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[2019] ZALCJHB 215
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NEHAWU obo Members v Department of Public Works, Roads and Transport: Mpumalanga Province and Others (J785/13) [2019] ZALCJHB 215 (6 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGEMENT
Not reportable
CASE
NO:J785/13
In the matter between:
NEHAWU
obo MEMBERS
Applicant
and
DEPARTMENT OF PUBLIC
WORKS,
ROADS
ABD TRANSPORT: MPUMALANGA PROVINCE First
Respondent
HEAD OF DEPARTMENT:
DEPARTMENT OF
PUBLIC WORKS, ROADS
AND TRANSPORT
MPUMALANGA
PROVINCE
Second
Respondent
MEC FOR THE DEPARTMENT
OF PUBLIC WORKS,
ROADS
AND TRANSPORT: MPUMALANGA PROVINCE Third
Respondent
Heard:
2 August 2019
Judgment
delivered: 6 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to hold the first and second respondents in
contempt of court on
account of what the applicant (the union) avers
is their failure to comply with an order of this court dated 8
February 2017. The
dispute between the parties has its roots in a
decision taken in 2009 by the premier of Mpumalanga to merge two
departments - public
works, and roads and transport. Consequent on
the merger, a new structure for the new department had to be
determined and those
employees engaged in the previously separate
departments had to be accommodated in the new structure or elsewhere.
The parties
commenced negotiations on how this was to be effected,
and on 12 October 2009, reached a collective agreement in the form of
what
is referred to as the ‘placement plan’.
[2]
The implementation of the plan did not proceed satisfactorily and was
ultimately halted
by the provincial executive committee pending
guidance from the Department of Public Service and Administration.
The applicant,
on behalf of 226 of its members, referred the matter
to arbitration. The arbitrator was required to determine whether the
first
respondent had breached the placement plan, and if so, to
determine how the plan ought to be implemented. However, attached to
the referral was a list of all the names of only 186 members of the
union.
[3]
On 24 June 2011, the arbitrator issued an award which required the
respondent to finalise
the process of placement of staff as agreed,
within 30 days of the date of the award.
[4]
In the course of seeking to comply with the award, the Department
embarked on a job
evaluation process with the new structure of the
Department. The Department avers that at that stage, it was
discovered that certain
employees had been receiving remuneration at
a higher level than what was justified by the posts they occupied.
When it was proposed
that corrective measures be taken in accordance
with the applicable regulations, the union advised its members not to
participate
in the job evaluation process and accordingly, the
respondents averred that the implementation of the agreement in terms
of the
award could not take place.
[5]
During April 2013, the union filed an application in which it sought
to have the arbitration
award made an order of court. On 20 August
2014, the arbitration award was made an order of court.
[6]
After the granting of the order, on 29 September 2014, the department
said the union
a letter in which it stated that it intended to comply
with the award and the order of court and that it was in the process
of
verifying the identified persons and employees on the list of 196
employees, and that once the verification had been done, the
department would commence with the job evaluation process. The union
responded on 1 October 2014 to the effect that the job evaluation
process that the respondent intended to conduct constituted contempt
of court since the award made no reference to a job evaluation
process. The Department responded by stating that in its view, a job
evaluation process was a bit obligatory. After further
correspondence,
during January 2015, the union filed an application
to hold the respondent in contempt of court. After various
preliminary points
were raised by the respondent’s, that
application was withdrawn on 5 March 2015.
[7]
In May 2015, the union filed a second application an application to
hold the respondents
in contempt of the order. That application
culminated in a ‘deed of settlement’, signed on 8
February 2017. In terms
of the settlement, the first respondent
undertook to ‘
implement the Placement Plan, inclusive of
clause 9 (the “Parity clause”) to all employees affected
thereby, in the
light of the provisions of the Public Service Act,
1994 and Regulations issued in terms thereof within 8 weeks from the
date of
this agreement, and adjust their appointments with
retrospective effect from 24 June 2011, and finalise the process on
or before
1 April 2017’.
[8]
The respondent concede that they were unable to complete the job
evaluation process,
adjust the appointments and finalise the process
within the eight weeks provided in the court order. The department
proceeded to
make adjustments to the grades and salaries of the 186
employees before receiving the job evaluation results. This was
done
ostensibly on the basis of an intention to comply with the court
order, and into anticipation of the outcome of the job evaluation.
In
March 2017, the respondents proceeded to adjust the salary levels of
103 employees who were on the list of 186. The difference
is
accounted for by exclusions in respect of members transferred to
other departments and applications in the list provided by
the union.
The outcome of this process was called into question when the job
evaluation report was received from the office of
the premier. The
report indicated that the upgrades, adjustments and payments were
incorrect and that members were to remain on
the same salary levels
on which they had previously been engaged. Legal opinions were
consequently sought and the respondents were
advised that the
adjustments and payments that had been made illegal as they had not
been preceded by the obligatory job evaluation
process and results.
[9]
The union contends that the respondents have failed to comply with
the deed of settlement,
that they are in breach of the order granted
on 8 February 2017, and that the respondents are accordingly in
contempt of court.
In so far as the scope of the order is concerned,
the union contends that the order is applicable to all affected
employees, and
not only those whose names appeared on the annexures
in the referral to arbitration.
