IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG) CASE NO: J1510/02
In the matter between:
CHRISTEL BRUCKNER Applicant
and
THE DEPARTMENT OF HEALTH First
Respondent
THE MINISTER OF HEALTH Second
Respondent
THE DIRECTORGENERAL DEPARTMENT OF HEALTH Third
Respondent
JUDGMENT
Introduction
1. This is a contempt of court application brought by the applicant against the
respondents after they had failed to comply with an arbitration award that was
made an order of court on 6 August 2001.
Background facts
2. The applicant is a graduate pharmacist. Before 24 March 1998 she was employed
as the Deputy Director: Medicines Registration by the first respondent, the
Department of Health (“the Department”). She had been in the Department’s
employ for 19 years. Her immediate superior in the Department was Professor J
Schlebusch who was employed in the position of Director: Medicines
Administration. As an incumbent of this post, Professor Schlebusch also held
appointment as the Registrar of Medicines, an appointment in terms of section 12
of the Medicines and Related Substances Control Act, Act 101 of 1965 (“the
Medicines Act”).
3. The Directorate of Medicines Administration within the Department was
effectively the Secretariat of the Medicines Control Council (“the MCC”), and the
governmental agency charged with the enforcement of the Medicines Act. These
functions now fall under the Cluster: Medicines Regulatory Affairs within the
Department. The MCC is a body of persons appointed by the second respondent,
the Minister of Health (“the Minister”) in terms of the Medicine Act. Medicines
which are subject to registration in terms of the Medicines Act may not be sold,
unless they are registered. The MCC has as its primary function to consider and
approve or refuse applications for registration of such medicines.
4. Professor Schlebusch and the applicant were on 24 March 1998 removed from
their positions and placed on suspension. Five and a half months later, after the
intervention of the Public Servants Association (“the PSA”) and its attorneys on
their behalf, they were given positions that were different from their original
positions, which positions were specifically created to accommodate them.
5. With the assistance of the PSA, Professor Schlebusch and the applicant initiated
proceedings in terms of item 2(1)(b) of schedule 7 to the Labour Relations Act,
Act 66 of 1995 (“the Act”), alleging that their removal from their positions had
constituted unfair conduct by the Department relating, inter alia, to their
demotion.
6. The dispute was referred to the CCMA and arbitration proceedings commenced
on 8 July 1999. After a protracted arbitration hearing, advocate J Hiemstra, the
commissioner, made an award on 26 November 1999. He ordered the
Department:
6.1 To reinstate professor Schlebusch as Director: Medicines Registration and
Registrar of the Medicines Control Council;
6.2 To reinstate the applicant as Deputy Director: Medicines Registration.
6.3 The Department was ordered to pay costs at the scale applicable in this Court.
7. The Department instituted review proceedings in this Court against the
commissioner’s award. Professor Schlebusch and the applicant, on their part,
applied to have the arbitration award made an order of court in terms of section
158(1)(c) of the Act.
8. The review application was dismissed on 6 August 2001 with costs and the award
was made an order of court on the same day with costs.
9. Leave to appeal was not sought against the judgment and orders of this Court after
the Department had received counsel’s opinion that an appeal had no prospects of
success.
10. A monetary settlement was reached with Professor Schlebusch. The applicant,
however, required the Department to comply with the Court order. The applicant
was not and still has not been reinstated to the position of Deputy Director:
Medicines Registration, that she held before 24 March 1998.
11. On 6 September 2001 the applicant’s attorneys wrote to the third respondent and
stated that the applicant had not yet been reinstated to her former position. The
attorneys pointed out that the Department was in contempt of the Court order and
threatened to commence civil contempt proceedings against the Minister.
12. On 1 October 2001 the Department, via the office of the State Attorney stated that
it will comply with Court order and that the applicant would be reinstated in the
previous position that she had occupied.
13. On 2 October 2001 the third respondent wrote to the applicant advising her that
she has been reinstated in a post of Deputy Director in the Cluster: Medicines
Regulatory Affairs with immediate effect. She was required to report for duty in
consultation with a Ms Matsoso. Ms Matsoso was then the Cluster Manager of
the Cluster: Medicines Regulatory Affairs and now is the Chief Director:
Medicines Regulatory Affairs. A job description was appended to the letter. It
described a post designated “Deputy Director: Medicines Administration and
Document Control”. The job purpose of this position was described as to provide
administrative support for the regulation of medicines before the marketing to
ensure their safety, quality and efficiency. To manage and coordinate the
activities of the subordinates within the Subdirectorate: Medicines
Administration and Document Control. The principal duty attached to the post
was described as professional control of the medicine’s database.
14. The applicant contends that the job description attached to the letter contained
mostly administrative tasks that she had previously carried out in addition to her
main functions as Deputy Director: Medicines Registration. She refused to accept
the newly created post and remained in the inferior position that had previously
been created for her that of Deputy Director: Pharmaceutical Expenditure.
15. The applicant states that in her former position as Deputy Director: Medicines
Registration she headed all activities related to the medicine registration process
and some control functions. In the new position that she has been reinstated her
functions are mainly of an administrative and supportive nature.
16. Ms Matsoso, on behalf of the Department denied that the applicant’s functions
would be of administrative and supportive nature but that the creation of the
position of Deputy Director: Medicine Administration and Document Control was
only proposed to the applicant during their consultation. She admitted that the
applicant in her former position headed all activities related to the medicine
registration process in her former position.
17. The applicant had in her former position, been responsible to manage and control the process of
clinical evaluation of applications for registration of medicines, inter alia managing and
coordinating the professional staff who had to screen and evaluate applications. Data control, the
focus of the new position, was a minor adjunct of the former position.
18. On 14 October 2001 the first responded caused an advertisement to be published
in a Sunday newspaper for the position of Director: Medicine Evaluation and
Research. The applicant contends that the duties specified in the advertisement
were substantially the same duties that she carried out in 1998 and that the only
difference was that the position advertised was that of Director, while the position
that she had previously held was that of Deputy Director.
19. Ms Matsoso admitted that some duties allocated to the Director: Medicine
Evaluation and Research form part of the former position of Deputy Director:
Medicine Registration but denied that two positions were substantially the same.
19. The applicant applied for the advertised post on 25 October 2001 in an
attempt to resolve the impasse that existed between her and the Department. Her
application was not successful. The post was given to a person who had
previously been one of her subordinates. He only took office in this position on 1
March 2002.
The parties contentions
19. The applicant contends that the position she has been reinstated in is not
similar to her former position. The duties attached to her post have been
allocated to various positions created in terms of the restructuring undertaken by
the Department. The functions of the position which related to the medicine
registration process and some of the control functions were allocated to a newly
created position of Director: Medicine Evaluation and Research.
19. The applicant contends that the respondents have not complied with the
Court order of 6 August 2001 and are in contempt of court.
19. The respondents concede that the applicant has not been reinstated to her previous
position. Their efforts have been directed at attempting to accommodate the applicant in the
newly created structure. The reason given for the respondents failure to comply with the Court
order is that the Court order of 6 August 2001 posed a practical problem as it directed the first
respondent to reinstate the applicant specifically to the position of Deputy Director: Medicine
Registration, which no longer existed. This arose because of restructuring that had occurred
within the Department.
19. The respondent contends that upon the Court order being granted and after
taking legal advice, it was decided, bearing in mind that the applicant holds the
rank of Deputy Director, to appoint her in a position in the newly created structure
that closest resembles the previous position of Deputy Director: Medicine
Registration.
19. The respondents contended further that they are au fair with the facts surrounding the
applicant’s reinstatement by this Court’s order of 6 August 2001. Before the Court order, the
Department had undergone a restructuring process during which the position Deputy Director:
Medicines Registration had been abolished. The duties formerly performed by the Deputy
Director: Medicines Registration was allocated to various positions created in terms of the
restructuring. Because it was felt that activities related to the medicine registration process and
some control functions should be allocated to a higher rank, these functions were allocated to a
newly created position of Director: Medicine, Evaluation and Research. Most of the remaining
functions were allocated to the newly created position of Deputy Director in the Cluster Medicines
Regulatory Affairs.
Analysis of facts and arguments raised
19. 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 them 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.
See in this regard Uncedo Taxi Service Association v Maninjwa and others (1998) 6 BCLR 683
(E) at 691 B C.
27. If it is shown that the respondent was aware of the order and disobeyed it or neglected to comply
with it, the onus is on the respondent to rebut the inference that he wilfully disobeyed or neglected
to comply with the order. See Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809
(A) AT 836 D E. Dolus eventualis suffice for purposes of a conviction of contempt of court.
The subjective state of mind of a party who has failed to comply with a Court order is seldom
capable of direct proof. Subjective foresight, however like any other factual issue, can be proved
by inferences drawn from the respondent’s conduct and from the circumstances in which the
breach of the order was committed. If it is shown that the respondent foresaw the risk of the order
being breached, dolus eventualis apply and the onus rests on the respondent to negative the
inference of wilfulness. In this regard see H E G Consulting Enterprises (Pty) Ltd v Siegwart
2000 (1) SA 507 C at 518 E to 519 A. Mala fides as a separate requirement for contempt of court
only arises in cases of constructive contempt, i.e. where a party takes action even before the
Court’s order to evade its consequences. In cases of direct contempt mala fides is not a
requirement separate from wilfulness.
28. It was held in De Lange v Smuts & Others 1998 (3) SA 785 (CC) ad paragraph 31 that:
“In a constitutional democratic state, which ours now certainly is, and under the
rule of law (to the extent that this principle is not entirely subsumed under the
concept of the constitutional state) ‘citizens as well as noncitizens are entitled to
rely upon the State for the protection and enforcement of their rights’”.
29. In Mjeni v Minister of Health & Welfare, Eastern Cape 2000 (4) SA 446 AT 459 G it was held
that:
“A deliberate noncompliance or disobedience of a court order by the State
through it’s officials amounts to a breach of that constitutional duty”.
30. It is trite that this Court is a court of law. It is unacceptable that orders of this
Court should be flouted. If orders of a court of law are flouted, the law is brought
into disrepute as is the Court, and the administration of justice in our Country will
suffer. It is therefore important that proper attention be given to an allegation that
a party is guilty of contempt of court.
31. It is clear from the facts that the Court order was granted against the respondents.
The respondents were aware of the Court order of 6 August 2001. The
respondents have admitted this.
32. The only issue that must be determined is whether the respondents are in wilful default and male
fide disobedience of the Court order.
33. The defence raised by the respondents in not complying with the order of this
Court is that the Court order posed a practical problem as it directed the first
respondent to reinstate the applicant in the position of Deputy Director: Medicine
Registration which no longer existed. The respondents have embarked on an
extensive, transformation and restructuring since the award was issued. The
applicant can no longer be placed back in the same position. After taking legal
advice and bearing in mind that the applicant holds the rank of Deputy Director, a
decision was taken to appoint the applicant in a position in the new structure that
closest resembles her previous position. As the position Deputy Director in the
Cluster, Medicines, Regulatory Affairs is entrusted with a substantial amount of
the duties that were formerly done by the Deputy Director: Medicines
Registration, it was decided to appoint the applicant in this position.
