Association Mineworkers and Construction Union obo the AMCU Members v T.W. Civils and Earthmoving (PTY) Ltd and Another (J 1066/2020) [2022] ZALCJHB 223 (8 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1066/2020

In the matter between:

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION obo

THE AMCU MEMBERS AS PER ANNEXURE “A”

APPLICANTS

and

T.W. CIVILS AND EARTHMOVING (PTY) LTD

(Registration Number: K2013/00487/07)

1ST RESPONDENT

WILLEM FRANS TE WATER DEWALD TE WATER

2ND RESPONDENT

Heard: 28 July 2022

Delivered: 08 August 2022

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be _ August 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to hold the respondents in contempt of court for their alleged failure to comply with an order issued by this court on 21 October 2020. In accordance with the practice in this court, the order was obtained on an ex parte basis and the respondents have subsequently filed affidavits in which they dispute that they are in contempt of the order and averred that the application to hold in contempt was vexatious.

[2] The second and third respondents are directors of the first respondent, a company in the business of construction and plant hire.

[3] In the founding affidavit, the applicants sketch the background to the dispute between the parties. In June 2020, the first respondent issued a notice in terms of section 189A of the LRA. The applicants contend that in August 2020, the parties met at the CCMA for the purpose of a facilitation meeting. The presiding commissioner issued a report on 15 September 2020 recording that the facilitation process had been suspended on account of the fact that the first respondent

had decided to terminate the employment of some 54 of its employees. The application filed by the union was brought in terms of section 189A (13) under case number J1066/2020. The application came before the court on 21 October 2020 when the following order was granted by consent:

1. The Respondent is to reinstate the individuals listed in annexure A as from 22 October 2020. The reinstatement of the individuals shall be subject to the orders under (2), (3),(4) and (5) below;

2. The parties are to agree on dates within which a proper consultation can take place, under facilitation under the provisions of section 189A (3) or (4) of the Labour Relations Act;

3. Any consultations/facilitation as mentioned in (2) above shall be finalised within 30 (thirty) days from the date of this order, and depending on its outcome, the parties may exercise the rights under the provisions of section 189A (7) of the Labour Relations Act;

4. The severance pay which has been paid to the individuals whose jobs are saved after the consultation period as mentioned in paragraph (3) above, shall be deducted from those individuals salaries subsequent to the conclusion of the 30 (thirty) day period;

5. The individual applicants whose jobs are incapable of being saved following the consultation period mentioned in paragraph (3) above,

will not be required to refund the severance packages that have already been paid;

6. Each party is to pay’s own costs.

[4] In their founding affidavit, the applicants aver that the individual employees (54 individual applicants are listed in an annexure to the founding affidavit) tendered their services on 22 October 2020, that the tender was refused, and that the respondents have failed to comply with paragraphs 1, 2 and 3 of the order. The applicants aver

that the first respondent had not reinstated the individual employees despite the tender of services, and that it had not paid the individual employees their back pay. The deponent to the affidavit, a regional union organiser, states that the first respondent ‘has refused steadfastly refused (sic) to reinstate the individual Employees and to pay the back pay due to each of the individual Employees including to follow the retrenchment procedure as the Court Ordered it to do (sic)’.

[5] On 22 April 2022, the application having been heard on an ex parte basis, this court issued a rule nisi calling on the respondents to show cause why they should not be held in contempt of court.

[6] The respondents filed an explanatory affidavit on 20 July 2022. In the affidavit, the respondents record that in their understanding, the order granted on 21 October 2020 obliged the first respondent to reinstate the individual applicants, and the parties to agree on dates for consultation or facilitation, such process to be finalised within 30 days of the date of the court order, subsequent to which either party was entitled to exercise their rights in terms of the provisions of section 189A (7). The respondents aver that subsequent to the order, it reinstated the employees on 22 October 2022 on the basis that the employees were not required to report for work, since there was no work to be performed. The respondents averred that the first applicant, the union, failed to provide it with dates and the first respondent ultimately referred the matter for facilitation on 22 October 2020. Facilitation is was held during the course of December 2020 and concluded on 26 January 2021, when the presiding commissioner recorded that the parties were free to exercise their respective rights as contemplated by the order. On 1 February 2021, the respondent gave notice of termination of employment of the 19 affected employees.

