About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2015
>>
[2015] ZALCPE 19
|
|
Swart v Minister of Correctional Services and Another (P549/09) [2015] ZALCPE 19; (2015) 36 ILJ 2381 (LC) (24 March 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case No: P549/09
DATE: 24 MARCH 2015
Reportable
In the matter between:
ANTON RONALD
SWART
.....................................................................................................
Applicant
And
THE MINISTER OF CORRECTIONAL
SERVICES
.............................................
First
Respondent
THE HEAD OF DEPARTMENT OF
CORRECTIONAL
SERVICES
..............................................................................
Second
Respondent
Heard: 27 January 2015
Delivered: 24 March 2015
Summary: Contempt of court proceedings.
Interpretation of court order. Principles restated.
Illegality. Doubtful whether court of
equal jurisdiction can set aside its own order, even if alleged to be
tainted with illegality.
Orders of a competent court must be obeyed
unless and until a court of higher or appeal jurisdiction sets that
order aside. Semble:
There may be instances where cases of blatant
illegality preclude a court of equal jurisdiction from enforcing the
terms of its
own orders. However, this is not such a case.
Declaratory order granted.
JUDGMENT
EUIJEN AJ
Introduction
[1] These are contempt of court
proceedings in which the applicant seeks the incarceration of the
respondents pending full compliance
with the terms of two orders made
by this Court on 22 February and 24 October 2012 under the above case
no. In addition, he seeks
a declaratory order in lofty terms that the
respondents’ failure to ensure full compliance with these
orders of this Court
“constitutes an ongoing violation of their
duties under the Constitution.”
[2] The precise meaning of those orders
is the subject of this dispute, but in neutral terms, order that the
applicant be promoted
by the Department of Correctional Services
(“the Department”) to the position of Assistant Director:
Case Management
Administration Eastern Cape, with effect from 2006.
[3] At the time this application was
launched, on 25 June 2013, it is common cause that there had been no
compliance at all with
the terms of this Court’s orders. It is
further common cause that the applicant was eventually formally
appointed to the
designated position after the filing of the
supplementary affidavit in this matter on 9 September 2013.
Respondents’ counsel
fairly conceded that whatever the result,
the applicant is at least entitled to his costs up until that point.
[4] After the promotion of the
applicant, a dispute arose whether his appointment could be on
probation; whether the applicable
salary scale at which the applicant
is to be remunerated is level 9 or level 10; and the period from when
the promotion took effect.
The parties are agreed that the only
outstanding issue remaining in dispute is the salary scale at which
the applicant is to be
remunerated in the designated post and that is
what this Court must decide.
[5] There are also interlocutory
applications for the reception of a further answering affidavit which
is opposed; a striking out
application in the event it is received;
and an application for condonation for the late filing of certain
documents. I shall refer
to these applications, insofar as is
necessary, in the course of dealing with the merits during the course
of this judgment.
Interpretation of the Court Orders
[6] The first order of this Court dated
22 February 2012, was made in terms of section 158(1)(c) of the
Labour Relations Act, no.
66 of 1995 (“the LRA”). It
converts an award of a Bargaining Council Commissioner made in the
General Public Service
Sectoral Bargaining Council under case no.
PSGA 482/07/09 on 21 August 2009, without elaboration, into an order
of this Court.
The second order, made on 24 October 2012, is an
enforcement of the first and does not take the interpretation issue
any further.
[7] The primary document which must be
interpreted in this matter is thus the award of the Bargaining
Council Commissioner made
on 21 August 2009, in resolution of the
dispute referred to it by the applicant in terms of section 186(2)(a)
of the LRA. The order
made at the end of the award reads as follows:
“That the Applicant, Mr Anton
Ronald Swart, is entitled to the relief sought and such relief is
hereby granted.”
[8] The relief sought by Mr Swart in
the form required by Regulation to initiate arbitration proceedings
in terms of section 191(5)(a)(iv)
of the LRA was:
“That Mr A Swart be promoted.”
