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[2017] ZALCJHB 187
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Mokoena v American Products Services CC (J1687/16) [2017] ZALCJHB 187 (29 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case
no: J 1687/16
In the matter between:
JULY
EZEKIEL MOKOENA
and
AMERICAN
PRODUCTS SERVICES CC
Applicant
Respondent
Heard:
13 December 2016
Judgment:
13 December 2016
Edited:
29 March 2017
EX-TEMPORE
JUDGMENT
VAN
NIEKERK J
[1]
This is an application brought by the applicant, who is assisted by
his union, to hold the respondents in contempt of court.
The
requirements for 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.
[2]
The principles relevant to civil contempt were set out in some detail
by Judge Cameron in
Fakie
NO v CC11 Systems (Pty) Ltd
,
2006
(
4
)
SA
326
(
SCA
)
.
In terms of those principles it is:
“
A
crime unlawfully and intentionally to disobey a court order, the
essence of which lies in violating the dignity repute and 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 and circumstances where
there are
no reasonable grounds for disbelieving the information, and the
respondent must have failed to comply with the order.
The
failure to comply must also be both
mala
fide
and wilful.
[3]
In the present instance the order in question is one made by this
court when it made a settlement agreement an order of this
court. The
settlement agreement was one signed between the parties on 18 April
2016. That settlement was concluded following an
unfair dismissal
dispute between the parties. The settlement agreement is inelegantly
drafted, to say the least.
[4]
Paragraph 1 of the settlement agreement is headed “Reinstatement”.
That paragraph has been deleted with the addition
of the words “See
6”, presumably a reference to paragraph 6 of the
pro forma
used to complete the agreement. Paragraph 2, referring to
“Re-employment” has been deleted. Paragraph 4 refers to a
monetory settlement and makes mention of a sum of R9 859.41
payable by no later than: “When the applicant resumes duty.”
Paragraphs 4 and 5 have been deleted. Paragraph 6, which is
headed “Other”, reads as follows: “The applicant
will go and get his eyes comprehensively tested and show proof of the
results that state he is fit to drive heavy duty vehicles.
The test
must be done within five (5) weeks of today.”
[5]
There is a further handwritten addition, which reads: “This to
be done by a reputable optometrist.” The agreement
does not
specifically provide that the applicant will be reinstated, nor it
does not specifically establish that the eye test,
or more accurately
an eye test that establishes that the applicant’s vision
complies with the requirements of the applicant’s
legislation
is a condition to his reinstatement, Frankly, the wording of the
agreement is ambiguous and fails clearly to set out
whatever either
party intended by reaching the settlement that they did.
[6]
What is not in dispute is that the sum of R9 000 odd was paid.
The respondent appears to suggest in the answering affidavit
that
this was paid as a gratuity insofar as the agreement required the
respondents to reinstate the applicant subject to him obtaining
proof
that his eyesight met the necessary thresholds or requirements
established by the applicable regulations. Again, as I have
mentioned, that is not unequivocally stated in the agreement, but for
present purposes I will assume that that is certainly how
the
respondent understood the terms of the agreement.
[7]
The respondent’s case is that shortly after signature of the
agreement, in fact, during the course of the next month,
an eye test
was arranged under the auspices of what is referred to as “Prime
Care Wellness Occupational Health Clinic.”
The results obtained
from that test disclosed that the applicant’s eyesight is such
that he was not fit to drive a heavy
duty vehicle. The respondent has
made reference to regulation 102 of the regulations promulgated by
the Department of Transport.
In terms of that regulation, (and this
is not disputed) in the case of an application for a learner’s
or driving licence
relating to Code C1, C, EC1 or E C, the driver
must necessarily have, according to the Snellen rating, a minimum
visual acuity
with or without refractive correction of 6\9 (20\30)
for each eye and a minimum visual field of 70 degrees temporal
in respect
of each eye, with or without refractive correction.”
[8]
The results of the tests that were conducted during the course of May
2016 clearly indicate that, as I have said, the applicant
failed to
meet this threshold. There is a result of “20/100”
reflected on the report of the eye test. In these circumstances,
and
in accordance with the respondent’s understanding of the terms
of the agreement, a condition they had attached to the
settlement
agreement had not been fulfilled and it was under no obligation to
reinstate the applicant.
[9]
It is not for this court to decide whether the applicant is fit to
drive, it is not even for this court to decide whether the
eye test
that was conducted during the course of May 2016 was valid, nor is
this court to decide on the consequences of that test,
having regard
to the applicable regulations. What this court must determine,
as I have indicated, is whether there is an
order, whether the
respondents have knowledge of the order, whether the respondents have
failed to comply with the order and whether
that failure is both
mala
fide
and wilful.
[10]
It is not in dispute, as I have indicated, that there is an order and
that the respondent has knowledge of the order. Even
if I were to
accept that there was a failure to comply with the order, which, for
the reasons I have indicated, I do not accept,
but for the sake of
argument it seems to me that it cannot be said on the facts before me
that any failure to comply is both
mala fide
and wilful.
[11]
The respondent acted according to its understanding of the meaning of
the settlement agreement. It arranged for the eye test
to be
conducted and the results of the eye test, which were conducted by an
independent party are such that in its view the condition
that had
been established had not been met and that it therefore was under no
obligation to reinstate the applicant. In my view,
on the information
available to me, I cannot find that any refusal to reinstate the
applicant was either wilful or
mala fide
. It follows that the
respondent is not in contempt of the order of this court and that the
application falls to be dismissed.
[12]
With regards to costs, this court has a broad discretion in terms of
section 162 to make orders for costs according to the
requirements of
the law and fairness. The filing of this application and its
prosecution before this court in my view is misguided.
I will accept
that the real issue here and the cause of these proceedings
ultimately is the poor wording of the settlement agreement,
and
again, this is not for the first time, this court would call upon
presiding Commissioners to ensure that settlement agreements
are
coherent and that the respective rights and obligations of those who
are party to the agreement are clearly spelt out. This
did not happen
in the present instance, and as I have indicated, that is in my view
largely the cause of this litigation. In those
circumstances, it
would appear to me that the interest of the law and fairness are best
served by each party bearing its own costs.
For
those reasons then I make the following order:
1.
The application is dismissed.
2.
There is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT