Dr Crouse Gorman & Associates v Minister of Labour and Others (57564/2015) [2020] ZAGPPHC 124 (9 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: 57564/2015

9/3/2020

In the matter between:

DR CROUSE GORMAN & ASSOCIATES

Applicant

and

MINISTER OF LABOUR 1st Respondent

DIRECTOR GENERAL LABOUR

2nd Respondent

THE COMPENSATION COMMISSIONER

3rd Respondent

JUDGMENT

VAN OLST, AJ

[1] This is an opposed application in terms of which the Applicant applies for an order that the Second Respondent, to wit, The Director General of Labour, be declared in contempt of a court order granted by the Honourable Madam Justice Kubushi in this Court on 21st of October 2015.

[2] Mr R Ellis on behalf of the Applicant and indicated that:

[a] On the 21st of October 2015 an Order was granted that:

"[a] The Second Respondent is hereby directed to make payment to the Applicant from the Compensation Fund established under section 15 of 130 of 1993 of R69, 313 86 together with interest thereon from 2 February 2015 at a rate, of 15,5% per annum.

[b] The Respondent to pay the Applicant's costs of the application.''.

[c] No relief was granted against the First or Third Respondents.

[d] The Order granted on 21st October 2015 was served on the office of the State Attorney, Pretoria, Ground Floor, SALU Building, 316 Thabo Sehume Street Pretoria on the 28th of October 2015. A copy of the Order was also submitted via email transmission to the State Attorney :m the 2nd of November 2015.

[e] The Applicant's attorneys on 7 March 2016 addressed a letter· to the Respondents' attorneys indicating that should the Order dated October 2015 not be honoured, contempt proceedings will be instituted.

[f] On 17 March 2016, Ms Nompunelelo Mabaso from the Department of Labour addressed a letter requesting the banking det:1ils of the Applicant and indicated that on receipt of banking details "med1:al services will make payment. The banking details were provided on 18 March 2016. No payment was made in terms of the Order dated 1 October 2015.

[g] The present application was launched and set down for hearing on 28 July 2016. The Respondents served a Notice of Intention to Oppose on 25 July 2016. The application served before Mr Justice Kollapen on 28th July 2016 and the following order was made:

“1. That this application be postponed sine die;

2. That the Respondents, jointly and severally pays the costs of the Applicant and that such costs are tendered by the Respondents;

3. That the Respondents provide remittance advices in respect of the alleged payments to the Applicant within the next two weeks ".

[h] A further notice of set down of the contempt application was served and set down for hearing on the unopposed roll of 20 October 2016. The Notice of Set Down was served on the attorneys for the Respondents on the 1st of September 2016.

[i] On 20 October 2016, Mr Justice Kollapen made the following order:

"1 The matter is postponed sine die.

2 The Respondents shall file their answering affidavit within ten days from the date of this order.

3 The Applicant may set down the matter on the unopposed motion roll in the event of the Respondents failed to comply with prayer 2 supra.

4 The First, Second and Third Respondents is ordered to pay the costs· occasioned by the postponement of the application. jointly and severally, the one paying the other to be absolved on an attorney and client scale.".

[j] The Respondents served their Answering Affidavit on 10 November 2016.

[k] The Respondents raised several defences in their Answering Affidavit, as follows:

[i] Lack of service of the court order on the Respondents;

[ii] Invoices have been paid.

[3] All orders of court, whether correctly or incorrectly granted, must be complied with until they are set aside. In order for an applicant to succeed in an application for contempt of court the applicant must prove:

[i] Service/notice of the order on the respondent and non- compliance by the respondent;

[ii] Respondent bears the evidentiary burden in relation to wilfulness and mala tides;

[iii] The applicant must prove the requisites for contempt beyond reasonable doubt.

See Culverwell v Beira 1992(4) SA 490 (W) at 4948; Bezuidenhout v Patensie Sitrus Beherend Bpk 2001(2) SA 224 (E) at 229 8-D ; Holtz v Douglas and Associates (OFS) CC 1991(2) SA 797 (0) at 802; Sparks v Sparks 1998 ' 4) SA 714 (YV),Fakie [infra], Els v Weidemann and Others 2011(2) SA 126 (SCA) at 67 - 77.

