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[2018] ZALCJHB 43
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Seopa v Imperial Cold Logistics (Pty) Ltd and Others (J1053/13) [2018] ZALCJHB 43; (2018) 39 ILJ 1146 (LC) (9 February 2018)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case No: J 1053/13
In
the matter between:
ASHLEY
SEOPA
Applicant
and
IMPERIAL
COLD LOGISTICS (PTY)
LTD
First
Respondent
NONNY
NKOSI
Second
Respondent
JOHAN
VAN WYK ROSSOUW
Third
Respondent
JOHAN CHRISTIAN
DE BEER
Fourth
Respondent
Heard
:
19 May 2017
Delivered
:
09 February 2018
Summary:
(Contempt – substantial compliance – absence of mala
fides or wilfulness to the extent there
was not literal compliance –
non-director cannot be cited for contempt on the part of the employer
where employer is a corporate
entity – no purpose served in
pursuing application prior to the hearing – pursuit of
application vexatious in the circumstances
- wasted costs ordered
against applicant’s attorneys.)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is a contempt application which was launched in October 2016.
The applicant, Mr A Seopa (‘Seopa’), claims that
the
respondents namely his employer (‘Imperial’), its Human
Resource Manager, Ms N Nkosi (‘Nkosi’) and
two of its
directors Messrs J Van Wyk Rossouw (‘Rossouw’) and Mr J
de Beer (‘De Beer’) are in contempt
of a court order
dated 30 June 2016. The court order
inter alia
dismissed a
review application which Imperial had brought in respect of an
arbitration award and made the award an order of court.
The award had
been issued on 11 November 2012 and had reinstated Seopa with
retrospective effect to his dismissal on 25 July 2012.
Narrative
of material facts
[2]
At the time of his original employment on 3 March 2008 and at the
time of his dismissal, Seopa was an assistant driver or so-called
‘Van assistant’.
[3]
After he presented the court order to Nkosi in mid July 2016, she
discussed it with the human resource executive of Imperial,
Mr J
Kerslake. At the time it was presented, there were no vacant driver
assistant positions and they took steps to reinstate him
in another
position on the same grade and rate of pay and similar job functions.
Further payments to be made in terms of the award
were effected on 25
August 2016. They further discussed with Seopa an alternative
placement in the position of a warehouseman where
there was a vacancy
and where he would perform similar duties to a van assistant but in a
warehouse location.
[4]
Seopa agreed to this arrangement and a contract was drawn up to
record his appointment. In terms of the contract, his original
date
of engagement was recorded as the date on which he was employed, so
it reflected his continuity of service. According to the
respondents,
when Seopa was issued with the contract he asked for time to consider
it and to consult with his attorney for the
purposes of discussion
and advice. After taking two days leave for this purpose he returned
with the signed contract. Seopa agrees
he took it to his attorneys
and discussed it with them, but denies taking leave for this purpose.
However, he does not address
the leave records attached to the
answering affidavit in support of the contention he took leave for
this purpose.
[5]
In his founding affidavit, he merely asserted that the contract
amount to re-employment which is not the same as reinstatement
and
therefore it was not compliant with the court order. It was only in
his replying affidavit that he contended that he had advised
Nkosi
that the contract did not comply with the court order, but she told
him that if he didn’t sign it he would not receive
his salary.
He does agree that he went to his lawyers and in discussion with them
decided that he had no option but to sign the
contract because he
needed money. He simultaneously instructed them to launch the
contempt application. Notably, his attorneys
did not think it
advisable to phone Imperial about the alleged difficulty with the
contract or to put Imperial on terms that the
contract of
re-employment did not effectively comply with the the order and to
give effect to the order.
[6]
At this juncture, it should be mentioned that even when this
application was heard, the primary objection to the contract seem
to
be a suspicion that somehow it might be relied on by Imperial to
undermine the order of reinstatement. Apart from the appointment
in a
warehouse post and the term ‘re-employment’ being
used, in substance there was no material disadvantage
flowing from
the contract, particularly as it effectively recognised that Seopa’s
continuity of service would be recognised,
that the job functions
were similar and the remuneration the same as a van assistant’s.
[7]
Kerslake and Nkosi believed that in view of Seopa’s consent to
the arrangement, they had effectively complied with the
court order.
They also advised Seopa that if a vacancy became available as a van
assistant they would try and accommodate him.
