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Memela v City of Tshwane Metropolitan Municipality and Another (J1429/19) [2019] ZALCJHB 344 (28 November 2019)

80 Reportability
Administrative Law
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Brief Summary

Contempt of Court — Requirements for contempt — Applicant sought to hold the acting City Manager in contempt for failing to comply with a court order to uplift her suspension — Court found that the order existed, was served, and that the acting City Manager was aware of the proceedings — The argument regarding non-joinder in personal capacity was dismissed as the acting City Manager was properly cited — Court held that the requirements for contempt were satisfied, and the application was upheld.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were an application in the Labour Court for an order declaring the Municipality’s acting City Manager, Mr Moeketsi M Ntsimane, guilty of contempt of court, arising from alleged non-compliance with an earlier Labour Court order directing that the applicant’s suspension be uplifted.


The applicant was Ms Nontobeko Memela, an employee of the City of Tshwane Metropolitan Municipality, and the respondents were the City of Tshwane Metropolitan Municipality (first respondent) and Mr Moeketsi Mosola (second respondent in the original suspension litigation), with relief in the contempt proceedings being sought against Mr Ntsimane as the incumbent acting in the relevant office at the time of the alleged non-compliance.


The procedural history was central to the dispute. The applicant was suspended in November 2018 and repeatedly challenged extensions of her suspension. A first urgent challenge to an extension of suspension was dismissed (extension held lawful). A later urgent application resulted in an order declaring her continued suspension unlawful and directing that it be uplifted immediately. The Municipality sought leave to appeal and was granted leave. The applicant then pursued a section 18 Superior Courts Act application for immediate implementation pending appeal, but that application was dismissed because no appeal had been properly pending at that stage due to the absence of a timeous notice of appeal. The Municipality later filed a late notice of appeal and condonation. The applicant then obtained an ex parte order calling on Mr Ntsimane to show cause why he should not be held in contempt, leading to the hearing of the contempt proceedings before Prinsloo J.


The general subject-matter of the dispute concerned compliance with a Labour Court order directing the upliftment of a senior employee’s suspension and, specifically, whether the continued suspension in the face of that order (and in the context of the Municipality’s attempted appeal) amounted to wilful and mala fide disobedience justifying a contempt finding and committal.


2. Material Facts


It was undisputed that the applicant was employed by the Municipality as Group Head: Human Settlements and that she was suspended on 30 November 2018 pending an investigation into allegations of financial misconduct.


It was also undisputed that the Municipality extended the applicant’s suspension on 28 February 2019 for a further three months in terms of clause 16.4 of the Disciplinary Procedure Collective Agreement, and that the applicant challenged this extension on an urgent basis. On 14 March 2019, Van Niekerk J held the extension lawful and valid, interpreting the collective agreement as permitting suspension for up to six months in two periods of three months each.


After the expiry of that second three-month period, the applicant contended that any further continuation of her suspension was unlawful. On 12 June 2019, the Municipality issued a further notice extending the suspension for another three months (to 12 September 2019). The applicant launched an urgent application which was heard on 18 June 2019, and on 20 June 2019 Whitcher J ordered that the applicant’s continued suspension was unlawful and that it be uplifted immediately.


The Municipality applied for leave to appeal on 24 June 2019, and leave was granted on 11 July 2019. The Labour Appeal Court rule requiring delivery of a notice of appeal within 15 days meant the notice of appeal had to be delivered by 1 August 2019, but by the time the applicant’s section 18 application was heard (5 September 2019), no notice of appeal had been filed, resulting in the dismissal of that application on 11 September 2019 on the basis that there was no appeal pending and therefore no automatic suspension of the Whitcher J order.


On 12 September 2019, the Municipality filed a notice of appeal and later filed an application for condonation for its lateness. Thereafter the applicant obtained an order on 18 September 2019 (Gush J) calling upon Mr Ntsimane to appear and show cause why he should not be held in contempt for failing to comply with the 20 June 2019 order.


It was not disputed that the 20 June 2019 order existed, and it was not disputed that it had not been complied with (the applicant remained suspended). Mr Ntsimane’s position included the contention that, because the Municipality had instituted appeal steps and leave to appeal had been granted, compliance was not required while the appeal was pending.


A further key factual aspect, treated by the court as material to whether there was a pending appeal, was that the Municipality had not filed the appeal record within the time required by the Rules of the Labour Appeal Court. Leave to appeal had been granted on 11 July 2019, and the record had to be delivered within 60 days (by 7 October 2019). It was common cause at the contempt hearing on 22 November 2019 that the record had not been served and filed, and that no extension had been sought from the respondent or the Judge President as contemplated in the Rules.


The court further relied on the fact that Mr Ntsimane signed a letter on 16 September 2019 extending the applicant’s suspension for a further three months, despite the earlier order that her continued suspension was unlawful and had to be uplifted immediately. The court also treated as material that, despite undertakings that charges would be served and a hearing would commence in September 2019, no charge sheet had been issued and no disciplinary hearing had commenced by late November 2019.


