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[2018] ZALCJHB 1
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Tasima (Pty) Ltd v Road Traffic Management Corporation and Others (J890/17) [2018] ZALCJHB 1 (17 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J890/17
In
the matter between:
TASIMA
(PTY) LTD
Applicant
and
ROAD
TRAFFIC MANAGEMENT CORPORATION
First Respondent
DEPARTMENT
OF TRANSPORT
DIRECTOR
GENERAL:
DEPARTMENT
OF TRANSPORT
MINISTER
OF TRANSPORT
EMPLOYEES
LISTED IN ANNEXURE “A” TO
THE
NOTICE OF MOTION
MAKHOSINI MSIBI
Second Respondent
Third
Respondent
Fourth
Respondent
Fifth
to Eighty Fourth Respondents
Eighty Fifth
Respondent
Heard:
11 January 2018
Delivered:
17 January 2018
Summary:
Urgent contempt of court proceedings – writ of execution is the
correct procedure to enforce a court order sounding
in money.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
The applicant (Tasima) is unfortunately
approaching the Court on urgent basis by way of contempt of court
proceedings for the third
time seeking to enforce the order by
Steenkamp J against the first respondent, the Road Traffic Management
Corporation (RTMC) and
its Chief Executive Officer, the eighty fifth
respondent (Mr Msibi).
[2]
On 25 May 2017, Steenkamp J made the following
Order in favour of the Tasima:
‘
63.1
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 (Act 66 of 1995)
63.2. 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:
63.2.1
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
63.2.2
on an annual basis, any additional amounts making up the
column
headed “Annual Total CTC” as set forth in that schedule.
63.3 The
confidentiality regime set out in paragraph 107 of the founding
affidavit applies.
63.4 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.’
[3]
On 2 June 2017 the applicant approached the Court
on an urgent basis, seeking declaration of contempt of court against
RTMC and
Mr Msibi after their failure to comply with the Order by
Steenkamp J (Steenkamp J Order). At that time, RTMC had sought leave
to
appeal and submitted that its application for leave to appeal
suspended the Steenkamp J Order in its entirety. Saloojee AJ found
that the payment obligations in terms of the Steenkamp Order are
operative despite the application for leave to appeal or appeals
against paragraphs 63.1 and 63.2 and as such RTMC was in breach of
the Steenkamp J Order. RTMC was ordered to pay all employees
the
amounts in respect of May 2017 as per the Steenkamp J Order. However,
Saloojee AJ was of the view that a contempt of court
order was
inappropriate.
[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 Labour Appeal Court (LAC) to grant leave to appeal
paragraph 63.2 of the Steenkamp J Order.
[5]
Tasima launched yet another urgent application
and RTMC also launched a counter-application. On 3 July 2017,
Rabkin-Naicker J, seized
with the matter, held that:
‘
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.’
[1]
[6]
Rabkin-Naicker J also issued a stern warning to
RTMC that it must be rest assured that this Court ‘will be less
than appreciative
to deal with this matter again’ and hoped
that RTMC ‘will not cause any further breaches of the Steenkamp
Order given
that the substantive matters will be dealt with in the
LAC.’
[7]
Notwithstanding, Tasima approached the Court on
urgent basis once more, in these proceedings, seeking an order in the
following
terms:
‘
1…
2.
Directing the first respondent, within 5 hours of the time this order
is handed down, to
make payment of the amounts set out in columns
titled “
annual 13
th
cheque”
and “
annual bonus”
in the schedule annexed to
the founding affidavit of Fannie Lynen Mahlangu dated 29 December
2017, …
3.
Declaring that the first and eight fifth respondents be in breach and
wilful contempt of
the order of the honourable Mr Justice Steenkamp
handed down on 25 May 2017… (“
the Order”
);
4.
Ordering that:
4.1
that immediately upon handing down of this order,
alternatively
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:
4.1.1
for a period of 30 days;
4.1.2
alternatively
, until paragraphs 2 above has been complied with
in full;
4.1.3
further
alternatively,
for such period as the Court deems
appropriate;
4.2
should, at any time, there be a breach 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;
4.3
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, to ensure that the committal orders in
paragraphs 4.1 and
4.2 are implemented.
