Association of Mineworkers and Construction Union (AMCU) and Others v Piet Wes Civils CC and Others (J2834/16; J2845/16) [2021] ZALCJHB 331 (1 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J2834/16

J2845/16

In the matter between:

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION (“AMCU”) First

Applicant

AMCU MEMBERS Second

to further Applicants

and

PIET WES CIVILS CC First

Respondent

WATERLOOF SKOONMAAKDIENSTE CC Second

Respondent

HENDRIK DIEDERICK PIETERSE Third

Respondent

BRUCE GALLET VAN ROOYEN Fourth Respondent

ELIZABETH BARDINDINA PIETERSE Fifth

Respondent

SEANI TSHIELA MPHAPHULI Sixth

Respondent

WILLIAM TEBOGO GOMBA Seventh

Respondent

Heard: 27 August 2021 (via virtual proceedings)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 01 October 2021.

Summary: Contempt of court proceedings – once the applicant successfully establishes the three requisite elements of contempt (i.e. that an order was granted; served; and the respondent failed to comply with the order), wilfulness and mala fides are presumed – the respondent bears an evidentiary burden to establish a reasonable doubt; failing which contempt would have been established.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] The applicant, (AMCU) launched these contempt proceedings on behalf of its members (applicant employees) seeking an order that the respondents be found guilty of contempt of a court for failing to comply with the Court order of Steenkamp J dated 13 January 2017 under case reference numbers J28341/6 and J2845/16 17; and that the third to seventh respondents be incarcerated for such a period as the Court deems appropriate; alternatively, that the respondents be fined an amount the Court deems appropriate.

[2] On 9 December 2019, the order of Lagrange J was granted in terms of which the respondents were required to show cause on 21 February

2020, by way of affidavits, why a contempt order should not be granted against them. The respondents have duly obliged. Even though

AMCU initially sought relief against the fourth, sixth and seventh respondents, it has since abandoned it.

Factual background

[3] The third respondent is a member of the first respondent with 49% interest and a member of the second respondent with 32% interest. The fourth respondent is a member of the first respondent with 51% interest. The fifth respondent is the third respondent’s wife and a member of the second respondent with 17% interest. The sixth respondent is a member of the second respondent with 30% interest. The seventh respondent is a member of the second respondent with 21% interest.

[4] The genesis of the matter is the judgment and order of Steenkamp J wherein he ordered the first and second respondents to reinstate the applicant employees in terms of section 189A(13) of the Labour Relations Act[1] (LRA) until a fair procedure had been complied with as contemplated by section 189 of the LRA. AMCU had launched two separate urgent applications against the first and second respondents, respectively; which were subsequently consolidated.

[5] The first and second respondents unsuccessfully appealed the order of Steenkamp J. On 10 March 2018, the Labour Appeal Court (LAC) dismissed the appeal with costs. Likewise, on 7 November 2018, the application for leave to appeal to the Constitutional Court was dismissed with costs. It is common cause that the third and fifth respondents were aware of all the court orders as the same attorneys who were representing the first and second respondents are their attorneys of record in these proceedings.

[6] Instead of effecting the order of Steenkamp J, the third and fifth respondents assert that the order cannot be complied with for the following reasons:

6.1. The first and second respondents have been dormant and do not conduct any business since December 2016; and that the second respondent is in the process of deregistration;

6.2. They, the third and fifth respondents, have not been involved in the management of the first and / or second respondents;

6.3. There is an alleged acrimonious relationship between the third respondent and the fourth Respondent, a 51% member of the first respondent. As a result, the third respondent is unable to make any decisions in regard to the first respondent on his own; and

6.4. There is an alleged acrimonious relationship between the third and fifth respondents on the one hand, holding a combined 49% of the members interest in the second respondent, and the sixth and seventh Respondents (who together hold 51% of the members' interest in the second respondent) on the other hand, the third and fifth respondents are unable to make any decisions in regard to the second respondent on their own.

Legal principles and application

[7] In Association of Mineworkers and Construction and Others v KPMM Road and Earthworks (Pty) Ltd,[2] the LAC, per Davis JA, aptly summarised the applicable principles as follows:

[15] The principles of the procedure for civil contempt are well established, having been set out luminously by Cameron JA in Fakie v CCII Systems (Pty) Ltd…[3] The applicant is required to prove three requisites for the grant of the order, namely service or notice of the order, noncompliance and wilfulness and mala fides in respect of this noncompliance. Having proved these requisites, Cameron JA stated:

‘once the applicant had proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation

to wilfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether

non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.’

[16] The test of beyond reasonable doubt is important. As the Constitutional Court said in Matjhabeng Local Municipality v Eskom Holding Limited and Others:[4]

‘The civil contempt remedies of committal or a fine have material consequences on an individual’s freedom and security of the

person. However, it is necessary in some instances because disregard of a court order not only deprives the other party of the benefit of the order but also impairs the effective administration of justice. There, the civil standard of proof beyond reasonable doubt – applies always.’

[8] The third and fifth respondents concede the notice of the order and noncompliance but dispute the wilfulness. I now deal with the explanation provided for noncompliance.

[9] The allegation that the first and second respondents became dormant during December 2016 and since then have not been carrying on any business emerged for the first time after the successful appeals against the order of Steenkamp J in the correspondence from third and fifth respondents' attorneys of record, as mentioned above they were also the attorneys of the first and second respondents. There is no explanation proffered by the third and fifth respondents as to how did it come about a dormant company that had ceased to carry on business would manage to persist with the litigation before the Labour Court, the Labour Appeal Court and the Constitutional Court.

[10] What is more startling is that, despite the third and fifth respondents assertions that they are in an acrimonious relationships with the follow members of both the first and second respondents, they still managed to instruct their attorneys of record to attend to the litigation before the Labour Court, the Labour Appeal Court and the Constitutional Court. The third respondent was the deponent to all the affidavits of the first and second respondents in all those proceedings and he unequivocally avowed that he was duly authorised to depose to those affidavits.

[11] The company report from the Companies and Intellectual Property Commission (CIPC) attached to the third and fifth respondents’

answering affidavit clearly shows that the first respondent is still in business and the second respondent is in deregistration process due to failure to file annual returns.[5] As correctly contended by the applicants, the fact that the second respondent might be in a deregistration process is irrelevant because it does not necessarily mean it is not actually carrying on business as the deregistration process is not yet final.

[12] Therefore, it was incumbent upon the third and fifth respondents to provide a substantial evidence to show that the first and second respondents are dormant and no longer trading. It is apparent from the evidence before me that the applicants’ attorneys of record prudently sought this information from the third and fifth respondents’ attorneys even before instituting these proceedings, but to no avail. The same call is repeated in the applicants’ founding affidavit and was persisted with during the hearing of the matter. Still, the third and fifth respondents failed to give an explanation as to why they are not in a position to discover pertinent information, such as the first and second respondents’ bank statements or reports from their registered auditors, to support the assertion that these companies are not trading.

[13] The third and fifth respondents’ assertion that they were not involved in the management of the first and second respondents is vehemently disputed by the fourth, sixth and seventh respondents. All of them respectively assert that they were not aware that there had been an ongoing litigation between the applicants and the first and second respondents.

[14] The fourth respondent was not even in the picture when the order of Steenkamp J was delivered on 13 January 2017. Contrary to what the third and fourth respondents are alleging in their answering affidavit that there is an acrimonious relationship between the third and fourth respondents, it is clear that it pertains to the litigation over the sale of membership interest by the fourth respondent to third respondent. What is obvious from the papers before the Court is that the third respondent was indeed solely in control of the first respondent when the order of Steenkamp J was delivered and during its subsequent unsuccessful challenge. To my mind, it is the third respondent who should be solely held responsible for the noncompliance with the order of Steenkamp J in respect of the first respondent.

[15] When it comes to the second respondent, it is clear from the answering affidavits filed by the sixth and seventh respondents that they were just mere employees and, even though they are identified by the second respondent as members with 51% interests combined, they were unaware or uncertain of their roles.

[16] The sixth respondent was employed by the second respondent as part of the Administration Division and a Trainee Director in 2015, she never trained as a Director nor assumed any responsibility as such. Her contract of employment was also terminated in November 2016. While the seventh respondent commenced his employment with the second respondent as an End Loader Operator in 2006. He was promoted to be a Supervisor and later a Foreman. His contract of employment was terminated in November 2016 and has never been involved with the second respondent consequent thereon.

