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[2001] ZASCA 52
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Food and Allied Workers Union and Others v Scandia Delicatessen CC and Another (276/99) [2001] ZASCA 52; [2001] 3 All SA 342 (A); 2001 (3) SA 613 (SCA); (2001) 22 ILJ 1781 (SCA) (29 March 2001)
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number 276/99
Reportable
In the matter of
FOOD AND ALLIED WORKERS UNION
First
Appellant
VK NGCOBO AND
OTHERS Second and Further
Appellants
and
SCANDIA DELICATESSEN
CC First
Respondent
and
PER
BJORVIG Second
Respondent
CORAM:
HOWIE, FARLAM JJA and CHETTY
AJA
________________________________________________________________________
DATE
OF HEARING:
8 March 2001
DATE OF JUDGMENT:
29 March 2001
SUMMARY:
Mandatory Interdict to enforce Industrial Court Order -
whether criminal prosecution for breach of order adequate alternative
remedy.
________________________________________________________________________
JUDGMENT
______________________________________________________________
/FARLAM JA
FARLAM JA
[1]
The appellants brought an application in the Durban and Coast Local
Division of
the High Court for an order: (1) declaring that the
first respondent was obliged to comply with the terms of an order granted by the
Industrial Court on 7 October 1998 and that the second respondent was obliged to
do all things necessary to ensure that the first
respondent complied with the
order; (2) directing the respondents to do all things necessary to give effect
to the order and (3)
ordering the respondents jointly and severally to pay the
costs of the application on the scale as between attorney and client.
[2]
The application, which was unopposed, came before Page J, who
dismissed it in a
judgment delivered on 25 February 1999 in
which he held that the High Court does not have the power to make a committal
order for
contempt based upon non-compliance with a judgment of the Industrial
Court (following on this point the judgment of De Klerk J in
Food and Allied
Workers Union v Sanrio Fruits CC and others
1994(2) SA 486(T)) and that it
is impermissible to attempt indirectly to confer that power on the High Court by
seeking to convert
the Industrial Court’s order into an order of the High
Court. It was held further, in the alternative, that even if the grant
of such
an order were theoretically possible the form of relief sought, viz a declarator
combined with an order
ad factum praestandum,
is such that the court
would have a discretion whether to grant it. In view of the fact that the
legislature had made what it considered
to be adequate provision for the
execution of Industrial Court judgments by that court, and clearly considered
those provisions to
be exhaustive (despite the fact that no power to commit for
contempt based on non-compliance with an order
ad factum praestandum
was
given to the Industrial Court), no grounds existed to justify making available
to the appellants any additional means of enforcement
which might be peculiar to
the High Court. The judgment of the Court
a quo
is reported as
Food
and Allied Workers Union and Others v Scandia Delicatessen CC and Another
1999(3) SA 731(D).
FACTS
[3]
On 7 October 1998 the Industrial Court, in an application brought by
the
appellants, ordered the first respondent to reinstate the appellants other than
the first
appellant, the Food and Allied Workers Union. (In
what follows I shall where
appropriate call these appellants ‘the
individual appellants’.)
[4]
The first respondent was also ordered to pay to each of the
individual appellants
compensation equivalent to six
months’ wages, together with costs on the highest scale applicable in the
Magistrate’s
Court.
[5]
The order was served on both the first respondent and the second
respondent, who
is the sole member of the first respondent and in control of its business.
[6]
On 23 November 1998 an application brought by the first respondent
for the
rescission of the order of 7 October was dismissed.
[7]
Since then the first respondent has failed to comply with the
Industrial Court’s
order and on 7 December 1998, when the individual appellants tendered their
services,
the second respondent refused to reinstate them and
told them to consult their lawyer.
[8]
For reasons set out below the appellants have not been able to obtain
relief from
the Industrial Court to enforce that part of its order in terms of which
reinstatement was
ordered. As a result they brought the
application which forms the subject of this appeal.