[9] It is well established that in
interpreting any written document, including a judgment or award such
as in this case, the primary
source is the language contained in the
document itself, read in its entirety. If on that reading, the
meaning is clear and unambiguous,
no extrinsic evidence is
permissible to contradict such meaning. In cases of uncertainty or
ambiguity, one attempts to ascertain
the intention of the author of
the instrument, taking account of the reasons given in the award as a
whole. In undertaking this
task, one may have regard for the nature
of the problem that was sought to be addressed. In so doing one may
also examine the surrounding
circumstances leading up to and
surrounding the making of the order. (Firestone SA (Pty) Ltd v
Gentiruco AG
1977 (4) SA 298
(A) at 304 D-H; Administrator Cape and
Another v Ntshwaqela and Others
1990 (1) SA 705
(A) at 715 F-I; ABSA
Bank Ltd t/a Volkskas Bank v Page and Another
2002 (1) SA 617
(SCA)
at 622; Engelbrecht and Another NNO v Senwes Ltd
2007 (3) SA 29
(SCA)
at 32-33).
[10] The terms of the Bargaining
Council Commissioner’s order say nothing about the scale at
which the promotion of Mr Swart
is to take place. Both counsel
submitted that this is to be found within the terms of and the
reasons supplied in the award itself.
The problem arises because the
arbitration proceeded by default and the Department was not
represented and took no part in the
proceedings.
[11] It was submitted on behalf of the
applicant, that it is clear from the reasoning of the Commissioner in
his award that the
applicant had throughout the arbitration
proceedings claimed to be appointed to the post at the same level as
the person who was
appointed to such post, namely, Ms Matomela. It is
common cause, that Ms Matomela was appointed at level 10 because she
was already
on that scale prior to her appointment (a horizontal
transfer). In support of this contention applicant’s counsel
referred
me to two portions of the Commissioner’s reasons which
read:
“The witness stated that he
functions in the post for over 10 years and requested promotion to
ASD salary level 10 viz. the
same salary and benefits afforded to
Matomela when he (sic) was appointed during 2006.” and
“The Applicant sought as relief
promotion to the post effective from the date Matomela was appointed
viz. from 2006-08-20
with the same salary and benefits. In the
instance of this matter I am persuaded to grant the requested relief
by the Applicant.”
[12] On the other hand, the
respondents’ counsel submitted that the applicant has always
framed his claim with reference to
the post and not Ms Matomela’s
terms and conditions of employment. He submitted that it is clear
from the above that at best
for Mr Swart the reference to Ms
Matomela’s terms and conditions of employment refers only to
the date from when the promotion
was claimed. As far as the salary
scale itself is concerned, the claim was for the salary scale
attached to the post. In support
of his contention he referred me to
the portion of the Commissioner’s reasons where the relief
sought by the applicant is
summarised as:
“That the relief it (sic) seeks
is that the Applicant must receive the same salary and benefits dated
back to 2006-08-20 which
is the date on which Ms Matomela was
appointed to the post, which he would have received if it was not for
the unfair labour practice.”
[13] I pause at this point to note that
on the face of it, the portions of the Commissioner’s reasons
cited above, do appear
to support the contention advanced on behalf
of the applicant that the Commissioner understood the applicant’s
claim at all
times to be for his appointment to be at level 10 and
that is what he granted. However, in favour of the respondents, I
assume
that the last portion of the Commissioner’s reasons
cited above casts some uncertainty upon the matter. I proceed then to
examine the surrounding circumstances to which I have been referred
by the respondents and in particular the applicant’s
referrals
of the matter to conciliation and arbitration.
