Nxumalo and Others v Gauteng Department of Sports, Arts, Culture and Recreation and Another (J1584/24) [2024] ZALCJHB 327; (2024) 45 ILJ 2778 (LC) (12 August 2024)

FLYNOTES: LABOUR – Contempt – Arbitration award – Issued by bargaining council against government department – Citation of executive authority of department – Review

application without security bond does not suspend operation of award – Alleging existence of review application where

operation of award not suspended does not constitute bona fide excuse – Lack of bona fides demonstrates wilful and male fide non-compliance with award – Department found to be in contempt.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J1584/23

In the matter between:

PHUMUDZO NXUMALO First Applicant MARTIN MULAUDZI Second Applicant KABELO NGAKANE Third Applicant and GAUTENG DEPARTMENT OF SPORTS, ARTS, CULTURE AND RECREATION First Respondent CHINA MASHININI N.O. Second Respondent

Heard: 6 March 2024

Delivered: 12 August 2024

This judgment was handed down electronically by emailing a copy to the parties. The 12th of August 2024 is deemed to be the date of delivery of this judgment.

Summary: Contempt of arbitration award issued by bargaining council against government department – State Liability Act requires citation of executive authority of department – still competent to cite department in own name and to cite administrative authority under certain circumstances

Contempt of arbitration award issued by bargaining council – certification in terms of section 143(3) of LRA necessary prerequisite for finding of contempt of the Labour Court – contempt only possible once existence of certified award brought to attention of respondent

Contempt of arbitration award – review application without security bond does not suspend operation of award – alleging existence of review application where operation of award not suspended does not constitute bona fide excuse and may demonstrate wilful and male fide non-compliance with award

Contempt of arbitration award – contents of “directing mind” of juristic entity not necessarily the same as contents of the mind of individual defending contempt proceedings on behalf juristic entity – “directing mind” of juristic entity to be located in different persons for different elements and activities of juristic entity – contemptuous conduct of juristic entity may be assessed separately from contemptuous conduct of individual defending contempt proceedings on behalf juristic entity

Contempt of arbitration award – purely punitive sanction for criminal contempt (one not designed to ensure compliance with an order) may be appropriate to vindicate dignity of the court – criminal contempt must be proven beyond a reasonable doubt

Contempt of arbitration award – civil contempt need only be proven on a balance of probabilities – only civil remedies (such as declaratory relief, mandamus or structural interdict) appropriate consequent to finding of civil contempt

JUDGMENT

MEYEROWITZ AJ

Introduction

[1] This is an application for a finding that the first respondent, the Gauteng Department of Sports, Arts, Culture and Recreation (the Department) and the second respondent, the Department’s Head of Department (HOD) Mr China Mashinini (Mr Mashinini), are guilty of contempt of court for failing to comply with an arbitration award issued by the General Public Service Sector Bargaining Council (the Bargaining Council).

[2] This judgment deal with four significant issues:

2.1 The first issue is whether it is competent to cite the HOD of a provincial department as the respondent in contempt proceedings when the State Liability Act[1] seems to suggest that the relevant Member of the Executive Council (MEC) should be the person cited as the respondent.

2.2 The second issue is whether it is possible to be in contempt of an arbitration award issued by a bargaining council (or by the CCMA) without the award first being certified in terms of section 143(3) of the Labour Relations Act[2] (LRA).

2.3 The third issue concerns how to determine the “directing mind” of a juristic entity such as a government department for the purposes of contempt proceedings, and whether the contemptuous conduct of a juristic entity may be assessed separately from the allegedly contemptuous conduct of the individual defending contempt proceedings on behalf of that juristic entity.

2.4 Finally, the fourth issue concerns the difference between criminal and civil contempt, and when it might be appropriate to issue a purely punitive sanction for criminal contempt (i.e. one not designed to ensure compliance with a court order).