RELEVANT
STATUTORY PROVISIONS
[9]
Before the submissions of counsel for the appellants are set out it
is appropriate to
refer to the relevant statutory
provisions.
[10]
As the purported dismissal of the individual appellants in this
matter took place
in August 1996, before the commencement of the
Labour Relations Act 66 of 1995
, it is clear that the dispute between the
parties had to be dealt with under the previous Labour Relations Act 28 of 1956,
as amended(‘the
Act’): see Items 21 and 22 of Schedule 7 of Act 66
of 1995.
[11]
At the relevant time the material provisions of the Act were these.
Section 17(15)
read as follows:
‘(15) Any decision, award, order or determination of the industrial court
may be executed as if it is a decision, an award,
order or a determination made
by the Supreme Court.’
Section
53(1) provided as follows:
‘Any person who contravenes or fails to comply with any ... order,
condition of any order, decision, award or determination
made by the industrial
court ... shall be guilty of an
offence.’
Section 82(1) read as
follows:
‘Any person who is convicted of an offence under the provisions of this
Act shall be liable -
(a) in the case of an offence
referred to in sections 53(1) and 66(1), to a fine not exceeding R2000 or
imprisonment for a period
not exceeding two years or such imprisonment without
the option of a fine or both such fine and such imprisonment; ...’
[12]
Section 12(1) of the Constitution, Act 108 of 1996, as far as is
material, reads
as follows:
‘Everyone has the right to freedom and security of the person, which
includes the right -
....
(b) not to be detained
without trial; ...’
THE INDUSTRIAL COURT’S JURISDICTION TO COMMIT FOR
CONTEMPT
[13]
The appellants contended in the court
a
quo
and again in this Court that the Industrial Court did not have the power
to enforce its own determinations by committal of those in
contempt of its
orders.
[14]
This submission was based on the decision of the Industrial Court in
Chemical
Workers Industrial Union v Price’s
Candles
[1994] 15
ILJ
857 (IC). In that case the Industrial Court
followed the decision of De Klerk J in
Food and Allied Workers Union v Sanrio
Fruits CC and Others,supra,
in which he held at (488B) that an order for
committal for contempt is not a form of execution, with the result that section
17(15)
of the Act did not confer upon the Industrial Court the power to enforce
its own determinations by committal orders. De Klerk J
also declined to follow
the decision in
Wright v St Mary’s Hospital, Melmoth, and Another
1993(2) SA 226(D). There it was held that the Supreme Court had no
jurisdiction to commit a recalcitrant respondent who defied an
order of the
Industrial Court to prison for contempt because section 17(15) of the Act vested
such jurisdiction in the Industrial
Court
[15]
Counsel for the appellants contended further, both in the court
a
quo
and before
this Court, that even if the judgment in the
St Mary’s Hospital
case was correct and the
Industrial Court did have the power of committal for contempt of its own orders
in 1993,
it lost that power on the coming into operation of the
Constitution because, the Industrial
Court not being a court of law (
SA Technical Officials’ Association v
President of the
Industrial Court
1985(1) SA 597(A)),
it was prohibited by section 12(1)(b), from
ordering the detention of
anyone. In this regard counsel referred to the decision in
De
Lange v Smuts NO and Others
1998(3) SA 785(CC)
in which
the Constitutional Court
held that an officer presiding over a creditors’ meeting in terms of
section 65 of the
Insolvency Act 24 of 1936
who is not a
magistrate cannot issue a warrant committing to
prison a person who is being
examined at the meeting, the reason being that a presiding
officer who is
not a magistrate is not a judicial officer in terms of the Constitution.
[16]
Counsel for the appellants then referred to the cases of
National
Industrial Council
of the Leather Industry of SA v
Parshotam and Sons (Pty) Ltd
1984(1) SA 277(D) and
Industrial Council for
the Building Industry (Transvaal) v All Construction (Pty) Ltd and Another
(1980) 1
ILJ
123(W) in support of the proposition that the High Court
had jurisdiction to enforce compliance with an Industrial Council agreement
made
binding upon non-parties in terms of section 48 of the Act by way of mandatory
interdict and that such jurisdiction co-existed
with the criminal sanction
embodied in section 53(1) of the Act.
