the disputed facts. The
respondents say that, factually, the MEC had a discretion whether or
not to translate Botha and Kotze. That question, and the
further
questions whether the MEC exercised such a discretion; and if so, on
what factual basis, can only be decided by reference
to oral
evidence.
The respondents argued that the application should be dismissed for
this reason alone, relying on the
dictum
of Murphy AJ
4
in
Singh v Adam
:
5
“
In her
answering affidavit the respondent contends that because the
applicant not only anticipated but accepted that there was a
sharp
dispute of fact relating to the central issue she is not entitled to
relief, whether interim or otherwise, and that the relief
sought in
effect is final. Although the applicant does not say as much, I
understand her submission to include the assertion that
the
application ought to be dismissed solely on the ground that it is
inappropriate to proceed on notice of motion where the applicant
realizes when launching an application that a serious dispute of
fact, incapable of resolution on the papers was bound to develop
-
see
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1153
(T) at 1162...
In my
opinion, an application on this basis amounts to an irregular
proceeding. Having anticipated a material dispute of fact that
could
not be resolved on the papers it was inappropriate for the applicant
to seek a final interdict by way of notice of motion.
The relief
sought falls within the jurisdiction of the Labour Court by virtue of
the provisions of
s
77(3)
of the Basic Conditions of Employment
Act
75 of 1997
(the BCEA) conferring concurrent jurisdiction on the
Labour Court to hear and determine any matter concerning a contract
of employment.
Considering that a dispute of fact was anticipated,
the final interdict should have been sought by means of a statement
of claim
in terms of rule 6 of the Labour Court Rules ...
I agree that, in this case, there is a dispute of fact –
indeed, it was pertinently raised by the respondents in their
answering affidavit. However, I do not agree that the application
should be dismissed on that ground alone. The applicant may
not have
anticipated the dispute of fact before it was raised in the
answering affidavit. It relied on Resolution 3 of 2007 and
the
settlement agreement that was made an arbitration award and
subsequently an order of court. There is no dispute over the
existence of the agreement or the fact that it was made an order of
court. The dispute relates to the interpretation of the agreement;
the question of a discretion; and, more importantly, how that
discretion (if it exists) was exercised by the MEC.
Rule 7(7)(b) of the Rules for the Conduct of Proceedings in the
Labour Court makes provision for exactly this scenario. It provides
that:
“
The
court must deal with an application in any manner it deems fit, which
may include –
(b) referring a dispute for the
hearing of oral evidence”.
This is a prime example of a dispute where the court should invoke
this subrule. The applicant instituted contempt proceedings
by way
of motion proceedings in terms of rule 7. This was not irregular in
itself. It did not anticipate a material dispute of
fact at that
stage. Now that a dispute of fact has arisen on the papers, the
court cannot resolve the dispute without hearing
oral evidence. It
will have to be referred to hear oral evidence and costs may be
decided by the court hearing that evidence.
Order
This dispute is referred for the hearing of oral evidence. The
affidavits filed in this application may serve as pleadings in
the
trial. Costs are to be determined at the end of the trial.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
FJ van der Merwe
Instructed by Bouwers
Inc, Roodepoort.
RESPONDENTS:
MSM Brassey SC (with
him KD Ramolefe)
Instructed by the State
Attorney, Mahikeng.
1
Act
66 of 1995 (“the LRA”).
2
(2011)
32
ILJ
1427 (LC).
3
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) para [42] (per Cameron JA).
4
As
he then was.
5
(2006)
27
ILJ
385 (LC) paras [14] and [16].