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[2017] ZALCJHB 162
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Kamolane v Protea Coin Group (Pty) Ltd and Another (J759/14) [2017] ZALCJHB 162 (31 March 2017)
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THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: J 759/14
In the matter between
MOLAHLEHI
FRANCE KAMOLANE
and
PROTEA
COIN GROUP (PTY) LTD
BAREND
SIMION DE WAAL
Date
of hearing: 4 November 2016
Date
of ruling: 31 March 2017
Applicant
First
Respondent
Second
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to hold the respondents in contempt of court
on account of their refusal or failure to comply with an
order
granted by this court on 7 October 2015. In terms of the order, a
settlement agreement concluded between the parties four
years
earlier, on 12 October 2011, was made an order of court.
[2]
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 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, and
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)).
[3]
Once it has been proved that the order in question was issued and
that the respondent failed to comply with it, there is an
evidentiary
burden on the respondent to demonstrate bona fides and that that the
disobedience of the order was not mala fide.
[4]
The respondents do not dispute that they were aware of the order.
They aver that they complied with the order, at least to the
extent
that they offered the applicant reinstatement, which he refused.
[5]
The relevant clauses of the settlement agreement that forms the
subject of the present proceedings reads as follows, with handwritten
insertions on the pro forma CCMA agreement indicated in bold:
1.
REINSTATEMENT
1.1
The respondent agrees to
reinstate the applicant on the same terms and conditions of
employment which governed the employment relationship
prior to the
dismissal dated
15
july 2011
.
1.2
The said reinstatement is
to operate retrospectively with effect from
15
july 2011
1.3
As a result of the
retrospective effect of the reinstatement the respondent agrees to
pay remuneration due to the applicant in the
amount of R
----
by no later than
------
.
1.4
The applicant must report
for duty on
13/10/11
(date) at
7:00
(time) at
BAMBANANI
OFFICES
(place)…
6.
OTHER
6.1 WHEN A VACANCY ARISES OUTSIDE
HARMONY SOUTH IN WELKOM, THE APPLICANT WILL BE APPOINTED THERE.
[6]
In his founding affidavit, the applicant avers that on 13 October
2011, he reported for duty at the Bambanani offices. He states
that
he was advised ‘by the First Respondent’ (no person is
named) to report back on a later date. The applicant also
appears,
from correspondence next to the founding affidavit, to believe that
he is entitled to payment in the amount of some R344,
000 in the form
of back pay and interest consequent on the arbitration award.
[7]
The respondents, in the answering affidavit, admit the settlement
agreement but, as I have indicated above, deny that they failed
to
comply with its terms. The first respondent’s industrial
relations manager, Mr Masire, deposed to her confirmatory affidavit
in which he states that the terms of the settlement provided that the
applicant would be reinstated on the same terms and conditions
with
effect from 15 July 2011, that he was to report for duty on 13
October 2011 at 7:00, and that he’s reinstatement was
conditional on him being appointed into position when a vacancy
arises outside of Harmony South in Welkom. Masire states that it
was
specifically agreed that the applicant would not be remunerated by
the first respondent until such time as a position had been
secured
and for this reason, the parties did not agree to the payment of any
back pay. In other words, the applicant would remain
an employee of
the respondent and once a vacancy became available he would be
notified and appointed to that particular site. Masire
avers that on
13 October 2011, the applicant did not report for duty as he states.
On 17 October 2011, Masire stated he became
aware of a vacancy into
which the applicant could be placed in the Vaal region. He states
that he contacted the applicant to advise
of the vacancy and and
informed him that he must report to the site concerned. The applicant
declined the position and so that
he could not relocate to the Vaal.
A further position was offered to the applicant at AEL in Welkom,
which the applicant refused.
Masire states that the applicant did not
communicate any further with him or the first respondent or attempt
to report for duty
at any of the sites offered by the first
respondent in compliance with its obligations under the settlement
agreement.
[8]
In his replying affidavit, the applicant reiterates that he reported
for duty on 13 October 2011. He then deposes to a version
which was
not canvassed in the founding affidavit, to the effect that when he
reported for duty on that date, he was taken to Rustenburg
where he
was informed by Masire to return home and that he would be contacted
should there be a vacancy in which he could be placed.