[17] This evidence was not seriously challenged. Instead the third and fifth respondents seem to suggest that the sixth and seventh respondents were part of management decisions and, as such, attached the minutes of a board meeting that sat on 30 May 2016 which resolved to change the membership interests. No other minutes were filed which could support the assertion that sixth and seventh respondent were part of any operational decisions. On the contrary, we know from the third respondent and fifth respondents assertion that no operational resolution had been taken in respect of both the first and second respondents. Obviously, the third and fifth respondents were the only members in control of the second respondent and should be held responsible for noncompliance with the order by Steenkamp J in respect of the second respondent.

[18] To the extent that the third and fifth respondents seem to suggest that it is impossible for the first and second respondents and their members to reinstate the applicant employees to non-existent positions, the answer is found in the following sentiments expressed

by Steenkamp J in the main judgment where he succinctly dealt with the purpose of section 189A(13) of the LRA:[6]

‘[21] Section 189A(13) has as its purpose to compel an employer in large scale retrenchments to follow a fair procedure if it has not done so.

[22] As the learned authors in Labour Relations Law: A Comprehensive Guide[7] point out, “the purpose of providing for application proceedings rather than ordinary referral is presumably to simplify and expedite the resolution of disputes about procedural unfairness.” Hence this urgent application.

[23] The authors of South African Labour Law[8] explain:

‘The procedural dimension of retrenchment has been hived off from the substantive dimension. The idea is that if a union or employee sees a failure in the consultative process, they should not stand on their rights but act at once, and approach the court for appropriate relief. The intent no doubt is to allow for early corrective action so that a process failure will not escalate into a substantive injustice.’

[24] The Constitutional Court recently gave a comprehensive judgment dealing with the provisions of s 189A. In Steenkamp v Edcon Ltd[9] Zondo J (for the majority) discussed s 189A(13) in circumstances such as these, where the employees had already been dismissed:

‘[161] If an employer has already dismissed employees without complying with a fair procedure, the consulting party may apply to the Labour Court in terms of subsection (13)(c) for an order reinstating the employees until the employer has complied with a fair procedure. The significance of the remedy of reinstatement in subsection (13)(c) is that it is made available even for a dismissal that is unfair only because of non-compliance with a fair procedure. That is significant because it is a departure from the normal provision that reinstatement may not be granted in a case where the only basis for the finding that the dismissal is unfair is the employer’s failure to comply with a fair procedure. In such a case the norm is that the Labour Court or an arbitrator may award the employee only compensation.

[162] Subsection (13)(d) provides that a consulting party may apply to the Labour Court for an award of compensation “if an order in terms of paragraphs (a) to (c) is not appropriate”. It seems to me that the phrase “if an order in terms of paragraphs (a) to (c) is not appropriate” constitutes a condition precedent that must exist before the Court may award compensation. The significance of this condition precedent is that its effect is that the Labour Court is required to regard the orders provided for in subsection (13)(a) to (c) as the preferred remedies in the sense that the Labour Court should only consider the remedy in subsection (13)(d) when it is not appropriate to make any of the orders in subsection (13)(a) to (c).

[163] This is a reversal of the legal position that obtains in the case of dismissals for the employer’s operational requirements governed by only section 189 where dismissal is only procedurally unfair and not substantively unfair as well. In these cases the Labour Court is required not to order reinstatement at all. So, in making the remedy of reinstatement available for a procedurally unfair dismissal and also making it one of the preferred remedies in subsection (13), the Legislature has gone out of its way to give special protection for the rights of employees and to protect the integrity of the procedural requirements of dismissals governed by section 189A.

[164] The extensive remedies in subsection (13) provide at least partial compensation for the fact that in respect of disputes concerning the procedural fairness of dismissals the employees have been deprived of the right to adjudication that other employees have. In part the extensive remedies in subsection (13) for non-compliance with procedural fairness have been provided because of the importance of the pre-dismissal process.’

[25] In this case, it is common cause that there’s been no consultation: the employers did not think it necessary. The primary remedy prescribed by the legislature and endorsed by the court is that of reinstatement until the employers have complied with a fair procedure.’