[17]
There is no reason in logic or equity, so it was contended, why a
determination of
the Industrial Court should not be dealt with in the same way in an appropriate
case with
the court exercising the jurisdiction it has to grant
a mandatory interdict to ensure that
obligations arising out of the Act are
met.
[18]
It was submitted further that the mere fact that defiance of an
Industrial Court
order might constitute a criminal offence was no reason to preclude a party in
whose
favour such an order had been granted from seeking to
enforce that order civilly.
Reference was made in regard to what was said by Didcott J in
De Lange v
Smuts NO and
Others, supra,
at 832C.
In my
opinion, in order properly to understand the dictum relied on, it is necessary
to
quote what the learned Judge said at 832 A-E, namely:
‘... I [do not] find it helpful to investigate what is done in foreign
jurisdictions about recalcitrant witnesses, or even
how other statutes of ours
deal with coercion when the need for its use arises within their areas. Such
investigations may tend
to distract our attention from where it should now be
focused, on the particular purposes that s66(3) has been designed to achieve
and
on the particular circumstances prevailing in this country which are relevant to
those purposes. In that situation, I believe,
the threat of a subsequent
prosecution under s 139(1) would not suffice by itself as coercion, however
satisfactorily its counterparts
may happen to work elsewhere. Here the threat
is too remote. The notorious delays in the progress of prosecutions see to
that,
delays which were experienced even before the current congestion in the
criminal courts prolonged them and, given our systems and
procedures, are likely
to remain inevitable despite any reduction in their duration that may
realistically be expected. One cannot
safely brush aside the delays as mere
inconveniences. They would gravely damage the efficient administration and
liquidation of
insolvent estates if we had to rely on the prospect of
prosecutions as the sole means by which witnesses might be compelled to
co-operate
in the process. A threat much more immediate is essential, a swift
one taking effect before assets of the estate disappear or information
about its
affairs becomes unobtainable.’
[19]
It was further submitted that the inevitable delays in criminal
proceedings, the lack
of control which a litigant has if dependent on a public prosecutor and the
different onus
in criminal and civil proceedings all militated
against the criminal sanction being
intended to be the exclusive remedy,
precluding a party faced with a recalcitrant
respondent from seeking relief
in the High Court. In support of this submission counsel
relied on the
Parshotam
case,
supra,
at 280
C-F.
[20]
It was also argued that section 17(15) of the
Act provided a clear indication that
Parliament envisaged civil execution
which would co-exist with the criminal sanction created by section 53(1) of the
Act. To permit
civil execution for money claimed but deny civil relief in
respect of an order
ad factum praestandum
is, so it was contended,
anomalous and illogical.
[21]
Counsel also contended that the criminal sanction in section 53(1)
of the Act, in so
far as it related to a failure to comply with a determination of the Industrial
Court, did not
survive the repeal of the Act by the
Labour
Relations Act 66 of 1995
having regard
specifically to Item 22 of Schedule 7
read with
section 212
of that Act. Thus, so counsel
argued, the only
mechanism for enforcing awards of the Industrial Court was the civil
procedure of the High Court.
[22]
The appellants were thus faced, so submitted their counsel, with a
situation where
they had a clear right to be re-instated in terms of the order of the Industrial
Court, their
right was being infringed because the first
respondent refused to comply with the order
and they had no other adequate
remedy apart from the mandatory interdict they sought in
the court
a quo.
[23]
I am prepared to assume,
without deciding the point, that the High Court has the
power in a suitable
case to order a person bound by an order of another court or tribunal set up
under specific legislation to comply
with that order despite the fact that the
legislation in question lays down an enforcement procedure in respect of such
order which
does not include the power of committal for wilful failure to comply
with such order. I assume further that an Industrial Court
did not possess the
power to commit persons who breached its orders for contempt.
