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[2018] ZALCCT 19
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AFMS Group (Pty) Ltd v Francis (C226/2018) [2018] ZALCCT 19 (20 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
(CAPE
TOWN)
CASE
NUMBER
: C226/2018
DATE
:
20 APRIL 2018
In
the matter between:
AFMS
GROUP (PTY) LTD
Applicant
and
SEAN
MARK
FRANCIS
Respondent
J
U D G M E N T
STEENKAMP,
J
:
This
is an application to hold the respondent, Mr Sean Mark Francis, in
contempt of Court for fraudulently amending a Court order
of this
Court dated 23 August 2017 and asking for consequential relief.
The
somewhat bizarre background to this application is that my brother
Moshoana J gave an
ex tempore
judgment and made an order on 23 August 2017
reading as follows:
“
The
application for condonation of the late referral of statement of case
is hereby dismissed. No order as to costs.”
The
order referred to an application brought by Mr Francis who was at
that stage represented by Parker Attorneys. It appears
to be
common cause, after both Mr Francis and Mr Parker have given
testimony under oath today, that Mr Parker properly informed
Mr
Francis of that Court order. What is more, Francis then
instructed Parker to apply for leave to appeal, which he duly
did.
Moshoana
J handed down his ruling on the application for leave to appeal on 29
November 2017. He ruled that the application for
leave to appeal is
refused with costs.
It
is also apparent from an email that Francis sent to his erstwhile
employer on 15 February of this year that he was well aware
of the
Court order, as he noted that condonation had been declined.
But then, surprisingly -- and this is what led to the
current
application -- on 2 March 2018 Francis again sent an email to his
erstwhile employer and copied in its counsel, Mr
de Kock
, who
appeared here today, to say the following:
“
Good
day.
Sean Mark Francis v AFMS Group
Case number C752/2016
Hereby wishes to notify that in
accordance with the ORDER issued in the Labour Court South Africa
held at Cape Town on 23 August
2017 by the Honourable Justice, I
intend to proceed via Legal Aid to represent my case further as
stated in item 1 and refers to:
1.
Condonation is granted for the late serving
and filing of the applicant’s statement of case in relation to
his automatic unfair
dispute to the Labour Court Cape Town.
Please
advise your client accordingly.”
He
attached to that email what purports to be an order of this Court
stating that condonation is granted and that the respondent
is
directed to pay the costs of the application.
Mr
de Kock
,
on behalf of AFMS and instructed by Carelse Khan attorneys, brought
an
ex parte
application to this Court on 20 March 2018 and an order was granted
by my sister Rabkin-Naicker J calling upon Francis to show
cause why
he should not be held in contempt and either be ordered to pay a fine
or be incarcerated.
When
the matter was called today, Francis handed up an affidavit and a
bundle of documents. He also gave evidence under oath and
was
cross-examined by Mr de Kock. His erstwhile attorney, Mr Riyaaz
Parker, also testified and was cross-examined.
What transpired
from that testimony is that after Francis had instructed Parker to
apply for leave to appeal and after that appeal
had been turned down,
he wanted to petition the Labour Appeal Court. There appears to
have been some difference of opinion
between him and his attorney and
that culminated in Mr Parker withdrawing and his mandate being
terminated. Francis then
asked for the contents of his court
file which Parker Attorneys couriered to him. That is where
things went awry further.
It appears from the contents of the
court file, that Mr Parker says a candidate attorney in his office
prepared and he clearly
did not check, that in the bundle of
documents that was sent to Francis was a document that was itemised
as a “court order”
but appears to have been a draft order
that Parker had initially prepared in the unlikely event that he was
successful in Court.
It
is that draft order that Francis then blithely sent out as being an
order of this Court. Under oath today Mr Francis says
that he
did so because he was confused. He does not dispute that he was
aware of the initial judgment and order of Moshoana
J, and nor can
he, as he even unsuccessfully applied for leave to appeal that
judgment and order.
What
he did do after his rash action of simply sending out that draft
order to his erstwhile employer, was to send Parker another
email in
the following terms:
“
Just
a bit confused to why you say that condonation was declined to have
the case brought forward to the Labour Court after scrutinising
the
documents you sent the following statement refers as taken from the
page namely:”
and
he then quotes the contents of what transpired to be a draft order.