3. Legal Issues


The central legal questions were whether the requirements for contempt of court were established beyond reasonable doubt, namely whether there was (a) a court order; (b) service or knowledge of the order by the alleged contemnor; (c) non-compliance; and (d) whether the non-compliance was wilful and mala fide.


A further issue concerned whether the contempt application was defective due to alleged improper citation/joinder, specifically whether Mr Ntsimane had to be cited in his personal capacity and whether the proceedings could properly target him where the original order was made against the Municipality and the then City Manager, Mr Mosola.


Another issue was whether the Municipality’s appeal steps meant there was an appeal pending such that operation and execution of the Labour Court order was suspended, and, in particular, the effect of failing to lodge the appeal record within the prescribed period under the Rules for the Labour Appeal Court (including whether the appeal was deemed withdrawn).


The dispute involved both the application of legal principles to established facts (service/knowledge, non-compliance, effect of the LAC rules) and an evaluative determination on the mental element of contempt, namely whether the conduct was wilful and mala fide in light of the entire chronology and the respondents’ litigation conduct.


4. Court’s Reasoning


The court approached the matter by applying the established requisites for contempt of court and the criminal standard of proof because committal relief was sought. It relied on authority confirming that contempt requires proof beyond reasonable doubt of the existence of the order, knowledge or service, non-compliance, and wilfulness and mala fides.


On the existence of the order, the court held that the order of 20 June 2019 existed and this was not in dispute.


On service/knowledge, the court rejected the contention that there was no personal service. The applicant had filed proof of personal service, including Mr Ntsimane’s signature on the service and filing sheet. The court also considered Mr Ntsimane’s participation in the proceedings and his personal attendance at court as inconsistent with any claim of lack of service or awareness.


The court then addressed the citation/joinder point. It recorded the respondents’ reliance on the Constitutional Court’s discussion in Matjhabeng regarding the need, in appropriate cases, to cite officials personally, particularly where committal and section 12(1) rights are implicated. The court interpreted Matjhabeng as not laying down an inflexible rule of joinder in every contempt case, and noted the Constitutional Court’s express caveat that a rule nisi may in appropriate circumstances be adequate even where there was initially non-joinder. It reasoned that what was required was that an official acting in a nominal capacity be identified by name (because a nominal office cannot itself be held in contempt, only the incumbent can), and it found that Mr Ntsimane had been cited by name and had been called upon by the rule nisi to appear and answer the contempt charge. The court further referred to the Labour Court Practice Manual’s requirement that respondents in contempt applications be cited with full and proper names, even when cited with reference to an office.


On non-compliance, the court recorded that it was not disputed that the 20 June 2019 order had not been complied with and that the applicant remained suspended. The dispute therefore narrowed to whether the non-compliance was wilful and mala fide, and whether the respondents’ appeal-related steps provided a lawful basis to refuse compliance.


The court accepted as a general proposition that when an appeal is pending, the appellant is not compelled to comply with the order under appeal. However, it found that on the facts before it there was no appeal pending for purposes of suspending the operation and execution of the order. The court reasoned that the appeal process under the LAC rules required more than filing a notice of appeal: the appellant had to serve and file the record within 60 days of the granting of leave to appeal. Applying LAC Rule 5(8), the record was due by 7 October 2019, and it was common cause that the record had not been lodged. Applying LAC Rule 5(17), the court held that failure to lodge the record within time meant the appellant was deemed to have withdrawn the appeal, absent a timeous extension obtained by consent or an application to the Judge President. As no such steps had been taken, the appeal remained deemed withdrawn unless successfully reinstated.


Against this legal backdrop, the court rejected the respondents’ contention that the appeal was pending and that compliance with the 20 June 2019 order was not required. It treated the respondents’ request for a postponement—made after the applicant’s representatives raised the deemed-withdrawn consequence—as unjustified. The court emphasised that the respondents were legally represented and should have been aware of the applicable rules and time periods; it was not persuaded that they only discovered the position on the hearing date. The court also reasoned that it was too late to seek an extension under the rule because such steps had to occur within the prescribed period, and it considered that a postponement would undermine the LRA’s purpose of expeditious dispute resolution given the long duration of the applicant’s suspension.


In evaluating wilfulness and mala fides, the court attached significance to the fact that the 20 June 2019 order required the upliftment of the suspension, yet Mr Ntsimane signed a further extension letter on 16 September 2019, which the court considered plainly inconsistent with the order. The court accepted that even if Mr Ntsimane had initially believed in good faith that the noting of an appeal suspended the operation of the order, that position could not persist after 7 October 2019 when the appeal became deemed withdrawn due to the failure to lodge the record. The continued suspension thereafter, on the court’s analysis, demonstrated mala fides. The court also considered the respondents’ conduct in not advancing the disciplinary process—despite stated timelines for serving charges and commencing a hearing—and regarded this as supporting the inference that the appeal and litigation steps were being used to avoid the effect of the 20 June 2019 order rather than to pursue a genuine appeal.


The court rejected the submission that extending the applicant’s suspension under the disciplinary code was not defiance of the 20 June 2019 order. It reasoned that the order expressly declared the continued suspension unlawful and directed that it be uplifted immediately, and maintaining the suspension in those circumstances, where there was no appeal pending, amounted to disobedience.


