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[2018] ZALCJHB 298
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IMATU obo Kamffer v City of Ekurhuleni Metropolitan Municipality and Others (JR844/09) [2018] ZALCJHB 298 (28 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 844/09
In
the matter between:
IMATU
OBO JOHAN DANIEL
KAMFFER
Applicant
and
CITY
OF EKURHULENI METROPOLITAN
MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER: CITY OF
EKURHULENI
METROPOLITAN MUNICIPALITY
(DR
IMOGEN MASHANZI
N.O
)
Second
Respondent
THE
HEAD OF DEPARTMENT: HUMAN RESOURCES
CITY
OF EKURHULENI METROPOLITAN MUNICIPALITY
(MS
NALEDI
MODIBEDI)
Third
Respondent
THE
DIVISIONAL HEAD: LABOUR RELATIONS
CITY
OF EKURHULENI METROPOLITAN MUNICIPALITY
(MR
XOLANI NCIZA
N.O
)
Fourth
Respondent
Heard:
14 September 2018
Delivered:
28 September 2018
Summary:
contempt of court – officials not cited in their personal
capacity – no personal service of the
rule nisi
–
criminal verdict of incarceration is not competent – no wilful
contempt – civil remedy in a form of a
mandamus
is
untenable.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
The applicant, (IMATU) launched these contempt
proceedings on behalf of its member, Mr Kamffer seeking an order that
that his employer,
the first respondent (Ekurhuleni Metro); the
second respondent, the Municipal Manager (Dr Mashanzi); the third
respondent, Head
of Department: Human Resources (Ms Modibedi);
and the fourth respondent, Divisional Head: Labour Relations (Mr
Ncinza) are
in contempt of a court order dated 17 May 2017 and must
be committed to prison. For convenience, Dr Mashanzi, Ms Modibedi and
Mr
Ncinza are collectively referred to as ‘officials’.
[2]
The court
order dismissed Ekurhuleni Metro’s review application and made
the award dated 3 March 2009, which was the subject
of the review
application, an order of court. In terms of the award Ekurhuleni
Metro was ordered to place Mr Kamffer in a position
of Director:
Environmental Health effective from 15 March 2009. The award was a
consequence of a successful review application
by IMATU. Molahlehi J
ruled,
inter
alia
,
that the position of Director: Environmental Health was not a new
position as defined in the Collective Agreement on Placement
(Placement Agreement) nor a section 57 position in terms of the
the
Local Government: Municipal Systems Act
[1]
(Systems Act).
Historical
Background
[3]
The placement dispute between the parties dates
back to 2000, the advent of Ekurhuleni Metro as a Metropolitan
amalgamating 14 former
municipalities. A new staffing structure was
approved in July 2002, a product of extensive consultation with,
inter alia
, labour. A
month later, Ekurhuleni Metro concluded the Placement Agreement with
trade unions, including IMATU. The Placement Agreement
sought to
regulate placement of staff in the new structure and provided a
dispute resolution process in the event placements are
challenged.
‘Close matching’ of old and new positions was a
fundamental principle agreed to and applied in the placement
process.
[4]
There were other collective agreements that were
concluded at the level of the South African Local Government
Bargaining Council
(SALGBC) like the TASK Job Evaluation Collective
Agreement and the Wage Curve Collective Agreement which aimed at
standardising
grading systems with the local government sector.
According to Ekurhuleni Metro, many senior positions were new roles
and its Council
had resolved to fix the term of the incumbents’
contracts of employment to five years with competitive salaries and
benefits.
The filling of these positions was done in accordance with
the recruitment policy. The positions were advertised and employees
had an option of competing for the position or remain in the closely
matched position they were already slotted in.
[5]
Most employees, like Mr Kamffer, challenged their
placement on the basis that they were not closely matched. The
placement disputes
were presided over by independent arbitrators who
issued final and binding arbitration awards in terms of Clause 4 of
the Placement
Agreement.
[6]
Mr Kamffer was employed by the disestablished
Germiston City Council as a Chief Health Officer. He was placed as a
Regional Manager:
Environmental Health (Southern Region) with effect
from 1 November 2003. He was not happy with his placement and
accordingly lodged
a dispute. He made a claim to a position of
Director: Environmental Health.
[7]
Ekurhuleni Metro disputed that Mr Kamffer could
challenge his placement as the position of Director: Environmental
Health was a
new position as envisaged in the Placement Agreement. On
6 February 2007, the arbitrator upheld the preliminary point. That
led
to the review application by IMATU. This Court, as per the order
by Molahlehi J, reviewed and set aside the award and remitted the
matter back for a
de novo
arbitration.