5. Directing that
the eighty fifth respondent in his personal capacity,
alternatively
,
first respondent and eighty fifth respondents in his personal
alternatively official, capacity, jointly and severally, together
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.’
Brief
historical background
[8]
In a nutshell, from 2002 to 2007 Tasima developed
the electronic national traffic information system (eNaTIS) for the
Department
of Transport (the DoT) in terms of an agreement with the
government (the agreement). The Constitutional Court ordered Tasima
to
hand over the services and eNaTIS to the Road RTMC consequent to a
lengthy bellicose litigation pertaining to the lawfulness of
the
extensions of the agreement and contempt orders by various Courts.
[9]
The crisp issue before Steenkamp J was whether
the transfer and handover of eNaTIS to RTMC constitute a transfer of
a business as
a going concern in terms of section 197 of the LRA and
that all Tasima’s employees would automatically be transferred
to
the RTMC. Steenkamp J concluded as follows:
‘
I am satisfied that the
handover of the services and the electronic National Traffic
Information System to the Road Traffic Management
Corporation in
terms of the order of the Constitutional Court of 9 November 2016 is
a transfer of a business as contemplated by
s 197 of the LRA. The
consequence is that the new employer (the RTMC) is automatically
substituted in the place of the old employer
(Tasima) in respect of
all contracts of employment in existence immediately before the
transfer, i.e. on 5 April 2017.’
[2]
[10]
In terms of paragraph 63.2, the Steenkamp Order
provides that RTMC shall pay,
inter alia,
the annual amounts set out in paragraph 63.2.2 which cross references
columns titled “
annual 13
th
cheque”
and “
annual
bonus”
in the schedule annexed to the
founding affidavit of Fannie Lynen Mahlangu dated 29 December 2017 as
“AS6”. Tasima
argued that annual amounts are payable to
the employees in respect, and by the end, of each calendar year. The
amounts include
the annual 13
th
Cheque, payable in the month of December, and annual bonus due in
2016.
[11]
When the individual employees who are listed in
annexure A to the Notice of Motion and cited as the fifth to the
eighty fourth respondents
(the affected employees) were still in its
employ, the payments were normally made by 15 December of each year
to ensure that funds
are available ahead of the new year and festive
break from 16 December. On 16 November 2017, 15 and 22 December 2017
Tasima addressed
letters to RTMC reminding them of its obligation to
pay the 13
th
cheque and annual bonuses in December 2017. When RTMC failed to meet
the deadline of 22 December 2017, it was given a final deadline
of 27
December 2017. RTMC did not favour Tasima with a response in all
instances.
[12]
Tasima then launched this application on 29
December 2017. On 3 January 2018, it was heard for the first time by
Rabkin-Naicker
J and was postponed at the instance of RTMC. On
urgency, Tasima argued that breach of an order of Court, particularly
where specific
time periods have been directed for performance and
ignored, is manifestly urgent and contempt, by its very nature is
urgent.
[13]
On the other hand, RTMC is challenging the grant
of the order sought by Tasima by raising two point
in
limine
in that the matter was not urgent and
that contempt proceedings are irregular since Tasima seeks to enforce
an order sounding in
money.
13.1.
On urgency, RTMC argued that there is no
justification for Tasima to approach the Court on such extremely
urgent basis for an order
for payment of remuneration and to find the
respondent in contempt of Court.
13.2.
That the order Tasima seeks to enforce is for
payment of money and as such Tasima ought to have enforced the
Steenkamp J Order by
writ of execution and not contempt proceedings.
[14]
RTMC argued further that it is not in contempt of
the Steenkamp J Order since that neither the 13
th
cheque or bonus was due and payable. Acting on legal advice which it
accepted, RTMC did not pay the 13
th
cheque and bonus because the annual year would end only on 5 April
2018, a year after the transfer of eNaTIS.