The facts

[3] On 26 October 2021 the Bargaining Council issued an arbitration award (the Award) directing the Department to reinstate the first to third applicants (the Applicants), with backpay, on or before 30 November 2021. On 1 December 2021 the Applicants tendered their services but the Department prevented them from doing so. They were subsequently informed by their union at the time that the Department was in the process of reviewing the Award, that the process would take some three years, and that they

would be informed of the outcome in due course.

[4] While the Applicants were apparently still waiting for feedback from their union, some 18 months later on 12 June 2023 the Applicants received a letter from Mr Mashinini (then the acting HOD). In his letter Mr Mashinini explained that he had recently had a meeting with the director of human capital regarding the Award, that the Department was “proceeding with the review”, and that the Applicants should not report for work.

[5] In response to this letter the Applicants had the Award certified in terms of section 143(3) of the LRA on 17 October 2023. The Applicants then launched an ex parte contempt application and, on 23 November 2023, Tlhotlhalemaje J issued a Rule Nisi directing both the Department (first respondent) and Mr Mashinini (second respondent) to appear at court on 6 March 2024 to show cause why they should not be held in contempt of court.

[6] The Rule Nisi and the underlying ex parte application were received by the Department on 22 January 2024. Two days before the hearing (4 March 2024) Mr Mashinini filed an answering affidavit in his own defence. The answering affidavit only seeks to exonerate Mr Mashinini (in his capacity as HOD), and is specifically labelled “second respondent’s explanatory affidavit”. The affidavit was nevertheless “presented for filling” on behalf of both the first and second respondents.

[7] In his affidavit Mr Mashinini explains that, when the Award was issued he was not the HOD at the time. However, he refers to certain internal correspondence and explains that, on 8 December 2021 (approximately six weeks after the Award was issued), a Ms Sindiswa Manitshana (Ms Manitshana) from the State Attorney’s office sent a draft review application to a Ms Nakedi Makgobola (Ms Makgobola) at the Department requesting that the founding affidavit be commissioned for the purposes of filing the application at court. A few minutes later Ms Makgobola forwarded the document to another Department employee, Ms Yvonne Ntimbane (Ms Ntimbane), saying “Please attend to the attached affidavit. Please return it to the State Attorneys as soon as possible”.

[8] It would then appear that the commissioned founding affidavit was physically received by a Ms Veronica Moodley at the State Attorney’s office later that same day (8 December 2021) – Ms Moodley had been carbon copied on the previous email between Ms Manitshana (from the State Attorney) and Ms Makgobola (from the Department).

[9] Mr Mashinini then cannot account for what happened to the review application over the next 16 months. He says that when Ms Morakane Mosupyoe (Ms Mosupyoe) was appointed as the new MEC for the Department on 7 October 2022, she called for an audit of all pending labour matters against the Department. Mr Mashinini was then appointed as Acting HOD on 22 December 2022, and the audit of the labour matters was apparently “concluded in the beginning of 2023”.

[10] On 19 April 2023, Mr Daniel Mokolokolo (Mr Mokolokolo) from the Department’s Legal Services Office sent an email to Ms Manitshana (the person at the State Attorney who originally sent the draft review application to the Department 16 months earlier) requesting an update on the review application “for AG’s report” – suggesting, it seems, that the request for an update was precipitated by intervention of the Auditor-General and not necessarily the MEC’s audit of all labour matters.

[11] Ms Manitshana replied to Mr Mokolokolo’s email the following day (20 April 2023) as follows:

“I have perused the file as indicated yesterday.

Upon receipt of the arbitration award in 2021, we were instructed and agreed that the strategy that we would take in this matter would be two pronged. On the one hand, that we would file an application for review, and on the other hand that Counsel would furnish us with an opinion on the prospects of success on review.

Counsel furnished us with the opinion on 9 December 2021, which was forwarded to yourselves on 14 December 2021. We proceeded to file the application for review the next day, being the 15th December 2021. The filing of the application was in essence to give the Department an opportunity to make a decision considering the opinion.

You will note that Counsel's opinion was to the effect that there are no prospects of success in proceeding with the review application. Having reconsidered the matter, I may add that I also agreed and still agree with Counsel's opinion that the arbitration award is unassailable when considering the conduct of the Department in relation to these fixed term contracts.

