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[2018] ZALCCT 14
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Van der Westhuizen v BDM Management (Pty) Ltd (C98/2013) [2018] ZALCCT 14 (10 May 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NUMBER: C 98/2013
Not
reportable
Of
interest to other judges
In
the matter between:
Marius
Stephanus VAN DER WESTHUIZEN
Applicant
and
BDM
MANAGEMENT (PTY)
LTD
Respondent
Heard:
20 April 2018
Delivered:
10 May 2018
SUMMARY:
Contempt of court. Wilful and mala fide non-compliance not
shown. Application dismissed.
JUDGMENT
STEENKAMP
J:
Introduction
[1]
The applicant, Mr Marius van der Westhuizen, is a boilermaker. He
worked at Namakwa Sands but his employer was a labour broker,
BDM
Management (Pty) Ltd (the respondent).
[2]
Van der Westhuizen was dismissed on 16 March 2012. He referred an
unfair dismissal dispute to the CCMA. The parties reached
a
settlement. The agreement was made an order of court. He now claims –
six years later -- that BDM is in contempt of the
court order and
seeks a declaration to that effect, together with ancillary relief.
Background facts
[3]
Van der Westhuizen started working at Namakwa Sands as a boilermaker
in 1989. He started losing his hearing in 2007, but continued
working
as a boilermaker. BDM dismissed him on 16 March 2012 after the Mine’s
occupational health practitioner had tested
his hearing and advised
the Mine that he may no longer work in a “noise zone”.
BDM’s operational manager, Ms
Linda Oosthuyse, addressed
a letter to him in the following terms:
“
Marius,
HR
Namakwa Sands het my in kennis gestel dat die uitslae van jou
gehoortoetse by Dr Nel nie veel verskil van die gehoortoetse wat
Dr
Marais gedoen het nie.
Albei
se bevinding is dat jy nie in ‘n geraasarea mag werk nie.
Dit
was alreeds so aangeteken op jou mediese verslag van Dr Marais.
Dit
spyt my om jou mee te deel dat jou kontrak as Boilermaker
[1]
vandag, 16 Maart 2012, eindig.
Dis
ongelukkig omstandighede buite my beheer, en ek wens ek kon van my
kant af iets gedoen het. Maar ek kan ongelukkig nie teen
Namakwa
Sands se reëls en regulasies gaan nie, en moet my kliënt
tevrede stel.”
[4]
In its answering papers, BDM attached the report of the occupational
medical practitioner stating that the employee is physically
suitable
for the job (as boilermaker) but that he “may not work in noise
zone”.
[5]
The employee referred an unfair dismissal dispute to the CCMA. The
parties signed a settlement agreement at the CCMA on 28 May
2012.
Unfortunately it is drafted in vague terms. The pertinent part reads:
“
The
ER [employer] will ensure that the applicant [the employee] is given
the first available opportunity for re-employment should
a suitable
vacancy arise soonest”.
[6]
The agreement does not specify what a “suitable vacancy”
is and who should decide whether a vacancy is suitable;
it does not
refer to the employee’s hearing loss and its effect on any jobs
at all; and it does not explain to what time
period, if any,
“soonest” refers.
[7]
Be that as it may, BDM did not offer the employee any job at all.
The
settlement agreement and court order
[8]
Having not been offered a job pursuant to the settlement agreement,
the applicant had the agreement made an order of court on
19 April
2013. That did not have the desired effect.
Subsequent
inaction by BDM
[9]
After the agreement had been made an order of court, BDM still did
not offer the applicant a job. Eventually he brought this
application
to have BDM held in contempt and to have its managing director, Mr
Jacques Lombard, committed to prison for a suspended
period on
condition that he and BDM comply with the court order.
Evaluation
[10]
The
requirements for contempt have been clarified by the SCA in
Fakie
[2]
and by the Constitutional Court in
Matjhabeng
Local Municipality.
[3]
In
Fakie
,
Cameron JA summarised the principles thus:
““
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The respondent in such proceedings is not an ‘accused person’,
but is entitled to analogous protections as are appropriate
to motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness
and
mala fides) beyond reasonable doubt.
(d)
But once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and mala fides: should the respondent fail to advance
evidence that establishes a reasonable doubt as
to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
(e)
A declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance of probabilities.”