[iv] Where the contempt is of a serious and prolonged nature the court will be less inclined to assist the party in contempt despite an explanation and apology - See Bruckner v Bruckner 1999 3 All S 544 (C).

[4] Mr D Motsweni appeared on behalf of the Respondents and indicated that:

[a] The Applicant failed to join the Director-General in his personal capacity as a party to the proceedings, notwithstanding the fact that tl1e relief sought has personal consequences on him or her – see Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (SCA); Pheko and Others v Ekhuruleni Metropolitan MuncipaUty 2014(5) SA 686 (CC) at para 47; De Lange v Smuts NO 199E(3) SA 785 (CC) para 131; Matjhabeng Local Municipality v Eskom Holdings Limited and Others: Mkhonto and Others v Compensation Solutions (Pty) Limited 2018 (11) SA 1 (CC) at para 92. Also see Section 53 of the Constitution. Specific reference was made to Fakie NO v CCII Systems (Pty) Ltd 2006(4) SA 326 (SCA) with reference to Section 12 of the Bill of Rights as well as Section 53 of the Constitution of South Africa.

[b] The Applicants failed to effect personal service or bring the court order to the attention of the Respondent whom it seeks to have incarcerated. See Mjeni v Minister of Health and Welfare, Eastern Cape 2002(4) SA 447 (TKHC) at 45G-H; R v Keyser 1951(1) SA 5·12 (A)

[c] The Court Order in and its nature is ad factum pecuniam and not ad factum solvendam and a failure to comply therewith cannot be regarded as contempt of court - see Coetzee v Government of RSA: Matiso v Commanding Officer Part Elizabeth Prisons 1995(4) SA 631 (CC) at para 61; Cape Times Ltd v Union Trades Directorates (Pty) Ltd and Others 1956(1) SA 105 (N); BJS Contractors (Pty) Ltd v Lategan 1975(2) SA 590 (C) and the Pheko matter [supra].

[d] Any non-compliance with the court order is not intentional and/or mala fide.

[e] The Respondents do not agree with the contention by Mr EIlis regarding the Applicant's interpretation of Fakie NO v CCII Systems (Pty) Ltd [supra].

[f] Proof was provided by the Respondents that payment as already made of the amount claimed by the Applicant.

[g] In the premises the Applicant's application should be dismissed with costs.

[5] According to Mr R Ellis the Applicant:

[a] Already admitted being aware of the Order granted by way of the letter dated 20 November 2015. The Court Order was served on the Respondents' attorneys by way of Filing Notice in October 2015.

[b] The Respondents admitted that they· have not provided remittance advices that payment had in fact been made. No proof of payment by way of remittance advices have been provided up to date of the hearing of this application.

[c] Respondents also, in the Answering Affidavit indicated their intention to launch an application for rescission of the Court Order - no application has been launched to date of the hearing of this application.

[d] It was admitted that the Applicant, in view of the judgements referred to in paragraph [4](a) above, must join the Director General Labour in his or her personal capacity and will proceed with such joinder application.

[e] Applicant therefore seeks an order in terms of prayer [a] of the Notice of Motion to the effect that the Second Respondent be and is hereby declared to be in contempt of the Order dated 21 October 2015, that prayers [b] and [c] be postponed sine die.

[6] Regard having been had to the arguments on behalf of the Applicant and Respondents, more in particular on behalf of the Second Respondent,

and taking into account the relevant case law referred to above, the following order is made:

1. The application is postponed sine die pending the outcome of the joinder application as envisaged against the Second Respondent in his or her personal capacity;

2. The Applicant is ordered to proceed with the joinder application of the Second Respondent in his or her personal capacity within 1 [one] month from the date of this order being granted;

3. The Applicant is ordered to, after the joinder application of the Second Respondent in his or her personal capacity has been dispensed with, effect personal service of the Order granted on 21 October 2015 on the Second Respondent in his or her personal capacity;

4. The costs of this application is reserved.

E VAN OLST

Acting Judge of the High Court,

Gauteng Division, Pretoria

Appearances:

For the Applicant: Mr R Ellis

Instructed by:

Kruse Attorneys

For the Respondent: Mr D Motsweni

Applicant heard on: 17 February 2020

State Attorney

Judgment delivered on: 9 March 2020