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[2016] ZALCJHB 58
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Wenum v Maquassi Hills Local Municipality and Another (J164/2016) [2016] ZALCJHB 58; (2016) 37 ILJ 1488 (LC) (18 February 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Reportable
Case no: J 164 /2016
In
the matter between:
CHARL
WENUM
Applicant
and
MAQUASSI
HILLS LOCAL MUNICIPALITY
First Respondent
ITUMELENG
RONALD
JONAS
Second Respondent
Heard:
5 February 2016
Delivered:
5 February
2016
Date
of Reasons: 18 February 2016
Summary: Urgent application for
payment of outstanding remuneration for January 2016 and for finding
the Respondents in contempt
of Court. Appropriate means to execute
was writ of execution. The application was ill conceived and an abuse
of process. Application
was dismissed and the Applicant’s
attorneys were ordered to pay the costs
de bonis propriis
.
JUDGMENT-REASONS FOR ORDER
PRINSLOO J
.
Introduction
[1]
On 5 February 2016 this matter
served before this Court as an urgent application for the payment of
the Applicant’s remuneration
for January 2016 and to find the
Respondents in contempt of a Court order dated 4 December 2015. The
application was opposed.
[2]
The application was dismissed
and on 12 February 2016 the Applicant’s attorneys of record
requested reasons for the order.
The reasons for the order are set
out below.
The background facts
[3]
The Applicant was employed by
the First Respondent (‘Municipality’) on 2 February 2014
as chief finance officer in terms
of the provisions of section 56 of
the
Local
Government: Municipal Systems Act
[1]
.
[4]
On 18 August 2015 the Municipal
Council took a resolution to nullify his employment and on 27 August
2015 under case number J1684/15
the Applicant approached this Court
to reinstate him pending the hearing of Part B of his application. On
27 August 2015 and by
agreement between the parties the matter was
postponed until 23 September 2015 for the hearing of Part B of the
application and
the Municipality was ordered to remunerate the
Applicant until 23 September 2015.
[5]
On 23 September 2015 the matter
was postponed to 4 December 2015 and the Municipality was ordered to
remunerate the Applicant until
the hearing of the matter on 4
December 2015.
[6]
On
4 December 2015 the matter was argued
and judgment was reserved. The Municipality was ordered to remunerate
the Applicant until
judgment was handed down. The Applicant was paid
accordingly until the end of December 2015.
[7]
On 28 January 2016 the
Applicant communicated with the Municipality’s payroll section
and he was informed that the Second
Respondent (Municipal Manager)
instructed that he must not be remunerated on the effective pay date
in respect of his remuneration
for January 2016.
[8]
The Applicant immediately
instructed his attorneys, Scholtz Attorneys, to address a letter to
the Municipality’s attorneys
and to remind them of the Court
order dated 4 December 2015. A letter was subsequently addressed to
the attorneys stating that
a Court order was granted in terms of
which the Municipality had to continue to remunerate the Applicant
until judgment is handed
down in case number J1684/15. Scholtz
attorneys indicated that if payment was not made to the Applicant,
they would proceed with
a contempt application.
[9]
Payment was not made and on 1
February 2016 the urgent application was filed.
[10]
The urgent application was
opposed and the Respondents filed an answering affidavit setting out
the reasons why the Applicant has
not established that the
Respondents are in contempt of Court and much effort was spent on
dealing with the alleged contempt of
Court.
[11]
The Applicant filed a
substantial reply and the papers before this Court consisted of 283
pages.
[12]
During argument I confirmed
with Mr Scholtz that there is a Court order that orders the payment
of the Applicant’s salary
until judgment is handed down, that
judgment was not yet handed down and therefore his client’s
claim was one sounding in
money. Mr Scholtz was unable to explain why
he has approached this Court, and that on an urgent basis, for the
payment of arrear
remuneration and contempt when his client has a
claim sounding in money.
Contempt of Court
[13]
Section 163 of the Labour
Relations Act
[2]
(‘LRA’) provides that any decision, judgment or order of
the Labour Court may be served and executed as if it were
a decision,
judgment or order of the High Court.
[14]
The word 'executed' means to
carry into effect. That is the ordinary and the clear meaning of the
word.