Unfortunately, we were never furnished with an instruction after the opinion.

Regarding the review application, we made several attempts to obtain the record of arbitration from the Bargaining Council, but same was never filed. As matters stand, the review application has since lapsed”.

[12] From the above it would appear that an opinion from counsel stating that a review application would have no prospects of success was sent to the Department on 14 December 2021, and that a review application was nonetheless filed on 15 December 2021 (and presumably served on the Applicants’ union – since the Applicants have no knowledge of such an application).

[13] In response to Ms Manitshana’s update email of 20 April 2023, Mr Mokolokolo asked Ms Manitshana to send counsel’s opinion to him. However, Mr Mashinini alleges that the State Attorney subsequently failed to provide the Department with the opinion.

[14] On 29 May 2023 “a meeting was held” with the Department’s Director of Human Capital and, pursuant to this meeting, the Department made the decision to proceed with the review. As mentioned above, on 12 June 2023 Mr Mashinini sent a letter to the Applicants communicating this information to them and instructing them not to return to work.

[15] On 22 September 2023 the Department’s Deputy Director of Legal Services, Advocate Timothy Ramabulana (Advocate Ramabulana),

held a meeting with the State Attorney, at its offices, regarding the Department’s litigious matters. On 18 October 2023 Advocate Ramabulana emailed a senior official at the State Attorney complaining that a) the State Attorney had provided the Department

with poor service generally, b) the Department had still not received the opinion from counsel referred to above, and c) “many of our labour matters (if not all) have been archived”.

[16] Mr Mashinini then says that no response was received from the State Attorney and that the Department has still not received the opinion from counsel or indeed any “details of the review application” supposedly filed on 15 December 2021. He then says that “After not receiving responses from the State Attorney and also receiving enquiries from the Auditor-General regarding litigation expenses, [on 12 January 2024 the Department] undertook to appoint private lawyers to handle some of [its] litigation matters, including this matter”.

[17] Mr Mashinini and the Department (hereafter “the Respondents”) are indeed both represented in these proceedings by the private firm RAMS attorneys.

Have the correct respondents been cited in these proceedings?

[18] Section 2 of the State Liability Act (supra) says that legal proceedings against a provincial department must be instituted against the department’s “executive authority” duly defined as that department’s MEC; which in the present matter would be Ms Mosupyoe. In casu the Department is cited as the first respondent and its HOD (Mr Mashinini) is cited as the second respondent. A provincial

department’s HOD is, in terms of section 7 the Public Service Act[3], the person ultimately responsible for the Department’s labour relations and its employees.

[19] In Minister of Health & Another v Bruckner[4] the Labour Appeal Court (LAC) held as follows: “The purpose of s 2 of the State Liability Act… is to permit a party bringing an action against the state to cite the minister of the department concerned or a member of the executive council of a province as nominal defendant or respondent. This does not mean that an action may only be brought against the state or a province by citing the minister of the department concerned or a member of the executive council for, as pointed out by Nugent JA in Kate on appeal, the government itself can be cited as defendant or respondent” (my emphasis, footnotes omitted).[5] However, because the CCMA in Bruckner had ordered “the [National] Department of Health” to reinstated Ms Bruckner, and therefore had not ordered any particular functionary of the Department of Health to do so, the LAC held that (criminal) contempt proceedings against the Minister of Health and the Director-General of the Department of Heath were incompetent. The LAC went on to say that Ms Bruckner was still at liberty to “apply for a mandamus against whoever would now be responsible for ensuring compliance by the department with the court order for [her] reinstatement”, explaining that breach of such a mandamus might attract a finding of criminal contempt against that particular functionary.[6]

[20] In his Rule Nisi dated 23 November 2023, Tlhotlhalemaje J called upon both the Department and Mr Mashinini to show cause why they should not both be held in contempt of court. The Rule goes further to say that, if they are both found guilty of contempt, both parties may be fined and Mr Mashinini may be incarcerated.