Seopa does not deny
this was conveyed to him.
[8]
After a week, Seopa complained about working in the warehouse, which
was chilled because perishable goods were kept there. He
does not
dispute that he knew what working in the warehouse would entail but
believed that this was a punishment. He was asked
to undergo medical
tests to determine whether he was capable of working in that
environment and in the meantime was placed in a
risk assessment
department, which had an ambient environment and involved similar
work, pending the outcome of the health assessment.
[9]
The contempt application was initially launched
ex parte
against Imperial and Nkosi on 4 October 2016. It is noteworthy that
this was nearly 3 months after Seopa had supposedly instructed
his
attorneys to proceed with the contempt application and was also
launched without any attempt to resolve the apparent complaint
about
his re-engagement beforehand. The fact that this was the first
recourse of Seopa and his attorneys after nearly 3 months
of
inactivity and his apparent considered acceptance of the terms of
reinstatement is indicative that the applicant and his attorneys
appeared to have the single-minded objective of pursuing a contempt
application for its own sake.
[10]
As it happened, the
ex parte
application came before myself on
28 October 2016. The matter was removed from the roll and Seopa was
invited to make amendments
to include directors of Imperial as
respondents because of Nkosi’s non-director status which meant
she could not be cited
as the human embodiment of Imperial for
contempt purposes. Perhaps as a result of this direction, instead of
applying to join or
substitute the directors, Seopa made an
application to amend the notice of motion to include them. Imperial
made much of the fact
that this might have been an irregular step but
nothing much turns on that in these proceedings.
[11]
The amended notice of motion was filed on 14 November 2014 and the
order was granted on the same day. Like the initial
ex parte
application it required personal service on Rossouw and De Beer. For
reasons which are not entirely clear the order was reissued
on the
so-called return date of 24 February 2017 by the Honourable
Thlotlhalemaje J, and required the respondents to appear on
21 April
2017. It is not disputed that neither Rossouw nor De Beer were
actually given a copy of the court order they were accused
of being
in contempt of. Moreover, the service of the order only occurred a
week before the return date. Both Rossouw and De Beer
deny personal
knowledge of the order prior to that as the human resource department
was dealing with the consequences of the reinstatement
order and the
matter never came before the directors for discussion. At best for
Seopa, it can only be said that Rossouw and De
Beer had direct
knowledge of the order itself shortly before the matter was set down
on 21 April 2017. The arbitration award which
was necessary to
clarify the impact of the order was also not attached to the amended
notice.
[12]
By mid-April 2017 a permanent position of a van assistant opened up
because of the dismissal for misconduct of various van
assistants by
Imperial. Seopa was offered one of these posts, which he accepted. In
his reply, Seopa claims that there had been
casual van assistant
posts available for a while but does not say that he would have been
prepared to take one of those posts if
they had been offered to him,
nor did he dispute that the permanent posts only became available in
mid-April. In his reply, he
maintains that Imperial only complied
with the court order in April 2017.
[13]
The day before the matter was set down, the respondents filed their
answering affidavit as they were entitled to. The following
day, 21
April 2017 the matter came before Thlotlhalemaje J again and an order
was issued by agreement. The gist of the agreed order
was that the
matter was postponed to 19 May 2 017 and the applicant would file a
replying affidavit on 12 May 2017.
[14]
In the most
recent authoritative judicial exposition on the law of contempt, the
Constitutional Court in
Matjhabeng
Local Municipality v Eskom Holdings Ltd And Others
[1]
reiterated the basic test for contempt set out in
Fakie
NO v CCII Systems (Pty) Ltd
[2]
,
viz:
'It should be noted that
developing the common law thus does not require the prosecution to
lead evidence as to the accused's state
of mind or motive: Once the
three requisites . . . have been proved, in the absence of evidence
raising a reasonable doubt as to
whether the accused acted wilfully
and mala fide, all the requisites of the offence will have been
established. What is changed
is that the accused no longer bears a
legal burden to disprove wilfulness and mala fides on a balance of
probabilities, but to
avoid conviction need only lead evidence that
establishes a reasonable doubt.”