[24]
The question that arises, however, is whether this is an appropriate
case for the
grant of the order sought.
[25]
Counsel for the appellant, correctly in my view, submitted that in
essence what
was being sought was a final mandatory interdict. One of the essential
requirements for
the grant of such an order is that the person
applying therefor must show that there is no
other satisfactory remedy
available.
[26]
The question to be considered, therefore, is whether the appellants
have established
that requisite.
[27]
In essence what has to be considered, in my view, is whether a
criminal
prosecution under section 53(1) of the Act was competent in the circumstances
and, if so,
whether it was shown that such a prosecution would
not be an adequate remedy.
[28]
Schedule 7 of the 1995 Act contains transitional arrangements. In
Part E of the
schedule, which is headed ‘Disputes and
Courts’, Item 21, which is headed ‘Disputes arising before
commencement
of this Act’, contains the following in paragraph(1):
‘Any dispute contemplated in the labour relations laws that arose before
the commencement of this Act must be dealt with as
if those laws had not been
repealed.’
[29]
Item 22, to which the appellants’ counsel referred and which
is headed ‘Courts’
contains the following in
paragraph (1):
‘In any pending
dispute
in respect of which the industrial court or
the
agricultural labour court had jurisdiction and
in respect of which proceedings had not been instituted before the commencement
of
this Act,
proceedings must be instituted in the industrial court or
agricultural labour court (as the case may be) and dealt with as if the
labour
relations laws had not been repealed. The industrial court or the agricultural
labour court may perform or exercise any of
the functions and powers that it had
in terms of the labour relations laws when it determines the
dispute.’
[30]
Page J
did not decide whether the criminal sanction had
survived the repeal of the
Act but indicated that he was by no means certain that it had been done away
with (at 735
A-B).
[31]
In my view the criminal sanction did survive the repeal in respect
of disputes
which were pending when the 1995 Act came into operation.
[32]
The language of Schedule 7 is clear. As far as pending disputes
were concerned
things were to go on as they were before. Item
21(1), which has been quoted above, clearly states that such disputes had to be
dealt
with as if the Act had not been repealed. It is true that Item 22
preserves the jurisdiction of the Industrial Court and does not
refer to the
magistrates’ court in which, presumably, prosecutions under section 53(1)
would take place, but that was because,
but for Item 22, the Industrial Courts
would, on repeal of the Act, have come to an end. No such saving in respect of
the magistrates’
courts was required. In the case of a dispute pending
when the 1995 Act came into effect, which was adjudicated upon in the Industrial
Court which made an order which was not complied with, the punishment of those
who disobeyed the order and were sentenced for contravening
section 53(1) would
still, in my view, constitute ‘a dealing with’ the dispute. To hold
otherwise would be to interpret
Items 21 and 22 as requiring pending disputes to
be dealt with only partially according to pre-repeal procedure instead of
completely
according to that procedure. That interpretation would offend
against the plain terms of the schedule.
[33]
I am accordingly satisfied that a criminal prosecution under section
53(1) was
competent.
[34]
What must now be considered is whether such a prosecution would not
be an
adequate remedy for the appellants in this case.
[35]
In my view it can be accepted that in certain cases a criminal
prosecution may well
be an adequate remedy such as to disentitle
a person to whom such remedy is available from obtaining an interdict :
cf
Celliers v Lehfeldt
1921 AD 509
where an order binding over was, in the
circumstances of that case, held to be such a remedy, and
Ebrahim v Twala and
Others
1951(2) SA 490(W) where Dowling J (at 493H - 494A) held that the
remedy,
inter alia,
of a criminal prosecution was not adequate in the
circumstances of the case before him and stated:
‘I make this reservation advisedly, because I am not prepared to say that
there may not be cases where these remedies [which
included a criminal
prosecution] or some of them may be adequate.’
