B HILL Fourth Respondent
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO.:
J1118/97
In the matter between:
NATIONAL UNION OF MINEWORKERS First
Applicant
10 others Second and
further
Applicants
and
B K H MINING SERVICES CC t/a
DANCARL DIAMOND MINE First
Respondent
W G BARTHOLOMEW Second
Respondent
R VIZE Third
Respondent
JUDGMENT
GROGAN AJ:
[1] On 17 August 1998 the first respondent entered into a deed
of settlement with the applicants in respect of a dispute
concerning the dismissal of the second and further
applicants. The deed of settlement was made an order of this
Court on the same day. It reads as follows:
"1. Without admission of any liability and in a
sincere endeavour to settle the dispute, the
Respondent agrees to reemploy the
individuals listed in annexure A hereto as
follows:
1.1. The individuals would be reemployed through
labour brokers Project Labour Management
(PLM). The respondent records that its
weekly paid employees are presently employed
through the services of PLM.
1.2. The individual ( sic) listed in annexure A
hereto will be reemployed on the same terms
and conditions governing the employment of
weekly paid employees referred to in
paragraph 1.1 above.
1.3. The individuals listed in annexure A will be so
reemployed as follows:
1.3.1. Those listed as numbers 1
10 on Tuesday, 1
September 1998;
1.3.2. Those listed as numbers
11 20 on Thursday, 1
October 1998;
1.3.3. Those listed as numbers
21 30 on Monday, 2
November 1998;
1.3.4. Those listed as
numbers 31 40 on
Tuesday, 1 December
1998;
1.3.5. Those listed as numbers
41 55 on Monday, 11
January 1999.
2. Should any of the individuals listed in annexure
"A" fail to report for duty at the Respondent's
premises at the aforementioned stipulated
date, the Respondent will have no further
obligation in respect of such individuals
whatsoever.
3. It is specifically recorded that each of the
aforesaid individuals are required to report on
the stipulated date by not later than 10:00 at
the Respondent's offices and to report
personally to W F Bartholomew, the
Respondent's Mine Manager.
[2] The second and further applicants (referred to hereinafter
for convenience as the workers ) are the individuals
mentioned in clause 1.3.1 of the deed of settlement. It is
common cause that they were at all material times
members of the first applicant.
[3] The applicants now allege that the respondents have
flouted the order of Court dated 17 August 1998 and seek
to have them committed for contempt of court.
[4] This Court, being a superior court with powers equal to
those of a provincial division of the High Court (see
section 151(2) of the Labour Relations Act 66 of 1995)
has the power to enforce its orders by contempt
proceedings. Such proceedings may, as in the present
case, be instituted by the aggrieved party on notice of
motion: see, for example, Ntombela v Herridge Hire &
Haul CC & another Labour Court case no. D359/97 dated
13 November 1998, unreported. That these proceedings
are instituted by notice of motion does not alter the fact
that the aim is essentially penal: if the second and further
respondents are guilty of contempt of Court, they can be
punished by fines or imprisonment, or both. This means
that the applicants can only succeed if they satisfy this
Court beyond reasonable doubt that the respondents are
guilty of the offence: Uncedo Taxi Service Association v
Maninjwa & others 1998 (6) BLLR 683 (E). What must be
proved according to that standard is: (a) that an order of
court was granted against the respondents, (b) that the
respondents were aware of the order and its terms, (c)
that the respondents were in fact in breach of the order
and, if so, (d) that their failure to comply with the order
was wilful.
[5] Before analysing the evidence, it will be convenient to set
out the events that gave rise to this application. The
workers were dismissed by the first respondent on 4
November 1997 after engaging in industrial action. They
referred a dispute to the CCMA in terms of the Act, and
subsequently instituted proceedings in this Court. On the
day the trial was due to commence, however, they
entered into the settlement agreement quoted above.
Pursuant to that agreement, the workers reported for duty
at the first respondent s Dancarl diamond mine on 1
September 1998. They were informed by Mr
Bartholomew (the second respondent), who is project
manager of the first respondent s Dancarl and Riverton
operations, that Project Labour Management ( PLM)
was refusing to reemploy them at Dancarl mine . It is
common cause that PLM is a temporary employment
service. Bartholomew requested time to sort the matter
out. The workers were paid their full salaries from 1 to 9
September 1998, although they did not render service. In
the interim, the first respondent began to make
arrangements to get the Riverton operation (which is
some 70 kilometres from the Dancarl mine) into a state
that would enable the workers to commence service
there. At that time, the Riverton operation apparently
lacked electricity and water. The necessary arrangements
were completed by 23 September 1998, and the workers
were instructed to report for duty there. However, the
workers reported at Dancarl on that day, and refused to
go to Riverton when so instructed by Bartholomew. I am
informed that the workers are currently working at
Riverton on a without prejudice basis.
[6] The central question raised by this application is whether
the first respondent complied with the order by taking the
workers back into service on full pay, and then
transferring them to an operation other than the one in
which they were employed before their dismissal. If this
question is answered in the affirmative, caedit questio . If
not, the further question is whether the respondents can
be held criminally accountable for their failure to comply
with the order.
