Kriel v Department of Public Works and Roads, North West and Others (J 748/23) [2023] ZALCJHB 332 (22 November 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: J 748/23

In the matter between:

ELIZABETH HELENE KRIEL Applicant and DEPARTMENT OF PUBLIC WORKS AND ROADS: NORTH WEST HEAD OF DEPARTMENT: DEPARTMENT OF PUBLIC WORKS AND ROADS: NORTH WEST MEC: DEPARTMENT OF PUBLIC WORKS AND ROADS: NORTH WEST DEPARTMENT OF PUBLIC SERVICE AND ADMINISTRATION First Respondent Second Respondent Third Respondent Fourth Respondent

Heard : 16 November 2023

Delivered : 22 November 2023

JUDGMENT

NORTON AJ

Introduction

[1] The Applicant launched contempt proceedings against the Respondents on 20 June 2023 for failure to abide by the arbitration award issued by the PSCBC dated 19 December 2016 under case number PSCB 543-15/16. The award was certified by the CCMA in terms of section 143 of the LRA on 11 November 2021.

[2] The award follows an arbitration concerned with the interpretation of clause 3.6.2.2 of Resolution 3 of 2009.[1] The panelist Anelinie Bevan found that the First and Fourth Respondent had “incorrectly interpreted and applied paragraph 3/6/22 of Resolution 3 of 2009.[2] Bevan ordered those Respondents to “grade progress the Applicant from salary level 6 to salary level 7 effective from April 2015 on / before 31 May 2017”.[3] The Respondents have failed to do so. The Applicant argued that she should be upgraded to the next salary grade (i.e. grade 7) in recognition of 15 years of long service, and the PSCBC panelist agreed.

Factual background

[3] On or about 25 July 2017, about 6 months after the award was made the Respondents sought to review the award under case number JR 1578/17. According to the Applicant’s affidavit in support of the contempt application, the rule 7A(6) with the record was filed by the Respondents around 18 November 2020. It appears that nothing came of this review, and it would be deemed to have been withdrawn as per clause 11.2.3 of the Practice Manual or archived as per clause 11.2.7.

[4] Time passed, during which the Applicant, who was previously represented by the PSA, instructed her current attorneys (Scholtz Attorneys) to pursue her interests, which they have done so from around 25 May 2023 onwards.

[5] The Applicant has not enjoyed the benefit of the award, which would have been retrospective from April 2015, and has suffered financial prejudice as a result.

[6] On 3 August 2023, the Honourable Justice Moshoana ordered the Second Respondent, the Head of Department, to appear on 5 October 2023 to show cause why he should not be held in contempt of Court for failing to comply with the arbitration award. He was to explain his conduct to the Court by way of an affidavit, on threat of incarceration and / or a fine. Service was to be effected personally and he was to show cause why costs should not be ordered de bonis propriis, on a scale as between attorney and own client, alternatively, why both the respondents should not pay the costs of the application on a scale as between (presumably attorney) and client, the one paying the other to be absolved.

[7] The order was served on 29 August 2023 on the Legal Department of the First Respondent by the sheriff.

[8] The attorney representing the state (Matshinyatsimbi Livhuwani) wrote an email to the Applicants attorney on 29 September 2023 stating that he was familiarising himself with the file, and requesting a 4 week extension to do so. He tendered wasted costs. After engagement on the matter with his opponent, on 3 October, he agreed to wasted costs on an attorney – client scale including the cost of Senior Counsel.

[9] On 5 October 2023, the Honourable Acting Justice Mahalelo extended the return date to 16 November 2023, and ordered the Second Respondent to file his explanatory affidavit by 13 October 2023. The costs ordered were as agreed between the parties.

[10] On 15 November 2023 the day before the return date the Second Respondent filed his Explanatory Affidavit. He explained that:

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10.1. He became employed as the HOD in August 2022;

10.2. It took him time to acquaint himself with the work of his office;

10.3. Justice Moshoana’s order (and contempt application) came to his attention on 23 August 2023;

10.4. Matters of a legal nature are handled by the Legal Department (and by implication not him). The Legal Department lodged an application to review the award in 2017; the Senior Assistant State Attorney (Ms Shuping) was handling the matter but she retired in 2018; and another attorney who took over the file (Ms Mekgwe) resigned in 2022; a further attorney Mr Moholo, who in turn was responsible for the matter resigned in August 2023. The matter is now attended to by Mr Livhuwani.