[8]
The arbitration proceedings were held on 24
February 2009 after they had been postponed twice at the instance of
Ekurhuleni Metro.
They proceeded in the absence of Ekurhuleni Metro
due to its erstwhile attorneys abandoning the proceedings after its
application
for further postponement was dismissed. The default
award rendered by the arbitrator, in essence, directed that Mr
Kamffer
be placed in a position of Director: Environmental Health
with effect form 15 March 2009.
[9]
Ekurhuleni Metro launched a review application
wherein it raised,
inter alia
,
the issue of non-joinder of Mr Chaka who was appointed in 2004 as the
Director: Environmental Health after he had applied for
the position
and was successful. Well, nothing turns on that review application
because it was never diligently prosecuted by Ekurhuleni
Metro. As a
result, it was dismissed hence the contempt proceedings.
[10]
Ekurhuleni Metro and the officials deny that they
are in contempt of the arbitration award. The officials raised two
points
in limine
to
the effect that; firstly, they could not be prosecuted, convicted and
sentence to jail on a charge of contempt of court when
they had not
been cited in their individual capacities, and secondly, they were
not personally served with the
rule nisi
summoning them to appear in Court as directed.
[11]
On the substantive issue, the respondents’
defence is that they are not in wilful contempt. They contend that it
is impossible
to comply with the arbitration award as it stands as
the position of Director: Environmental Health is no longer in
existence.
Ekurhuleni Metro’s structure has undergone some
changes over the years, so it was further submitted. In the current
structure,
the close match to the position of the Director:
Environmental Health would be those of the Divisional Head positions
whose term
is also fixed for five years.
[12]
In view of that, Mr Kamffer has since been
offered the following options which, it was submitted, constitute a
substantial compliance
with the arbitration award:
12.1.
Compensation in the amount of R1 066 534.20
which is a difference between salary for the position currently
occupied by
Mr Kamffer and the salary of positions at the Director
level, including Director: Environmental Health, in a five year
fixed-term
contract.
12.2.
Three Divisional positions which are five year
fixed-term contracts. The Divisional Head: Legislative Compliance
Division; the Divisional
Head: Environmental protection and Reselie
Division; and the Divisional Head: Strategic Planning Environmental
Division.
Legal
Principles
[13]
The
following requisites of contempt of court, which are trite, were
recently reaffirmed by the Constitutional Court in
Matjhabeng
Local Municipality v Eskom Holdings Ltd and others
[2]
and they are:
13.1.
The existence of the order;
13.2.
The order must be duly served on, or brought to
the notice of the alleged contemnor;
13.3.
There must be non-compliance with the order; and
13.4.
The non-compliance must be wilful and
mala
fide
.
[14]
In
Matjhabeng
[3]
,
the Constitutional Court settled the issue of the burden of proof and
emphatically stated that in instances where, like in the
present
case, the relief sought is committal, the criminal standard of proof,
beyond reasonable doubt, is applicable.
[4]
The Constitutional Court also pronounced on the issue of
non-joinder of the officials in their personal capacities and
pertinently
stated that:
[5]
‘
[96] In the present case, not
only was a criminal sanction in the offing rather than a civil remedy
to ensure compliance, but there
is also no legitimate apprehension
over the number of parties cited. In each of the present matters
there was only one person -
Mr Lepheana in Matjhabeng and Mr Mkhonto
in Mkhonto - who should have been joined in their personal capacities
so that they could
properly defend the indictments or charges against
them. Insamcor is thus no authority for the proposition that a rule
nisi can
in general be used as a substitute for joinder in contempt
proceedings.
[102] When setting aside the Pretoria
High Court's order and declaring Mr Mkhonto to be in contempt and
sentencing him to imprisonment,
the Supreme Court of Appeal took no
pains to consider the prejudice that befell Mr Mkhonto - specifically
to determine whether
he had been personally joined as a party. The
Supreme Court of Appeal convicted and sentenced Mr Mkhonto to
imprisonment even though
he was not a party to the contempt
proceedings. In my view, the procedure followed by the Supreme Court
of Appeal violated Mr Mkhonto's
right "not to be deprived of
freedom arbitrarily or without just cause" in terms of section
12(1)(a) of the Constitution.
[103] Bearing in mind, that the
persons targeted were the officials concerned - the Municipal Manager
and Commissioner in their
official capacities - the non-joinder in
the circumstances of these cases, is thus fatal. Both Messrs Lepheana
and Mkhonto should
thus have been cited in their personal capacities
- by name - and not in their nominal capacities. They were not
informed, in their
personal capacities, of the cases they were to
face, especially when their committal to prison was in the offing. It
is thus inconceivable
how and to what extent Messrs Lepheana and
Mkhonto could, in the circumstances, be said to have been in contempt
and be committed
to prison.’