[36]
No attempt is made in the affidavits filed on behalf of the
appellants in this case to
indicate why a criminal prosecution
in this case would be an inadequate remedy. Indeed, the deponents do not even
say if any endeavours
were made to lay a charge or what happened, or did not
happen, if such a charge was laid. By contrast, in the
Ebrahim
case,
supra,
it was stated (at 493 A-B) that the remedy of the institution of a
prosecution had been found to be ineffective.
[37]
The passage in the judgment of Didcott J in the
De Lange
case,
supra,
on which
the appellants’ counsel relied is clearly distinguishable because what was
in issue there
was the need for a swift remedy to be applied
against a recalcitrant witness in the interest
of the efficient
administration and liquidation of insolvent estates ‘before assets of the
estate disappear or information about its affairs becomes
unobtainable’. Such
considerations do not apply here. I cannot agree
that it is possible to hold on the strength
of this dictum alone that a criminal prosecution under section 53(1) is
per
se
in every
case, and particularly in this case, not an adequate alternative to civil
proceedings for
contempt.
[38]
The
Parshotam
case was not an application for an interdict
but an action for the
recovery of contributions due to an
industrial council fund. Booysen J held that the
industrial council was
entitled to sue civilly to recover the contributions in question and not
restricted to asking for an order
for payment of contributions, in terms of
section 54(1) of the 1956 Act, from a criminal court which had convicted
defendant of failing
to pay the amounts in question to the council. He said (at
280 C-F):
‘It is probably of importance to consider that a number of difficulties
could confront the industrial council in seeking to
recover through criminal
proceedings, which would not be present in civil
proceedings.
Some of these difficulties would be
that the State could decline to prosecute or a prosecution could fail for some
technical reason
(Virginia Village Management Board v Southey (Pty) Ltd
1961
(4) SA 870(O)
at 873F)
and that the State could fail to discharge in a
criminal case the onus of proving the offence beyond reasonable doubt, thereby
precluding
the prosecution from ensuring that these amounts should be paid. In
a civil matter, as one knows, the onus of proof is one on a
balance of
probabilities.
(Coetzer v Boekee
1956 (4) SA 245
(T) at 250H).
It
seems to me also that mens rea is a requirement in respect of the offences that
we are concerned with here and that this is also
a difficulty which would
confront an industrial council seeking to recover, through criminal proceedings,
what it is entitled to
receive.
(S v Wandrag
1970 (3) SA 151
(O).’
[39]
In the present case it is not suggested that the State declined to
prosecute nor that
there is any realistic reason to believe that a prosecution (whether brought by
the State or
by the appellants as private prosecutors) will fail for some technical
reason.
It is also not
suggested
that the fact
that
mens rea
would have to be proved will, on the facts of this
case, create a difficulty.
[40]
In so far as the appellants’ counsel argued that in civil
contempt proceedings the
onus of proof would be different from that which had to be satisfied in a
criminal court
Uncedo Taxi Service Association v Maninjwa
1998(3) SA 417(E). There it
was held that
even in motion proceedings in the High Court for so-called ‘civil
contempt’ the guilt of
neither shown nor even suggested
that the possible onus difference could cause any
difficulty of proof. It
is accordingly not necessary to decide in this case whether the
Uncedo
case was correctly decided.
[41]
It follows
from what I have said that the unmotivated statement in
Minister of
Health v Drums and Pails Reconditioning CC
1997(3) SA 867 (N) at
877 E-G, that the
fact that an Act provides by way of criminal sanction for an alleged
contravention of its
provisions is no bar to the granting of an
interdict, is not correct for all cases.
[42]
In the light of this conclusion it is unnecessary to decide whether
all the other
requisites for an interdict were satisfied.
[43]
In the
circumstances the appeal must fail. The following order is made:
The
appeal is dismissed.
IG FARLAM
JUDGE OF APPEAL
CONCURRING
HOWIE JA
CHETTY AJA