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[2014] ZALCJHB 62
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Setshedi v Minister Ndebele and Another (J198/13) [2014] ZALCJHB 62; (2014) 35 ILJ 2861 (LC) (12 March 2014)
IN THE LABOUR COURT OF
SOUTH AFRICA,
JOHANNESBURG
CASE
NO: J198/13
Reportable
Of interest to other
judges
In
the matter between:
SETSHEDI
RANKGAKGATA
JUSTINIUS
Applicant
And
MINISTER
SIBUSISO
NDEBELE
First
Respondent
NATIONAL
DEPARTMENT OF CORRECTIONAL SERVICES
Second
Respondent
Heard:
12
March 2014
Delivered:
12
March 2014
Summary:
contempt of court elements not proved; order not served on the
Minister personally. Dictum in Minister of Health v Bruckner not
applicable where there is a court order directing the Minister to
perform a specific act. Minister ultimately accountable for acts
of
officials in his department.
JUDGMENT
NGCUKAITOBI
AJ
1.
A
contempt of Court order, it has been said, constitutes the most
effective mechanism of ensuring compliance with Judgments of this
Court.
[1]
Its purpose, however,
is not only punitive; it is aimed at ensuring compliance with court
orders. To convict a person for contempt
of court, it must be proved
that they were personally aware of the court order. There are
difficulties ensuring personal service
when it comes to senior
government officials and government ministers because of the nature
of government bureaucracy, which insulates
senior government
officials and ministers from direct personal interaction with
sheriffs responsible for giving effect to service.
This case
illustrates those difficulties. Despite these difficulties, it
remains the duty of this court to ensure that effective
remedial
action is taken to ensure compliance with its judgments.
2.
On 27 November 2012 the General Public
Service Sectoral Bargaining Council (“GPSCBC”) delivered
an arbitration award
against the Department of Correctional Services
(“the Department”) in terms of which the Department was
ordered to
reinstate the Applicant and pay him all the relevant
emoluments. That award was to be implemented by 31 December
2012. Regrettably,
as we sit today, 12 March 2014, the award is yet
to be implemented. The Applicant is yet to enjoy the benefit of
his reinstatement.
3.
Because of the non-compliance with the
arbitration award the Applicant applied to this Court in terms of
Section 158(1)(c) of the
Labour Relations Act to make the arbitration
award an order or this Court. That Application was granted by
Prinsloo AJ on
19 November 2013. The Respondents in the Section
158(1)(c) Application were the Minister of Correctional Services, Mr.
Sibusiso
Ndebele and the Department. It appears that there was
no appearance on behalf of either the Minister or the Department.
Notwithstanding the granting of the arbitration award as an order of
this Court, there was still no compliance by the Respondents.
The
Applicant was not reinstated.
4.
This impelled the Applicant to again
approach this Court on an
Ex Parte
basis seeking an order by way of a rule
nisi
which would direct the Minister to appear in Court and show cause why
he should not be found guilty of contempt of Court for failing
to
comply with the Court Order of 19 November 2013. It will be
recalled that the order of 19 November 2013 was against the
Minister
specifically and required compliance with the arbitration award
referred to above.
5.
On 7 February 2014 Van Niekerk J granted
the Application in the form of the rule
nisi
.
He directed that Minister Ndebele should appear in Court on 12 March
2014 to show cause why he should not be held guilty
of contempt of
Court. In addition Van Niekerk J ruled that the Minister could
explain his conduct by way of an affidavit
submitted on or before 12
March 2014. Absent a satisfactory explanation, the order stated
that the Minister would be found
guilty of contempt and incarcerated
for an appropriate period or fined an appropriate amount. The
last portion of the order
required the order to be served personally
on Minister Ndebele.
6.
By the date of the hearing of this
application, 12 March 2014 there was still no compliance with the
order of this Court granted
on 19 November 2013 and the Minister was
not present in Court as directed. Nor did he submit an
explanatory affidavit to
resist the inference of contempt.
Instead the legal representatives of the National Department of
Correctional Services appeared
in Court with an affidavit deposed to
by Mr. Reuben Johnson Mbuli, who is the Director of Legal Services of
the Department of Correctional
Services. In his affidavit Mr.
Mbuli says that he is “
duly
authorised to depose to this affidavit on behalf of the Respondent”
.
He does not say which of the two respondents authorised him.
Furthermore, Mr. Mbuli says that the Minister cannot be found guilty
of contempt of Court because the order was not served personally on
him. In support of this averment Mr. Mbuli has attached
a copy
of the return of service which suggests that service was effected at
the State Attorney Office on 11 February 2014.
The State
Attorney apparently accepted service on behalf of Minister Ndebele.
7.
The answering affidavit of Mr. Mbuli
traverses other reasons why the Court Order to date has not been
complied with. The main
explanation is that a review
application was launched against the arbitration award. But I
must reject this explanation because
the review application was
launched on 15 February 2013 without any request to stay the
enforcement of the award. Furthermore,
my colleague,
Tlhothlalemaje AJ dismissed the application to stay the execution of
the award, which application was in any event
brought more than a
year after the review application had been brought.