[14] As far as the referral to
arbitration is concerned, it is correct that there is no mention of
Ms Matomela’s appointment
and the applicant’s dispute and
relief is framed with reference to the (unspecified) rank attached to
the post. As already
noted above, the precise rank required is not
stated in the relief requested in the referral to arbitration. In the
referral to
conciliation, the dispute is described by the applicant
as:
“Mr Swart was appointed as DH
Disposal, this name was then changed to DH Case Management
Administration, whilst he was in
the post (it was not vacant) it was
advertised and another employee appointed to that post. The post
which was upgraded in the
advertisement would have been a promotion
for Mr Swart.”
[15] The outcome sought was:
“Mr Swart who is still in the
post (which he was appointed to prior to it being advertised) be
given that post together with
the rank and compensation.”
[16] It appears from the Commissioner’s
reasons that Mr Swart did in fact apply for the post as advertised
but was not short
listed or appointed. After Ms Matomela was
appointed to the post, he referred a dispute for resolution in terms
of section 191
of the LRA. Hence submitted respondents’
counsel, his claim was for the advertised post, which was advertised
at a salary
scale of R 146 685 per annum or level 9, which is the
salary currently paid to the applicant.
[17] Mr Dyke, who appeared with Ms
Ah-Shene for the applicant, contended that the advertisement is
irrelevant and unnecessary since
the applicant was already in the
post, and merely required the salary translated in accordance with
the upgraded level attached
to such post. In other words, that the
applicant certainly was not required to re-apply for the post.
[18] Whether the Commissioner’s
award is correct or not is, of course, not the issue presently before
this Court. The question
is whether this was how the applicant saw
and formulated his case, which was granted in its entirety by the
Commissioner. In my
view, there is nothing in either the referral to
conciliation or arbitration which tends to suggest that the applicant
limited
the relief sought to the advertised amount. On the contrary,
he is at pains to point out that despite his application, the post
was not, in his view, vacant.
[19] I accordingly hold that read as a
whole, and even taking into account the surrounding circumstances of
the referrals to arbitration
and conciliation, that the applicant
sought to be appointed to level 10 at the arbitration proceedings and
that is what the Commissioner
ordered. As I have stated, whether he
was entitled to this relief or not, is not an issue which I need
decide. This conclusion
renders it unnecessary to consider the other
surrounding circumstances to which I was referred in support of the
applicant’s
case.
Illegality
[20] Mr Kroon, who appeared with Mr
Voultsos for the respondents, submitted that in the event that I
should reach the conclusion
which I have reached regarding the salary
scale applicable to the applicant’s appointment, then the
Commissioner’s
award is illegal and contrary to the Public
Service Act, 1994 (PSA) and the Regulations promulgated in terms
thereof. Ordering
compliance with such orders would be ordering the
respondents to commit a criminal offence in terms of the Public
Finance Management
Act, no. 1of 1999 (PFMA). In terms of that
legislation, so it was submitted, Mr Swart is only entitled to be
appointed to the starting
notch at level 9, as advertised. The
respondents contend that this renders the award illegal and a nullity
and that it would be
contrary to public policy and the interests of
justice for this Court to enforce compliance with it. In support of
this proposition,
reliance was placed on the recent decision of the
Constitutional Court in Cool Ideas 1186 CC v Hubbard and Another
2014
(4) SA 474
(CC).
[21] The first difficulty which I have
with this submission is that this is not the correct time or place to
raise these issues.
It is not the correct time, in my judgment, in
contempt proceedings, after the respondents have abandoned and hence
exhausted their
remedies of rescission and review of the arbitration
award now sought to be enforced, to challenge the correctness of that
award.
The interests of justice in securing finality in legal
proceedings requires that a line be drawn at some point when the
debate
about the merits of the order is closed. If the respondents
are of the view that the award of the Commissioner is tainted with
illegality, then they ought to have persisted with this contention in
their rescission and/or review applications, or, at the latest,
raised this as a defence during the application to have the award
made an order of court in terms of section 158(1)(c) of the LRA.