Analysis
[15]
Tasima clearly approached the Court by way of contempt
proceedings seeking, primarily, a
mandamus
order as a judgment creditor in terms of the Steenkamp J Order. Also,
the Court is asked to find RTMC and Mr Msibi in contempt
of Court and
immediate committal of Mr Msibi, alternatively, in the event of
persistent contempt.
[16]
RTMC does not dispute that the Steenkamp J Order enjoins
it to make payment of annual 13
th
cheque and annual bonus to the affected employees in whose interest
this application is launched. It is also not in dispute that
the
Steenkamp J Order is an order sounding in money, as argued by RTMC.
In fact, the schedule referred to in the Steenkamp J Order
consists
of apparent amounts in respect of the 13
th
cheque and annual bonus for each affected employee.
[17]
I also note that RTMC did not challenge the computation,
eligibility and due date for the payment of the 13
th
cheques and annual bonuses when notified by Tasima that the payments
were due and payable in December 2017 in a correspondence
preceding
the launching of these proceedings. However, belatedly and with a
view to resist a contempt order, RTMC asserts in its
answering
affidavit that the amounts are not due and that the annual bonus is
discretionary. Nothing turns on these submissions
at this stage of
the inquiry as I understood them to be made as an alternative in the
event RTMC’s points in
limine
are dismissed.
[18]
Tasima’s argument that the point in
limine
that a court order sounding in money cannot
be enforced by way of contempt proceedings is
res
judicata.
In my view, this argument is
untenable. Mr Franklin, counsel for Tasima, conceded that
Rabkin-Naicker J never pronounced on this
point. Even if both
Saloojee AJ and Rabkin-Naicker J accepted the enforcement of the
Steenkamp J Order by way of contempt proceedings,
they did so in
exercise of a judicial discretion and as such that cannot fetter this
Court’s discretion. By the same token,
Tasima’s
submission that over ten courts have heard its contempt applications
against RTMC and/or DoT where a relief similar
to the one sought in
these proceedings was ordered is misconceived.
[19]
It is clear that the genesis of all the contempt
proceedings in the High Court was the order by Mabuse J issued under
case number
44095/2012 and handed down on 17 October 2012 which
granted the application for an interim order to maintain the
status
quo
and also directed
the DoT to comply with its obligations in terms of the agreement
(including the extended agreement) pending the
finalisation of the
dispute resolution proceedings. Over and above payment of money, DoT
was directed to perform specific obligations.
The converse is true in
this case as the only obligation in terms of paragraph 63.2,
pertinently 63.2.2, is payment of amounts
identified as monthly and
annual earnings.
[20]
Even though
Tasima concedes that it could have enforced paragraph 63.2.2 of the
Steenkamp J Order by way of issuing a writ of execution,
it oddly
argued that it takes a substantial amount of time to execute a writ
given the provisions of the State Liability Act (SLA).
[3]
Clearly, Tasima is oblivious of the Constitutional Court
judgment in
Nyathi
v Member of the Executive Council for the Department of Health
Gauteng and Another,
[4]
which led to the amendment of the SLA. In essence, the Constitutional
Court, in declaring section 3 of the SLA unconstitutional,
sought to
avoid situations such as the one in this case and pertinently stated
that:
‘
In regard to the possibility of
contempt proceedings being instituted against state functionaries,
one must bear in mind that these
proceedings would have to be
instituted by the judgment creditor once the relevant state
functionary fails to pay the monies owed.
The judgment creditor would
have to obtain a
mandamus
order and if the state functionary
does not comply with the
mandamus
then he or she would be held
in contempt of court. This process is a tedious one which
places an onerous burden on the judgment
creditor and does not
translate into money in the pocket for the judgment creditor. Once
a litigant is in possession of a
judgment debt, he or she should not
be expected to pursue the payment thereof
ad infinitum
.