10.5. He concedes that the review application “was never prosecuted”

10.6. There has been no wilful failure to comply with the award.

10.7. He sought condonation for the late filing of the Explanatory Affidavit.

[11] On the 16 November the parties appeared before me, both legally represented. The Second Respondent was not in Court. The Respondents sought a further postponement and indulgence. They tendered wasted costs. The Applicant urged me to confirm the Rule Nisi. I heard the matter and reserved my ruling.

Legal considerations

[12] The LRA provides for contempt proceedings in section 143 in circumstances in which a party neglects or refuses to comply with an arbitration award which has been properly certified.

[13] Contempt of Court processes must comply with clause 13 of the Practice Manual.

[14] There are four main elements to a contempt application:

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14.1. A court order;

14.2. Properly served on the Respondent;

14.3. Non compliance with the order;

14.4. Non compliance must be wilful and malafides.

[15] Once the first three elements have been proved, the onus shifts from the Applicant to the Respondent to establish reasonable doubt that noncompliance is not wilful and malafides. [4]

[16] In this case, there is a court order (an arbitration award akin to a court order – s 143 (1) of the LRA); it has been served on the Second Respondent in that it has come to his attention as indicated in the Explanatory Affidavit; and there has been none compliance. Whilst I am sympathetic with his position that he was appointed in August 2022, and that his colleagues in the Legal Department essentially let him down in the prosecution of the review, and in the handling of this matter; that must be weighed against the prejudice suffered by the Applicant over some 8 years, and the lack of any meaningful defence to the award. No reason has been presented to me in the Second Respondent’s affidavit to persuade me that the award should not be enforced.

[17] Justice Moshoana has recently considered the problem of employers failing to respect court orders, and I refer to his judgment in Gunn v Hoogendyk (Case no J 1031 / 15) delivered in February 2022. Justice Moshoana makes the point, that compliance with Court orders “…has everything to do with the integrity of the Court as a constitutional institution”. [5]

[18] The Court has an interest in ensuring that orders are respected and complied with. Enforcement is at the heart of effectiveness.

[19] I am satisfied that the Applicant has made out a case for contempt for the reasons set out above.

Order

[20] In the circumstances, the following order is made:

1. The Second Respondent (Moses Ikgopoleng Kgantsi), the Head of Department of Public Works and Roads, and the First Respondent’s Accounting officer, is guilty of Contempt of Court for failing to ensure that the Respondents comply with the PSCBC’s award under case No: PSCB 543-15/16 dated 19 December 2016 which has been certified on 11 November 2021.

2. Mr Kgantsi is fined R250,000.00 (two hundred and fifty thousand rand) payable to the office of the Registrar of the Labour Court at Arbour Square, 6th floor, 86 Juta Street, Braamfontein.

3. The fine is wholly suspend on condition that the Respondents comply with the award set out in paragraph 1 within 30 court days of this order.

4. The Respondents are ordered to pay the costs of the Contempt application as well as the appearance for the applicant on 03 August 2023, 05 October 2023, and 16 November 2023. The appearance on the 5 October is on an attorney – client scale and includes the cost of Senior Counsel.

D Norton

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Adv. E S J Van Graan SC

Instructed by: Schöltz Attorneys

For the Respondent: Adv. Moloisane SC with Adv. G Seleka

Instructed by: The State Attorney (Mahikeng)

[1] That clause reads, “With effect from 1 April 2010…an employee on salary level 4, 5, 6 or 7, who has completed the 15 years of continuous service on a salary level, irrespective of notch and has obtained at least satisfactory rating in his / her performance assessment…shall

grade progress to salary level 5, 6, 7 or 8 respectively. This is not subject to the availability of posts.”

[2] Para 87 of award

[3] Para 88 of award

[4] See Secretary of the Judicial Commission of Enquiry into allegations of State Capture v Zuma and others 2021 (5) SA 327 (CC) at para 37

[5] Para 1