[11]
In this case, the applicant has proved the order, service or notice.
But has he proven non-compliance? If so, the respondent
bears an
evidential burden in relation to wilfulness and mala fides.
[12]
It is common cause that BDM has not offered the applicant
re-employment. On the face of it that may appear to be
non-compliance;
but BDM says that is because a “suitable
vacancy” has not arisen.
[13]
BDM says
that a “suitable vacancy” can only be that of a
boilermaker outside of the noise zone. No such vacancy has
arisen, as
the boilermakers who have been employed all work inside the noise
zone. In reply, the applicant relies on a letter dated
31 December
2013 – well after his dismissal and the settlement agreement --
from one Michael Lau, a “hearing aid acoustician
wellness
consultant”, who expressed the opinion that the applicant
“would be able to work”; but that a hearing
instrument
was strongly recommended. But BDM counters that it continues to act
on the advice from the mine’s occupational
health practitioner
that Van der Westhuizen may not work in the noise zone; and that the
letter from Lau is nothing more than that,
and he does not include a
confirmatory affidavit. Lau does not express any opinion as to
whether Van der Westhuizen may work as
a boilermaker, and more
specifically if he could work in the noise zone. The mine’s
position, on the other hand, is confirmed
by Dr Marais in a
confirmatory affidavit. Applying the rule in
Plascon-Evans
[4]
the position remains that Van der Westhuizen may not work in a noise
zone. Given that all suitable positions to date have been
in the
noise zone, the applicant has not shown non-compliance.
[14]
But even if I were to accept that the applicant had shown
non-compliance, BDM has satisfied the evidentiary burden to show
that
it was not wilful or
mala fide
. It continues to rely on the
advice of the mine’s occupational health practitioner, Dr
Marais. A “suitable vacancy”
would be that of
boilermaker; and all of those vacancies that have arisen, are in the
noise zone. The fact that BDM has not offered
Van der Westhuizen
re-employment in those circumstances was neither wilful nor
mala
fide
Conclusion
[15]
In those circumstances, the applicant has not proven that BDM is on
contempt of this Court’s order.
[16]
With regard
to costs, I bear in mind the following reminder by the Constitutional
Court in
Zungu
[5]
:
‘
The
rule of practice that costs follow the result does not apply in
Labour Court matters. In
Dorkin
, Zondo JP explained the
reason for the departure as follows:
“
The
rule of practice that costs follow the result does not govern the
making of orders of costs in this Court. The relevant
statutory
provision is to the effect that orders of costs in this Court are to
be made in accordance with the requirements of the
law and fairness.
And the norm ought to be that costs orders are not made unless the
requirements are met. In making
decisions on costs orders this
Court should seek to strike a fair balance between on the one hand,
not unduly discouraging workers,
employers, unions and employers’
organisations from approaching the Labour Court and this Court to
have their disputes dealt
with, and, on the other, allowing those
parties to bring to the Labour Court and this Court frivolous cases
that should not be
brought to Court.”
[17]
Mr van der Westhuizen is an individual who has lost his job through
no fault of his own, but rather because of his disability
in the form
of progressive hearing loss. He has attempted to secure employment
pursuant to a settlement agreement that is not a
model of clarity. In
doing so and eventually turning to this Court, albeit unsuccessfully,
he has had to incur legal costs of his
own. In fairness, he should
not be held liable for BDM’s costs.
Order
The
application is dismissed.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Piet
Nel
Instructed
by Gustav de Vries (Vredendal).
RESPONDENT:
Jan
Rhoodie of Bester & Rhoodie (Pretoria).
[1]
Sic
– ‘
ketelmaker’
in Afrikaans.
[2]
[2]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA). See also
Robertson
Winery (Pty) Ltd v CSAAWU & Ors
(2017)
38
ILJ
1171
(LC).
[3]
Matjhabeng
Local Municipality v Eskom
2018
(1) SA 1 (CC).
[4]
Plascon-Evans
Paints Ptd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 63 (A).
[5]
Zungu v
Premier of the Province of KwaZulu-Natal and Others
(2018) 39
ILJ
523 (CC);
[2018] 4 BLLR 323
(CC) par [24], referring to s 162 of the
LRA.