On
the same day Parker replied to Francis, saying:
“
You
may be referring to the draft order. Do you have the written
judgment?”
And
Parker responded the next day and said:
“
Hi
Sean
This
was a draft order we took with [
sic
]
to court should we have been successful.”
It
appears from the bundle that had been couriered to Francis that the
written judgment was indeed included but yet Dr Francis still
professes to have been confused.
The
appropriate test to be applied in cases like this is by now well
known. It was summarised by Cameron, JA in
Fakie N.O. v CC2
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). Without repeating
his very succinct explanation, I will merely quote from paragraph [6]
where he says:
“
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.”
That
has been further expanded upon in the very recent Constitutional
Court judgment of
Matjhabeng Local
Municipality v Eskom Holdings Ltd
2018
(1) SA 1
(CC) when Nkabinde ADCJ deals with the burden of proof in
paragraph [60]. She says:
“
In
relation to the proper standard of proof applicable in contempt of
court proceedings, there are divergent views on which further
reflection and clarity are necessary.”
And
she refers then to the
Fakie
judgment and clarifies that in
paragraph [67]:
“
Summing
up, on a reading of
Fakie, Pheko II,
and
Burchell
,
I am of the view that the standard of proof must be applied in
accordance with the purpose sought to be achieved, differently
put,
the consequences of the various remedies. As I understand it,
the maintenance of a distinction does have a practical
significance:
the civil contempt remedies of committal or a fine have material
consequences on an individual’s freedom and
security of the
person. However, it is necessary in some instances because
disregard of a court order not only deprives the
other party of the
benefit of the order but also impairs the effective administration of
justice. There, the criminal standard
of proof – beyond
reasonable doubt – applies always. A fitting example of
this is
Fakie
.
On the other hand, there are civil contempt remedies − for
example, declaratory relief, mandamus, or a structural
interdict −
that do not have the consequence of depriving an individual of their
right to freedom and security of the person.
A fitting example
of this is
Burchell
.
Here, and I stress, the civil standard of proof – a balance of
probabilities – applies.”
The
first type of contempt is the type of situation we are dealing with
here. If Francis had indeed willingly either tampered
with or
sent out a fraudulent court order, it deprives the employer of the
benefit of the order and it impairs the effective administration
of
justice and the dignity, repute and authority of this Court.
The
Court has grave difficulty with Francis’s explanation.
For a highly educated person with a doctorate to be confused
as to an
actual order that was handed down when he was not only aware of that
order but had actually applied for leave to appeal
against that
order, which was also turned down, is to my mind highly improbable.
However,
as the Constitutional Court reminds us, the standard of proof in this
type of application is a criminal one, i.e. proof
beyond a reasonable
doubt. On the evidence before me, I must reluctantly find that
the employer has not been able to prove
beyond a reasonable doubt
that Francis is guilty of contempt of court for fraudulently amending
a court order.
It
now appears clear that he did not amend the court order but that he
sent out what turned out to be a draft order. I cannot
find
beyond a reasonable doubt that he may not have been confused by the
badly prepared bundle of documents that a candidate attorney
in Mr
Parker’s office, apparently acting without proper supervision,
had sent to him without checking whether it contained
the initial
draft order or the actual order that was handed down by Moshoana J.
In
those circumstances the high evidentiary hurdle posed by the
Constitutional Court in
Matjhabeng Local
Municipality
has not been crossed by
the employer. Although a lingering doubt may remain in the mind
of the Court, as I said I cannot
find beyond a reasonable doubt that
Francis is guilty of contempt of court in the terms set out in the
notice of motion.
I must however sound a cautionary note to him
to tread carefully in his further dealings with his former employer
and with this
Court.
Having
made that finding, I can also not, taking into account law and
fairness and especially the fact that the applicant has been
unsuccessful, make any costs order.
THE
APPLICATION IS DISMISSED WITH NO ORDER AS TO COSTS
.
___________________________
STEENKAMP,
J