Inqubelaphambili Trade Union, Administrator NO v Mfebe and Others (J614/2020) [2021] ZALCJHB 328 (4 October 2021)

THE LABOUR COURT OF SOUTH AFRICA,

HELD AT JOHANNESBURG

Of interest to other judges

Case : J 614/2020

In the matter between:

INQUBELAPHAMBILI TRADE UNION,

ADMINISTRATOR N.O. Applicant

and

WILBER MFEBE First Respondent

MBEKISENI MVUBU Second Respondent

REGISTRAR OF LABOUR RELATIONS Third Respondent

STUDIO ARCHITECTURE Fourth Respondent

Date of Hearing: 21 September 2021

Date of Judgment: 04 October 2021

This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 12h00 on 4 October 2021

Summary: (Contempt – wilful breach – mistaken belief in existence of a defense, which might be bona fide, even if self-serving – not guilty on this occasion)

JUDGMENT

LAGRANGE J

Introduction

[1] This is an urgent application launched by the administrator of the applicant union, Inqubelaphambili Trade Union (‘ITU’). It has been erroneously launched[1] under the same case number used in previous applications involving litigation between the same parties, though not always to the

exclusion of additional parties. The fact that the issues in each application have covered similar ground does not mean a party should not initiate fresh proceedings, in which different relief is sought, under a new case number.

[2] The application was filed on 13 September 2021 and enrolled for hearing on 16 September. On that occasion it was postponed until 21 September to allow the respondents to file an answering affidavit and the applicant to file a replying affidavit if any.

[3] On this occasion, the administrator asks the court to urgently find the first and second respondents guilty of contempt of an order handed down by Prinsloo J on 22 June 2021. The application is opposed by the first and second respondents, namely Mr W Mfebe and Mr M Mvubu, who filed answering affidavits.

[4] A preliminary objection was raised to Mr Raubenheimer representing the applicant but I am satisfied he was briefed and was entitled to appear in terms of the provisions of the

Background

[5] Before addressing the merits of the contempt application, it is necessary to briefly sketch the chain of events leading to the application. The summary provided does not purport to be comprehensive, but merely sufficient to contextualize the current application.

[6] A rift developed in the leadership of the union, which became manifest to the court in December 2019 when Nkutha-Nkontwana J stayed disciplinary action taken in progress against members of one of the leadership factions.

[7] Owing to the conflict, no national congress of ITU was convened from 2016 to 2019, inclusive. From 8 November 2019, the registrar initiated the de- registration process on the basis that the union had ceased to function in terms of its constitution and because it was an association before the gain of individuals. However, while this process was underway, a special national congress was purportedly called. By the president of the union scheduled for 22 February 2020.

[8] On 22 February 2020, Mfebe advised the administrator that a “newly appointed I.T.U. NEC/structure” in line with the union’s constitution together with “the previous NEC”, wished to meet with the administrator within seven days to discuss a variety of issues with him. Without going into detail, most of the issues concerned the exercise of the administrator’s powers. The administrator responded that he would not meet with them because the purported NEC was not recognised by him. Nonetheless, Mfebe, as a union official, was invited to engage with the administrator. The administrator expressed his concern that Mfebe should continue to act as if he had been elected at an NEC and objected to him using union letterheads without any authorisation.

[9] On 26 February 2020, Mahosi J found inter alia that the respondents in the application decided by Nkutha-Nkontwana J on 19 December 2019 were in contempt of that order because they proceeded to issue the applicants in that matter with letters of dismissal. One of the respondents was Mvubu, the second respondent in this matter. The court imposed a fine of R 5, 000 on each of the respondents in that matter.

[10] On 24 July 2020, Moshoana J handed down judgment in an urgent application ostensibly brought by the union at the instance of the disputed NEC, which the respondents maintain was properly established on 22 February 2020. In that application the court found that the applicants were essentially seeking a declaration of rights to authorize the purported NEC to run the affairs of the union. In his judgment, the learned judge records, after the ostensible NEC meeting of 22 February 2020, that:

“[5] In consideration thereof, on 26 February 2020, the registrar is informed about the new structure. On 7 July 2020, the registrar rejected the new structure in writing. The basis thereof is that the special congress was called after the registrar had commenced a process of whether to cancel registration or replying to court for the appointment of an administrator…

[7] …In his letter of 7 July 2020, the registrar stated the following:

“Therefore the special Congress held on 22 February 2020 by ITU is rejected and any decision taken in the congress is declared invalid and void.