[22] It is not the correct place,
because I do not have the power to alter or set aside an order of
this Court. Nor am I called
on to pronounce on the reasonableness,
correctness or otherwise of the Commissioner’s order; merely to
discern the correct
interpretation thereof in order to enforce
compliance, if necessary. Indeed, the position has always been that
orders of any Court
should be obeyed unless and until overturned by a
Court of higher jurisdiction, regardless of the parties’ view
of their
correctness or legality. (Kotze v Kotze
1953 (2) SA 184
(C)
at 187F; Culverwell v Beira
1992 (4) SA 490
(W) at 494 A-C;
Bezuidenhout v Patensie Sitrus Beherend Bpk
2001 (2) SA 224
(E) at
229; Jee Bhai v Minister of Home Affairs and Another
2007 (4) SA 294
(T) at 312, paras 51-52.)
[23] On behalf of the respondents it
was contended that nonetheless where there is a patent defect in a
Court order, such as the
present alleged illegality, this renders it
a nullity, and it may simply be ignored without the necessity of
setting the underlying
award aside on review and raised at any stage
during the enforcement proceedings. In support of this contention, I
was referred
to Van Zijl v Von Haebler
1993 (3) SA 654
(SECLD) at 659
G-J; Kruger v Municipal Employees Gratuity Fund and Another (1998) 19
ILJ 1319 (PFA) at 1326 C-E; and Nonzamo Cleaning
Services
Co-Operative v Appie and Others
[2008] 9 BLLR 901
(Ck) at para [9].
[24] In my judgment, none of the cases
to which I have been referred by respondents’ counsel support
this submission. None
of them concern enforcement of Court orders
(let alone contempt) proceedings after all avenues of appeal and
review on the merits
have been exhausted, as in this case. Van Zijl’s
case was an application to make an arbitration award made in terms of
the
Arbitration Act no. 42 of 1965
, an order of the High Court in
terms of
section 31
of that Act. In other words, it is akin to
section 158(1)(c) proceedings in this Court. The Court there held
that it was permissible
to raise a jurisdictional point in those
proceedings, despite this not having been raised at the arbitration
nor in an application
under
section 33
of the
Arbitration Act. As
I
have stated earlier, that would have been a more appropriate time to
raise this point than in these proceedings. Similarly, in
the matter
adjudicated by the Pensions Fund Adjudicator, who is of course not a
Court, the Pension Funds Adjudicator ignored an
a
rbitration award made in terms of the
Arbitration Act, on
the grounds that the Arbitrator’s award
exceeded his terms of reference and permitted an employer to make
deductions from
pension benefits which are expressly prohibited in
terms of
section 37A
of the Pension Funds Act 1956. In the Nonzamo
Cleaning Services matter, the full bench of the Eastern Cape Division
of the High
Court held that it was permissible to raise a
jurisdictional issue which had been abandoned in the Court a quo
again on appeal.
[25] The difference between the cases
to which I have been referred by respondents’ counsel and the
present, in my judgment,
is that all those cases say is that during
proceedings before a Court with the power to alter or otherwise
pronounce upon the correctness
of a judgment or order, or an award of
an arbitrator, then a strictly legal point about the legality or
jurisdiction of the body
which made the order or award may be raised
for the first time at a late stage, even if it had previously been
abandoned. In the
present proceedings, the order which the
respondents wish declared illegal is now an order of this Court.
Self-evidently, I have
no power to interfere with the substance of
the orders made by this Court, merely to interpret them and enforce
compliance with
their terms, as I have found them to read.
[26] Respondents’ counsel also
referred me to the unreported judgment in the South Gauteng High
Court, sitting in Johannesburg
in the matter between Lujabe
Matsheliso Xoliswa and Marutona Shibishi Samual (case no. 35730/2012)
delivered on 5 April 2013 in
support of the proposition that this
Court would still ignore its earlier order if satisfied that it is
illegal. Although the South
Gauteng High Court proceedings were also
for contempt of court, all that was held there was that the terms of
the earlier order
were so vague and imprecise as not to amount to an
order ad factum praestandum at all. (at para 21]) In other words, the
order
was merely found to be unenforceable for vagueness. I have
already found that is not the case here.
