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[2020] ZALCJHB 146
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Kuhlmann v City of Joburg Property Company (SOC) Ltd and Another (J235/2020) [2020] ZALCJHB 146 (2 July 2020)
The
Labour Court of South Africa
(HELD AT Johannesburg)
Judgment
Not
reportable
CASE
NO: J 235/2020
In the matter between:
LORRAINE
PULENG KUHLMANN
Applicant
and
CITY OF JOBURG
PROPERTY
COMPNAY
(SOC) LTD
First
Respondent
BONITAS
MEDICAL AID SCHEME
Second Respondent
Hearing: 1 July 2020
(via Zoom)
Judgment
delivered: 2 July 2020, by email at 13h30pm
JUDGMENT
VAN NIEKERK J
[1]
This is an urgent application in which the applicant seeks an order
to hold the first
respondent’s accounting officer in contempt
of court for his alleged failure to comply with an order of this
court granted
on 28 February 2020, and for an order that the
respondents comply with the terms of the order forthwith.
[2]
When the matter was called, the parties advised the court that they
had reached agreement
on the substantive issue in dispute, i.e. the
applicant’s continued membership of the second respondent (the
medical aid
scheme). The only outstanding issue that required
decision was that of costs.
[3]
The first respondent advised the court that on account of the
applicant being represented
pro bono
, it did not seek an order
for costs, but opposed any order being made against it. That being
so, the only issue before the court
is whether the applicant is
entitled to her costs.
[4]
In terms of s 162 of the LRA, the court has a broad discretion to
make orders for
costs according to the requirements of the law and
fairness. In
Long v South African
Breweries
2019 (5) BCLR 609
(CC), the
Constitutional Court affirmed the proper approach to the exercise of
that discretion:
[27]
It is well accepted that in labour matters, the general principle
that costs follow the result
does not apply…This principle is
based on section 162 of the LRA, which reads:
(1) The Labour Court may
make an order for the payment of costs, according to the requirements
of the law and fairness.
(2) When deciding whether
or not to order the payment of costs, the Labour Court may take into
account—
(a) whether the matter
referred to the Court ought to have been referred to arbitration in
terms of this Act and, if so, the extra
costs incurred in referring
the matter to the Court; and
(b) the conduct of the
parties—
(i)
in proceeding with or defending the matter before the Court; and
(ii)
during the proceedings before the
Court
.”
[28]
The relationship between the general principle of costs and section
162 was considered and settled
by this Court in
Zungu
:
“
In
this matter, there is nothing on the record indicating why the Labour
Court and Labour Appeal Court awarded costs against the
applicant.
Neither court gave reasons for doing so. It seems that both
courts simply followed the rule that costs follow
the result.
This is not correct…”
[5]
In short, the discretion to be exercised in relation to orders for
costs extends beyond the rule that
costs follow the result, and
requires the court to have regard to all relevant facts and
circumstances.
[6]
The present application was filed on 24 June 2020. The purpose of the
application is to declare the
first and second respondents in
contempt of a judgement delivered by this court on 28 February 2020
in which the respondents were
ordered to reinstate the applicant’s
medical aid scheme, to reinstate a housing subsidy benefit, and to
reinstate her salary
with effect from 28 February 2020. It is only
the first two parts of the order that are relevant to the current
proceedings.
[7]
The applicant states that on 16 June 2020 she received a message from
the medical aid confirming that
her membership will be terminated
with effect from 30 June 2020. She confirmed with the medical aid
that the reason for termination
was her resignation from the first
respondent’s employ. The applicant then became ‘suspicious’
that her home
loan subsidy may not have been paid to the bank and
discovered that payments had indeed not been made. On this basis, she
contends
that the first respondent deliberately did not pay her bond
and medical aid ‘because the officials thereof are even
prepared
to defy the court order and openly lied about the fact that
I have resigned…’.
[8]
On 18 June 2020, the applicant addressed a letter to the acting CEO
of the first respondent in which
she, at great length, records the
first respondent’s failure to pay her medical aid contribution
and homeland subsidy, and
a host of other issues. On 22 June 2020,
the applicant’s attorney addressed a letter to the first
respondent’s attorneys
of record alerting them to the fact that
payment of the applicant’s medical aid and housing subsidy had
been terminated.
