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[2017] ZALCJHB 266
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Tasima (Pty) Ltd v Road Traffic Management Corporation and Others (J890/17) [2017] ZALCJHB 266 (13 July 2017)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: J 890/17
In
the matter between:
TASIMA
(PTY) LTD
First applicant
And
ROAD
TRAFFIC MANAGEMENT
CORPORATION
First respondent
DEPARTMENT
OF TRANSPORT
DIRECTOR
GENERAL:
DEPARTMENT
OF TRANSPORT
MINISTER
OF TRANSPORT
EMPLOYEES LISTED IN ANNEX “A”
Second respondent
Third
respondent
Fourth
respondent
Fifth
to 84
th
respondents
Heard
:
23
June 2017
Delivered:
13 July 2017
JUDGMENT
RABKIN-NAICKER
J
[1]
On the 23 May 2017 Steenkamp J made the following order having heard
an urgent application brought by the applicant:
1.1
It is declared that, with
effect from 5 April 2017, the contracts of employment of the 5
th
to 84
th
respondents transferred automatically from the applicant (Tasima
(Pty) Ltd) to the first respondent (the Road Traffic Management
Corporation) in accordance with the provisions of section 197 of the
Labour Relations Act
[1]
.
1.2 The
RTMC is directed to pay the 5
th
to 84
th
respondents from 5 April 2017 to the date of the final determination
of the order in subparagraph 1 above:
1.2.1
on a monthly basis on or before the 25
th
of each month,
the amounts set forth under the column headed “Monthly CTC excl
13
th
cheque, annual bonus, overtime, standby allowance,
birthday voucher and night shift allowance” as set out in
Annexure “C”
to Annexure “FM 11.6” to the
founding affidavit of Fannie Lynen Mahlangu; and
1.2.2
on an annual basis, any additional amounts making up the column
headed “Annual Total
CTC” as set forth in that schedule.
1.3 The
confidentiality regime set out in paragraph 107 of the founding
affidavit applies.
1.4 The
RTMC is ordered to pay the costs of this application, including the
costs of two counsel,
and including the costs of 5 May 2017.
[2]
On 2 June 2017 the applicant again approached the Court on an
urgent basis after the Steenkamp J Order was not complied
with.The
first respondent had sought leave to appeal and submitted that its
application for leave to appeal suspended the entirety
of the
Steenkamp J order. The applicant sought a declaration of contempt. On
this occasion, Saloojee AJ found that the payment
obligations
operated “notwithstanding any application for leave to appeal
or appeals against paragraphs 63.1 and 63.2 of
(the Steenkamp Order).
On the issue of contempt he stated that:
“
[14]
The second part of the notice of motion addresses contempt of the
order. The evidential burden was
placed on the RTMC to establish a
reasonable doubt on its wilfulness and
mala
fides
in order to
avoid an adverse finding.
[15] The
RTMC relied on its interpretation of the order and
Section 18
of the
Superior Courts Act No. 10 of 2013
. I am satisfied that the RTMC has
discharged the evidentiary burden and finding of contempt of the
order is inappropriate in light
of the argument on behalf of RTMC.”
[3]
The first respondent then gave effect to the May payment through the
applicant.
[4]
On 6 June 2017, Steenkamp J granted the first respondent leave
to appeal his order, save for that part of the order pertaining
to
the relief in paragraph 63.2. The first respondent then sought leave
to appeal the order by Saloojee AJ as well as petitioning
the LAC to
grant leave to appeal paragraph 63.2 of the Steenkamp J Order.
[5]
It is unfortunate that urgent court was seized with yet another
urgent application, and counter-application in which submissions
were
made that will properly be decided by the LAC and on which my
brothers Steenkamp J and Saloojee AJ have already pronounced.
I have
no intention in venturing into the merits of the dispute between the
parties that will properly serve before a higher court.
[6]
The applicant sought the following urgent relief in its Notice of
Motion dated 20 June 2017:
“
2.
Directing the first respondent, within 3 hours of the time that this
order is handed
down, to make payment to the applicant of
R3,208,307.91 in respect of the April 2017 salaries as ordered in
paragraph 63.2 of the
order of Steenkamp J under this case number
dated 25 May (“the Order”);
3.