[7] On 26 February 2021, the union referred an unfair dismissal dispute to the CCMA, where a certificate of outcome was issued on 18 March 2021. The union has not referred the matter to this court for adjudication. In short, the respondents averred that they have complied in full with the order and in fact, continued the consultation process for some 34 days beyond what was required in terms of the order. In particular, the respondents aver that the individual employees were paid ‘until December 2020’.

[8] The respondents submit that nothing in the order of 21 October 2020 obliged them to provide individual employees with work, or to allow them to work. What was required was for the first respondent to reinstate the affected employees for a period of 30 days so as to finalise the consultation process. The respondents complain that the applicants failed to make full and frank disclosure to the court in their ex parte application by failing to make any averments in regard to the consultation process that followed the granting of the order and point out that it has taken the applicants more than 12 months to file the contempt of court application, the only plausible inference being that the applicants had failed to refer the unfair dismissal claim to this court within the prescribed time limit and had resorted to the present application only for that reason.

[9] The application came before court on 22 July 2022. At the hearing, the applicants effectively abandoned their contention that the first respondent had refused to reinstate them but persisted with the claim that the individual applicants had not been paid for the 30-day period referred to in the order. The matter was stood down to enable

the parties to determine whether any payments had been made and if possible, to resolve the matter.

[10] On 28 July 2022, the respondents filed a supplementary affidavit. In that affidavit, the respondents record that the applicants’ attorneys were provided with a schedule reflecting payments made to each of the 19 employees that were reinstated. The applicants demanded bank statements, which were provided on 27 July 2022. The bank statements disclose payments made on 11 January 2021 to each of the reinstated employees.

[11] The applicants filed a replying affidavit on 29 July 2022. The replying affidavit only addresses the issue of payment and makes much of the respondents’ averment in the explanatory affidavit that the individual applicants were paid ‘until December of 2020’ and the later averment that they were employed for the duration of the consultation process, which ended, on the respondent’s version, on 26 January 2021.

[12] The test to be applied is well-established. The principles relevant to contempt were set out by Cameron J in Fakie NO v CCI Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA). It is a crime unlawfully and intentionally to disobey a court order, the essence of which lies in violating the dignity, repute or authority of the court. The order in question must be one ad factum praestandum, the order must have been served on the respondent or the respondent must have been advised of the order in circumstances where there are no reasonable grounds for disbelieving the information, and the respondent must have failed to comply with the order, and the failure to comply must be both mala fide and wilful (see Fakie NO (supra), Uncedo Taxi Service Association v Maninjwa & others [1998] BCLR 683 (E), Bruckner v Dept of Health and others [2003] 12 BLLR 1229 (LC)). In regard to willfulness and mala fides, the first respondent bears an evidentiary bid to adduce evidence to rebut the inference that the non-compliance was not willful and mala fide (see Fakie NBO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA)). More than a failure to comply with the order is required - in Matjhabeng Local Municipality v Eskom Holdings Ltd and others 2018 (1) SA 1 (CC), the Constitutional Court recently affirmed that contempt of court does not consist of mere disobedience of a court order, but of ‘contumacious disrespect for judicial authority’. The breaching of court orders, wilfully and with mala fides, undermines the authority of the courts and thus adversely affects the broader public interest.

[13] The essence of the contempt alleged by the applicants is contained in paragraph 29 of the founding affidavit. In that paragraph, the deponent, a union official, states the following:

29. To date, the Company has failed to comply with the Court Order. It is reviewed steadfastly refused (sic) to reinstate the individual employees and to pay the back pay due to each of the individual employees including to follow the retrenchment procedure as the court ordered it to do.

[14] This is a regrettable formulation, given that when the matter came before court, the applicants abandoned the contentions that the first respondent had refused to reinstate the individual employees or that it had failed to follow the retrenchment procedure as ordered. There is no dispute that the affected employees were reinstated, in circumstances where they were not required to work, given that there was no work available for them to do. It is also not in dispute that the consultation process commenced after the order was garneted, and that it continued with the assistance of a CCMA-appointed facilitator

well beyond the 30-day period required by the terms of the order. As I have indicated, the only issue that remained in dispute by the time that the matter was heard was whether the first respondent had paid the employees the back pay due to them.