The so-called ITU newly elected structure submitted to this office by the union on 26 February 2020 is rejected at will not be accepted and endorsed by this office.”

[Original emphasis]

[11] The court concluded that whether or not the registrar had the power to make such a decision on the status of the NEC, it remained legally effective unless set aside. Accordingly, the court concluded, as a matter of fact that the newly elected NEC is invalid and void, unless the registrar’s decision was reviewed and set aside. Consequently, the court dismissed the application to validate the legitimacy of the NEC ostensibly elected on 22 February 2020.

[12] On 13 August 2020, Coetzee AJ granted an urgent application brought by the Registrar of Labour relations [‘the registrar’] to place ITU under administration. Apart from treating the application as urgent, the court made the following order:

‘[24.2] the first respondent is placed under Administration in terms of section 103A of the LRA as amended;

[24.3] Charles Miles Dell is hereby appointed as the Administrator of the first respondent in terms of section 103A of the LRA with effect from the date of this order;

[24.4] The terms of reference appearing on page 242 - 247 of the record are attached to this order and shall be the terms of reference for the appointed administrator.

[24.5] The registrar of Labour Relations is declared compliant with the directive of the court in the order of 26 February 2020 in case numbers J2414/19 and J34/20.

[24.6] The Administrator is directed to convene a national congress within six months of this order.

[24.7] The costs of this application are costs in the administration.’

[13] On 28 May 2021, the administrator authorized the institution of disciplinary action against Mfebe relating inter alia to: his alleged creation of dissent and propagation of misinformation relating to his purported status as general secretary of the union; maligning the office of the administrator by the propagation of falsehoods and misrepresentations; continuing to act as if he was not under suspension, and being a party to a settlement agreement at the CCMA in terms of which the administrator’s suspension of himself and Mvubu was purportedly revoked by Mr W Mutwanamba (‘Mutwanamba’) acting on behalf of the union. Mutwanamba was one of the members of the NEC which the respondents claimed was duly established on 22 February 2020, and whom they claim is the President of the union. In June 2021, the external chairperson of Mfebe’s disciplinary inquiry found that he was guilty of misrepresenting to an employer that he was authorized to represent an employee and of being party to a fraudulent settlement agreement at the CCMA.

[14] The respondents have not sought leave to appeal against the judgment of Moshoana J.

[15] The judgment the respondents are accused of being in contempt of is the judgment of Prinsloo J handed down on 22 June 2021. In the judgment it was noted that the court order placing the union under administration had also directed the administrator to convene a national congress within six months of the order. The administrator had successfully approached the court for an extension of that period to 2 September 2021. The administrator had applied for permission to adapt the requirements for convening a national congress and to conduct the election of office bearers, as set out in the union’s constitution, to the exigencies imposed by the need to comply with the Covid 19 protocols and the Disaster Management Act (57 of 2002), regulations promulgated on 15 June 2021.[2] in addition, he had applied for an interdict prohibiting the respondents from interfering with his administration and undermining

his authorities in the execution of his duties pursuant to the court order of 12 August 2020, including the terms of reference attached thereto. The court found that the arbitrator’s averments to the effect that they had acted in blatant disregard of his office and, or alternatively, obstructed the performance of his duties was not disputed by the respondents.

[16] Ultimately the court ordered, amongst other things, that the respondents were “interdicted and restrained from interfering with, undermining or negatively impacting in any manner whatsoever, the process of the administrator or his authority and the execution of his duties, as per the powers vested in him, per the court order of 12 of August 2020 and the terms of reference issued in terms thereof”. The court further ordered that “pending the outcome of an elective Congress and unless so elected at such congress” they “were interdicted and restrained from representing, holding themselves out or in any manner stating that they are NEC members of the trade union and/or representative officials of the trade union.” (emphasis added)

[17] Although, the court declined to make a cost award against the applicants, Prinsloo J nonetheless issued the following stern warning to them, albeit in relation to an adverse costs award:

“[41] The respondents are expected to adhere to orders of this court, including the one issued in this application. They should appreciate that they were treated with leniency when no cost order was granted against them. But let this be a stern warning to the respondents-should they fail to endear to the orders of this court, should they disrupt the administrator in the execution of his duties should they interfere in any manner whatsoever with the process of the administrator, which may cause the administrator to approach this court again in respect of the same issues, they should not expect any leniency from this court in future with regard to the issue of costs.”