[27] The Constitutional Court case of
Cool Ideas 1186 CC v Hubbard and Another
2014 (4) SA 474
(CC), also
does not, in my view, take the above propositions any further. That
case also concerned an application to have an arbitration
award made
an order of Court in terms of
section 31
of the
Arbitration Act. In
those proceedings in the High Court, Ms Hubbard raised the point
about the alleged illegality of the award being contrary to the
Housing Consumers Protection Measures Act, no. 95 of 1998
. Although
the High Court found against her, her defence was upheld both by the
Supreme Court of Appeal and the Constitutional Court.
Again, that
case is akin to
section 158(1)(c)
proceedings and not contempt of
court.
[28] Indeed, even in this Court, apart
from the bald allegation in the answering affidavit that it would be
unlawful to pay the
applicant above the advertised rate, the factual
material for the respondents’ illegality argument, namely the
precepts of
the Personnel Administration Standards (PAS) promulgated
in terms of the PSA and its Regulations is only contained in the
supplementary
answering affidavit, in respect of which there is a
further interlocutory application for its admission.
[29] I do not consider that there is
any justification for the admission of the supplementary answering
affidavit. The papers in
this matter are already far too voluminous
and the issues could have been dealt with by both parties’
legal representatives
far more succinctly. More to the point, the new
matter and documentation attached to the applicants’ replying
affidavit which
the supplementary answering affidavit purports to
deal with, is irrelevant, since it relates to events that occurred
after or were
disconnected from the arbitration award itself. It
could thus have been safely ignored and did not warrant the extensive
pleading
over, which also lays the factual allegations for the
illegality argument for the first time.
[30] There may doubtless be an occasion
where blatant illegalities in the enforcement of court orders which
would otherwise occur,
may persuade even a court of equal
jurisdiction to decline to do so. There are rare examples in the
criminal law where illegal
punishments have not been enforced.
However, I do not consider that this is such a case. The provisions
in the PSA and its Regulations
as well as the PFMA to which I have
been referred by Mr Kroon, contain constraints on the powers of State
officials in regard to
the appointment of employees in the Public
Service. I do not consider that these provisions render the terms of
the Commissioner’s
order illegal. The Commissioner’s
powers to make the order he did stems from the provisions of
section
138(9)
of the LRA, which reads as follows:
“(9) The commissioner may make
any appropriate arbitration award in terms of this Act, including,
but not limited to, an award-
(a) that gives effect to any collective
agreement;
(b) that gives effect to the provisions
and primary objects of this Act;
(c) that includes, or is in the form
of, a declaratory order.”
[31] In terms of section 199 of the
LRA, contracts of employment may not disregard or waive collective
agreements or arbitration
awards. It provides:
“(1) A contract of employment,
whether concluded before or after the coming into operation of any
applicable collective agreement
or arbitration award, may not-
(a) permit an employee to be paid
remuneration that is less than that prescribed by that collective
agreement or arbitration award;
(b) permit an employee to be treated in
a manner, or to be granted any benefit, that is less favourable than
that prescribed by
that collective agreement or arbitration award; or
(c) waive the application of any
provision of that collective agreement or arbitration award.
“(2) A provision in any contract
that purports to permit or grant any payment, treatment, benefit,
waiver or exclusion prohibited
by subsection (1) is invalid.”
[32] Section 209 of the LRA makes its
provisions applicable to the State. Section 210 provides that in the
event of a conflict between
the LRA and any other law, save for the
Constitution, the provisions of the LRA take precedence.
