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[2017] ZALCJHB 401
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Ncanana and Another v Dual Products International (SA) CC t/a Dual Products and Others (J269/2017) [2017] ZALCJHB 401 (3 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J269/2017
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 PETRUS KOEN
Fourth Respondent
Decided:
In Chambers
Date:
3
November 2017
JUDGMENT
PRINSLOO,
J
[1]
On 11
August 2017 I made an order
inter
alia
,
ordering the First and Second Applicants (Applicants) to pay the
Fourth Respondent’s (Koen) costs, the one paying the other
to
be absolved. On 24 August 2017 I gave reasons for my order.
[2]
The
Applicants filed an application for leave to appeal my judgment and
Koen opposes the application. Both parties have filed written
submissions in respect of the leave to appeal, which I have
considered in deciding this application.
[3]
The main
ground for leave to appeal raised by the Applicants is that this
Court erred in fact and in law by finding that the Applicants
failed
to make out a case for contempt against Koen and ordering costs in
favour of Koen.
No
case for contempt
[4]
The
Applicants’ case is that this Court erred in finding that they
failed to make out a case for contempt against Koen. As
already
pointed out, I have given my reasons for such order and in my
judgment, I dealt with the reasons why Koen, a workshop manager,
should not have been brought before this Court, on contempt
proceedings. I do not intend repeating my judgment herein, suffice
to
mention that Koen in his affidavit explained that he was never served
with the arbitration award nor was he aware of the dispute
between
the parties until his encounters with the First Applicant (Ncanana)
when he arrived at the workshop to hand in court documents.
He
explains that he scanned the documents and sent them to the owners of
the corporation. He did not read the contents of the documents.
It is
important at this moment to mention that Ncanana worked at the
Boksburg factory whereas Koen is situate at the Benoni factory.
To
this Koen explains that he was not privy to the dispute, nor was he
involved in the disciplinary proceedings against Ncanana.
[5]
I have to
emphasize that the Applicants did not file an affidavit in reply to
deny or rebut Koen’s version.
[6]
The
Applicants rely on the dictum in
Pheko
and Others v Ekurhuleni Municipality (No.2)
[1]
where
the Court held:
‘
[47] When
a court order is disobeyed, not only the person named or party to the
suit but all
those who, with the knowledge of the order, aid and abet
the disobedience or wilfully are party to the disobedience are
liable.
The reason for extending the ambit of contempt proceedings in
this manner is to prevent any attempt to defeat and obstruct the due
process of justice and safeguard its administration.
Differently put, the purpose is to ensure that no one may, with
impunity,
wilfully get in the way of, or otherwise interfere with,
the due course of justice or bring the administration of justice into
disrepute’.
[7]
I am bound
by the
Pheko
judgment
and I agree with this dictum. It is however unfortunate that the
Applicants decided to cherry pick this paragraph and read
it in
isolation. In the process they fail to acknowledge the standard of
proof required to pin the offence of contempt on Koen.
To enlighten
the Applicants and to put the dictum
supra
in
context, paragraph 50 of the judgment should be considered where the
Constitutional Court held as follows:
[2]
‘
The
standards of proof are those set out in
Fakie
:
a balance of probabilities in respect of civil remedies and a
reasonable doubt in respect of a committal order.
While
the existence of the order and non-compliance have been established,
the requisite of service has not.
It
follows that without one of the requisites being established, no
inference of wilfulness and
mala
fides
can
be drawn
’.
(own emphasis).
[8]
On
Ncanana’s own version, he served a copy of the arbitration
award to Mr Stephen Van Rensburg (Van Rensburg), who in turn
ordered
him to leave the premises.
[3]
Also when it became clear that the arbitration award was not complied
with, his attorneys addressed a letter to the corporation
advising
that contempt proceedings would be instituted against Van Rensburg.
Koen explained the extent of his involvement in this
matter and what
can be deducted from his explanation is that his involvement was
limited to that of a messenger; receiving and
delivering the court
documents to the relevant authorities. No version has been presented
by the Applicants, to gainsay Koen’s
version. For Koen to have
told Ncanana to come back on another day, and eventually handing him
the letter of 31 January, is not
conduct falling within the category
of wilful or
mala
fide
disobedience as set out in
Pheko
.