On costs, the court exercised its discretion under section 162 of the LRA, considering both law and fairness. While it accepted that a costs order in the applicant’s favour was warranted given the respondents’ conduct and reliance on technical points, it expressed concern about burdening taxpayers with the costs of litigation. The court reasoned that the Municipality’s conduct had resulted in public funds being expended without advancing an expeditious disciplinary outcome, and noted the continued payment of a senior employee’s salary while suspended. Balancing these considerations, the court indicated an intention to order punitive costs de bonis propriis against both Mr Ntsimane (in his personal capacity) and the Municipality’s attorneys, but recognised that they had not been given notice of this intention and therefore made the costs order provisional, allowing them time to make submissions on why it should not be confirmed.


5. Outcome and Relief


The Labour Court dismissed the respondents’ application for postponement.


The court found Mr M Ntsimane guilty of being in contempt of the order dated 20 June 2019, on the basis that he suspended the applicant and kept her suspended contrary to that order.


The court ordered that Mr Ntsimane be committed to imprisonment for three months, wholly suspended on condition that he complied with the 20 June 2019 order within five days of the contempt order.


The court ordered costs on a punitive scale (attorney and client) to be paid de bonis propriis, jointly and severally, by Mr Ntsimane and Diale Mogashoa Attorneys, with the costs order expressly made provisional, and both Mr Ntsimane and Diale Mogashoa Attorneys were afforded seven days to make submissions as to why the order should not be confirmed.


Cases Cited


Bruckner v Department of Health and Others (2003) 24 ILJ 2289 (LC).


Matjhabeng Local Municipality v Eskom Holdings Limited and Others; and Mkhonto and Others v Compensation Solutions (Pty) Limited (CCT 217/15; CCT 99/16) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC).


SABC v CCMA and Others (Unreported, Labour Court case number J 2055/19, 18 October 2019).


Legislation Cited


Superior Courts Act 10 of 2013 (section 18).


Labour Relations Act 66 of 1995 (as amended) (section 162).


Rules of Court Cited


Rules for the Labour Appeal Court, Rule 5(1).


Rules for the Labour Appeal Court, Rule 5(8).


Rules for the Labour Appeal Court, Rule 5(17).


Practice Manual of the Labour Court of South Africa (April 2013).


Held


The court held that the requisites for contempt were satisfied beyond reasonable doubt: the order of 20 June 2019 existed; Mr Ntsimane had knowledge of it through personal service and participation; there was non-compliance because the applicant remained suspended; and the continued suspension, particularly after the appeal became deemed withdrawn for failure to lodge the record timeously, constituted wilful and mala fide disobedience.


The court further held that the technical objection regarding citation and alleged non-joinder did not render the proceedings fatally defective in the circumstances, because Mr Ntsimane was cited by name and was called upon by the rule nisi to appear and answer the contempt allegation.


The court held that the Municipality’s failure to lodge the appeal record within the prescribed time, without securing an extension, triggered the consequence that the appeal was deemed withdrawn, with the result that there was no appeal pending to suspend the operation and execution of the 20 June 2019 order.


LEGAL PRINCIPLES


Contempt of court, where committal is sought, requires proof beyond reasonable doubt of the existence of the order, knowledge or service, non-compliance, and that the non-compliance was wilful and mala fide.


In contempt proceedings against public officials or office-bearers, the official concerned must be identifiable and properly cited, and a rigid rule of joinder is not applied inflexibly in every case; the adequacy of a rule nisi procedure and the particular circumstances are relevant to whether joinder is necessary.


Under the Rules for the Labour Appeal Court, an appeal is not pursued merely by noting it; the appellant must comply with record-filing obligations. Failure to lodge the record within the prescribed period, absent a timeous extension obtained by consent or by application to the Judge President, results in the appeal being deemed withdrawn, and, in that posture, the order under appeal is not suspended by an “appeal pending” for purposes of non-compliance.


The Labour Court’s costs discretion under section 162 of the Labour Relations Act is exercised according to law and fairness, and may extend to punitive costs and de bonis propriis orders in appropriate circumstances, subject to procedural fairness where such personal costs orders are contemplated.

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[2019] ZALCJHB 344
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Memela v City of Tshwane Metropolitan Municipality and Another (J1429/19) [2019] ZALCJHB 344 (28 November 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No:  J 1429/19
NONTOBEKO
MEMELA
Applicant
and
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
First
Respondent
MOEKETSI
MOSOLA
Second

