About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 184
|
|
Premier, North West Provincial Government and Another; In re: Bogacwe and Others v Premier, North West Provincial Government and Others (J564/15) [2018] ZALCJHB 184; [2018] 10 BLLR 1029 (LC); (2018) 39 ILJ 2312 (LC) (25 May 2018)
Of
interest to other Judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: J 564/15
In
the matter between:
THE PREMIER, NORTH
WEST PROVINCIAL
GOVERNMENT, THE
HONOURABLE MR
SUPRA OBAKENG
MAHUMAPELO
First Applicant
THE MEC FOR THE
DEPARTMENT OF
FINANCE, NORTHWEST
PROVINCIAL
GOVERNMENT, MADAM
WENDY NELSON
Second Applicant
In re:
MPHO BOGACWE AND
OTHERS
Applicants
and
THE PREMIER, NORTH
WEST PROVINCIAL
GOVERNMENT, THE
HONOURABLE MR
SUPRA OBAKENG
MAHUMAPELO
First Respondent
THE MEC FOR THE
DEPARTMENT OF
FINANCE, NORTHWEST
PROVINCIAL
GOVERNMENT, MADAM
WENDY NELSON
Second
Respondent
HEAD OF DEPARTMENT
– MR ISRAEL
KUNENE, THE
PROVINCIAL DEPARTMENT
OF FINANCE
Third
Respondent
CHIEF DIRECTOR
CORPORATE SERVICES
–
MRS
MATSHIDISO JANSEN: THE
PROVINCIAL
DEPARTMENT OF FINANCE
Fourth
Respondent
DIRECTOR GENERAL –
MR MASHWAHLE
DIPHOFA: THE
NATIONAL DEPARTMENT
OF PUBLIC SERVICE
AND
ADMINISTRATION
Fifth
Respondent
Heard
:
24 May 2018
Delivered
:
25 May 2018
Summary:
(Urgent application to excuse applicants from attending court hearing
of contempt application despite existing
court order –
application dismissed – principles underpinning attendance of
alleged contemners in court for contempt
proceedings discussed)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an urgent interlocutory application to excuse the two
applicants from attending a contempt hearing (‘the main
application’) scheduled to be heard on 1 June 2018, which will
consider whether or not they are in contempt of a court order
handed
down by the Honourable Voyi AJ, on 31 July 2015. That order made an
arbitration award handed down on 6 June 2014 an order
of court.
[2]
The upshot of the award which was made an order of court was that,
clause 18.1 of Resolution 1 of 2012 adopted in the Public
Service
Coordinating Bargaining Council could not be affected in a staged or
staggered way that differentiated between categories
of employees,
more particularly between core and corporate services employees. The
award also found that the Department of Public
service and
Administration must apply the clause “…indiscriminately
to all the employees whose posts on 1 August 2012
were graded on
salary levels 10 and 12 and to appoint and remunerated them
accordingly on salary levels 10 and 12 respectively.”
Clause
18.1 clarified the application of a previous resolution 3 of 2009 as
follows: “clause 3.6.3.2 of PSCBC 3 of 2009 is
hereby amended
to allow employees whose posts were graded on salary levels 10 and 12
to be appointed and remunerated on salary
levels 10 and 12
respectively.”
[3]
The applicants in the main application claim that the award which was
made an order of court was not complied with by the Provincial
Government in the Northwest Province in respect of certain employees.
Because compliance with the order entails not merely the
payment of a
fixed sum of money but giving effect to appointments and ongoing
remuneration which are acts
ad factum praestandum
, compliance
with the order cannot be enforced by means of issue of a writ, but
must be done by way of contempt proceedings.
[4]
The Premier of the North West Province, as he was until his
resignation the day before the interlocutory application, and the
MEC
for Finance are required to answer to the charge of contempt in their
respective official capacities they held at the relevant
time of the
alleged failure of the Province to comply with the order. They are
also required to defend themselves against ancillary
charges of
contempt for their failure to attend previous hearings of the main
contempt application.
[5]
The order issued on the last occasion of the postponement contempt
hearing on 23 February 2018 reads:
IT
IS ORDERED THAT:
1.