Without repeating myself, there was nothing before this Court to
prove any wilful or
mala
fide
disobedience on the part of Koen. Furthermore, there is no suggestion
that Koen was served with the arbitration award. On the contrary,
Van
Rensburg was. To expand further, even if Koen could comply with the
arbitration award, there is no evidence that he had the
power to do
so. From Koen’s undisputed explanation, he is himself an
employee of the corporation and nowhere is there any
averment made to
support a finding that Koen could reinstate Ncanana or that he was in
any position to do so.
The
issue of costs
[9]
The
gravamen of the Applicant’s complaint is that the Court erred
in ordering both Applicants to pay the Koen’s costs
of
defending the contempt application.
[10]
The Power
of this Court to order costs is derived from Section 162 of the
Labour Relations Act
[4]
(LRA)
which provides that this Court may make an order for payment of costs
according to the requirements of the law and fairness.
The court is
required to take into account
inter
alia
,
the conduct of the parties in proceeding with or defending the matter
before the court.
[11]
In
Inviticus
Holdings (Pty) Ltd (formerly Meridian Investment Holdings (Pty) Ltd)
and Others v Advtech Limited and Others
[5]
the
court quoted authority of
Harms
op
cit C1.33 and s 21A of the Supreme Court Act as follows:
‘
I
t
is well established that leave to appeal in respect of an order for
costs only is not lightly granted unless a matter of principle
is
involved and the amount of costs is not insubstantial’
[12]
The Labour
Appeal Court held in
KM
Lawrence v Mutual & Federal (Pty) Ltd and Another
[6]
held with the authority of
Protea
Assurance Co Ltd v Matinise
[7]
;
Minister
of Prisons and another v Jongilanga
[8]
that:
“
[35] The
general approach to be adopted by a court of appeal when considering
an appeal against costs is trite. The award of
costs and the scale
thereof is a matter within the discretion of the court making the
order.
[9]
The
appeal court will not easily interfere with the exercise of that
discretion. It can only interfere where the discretion was
exercised
on a wrong principle or was capriciously made.
[13]
Leave to
appeal should not be lightly granted where the grounds for appeal
relate to the exercising of the Court’s discretion.
The
Applicants made no averments or submissions that the discretion was
exercised on a wrong principle or that it was capriciously
made.
Test
for leave to appeal
[13]
The test in granting leave to appeal is well established.
It is trite that an applicant in an application for leave
to appeal
must demonstrate to the court
a
quo
that it has reasonable prospects of success on appeal. What the test
requires is the reasonable likelihood that another court,
presented
with the same facts and evidence as this Court, could come to a
different conclusion than the one arrived at by this
Court.
The
test for leave to appeal has become more stringent and this Court
solidified this test in
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[10]
where
it held:
‘
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. As the respondents observe, the use of the
word “would” in s17(1)(a)(i) are indicative
of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that there was a reasonable
prospect
that another court
might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28 July 2015). Further, this is not a test to
be applied lightly – the Labour Appeal Court has recently had
occasion
to observe that this court ought to be cautious when leave
to appeal is granted, as should the Labour Appeal Court when
petitions
are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires that appeals be
limited
to those matters in which there is a reasonable prospect that
the factual matrix could receive a different treatment or where there
is some legitimate dispute on the law’.
[14]
Applying
the relevant principles and considering the submissions made, I am
not persuaded that the Applicants have reasonable prospects
of
success on appeal.
This
application is without merit and scarce judicial resources should not
be spent on it.
[15]
In the premises, I make the following order:
Order
1.
The
application for leave to appeal is dismissed with costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court
[1]
(
2015)
6 BCLR 711 (CC); 2015 (5) SA 600 (CC).
[2]
Pheko
supra at para 50.
[3]
Para 11 of the
Applicants supporting affidavit.
[4]
Act 66 of 1995 as
amended.
[5]
[2009] JOL 24145
(GSJ).
[6]
Lawrence v
Mutual & Federal (Pty) Ltd
,
Unreported case number JA 77/2014, handed down on 15 September 2016.
[7]
1978
(1) SA 963
(A)
at 976H.
[8]
1985
(3) SA 117
(A)
at 124B.
[10]
(2016) 37 ILJ 1485
(LC).