Mlangeni v Oak Trucking and Outsourcing and Another (J1571/19) [2022] ZALCJHB 17 (23 February 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J1571/19

In the matter between:

THEMBA ABEDNICO MLANGENI

Applicant

and

OAK TRUCKING AND OUTSOURCING

First Respondent

OSMAN KHAN

Second Respondent

Heard: 11 February 2022

Delivered: 23 February 2022

JUDGMENT

DEANE, AJ

Introduction

[1] This is an ex parte application, seeking an order that the First and Second Respondents, are in contempt of Court for refusing and/or failing, or neglecting to comply with the order of this Court granted by Prinsloo J on 5 November 2021.

The Relevant Background

[2] On or about 10 April 2019 the First Respondent entered into a settlement agreement in terms of which the Applicant would be reinstated into his position he held prior to his alleged dismissal.

[3] The applicant alleges that when he reported for duty on 15 April 2019 as per the agreement, he was informed by Ume Khan, a managing director of the First Respondent that there was no position for him.

[4] The Applicant subsequently applied to have the settlement agreement[1] with case number GAJB28427-18 made an order of court, which was granted. To date the settlement agreement was not abided to.

[5] On 11 February 2022 at this ex parte application hearing, the Second Respondent appeared in person and gave various submissions to this Court on why he should not be found guilty of contempt.

Legal Principles and Evaluation

[6] The principles applicable in contempt proceedings are well-established. The applicant must demonstrate the existence of a court order; which was served on the other party; that there was non-compliance with the terms of the order; and lastly, that such non-compliance was wilful and mala fide beyond a reasonable doubt. Once the applicant had demonstrated these requirements, the respondent bears an evidential burden in relation to wilfulness and mala fide.[2]

[7] These requirements, that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt, in accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces.[3] Honest belief that non-compliance is justified or proper is incompatible with that intent.

[8] Regarding re-instatement of the Applicant, in the most recent authoritative judicial exposition on the law of contempt, the Constitutional Court in Matjhabeng Local Municipality v Eskom Holdings Ltd And Others[4] reiterated the basic test for contempt set out in Fakie NO v CCII Systems (Pty) Ltd [5], viz:

'It should be noted that developing the common law thus does not require the prosecution to lead evidence as to the accused's state of mind or motive: Once the three requisites . . . have been proved, in the absence of evidence raising a reasonable doubt as to whether the accused acted wilfully and mala fide, all the requisites of the offence will have been established. What is changed is that the accused no longer bears a legal burden to disprove wilfulness and mala fides on a balance of probabilities, but to avoid conviction need only lead evidence that establishes a reasonable doubt.”[6]

[9] Regarding re-instatement, in the most recent authoritative judicial exposition on the law of contempt, the Constitutional Court in Matjhabeng Local Municipality v Eskom Holdings Ltd And Others[7] reiterated the basic test for contempt set out in Fakie NO v CCII Systems (Pty) Ltd [8], viz:

'It should be noted that developing the common law thus does not require the prosecution to lead evidence as to the accused's state of mind or motive: Once the three requisites . . . have been proved, in the absence of evidence raising a reasonable doubt as to whether the accused acted wilfully and mala fide, all the requisites of the offence will have been established. What is changed is that the accused no longer bears a legal burden to disprove wilfulness and mala fides on a balance of probabilities, but to avoid conviction need only lead evidence that establishes a reasonable doubt.”[9]

[10] The Constitutional Court also noted the constitutional objective underlying contempt proceedings as being the preservation of the court’s authority by ensuring that its orders are complied with:

‘To ensure that courts' authority is effective, s 165(5) [of the Constitution] makes orders of court binding on 'all persons to whom

and organs of state to which it applies'. The purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority. Discernibly, continual non-compliance with court orders imperils judicial authority.’[10]

[11] In casu, it is common cause that there was an order, proper service and there was non-compliance with such order. The Second Respondent however submits that his non-compliance with the court order was not wilful or mala fide for various reasons. Firstly, the Applicant submits that the Applicant was not dismissed as alleged as he had left on his own volition. He further submits that the Applicant reported for duty on 15 April 2019 as agreed but that he arrived at the premises at 5 am as opposed to 7 am when he was told to report for duty. The Second Respondent further submits that even though the Applicant was told to wait he once again left on his own volition. The Second Respondent submitted that they tried to call the Applicant on his cell number but there was no response.