[10]
The principles applicable to civil contempt are well-established. The
purpose of contempt proceedings
is to compel compliance with orders
of court and to vindicate the court’s dignity and authority
consequent on the disregard
of its orders. The principles relevant to
contempt were set out by Cameron J in
Fakie NO v CCI Systems (Pty)
Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). It is a crime unlawfully and
intentionally to disobey a court order, the essence of which lies in
violating the dignity,
repute or authority of the court. The order in
question must be one
ad factum praestandum
, the order must
have been served on the respondent or the respondent must have been
advised of the order in circumstances where
there are no reasonable
grounds for disbelieving the information, and respondent must have
failed to comply with the order. The
failure to comply must be both
mala fide
and wilful (see
Fakie NO
(
supra), Uncedo
Taxi Service Association v Maninjwa & others
[1998] BCLR 683
(E) and more recently
Matjhabeng Local Muncipality v Eskom
Holdings Ltd
2018 (1) SA 1
(CC)). As the Court stated in
Fakie
:
9.
The test for disobedience of a civil order constitutes contempt has
come to be
stated is whether the breach was committed ‘deliberately
and mala fide’. A deliberate disregard is not enough, since
the
non-compliant may genuinely, albeit mistakenly, believe him or
herself entitled to act in the way claim to constitute the content.
In such a case good faith avoids the infraction. Even a refusal to
comply that is objectively unreasonable may be bona fide (although
unreasonableness could evidence lack of good faith).
10.
These requirements – that the refusal to obey should be both
wilful and mala fide,
and that unreasonable non-compliance, provided
it is bona fide, does not constitute contempt – accord with the
broader definition
of the crime, of which non-compliance with civil
orders is a manifestation. They show that the offences committed and
not by mere
disregard of a court order, but by the deliberate and
intentional violation of the court’s dignity, repute or
authority that
this evinces. Honest belief that non-compliance is
justified or proper is incompatible with that intent.
[11]
In
Consolidated Fish (Pty) Ltd v Zive & Others
1968 (2) SA
520
(CPD), the court made the point as follows:
The court will not order
the attachment of the respondent for contempt in not complying with
the judgement of the court if it appears
that the non-compliance is
not due to wilful disobedience but rather to a misunderstanding of
the true meaning of the judgement….
This seems to be merely
another way of stating the rule that, if a respondent can establish
bona fide is in relation to his disobedience
of the court order, he
will not be held to have been in contempt of that order.
[12]
The only issues arising in the present application is whether the
respondents refused to comply
with the reinstatement order and if so,
whether that refusal was deliberate and
mala fide
.
[13]
The parties are in disagreement over the interpretation of the deed
of settlement. First, there
is a material dispute about the scope of
the agreement. The respondents point to the preamble and in
particular, to the reference
of the dispute to arbitration and the
arbitration award dated 24 June 2011 and contend that on this basis,
the reference to ‘employees
affected’ in clause 1 of the
deed of settlement can only apply to those of the union’s
members who were party to the
arbitration proceeding. In short, the
respondents’ view is that the members on whose behalf the union
acts in these proceedings
were never part of the dispute referred to
arbitration and that the order of court does not apply to them. The
union contests this
interpretation and avers that all employees
affected by the implementation of the placement plan are entitled to
benefit from the
deed of settlement. Specifically, the union’s
view is that the words ‘all employees affected thereby’
means all
employees affected by the parity plan and its
implementation. Further, the union contests the respondent’s
right to exclude
from the scope of the agreement those employees who
were promoted or transferred out of the department, or who had
resigned or
been dismissed. More fundamentally however, the parties
are in disagreement about the meaning of the qualifier contained in
clause
1 of the agreement which the respondents contained subject the
implementation of the agreement to the provisions of the PSA and
Regulations. The respondents contend that the deed of settlement is
to read subject to these regulatory measures and that provisions
preclude them from making any adjustments without any job evaluation.
[14]
It is not for this court in these proceedings to determine which of
the contested interpretations
is correct. It seems to me, for present
purposes, that the dispute between the parties is a genuine dispute.
A cursory glance at
the applicable Regulation makes clear that for
any salary level of the post to be changed or upgraded, job
evaluation must be performed.
Moreover, the regulation makes clear
that parity (work of equal value remunerated equally) cannot be
applied without reference
to job evaluation. It would seem to me, and
again limited to present purposes, that the terms of the order
require a job evaluation
study conducted as part of compliance with
its terms. The respondent’s version, which I must necessarily
accept given that
these are motion proceedings, is that the job
evaluation results do not support the claim of those union members
who were party
to the arbitration proceedings and that there is
sufficient reason for not implementing the terms of the deed of
settlement in
respect of those employees. That being so, I fail to
appreciate how it can be said that the respondents have breached the
court
order. Even if they did, in my view, the respondents have
established that they have not acted in a
mala fide
manner or
conducted themselves in deliberate breach of the order. In short,
there is a true misunderstanding as to the nature and
extent of the
respondents’ obligations in terms of the deed of settlement,
and no willful disobedience on their part. The
application
accordingly stands to be dismissed on the basis that all it has not
been established beyond reasonable doubt that the
respondents are in
contempt of the order dated 8 February 2017.
[15]
Finally, in relation to costs, the court is a broad discretion in
terms of s 162 to make orders
for costs according to the requirements
of the law and fairness. It seems to me in the present instance that
those requirements
are best satisfied by each party bearing its own
costs. There is a collective bargaining relationship between the
parties and this
court is ordinarily reluctant to make orders for
costs that might save to prejudice that relationship. Although the
union has not
succeeded in the present application, the proceedings
were not initiated on a frivolous or vexatious basis.
I make the following
order:
1.
The application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: MR M Magoshi, Majang inc
For the respondent: Adv T
Skhosana and Adv Tilly instructed by State Attorney