[15] Counsel for the respondents submitted that in respect of any back pay owing to the individual applicants, the order is not to be one ad factum praestandum. He relied on National Union of Metalworkers of South Africa obo Fohlisa and others v Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd (2017) 38 ILJ 1560 (CC) to submit that there can be no contention that the respondents are in contempt of court for a failure to make payment of wages consequent on the order of reinstatement. That case primarily concerned the application of prescription in circumstances

where employees reinstated consequent on an unfair dismissal. The LAC had held that an order of reinstatement did not encompass an order quantifying the arrear wages payable for the entire period from the date of the order reinstate statement to date of compliance and that the restoration of the employment contract in the form of an order for reinstatement had the result that an employee holds a contractual claim for the payment of any arrear wages which accrued under the contract. The Constitutional Court reversed this finding in two judgments which came to the same conclusion but for different reasons. The respondents’ counsel relied on the judgment of Zondo J (as he then was) who held that the claim fell into two distinct categories: the one before the reinstatement order and the other being the period after the reinstatement order. Zondo J held that the claim relating to the first was a judgment debt; the claim in relation to the second period was a contractual debt, but one which on the facts had not prescribed. This judgement was recently upheld by the Labour Appeal Court in Kubheka and others v Ni-Da Transport (Pty) Ltd [2021] 4 BLLR 352 (LAC) where the court confirmed that the actual reinstatement of employees resulted in the restoration of their contracts of employment and that any claim to wages in those circumstances was a contractual debt to be dealt with in terms of the principles of the law of contract.

[16] It follows that any claim in respect of remuneration consequent on the reinstatement ordered by the court on 21 October 2021 is a contractual claim sounding in money. It is thus not competent for the applicants to seek to hold the respondents in contempt. Their remedy is to quantify their claim and seek to execute by way of a writ of execution. The respondents have complied with that part of the order that constitutes an order ad factum praestandum and there can thus be no question of them being in contempt. To the extent that the respondents by way of reply makes much of what they contend to be a discrepancy between the explanatory affidavit and the latest supplementary affidavit in regard to the period for which the individual applicants were paid, on the above principle any failure to pay for the 30-day period referred to in paragraph 1 of the court order gives rise to a contractual claim for future wages to be enforced other than by way of contempt proceedings.

[17] In short, the respondents’ obligations in terms of the court order was to reinstate the individual applicants for at least a period of 30 days. The applicants have conceded that the individual applicants were reinstated. Although the applicants contend that in these proceedings they do not seek to enforce any claim sounding in money but rather to seek that the court find the respondents to be in contempt for failing to reinstate the individual applicants, the nature of the claim is one that precludes them from seeking to enforce the order by way of contempt proceedings. The application thus stands to be dismissed

[18] The respondents seek costs on a punitive scale. First, they submit that the ex parte application was brought in circumstances where the applicants failed in their duty to place all relevant facts before the court. In particular, the respondents submit that the applicants failed in the founding affidavit to make any mention of the fact that a consultation process was held after the court order was granted and that the process continued until the individual applicants were dismissed with effect from 1 February 2021, a period significantly in excess of the 30-day period prescribed by the terms of the order. Further, the respondents contend that the application constituted an abuse of court in the sense that it was a hopeless

case, without any prospects of success.

[19] The provisions of section 162 of the LRA provides that the court may grant an order for costs according to the requirements of the law and fairness. In the present instance, I must necessarily take into account that the founding affidavit is nothing less than misguided. The averment that the first respondent had failed to comply with paragraphs 2 and 3 of the court order is simply nonsensical and the allegation of an alleged failure to reinstate the individual applicants, the subject of paragraph 1 of the order, was quickly abandoned. There is also the question of delay. An application to enforce a court order must necessarily be brought within a reasonable time. In the present instance, the order was granted in October 2020, and the consultation process that ensued continued until the end of January the next year. There is simply no explanation why, if the applicants genuinely regarded the respondents to be in contempt of the order, the application to hold in contempt was not brought earlier. The delay of some 18 months is unacceptable, unexplained, and suggests some ulterior motive. Finally, there is the matter of the applicants failing in the founding affidavit to disclose all relevant facts. There can be no question that the facts relating to the facilitation meetings, the ultimate retrenchment of the individual applicants more than three months after the date of the order and the subsequent referral of an unfair dismissal dispute to the CCMA were known to the deponent, Mr Mndlovu, and his failure to disclose them is inexplicable. In my view, for these reasons, the requirements of the law and fairness are best satisfied by an order for costs on the ordinary scale.

Order

1. The application is dismissed, with costs.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

AL Cook

Instructed by:

LDA Attorneys Inc.

For the respondents:

DJ Groenwald

Instructed by:

Cronje De Waal Attorneys