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[2019] ZALCJHB 217
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Mahloko v Bhekani Abantu Services (Pty) Ltd (J1121/17) [2019] ZALCJHB 217 (2 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J1121/17
In the matter between:
JAN
LESIBA MAHLOKO
Applicant
and
BHEKANI
ABANTU SERVICES (PTY) LTD
Respondent
Heard:
30 August 2019
Judgment
delivered: 2 September 2019
JUDGMENT
VAN NIEKERK J
1]
This is an application to hold the respondents in contempt of court
on account of their failure
to comply with an order issued by this
court. The order, granted on 24 May 2018, makes a settlement
agreement concluded between
the parties an order of court.
[2]
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)). 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 war proper is incompatible with that intent.
[3]
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.
[4]
The relevant portion of the settlement agreement reads as follows:
6. The parties
hereby agree that the applicant shall be afforded by the respondent
to one extra day in his schedule with
effect from 20 December 2016.
[5]
In the present instance, the respondents averred that they have
complied with the
order of court. The deponent to the answering
affidavit, Mr. Douman, states that in the respondents’
interpretation of that
provision, and given particularly that the
applicant’s monthly paid, the respondent was required to give
the applicant one
extra shift per month. The respondent annexes
monthly timesheets to the answering affidavit in support of
compliance with the agreement
and specifically states that to date,
the applicant has never worked fewer than the 10 shifts agreed upon
between the parties in
terms of the agreement. The applicant disputes
this interpretation and appears to contend that he is entitled to one
extra day
in his schedule in every week.
[6]
In the absence of a replying affidavit, I must necessarily accept
that there is a
genuine dispute about the interpretation of the
agreement and that the first respondent has complied with what it
genuinely believes
to be its obligations under the agreement. In
those circumstances, and in accordance with the principles outlined
above, the respondents
cannot be held in contempt of court.
I make the following
order:
1.
The respondents are not guilty of contempt
of court.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: In person
For the respondent:
Company employee