The contempt application

[18] In the above-mentioned judgment of Mahosi J, she cites the requirements of establishing contempt, thus:

“[30] In Anglo American Platinum Ltd and another v Association of Mineworkers and Construction Union and Others the Court has held that:

‘The principles applicable in an application such as the present are well- established. In Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA), the Supreme Court of Appeal observed that the civil process for a contempt committal is a 'peculiar amalgam' since it is

a civil proceeding that invokes a criminal sanction or its threat. A litigant seeking to enforce a court order has an obvious and manifest interest in securing compliance with the terms of that order but contempt proceedings have at their heart the public interest in the enforcement of court orders (see para 8 of the judgment). The court summarized the position as follows at para 42:

'To sum up:

(a) The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.

(b) The respondent in such proceedings is not an "accused person", but is entitled to analogous protections as are appropriate to motion proceedings.

(c) In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and willfulness and mala fides) beyond reasonable doubt.

(d) But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to willfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was willful and mala fide, contempt will have been established beyond reasonable doubt.

(e) A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.'

[19] In the course of the argument of this matter, Mr J Raubenheimer¸ counsel for the applicant rightly conceded that, whatever conduct by the respondents might have undermined the performance of the

administrators functions or his status, for the purposes of the contempt application the court would only consider conduct committed

by them since Prinsloo J’s order was handed down on 22 June 2021.

[20] Mfebe’s conduct complained of which occurred after that date, in summary, consisted of:

20.1 An email dated 9 September 2021 was sent by Mfebe to the administrator and also to the general email address of the union. In that email, Mfebe claims that the administrators term of office expired on 3 September 2021 and that he had “dismally failed” to perform all his duties and responsibilities, in particular the holding of an election by that date. The email further cautioned him not to “illegally” occupy the union’s office which he should have vindicated by 23 September 2021. He was also told he should not misguide and mislead union members that Mfebe had been dismissed when there was a settlement agreement in terms of which his suspension had been uplifted and it was agreed that no further action would be taken without an NEC resolution. The letter also recorded that the administrator had been reported to the legal practice Jan counsel, the director general and the minister “whilst a vote of no-confidence was long served to the Registar and the Director-General, against the then administrator (sic).”

20.2 On 1 July 2021, Mfebe was still appearing as a representative of the union in CCMA proceedings and signing a 7.11 referral form on 30 August 2021 as a trade union official and general secretary. The referral form also cites the Director General and the Minister of labour as respondents.

[21] In relation to Mvubu , the administrator complains that in an email sent by Mvubu to himself, the general email address of the union and various functionaries in the Department of Labour he accuses him of improperly obtaining an extension of his appointment without consulting with the union and of engaging outside service providers to the detriment of the union’s cash flow. He refers to himself in the email as ‘(ex-treasurer of ITU).

[22] The applicant submitted that Mfebe and Mvube and received the order but had wilfully and mala fide breached or not complied with that. Given that neither of them were employed a fine would serve little purpose and the only appropriate sanction would be a term of incarceration. The answering affidavits of Mfebe and Mvubo, consist in the main of bald denials.

[23] I have little doubt that both Mfebe and Mvubu do not accept the authority of the administrator to make decisions on behalf of the union without consulting with them. They also seek to delegitimize his office by contending that his term of office has expired when the directive to hold elections within six months was not complied with. Mfebe go so far as to suggest that he is illegally occupying the union’s office. Mfebe continues to act as if he was still a union official, and thereby asserts that the administrator has no authority to dismiss him while at the same time affirming the authority of the NEC that was purportedly elected in 2020 as the legitimate source of power in the union, which conversely delegitimises the administrator’s assertion of his authority.

[24] Despite the bald denials, both Mvubu and Mfebe argued that it was legitimate to question the administrator in the way they had. A number of defences were advanced in this regard.

[25] Firstly, it was contended that the judgment of Moshoana J, clearly found that it was not within the court’s power to make a declaration about the legitimacy of the NEC purportedly elected in terms of the Constitution on 20 to February 2020. It is true that the learned judge queried whether the court could make such a determination in the absence of a dispute between members of the union. However, the central thrust of his judgment was that in the absence of the respondents setting aside the decision of the registrar that the NEC was not validly established, his decision stood. That had nothing to do with the court’s power to grant declaratory relief in the absence of a dispute between members. They also ignore the fact that the judgement dismissed the application to validate the NEC so the judgment provides no support for their argument.

