About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 166
|
|
Mthethwa v Department of Health: Gauteng Province and Another (JR2485/12) [2019] ZALCJHB 166 (25 June 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR2485/12
In
the matter between:
TP
MTHETHWA
Applicant
And
DEPARTMENT OF HEALTH:
GAUTENG
PROVINCE
First
Respondent
THE
HOD OF THE DEPARTMENT
Second
Respondent
Heard:
21 June 2019
Delivered:
25 June 2019
JUDGMENT
MOLAHLEHI
ADJP,
1.
This
is an application for the commitment of the second respondent, for
contempt of court. The order sought is consequent to the
alleged
failure to implement court order/s issued against the first
respondent requiring the reinstatement of the applicant.
2.
The
matter has a protracted history dating back to 2012 when the
respondent dismissed the applicant. After his dismissal the applicant
referred a dispute concerning an alleged unfair dismissal dispute to
the bargaining council. He was unsuccessful and being unhappy
about
that outcome, instituted review proceedings against the
commissioner’s arbitration award in this court.
3.
The
applicant was successful in the review proceedings. The arbitration
award was accordingly reviewed and set aside and substituted
with an
order reinstating the applicant into his previous employment.
4.
The
order reinstating the applicant which was made by Boda AJ on 15
January 2015 essentially ordered the reinstatement of the applicant
without loss remuneration and benefits.
5.
The
reading of the papers reveal that various problems confronted the
applicant in seeking to enforce the order. The first concern
the
dispute between the parties about the order read into the record in
the
extempore
judgment and the typed one, signed by the Registrar.
6.
During
November 2015 the applicant sought the enforcement of the court order
by means of contempt proceedings. The matter served
before Baloyi AJ
who postponed it and directed that Boda AJ be “approached to
vary one of the documents (referring to the
extempore
judgment and or the typed order) or give clarity whether
retrospective
pay
back is from the
date
of the dismissal was indeed intended by his judgment."
7.
The
order made by Benjamin AJ on 4 March 2016 in which the respondent was
directed to pay the applicant the amount of R1 325 283.56
did not
resolve the issue between the parties. The court further on that
occasion ordered the reinstatement of the applicant from
the date of
his dismissal and corrected his salary adjustment. Attached to the
order is a spread sheet which tabulated various
figures, totalling
the said amount of R1 324 283.56. The figures tabulated in the
schedule include amongst others; notch increased
and received,"
"basic salary received," "Housing subsidy received,"
"services bonuses received,"
"employment medical
contribution received," GEPF contribution received,. . .
8.
Another
order was made on 12 January 2017 by Lagrange J who ordered the
reinstatement of the applicant and further consultation
between the
parties to reconcile all monies due between the parties and reversing
the lump sum payment if necessary. The order
further required
correction of the applicant’s Persal account to reflect all
salaries, benefits and deductions as if he had
not been dismissed.
9.
On
2 June 2017, Witcher J made another order in which the parties were
directed to meet by 16 June 2017 and discuss a possible settlement
of
the matter.
10.
Turning
to the present application the applicant seeks an order in the
following terms:
“
1.
The Respondent(s) is found guilty of contempt of Court by failing to
abide
by orders of this Court.
2.
The Respondent pays the Applicant the amounts of R 179 563.10
for outstanding capital and interest from 16 January 2015 on the
arrears within 2 weeks of the date of this order.
3
The Respondent pays over to the Pension Fund the arrears on the
employer’s contribution during the period the Applicant was
dismissed until he was reinstated again within 2 weeks of the
date of
this order. The amounts mentioned in 2 above may be utilised for this
purpose. . . .”
11.
There
seem to be no dispute that the amount of R1 324 283.56 was paid to
the applicant in compliance with the order of Benjamin
AJ.
12.
There
is also no dispute that the amount of R33 000,00 is due to the
applicant. In this regard Counsel for the respondent gave an
undertaking that the respondent would pay that amount.
13.
The
main issue between the parties concerns the amount of R179 563.10,
which the applicant contends is due and owing to him in terms
of the
court order/s. The respondent on the other hand contends that the
applicant was paid everything that is owing to him. It
is further
alleged that the applicant was, in fact over paid.
14.
The
issue about the above amount seems to be concerning payment of
arrears in pension contribution by the first respondent to the
Government
Employee Pension Fund (the GEPF). The applicant
contends
that the respondent has failed to pay for the arrears on its
contribution to the GEPF for the period whilst he was out
of the
employment of the respondent due to his unfair dismissal.
15.
The
respondent on the other hand contends that the above amount which was
paid to the applicant is the amount which he ought to
use to settle
the arrears in the pension fund.
Elements
of contempt
16.
The
following requirements of a contempt order are well established in
our law:
16.1
The
existence of a court order;
16.2
That
the respondent had service or notice of the court order;
16.3
Non-compliance
by the respondent with the court order; and
16.4
That
the respondent acted wilfully (intentionally) and
mala
fide
in
transgressing the court order.
17.
In
MEC,
Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006 (4) SA 478
(SCA) the Court held that:
“
there
ought to be no doubt that a public official who is ordered by a court
to do or to refrain from doing a particular act, and
fails to do so,
is liable to be committed for contempt, in accordance with ordinary
principles. However, it must be clear beyond
reasonable doubt that
the official in question is the person who has wilfully and with
knowledge of the court order failed to comply
with its terms.”
In
Member of the Executive Council for Health,
Gauteng v Lushaba
(1) SA 106 (CC);
2016 (8)
BCLR 1069
(CC) the court held:
“
Contempt of court
proceedings can only succeed against a particular public official or
person if the order has been personally served
on him or its
existence brought to his attention and it is his responsibility to
take steps necessary to comply with the order
but he wilfully and
contemptuously refuses to comply with the court order.”
18.
In
the initial contempt proceedings which were instituted on 22 November
2016, Dr B Selebalo was cited as the second respondent,
being the
public official responsible for ensuring implementation of the court
order. He was subsequently dismissed by the respondent
and thus can
no longer be said to be the person responsible for implementing the
provisions of the court order/s. He thus cannot
be held liable for
failing to implement the order against the first respondent. The
person responsible for implementing the provisions
of the court
order/s is the incumbent.
19.
In
the present matter, the applicant has cited the second respondent as
"THE HEAD OF THE DEPARTMENT." The applicant has
failed in
its papers to identify the official responsible for implementing the
order/s since the dismissal of Dr Selebano. The
incumbent in the
position of the head of the department has not been identified in the
applicant’s papers. Put in another
way, the applicant has
failed to join the person occupying the position of the head of the
department in these proceedings.
20.
Mr
De Viliers for the applicant conceded during the debate that the
applicant's papers were for the above reason defective. The
applicant
has thus failed to identify or specify the official who it alleges
failed to implement the order and accordingly the
applicant's
application stands to fail.
Order
21.
In
the premises, the applicant's application is dismissed with no order
as to cost.
_____________
E
MOLAHLEHI
Acting
Deputy Judge President of the Labour Court
Representation
:
For
the Applicant: Mr De Villiers
Instructed
by:
Ricki Anderson Attorneys
For
the Respondent: Adv. TJ Machaba
Instructed
by:
Ndlovu Sedumedi Attorneys.