[19] Obviously, the authorities referred to by the third and fifth respondents find no application in the present instance. Moreover, reinstatement in the present instance has already been ordered and upheld by the superior courts. It does not, therefore, avail the third and fifth respondents to resurrect the argument over the appropriateness of this relief. The purpose of this relief is clearly to vindicate the applicant employees’ right to be consulted prior to being retrenched.

[20] In the light of the fact that the applicants have successfully established the three requisite elements for contempt of court (i,e. (i) that the order was granted against the first and second respondents; (ii) the fists, second, third and fifth respondents were served with the order or had knowledge of it; and (iii) that they failed to comply with the order), wilfulness and mala fides are presumed. Therefore, first, second, third and fifth respondents had to discharge an evidentiary burden to establish a reasonable doubt.[10]

[21] Absent any proof that the first and second respondents are dormant or no longer trading and the findings I have arrived at above, I am satisfied that the first, second, third and fifth respondents failed to discharge the evidentiary burden to establish a reasonable doubt that they exhibit wilfulness and mala fides.

Conclusion

[22] In the circumstances, the crime of contempt of court has been established. The applicants sought an order that the third and fourth respondents be committed to gaol for contempt of court. I am however not predisposed to do so. I accept that the conduct of the contemnors cannot be countenanced as it evidences a contumacious disobedience of judicial authority.[11] Still, in my view, this is not the case for the granting of a punitive sanction of committal.

[23] The contemnors should be given a chance to redeem themselves by purging the contempt within 10 days from the date of this judgment and order. Should they fail to do so, they shall be ordered to pay a fine of R 100 000.00 (Hundred Thousand Rand) jointly and severally, the one paying the other to be absolved. Such a fine shall be payable at the office of the Registrar of this Court by not later than 29 October 2021.

Costs

[24] In the light of the issues discussed above, it is my view that the third and fifth respondents should pay the costs of this application.

[25] In the circumstances, I make the following order:

Order

1. The first, second, third and fifth respondents are held to be in contempt of the court order of Steenkamp J, dated 13 January 2017.

2. The first, second, third and fifth respondents shall purge the contempt within 10 days from the date of the judgment.

3. Should the first, second, third and fifth respondents fail to comply with the order in paragraph 2 above, they shall pay a fine of R 100 000.00 (Hundred Thousand Rand) jointly and severally, the one paying the other to be absolved, payable at the office of the Registrar of this Court by not later than 29 October 2021.

4. The third and fifth respondents shall pay the costs of this application.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate

L Hollander

Instructed by: LDA

Inc. Attorneys

For the Fourth and Fifth Respondents: Advocate H Gerber SC

Instructed by: Cavanagh and Richards Attorneys

[1] Act 66 of 1995, as amended.

[2] [2018] ZALAC 28; (2019) 40 ILJ 297 (LAC); [2019] 4 BLLR 340 (LAC) at paras 15-16. See also Director-General, Department of Rural Development and Land Reform, and Another v Mwelase and Others 2019 (2) SA 81 (SCA) (Department of Rural Development); Matjhabeng Local Municipality v Eskom Holdings Ltd and Others 2018 (1) SA 1 (CC) (Matjhabeng); Pheko v Ekurhuleni Metropolitan Municipality (No 2) [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (Pheko II); Fakie NO v CCII Systems (Pty)) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (Fakie).

[3] [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 42.

[4] 2018 (1) SA 1 (CC) para 67.

[5] See: CIPC Report, pages 74 and 30.

[6] AMCU and Others v Piet Wes Civils CC and Another [2017] ZALCJHB 7; (2017) 38 ILJ 1128 (LC); [2017] 5 BLLR 501 (LC) at para s21-25.

[7] Du Toit et al, Labour Relations Law: A Comprehensive Guide (6 ed 2016) at 497.

[8] Thompson & Benjamin, South African Labour Law (Service no 66, 2016) at AA1-517.

[9] (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC) paras 161-164.

[10] Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others) [2021] ZACC 18; 2021 (9) BCLR 992 (CC)(Zuma) at para 37.

[11] See: Matjhabeng at para 65 and Pheko II at para 37 supra n 2.