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[2018] ZALCJHB 143
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SACCAWU obo Masinga and Another v Nandos Riverside Mall and Others (J2035/15) [2018] ZALCJHB 143 (27 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE
NO: J 2035/15
In
the matter between:
SACCAWU
obo JOHNSON MASINGA &
ANOTHER
Applicant
and
NANDOS
RIVERSIDE
MALL
1
st
Respondent
CHICKENLAND
(PTY) LTD
2
nd
Respondent
BROZIN,
RC
3
rd
Respondent
RADOMSKY,
M
4
th
Respondent
Application
heard: 16 March 2018
Ruling
issued: 20 March 2018
Reasons
furnished: 27 March 2018
JUDGMENT
VAN
NIEKERK J
[1]
On 20 March 2018, I issued an order to the effect that the
respondents were not guilty of contempt of this court, with no order
as to costs. These are my brief reasons for that order.
[2]
The material facts can be summarised as follows. On 19 December 2013,
the CCMA issued an arbitration award that directed the
first
respondent to reinstate the applicants Masinga and Ncube (‘the
employees’) respectively, with retrospective effect
from the
date of dismissal, being 4 November 2015. On or about 1 April 2014,
the award was certified in terms of s143 (3) of the
LRA. The award
was made an order of this court on 9 September 2016.
[3]
In January 2015, the first respondent paid over certain amounts
totalling R 4654.34 to Masinga and R 4607.36 to Ncube. A further
amount of R 11 034.09 was paid directly into the trust account of the
sheriff of Nelspruit on 20 March 2015. The deponent to the
founding
affidavit records that according to his calculations, the employees
have been paid in excess of the amount to which they
are entitled in
terms of the award. This is not disputed by the applicants.
[4]
These proceedings concern only that part of the award that directed
the first respondent to reinstate the employees. The respondents
aver
that neither of the employees reported for work at any stage
following the issuing of the award. This is disputed by the
applicants, who state that the employees tendered their services
after the award was issued and that their employees refused to
accept
the tender, and has continued to do so.
[5]
On 20 March 2015, more than a year after the award was issued, the
union’s regional secretary wrote to the manager of
the first
respondent advising him that the employees would report for duty on
23 March 2015 at 10h00. It is significant that the
applicants do not
aver in these proceedings that the employees indeed reported for work
in terms of the letter. On the contrary,
the deponent of the founding
affidavit states that on 9 June 2015, more than two months after the
employees stated that they would
report for work, a further letter
was addressed to the first respondent, this time by a union official,
urging the first respondent
to comply with the award. The letter
makes the averment that the first respondent is indebted to the
employees for outstanding
salary from the date or which they were
required to report for work in terms of the award.
[6]
The first respondent replied to the letter on 11 June 2015 stating
that it had complied with the award by making payment of
the back
pay, and that the employees ‘had sufficient time to recommence
their employment’, which they had not done.
The letter
continues ‘
they [the employees]
undoubtedly expressed their wish to rather be compensated with their
provident fund as they did not want to
recommence the employment.
’
There not appear to have been any response to this letter, nor is
there any indication from the applicants that the employees’
acceptance of monies due in terms of the provident fund rules (and
thus what must at least be an implied intention of not returning
to
work) was ever denied. In November 2015, the applicants filed
an application to have the arbitration award made an order
of court.
That application was granted almost a year later, as I have
indicated, on 9 September 2016
[7]
Some 10 months later, on 21 July 2017, the union wrote to the first
respondent advising it of the court order and stating that
the
employees ‘
will resume their duties on 1 August 2017, as
contemplated in the award and the court order and furthermore full
payment in respect
of the aforesaid minus any monies paid to them is
expected to be effected on or before 4 August 2017.
’
[8]
on 27 July 2017, the second respondent replied to the letter,
advising amongst other things that it had purchased the business
of
the first respondent and that it intended to comply with the court
order.