The applicant
states that he then went home and waited the further advices of the
first respondent. He states that on 17 October
2011, Masire
telephonically contacted him and advised him that there was a post at
Rustenburg. The applicant considered that the
post offered did not
amount to compliance with the settlement agreement and when he
reported to the first respondent’s officers
on 18 October 2011,
he was advised by Masire that he should go home and would be
contacted if there was a post available.
[9]
In motion proceedings, the affidavits constitute not only the
pleadings but also the evidence relied on by the applicant in
support
of his claim. The party is required in the founding affidavit to sit
out the facts fully, simply, clearly and in chronological
sequence
without any argumentative matter (see
Reynolds N.O. v Mecklenberg
(Pty) Ltd
1996 (1) SA 75
(W) at 78). The case of a dispute of
fact, the applicable principles of those set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1884 (3) SA 623
(A)).
These require that in motion proceedings, a final order may be
granted only if the facts alleged in the respondents affidavit
coupled with those engaged in the applicant’s affidavit which
have been admitted or denied by the respondent, permit such
relief.
In short, motion proceedings are about the resolution of legal
disputes based on common cause facts; they are not designed
to
determine probabilities (
NDPP v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at
290D).
[10]
Further, as a general principle, an applicant in motion proceedings
must make out a case in the founding affidavit. Generally,
new matter
will not be permitted to be raised by way of a replying affidavit. In
the present instance, the replying affidavit comprises
material that
was known to the applicant at the time he deposed to his founding
affidavit. The facts to which he deposes all relate
to events between
13 October 2011 and November 2011. There is no reason why these could
not have been canvassed in the founding
affidavit. I am not persuaded
that I should exercise my discretion in favour of allowing new
evidence to be introduced by the applicant
in his replying affidavit.
The application stands to be determined therefore on the basis that
to the extent that the replying
affidavit introduces new evidence, it
is to be excluded from consideration.
[11]
In the present instance, the settlement agreement concluded between
the parties is drafted in a most unsatisfactory manner.
This court
has previously warned commissioners not to endorse settlement
agreements that are ambiguous or that are not clearly
definitive of
the parties’ respective rights and obligations, precisely
because imprecision gives rise to disputes such as
the present. Be
that as it may, both parties accept that the applicant was obliged to
report for work on 13 October 2011. The dispute
between the parties
is one of fact – the applicant states that he reported for duty
in terms of the agreement and that he
was told to report back on a
later date. The respondent’s version is that the applicant’s
reinstatement was conditional
on a vacancy arising outside the
Harmony contract, that the applicant did not report for duty on 13
October 2011, that vacancies
were nonetheless found and offered but
refused by him
[12]
In his founding affidavit, as I have indicated, the applicant deals
with the crucial issue of whether or not he reported for
duty in a
single sentence, in which he says no more than that he reported for
duty and that he was advised by some unknown person
to report back on
a later date. From this terse statement, the applicant draws the
conclusion that the first respondent ‘avoided
upholding the
settlement agreement’. The version deposed to by the
respondents, and particularly that reflected in the confirmatory
affidavit of Masire, paints a very different picture. The picture
painted is one in which the applicant was offered appointments
at two
different sites, both of which he declined.
[13]
I am unable to find on the papers before me that the respondents
disregarded the order concerned, or that any disregard was
mala
fide
and wilful. First, the settlement agreement is reasonably
capable of bearing the interpretation placed on it by the
respondents.
This is supported by the nature of the applicant’s
employment and the placement of the respondent’s employees to
the
sites of its various clients. The fact that the applicant could
not be employed at a Harmony Gold Mines site is supported by the
uncontested evidence that Harmony had refused the applicant access to
any of its sites. In terms of the
Plascon Evans
rule, I
am bound to accept the version proffered by the respondent that the
applicant did not report for duty on 13 October
2011 as directed,
that he was offered placement at least two sites other than the site
at Harmony Gold, and that the applicant
refused both placements. In
these circumstances, on the papers before me, the respondents did not
act in breach of the settlement
agreement and thus in breach of any
order of this court.
I
make the following order:
1. The application
is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
thqe applicant: Mr A Goldberg, Goldberg Attorneys
For
the respondents: Ms S Lancaster, Lancaster Kungoane Attorneys