Respondent
Heard:
22 November
2019
Delivered:
28 November 2019
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The Applicant approached this Court seeking an order to find the
First
Respondent’s (the Municipality) acting City Manager, Mr
Moeketsi Ntsimane (Mr Ntsimane) guilty of contempt of Court.
[2]
Mr Ntsimane opposed the application.
Brief
history:
[3]
This matter has a litigious history, which was set out in a previous
judgment
of this Court. However, in view of the facts of this
application and the nature of the relief sought, it is necessary to
set out
the chronology of events once again to put this application
in proper context.
[4]
The Applicant is employed by the Municipality as Group Head: Human
Settlements.
On 30 November 2018, she was suspended on allegations of
financial misconduct, pending an investigation into the alleged
transgressions.
[5]
On 28 February 2019, the Municipality issued a notice to the
Applicant
extending her suspension for a further period of three
months as per clause 16.4 of the ‘Disciplinary Procedure
Collective
Agreement’ (the collective agreement). In the said
letter it was stated that:
‘
As per the
stipulations of Clause 16.4 of the Disciplinary Procedure Collective
agreement, I am hereby extending the suspension
for a further period
of three (3) months. This extension is based on the following
circumstances outside the control of the city:
1.    All
the investigations into the allegations of misconduct have not been
finalized; and;
2.    The
appointment of the Chairperson took longer than anticipated, as the
original candidate could not commit
to a timeframe to conduct the
hearing, and a new Chairperson had to be identified. The City could
not identify a potential Chairperson
within a municipality, as both
the Governance & Support Officer and the Chief Operating Officer
were conflicted.
All the conditions
previously set down in the initial suspension, are still valid and in
force.
The formal charge sheet
and full details of the hearing will be communicated as soon as
possible.’
[6]
The Applicant was of the view that the extension of her suspension
was
unlawful because she could only be suspended in circumstances
where the disciplinary hearing had already been convened and she
approached this Court on an urgent basis under case number J 540/19
seeking an order to declare the extension of her suspension
unlawful.
[7]
On 14 March 2019, the Court, per Van Niekerk J, declared the
extension
lawful and valid and held that it seems that the intention
of the collective agreement was that any period of suspension may not

exceed six months, being two periods of three months each and that
the Municipality was entitled to extend the Applicant’s

suspension by a further three months.
[8]
On 4 June 2019, after the expiry of the second three-month period,
the
Applicant’s attorneys addressed a letter to the
Municipality advising that her suspension exceeded a period of six
months
and that it was unlawful. The Applicant received no feedback
from the Municipality and when no further steps were taken to
institute
disciplinary action, the Applicant approached this Court on
12 June 2019 for an order
inter alia,
declaring her suspension
unlawful. The matter was enrolled for hearing on 18 June 2019.
[9]
On 12 June 2019, the Applicant was issued with another notice of
further
suspension, the wording of which was
verbatim
the
notice issued on 28 February 2019. The Applicant’s suspension
was extended for a further period of three months, thus
until 12
September 2019.
[10]
The urgent application was heard on 18 June 2019 and on 20 June 2019
this Court per Whitcher
J, found the Applicant’s continued
suspension unlawful and ordered the Municipality to uplift it
immediately.
[11]
On 24 June 2019, the Municipality filed an application for leave to
appeal against the
whole of the said judgment and orders. Leave to
appeal was granted on 11 July 2019.
[12]
The
Applicant subsequently approached this Court in terms of the
provisions of
section
18 of the Superior Courts Act
[1]
for
an order for the immediate implementation of the judgment and order
of Whitcher J, pending the outcome of the appeal.
[13]
Rule 5(1) of the Rules for the Labour Appeal Court (LAC) provides
that:
‘
Every
appellant who has a right of appeal must deliver a notice of appeal
within 15 days, or any longer period that may be allowed
by the
court, on good cause shown, after leave to appeal has been granted.’
[14]
In accordance with the provisions of the aforesaid Rule, the
Municipality had to deliver
its notice of appeal by 1 August 2019.
[15]
The urgent application filed in terms of section 18 of the Superior
Courts Act was set
down for hearing on 5 September 2019, by which
date the Municipality had not yet filed or delivered a notice of
appeal. The effect
of the failure to deliver a notice of appeal as
per Rule 5(1) of the LAC Rules, is that there was no appeal pending,
thus the operation
and execution of the Court order of 20 June 2019
was not suspended by operation of law.
[16]
There was no need for this Court to consider whether there were
exceptional circumstances,
as provided for in section 18 of the
Superior Courts Act, as there was no appeal pending and the Court
found that absent a pending
appeal, the necessity to bring the
application in terms of section 18 fell away.
[17]
As there was no appeal pending, the application in terms of section
18 of the Superior
Courts Act was dismissed on 11 September 2019.
[18]
On 12 September 2019, the Municipality filed its notice of appeal
with the LAC and an application
for condonation for the late filing
thereof was filed shortly thereafter.
[19]
The Applicant thereafter approached this Court on an
ex-parte
basis to find Mr Ntsimane guilty of contempt of Court.
[20]
On 18 September 2019, an order was issued by Gush J, calling upon Mr
Ntsimane to appear
in Court on 22 November 2019 to show cause why he
should not be found guilty of contempt of Court for failing to comply
with the
order of this Court, issued on 20 June 2019.
Contempt
of Court
[21]
In
Bruckner
v Department of Health and Others
[2]
the
Court dealt with the requirements for contempt and it was held that:
‘
It
is trite that an applicant in a contempt of court application must
prove beyond a reasonable doubt that the respondent is in
contempt.
An applicant must show:
(a)
that the order was granted against the respondent;
(b)
that the respondent was either served with the order or informed of
the grant of the
order against him and could have no reasonable
ground for disbelieving the information; and
(c)
that the respondent is in wilful default and mala fide disobedience
of the order.’
[22]
In
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; and in
Mkhonto and Others v Compensation Solutions (Pty) Limited

(Matjhabeng)
[3]
the
Constitutional Court confirmed the requisites for contempt of court
as follows:
‘
I
now determine whether the following requisites of contempt of court
were established in
Matjhabeng
: (a) the existence of the
order; (b) the order must be duly served on, or brought to the notice
of, the alleged contemnor; (c)
there must be non-compliance with the
order; and (d) the non-compliance must be wilful and
mala
fide
. It needs to be stressed at the outset that, because the
relief sought was committal, the criminal standard of proof −
beyond
reasonable doubt − was applicable.’
[23]
The Applicant has to prove the aforesaid
requisites beyond reasonable doubt.
Analysis
[24]
Mr Ntsimane opposed the application and he raised mainly technical
defences, which I will
deal with in turn, as I will with the
aforesaid requisites for contempt of court.
Existence
of the Court order
[25]
In casu
the existence of the Court order dated 20 June 2019 is
not disputed.
Service
of the Court order
[26]
Mr Ntsimane took issue with the service of the Court order and his
case is two-fold.
[27]
Firstly, Mr Ntsimane claims that there was no personal service of the
Court order. Based
on the facts before me, there is no merit in this
complaint as the Applicant filed proof that Mr Ntsimane was indeed
personally
served with the Court order and that he had attached his
signature to the service and filing sheet. Furthermore, not only did
Mr
Ntsimane depose to and file an opposing affidavit in this
application, he was personally present in Court on 22 November 2019.
This is hardly the conduct of a party that can complain that he was
not personally served or that he was unaware of the proceedings.
[28]
Secondly, Mr Ntsimane took issue with the citation of the parties and
his case is that
in respect of the order that was issued on 20 June
2019, the Respondents were the Municipality and the City Manager at
the time,
Mr Moeketsi Mosola. His case is that the Applicant failed
to cite him in his personal capacity as a party to the contempt
proceedings,
but instead seeks an order for contempt against him in
his official capacity as Acting City Manager. According to Mr
Ntsimane,
this renders the application fatally defective.
[29]
It is evident from the Applicant’s founding affidavit that the
First Respondent is
cited as the Municipality and the Second
Respondent as: “
Dr Moeketsi Mosola (in the main application)
a municipal manager within the meaning of section 55 of the Systems
Act. The Second
Respondent is cited in his capacity as the
functionary who took the decision to suspend me. The Second
Respondent is no longer
in the employ of the First Respondent. Mr
Moeketsi Ntsimane is currently acting in the Second Respondent’s
position, as such
relief is now sought against Ntsimane by virtue of
the position he currently holds
.”
[30]
Mr Basson for Mr Ntsimane, submitted that in contempt of court
applications, where the
persons targeted are officials, their
non-joinder in their personal capacities is fatal to the application
as such officials must
be cited in their personal capacities, by
name, and not in their nominal capacities. In support of this
argument, reliance was
placed on the
Matjhabeng
judgment.
[31]
In my view, reliance placed on
Matjhabeng
in
support of this argument is misplaced.
[32]
In
Matjhabeng
the Constitutional Court held that:
‘
It
follows that the objection of non-joinder by the Municipality
in
Matjhabeng
,
specifically where the potential contemnor’s section 12(1)
rights are in the balance, is not a purely idle or technical
one −
taken simply to cause delays and not from a real concern to safeguard
the rights of those concerned.  There is
however a caveat: this
should not be understood to suggest that joinder is always
necessary.  There may well be a situation
where joinder is
unnecessary, for example, when a rule
nisi
is
issued, calling upon those concerned to appear and defend a charge or
indictment against them.  Undeniably, in appropriate

circumstances a rule
nisi
may
be adequate even when there is a non-joinder in contempt of court
proceedings.  This means that the rule is not inflexible.’
[33]
In casu,
Mr Ntsimane is cited as Respondent and an order was
issued by this Court on 18 September 2019 for him to appear in Court
on 22 November
2019 to show cause why he should not be found guilty
of contempt of Court for failing to comply with the Court order dated
20 June
2019.
[34]
Mr Ntsimane’s argument that his non-joinder in his personal
capacity is fatal to
the application is without merit and is an
incorrect interpretation of the principles set out in
Matjhabeng.
[35]
The Constitutional Court held that officials concerned should have
been cited in their
personal capacities by name and not in their
nominal capacities. In my view, this means that for an applicant to
succeed with an
application for contempt, he or she has to cite an
official, acting in a nominal capacity, by name and not only by
reference to
the official’s nominal capacity. It is
inconceivable that a nominal capacity could be held in contempt, but
the incumbent
of such a position could be held in contempt, hence the
need to cite by name.
[36]
The
Practice Manual of the Labour Court
[4]
also provides that the respondent in a contempt application, albeit
in the capacity of the CEO, Director General, owner or proprietor,
be
cited with reference to the person’s full and proper names.
[37]
In casu,
Mr Ntsimane was cited in his capacity as the
functionary who took the decision to suspend the Applicant, and he
was cited by name.
There is no merit in the argument regarding
citation.
[38]
I am satisfied that Mr Ntsimane has knowledge of the Court order.
Non-compliance
with the Court order
[39]
It is not disputed that the Court order of 20 June 2019 has not been
complied with and
the only issue remaining that I have to consider is
whether the non-compliance with the Court order is wilful and
mala
fide.
[40]
The main defence raised by Mr Ntsimane is that as part of the
substantive and procedural
law, he cannot be held in contempt of
Court where the Municipality instituted steps to appeal the judgment
that was granted in
favour of the Applicant and for which the same
Court has granted the Municipality leave to appeal.
[41]
The Respondents’ case is that the Municipality has noted its
appeal and applied for
condonation for the late noting of the appeal,
wherefore the appeal is still pending and with the appeal pending, Mr
Ntsimane is
not compelled to comply with the order of 20 June 2019.
The only way that he could be compelled to comply with the Court
order,
is if the Applicant approaches the Court for an order to
execute the judgment granted in her favour, pending the finalisation
of
the appeal. The Applicant lodged such an application, but it was
dismissed.
[42]
Mr Ntsimane submitted that there was no legal or factual basis for
this Court to find him
in contempt of a Court order.
[43]
It is correct that where an appeal is pending, the party seeking to
appeal an order or
judgment is not compelled to give effect to the
order or judgment against which the appeal is pending.
[44]
In casu,
however there is no appeal pending.
[45]
The Municipality did not note the appeal timeously, for which an
application for condonation
was filed and which has not yet been
considered by the LAC. Noting of an appeal is however not where the
appeal process ends. The
procedure prescribed for an appeal requires
that after an appeal has been noted, the appellant must serve a copy
of the record
on each of the respondents and file a copy with the
Registrar of the LAC.
[46]
Rule 5(8) of the Rules for the LAC provides that:
‘
The
record must be delivered within 60 days of the date of the order
granting leave to appeal, unless the appeal is noted after
a
successful petition for leave to appeal, in which case the record
must be delivered within the period fixed by the court under
rule
4(9).’
[47]
In casu,
leave to appeal was granted on 11 July 2019. In
accordance with the provisions of the aforesaid Rule, the
Municipality had to serve
and file the record in the appeal by no
later than 7 October 2019. When this matter was enrolled for hearing
on 22 November 2019,
it was common cause that the record in the
appeal had not been served and filed.
[48]
The effect of the failure to serve and file the record within the
prescribed time, is set
out in Rule 5(17) of the LAC Rules, which
provides that:
‘
If the appellant
fails to lodge the record within the prescribed period, the appellant
will be deemed to have withdrawn the appeal,
unless the appellant has
within that period applied to the respondent or the respondent's
representative for consent to an extension
of time and consent has
been given. If consent is refused the appellant may, after delivery
to the respondent of the notice of
motion supported by affidavit,
apply to the Judge President in chambers for an extension of time.
The application must be accompanied
by proof of service on all other
parties. Any party wishing to oppose the grant of an extension of
time may deliver an answering
affidavit within 10 days of service on
such party of a copy of the application.’
[49]
The Municipality has not applied to the Applicant or the Judge
President for consent to
an extension of time, wherefore the appeal
is deemed to be withdrawn. The appeal will remain deemed to be
withdrawn until and unless
there is a successful substantive
application to re-instate the appeal.
[50]
The effect of the failure to lodge the record within the prescribed
period is that the
appeal is deemed withdrawn and for purposes of
this application, there is no appeal pending. The operation and
execution of the
Court order of 20 June 2019 is not suspended by
operation of law and Mr Ntsimane’s averment that he cannot be
held in contempt
of Court where the Municipality instituted steps to
appeal the judgment that was granted in favour of the Applicant, is
ill-advised
as the appeal is deemed to be withdrawn.
[51]
The fact that the Respondents’ appeal is deemed to be withdrawn
with effect from
7 October 2019 was not known to them and when the
issue was raised by the Applicant’s legal representatives, Mr
Basson requested
a postponement for the purpose of complying with the
Rules of the LAC.
[52]
The request for postponement was opposed and Mr Mthimkhulu for the
Applicant who submitted
that the Respondents have no intention of
allowing the Applicant to return to work or to pursue the appeal and
if postponement
is granted for the Respondents’ to file an
application to reinstate the deemed withdrawn appeal, it will prolong
the Applicant’s
suspension indefinitely.
[53]
I am not inclined to grant the postponement sought by the Respondents
for a number of reasons.
[54]
Firstly, the
Respondents are legally
represented and I find it difficult to accept that they could be
unaware of the provisions of the Rules
of the LAC, that they had no
idea that the record had to be filed within 60 days or the fact that
because the record was not filed,
the appeal was deemed to be
withdrawn. It cannot be that they only discovered this state of
affairs on 22 November 2019, six weeks
after the record had to be
filed and only because it was raised by the Applicant’s legal
representatives.
[55]
Secondly, the conduct of the Respondents
displays a disregard for Rules and timeframes, notwithstanding the
fact that the Rules
of the LAC are no secret and must be adhered to
when pursuing an appeal. The noting of the appeal was late and
subsequent to filing
the notice of appeal and condonation
application, no effort whatsoever was made to pursue the appeal by
filing the record. I fail
to comprehend why a postponement should be
granted to allow the Respondents an opportunity to comply with the
Rules which they
knew of and which they should have complied with
from the onset, but consistently failed to do so.
[56]
In any event, it is too late to comply with the provisions of LAC
Rule 5(17) as it the
extension had to be sought within the prescribed
period, which period is long gone.
[57]
Thirdly, I have already alluded to the sequence of events subsequent
to the Court order
of 20 June 2019 and the noting of the appeal on 12
September 2019. On 16 September 2019, Mr Ntsimane signed a letter,
addressed
to the Applicant, stating that he was extending her
suspension for a further period of three months because the
investigation into
allegations of misconduct against her has not been
finalised and that the draft charges would be served on her before
the end of
September 2019.
[58]
This letter flies in the face of the letter written by the
Respondents’ attorneys
on 12 September 2019, wherein they
stated that the Municipality would be commencing with the
disciplinary hearing against the Applicant
in the next week or two
and that she would be served with a charge sheet by close of business
on 17 September 2019.
[59]
It is evident from the letter signed by Mr Ntsimane that the
Applicant was placed on further
suspension because the investigation
into the allegations of misconduct against her has not been
finalised, but it was also communicated
to her that the draft charges
would be served on her before the end of September 2019. It seems
logical that charges can only be
drafted once an investigation into
the allegations of misconduct has been finalised and based on the
letters issued by the Municipality’s
attorneys as well as by Mr
Ntsimane, the charge sheet was to be served either by close of
business on 17 September 2019 or before
the end of September 2019 and
the disciplinary hearing was to commence within a week or two from 12
September 2019. To date, more
than two months later, the Respondents
have not issued the Applicant with a charge sheet and no disciplinary
hearing has commenced.
[60]
I have to
endorse the aim of the Labour Relations Act
[5]
(LRA) namely to resolve labour disputes speedily and without delay.
Granting postponement in a case like this would not be in the

interest of justice as it would undermine the statutory purpose of
expeditious dispute resolution, a factor that weighs heavily
in the
Applicant’s favour.
[61]
It is for these reasons that I am not inclined to grant postponement.
[62]
The Court order of 20 June 2019 was to the effect that the continuing
suspension of the
Applicant is unlawful and the Respondents were
ordered to uplift the Applicant’s suspension with immediate
effect.
[63]
On 16 September 2019, Mr Ntsimane signed a letter wherein he was
extending the Applicant’s
suspension for a further period of
three months. Clearly the extension of the Applicant’s
suspension was not in compliance
with the Court order of 20 June
2019.
[64]
The only remaining question is whether Mr Ntsimane’s conduct in
extending the suspension
of the Applicant constituted a wilful and
mala fide
disobedience of the Court order.
[65]
Even if I were to accept that, at the time that
he had issued the letter to the Applicant, Mr Ntsimane was of the
bona fide
belief
that the noting of the appeal suspended the execution and operation
of the Court order that declared
the continuous suspension of
the Applicant unlawful and ordered its upliftment with immediate
effect, such a belief cannot rescue
him.
[66]
It is evident from the Respondents’ conduct that
notwithstanding letters to the effect
that the Applicant would be
charged and a disciplinary hearing be held before the end of
September 2019, they are not serious to
initiate disciplinary action
and to bring her suspension to an end. The Applicant was suspended on
30 November 2018 and almost
one year later, the Respondents are not
one step closer to charge her with misconduct and to hold the
disciplinary hearing, let
alone to finalise the disciplinary
proceedings.
[67]
If Mr Ntsimane believed as at 16 September 2019 that, because of the
pending appeal he
could act contrary to the Court order, this
position had changed on 7 October 2019, when the appeal had become
deemed to be withdrawn.
[68]
In view of the fact that the Respondents did not pursue the appeal as
they were required
to do in terms of the LAC Rules and that as a
result the appeal is deemed withdrawn, Mr Ntsimane can no longer
believe that he
is entitled to act in contravention of the Court
order of 20 June 2019.
[69]
To keep the Applicant suspended after the
appeal is deemed to be withdrawn, shows that Mr Ntsimane acted
mala
fide
when he extended the
Applicant’s suspension in contravention of the order issued by
this Court on 20 June 2019.
[70]
On the facts placed before me, it is highly
questionable that the Respondents filed the leave to appeal with the
intention to pursue
it. All indications are, considering the facts
holistically, that the leave to appeal was filed for the sole purpose
of circumventing
the effect of the Court order of 20 June 2019.
[71]
Mr Basson submitted that extending the
suspension of the Applicant is nothing more than a suspension in
terms of the applicable
disciplinary code and that this is not in
defiance of the Court order of 20 June 2019. There is no merit in
this argument. In my
view, Mr Ntsimane acted in wilful and
mala
fide
disobedience of the Court order
of 20 June 2018 when he persisted with the Applicant’s
suspension in defiance of the order
that specifically ordered the
continued suspension of the Applicant unlawful and that it should be
uplifted, in circumstances where
there is no appeal pending and the
Court order remained enforceable.
Costs
[72]
I
nsofar as costs are concerned, this Court has a
broad discretion in terms of section 162 of the LRA to make orders
for costs according
to the requirements of the law and fairness.
[73]
Mr Mthimkhulu submitted that the Respondents should pay the
Applicant’s costs on
a punitive scale. This is so because the
Applicant’s attorneys have written more than five letters to
the Respondents urging
them to comply with the Court order of 20 June
2019 and to allow the Applicant to return to work, with the only
response being
to extend the Applicant’s suspension. In the
same breath, the Respondents took no steps to pursue the appeal and
their conduct
is clearly a strategy to keep the Applicant suspended
for an indefinite period. Before this Court nothing but technical
arguments
were put forward and there is no reason not to award costs
on a punitive scale.
[74]
There is merit in the argument that costs should be awarded in favour
of the Applicant.
However, I fail to comprehend why taxpayers and
ratepayers of the City of Tshwane should be burdened with a cost
order. I further
fail to comprehend how taxpayers’ money is
being spent by delaying a disciplinary hearing in circumstances where
the
Applicant was suspended as far back as
November 2018 under the premise that this was a precaution while an
investigation was ongoing
and where she was informed that the
disciplinary hearing would commence in September 2019. By late
November 2019, no steps were
taken to charge the Applicant or to hold
the disciplinary hearing as promised.
[75]
By delaying the disciplinary action for a full
year, the Municipality and effectively the taxpayer retained the
financial obligation
to pay the Applicant a salary at a senior level,
with no value added by the Applicant. The taxpayer does not
have
the benefit of the services rendered by the Applicant, but is paying
her salary for a full year whilst she is on suspension,
nor does the
taxpayer have control over the period of suspension and the
Respondents’ failure to hold a disciplinary hearing
timeously.
[76]
In casu,
taxpayers monies are being spent on litigation that
is fruitless and seeks to avoid or delay a disciplinary hearing. In
this application
the Respondents raised technical points lacking in
merit and this at a time where this Court would have expected that
the Municipality
would resolve and finalise the disciplinary process
as expeditiously and inexpensively as possible. In fact, it had
almost a year
to do so since the Applicant was placed on suspension.
[77]
Considerations
of good corporate governance and the moral obligation owed to
employees, demand that respect be accorded to employees
and that the
strategy of denying an employee effective access to justice by the
application of corporate muscle must be avoided.
This is not to say
that an employer ought not to discipline its employees where
circumstances warrant such, but an employer should
not employ a
conscious strategy to deny an employee access to justice by unduly
delaying a disciplinary hearing and by imposing
an indefinite
suspension
[6]
.
[78]
Regrettably taxpayers will be burdened with the costs of this
litigation and I have already
alluded to the fact that burdening
taxpayers will not serve the requirement of fairness. Taxpayers have
no say in how litigation
is handled and this is a case where
taxpayers will be unfairly prejudiced if the Municipality is to pay
the costs.
[79]
I intend to make an order for costs, on a punitive scale,
de bonis
propriis
for the Municipality’s attorneys and Mr Ntsimane
in his personal capacity to pay the costs of this application. Since
the
Municipality’s attorneys and Mr Ntsimane were not given
notice of my intention to make such an order, I intend to afford them

seven days within which to make submissions as to why an order in the
terms that I intend making should not be confirmed.
[80]
In the premises I make the following order:
Order
1.   The
Respondents’ application for postponement is dismissed;
2.
The Second Respondent, Mr M Ntsimane, is found guilty of being in
contempt of the order of this Court dated
20 June 2019 by suspending
the Applicant and by keeping her suspended;
3.
Mr M Ntsimane is committed to imprisonment for a period of three
months, which sentence is wholly suspended on condition
that he
complies with the Court order of 20 June 2019 within five days from
date of this order;
4.
The costs of this application are to be paid
de
bonis propriis
jointly and severally by
Mr Ntsimane and Diale Mogashoa Attorneys, the one paying the other to
be absolved, on the scale as between
attorney and client;
5.
The order for costs in paragraph 4 above is provisional and both Mr
Ntsimane and Diale Mogashoa Attorneys are afforded
seven days to make
submissions as to why the order should not be confirmed.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Mr L Mthimkhulu of Werksmans Attorneys
For the Respondents:
Advocate J Basson with Advocate I Hlatletoa
Instructed
by: Diale Mogashoa Attorneys
[1]
Act
10 of 2013.
[2]
(2003)
24 ILJ 2289 (LC).
[3]
CCT
217/15; CCT 99/16)
[2017] ZACC 35
;
2017 (11) BCLR 1408
(CC);
2018
(1) SA 1
(CC).
[4]
April
2013.
[5]
Act
66 of 1995 as amended.
[6]
SABC
v CCMA and Others-Unreported
Case
number J 2055/19, handed down on 18 October 2019.

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