About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 197
|
|
SATAWU obo Selaole and Others v Reno Carriers (Pty) Ltd and Another (JS394/09) [2017] ZALCJHB 197 (22 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no JS 394/09
In the matter between:
SATAWU
obo L SELAOLE & OTHERS
Applicant
and
RENO
CARRIERS (PTY) LTD
First Respondent
PHILLIPUS
RUDOLPH KRUGER
Second Respondent
Heard:
17 February 2017
Judgment:
22 February 2017
JUDGMENT
VAN
NIEKERK J
[1]
On 1 October 2015 Lallie J granted an order in terms of which the
first respondent was found to have unfairly dismissed the
individual
applicants. She ordered their reinstatement with retrospective
effect. The second respondent, on his own version, is
aware of the
order and has failed to comply with it.
[2]
The applicants seek to hold the second respondent in contempt of
court.
[3]
The principles applicable to civil contempt are well-established. The
purpose of contempt proceedings is to compel compliance
with orders
of court and to vindicate the court’s dignity and authority
consequent on the disregard of its orders. The principles
relevant to
contempt were set out by Cameron J in
Fakie NO v CCI Systems (Pty)
Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). It is a crime unlawfully and
intentionally to disobey a court order, the essence of which lies in
violating the dignity,
repute or authority of the court. The order in
question must be one
ad factum praestandum
, the order must
have been served on the respondent or the respondent must have been
advised of the order in circumstances where
there are no reasonable
grounds for disbelieving the information, and respondent must have
failed to comply with the order. The
failure to comply must be both
mala fide
and wilful (see
Fakie NO
(
supra), Uncedo
Taxi Service Association v Maninjwa & others
[1998] BCLR 683
(E)).
[4]
As I have indicated, it is not disputed that the order was served on
the second respondent; he is aware of the order and its
contents. The
second respondent opposes these proceedings on the basis that his
failure to comply with the order is not
mala fide.
The second
respondent states that the first respondent was registered in 2000
for the sole purpose of tendering for a transport
contract at the
Greenside mine. The tender was successful and the employees were
engaged. The contract was cancelled in 2008 consequent
on an
unprotected strike by the individual applicants, when the first
respondent was placed on terms by the client and after the
first
respondent had attempted to sub-contract. The first respondent was
converted into a close corporation in 2010, and all of
the
liabilities to creditors (which were transferred to the close
corporation) were settled. The auditors have confirmed that the
close
corporation has not traded since February 2012, when the last
liabilities to creditors were settled. In essence, the defence
is one
of impossibility – there is no business into which the
individual applicants can be reinstated.
[5]
Much of the replying affidavit comprises a series of bare denials;
the primary contention by the applicants appears to be that
the first
respondent remains in operation and that the order is executable.
[6]
In so far as there is a factual dispute about whether the first
respondent remains in operation, that dispute, in accordance
with the
rule applicable to factual disputes in motion proceedings, falls to
be determined on the first respondent’s version.
The version
that the first respondent has ceased trading and is dormant, as I
have indicated, is sustained by the auditor’s
certificate
attached to the answering affidavit and which records that Reno
Carriers CC has not traded since February 2012, exactly
five years
ago.
[7]
In my view, in the absence of an operating business into which the
individual applicants might be reinstated, the second respondent
has
discharged the evidential burden in relation to the requirement of
wilfulness – in the absence of a business into which
the
individual applicants might be reinstated, I accept that there is a
reasonable doubt that the non-compliance with the order
was wilful
and
mala fide
.
[8]
The applicants state that they further seek an order ‘directing
and confirming’ the amount payable by virtue of
the
retrospective nature of the order. To the extent that the applicants
appear to have filed the present application for the purpose
of
securing the monetary value of that component of the order that makes
their reinstatement retrospective, it should be recalled
that
contempt proceedings are available to a party who has obtained a
court order requiring an opponent to do or not do something
(
ad
factum praestandum
). The enforcement of claims sounding in money
are subject to different mechanisms.
I
make the following order:
1. The application
is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Union official
For
the respondents: Adv. J Oschman, instructed by Van Heerden Brummer
Inc.