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[2018] ZALCJHB 353
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Mahlangu and Others v Laudium Taxi Association and Another (J1660/16; J1661/16; J1662/16) [2018] ZALCJHB 353 (2 November 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: J1660/16
J1661/16
J1662/16
In
the matter between:
WILLIAM
SANA MAHLANGU & 2 OTHERS
Applicant
and
LAUDIUM
TAXI
ASSOCIATION
First Respondent
RASHID
ISMAIL
Second Respondent
Heard:
15 June 2018
Delivered:
2 November 2018
Summary:
An application for contempt of court cannot succeed when the
applicants have not shown that non-compliance with a court
order by
the respondents was both deliberate and
mala
fide
.
JUDGMENT
Lallie,
J
[1]
The parties in the 3 matters referred to above agreed that they be
argued simultaneously as they involve the same respondents
and all
the matters are based on the same facts. The applicants are employed
by the first respondent. Pursuant to their suspension
from work they
referred unfair labour practice disputes to the Commission for
Conciliation Mediation and Arbitration (the CCMA).
The disputes were
resolved in terms of settlement agreements which were entered into on
10 May 2016. The terms of the settlement
agreements are the same.
They are the follow:
‘
1.
The suspension of the Applicant is uplifted with immediate effect.
2.
The Respondent undertakes to invite the Applicant and his employer to
a meeting where the outstanding salaries will be discussed.
3.
The meeting shall be held by not later than Friday the 20
th
of May 2016 at the Respondent’s premises.’
[2]
The first respondent failed to comply with the settlement agreement.
The applicants approached this Court in terms of section
158(1)(c) of
the
Labour
Relations Act
[1]
to have the settlement agreements made order of court. The orders
were granted on 26 October 2016. The first respondent failed
to
comply with the orders and the applicants enforced them by launching
applications for contempt of Court against the respondents.
On 17
August 2017 a rule nisi was granted requiring the respondents to show
cause why they should not be found to be in contempt
of Court. When
this application was argued the second respondent denied that the
respondents were in contempt of court and submitted
that they
complied with the court order but could not reach an agreement on the
amounts due to the applicants. The applicants denied
that the
respondents had complied with the order.
[3]
The test for contempt of court is stated as follows in
Fakie
NO v CCII Systems (Pty) Ltd
[2]
:
‘
The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed ‘deliberately
and
mala fide’
.
A deliberate disregard is not enough, since the non- complier may
genuinely, albeit mistakenly, believe him or herself entitled
to act
in the way claimed to constitute the contempt. In such a case, good
faith avoids the infraction. Even a refusal to comply
that is
objectively unreasonable may be
bona
fide
(though
unreasonableness could evidence lack of good faith)’.
[4]
During argument it became clear that the respondents had attempted to
comply with clause 2 of the settlement agreement but the
parties
could not agree on the amounts due to the applicants. A reading of
the settlement agreement which was made a court order
(the order) and
a consideration of the submissions on behalf of the parties support
the conclusion that the respondents complied
with clause 2 of the
order in that the parties did discuss payment of outstanding
salaries. They, however, did not reach an agreement
on the issue. It
must be noted that the order limits the respondents’ obligation
to discussing outstanding payments. It is
common cause that the
discussion did take place. The respondents therefore complied with
clause 2 of the order.
[5]
The settlement agreement was made a court order on 26 October 2016.
Clause 3 of the order required that the meeting be held
not later
than 20 May 2016. As the order was granted after 26 October 2016, the
respondents cannot be held not to have complied
with clause 3 of the
order. It was impossible for them to comply as the compliance date
had already passed when the order was granted.
[6]
The applicant denied that the respondents have complied with clause 1
of the order as they had not lifted their suspension.
The purpose of
a contempt of court proceedings is both to enforce court orders and
to penalize parties who deliberately disregard
them. As the
respondents have partially complied with the order the applicants did
not establish that they deliberately and
mala fide
disregarded
the order. An order enforcing clause 1 of the order is, in the
circumstances appropriate.
[7]
In the premises, the following order is granted:
Order
:
1.
The
respondents are not in contempt of Court.
2.
The first
and second respondents comply with clause 1 of the settlement
agreements which were made orders of Court on 26 October
2016 under
case number J1660/16, J1661/16 and J1662/16.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Advocate Matlala
Instructed
by Mahlangu Mashoko Inc
For
the Respondent: Mr Ismail of Laudium Taxi Association
[1]
66 of 1995
[2]
[2006] ZASCA 52
;
2006 (4) SA 326