[33] Similarly, the provisions of the
PFMA which allegedly render compliance with the terms of this Court’s
orders a criminal
offence, relate to non-budgeted or unauthorised
expenditure. In my judgment, whoever is required to ensure that the
applicant is
paid at level 10 has sufficient authority to do so on
the strength of the orders of this Court. Secondly, on this
individual scale,
budgetary matters are flexible and can be altered
to suit changing circumstances. Indeed, if the applicant was
horizontally appointed
into the position, the budget would have to be
found for the appointment, as occurred with Ms Matomela’s
appointment. Thirdly,
level 10 is a permissible (and hence ostensibly
legal) grade for the post, as conceded by Mr Kroon; the complaint is,
rather, that
it is an opportunistic level for the applicant, since
ordinarily he would have been appointed at the advertised rate of
level 9.
[34] In summary, I am not persuaded
that this is a case where enforcement of the terms of the award,
through this Court’s
order, results in any obvious illegality,
or indeed any illegality at all.
Incarceration
[35] It remains to consider whether the
applicant has made out a case for the incarceration of the
respondents. The current leading
decision on applications for the
punishment of persons alleged to have disobeyed court orders, is the
decision of the Supreme Court
of Appeal in Fakie NO v CCII Systems
(Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). There, Cameron JA (for the majority)
said the following (at para 42 (c)-(d)):
“(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’.
[36] In my view, the applicant fails at
the first hurdle in this application. There has not been personal
service of the order or
the application on either of the respondents.
It appears that the order was served on administrative staff in the
offices of the
respondents and this application served on the State
Attorney. In those circumstances, there is no evidence that either of
the
respondents is aware of either this Court’s orders or this
application. It follows that I cannot be satisfied on any basis,
let
alone beyond reasonable doubt, that the first element of contempt has
been established in these proceedings. On this ground
alone the
prayer for the incarceration of the respondents must fail.
Conclusion
[37] It follows from the above that I
have not had regard to the supplementary answering affidavit sought
to be filed by the respondents
(or the affidavits that followed in
its wake) and I do not consider that there is any justification to
seek its admission. That
application must accordingly be dismissed
with costs. Such costs will exclude the costs of the supplementary
replying affidavit
as a mark of this Court’s displeasure at the
prolixity of the papers.
[38] Although the applicant has not
secured the incarceration of the respondents, he has nevertheless
achieved substantial success
in these proceedings and is entitled to
his costs. Both parties were represented by two counsel at the
hearing. In my view this
was warranted given the importance of the
case to both parties and the issues involved. The heads of argument
on behalf of the
applicant were drafted by Ms Ah-Shene on her own.
[39] Even after the appointment of the
applicant at the disputed level, this matter has limped along and was
postponed on four occasions
last year for the filing of even more
paper and heads of argument. On each occasion costs were reserved.
This wastes the limited
resources of this Court and prevents other
deserving litigants from acquiring a place on the roll. A matter
ought to be enrolled
only once for hearing, save in unforeseen
circumstances. It seems to me that both parties are, more or less,
equally to blame for
this state of affairs. In the circumstances, I
deem it fair to exercise my discretion in respect of the reserved
costs and not
make any order as to costs.
Order
[40] In the premises the following
order is made:
40.1 The respondents’ application
for the reception of the supplementary answering affidavit is
dismissed with costs. Such
costs will exclude the costs associated
with the supplementary replying affidavit.
40.2 It is declared that the
respondents’ failure to ensure that the applicant is paid at
salary level 10 in compliance with
the orders of this Court dated 22
February and 24 October 2012 under the above case no. constitutes an
ongoing violation of his
Constitutional rights.
40.3 The respondents are to pay the
applicant’s costs of this application, including the costs of
two counsel, where employed,
jointly and severally, the one paying
the other to be absolved.
40.4 As far as the reserved costs are
concerned, there is no order as to costs.
TMG Euijen
Acting Judge of the Labour Court of
South Africa
APPEARANCES:
For the Applicant: Advocate B Dyke
and Advocate LA Ah-Shene
Instructed by: Brown Braude and Vlok
For the Respondents: Advocate P
Kroon and Advocate L Voultsos
Instructed by: McWilliams and
Elliott Inc