The contempt application in respect of the first and second
respondents’ failure to appear in court on
24 November 2017 is
postponed or to 1 June 2018.
2.
Further, the first and second respondents (“respondents”)
ordered to appear in the Labour Court
on the 1 June 2 018 to show
cause why they should not be found guilty of contempt of court for
failing to appear in court on 23
February 2018 and why they should
not be found guilty of contempt of not complying with the court order
of this court handed down
on 31 July 2015 attached as Annexure “A”.
3.
The respondents may explain their conduct in respect of their
nonappearance on 24 November 2017 and 23 February
2018 by way of
affidavit to be filed on 15 May 2018.
The respondents are
nonetheless required to appear on 1 June 2018
.
4.
In the absence of providing an explanation to the satisfaction of the
court, or failing to appear in court
despite being properly served,
respondents may be found guilty of contempt and:
4.1
the respondents may be incarcerated for such period as the court
deems appropriate;
4.2
the respondents may jointly and severally the find in an amount the
court deems appropriate; or
4.3
the court may order other alternative relief including the issue of a
writ of arrest.
5.
Service of this order must be affected personally on the respondents.
6.
The first and second respondent shall pay the applicant’s
wasted costs of today’s proceed on an
attorney-client scale
jointly and severally, the one paying the other to be absolved.
(emphasis
added)
[6]
In essence, the two applicants asked to be excused from attending the
proceedings on the basis that they have already provided
an
explanation by way of affidavit and no further purpose could be
served by their attendance at court. Their counsel,
Mr D Mtsweni¸
contended that the order was similar to a subpoena issued to a
witness to come and give evidence in court proceedings. As they have
supposedly provided such evidence that they wish to lead in their
defence by way of answering affidavits, there is no need for
them to
attend. He was reluctant to admit that there might be another purpose
for the emphasised portions of the above order, which
requires the
parties who are called upon to answer the charge of contempt to
attend proceedings even if they have elected to set
out their defence
on affidavit.
[7]
An
additional consideration was advanced that, given the senior
government positions held by the two applicants, the court ought
to
reconsider whether persons in such positions should be required to
attend proceedings where they have furnished an explanation
by way of
affidavit for the conduct they are called upon to defend. In this
regard, I was referred to the Constitutional Court
decision in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1]
in which the court dealt
with the considerations which ought to be taken into account when
subpoenaing the State President to give
evidence in court.
[2]
The considerations which apply to calling a person in that office to
testify are not analogous in my view to the situation
where the
person in question is called to answer charges of contempt, though
naturally a court would consider how the demands of
high office might
necessitate accommodations at times. I do not see that judgment as
providing a basis for a general argument of
‘executive
exceptionalism’ for holders of public executive office, which
might undermine the principle of equality
before the law.
[8]
It appears
that perhaps, the nature of the proceedings has possibly escaped the
applicants in the interlocutory application. Although
the order they
allegedly are in contempt of is an order of a civil court, the
consequences of been found guilty of contempt are
criminal in nature.
In
Fakie
NO v CCII Systems (Pty) Ltd
,
[3]
the SCA inter-alia said the following in explaining the nature of the
offence:
Contempt
of court
[6]
It is a crime unlawfully and intentionally to disobey a court order.
This type of contempt of court is part of a broader
offence, which
can take many forms, but the essence of which lies in violating the
dignity, repute or authority of the court.
The offence has, in
general terms, received a constitutional 'stamp of
approval', since the rule of law - a founding
value of the
Constitution - 'requires that the dignity and authority of the
courts, as well as their capacity to carry out their
functions,
should always be maintained'.
[7]
The form of proceeding CCII invoked appears to have been received
into South African law from English law and is a most valuable
mechanism. It permits a private litigant who has obtained a court
order requiring an opponent to do or not do something (ad factum
praestandum), to approach the court again, in the event of
non-compliance, for a further order declaring the non-compliant
party
in contempt of court, and imposing a sanction. The sanction usually,
though not invariably, has the object of inducing the
non-complier to
fulfil the terms of the previous order.
