Moeketsi v Bidvest Protea Coin (Pty) Ltd and Others (JS504/20) [2021] ZALCJHB 290 (20 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS 504/20

In the matter between:

MOGOSHANE PETRUS MOEKETSI Applicant

and

BIDVEST PROTEA COIN (PTY) LTD First

Respondent

TOBIAS NDALA (MANAGER) Second

Respondent

LOUIS DU TOIT Third

Respondent

Heard: 3 September 2021 (Virtual hearing)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the

Labour Court’s website. The date and time for hand-down is deemed to be on 20 September 2021 at 15:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] The applicant seeks an order that the second and third respondents be found guilty for contempt of Court for failing to comply with the settlement agreement concluded at the Commission for Conciliation Mediation and Arbitration (CCMA) on 13 May 2019, which was subsequently made an arbitration award on 5 February 2020. The applicant also seeks an order that the second and third respondent be incarcerated for such periods as the Court deems appropriate, or for a fine at the discretion of the Court to be imposed.

[2] In terms of the settlement agreement, the first respondent agreed to re-employ the applicant with effect from 24 May 2019, and he was supposed to report for duty at Glencore Tweefontein Mine.

[3] The second respondent, Mr Tobias Ndala is a site Manager whilst the third respondent, Mr Louis Du Toit, is the Area Manager at one of the first respondent’s site, Goedehoop Mine in Witbank, Mpumalanga.

[4] The applicant contends that despite having undergone and passed a Doctor’s assessment as per company policy, and further having reported for duty at Tweefontein Mine in Ogies, he was denied access to the premises without any explanation by Ndala and Du Toit.

[5] Following the Rule Nisi granted on 29 January 2021, the respondents have filed an answering affidavit deposed to by its National Labour Relations Manager, who had pointed out that the Ndala is appointed as Contract Manager, whilst Du Toit is appointed as Regional Manager. A preliminary point was raised to the extent that the two individuals were cited rather than the first respondent’s Directors, and it was submitted that there was a misjoinder.

[6] In regards to the allegations that there was non-compliance with the settlement agreement, it was averred that;

6.1 After the applicant had passed his medical assessment, he was assigned to another post (Glencore – Gosa Alloys). The applicant however refused to carry out the duties he was required to perform.

6.2 An attempt was made to secure alternative placements at Anglo-American, SACE Complex with effect from July 2019. The applicant however had to undergo another medical assessment in terms of the Mines Health and Safety Act[1], which he did. A certificate of fitness issued indicated that the applicant had passed the test, but a condition was imposed that he needed to wear spectacles in order to perform his duties. The applicant however informed the first respondent that he could not afford to buy new spectacles.

6.3 The applicant was then invited to another interview for a placement at BPC Security South 32, as a Reaction Officer. He was successful in his interview and was due to attend a medical examination in February 2020. Before the examination, the applicant informed the first respondent’s Contract Manager that he was not satisfied with the salary and further that he could not afford the medical examination. The examination was at the employee’s own costs and it then had to be cancelled.

[7] The first respondent contends that it had found and offered the applicant three different positions which were available at the time in order to give effect to the settlement agreement, and that in all instances, the applicant had some excuse why he could not complete the recruitment process or accept the appointment. It was contended that since the applicant failed or refused to accept the positions he was offered, the respondents cannot be held liable for contempt, and that to the extent that the applicant remains not re-employed, this was not as a result of the respondents’ wilful or mala fide conduct.

[8] The answering affidavit having been filed and served on 7 October 2020, the applicant filed a replying affidavit on or about 3 May 2021, some six months later. The replying affidavit was not even accompanied by an application for condonation. In this regard, it was correctly objected and pointed out that the replying affidavit is not properly before the Court. To that end, I agree that it ought to be struck off the record.

[9] Other than the replying affidavit having been struck off, the respondents also raised a preliminary point related to a misjoinder of the second and third respondents, who are mere managers at the various sites. Clause 13.2 of this Court’s Practice Manual requires that in an application which seeks for the Court to make a finding that a party is in contempt of an order, the notice of motion must further seek an order against the respondent, or its Chief Executive officer/Director General/owner/proprietor, with their full and proper names. Clearly in this case, there was a misjoinder of the second and third respondents, and in my view the failure to properly cite the parties as required in terms of clause 13.2 of the Practice Manual is fatal to the application.

[10] Even if the above technical points were to be overlooked, the founding affidavit to the extent that it is bare, fails to meet the minimum requirement to obtain the relief sought. Other than the fact that the persons cited are mere managers, there is no basis upon which it can be concluded that they are in contempt of Court in the light of the steps taken by the first applicant in complying with the settlement agreement.

[11] The principles applicable in contempt proceedings are trite[2]. In this case, there is no dispute surrounding the settlement agreement which was made an arbitration award, nor is there a dispute

in regards to its service. There can however be no basis for a conclusion to be reached that the first respondent was in non-compliance with the settlement agreement. Other than the fact that three alternative posts were sought for the applicant, this matter ought to be disposed of simply on the first attempt that was made to secure his re-employment at Glencore – Gosa Alloys, which he had rejected for some or other reasons which are not clear. The respondents had denied that the applicant was denied access at Tweefontein Mine, and this denial cannot be found to be bare where the applicant was scant with particularities as to when he was in fact denied access at Tweefontein Mine.

[12] In the light of the attempts made in securing the applicant’s re-employment at no less than three sites, there can therefore be no basis for any conclusion to be reached that the first respondent in particular was in contempt of Court. To the extent that the disputes of fact were raised in the replying affidavit which it has already been established that it is not properly before the Court, it would be pointless to refer this matter for oral evidence as suggested on behalf of the respondents. In the end, based on the pleadings as they are before the Court, the applicant has not established that there was wilfulness and mala fides on the part of the first respondent. It therefore ought to be concluded that the first respondent has discharged its evidentiary burden to establish a reasonable doubt, and there can therefore be no basis for a contempt finding.

[13] I have further had regard to the requirements of law and fairness in regards to costs, and I am satisfied that a costs order is not warranted in this case.

[14] Accordingly, the following order is made;

Order:

1. The applicant’s replying affidavit in the absence of an application for its late filing is struck off the record.

2. The citation of the Second and Third Respondents constitutes a misjoinder, and is thus not in compliance with Clause 13.2 of the Practice Manual of this Court

3. The Rule Nisi granted on 29 January 2021 is discharged, and the First to Third Respondents are not found to be in contempt of Court.

4. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr.

S Gaju, of SN Attorneys

For the 1st – 3rd Respondents: Ms S Sonette Lancaster of Lancaster Kungoane Attorneys

[1] Act 29 of 1996

[2]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 (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC)