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[2020] ZALCJHB 49
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Shashe Trading (Pty) Ltd t/a Mopani Superstar, Mopani Tops, Giyani Superspar and Giyani Tops v Economic Pioneers Transformation Aid South African Workers Union and Another; In re: Shashe Trading (Pty) Ltd v Mabasa (J1991/19) [2020] ZALCJHB 49 (20 February 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
J
1991/19
In
the matter between:
SHASHE TRADING (PTY)
LTD t/a
MOPANI SUPERSTAR,
MOPANI TOPS, GIYANI
SUPERSPAR AND GIYANI
TOPS Applicant
and
ECONOMIC PIONEERS
TRANSFORMATION
AID SOUTH AFRICAN
WORKERS UNION
(EPTASAWU) First
Respondent
AUSTIN
MABASA Second
Respondent
In
re
SHASHE
TRADING (PTY)
LTD Applicant
and
AUSTIN
MABASA Respondent
Heard
:
14
February 2020
Delivered
:
20 February 2020
Summary:
Return day – Strike interdict – confirmation academic.
The only live issue is costs
– rule discharged with no order as
to costs. Contempt proceedings, the order not clear in respect of
Mabasa – regarding
performing trade union duties. Contempt
application dismissed with no order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1]
Before me serves two applications. The first one is the return day
for a strike interdict
granted on 30 September 2019. The second one
is the contempt application against Austin Mabasa (Mabasa) for breach
of the order
of 30 September 2019. Both applications are opposed by
Mabasa and the first respondent, Economic Pioneers Transformation Aid
South
African Workers Union (the trade union).
Background
facts
[2]
On 30 September 2019, this Court issued a
rule nisi
which interdicted office bearers and/or officials of the trade union
and Mabasa from damaging property belonging to the applicant.
Further, interdicting the office bearers and officials of the trade
union and Mabasa from entering and or blockading certain named
premises of the applicant. Further, the Court interdicted
participation in an unprotected strike action.
[3]
What led to the
rule
nisi
being granted was that the trade
union sought to be granted organizational rights. On 16 august 2019,
Mabasa and other employees
blockaded the main entrance of the
applicant’s premises and demanded receipt of a memorandum. This
action prevented customers
from entering the premises of the
applicant. These actions continued on 23 September 2019. The
employees who participated in the
actions were issued with final
written warnings. Eight of the employees, who demonstrated aggression
during the actions were dismissed
for misconduct. On 27 September
2019 Mabasa arrived at the premises and indicated that the applicant
would be closed down unless
it immediately re-instated the dismissed
employees. Attempts were made to remove Mabasa on the day. He
threatened to return on
30 September 2019 to close down one of the
shops owned by the applicant. Following that threat, the applicant
approached this Court
for an order. On the return day, the strike was
long called off; the employees were dismissed and the actions that
led to the
rule nisi
being issued dissipated.
Evaluation
Confirmation of rule
nisi
[4]
With regard to the strike action and
actions of blockading and damaging property, much as the respondents
do not seriously challenge
the acts, it became common cause on the
return day that all those belongs in history. That being the case,
there is no longer a
live dispute between the parties in that regard.
The only live issue is that of costs. In that regard, it would be
purely academic
to confirm the rule. Thus, I intend to discharge the
rule with no order as to costs.
[5]
When it comes to costs, this Court retains
a very wide discretion. I do accept that the actions of the
respondents, prompted the
applicant to approach this Court. I also
accept that the opposition of the order was unreasonable. There is no
collective bargaining
relationship between the trade union and the
applicant. With all that, I still take a view that a cost order is
not warranted in
this matter.
Contempt application
[6]
The allegation around this application is
that Mabasa was ordered by this Court on 30 September 2019 not to
enter the premises of
the applicant. Despite that on 4 October 2019,
at or around 10:00 am, Mabasa entered the premises and attempted to
disrupt a disciplinary
hearing which was underway at that time.
