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[2014] ZALCJHB 262
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Vereeniging Abattoir (Pty) Ltd v Food And Allied Workers Union and Others (J2151/13) [2014] ZALCJHB 262 (11 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURTOF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO: J 2151/13
In
the matter between -
VEREENIGING
ABATTOIR (PTY) LTD
Applicant
And
FOOD
AND ALLIED WORKERS UNION
First
Respondent
MAWENG
AND 14 OTHERS
Second
to Further Respondents
Heard: 22 May
2014
Delivered: 11 June
2014
Summary:
Contempt proceedings. Individuals not cited in
application to interdict unlawful strike. Individual cannot be guilty
of contempt
of Court order were he/she was not party to
proceedings given rise to the order. Individuals could be guilty of
contempt
if cited in a representative capacity.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
The applicant has instituted contempt proceedings against the
respondents. The proceedings are opposed. The respondents have
raised
a point
in limine
regarding the attempt by the applicant to
hold certain members of the respondents who were not parties in the
original interdict
application, liable for contempt.
[2]
The interdict against the respondents was granted by this Court on 26
September 2013. The respondents were jointly and severally
interdicted from breaching the strike rules which had been agreed to
between the parties. The respondents were also jointly and
severally
interdicted from engaging in the following conduct in pursuance of
their strike action:
“
a)
Engage in any strike action/ picketing in any area other than the
soccer field as designated
by the strike agreement.
b)
Prevent non- striking employees from reporting for work;
c)
Obstruct any access entrance or exists of premises of the Applicant;
d)
Obstruct any access to the roads to the premises of the Applicant
e)
Assault, intimidate and /or threaten to assault any member the
public, non-striking
employees or replacement employees of the
Applicant.
f)
Damaging property belonging to the Applicant or any member of the
public.
g)
Carrying or displaying any weapon, including but not limited to
sticks, stones
and knobkieries.”
[3]
The applicant states in its papers that the above order was read to
the first respondent's members on 27 November 2013, including
the
tenth to the fourteenth respondents. The tenth to fourteenth
respondents are: Messrs Benton Nwendwe, James Potsane, Samual
Mofokeng and Petrus Siphelo who are members of the first respondent
and are also shop-stewards. The applicant further states that
members
indicated that they understood the contents of the Court order after
it was read to them. In addition to sending the Court
order to the
first respondent under the cover letter, the order was also attached
at the entry and exit gates of the applicant.
[4]
On 24 October 2013, the applicant obtained another Court order from
Rabkin-Naiker J calling upon the first respondent in the
first
contempt of Court application to show cause why they should not be
held in contempt of the Court order. The names of the
second to
further respondents are listed in Annexures "A", "G"
and "R" of the contempt application.
In the applicant's
contempt application the respondents are specified as "Second to
Further Respondents" and their names
are cited in annexure "G"
and "R" attached to the founding affidavit. The individual
cited in the annexure
to the applicant’s papers in the
application to interdict are the following: Dudu Mziwonke, James
Potsane, Magida Flanisi,
Elias Wekaba, Magdalene Auma Maweng,
Makedisi Benton Ndwendwe, Mzimkulu Petrus Siphelo, Sibusiso Maxwel
Dlamini and Ronald Mabaso.
[5]
The
approach to adopt when dealing with the charges of contempt of Court
is well established. In order to succeed in an application
to have a
person committed to prison for contempt of a Court order, the
applicant must show that: (a) the order was granted against
the
respondent cited in the contempt proceedings and (b) that
both
the Court order and the contempt application have been served on the
individual responsible for the implementation/compliance
with the
court order.
[1]
[6]
It follows that a person can only be in contempt of a Court order in
which he or she was cited as a party in the application.
As a general
rule an individual who was not cited before obtaining the Court order
cannot be held to be in contempt of the order
for that reason and
more importantly because he or she was not a party to the proceedings
that resulted in the Court order. The
other reason for not holding an
individual who was not a party to the proceedings liable for
non-compliance with the Court order
is because that individual would
not have been afforded an opportunity to oppose the application that
gave rise to such an order.
[7]
An individual would however be liable for the non-compliance with the
Court order even if he or she was not a party to the proceedings
that
gave rise to the Court order if in the contempt proceedings such an
individual is cited in his or her capacity as a representative
of the
legal entity against which the order was made, such as a company
director or a union official who, with the knowledge of
an order of
court, caused the entity to disobey the order. In other words an
individual who causes a legal entity to disobey a
Court order shall
be held liable for the contempt of the order even though he or she
was not cited in the proceedings that gave
rise to the order.
[8]
It is common cause in the present matter that the following persons
were not cited in the application for the alleged contempt
of the
court order; Daniel Mokhlo, Flip Moledi, Lazarous Matli, Francis
Nxobo and Phakiso Mhlanga.
[9]
The issue for determination in this matter is whether it is competent
to institute contempt proceedings against the individuals
mentioned
above when they had not been cited in the contempt application.
[10]
It is common cause that the people mentioned above are employees of
the applicant. These individuals were not included in the
applicant’s
application for contempt of the Court order for reasons unknown to
this Court. It is for this reason that those
individuals who were not
cited in the contempt application cannot be held liable for the
alleged contempt of the court order. The
individuals in question were
not afforded an opportunity to oppose the contempt application.
[11]
In order to succeed in this application it would seem to me that the
appropriate approach which the applicant ought to have
followed was
that which it adopted in the case of the sixth respondent, Mr
Phetshwane who was also not part of the initial contempt
application.
In that instance the applicant subsequent to obtaining the initial
interdict instituted an interdict against Mr Phetshwane.
[12]
In the premises the point
in limine
raised by the respondent’s
stands to succeed. I see no reason why costs should not in law and
fairness follow the results.
Order
1.
The point
in limine
raised by the respondent is upheld.
2.
The contempt proceedings instituted against Daniel Mokholo, Flip
Moledi, Lazarous
Matli, Francis Nxobo and Phakiso Mhlanga is
dismissed.
3.
The applicant is to pay the cost of the respondents.
___________________
E
Molahlehi
APPEARANCES:
For the Applicant:
Avd B L Roode
Instructed by:
Rossouw and Prinsloo Inc.
For the Respondent:
Adv J G Rautenbach
Instructed by:
Cheadle Thompson and Haysom Inc
[1]
Democratic
Nursing Organisation of SA & another v Director-General,
Department of Health & others
(2009)
30 ILJ 1845 (LC) at page 1848, paragraph [14].