[26] Secondly, they interpret the terms of the administrators appointment to mean that his term of office expired when the time within which he was to convene a congress to conduct elections had expired. The first problem with this is that the time period for convening a national congress was extended by an order of Prinsloo J on 26 August 2021, until 1 February 2022. Accordingly, even if the date of the congress was determinative of the Administrator’s term of appointment, it is disingenuous to argue it has expired when it is known the time period has been extended. In any event, the only provisions relating to a time period in his terms of reference are clauses 1.15 and 1.16. The relevant portions of clause 1.15 provides that he should report

on the union’s affairs to the Registrar, “…within 12 (twelve) months from the date of” the order placing the union under administration and to include in his report findings and recommendations concerning the union’s affairs and “the continuation, if necessary of the administration.” Clause 1.16 requires him to report on the union’s affairs to the registrar on a monthly basis, “… during the aforesaid 12 months and such further period of administration of the Respondent.” Neither of these provisions indicates anything more than a reporting period.

[27] Lastly, it was argued that the NEC purportedly elected in February 2020 was not nullified by the terms of reference of the administrator. However, quite apart from the fact that Moshoana J declined to approve that NEC’s claim to legitimacy, the clear implications of clause 1.1 of the administrator’s terms of reference can only be ignored by someone who does not wish to read them, viz:

“1.1 That he/she is authorized to take immediate control of, and in the place of the President of the first respondent and/or the General Secretary and/or National Office Bearers and/or National Executive Committee

and/or any other person entitled to perform such functions to manage the affairs of and concerning the first respondent, together with all assets and interests relating to the business and/or affairs of the first respondent which powers may include- …”

The power described above is sweeping and critically makes it clear that the administrator takes the place of bodies and functionaries

described in the Constitution in managing the union, so those bodies and functionaries are effectively rendered powerless by his

appointment.

[28] Lastly, it is clear from the papers that Mfebe was dismissed with effect from 22 July 2021 and he is not entitled to represent that he is a union representative or official.

Conclusion

[29] Having regard to the defences advanced, I am willing to accept that even though the first and second respondents must have been aware that they were wilfully disregarding the court’s order of 22 June 2021 in so far as they represented they were acting in some kind of official capacity as a union representative and in questioning the continuing appointment of the administrator in order to undermine his legitimacy, to further their own agendas, I cannot disregard the fact that until now they might genuinely have believed that they had sound legal defences for not complying with the letter of the order, even if those defences are self-serving ones.

[30] It also follows however that such defences will not avail them against any subsequent contempt charge arising from any further wilful disobedience of the order after this judgment is handed down. The consequences of being found guilty of contempt in the future for similar conduct are likely to be serious.

[31] However, these defences do not apply to Mfebe’s representation of himself as a union official, after his dismissal on 22 July 2021. There is no justification for him continuing to appear in a CCMA proceeding or signing a referral form in such a capacity. Although this only happened twice, his conduct shows a reckless disregard for the court’s authority, and he never expressed an iota of regret for this conduct. In the circumstances he is guilty of contempt of the order in this respect.

Order

[1] The matter is heard as one of urgency and the applicant’s failure to comply with time limits and service in the Rules of Court is condoned.

[2] The First and Second Respondents are found not guilty of contempt of this court’s order of 22 June 2021 for the period ending 21 September 2021, notwithstanding that they were in wilful breach of the order, with the exception of the First Respondent’s misrepresentation of himself as a union official in CCMA proceedings after 23 July 2021.

[3] In respect of the First Respondent’s misrepresentation of himself as a union official in CCMA proceedings after 23 July 2021, he is guilty of contempt of paragraph 4 of the order of Prinsloo J dated 22 June 2021, and he must serve a sentence of 10 (ten) day’s incarceration, which is suspended provided he is not found guilty of contempt of the order for a period of 12 (twelve) months from the date of this order.

[4] No order is made as to costs.

Lagrange J

Judge of the Labour Court of South Africa

Appearances/Representatives

For the Applicant J

Raubenheimer

For the First and Second Respondents In person.

[1] Rule 3 of the Labour Court Rules reads: 3 Issue of documents and registrar's duties (1) Any party initiating any proceedings must apply for a case number before serving any documents. The application for a case number must be made to the registrar in the registrar's office or by fax. If the application is made by fax, Form 1 must be used.

[1] Rule 3 of the Labour Court Rules reads:

3 Issue of documents and registrar's duties

(1) Any party initiating any proceedings must apply for a case number before serving any documents. The application for a case number must be made to the registrar in the registrar's office or by fax. If the application is made by fax, Form 1 must be used.

[2] Government notice no 313 of 15 March 2020.