[9]
It is not disputed that the employees attended at the Riverside Mall
premises in August 2017 when they were advised to obtain
proof that
they were previously employed by the first respondent since the
second respondent had no documentation in respect of
them. They were
further advised that they should report at Nando’s Brown Street
for the purpose of reinstatement once certain
information relating to
their employment was made available. The employees say that they
presented themselves at Nando’s
Brown Street so as to meet one
of senior managers, but that of the meeting of the took place. This
is denied by the respondents,
who aver that only a union organiser
arrived at the meeting.
[10] On 6 September 2017, the second
respondent’s attorneys write to the union recording its version
of events and in particular,
stating that the employees had made no
attempt to resume their employment or seek reinstatement at any time
after 19 December 2013
up until the union’s letter dated 20
March 2015, some 15 months after the date of the award. The second
respondent averred
that it was self-evident that the employees did
not seek nor did they wish to be reinstated and that the first
respondent had offered
them reinstatement, which they declined.
Further, it is recorded that the employees advised that they wished
to be paid their provident
fund monies, which monies were
subsequently paid to them and given that the redemption of provident
funds are made only in circumstances
with the contract of employment
has come to an end, this election was clearly inconsistent with any
intention to report for work.
Further, the letter specifically
recorded that neither of the employees reported for work on 23 March
2015, despite the union’s
advice to that effect made in its
letter of 20 March 2015. Rather, on 9 June 2015, a further letter was
addressed by the union
to the first respondent making a further
demand for the payment of money. In short, the respondents contended
that there was no
basis either in fact or in law for the employees to
be reinstated or paid any further amounts in respect of arrear
emoluments.
[11]
This version was placed in dispute by the union in a letter addressed
on 7 September 2017 to the second respondent’s
attorneys. In
particular, the union disputed that its members had elected not to be
reinstated.
[12]
The principles applicable to civil contempt are well-established. The
purpose of contempt proceedings is to compel compliance
with orders
of court and to vindicate the court’s dignity and authority
consequent on the disregard of its orders. The principles
relevant to
contempt were set out by Cameron J in
Fakie
NO v CCI Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA). It is a crime unlawfully and intentionally to disobey a
court order, the essence of which lies in violating the dignity,
repute or authority of the court. The order in question must be one
ad factum praestandum
,
the order must have been served on the respondent or the respondent
must have been advised of the order in circumstances where
there are
no reasonable grounds for disbelieving the information, and
respondent must have failed to comply with the order. The
failure to
comply must be both
mala fide
and wilful (see
Fakie NO
(
supra),
Uncedo Taxi Service Association v Maninjwa & others
[1998]
BCLR 683
(E)). As the Court stated in
Fakie
:
9.
The test for disobedience of a civil order constitutes contempt has
come to be
stated is whether the breach was committed ‘deliberately
and mala fide’. A deliberate disregard is not enough, since
the
non-compliant may genuinely, albeit mistakenly, believe him or
herself entitled to act in the way claim to constitute the content.
In such a case good faith avoids the infraction. Even a refusal to
comply that is objectively unreasonable may be bona fide (although
unreasonableness could evidence lack of good faith).
10.
These requirements – that the refusal to obey should be both
wilful and mala fide,
and that unreasonable non-compliance, provided
it is bona fide, does not constitute contempt – accord with the
broader definition
of the crime, of which non-compliance with civil
orders is a manifestation. They show that the offences committed and
not by mere
disregard of a court order, but by the deliberate and
intentional violation of the court’s dignity, repute or
authority that
this evinces. Honest belief that non-compliance is
justified war proper is incompatible with that intent.
[13]
In
Consolidated Fish (Pty) Ltd v Zive & Others
1968 (2) SA
520
(CPD), the court made the point as follows:
The
court will not order the attachment of the respondent for contempt in
not complying with the judgement of the court if it appears
that the
non-compliance is not due to wilful disobedience but rather to a
misunderstanding of the true meaning of the judgement….
This
seems to be merely another way of stating the rule that, if a
respondent can establish bona fide is in relation to his disobedience
of the court order, he will not be held to have been in contempt of
that order.
[14]
The only issues arising in the present application is whether the
respondents refused to comply with the reinstatement order
and if so,
whether that refusal was deliberate and
mala
fide
.
