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[2018] ZALCJHB 104
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UNTU and Another v PRASA and Others (J204/17) [2018] ZALCJHB 104 (16 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO
: J204/17
DATE
: 2018-02-16
In the
matter between
UNTU
First applicant
SATAWU
Second applicant
and
PRASA
First respondent
LINDIKAYA
ZIDE
Second respondent
PEARL
MUNTHALI
Third respondent
EX
TEMPORE
JUDGMENT
STEENKAMP,
J
:
This is
an application by the second applicant, SATAWU, to find the first
respondent, the Passenger Rail Agency of South Africa
(PRASA), as
well its officials, who are cited as the second and third
respondents, in contempt of an order of this court granted
on 8
August 2017. All that that court order does is to make a
settlement agreement between UNTU, SATAWU and PRASA an order
of
court. The application today is brought by SATAWU.
The
application merely makes the suggestion that PRASA has not complied
with the court order, and hence with the settlement agreement,
which
comprises 19 different issues, without specifying with any
particularity which of those issues the union alleges that PRASA
has
not complied with. But before I get to the merits of that argument,
Mr
Kutumela
, for the respondents, has raised two preliminary
points. The first is that the settlement agreement itself
comprises a dispute
resolution mechanism in which it says, in badly
drafted terms:
“
Any
dispute about the interpretation or application of this agreement
must be resolved [by way] in terms of the provisions of PRASA
Bargaining Forum Constitution.”
That
constitution itself provides for the way in which to resolve
disputes, and as Mr
Kutumela
quite correctly pointed out, the choice to follow a particular
dispute resolution process is a choice which, as long as it is
voluntarily made, should be respected by the courts, as confirmed by
the Constitutional Court in
Lufuno Mphaphuli
& Associates (Pty) Ltd v Andrews and Another
2009
(
4
)
SA
529
(
CC
)
at 219. For that reason alone I agree with Mr
Kutumela
that the application should be dismissed. I will, however, deal
with the other contentions as well.
The
second preliminary point raised is that the court order itself,
which, as I have said, comprises the settlement agreement, does
not
impose obligations on the parties that are enforceable. In this
regard Mr
Kutumela
referred to
Thutha v Thutha
2008
(
3
)
SA
494
(TkH), where
the relevant principles were discussed, and it was pointed out that
an order cannot be enforced where the compliance
therewith is left to
the discretion of the people who are bound thereby.
That is
exactly what we are dealing with here. The agreement leaves it
to the parties to have further meetings to address
certain specific
issues that are outlined, these being the notorious 19 issues that
both parties have referred to, and arising
from that, the parties
have indeed had further meetings. The remaining dispute is
whether PRASA has complied with each of
the 19 issues or not.
For that reason also I agree with Mr
Kutumela
that, strictly
speaking, the order does not appear to be enforceable; However, and
more importantly, even if I am wrong on both
these contentions, I
will deal with the merits.
The
principles relating to contempt orders have been very eloquently set
out by Cameron JA in
Fakie
NO v CC11 Systems (Pty) Ltd
2006
(
4
)
SA
326
(
SCA
).
He usefully sums it up in paragraph [42] as follows:
“
To
sum up:
(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.
(c)
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.”
In this
case, firstly, on the evidence before me the union has simply not
shown non-compliance. PRASA sets out in detail in
a very
comprehensive answering affidavit how it has complied with each one
of the 19 issues raised, even though the union did not
set out with
any particularity which of those issues it alleges PRASA has not
complied with. It must be said that the answering
affidavit was
filed at the eleventh hour. I only received it by email late
yesterday afternoon, and a signed copy was only
filed at court this
morning. Be that as it may, the matter is not so urgent that
the union could not have asked for time
this morning to reply thereto
if it wished to do so. It did not make use of that opportunity
and I am bound by the evidence
before me. On that evidence,
firstly, it appears, at least
prima facie
, that PRASA has
complied; but more importantly, it shows beyond a reasonable doubt
that there was no wilful and
mala fide
non-compliance by
PRASA. The respondents set out in detail a whole range of
meetings that have been held with SATAWU, and
it goes further by
pointing out a number of occasions when the union has not been
cooperative and has not made it possible for
talks to progress.
In a nutshell, though, the application simply does not meet the
threshold set out in
Fakie.
That
leaves the issue of costs. This court is enjoined to take into
account the requirements of both law and fairness in deciding
whether
or not to order costs. In normal circumstances where an
applicant has had to go to court in order to enforce either
an
agreement or a court order, even if it is unsuccessful but its
application has had some merit and perhaps has had the salutary
effect of ensuring compliance with the court order, this court would
not order costs against an unsuccessful applicant.
In this
case, though, the matter should never have come to court. The
union should have availed itself of the dispute resolution
mechanisms
it itself agreed to in the settlement agreement. Secondly, when
it did approach the court, and at least by the
time PRASA had filed
its comprehensive answering affidavit, setting out how it had
complied in each respect, it should have reconsidered
the necessity
of desisting with the application.
Mr
Kutumela,
in his argument on costs, also pointed out that the union has not
played open cards in setting out all the relevant information
in its
application, contrary to the principles set out by the Constitutional
Court in
Thint
(
Pty
)
Ltd v National Director of
Public Prosecutions
;
Zuma
v National
Director of Public
Prosecutions
[2008] ZACC 14
;
2008 (2) SACR
557
(CC);
2009 (1) SA 141
(CC);
2009 (3) BCLR 309
(CC). For
all those reasons I am persuaded that this is a matter where a costs
award is warranted. In conclusion:
-
- - - - - - - - - -
ORDER
The
application is dismissed with costs.
___________________________
STEENKAMP
J
JUDGE OF
THE LABOUR COURT
-
- - - - - - - - - -
APPEARANCES
First
applicant: Wayne Hutchinson
Instructed
by Fluxmans Inc.
Second
applicant: Frans Dubula of SATAWU (union official).
Respondents:
Lebogang Kutumela
Instructed
by Bowman Gilfillan Inc.