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[2015] ZALCPE 14
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NUM obo Ngada and Others v Asphalt Services CC and Others (P81/12) [2015] ZALCPE 14 (6 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case No: P 81/12
DATE: 06 MARCH 2015
Not Reportable
In the matter between:
NUM obo XOLANI NGADA & 8
OTHERS
...........................................................................
Applicant
And
ASPHALT SERVICES
CC
..........................................................................................
First
Respondent
GLYNIS RANDAL
(LARRETT)
............................................................................
Second
Respondent
EVEN
KENTANI
........................................................................................................
Third
Respondent
Heard: 27 February 2015
Delivered: 6 March 2015
Summary: when a settlement agreement
has been made an order of court which the respondents refuse to
comply with, the application
for contempt of court is based on the
court order and not on the agreement.
JUDGMENT
LALLIE J
[1] The applicant mainly seeks an order
declaring that the second and third respondents (“the
respondents”) are in contempt
of an order granted by this Court
on 14 July 2010. They seek a further order that the respondents be
sentenced to pay a fine of
R2000.00 or to thirty days’
imprisonment, suspended for a period of two years, on condition that
they are not convicted of
contempt of court committed during the
period of suspension. The application is opposed by the second and
third respondents.
[2] The individual applicants were
employees of the first respondent close co-corporation of which the
second respondent is a member.
The third respondent is a Human
Resources Manager of the first respondent. A dispute ensued between
the applicant and the first
respondent which was referred to the
Commission for Conciliation Mediation and Arbitration (“the
CCMA”). Attempts to
resolve it were successful in that the
applicant, and the first respondent, represented by the third
respondent reached a settlement
agreement the salient terms of which
are the following:
‘1. All employees (“applicant”)
who were laid off by the respondent shall be reinstated within two
weeks from
the date of settlement agreement.
2. If there is work the employees
(“applicants”) shall rotate with the other seven
employees who are not laid off on
a weekly basis.
3. No new employees shall be employed
by the respondent unless there is enough work for all the old
employees including the applicants.
4. In future if the contract (“service
provider contract”) is about to come to an end the respondent
must inform all
employees (including the applicants) and their trade
union NUM a month in advance/
5. In the case of respondent laying-off
the old employees (including the applicants) respondent will use the
FILO (First In Last
Out) system when employing’.
[3] The third respondent signed the
settlement agreement on behalf of the first respondent on 14 August
2007. The respondent did
not comply with the settlement agreement.
The applicant approached this Court for an order making the
settlement agreement an order
of court (“the court order”).
It was granted on 14 July 2010. On 3 August 2010, Mr Bengequla
(“Bengequla”)
an official of the applicant trade union
(NUM) faxed the court order to the first respondent. On 9 November
2010, Bengequla phoned
the third respondent and informed him that
some individual applicants would report for duty on 19 November 2010.
It is common cause
that only one of the individual applicants, Mr
Ngada (Ngada) reported for duty on 19 November 2010. The respondents
denied that
the other individual applicants also reported for duty on
the said date. The third respondent refused to reinstate Ngada. The
parties
are in dispute pertaining to the reasons for the refusal and
the number of applicants who reported for duty on 19 November 2010.
The applicant submitted that the respondents have failed and or
wilfully neglected to comply with the court order.
[4] For an application declaring the
respondents to be in contempt of court to be successful, an applicant
needs to establish that
the respondents are bound by an order of a
competent court which they have failed to comply with and that they
are in wilful default
of the court order. In this regard see Fakie NO
v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at paragraph
[9]
. It
was argued on behalf of the respondents that the applicant failed to
establish that the respondents are in contempt of court,
inter alia,
because it is the individual applicants who failed to comply with the
settlement agreement and accordingly the contractual
relationship
between them and the respondents terminated by effluxion of time. It
was further argued that because of the dispute
of fact, the rule in
Plascon- Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) should apply. In terms of the rule when there is a factual
dispute, final relief should be granted to the applicant if the facts
stated by the respondent, together with the facts admitted in the
applicant’s affidavit justify the granting of the order.
The
respondents argued that there was no justification for the contempt
of court order to be granted because the individual applicants’
fixed term contracts terminated during September 2007 and none of the
individual applicants reported for duty within two weeks
in terms of
the settlement agreement. According to the principle of reciprocity
and the exception non adimpleti contractus there
was no obligation on
the first respondent to take the individual applicants into its
employ at this stage. In addition the respondents
argued that the
applicant failed to prove beyond reasonable doubt that the second and
third respondents were bona fide in contempt
of court.
[6] I have considered the submissions
on behalf of both parties and I accept the applicant’s version
that this application
is based not on the first respondent’s
failure to comply with the settlement agreement but on its failure to
comply with
the court order. In terms of the very Plascon-Evans rule,
the respondents sought to rely on, the applicants’ version
should
be preferred because it is not far-fetched. The applicants
fought for their reinstatement and an agreement granting them their
reinstatement was reached. When the applicant failed to comply with
it, they had it made an order of court. The validity of the
court
order, which at least the third respondent became aware of in
November 2010, was never attacked. The respondents have raised
for
the first time in this application that the individual applicants
were on fixed term contracts, copies of which were not even
attached
to their papers. The third respondent did not deny having wilfully
refused to comply with the court order. It is too late
for him to
allege that he was misled into entering into the agreement by a CCMA
Commissioner because had that been the case, the
respondents would
have taken the necessary steps to protect itself against an invalid
agreement. The second respondent who elected
the third respondent to
present her is bound by the court order and when she got to know of
the court order and failed to comply
with it she made herself guilty
of being in wilful default of the court order.
[7] I could find no reason both in law
and fairness for costs not to follow the result.
[8] In the premises the following order
is made:
8.1 The second and third respondents
are in contempt of the order granted on 14 July 2010 under case
number J116/10.
8.2 The second and third respondents
are sentenced to a fine of R2000.00 (two thousand Rand) or 30 days
imprisonment, suspended
for a period of two years, on condition that
they are not convicted of contempt of court committed during the
period of suspension.
Lallie J
Judge of the Labour Court of South
Africa
APPEARANCE
For the Applicant: Advocate Grogan
Instructed by: Wesley Pretorius and
Associates
For the Respondent: Mr Kirchmann of
Kirchmanns Inc