[12] In this case it is clear that there is neither a flat refusal of the employer to reinstate the employee when he presented himself at the employer’s premises with the court order, or where the employer tells the employee to come back on another day or to report at other premises as part of a delaying strategy to avoid adhering to the Award.

[13] In addition, the Second Respondent further submits that he can, however, no longer offer any kind of settlement because it is impossible to do so taking into account that the First Respondent has since July 2020 closed; that they retrenched the staff members and that he is over 72 years old and a pensioner currently collecting a government pension.

[14] In response the Applicant submits that the Second Respondent is “creating his own stories”[11] and that he has been negatively affected by these happenings.

[15] I have had regard to these submissions including the fact that the Applicant failed to successfully refute that he left of his own volition on 15 April 2019. Even if this is not true, in that the Applicant did not leave of his own volition on 15 April 2019, in terms of the Settlement Agreement where reinstatement was agreed to, this Court cannot grant same due to the Second Respondents submission that the First Respondent had closed its business.

[16] In this regards the case of Sepoa v Imperial Cold Logistics[12] is cited with approval wherein the employer, after the original position no longer was available, attempted to have the employee

placed in an alternative position and the Labour Court dismissed the contempt application effectively finding that it is not always

required that there be exact compliance with an award or order.

[17] Even though in casu there is currently no attempt to place the Applicant in an alternative position there is the defence of an impossiblility to do so for the facts mentioned above. Indeed, the Applicant did not disagree or refute claims that the First Respondent had indeed closed its doors to business in 2020 or, despite this, that the Second Respondent could adhere to the terms of the Settlement Agreement for re-instatement.

[18] Therefore, having regards to the requirements for contempt of court in terms of the applicable legal principles discussed above and taking into account the factual considerations herein it cannot be said that the First and Second Respondents failure to comply with the court order was a deliberate and intentional violation of the court’s dignity, repute or authority[13] or that the employer had acted mala fides or wilful.

[19] I therefore conclude that the Second and Third Respondents are not in contempt.

[20] In the premise the following order is made:

Order

1. The application for contempt is dismissed.

2. There is no order as to costs.

____________________

T Deane

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Themba Mlangeni

For the Respondents: Osman Khan

[1] Annexure A.

[2] See: Compensation Solutions (Pty) Ltd v Compensation Commissioner (2016) 37 ILJ 1625 (SCA) at para 15; Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 42 and also at para 22 where it was held: ‘The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith). These requirements - that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt - accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court, but by the deliberate and intentional violation of the court's dignity, repute or the authority that this evinces.’

[2] See: Compensation Solutions (Pty) Ltd v Compensation Commissioner (2016) 37 ILJ 1625 (SCA) at para 15; Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 42 and also at para 22 where it was held:

‘The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith). These requirements - that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt - accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court, but by the deliberate and intentional violation of the court's dignity, repute or the authority that this evinces.’

[3] See the formulation in S v Beyers 1968 (3) SA 70 (A) at 76E and 76F-G.

[4] 2018 (1) SA 1 (CC)

[5] 2006 (4) SA 326 (SCA)

[6] Matjhabeng at pg. 24, para [62]

[7] 2018 (1) SA 1 (CC)

[8] 2006 (4) SA 326 (SCA)

[9] Matjhabeng at 24, para [62]

[10] at 19, para [48].

[11] In oral submissions to this court.

[12] [2018] 39 ILJ 1146 (LC).

[13] See the formulation in S v Beyers 1968 (3) SA 70 (A) at 76E and 76F-G.