34. The defence raised by the respondents can hardly be said to be a defence. No
evidence was placed before this Court when exactly it was that the restructuring
exercise began and when it ended. The respondents always knew that the
applicant was unhappy about the fact that her position had been abolished. They
knew that there was an application pending before this Court to make the
arbitration award an order of court. Despite this knowledge the respondents
proceeded to abolish the applicant’s post. The arbitration award and order of this
Court are clear that the applicant had to be reinstated in the position that she held
before it was abolished. The issues that the respondents are now attempting to
raise should have been raised either at the arbitration proceedings or when an
application was made to make the arbitration award an order of court. It appears
however that these issues were raised and were dealt with by both the arbitrator
and by this Court in the review application. The respondents did not deem it
necessary to appeal against the judgement in the review matter. Raising this issue
in these proceedings is therefore not proper.
35. The respondents further defence is that there has been substantial compliance with
the court order of 6 August 2001. This was disputed by the applicant who
contended that the position that she is currently occupying is different from that
which was abolished. I do not believe that this is a defence that can be raised for
the reasons stated in paragraph 34 above. Even if the defence raised is
permissible, the onus is on the respondents to prove that there was substantial
compliance with the order. They have failed to discharge this onus. No evidence
was placed before me that shows that there was substantial compliance with the
court order. The evidence shows something else.
36. It is clear that the respondents have wilfully and knowingly failed to comply with the Court order
of 6 August 2001. The Department has failed to reinstate the applicant and the first and second
respondents have throughout been aware that the Court order had not been complied with. The
respondents’ failure to reinstate the applicant to her former position is not only wilful, but also
mala fide. They have done so despite the many letters written by the applicant’s attorney, the
applicant’s recorded objection after the date of the Court’s order to the allocation of her duties to
another post and despite the applicant having instituted the present application in May 2002.
37. I must say something about the manner in which this case was conducted, both by
the officialdom within the Department and by the state attorney. I find it
inconceivable that the award which was handed on 26 November 1999 and the
order which were given on 6 August 2001, the respondents have not taken steps to
comply with the order. I should say something about the public accountability of
those whom the state employs to serve the citizens of our country. Harm has been
done in this case to the principle whereby the abuse of power should not be
tolerated by any instrument of state. Harm has been done to the laudable
objective, articulated by the Constitution that guarantee fair labour practices to
employees. Harm has been done to the administration of justice and to the
requirement that disputes should be speedily and expeditiously resolved, because
of the inertia or arrogance of officials who did not bother to reinstate the applicant
in her previous position. Harm has been done to the confidence with which the
public may accept the reassurance that court orders will be complied with and
implemented forthwith. Harm has been done to the applicant, who for almost
four years has had to endure the uncertainty whether an unresponsive Department
will reinstate her in her previous position. I do not know whether this incident
with which I have had to deal is an isolated one. I certainly hope that it is.
Findings
38. I am satisfied that the applicant has discharged the onus to prove that the order
was granted against the respondents who have not complied with the order of this
Court.
39. This brings me to the relief that needs to be granted in this application. Mr Barrie
who appeared for the applicant urged me to find the first and second respondents
guilty of contempt of court and that I suspend the sentence.
40. After a careful consideration of the facts placed before me and the arguments
raised, I believe that an appropriate order would be to commit the second and
third respondents for fifteen days and to suspend it for sixty days to enable the
respondents to make arrangements to reinstate the applicant in her former
position.
41. There is no reason why costs should not follow the result.
42. In the circumstances I make the following order:
(1) The second and third respondents are found guilty of contempt of the
Court order of 6 August 2001 and are committed to a period of fifteen
days’ imprisonment.
(2) The order of imprisonment is suspended for sixty days to enable the
second and third respondents to make such arrangements as might be
necessary to reinstate the applicant to her former position in terms of the
Court order of 6 August 2001.
(3) The respondents are to pay
the costs of this application,
jointly and severally, the one
paying the other to be
absolved.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
ON BEHALF OF THE APPLICANT : F G BARRIE INSTRUCTED
BOWMAN GILFILLAN INC
ON BEHALF OF THE RESPONDENTS : P C PIO INSTRUCTED BY THE
STATE ATTORNEY
DATE OF JUDGMENT : 20 OCTOBER 2003