[8]
In the hands of a private party, the application for committal for
contempt is a peculiar amalgam, for it is a civil proceeding
that
invokes a criminal sanction or its threat. And while the litigant
seeking enforcement has a manifest private interest in securing
compliance, the court grants enforcement also because of the broader
public interest in obedience to its orders, since disregard
sullies
the authority of the courts and detracts from the rule of
law.
[4]
[9]
The potentially serious consequences of been found guilty of contempt
are set out in paragraph 4 of the order. The presence
of the two
applicants in the interlocutory application at their contempt hearing
is not merely for the purposes of any further
clarification they
might wish to provide on their defence to the charges. The reason for
still requiring the presence of accused
parties in contempt
proceedings, in my view, essentially relates to the criminal
character and consequences of those proceedings.
In criminal
proceedings, it is a fundamental principle that an accused person
must be present at the trial. This principle is embodied
in
section
158
of the
Criminal Procedure Act, 51 of 1977
, which states:
158.
Criminal proceedings to take place in presence of accused
(1)
Except as otherwise expressly provided by this Act or any other law,
all criminal proceedings in any court shall take place
in the
presence of the accused.
[10]
The authors
of
Du
Toit: Commentary on the
Criminal Procedure Act
pertinently
observe that “(t)his principle is based upon the
consideration that the court must be placed in a position to enable
it to
arrive at the truth, and the accused can properly conduct his
defence only if he is present.”
[5]
That consideration applies as much to the determination of any
sanction flowing from a finding of contempt, when that sanction
is
criminal in nature. It is a rule of court procedure that is plainly
designed to ensure the protection of the interests of the
accused
because of the potentially serious consequences of conviction and
sentencing. The applicants might have a sanguine view
of the merits
of their defence to the charge of contempt and the likelihood of a
sanction of incarceration being imposed in the
event they are
unsuccessful. Nonetheless, the course of court proceedings can be
notoriously unpredictable and it is undesirable
that the alleged
contemners should not be present in court to ensure that every aspect
of their defence is properly conducted,
including if necessary issues
of sentencing. It is not for this court to second guess the outcome
of the contempt hearing based
on the defence offered by the two
applicants to determine if their presence is really needed. It would
be premature of this court
to consider the merits of their defence in
weighing up whether the order should be varied to excuse their
attendance.
[11]
There may be circumstances where an alleged contemner’s
presence might nevertheless be partially excused, for example
where
preliminary points have to be dealt with before the merits can be
entered, or where proceedings have commenced, or where
the court is
satisfied that there are sufficient safeguards established in the
conduct of the proceedings, to ensure that no prejudice
could be
suffered by them on account of their non-attendance. But that is a
matter for the court hearing the application and it
is undesirable
for the issue to be decided
in abstracto
in advance of such
proceedings.
[12]
In the circumstances, I am not satisfied that the reasons advanced by
the applicants in this interlocutory application are
sufficient to
excuse their non-attendance at the contempt proceedings in advance of
those proceedings.
Costs
[13]
The applicants argued that the respondents had no interest in
opposing the application because the application was a matter
between
the applicants and the court. That is difficult to understand. The
respondents have been engaged over a considerable period
to get the
applicants to court so the contempt application can proceed. The
basis for the application was slender and arguably
was not urgent,
but the respondents did not dispute the question of urgency. The
respondents could hardly be indifferent to an
attempt to effectively
amend an important component of the court order. There is no reason
why costs should not follow the cause
in this matter.
Order
[1]
The application was dealt with as one of urgency and non-compliance
with the rules of court
pertaining to time limits for filing
pleadings and the like are condoned.
[2]
The application is dismissed.
[3]
The first and second applicants in this interlocutory
application are jointly and
severally liable for the costs of this
application, the one paying the other to be absolved.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Adv.
D. Mtsweni instructed by
the
State Attorneys
RESPONDENTS:
Mr.
Sebola for Nchupetsang
Attorneys
[1]
2000 (1) SA 1 (CC)
[2]
At 106-107, paras [240] – [245].
[3]
2006 (4) SA 326 (SCA).
[4]
At 332-333.
[5]
Jutas ed, RS 52, 2014 ch4-p1