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[2017] ZALCJHB 472
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Swissport South Africa (Pty) Ltd v Mphahlele and Others (J1917/16) [2017] ZALCJHB 472; (2018) 39 ILJ 656 (LC) (19 December 2017)
Reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case No: J1917/16
In
the matter between:
SWISSPORT SOUTH
AFRICA (PTY)
LTD
Applicant
and
MPHAHLELE, EPRHRAIM
First
Respondent
RAPHETHA, MASHUDU
Second
Respondent
SOLOMON, ELEANOR
Third
Respondent
MOTSUGI, KARABO
Fourth
Respondent
NTE, CRAIG
Fifth
Respondent
MOKHINE, RONNIE
Sixth
Respondent
MANAMELA,
CHRISTOPHER
Seventh
Respondent
OLIFANT, FEZILE
Eighth
Respondent
THOSE INDIVIDUALS
LISTED IN
ANNEXURE “A”TO
THE NOTICE OF
MOTION
Ninth
to further Respondents
Heard
:
10 February 2017
Delivered
:
19 December 2017
Summary:
(Contempt – service on members of union of order through union
– implied duty on union to convey
it to members –
nonetheless, mala fides not established)
JUDGMENT
LAGRANGE
J
Background
[1]
The applicant (‘Swissport’) applied for an order of
contempt against the individual respondents, the first seven
of whom
are national office bearers of the National Transport Movement
(‘NTM’) a union, and the ninth respondent is
the
Provincial Chairperson of NTM Western Cape. The applicant withdrew
the application against the third respondent when it transpired
that
she was on sick leave at the relevant time.
[2]
On 30 August 2016, an order was handed down in which NTM and
individual employees were interdicted from participating in
unprotected
strike action due to commence on 31 August 2016 or
“engaging in any conduct in contemplation” of the same.
NTM was
further prohibited from calling a strike on any issues agreed
upon in respect of various settlement and wage agreements. They were
also directed to comply with sections 24(2) to (5) inclusive of the
Labour Relations Act, 66 of 1995 (‘the LRA’) and
ordered
inter alia
not to interfere with the smooth flow of
Swissport’s business , or to obstruct access to and exit from
Swissport’s
property.
[3]
The order further stated that service of the interim order was to be
effected on the individual employees by transmitting a
copy of the
order by fax to NTM. It is not disputed this was done. On 1 September
2016 in a letter to first respondent, the general
secretary (‘
Mphahlele’), the applicant raised the fact that certain members
of NTM were ignoring the interdict and
it called upon NTM to urgently
call upon employees to cease participation in the unprotected strike,
failing which they would face
contempt proceedings and, or
alternatively, disciplinary action. That letter did not specifically
refer to NTM members in Cape
Town, but clearly would apply to any NTM
members who were acting in breach of the order.
[4]
Mphahlele’s initial response was that NTM was not aware of any
strike action in Cape Town. At 23h16 pm on 1 September
he reverted
saying:
“
Ok.
We have communicated to our Provincial Office Bearers in the Western
Cape to assist in making necessary intervention and accordingly
advise the employees concerned of the legal requirements pertaining
to the protected strike action.”
Mr
P Kohl, the CEO of Swissport (‘Kohl’) immediately queried
this saying;
“
What
“protected strike action” are you talking about? That is
the very problem… people think they are participating
in a
protected strike and you are suggesting the same thing in your email
below. I think we have a problem here….”
Mphahlele’s
response was that members in Durban, East London, Port Elizabeth and
Johannesburg had been advised not to strike,
but “(w)e did not
communicate the same message to Cape Town as we did not have members
in Cape Town to our knowledge.”
[5]
In response, Kohl pointed out that this was a baseless assertion
because Mphahlele himself had been submitting membership forms
to
Swissport since November 2015. There is no dispute that Mphahlele had
submitted membership forms for Durban and Cape Town members
under
cover of a letter signed by himself.
[6]
The applicant alleges that on 1 and 2 September 2016, 28 NTM members
at Cape Town (the individuals listed in Annexure “A”)
were striking in breach of the court order and that NTM was in breach
of the order because it had failed or refused to notify NTM
members
in Cape Town of the order, whilst notifying members in other cities.
As such NTM was clearly in breach of the order and
in contempt of
court. This was set out in a letter from Swissport’s attorneys
dated 6 September 2016 warning that if NTM
did not notify its members
in Cape Town of the order and if they did not stop their unprotected
action, an urgent contempt application
would be launched.
[7]
In his answering affidavit, Mphahlele claims that he and one
Mzuvukile Tofile did intervene and persuaded striking workers to
return to work on 2 September 2016.
[8]
The vast majority of the ninth to further respondents were dismissed
for their participation in the unprotected strike. The
answering
affidavits of the other respondents, were simply plain denials that
they had disobeyed the order of the court
because
they did not
contact anyone in Cape Town or incite or urge anyone to participate
in the unprotected strike. The view expressed
in those affidavits
essentially was that, they were not in breach of the order as they
had taken no steps to contravene the literal
meaning of the order. At
the hearing of the application, Mphahlele argued a different defence
which was not actually in accordance
with the affidavits.
[9]
The applicant argued that the office bearers of NTM had a positive
duty to inform NTM members at the workplace in Cape Town
of the court
order and in breaching this duty they were in contempt of the order.
Legal
Principles
[10]
The central requirements of civil
contempt were succinctly stated by the SCA in
Fakie
NO v CCII Systems (Pty) Ltd
:
‘
(a)
The
civil contempt procedure is a valuable and important
mechanism for securing compliance with court
orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The
respondent in such proceedings is not an “accused person”,
but is entitled to analogous
protections as are appropriate to motion
proceedings.