Directing the first respondent, by no later than 23:59 on 25 June
2017, to make
payment to the fifth to eighty fourth respondents in
the amount of ZAR 3,600,599.47;
4.
Declaring the first and eighty fifth respondents to be in breach and
wilful contempt
of paragraph 63.2 of the Order:
5.
Ordering that:
5.1
If there is a breach of any part of the orders in paragraph 2 or 3
above, the eighty fifth
respondent be committed to imprisonment:
5.1.1 for a period
of 30 days;
5.1.2 alternatively
until paragraphs 2 and 3 above have been complied with;
5.1.3 further
alternatively for such period as the Court deems appropriate;
5.2
should, at any time, there be a breach of paragraph 63.2 of the Order
by the first and or
eighty fifth respondent, the eighty fifth
respondent be committed to imprisonment for a period of 30 days;
alternatively until
such breach has been rectified; further
alternatively for such period as the Court deems appropriate;
5.3
a warrant of committal is to be issued as a matter of extreme urgency
by the Registrar of
this Honourable Court, on the same papers, duly
supplemented as necessary, if either the first or eighty fifth
respondents commit
any breach/es of any part of the orders in
paragraph 2 above, or paragraph 63.2 of the Order.
6.
Directing that the first and eighty fifth respondents jointly and
severally with
any other party that opposes this application, be
ordered to pay the costs of this application, on the scale as between
attorney
and own client including the costs of two counsel.”
[7]
First it must be stated that the payment to be made in June in terms
of the Steenkamp J order was not yet due when the application
was
launched and was in fact paid on the day the matter was heard in
court, still before due date.
[8]
In as far as the April amount is concerned, the following is apparent
from the founding papers:
“
60.
Recognising the calamitous consequences arising from non-payment of
the Employees’ salaries, Tasima, on 24 April 2017,
addressed
the RTMC and informed the RTMC that, recognising no obligation to do
so, Tasima would be making payment of the April
2017 salaries to the
Employees on the RTMC’s behalf. A copy of the relevant letter
(without) annexures. A copy of the relevant
letter (without
annexures) is annexed marked “SA10”.
[9]
It is undisputed that applicant made the payment for the April
salaries, and has not be reimbursed for this amount. Mr Beaton
for
the first and eighty-fifth respondents argued that this issue was
clearly not urgent. The individual employees had received
payment for
April salaries and the applicant and first respondent could deal with
the claim in different proceedings. I note that
the relief for the
payment of the April salaries was not specifically addressed in the
Notice of Motion before Saloojee AJ dated
26 May 2017.
[10]
However an application in contempt proceedings is by its nature
urgent as the Practice Manual in this Court recognizes. There
had
been no breach of the order in respect of the May salaries when the
application was brought, as referred to above. Steenkamp
J’s
Order in respect of first respondent’s obligations was to pay
the salaries, including those for April, to the individual
employees.
The first respondent has not made any payment in this respect. I
declare the first respondent to be in contempt of this
part of the
Steenkamp J order i.e. the payment of the April salaries.
[11]
If there is a breach of the order I shall make in respect of the
April monies, the respondents can be in little doubt that
the Labour
Court will be less than appreciative to deal with this matter again.
I have no intention in issuing out contempt orders
in futurum
but trust that the first respondent will not cause any further
breaches of the Steenkamp order given that the substantive matters
will be dealt with in the LAC.
[12]
In as far as costs are concerned, the first respondent must bear the
costs of the counter-application. The applicant was not
successful in
the main application except in respect of the relief sought for the
April monies and the application in all other
respects was premature.
I am of the view that it is equitable that the parties pay their own
costs in respect of the main application.
I make the following order:
Order
1. The first
respondent is to make payment to the applicant of R3,208,307.91 in
respect of the April 2017 salaries
within 5 days of this order and
cause a notice to be filed with the Registrar of the Labour Court
that it has done so.
2. The
first respondent is to pay the costs of the counter application,
including costs of two counsel.
_____________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant :
JP.V. McNally SC with A.W.T. Rowan
Instructed
by :
Webber Wentzel
For
the First and Eighty Fifth Respondents:
R.S Beaton SC with
P. Verveen
Instructed
by:
Selepe Attorneys
[1]
Act 66 of 1995