[7] The answer to the first question depends on the meaning
of the deed of settlement that forms the basis of the
order. Clause 1 of that agreement clearly states that the
Respondent agrees to reemploy the workers. The
Respondent referred to in the agreement is BKH Mining
Services CC t/a Dancarl Diamond Mine. The obligation to
reemploy thus rests on the first respondent. This not only
follows by necessary implication from the grammatical
construction of clause 1, but also from the fact that only a
former employer can reemploy dismissed workers. For
this reason, subclause 1.1 cannot be a condition
precedent to the obligation assumed in the main clause.
The apparent purpose of subclause 1.1 is to ensure that
the reemployed workers would be placed on the books
of PLM, which would presumably henceforth be paid for
providing their labour to the first respondent. This is,
however, merely an administrative detail. The primary
obligation is still to reemploy the workers. And that
obligation rests on the first respondent.
[8] The further question is whether the first respondent was
obliged by the settlement agreement to reemploy the
workers at Dancarl mine. Mr Cassim, who appeared for
the respondents, argued that the first respondent is a
juristic person that happens to own two operations, and
that it is free to deploy its workers as it deems fit or,
indeed, not to provide them with work if it so wishes,
provided that it pays their wages while they tender
service. This may be so. But the issue in casu is whether
at the time of entering into the deed of settlement the
respondents understood, as the applicants were clearly
led to believe, that the workers would be reemployed at
the Dancarl mine. Having regard to the respondents
papers, this was plainly the case. Thus Bartholomew
states that the first respondent was unable to comply with
Clause 1.1. of the Court order on the basis that PLM had
refused to reemploy them at Dancarl Diamond Mine .
And in response to the applicants first written protest
against the instruction that the workers report to the
Riverton operation, the respondents attorney of record
stated that [o]ur client has offered a viable and
reasonable alternative by making an offer to reemploy
your members at its Riverton Mining Operations with
effect from 23 September 1998 . The following statement
is also to be found in the respondents answering
affidavit: The first respondent saw no reason for the
contempt proceedings as it was using its best
endeavours to seek a viable alternative for its members .
Furthermore, the respondents could not have understood
that the workers would or could be reemployed at the
Riverton project because, on their own version, that site
was not operational at the time. It is therefore clear that
the respondents were aware that they were not
complying with the deed of settlement when they ordered
the workers to report to the Riverton operation. In view of
this finding, it is not necessary to determine the factual
dispute over whether conditions of employment at
Dancarl are the same as those at Riverton.
[9] Were this Court being requested to issue a declarator
regarding the true meaning of the deed of settlement, it
would have no hesitation in finding that the first
respondent was bound to reemploy the workers at the
Dancarl mine on 1 September 1998 subject, of course, to
its right subsequently to transfer or redeploy them in
accordance with its operational requirements, and subject
also to the workers right to declare a further dispute in
that regard. However, this Court is being asked to
determine whether the respondents are guilty of contempt
of court. The only relevance that can accordingly be
attached to the above finding is that the respondents
failed to carry out the order of court, and that they were
aware that they had failed to do so. This leads to the
further question whether the respondents can be held
criminally accountable for their failure to reemploy the
workers at Dancarl on 1 September 1998 or thereafter.
[10] An essential element of the offence of contempt of Court
is that the alleged offender s noncompliance must be
wilful. This means (a) that he must be responsible for the
breach and/or (b) that he must intend to defy the order.
[11] Mr Cassim contended that this Court should have regard
to the full spectrum of events leading to the
arrangement to relocate the workers to the Riverton plant,
including, especially, the facts that PLM refused to
accommodate the workers, that in consequence thereof
the respondent paid them their full wages without
requiring them to render service, and that the workers
would be given onsite accommodation at Riverton of the
same standard as that with which they had been provided
at Dancarl mine before their dismissals.
[12] The respondents attribute the events after 1 September
1998 solely to PLM s refusal to comply with the spirit of
the deed of settlement. If it were indeed so that the
respondents were unable to comply with the terms of the
agreement (and order) due to the actions of a third party
or other circumstances beyond their control, they could
clearly not be held to have been in wilful contempt of the
order. However, on the evidence I am not satisfied that
this was the case.
[13] Mr Maserumule, who appeared with Mr Khumalo for the
applicants, contended that PLM was merely an agent of
the first respondent, and that the first respondent could
and should have instructed PLM to comply with the order.
Mr Cassim argued that this was not the case, as PLM
was an independent juristic persona that was not a party
to the deed of settlement and accordingly not bound by
the order.
