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 302
|
|
Ncanana and Another v Dual Products International (SA) CC t/a Dual Products and Others (J269/2017) [2017] ZALCJHB 302 (24 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: J 269/2017
In the matter between:
MUSAWENKOSI THEMBANI
NCANANA
First Applicant
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA
Second Applicant
and
DUAL PRODUCTS INTERNATIONAL (SA) CC
t/a
DUAL
PRODUCTS
First Respondent
GERRY VAN
RENSBURG
Second
Respondent
STEPHEN VAN
RENSBURG
Third Respondent
JACO
KOEN
Fourth Respondent
Heard: 11 August 2017
Order: 11 August 2017
Date of Reasons: 24 August 2017
REASONS FOR ORDER
PRINSLOO J
Background
[1]
The
Metal and Engineering Industries Bargaining Council (MEIBC) issued an
arbitration award on 2 March 2014 wherein the First Applicant’s
(Ncanana) dismissal was found to be unfair and the First Respondent
(the employer) was ordered to reinstate him retrospectively.
Ncanana
was ordered to resume his duties on 17 March 2014.
[2]
The
employer failed or refused to reinstate Ncanana. The arbitration
award was certified in terms of the provisions of section 143
of the
Labour
Relations Act
[1]
(the Act) on 27 May 2014.
[3]
The
Second Applicant (NUMSA) acting on behalf of Ncanana communicated
with the employer between September 2014 and June 2015 to
facilitate
Ncanana’s reinstatement as per the arbitration award. There was
no response from the employer.
[4]
In
January 2017 Ncanana instructed attorneys and on 17 January 2017
Mabaso attorneys acting on behalf of Ncanana addressed a letter
to
the employer demanding compliance with the arbitration award, failing
which a contempt application would be filed against the
employer and
the Third Respondent. The employer was informed that Ncanana would
report for duty on 24 January 2017.
[5]
On 24
January 2017 Ncanana, accompanied by his attorney, reported for duty
and he was told to return on 30 January 2017. On 30 January
2017
Ncanana reported for duty but once again he was told that he should
return on 1 February 2017. Ncanana reported for duty on
1 February
2017, when he was told that the employer would not comply with the
arbitration award.
[6]
Ncanana
filed an
ex
parte
contempt
application in accordance with the provisions of the Practice Manual
with this Court on 15 February 2017 and on 24 March
2017 an order was
issued to the effect that the Second, Third and Fourth Respondents
should appear in Court on 20 April 2017 to
show cause why they should
not be found in contempt for failure to comply with the certified
arbitration award issued on 2 March
2014.
[7]
On 20
April 2017 the matter was postponed to 11 August 2017.
[8]
On 11
August 2017 Ncanana and the employer signed a settlement agreement in
full and final settlement and such settlement agreement
was made an
order of Court by agreement between the parties.
[9]
The
Fourth Respondent (Koen) has in compliance with the Court order of 24
March 2017, filed an affidavit to show cause why he should
not be
found in contempt of Court and he has instructed counsel to present
his case in Court.
[10]
It
appears from the Applicants’ founding affidavit that Koen was
cited as ‘an adult male working for the corporation
in the
position of production manager’. The Second and Third
Respondents were cited as ‘members of the corporation’.
In his affidavit Koen explained that he deposed to the affidavit in
response to the Court order issued on 24 March 2017 and he
explained
that he was situated at the employer’s Benoni factory and
Ncanana was situated at the employer’s Boksburg
factory and he
was at no stage involved in the disciplinary hearing of Ncanana and
apart from knowing that Ncanana’s employment
was terminated, he
had no further knowledge of the matter. The Applicants did not file
an affidavit in answer to Koen’s affidavit.
[11]
In
argument before this Court Mr Lamprecht on behalf of Koen argued that
the Applicants should pay Koen’s costs for defending
this
matter as no case was made out against Koen.
[12]
On 11
August 2017 the contempt application served before me and the
following order was made:
1.
The
Court order issued on 20 April 2017 is discharged;
2.
The
settlement agreement entered into by and between the Applicant and
the First Respondent on 11 August 2017 and marked “X”
is
made an order of Court;
3.