One cannot expect the creditor who has already gone to a great deal
of trouble, and spent both time and money in litigation,
to launch
contempt of court proceedings against the defaulting state official
in the knowledge that such proceedings are unlikely
to ensure that
the debt is ultimately paid. This is too onerous a burden to
place upon a successful litigant. The state
needs to take
responsibility for its employees and ensure that defaulting state
officials are subject to the disciplinary action
as envisaged in the
legislation and regulations’. (Footnotes omitted)
[21]
In
Wenum
v Maquasi Hills Local Municiplity and Another
,
[5]
referred to ardently by RTMC, similarly, the applicant sought
to enforce a court order that ordered the respondent to pay
his
remuneration until the reserved judgment is delivered.
When the respondent failed to pay his January salary, he
approached
the Court on urgent basis seeking an order holding the respondent to
be in contempt of court. Prinsloo J, dismissing
the contempt
application states the following:
‘
The purpose of contempt
proceedings is to enforce a court order and compel compliance where
the performance of an act is ordered.
Where the court ordered the
payment of an amount pf money, the court order can be given effect by
following the process associated
with abstaining a writ of execution.
The registrar of the Labour Court can
issue a wit of execution where the request to issue a writ is
accompanied by a court order
that orders payment of money and
specifies the amount or an affidavit setting the amount claimed has
been quantified.’
[6]
[22]
I endorse the above findings.
[23]
In this case, Tasima seems to be discounting the
issuing of the writ of execution as the process provided for in the
SLA is prolonged
and would cause substantial financial hardship to
the individual employees. It is not surprising, however, that these
averments
are bald and unsubstantiated. It is not the affected
individual employees who are telling the Court exactly the nature of
the financial
hardship they would suffer if a writ of execution is
issued. The information given by Tasima is generic and it describes
virtually
what all litigants, pertinently State employees, enforcing
court orders sounding in money go through.
[24]
In any event, it is immaterial whether the writ
of execution is issued in terms of the SLA. Tritely, the issuing of
the writ of
execution is applicable in this instance and it is the
appropriate and adequate remedy to enforce a judgment sounding in
money.
In fact, this case is a typical of ineffectiveness of contempt
of court proceedings as a means of ensuring that the judgement debt
is ultimately paid, despite it being an onerous burden. The Court has
been approached by way of urgency on three different occasions
in
order to enforce the Steenkamp J Order.
Conclusion
[25]
Tasima, as judgment creditor, ought to have
availed itself to the appropriate, adequate and cost effective
machinery of issuing
writ of execution, especially given the history
of this matter. For that reason, this application must fail.
Urgency
[26]
Albeit that contempt of court proceedings could
be instituted on urgent basis, facts upon which urgency is pegged
must be placed
before the Court with specificity. All the same,
urgency should not detain the Court in the light of the finding above
and the
fact that Tasima had previously instituted contempt of court
proceedings against RTMC and/or DoT in various Courts on urgent basis
with great success. I accept that it is not farfetched of Tasima to
expect to still be heard on urgent basis even in this instance.
Costs
[27]
Even though Tasima is unsuccessful, l am of the
view that it is equitable that each party pay its own costs. Tasima
was not
mala fide
in
instituting these proceedings and, perceivably, despite arguing that
Tasima ought to have issued a writ of execution, RTMC has
failed to
make any undertaking, even on contingent basis, to satisfy the
judgment debt.
[28]
In the circumstances, I make the following order:
Order
1.
The urgent application is dismissed with no order
as to costs.
____________________
P
Nkutha-Nkontwana
Judge
of the Labour
Court
of South Africa
Appearances:
For
the applicant:
Advocate Franklin
SC with
Advocate AT Rowan
Instructed
by:
Webber Wentzel Attorneys
For
the first and eighty fifth respondents:
Advocate Redding
SC
Instructed
by:
Dexter Selepe Attorneys
[1]
Judgment
handed down on 13 July 2017 at para 10.
[2]
Judgment
handed down on 25 May 2017 at para 58.
[3]
Act 20 of 1957.
[4]
[2008] ZACC 8
;
2008 (5) SA 94
(CC);
2008 (9) BCLR 865
(CC) at para
75.
[5]
(2016) 37 ILJ 1488 (LC).
[6]
Ibid at paras 17 and 22 respectively.