[15]
In
Tromp
v Tromp
[3]
the court referred to
Reid
and another v Godart and another
[4]
and quoted from that matter:
'The
word 'execution' means, as it seems to me, 'carrying out' of or
'giving effect' to the judgment in the manner provided by law;
for
example by specific performance, by sequestration, by the passing of
transfer, by issue of letters of administration, by ejectment
from
premises, or by a levy under a writ of execution.'
[16]
If the judgment is one
ad
pecuniam solvendam
, namely
one in which the court orders the debtor to pay a sum of money, it is
appropriate to seek its enforcement by means of a
writ of execution.
When the judgment is one
ad
factum praestandum
, namely
an order to perform some act for example to pass transfer or vacate
premises, the judgment creditor cannot seek its enforcement
by the
levying of a writ and his or her remedy lies in contempt
proceedings
[5]
.
These are principles practitioners in this Court should know and
consider before applications are filed.
[17]
The purpose of contempt
proceedings is to enforce a Court order and to compel compliance
where the performance of an act is ordered.
Where the Court ordered
the payment of an amount of money, the Court order can be given
effect to by following the process associated
with obtaining a writ
of execution.
[18]
Section 143 of the LRA provides
that a certified arbitration award may be enforced as if it were an
order of the Labour Court. Section
143(4) provides that where a party
fails to comply with such an award where performance of an act is
ordered, it may be enforced
by way of contempt proceedings in the
Labour Court. Where payment of an amount of money is ordered,
contempt proceedings are excluded.
[19]
The same principles that apply
to arbitration awards that may be enforced as if it were an order of
the Labour Court, apply to Court
orders.
[20]
In
Butchard
v Butchard
[6]
the Court held that:
‘…
.there
is no reason in principle or practice why a judgment for payment of a
category of expenses which can be quantified without
difficulty
should not be able to sustain a writ, if the accrual and the amount
of the expenses, on the basis of which liability
therefor is
established in a judgment, are proved, for example, by an affidavit
of the judgment creditor.’
[21]
In
Ngaka
Modiri Molema District Municipality v Ramphele and others
[7]
this Court held as follows:
‘
It
seems to me that the registrar should be directed that as a rule of
practice no writ of execution should be issued where an order
or a
judgment does not quantify the judgment debt unless the request for
the writ is accompanied by an affidavit setting out how
the debt has
been quantified.’
[22]
The
Registrar of the Labour Court can issue a writ of execution where the
request to issue the writ is accompanied by a Court order
that orders
payment of money and specifies the amount or an affidavit setting out
how the amount claimed has been quantified.
[23]
In casu
the
Applicant has a Court order that orders the Municipality to continue
to pay his remuneration until judgment is delivered. He
claims his
salary for January 2016, an amount that should be known to the
Applicant and could have been set out in an affidavit,
accompanied by
the Court order. The Applicant should have approached the Registrar
to issue a writ of execution as that was the
appropriate way to seek
enforcement of the Court order.
[24]
It was for
this reason that the contempt application was dismissed.
Costs
[25]
During
argument I canvassed with Mr Scholtz why the Applicant, Mr Wenum,
should pay for this ill-conceived application. Mr Scholtz
conceded
that he would not have a problem if Mr Wenum does not pay for this
application and I ordered that the Applicant’s
attorneys,
Scholtz Attorneys, are not entitled to charge a fee for this
application and appearance in Court and any fees which
they have
already received from Mr Wenum for this application, should be paid
back to him within 7 days.
[26]
I also
ordered Scholtz Attorneys to pay the Respondents’ costs
de
bonis propriis.
In
arriving at this decision, I am guided by the principles set
out by the courts in making such an order, mindful of the
fact that
it is awarded only in exceptional cases.
[27]
In
SA
Liquor Traders' Association and others v Chairperson, Gauteng Liquor
Board and others
[8]
the Constitutional Court ordered costs
de bonis propriis
on
a scale as between attorney and client and held that
:
'An
order of costs
de bonis propriis
is made against attorneys
where a court is satisfied that there has been negligence in a
serious degree which warrants an order
of costs being made as a
mark of the court's displeasure. An attorney is an officer of the
court and owes a court an appropriate
level of professionalism and
courtesy.’