[14] There is no evidence before this Court to indicate the
nature of the relationship between the first respondent
and PLM, or how it arose. Since the respondents have
raised PLM s actions as a defence, they should have
explained why they were bound to comply with PLM s
decision. Be that as it may, it appears by necessary
implication from the facts that the first respondent entered
into an arrangement with PLM after the dismissal of the
workers in terms of which PLM would supply the Dancarl
workforce as a labour broker. Whatever the nature of this
arrangement, however, I do not believe it has any bearing
on the first respondent s liability under the order. It was in
full knowledge of the circumstances that the first
respondent entered into the deed of settlement. In terms
of that deed of settlement, the first respondent agreed to
reemploy the individuals. It must therefore be taken to
have assumed responsibility for ensuring that PLM would
comply with subclause 1.1 of the deed of settlement.
That the representatives of the first respondent were
confident that they could influence PLM to comply with
the terms of the agreement is evident from
Bartholomews founding affidavit, in which he states:
At the time of signing the deed of settlement, I
had no reason to believe that PLM would not co
operate with the reemployment of the Applicant s
members. I thought that PLM could easily have
transferred a number of its staff to other contracts
which it manages in order to make space for the
reemployed members of the Applicant. I was
sadly mistaken and PLM refused to abide by the
spirit of the deed of settlement and as a
consequence I had no vacancies at Dancarl
Diamond Mine.
[15] This assertion reflects a degree of confusion on the part
of the respondents. The primary obligation assumed by
the first respondent was to reemploy the workers. It
could not have done so by engaging them through a
contract with a labour broker. This is because persons
whose services are provided to a client by a labour
broker, or temporary employment service as such
enterprises are termed in the Act, are employed by the
broker, and not by the client: see section 213(2). If, as
appears from Bartholomew s affidavit, the first
respondent had already taken on a full complement of
workers at Dancarl through PLM, that was a problem of
the first respondent s own making. It knew, or should
have known, that the dismissed workers would bring an
action, and that such action could have resulted in their
reinstatement or reemployment.
[16] The first respondent certainly knew that it had a complete
workforce at Dancarl at the time the settlement
agreement was concluded. Had the workers been
reinstated pursuant to a direct order of this Court, the first
respondent could not have relied on its arrangement with
PLM to avoid the consequences of the order. As it
happened, the first respondent itself undertook to re
employ the dismissed workers to ward off the possibility
of such an order. Had the first respondent wished to
protect itself against the possibility that PLM might not co
operate in giving effect to the deed of settlement, it could
have done so. Similarly, it could have reserved for itself
the right to reemploy the workers at the Riverton
operation. It did neither. The applicants were induced to
enter into the deed of settlement, and according to waive
their right to pursue their unfair dismissal action, on the
understanding that they would be reemployed at
Dancarl. In my view, the circumstances upon which the
respondents seek to rely do not justify its failure to honour
that expectation.
[17] Finally, Mr Cassim asserts that the applicants have
nothing to gain by this application, as they are being paid
their full wages and have been offered conditions for all
practical purposes identical to those under which they
would be working at Dancarl. The answer to this
submission is that the respondents have either complied
with the order or they have not. I have already found that
the first respondent has failed to comply with the primary
obligation it assumed under the deed of settlement,
namely, to reemploy the workers at Dancarl. Its failure to
do so amounts, in my view to contempt of the order of
court issued on 17 August 1998.
[18] There remains to decide what penalty should be
imposed, and upon which of the respondents. Directors of
companies who, with knowledge of an order against the
company, cause the company to disobey the order are
themselves guilty of contempt of court: Twentieth Century
Fox Film Corporation & others v Playboy Films & another
1978 (3) SA 202 (W). This applies also to the members of
close corporations: Hotz en andere v Douglas &
Associates (OFS) CC andere 1991 (2) SA 797 (O).
[19] Bartholomew states in the founding affidavit that the
fourth respondent disposed of his interest in the first
respondent to the third respondent some two years ago.
However, there are no confirmatory affidavits in respect
of this claim by either the third or fourth respondents. I
cannot accordingly make a finding in this regard in
respect of the fourth respondent.
[20] Although imprisonment of the second and further
respondents is an option, this Court should not lose sight
of the fact that all its decisions should be designed to
promote the effective resolution of labour disputes. The
current dispute between the parties will be resolved by
the reemployment of the second and further applicants
at the Dancarl Diamond Mine in terms of the order. In my
view, the order should be shaped to achieve that end.
[21] It is accordingly ordered that:
The respondents are guilty of contempt of this Court.
The second, third and fourth respondents are
sentenced to 15 days in prison, without the
option of a fine, suspended on condition that
the second and further applicants are re
employed by the first respondent within 14
days of the date of this judgment at Dancarl
Diamond Mine.
The respondents are to pay the costs of this
application, jointly and severally, the one
paying, the others to be absolved.
The above orders shall not operate against the fourth
respondent if within 14 days of the date of this
judgment proof is provided to the
satisfaction of a Judge of this Court that the
fourth respondent ceased to be a member of
the first respondent prior to 17 August 1998.
___________________
GROGAN A J
Acting Judge of the Labour Court
Date of hearing: 15 December 1998
Date of judgment: 13 January 1999
For the applicants: Mr Maserumule (with him Mr Khumalo)
of Maserumule & Partners
For the respondents: Adv Cassim SC, instructed by Leppan
Beech.