Mabasa allegedly left an hour later after the police were asked to
interfere. Later on
in a media release, it was alleged that Mabasa
referred to the order of this Court as being a fake order.
[7]
Mabasa
does not deny entering the premises, but he states that the trade
union members were to appear on the day and he wanted to
seek clarity
as to whether the union can attend to assist its members or not. In
fact, the letter that was handed to the chairperson
of the hearing
was more a request for particulars for the hearing. What is clear to
the Court is that on the day in question a
disciplinary hearing was
scheduled. One of the functions of a trade union, registered or
unregistered is to represent its members
during disciplinary
hearing
[1]
. The reason this
Court ordered that Mabasa should not enter the premises, as it was
alleged Mabasa was entering the premises to
act unlawfully, was for
him not to enter with an intention to act unlawfully. In fact, in my
view, the order must be understood
as such.
[8]
As I pointed out, the reason Mabasa entered
the premises on the day in question was to assist the members of the
trade union, an
act that is not unlawful. I do not believe that on
any interpretation the order gagged Mabasa from lawful entrance.
Where a party
ignores the terms of a court order, such a party is
guilty of contempt. On the preponderance of probabilities, Mabasa was
there
for a lawful purpose. The fact that the media recorded that
Mabasa referred to the order as a fake order is a red herring. If he
was defiant of the order, Mabasa would have returned to the premises
on 1 or 2 or 3 October. The fact that he returned on 4 October
when a
disciplinary hearing of the trade union members was scheduled lends
credence to Mabasa’s version of why he on that
day entered the
premises. It appears to be so that the persons tasked with the
running of the disciplinary hearing may have called
upon the police
for no valid reasons. All what was required was for the Chairperson
of the internal hearing to rule on the request
by Mabasa. What
then follows is the question: Is the Mabasa guilty of contempt
though?
[9]
This is the question I am now turning to.
The requisites of a contempt order are (a) the existence of the
order; (b) the order must
be duly served on, or brought to the notice
of the contemnor; (c) there must be non-compliance with the order;
and (d) the non-compliance
must be willful and
mala
fide
.
[10]
It
was held in
Pheko
v Ekurhuleni Municipality (No 2)
[2]
that while the courts do not countenance disobedience of judicial
authority, it needs to be stressed that contempt of court does
not
consist of mere disobedience of a court order, but of the
contumacious disrespect of judicial authority. All that is required
is evidence that the contemnor is obstinately disobedient or
rebellious. It ought to be shown that on the balance of probabilities
the non-compliance was born out of willfulness and
mala
fide
.
[11]
As
to the standard of proof, the applicant before me is seeking an
imposition of a fine or incarceration and as such, it must prove
beyond reasonable doubt that the first respondent is guilty of
contempt.
[3]
The applicant
failed to prove beyond any reasonable doubt that when Mabasa entered
the premises on the day in question, he did
that in order to carry
out an unlawful act, it being the basis of him being gagged in the
first place. His version that he went
to the premises in order to
champion the rights of the members of the trade union is reasonable
and possibly true. As a result,
Mabasa cannot be guilty of contempt.
[12]
For all the reasons set out above, I am
unable to confirm the order of 30 September 2019 nor to find that
Mabasa is guilty of contempt.
[13]
In the results the following order is made:
Order
1. The
rule nisi
issued on 30 September 2019 is hereby discharged
with no order as to costs.
2. The
contempt application is dismissed also with no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate
M Van As.
Instructed
by: Moss
Marsh & Georgiev, Johannesburg.
For
the Respondents: Mr
Austin Mabasa (Union Official).
[1]
See
MacDonald’s
Transport Upington (Pty) Ltd v Amcu and others
[2017] 2 BLLR 105 (LAC)
[2]
2015 (5) SA 600 (CC).
[3]
See:
Matjhabeng
Local Municipality v Eskom Holdings Ltd and others
2017 (11) BCLR 1408
(CC) at para 67.