[28]
In
Indwe
Risk Services (Pty) Ltd v Van Zyl
[9]
the
Court considered circumstances where a
de
bonis propriis
cost
order was warranted and held that:
‘
I
am also mindful of the fact that an order for costs
de
bonis propriis
is only awarded in exceptional cases and usually where the court is
of the view that the representative of a litigant has acted
in a
manner which constitutes a material departure from the
responsibilities of his office. Such an order shall not be made where
the legal representative has acted
bona
fide
or where the representative merely made an error of judgment.
However, where the court is of the view that there is a want of bona
fides or where the representative had acted negligently or even
unreasonably, the court will consider awarding costs against the
representative. Because the representative acted in a manner which
constitutes a departure from his office, the court will grant
the
order against the representative to indemnify the party against an
account for costs from his own representative. (See in general
Erasmus
Superior
Court Practice
at E12-27.) ‘
[29]
In casu
the
principles of enforcement of a
judgment
ad pecuniam solvendam
,
and
ad factum praestandum
should be known to Scholtz Attorneys and should have been considered
before an application was filed. Scholtz Attorneys showed
a flagrant
disregard for the appropriate means to enforce the Court order and to
claim the payment of the Applicant’s remuneration
for January
2016.
[30]
To approach the urgent Court to
obtain relief that should have been obtained by approaching the
Registrar of this Court to issue
a writ of execution, is an abuse of
process and not merely an error of judgment.
Scholtz
Attorneys acted in a manner that constitutes a departure from their
office by abusing the urgent Court and the Court’s
displeasure
should be known to the attorneys.
[31]
This is an
exceptional case where the Applicant’s representatives acted in
a manner that justifies an order for costs
de
bonis propriis.
[32]
In
Wallis
v Thorpe and
another
[10]
the
Court held:
‘
In
relation to costs, this court has a discretion in terms of s 162 to
make an order for costs according to the requirements of
the law and
fairness. The ordinary rule, ie that costs follow the result, is a
factor to be taken into account, but it is not a
determinative
factor…….’
[33]
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[11]
it was emphasized that:
‘
…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.’
[34]
I can see no
reason to deviate from the ordinary rule that costs should follow the
result. The Respondents are entitled to costs.
[35]
Mr Scholtz
argued that each party should pay its own costs. If I were to order
each party to pay its own costs, the result would
be that taxpayers
will pay the costs to defend an ill-conceived urgent application.
Public funds are
certainly not intended to fund costs, especially in municipalities
where service delivery should be a key priority.
[36]
The
taxpayers should not be burdened to pay the costs of this
application.
[37]
A cost order
is also a method of ensuring that decisions to litigate in this Court
are taken with due consideration of the law,
the provisions of the
LRA and the Rules of this Court.
[38]
It was for
these reasons that the following order was made:
1.
The
application is dismissed;
2.
The
Applicant’s Attorneys, Scholtz Attorneys, are not entitled to
charge a fee for this application and appearance in court
on 05
February 2016 and any fees charged and received from the Applicant,
should be refunded to the Applicant within 7 days of
the date of this
order;
3.
Scholtz
Attorneys must file an affidavit within 14 days of the date of this
order confirming that it has complied with the terms
of this order;
4.
The
First Respondent’s costs are to be paid by Scholtz Attorneys
de
bonis propriis
.
______________
C. Prinsloo J
Judge
of the Labour Court
Appearances:
Applicants:
Mr Scholtz of Scholtz Attorneys
Respondent:
Advocate M C Makgato
Instructed
by:
Mokone Phambane Inc Attorneys
[1]
Act 32 of 2000.
[2]
Act 66 of 1995.
[3]
1956 (3) SA 664
(N) at 666H.
[4]
1938 AD 511
at 514.
[5]
Herbstein and Van Winsen, The Civil
Practice of the High Courts of South Africa, Fifth edition, volume 2
page 1022 – 1023.
[6]
1996(2) SA 581 (W) at 587.
[7]
(2011) 32 ILJ 2181 (LC).
[8]
2009 (1) SA 565
(CC) at paragraph 54.
[9]
(2010) 31 ILJ 956 (LC).
[10]
[2010] 31 ILJ 1254 (LC)
[11]
2012 33 ILJ 2117 (LC).