[15]
The is an obvious and material dispute of fact as to whether or not
the employees tendered their services in terms of the order
of
reinstatement, and whether the respondents refused to accept that
tender. It is significant that the applicant’s founding
papers
contain no allegation that the employees performed any services for
the first respondent after the date of the arbitration
award, or that
they tendered to do so. Their case is confined to the three letters
attached to the founding affidavit and referred
to above. The first,
written on 25 March 2015, 16 months after the reinstatement order was
issued, stated no more than that of
the employees ‘will report
for duty at Nando’s Riverside Mall on 23 March 2015 at 10h00’.
There is no allegation
on that letter or in any of the subsequent
correspondence or in the affidavits filed in these proceedings that
the employees had,
prior to 23 March 2015, performed any work for the
first respondent, or attempted to do so, or tendered to do so. There
is also
no allegation that the employees in fact reported for duty on
23 March or at any date thereafter. Instead, on 9 June 2015, some
three months later, a further letter was addressed by the union to
the first respondent where again, there is no averment that
in the
period between 23 March and June 2015, either of the employees had
reported for duty or attempted to do so. As I have indicated
above,
the letter of 9 June 2015 appears to be primarily directed to demand
that the employees be paid what they contended to be
the outstanding
salary for a period during which they had performed no work
whatsoever (i.e. the period December 2013 to June 2015).
Some two
years later, on 21 July 2017, the applicant addressed a further
letter to the first respondent and this time the first
respondent was
advised that the employees ‘will resume their duties on 1
August 2017’. Again, neither the letter nor
the founding
affidavits raise any averment that in the period June 2015 to July
2017, either of the employees had reported for
duty or attempted or
tendered to do so. The letter again contains a demand that the
employees be paid a salary for the period December
2013 to July 2017,
even though they had not performed any work pursuant to the
reinstatement order.
[16]
To the extent that the applicants rely on the content of the
correspondence referred to establish the fact of a tender to return
to work in terms of the award, here is nothing in that correspondence
to suggest that the employees had reported for duty, or performed
any
work, or tendered to perform any work at Nando’s Riverside Mall
since the date of the arbitration award. On the contrary,
the
correspondence contains no more than a series of stated intentions to
return to work, none of which on the applicant’s
version were
ever realised. To the extent that the applicants have denied the
respondents’ averments that the employees never
tendered their
services after the award was issued, the applicants face two
insurmountable difficulties. The first is that they
are obliged to
make that case in the founding affidavit, which they
failed to do. The second is that in evaluating
the evidence on the
papers, the court is bound to follow the approach set out in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H -
635B.. The court may only find in favour of the applicant “
if
the facts as stated by the first respondent together with the
admitted facts in the applicant's affidavits justify such an
order...”.
The court is
therefore, in effect, bound by what the respondents state in their
affidavit, unless it is “
so far-fetched
or clearly untenable that [he] is justified in rejecting them merely
on the papers”
(
Plascon-Evans,
supra
at 634 – 635).
[17]
The failure by the applicants to establish that the employees
reported for duty and that their tender was refused is fatal
to their
attempt to hold the respondents in contempt. In my view, the
applicants failed to establish that there has been any breach
by any
of the respondents of the obligations which the order of
reinstatement imposed on them. In these circumstances, it is not
necessary for me to consider the second stage of the enquiry into
mala fides
and wilfulness. There being no breach of the order, the respondents
are entitled to an acquittal on the charge of contempt of court.
[18]
Insofar as costs are concerned, this court is a broad discretion in
terms of s 162 of the LRA to my course for costs according
to the
requirements of the law and fairness. This court is traditionally
reluctant to make orders costs in matters that concern
collective
both partners, with the effect of the order may be to prejudice the
relationship between them. In this matter, it seems
to me that some
resolution of the dispute between the parties is desirable and that
in order for costs may prejudice that prospect.
For that reason,
there is no order as to costs.
André van Niekerk
Judge
REPRESENTATION
For the applicant: Union official
For the respondents: Adv. A Oosthuizen
SC, instructed by Ashersons Attorneys