The
First and the Second Applicants are ordered to pay the Fourth
Respondent’s costs, the one paying the other to be absolved.
[13]
The
First and the Second Applicants subsequently requested reasons for
the cost order made in favour of the Fourth Respondent. The
reasons
for the order issued on 11 August 2017 are set out
infra.
The cost order
[14]
In
Bruckner
v Department of Health and others
[2]
the
requirements for contempt were considered and it was held that:
“
It
is trite that an applicant in a contempt of court application must
prove beyond a reasonable doubt that the respondent is in
contempt.
An applicant must show:
(a)
that the order was granted against the respondent;
(b)
that
the respondent was either served with the order or informed of the
grant of the order against him and could have no reasonable
ground
for disbelieving the information; and
(c)
that
the respondent is in wilful default and mala fide disobedience of the
order.”
[15]
There
are thus three requirements to be satisfied for contempt, namely an
order, service and default.
[16]
In
Ncanana’s founding affidavit he explained that a copy of the
arbitration award was served on the Third Respondent, Mr Stephen
van
Rensburg (van Rensburg) on 19 March 2014. The letter from Mabaso
attorneys dated 17 January 2017 made it clear that the Applicant
would approach this Court ‘with contempt application against
both your company and Mr van Rensburg.’ The employer responded
to the said letter on 31 January 2017 and the letter is signed on
behalf of Dual Products International (SA) CC with a clear indication
that the Second and Third Respondents are the members of the employer
entity.
[17]
The
Applicant’s case is that Koen told Ncanana on 24 January 2017
to return on 30 January 2017 and on 30 January 2017 he told
Ncanana
to return on 1 February 2017. On 1 February 2017 Koen told Ncanana
that they would not comply with the arbitration award
and he issued
Ncanana with a letter. This is the letter of 31 January 2017 signed
on behalf of Dual Products International (SA)
CC with a clear
indication that the Second and Third Respondents are the members of
the employer entity. This letter was not signed
or issued by Koen and
at best he merely handed the letter over to Ncanana.
[18]
The
Applicants have to show beyond reasonable doubt that an order or
award was granted against Koen, that Koen was served with the
order
or the award and that Koen is in wilful default and
mala
fide
disobedience
of the order or award. In the Applicants’ founding affidavit no
allegation is made to support such a case beyond
reasonable doubt
against Koen. At best the Applicants described Koen as a production
manager and it is not the Applicants’
case that Koen was in a
position or capacity to execute the order or to ensure compliance
with the award or even that the award
was served on Koen. On Koen’s
own undisputed version he is the workshop manager and the Second and
Third Respondents are
the owners of the business.
[19]
The
Applicants could not prove contempt beyond reasonable doubt and
failed to satisfy the requirements to prove that Koen was in
contempt
of Court.
[20]
Insofar
as costs are concerned, this Court has a broad discretion in terms of
section 162 of the Act to make orders for costs according
to the
requirements of the law and fairness.
[21]
The
general accepted purpose of awarding costs is to indemnify the
successful litigant for the expense he or she has been put through
by
having been unjustly compelled to initiate or defend litigation.
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
others
[3]
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.”
[22]
Koen
had to defend a contempt application where he should not have been
cited as a respondent and where the Applicants dismally
failed to
make out a case for contempt against him
and
fairness dictates that he cannot be expected to endure costs
defending litigation that ought not to have been brought against
him
in the first place.
NUMSA
is a well-established trade union quite capable of considering the
consequences of instituting litigation against a party
where it is
unable to prove its case and it had to put in some earnest thought
and consideration into the merits of this case before
citing Koen as
a respondent. The First, Second and Third Respondents were correctly
cited and it was sufficient to cite them as
respondents and there was
no basis or compelling reason to cite Koen and to drag him to Court
in these contempt proceedings.
[23]
It is
for these reasons that I issued the order on 11 August 2017 and
awarded costs in favour of Koen.
_____________________
Connie Prinsloo
Judge of the Labour Court
[1]
Act 66 of 1995.
[2]
2003 24 ILJ 2289
(LC).
[3]
2012 33 ILJ 2117
(LC).