[3]
[15]
The Constitutional Court also noted the constitutional objective
underlying contempt proceedings as being the preservation
of the
court’s authority by ensuring that its orders are complied
with:
‘
[48] To ensure
that courts' authority is effective, s 165(5) [of the Constitution]
makes orders of court binding on 'all persons
to whom and organs of
state to which it applies'. The purpose of a finding of contempt is
to protect the fount of justice by preventing
unlawful disdain for
judicial authority. Discernibly, continual non-compliance with
court orders imperils judicial authority.’
[4]
[16]
This application is not the run-of-mill contempt application heard by
the Labour Court. Typically, there is either a flat refusal
of the
employer to reinstate the employee when he or she presents themself
at the employer’s premises with the court order,
or there are
more nuanced responses where the employer tells the employee to come
back on another day or to report at other premises
as part of a
strategy to complicate the re-engagement process in the hope that
either the employee will lose hope and give up trying
to obtain
reinstatement, or that sufficient confusion will be created for the
employer to later dispute that there was a tender
of services by the
returning employee.
[17]
In this case, the employer immediately took steps to reincorporate
Seopa in the workplace as best it could at the time, even
though it
did not retrench another van assistant to accommodate him.
Importantly, the contract it presented him with required his
consent
to take the alternative position on the same salary scale and
performing similar duties to his previous position without
loss of
any service continuity. Even though he gave no indication at the time
that he did not accept appointment as a warehouseman,
as soon as he
complained about the working environment he was removed from it, and
given another job with similar tasks whilst
his suitability for the
warehouse position was assessed. On the evidence he was placed in his
original position as a van assistant
when the first permanent
position became available. The employer had sought his cooperation
with the arrangement and he appeared
to have agreed to it after
taking time to consider the proposal, and having consulted his
lawyers.
[18]
His version that he felt coerced to accept the appointment, apart
from the fact that he never mentioned it until replying to
the
answering affidavit, is far-fetched. If that had indeed been the
case, it is inexplicable that his lawyers would not have reacted
immediately after he meant to consult with them by putting the
employer on terms, or at least engaging with it about the perceived
difficulties he had with the manner in which he was being re-engaged.
They did not even attempt to advise the employer that he
reserved his
rights to insist on compliance with the court order to the letter,
notwithstanding his acceptance of the contract.
After returning with
the signed contract nearly 3 months elapsed before the application
was launched, without any attempt to explore
reasonable and less
costly ways of ensuring compliance with the order.
[19]
Even then, as previously observed, the proper persons to answer to a
charge of contempt at best only received direct knowledge
of the
order and possibly the underlying award at a stage when Imperial was
actually complying with the letter of the original
award. The only
objective Seopa and his attorneys could have had in pursuing the
contempt application after receiving the answering
affidavit and
knowing that he was employed as a van assistant, which he does not
deny was a position he was promised when it became
available, was to
try and punish the employer or for not placing him in that position
prior to April 2017, and not for the purpose
of ensuring effective
compliance with the court order.
[20]
Even assuming that the court would consider it necessary under these
circumstances to mete out some kind of sanction to Imperial
for not
complying with the letter of the order, the requirements of contempt
for the period since Seopa returned to work and his
appointment in a
van assistant post have to be met. At the contempt hearing, the
applicant’s counsel
, Mr Khathotshelo
, vigorously
defended his client’s pursuit of the application on the basis
that even if it was not tenable to persist with
it against De Beer
and Rossouw, Nkosi could not escape the charge of contempt and the
contract which Seopa was required to sign
was inconsistent with the
court order that merely required Seopa to be reinstated.
[21]
As regards N1, it is abundantly clear that she tried to give effect
to the order, while accommodating Imperial’s lack
of existing
van assistant vacancies at the time Seopa returned to work. Seopa’s
version that he was coerced to sign the contract
was only raised in
reply and in any event, as pointed out above, it is extremely hard to
believe given the inconsistency between
that allegation and his
failure to do anything about it for nearly 3 months despite taking
legal advice. Moreover, there is the
fact that his attorneys failed
to even record the slightest murmur of disagreement about the
contract. On the record of the affidavits,
the only plausible
conclusion to draw is that Nkosi assumed that there was no live issue
about Imperial’s non-compliance
with the court order. The
founding affidavit in support of the contempt application itself is
so lacking in any detail about why
the arrangement Seopa had
ostensibly agreed to was unsatisfactory, it is understandable that
Nkosi would have believed that the
arrangement he consented to was
sufficient answer to a charge of contempt and lack of wilful
disregard of the order or
mala fides
on her part. It must be
remembered that initially Seopa did not even allege that he was
coerced to sign the agreement. Moreover,
the willingness of the
respondent to accommodate Seopa further when he complained about the
work environment and placing him in
his original post at the earliest
opportunity, as well as taking into account that his conditions of
service and continuity of
service were maintained are not indicative
of a party acting in wilful disobedience of the court order, but
rather are of a party
that believed it had the agreement of Seopa
to give practical effect to the order by adopting the measures it
did.