€
In
particular, the applicant must prove the requisites of contempt (the
order; service or notice; non-compliance; and
wilfulness and
mala
fides
) beyond reasonable doubt.
(d)
But
once the applicant has proved the order, service or notice, and
non-compliance, the respondent
bears an evidential burden in relation
to wilfulness and
mala fides
: Should the respondent fail
to advance evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and
mala
fide
, contempt will have been established beyond
reasonable doubt.
(e)
a
declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance
of probabilities.’
[1]
Evaluation
[11]
There is no doubt that Mphahlele was fully aware of what the
applicant was calling on NTM to do once NTM members in Cape Town
went
on strike. It was highly disingenuous and duplicitous of him to claim
to have no knowledge of such members as an excuse for
not contacting
them. There is nothing on the papers to show when the other office
bearers became aware of the court order. In any
event, the crisp
issue is whether the applicant can impute contemptuous conduct to the
officials because they did not take active
steps to inform the Cape
Town members of the order.
[12]
Unlike many orders interdicting strikes, the order only made
provision for service on the strikers through the union. Even
then,
although for the purposes of service of the order, it might be
sufficient simply to serve on the union, when it comes to
contempt
care must be taken not to equate proof of service with the imposition
of specific duties on office bearers and that failing
compliance with
such unspecified duties they would lay themselves open to contempt of
the court order. To meet this difficulty,
strike interdict orders
often contain very express instructions about what union office
bearers or, at the very least, the union
is required to do. This
usually takes the form of an order compelling the union to convey the
order to members and sometimes identifies
specific officials who must
do this. Further, the order may actually require the union to
actively encourage members to desist
from strike action by way of
addressing members or issuing a notice on a union letterhead.
Such orders are often accompanied
by time frames for compliance.
[13]
In this instance, at best for the applicant, it was implicit in the
order that the union was expected to convey it to members.
In
the absence of identifying other officials responsible for giving
effect to that order, that responsibility would fall at the
very
least on the most senior executive officials of the union, being the
General Secretary and National Office Bearers of NTM.
That is not to
say that they personally had to undertake the task of notifying
strikers of the order, but they had to ensure that
the necessary
steps were taken by the union so that the notification took place. In
respect of those individuals, it is clear that
they breached their
implicit obligation to ensure that the order was conveyed within a
reasonable time. It was insufficient in
the context of an urgent
order for Mphahlele to only do so on 2 September 2016, two days after
the order was issued.
[14]
In so far as the regional office bearers are concerned, in the
absence of an order directing them specifically to take steps,
I am
loathe to impute such a duty to them. The ninth to further
respondents were not before court as there was no personal service
of
the contempt application on them. In any event, even if they had been
served with the application, the applicant did not try
to demonstrate
that they must have had knowledge of the order before Mphahlele
conveyed it to them on 2 September, which is when
they ended their
action. Consequently, they could not have been held to be in breach
of the order in the absence of it being shown
that they continued
with their action thereafter.
[15]
Having established that the national office bearers were in breach of
the order, the question then arises if their non-compliance
was
mala
fide
and wilful. On the admittedly sparse evidence, it seems to
have been the belief of the deponents to the answering affidavits
that
provided they did not actively promote the strike they could not
be held in contempt of the order, because it did not, on the face
of
it require them to do anything positive. The fact that they had a
duty to convey the order does not mean that they actually
appreciated
the existence of this positive obligation on them. They believed as
long as they did not engage in conduct which promoted
the strike they
could not be accused of being in breach of the order.
[16]
Mphahlele was made aware of applicant’s expectation regarding
what the union was required to do, and accepted that the
union had a
responsibility to convey the order, as reflected in his disingenuous
explanation that the union had no members in Cape
Town and therefore
there was nobody to notify there. Nonetheless, in the answering
affidavit he deposed to, purportedly on his
own behalf and of all the
other respondents, he also challenged the applicant to prove which
paragraph of the order the respondents
had contravened. Elsewhere
he also confidently asserted the defence that they had nothing to
incite the workers in Cape Town
to continue with an unprotected
strike. I am sceptical of this rationale for the inactivity of
the office bearer’s
but I cannot confidently say beyond a
reasonable doubt that they could not genuinely have believed this was
a legitimate way of
not breaching the order and that it was only
positive encouragement of the strike which would have placed them in
breach of it.
It may have been expedient, but I am not satisfied that
it can be said to have been established beyond a reasonable doubt
that
their non-compliance with the obligation to notify workers was
mala fide
in the sense that they believed the court order
itself compelled them to do so.
[17]
Another defence, which it is not necessary to consider, but I will
mention, is that, the applicant had not established that
the strike
embarked on by workers in Cape Town was the same strike, and the
union had suspended the interdicted strike itself so
the strike in
Cape Town could not be the same one and was not subject to the
interdict. This also seems to be a disingenuous argument
because he
never so much as hinted in his correspondence with the applicant that
it was not strike action contrary to the interdict.
[18]
In light of the above, I am compelled to acquit the respondents of
contempt, even though the answer would probably have been
different
if I had been deciding it as a matter of probability.
Order
[1]
The contempt application is dismissed.
[2]
The respondents are acquitted of being in contempt of the order of
this court handed down
under the same case number on 30 August 2016.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
O
Molatudi of Hogan Lovells
Inc.
RESPONDENT:
E
Mphahlele of NTM
[1]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)
at 344-5