On the same date, the first respondent’s
attorneys investigated the matter and wrote to the applicant’s
attorney advising
him that they had been instructed that there was an
unfortunate oversight with regard to the payment of the applicant’s
benefits,
that the oversight had been rectified and that they had
been instructed that the applicant’s medical and membership
will
not be terminated and that all outstanding third-party payments
would be made by the end of the month.
[9]
Despite this undertaking, on 24 June 2020, the present application
was served and filed. The first respondent’s
attorneys of
record sent email correspondence to the applicant’s attorney of
record confirming that the first respondent
had provided them with
proof that the applicants payments would be made at the end of June
2020, that the applicant had been informed
prior to bringing of the
application that the applicant was not paid on account of an
administrative oversight that had been rectified,
and that there was
no merit in the application which the applicant should seriously
consider withdrawing.
[10] On 24
June 2020, the applicant’s attorney of record forwarded
correspondence from the second respondent recording
that the
applicant’s membership had been terminated ‘as per
request from HR directly, stating that you are on unpaid
leave and
should be terminated effective 30/04/2020’…. The first
respondent immediately investigated the circumstances
surrounding the
alleged instruction to terminate, and determined that on account of
non-payment of the applicant’s salary,
benefits were stopped.
This was an administrative oversight which was immediately rectified
once it came to the attention of the
first respondent that payments
had not been made. On 25 June 2020, the first respondent’s
attorneys of record addressed correspondence
to the applicant’s
attorney of record noting the nature of the administrative oversight
and confirming once again that the
error had been rectified and that
payment was being processed. It is not in dispute that the relevant
payments were subsequently
made and that the applicant’s
medical aid has been reinstated.
[11] Despite
these developments, the applicant delivered a supplementary affidavit
to the founding affidavit on 28 June
2020, dealing with the
applicant’s discontent in respect of her salary payment for
June 2020 and other matters. The first
respondent’s attorneys
recorded that the issue of the applicant salary was not relevant to
the present proceedings but the
applicant’s attorney of record
persisted with the inclusion of the affidavit in the present
proceedings.
[12]
Applications for contempt of court are ordinarily dealt with in terms
of the practice manual. Clause 13 of the
practice manual contemplates
an application brought
ex parte
and the allocation of a return
date on which the respondent is required to show cause why he or she
should not be held in contempt
of the order concerned. In the present
instance, the applicant has failed to comply with this procedure and
has sought to secure
an order holding the respondents in contempt by
way of urgent proceedings. The founding affidavit does not deal with
the issue
of urgency, nor does it seek to explain why the prescribed
process was ignored. Counsel for the applicant submitted that the
procedure
adopted was employed on account of concerns harboured by
the applicant in relation to the payment of her medical aid and
housing
subsidies. That does not explain why the applicant thought it
necessary to seek the limited relief that she sought in that regard
by way of an application to hold the respondents in contempt. In any
event, by the time the application was filed, the first respondent
had undertaken to resolve what ultimately transpired to be an
administrative issue. Certainly by the time that the supplementary
affidavit was filed, matters had been resolved. The filing of that
affidavit was entirely unnecessary, and has served only to cause
the
first respondent to incur unnecessary costs. In regard to the
substance of the application, there was no reason in the
present
circumstances to resort to an application to hold the respondents in
contempt of court, or to persist with that application.
It would
appear that the proceedings were driven by the applicant’s
distrust of the first respondent, and her refusal to
accept that what
transpired was the subject of administrative error rather than
deliberate intent.
[13]
As I have indicated, the first respondent’s representative
charitably did not seek an order
for costs against the applicant. Had
he done so, I would have given serious consideration to such an
order. It seems to me that
the nature and format of the present
application was entirely inappropriate and that even if the necessity
for the filing of the
notice of motion and founding affidavit were to
be accepted, it was abundantly clear by that date that the first
respondent had
acknowledged the error that had been perpetrated and
was committed to resolving the matter.
[14]
In the circumstances, in my view, the interests of the law and
fairness dictate that there should
be no order as to costs.
I make the following
order:
1.
There is no order as to costs.
André van Niekerk
Judge of the Labour Court
of South Africa