[22]
There is another fundamental issue which the pursuit of the contempt
application against Nkosi raises. She was not a director
of the
company and court order was made against the company. It is the
directors of a company as the natural persons representing
the
company, who are directly accountable for non-compliance with a court
order against the company and may be held in contempt
for the
company’s non-compliance with the order if the prerequisites
for a finding of contempt are established. In the absence
of a court
order issued against them as individuals, the liability of other
employees in the context of contempt proceedings of
this kind are
very unlikely to have any traction, except perhaps conceivably to the
extent that they are shown to be accessories
to the contempt
committed by the principal officers of the corporate entity. In this
case, no attempt was made to characterise
Nkosi’s actions as
knowingly aiding and abetting any of the directors in avoiding
compliance with the order. The pursuit
of a charge of contempt
against Nkosi was a non-starter in the circumstances and it is
inexplicable why it was pursued right to
the end.
[23]
The only other reason advanced in argument for pursuing the contempt
application, aside from apparently wishing to punish Nkosi,
was that
the reinstatement of Seopa did not require the conclusion of the
contract which he signed. In this regard, the applicant
could only
articulate a suspicion that somehow the existence of the contract
might be used against him to avoid compliance with
the order
in
the future
, bearing in mind that at time the matter was heard he
was already working in his former position as a van assistant.
[24]
It was not necessary for Seopa to pursue the contempt application to
obtain clarity about the future. Nevertheless, to assist
him in that
regard, the court asked Imperial to give an undertaking going
forward. It must be stressed that this undertaking had
nothing to do
with whether the contempt application was a live issue at the time of
the hearing and arose purely in the context
of minimising the
prospect of the status quo being altered. In that regard Imperial’s
counsel,
Mr Leysath
, was willing to place on record that the
respondent would alter the job description in the re-employment
contract to that of a
van assistant instead of a warehouseman and
that he would not be removed from his position as a van assistant,
subject to the provisions
of the
Labour Relations Act, 66 of 1995
and
operational requirements. However, these undertakings given are only
indirect and quite incidental consequences of the contempt
application hearing and did not validate the applicant and his
attorneys pursuing the contempt application all the way. All the
court could determine was whether the respondents should have been
held in contempt of the court order during the period since
it was
issued and ending on the date of the hearing and there was no basis
for such a finding for the reasons discussed above.
Costs
[25]
On the facts of this case, there was absolutely no purpose to be
served in proceeding with the application on 19 May 2017.
Seopa could
not make out his case in reply, and in any event, as mentioned above
it is a wholly implausible account of his supposed
insistence that
the contract did not comply with the court order and that he was
coerced to sign it. It should have been apparent
to his attorneys
that there was no meaningful case to pursue after receipt of the
respondent’s answering affidavit and that
he could not rescue
his case by setting it out for the first time in reply. At the very
least, the wasted costs of the hearing
on 19 May should have been
avoided and pursuing the application at that stage was little more
than vexatious.
[26]
I am satisfied in the circumstances that Seopa’s attorneys were
seriously remiss in assisting with the application when
no purpose
would be served by doing so and that a salutary cost award is in
order.
Order
[27]
The respondents are not guilty of contempt of the court order handed
down on 30 June 2016 under case number J 1053/13 and the
contempt
application is dismissed.
[28]
The applicant’s attorneys must pay the wasted costs of the
respondents for 19 May 2017 and the costs of preparing for
argument.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
Khathotshelo instructed by Popela Maake
Attorneys
RESPONDENT:
L
C Leysath instructed by Gishen-Gillchrist
Attorneys
[1]
2018 (1) SA 1 (CC)
[2]
2006 (4) SA 326 (SCA)
[3]
Matjhabeng
at 24,
para [62]
[4]
at 19, para [48].