8.
It
is thus clear that there has been no compliance with this Court’s
Order of 19 November 2013 made against the Minister of
Correctional
Services. The case of the Labour Appeal Court in
Minister
of Health & Another v Bruckner
[2]
does not avail the Minister. In that case the criticism of the
Labour Appeal Court was that there had been no Court Order
imposing
any obligation on the Minister to comply with a legal obligation.
The present case is on a different footing.
Here there is a
specific order made against the Minister, who has not complied
therewith. The Minister was a party to the application
to make the
arbitration award an order of Court. He was accordingly required to
ensure compliance with that order. I do not believe
that the dictum
of the LAC in
Bruckner
was intended to cover the present situation where an arbitration
award is made against the Department, but the application to make
the
award an order of court is made against the Minister. The court order
making the award an order of court created a positive
obligation on
the Minister directly, as contemplated in
Bruckner
.
Accordingly, my view is that the mere fact that the arbitration award
is against the Department, not the Minister is of little
moment. The
court order of 19 November 2013 is against the Minister. The Minister
had a duty to ensure that it is complied
with.
9.
The difficulty however facing the Applicant
is that the Respondents denied that the order was personally served
on the Minister.
As I understood the argument it was said that
an official at the State Attorney’s office failed to convey the
contents of
the arbitration award as well as the contents of this
Court’s Order of 19 November 2013 to the relevant officials in
the
Department or indeed the Minister. This explanation is in
my view inadequate because it is clear from the answering affidavit
that the Department has been aware of this Court’s Orders
including by Prinsloo AJ, Van Niekerk J and Thlothlalemaje AJ as
alluded to above. These orders must have been brought to the
attention of the Department by its legal representatives from
the
State Attorney’s offices.
10.
It is correct that on the prevailing
jurisprudence, I cannot find the Minister guilty of contempt because
the order was not served
on him personally. But on an overall
conspectus, it is clear that there has been a reckless disregard of
this Court’s
Orders and the arbitration award by the officials
in the Department of Correctional Services.
11.
In terms of the
Correctional Services Act
111 of 1998
the Minister is ultimately accountable as executing
authority for the performance of functions by officials of the
Department.
The same applies to the National Commissioner who
holds a position equivalent to that of Director General in the Public
Service.
He is the administrative head responsible and accountable
for the performance of functions by employees of the Department.
The Orders of this Court, referred to above, were clearly brought to
the attention of the Department. This is evident from
the
answering affidavit of Mr. Mbuli. I reject the attempt by the
Department to shift responsibility to the State Attorney’s
Office. I regard this defence as frivolous and vexatious.
It should be noted that Thlothlalemaje AJ has previously
described
the Department’s conduct in this very same matter as
constituting abuse the Court’s process. In this
regard, I
debated with counsel for the Respondents whether the costs of this
Application should not be borne by the relevant officials
in their
personal capacities. Although this would have been my preferred
approach, it seems there is considerable confusion
about where the
actual responsibility lay for the implementation of this Court’s
Order. Accordingly I will be disinclined
to issue a
de
bonis propriis
costs order.
12.
In Court, counsel for the Respondents ultimately tendered compliance
with the specific order for the reinstatement of the Applicant,
although some dispute remained about the payment of certain moneys to
cover the period of back pay of the Applicant. I do
not intend
entering the fray in relation to the disputed issues concerning the
back pay which may be due to the Applicant.
The Applicant has
remedies which can be pursued in due course. This also applies
to the claims made by the Applicant for
benefits such as acting
allowances, danger allowance and the special danger allowance.
I shall not include these in my order
because the object of today’s
proceedings is to secure compliance with the Order of specific
performance relating to the
reinstatement of the Applicant. The
Applicant is entitled to explore any avenues at his disposal to claim
payment of monies
which are allegedly due and outstanding.
13.
Accordingly, I make the following order:
[1]
The Applicant shall be reinstated to the position he held as at March
2012 with the
Department of Correctional Services.
[2]
The Applicant shall report for duty on 13 March 2014.
[3]
The Applicant’s reinstatement shall be for a period of five (5)
years, unless
the contract is terminated on an earlier date by either
party on grounds which are permissible in law.
[4]
The Applicant’s salary for back pay shall include 37% service
benefit contemplated
in the applicable PSCBC collective agreement.
[5]
The Respondent’s shall pay the costs of this Application on an
Attorney and
Client scale.
[6]
The
Rule Nisi
granted on 7 February 2014 is hereby discharged
________________________
T.
Ngcukaitobi
Acting
Judge of the Labour Court
APPEARANCES:
FOR
THE APPLICANT:
Adv. MS Mphahlele
INSTRUCTED
BY:
The State Attorney
FOR
THE RESPONDENTS:
Mr. TG Mokgara Attorney
[1]
Ntombela
v Herridge Hire & Haul CC & Another (1999) 20 ILJ 901 (LC).
[2]
(2007)
28 ILJ 612 (LAC).