[15]
Turning to the present case, it is common cause
that the officials are not cited in their personal capacities and
were never served
with the
rule nisi
as directed by Whitcher J. Given the fact that IMATU seeks a criminal
sanction in a form of committal rather than a civil remedy
to ensure
compliance, the officials ought to have been joined in their personal
capacities so that they could properly defend the
indictment against
them. Indeed, a
rule nisi
could satisfy the requirement for joinder in contempt proceedings.
The converse is true in the present case. The
rule
nisi
does not assist IMATU as it was never
served personally on the officials. Clearly, these omissions are
fatal to IMATU’s case.
[16]
Mr Mkhwibiso, IMATU official, was at pains to
convince the Court that the officials could still be found to be in
civil contempt
of court under the further alternative relief prayer
in the Notice of Motion and a
mandamus
be ordered. It is logical that a civil relief must be preceded by a
conviction that the officials are indeed in contempt.
[17]
IMATU is adamant that the respondents are in
contempt of the award that placed Mr Kamffer in a permanent position
of a Director:
Environmental Health. Mr Mkhwibiso submitted that
Molahlehi J ruled that the position is permanent and Mr Kamffer is
not interested
in any of the fixed-term positions he have since been
offered.
[18]
Advocate Fourie SC, counsel for the respondents,
submitted that IMATU knew all along that the Director: Environmental
Health position
was not permanent but fixed-term. The position was
advertised in 2003 but Mr Kamffer failed to avail himself to that
recruitment
process. Obviously, Mr Kamffer wants to enjoy the
benefits of the position of Director: Environmental Health without
exposing himself
to the risks associated with those benefits. As
correctly submitted by Advocate Fourie SC, Mr Kamffer wants to ‘have
his
cake and eat it’.
[19]
The mere fact that IMATU concedes that Mr Kamffer
had been offered an option to choose a suitable alternative position,
albeit on
a five-year fixed-term contract, is a testament that the
respondents are not in wilful contempt. In fact, Mr Mkhwibiso
conceded
that all the incumbents in the positions of Divisional
Heads, including its members, are on five-year fixed-term contracts.
[20]
The Molahlehi J order did not pronounce on the
permanency of the position of Director: Environmental Health nor did
the arbitrator
in the arbitration award. In my mind, IMATU failed to
prove that the position of Director: Environmental Health was
permanent.
It stands to reason, therefore, that Mr Kamffer’s
placement would have been subject to a term fixed for five years with
effect
from 15 March 2009 to 15 March 2014. As such, both the options
offered to Mr Kamffer constitute a substantial compliance with the
award. Mr Kamffer is not prejudices in any manner. He can accept the
monetary offer and keep his current position; alternatively,
avail
himself to one of the Divisional Head positions in offer.
[21]
In the light of the fact the options offered to
Mr Kamffer amount to substantial compliance with the award, IMATU
dismally failed
to prove, on the balance of probabilities, that the
officials are in wilful contempt.
Conclusion
[22]
In all the circumstances,
no
case for wilfulness and
mala fides
on the part of the officials in their personal capacities has been
made to sustain an indictment of contempt of court. As such,
the
application stands to be dismissed.
Costs
[23]
The only issue remaining is that of costs. It is
trite that costs in this Court do not follow the result, especially
if the parties
are in a persisting relationship as typified in the
present case. Nonetheless, despite the collective bargaining
relationship between
the parties, IMATU took an intransigent stance
throughout this litigation. When it was clear that its case was about
to suffer
its demise, IMATU sought to escape a cost order by relying
on the relationship that the parties have. I am convinced, therefore,
that the present case presents an exception to the rule.
[24]
In the premises, I make the following order:
Order
1.
The application is dismissed.
2.
IMATU is ordered to pay the costs.
__________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant: Mr Mkhwibiso, Official of IMATU
For
the first respondent: Advocate G Fourie SC
Instructed
by: Tshiqi Zebediela Inc
[1]
Act 32 of 2000 as amended.
[2]
2018 (1) SA 1
(CC);
[2017] ZACC 35
(CC);
2017 (11) BCLR 1408
(CC) at para 73
[3]
Supra
.
[4]
Matjhabeng,
supra
at paras 60 to 97.
[5]
Matjhabeng,
supra
at
paras 96, 102 and 103.