Neither the Department nor Mr Mashinini pleaded that their respective citations were defective in any way. They have also, in effect, conceded that they are properly before this court on the issue of whether or not the Department is in contempt of the Award, and that Mr Mashinini was the person responsible for ensuring that the Department complied with the Award.

[21] On the authority of Bruckner (supra) I am satisfied that citing the Department in its own name, and citing Mr Mashinini as the person responsible for ensuring compliance with the Award, do not constitute irregularities (if they may even be called irregularities) sufficient to vitiate these proceedings. It may be that criminal contempt proceedings against Mr Mashinini may not be competent in the absence of a prior mandamus, but for the reasons that follow I nevertheless find it still possible to hold him in civil contempt.

Is certification of an arbitration award a necessary prerequisite for contempt of court?

[22] In the present matter the Department has not complied with the Award since its receipt on 29 October 2021; but the Award was only

certified two years later on 17 October 2023. While considering this judgment I noticed that there was no proof that certification of the Award had come to the Department’s attention which raised the question of whether it is even possible to be in contempt of an uncertified award (a question explicitly left open by Mabaso AJ in Malola v Coca-Cola Fortune (Pty) Ltd now Coca-Cola Beverages SA and Another[7]). I therefore issued a directive on 15 July 2024 calling for written submission on this issue but neither party was able to provide me with any authority directly on point. I am, however, helpfully guided by Musi JA’s unanimous judgment in Commission for Conciliation, Mediation & Arbitration v MBS Transport CC & Others; Commission for Conciliation, Mediation & Arbitration v Bheka Management Services (Pty) Ltd & others[8] (MBS Transport).

[23] Section 143(1) of the LRA states that “An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued…”. And section 143(3) states that “An arbitration award may only be enforced in terms of subsection (1) if the director [of the CCMA] has certified that the arbitration award is an award contemplated in subsection (1)” (my emphasis). Although the structure of these subsections is fairly convoluted, the effect is quite simple: an arbitration award may only be enforced, as if it were an order of the Labour Court, once it has been certified – I cannot think of any other legitimate interpretation of these provisions. Furthermore, by virtue of section 51(8) the aforementioned provisions also apply to arbitration awards issued in bargaining councils; notably, the director of the CCMA must certify that an award issued by a bargaining council is legitimate.

[24] When it comes to the issue of contempt of the Labour Court (which is what the present proceedings are all about), an arbitration award cannot be considered the equivalent of a Labour Court Order until that award has been certified. Two of the essential requirements for a finding of contempt is that a) a court order must exist, and b) the order must have come to the attention of the respondent.[9] This means that, until the arbitration award has been certified, no equivalent of a Labour Court Order exists. Furthermore, until the respondent has knowledge of the certification of an award, the respondent cannot have knowledge of the equivalent of a court order.

[25] The above interpretation finds support in the words of Musi JA in MBS Transport where the learned judge states that “If the certified award to be enforced is for the performance of an act which was not done, then contempt proceedings may be instituted in the Labour

Court…. This may be done because in terms of subsection (1), the certified award is assumed to be an order of the Labour Court…”[10] (my emphasis). In my view the phrase “final and binding” in section 143(1) simply means that the arbitration award is final and binding (which creates certain legal consequences such as the accrual of interest), but the award cannot be considered the equivalent of a Labour Court Order until it is certified.

[26] The above paragraphs must come as something of a blow to the Applicants in the present matter. They approached this court arguing non-compliance with the equivalent of a court order for many years when it now appears that the Department only failed to comply with the equivalent of a court order from the moment it became aware of its certification some few months ago. To make matters worse, in my directive of 15 July 2024 I asked the Applicants to provide me with proof that the certified award had been served on the Department, and the Applicants could not do so. The Applicants were only able to show that the application to certify the award was emailed to the Department, but that is not the same thing as the existence of a certified award coming to the attention of the Department.

[27] The ex parte contempt application itself contains a copy of the certified Award meaning that, on the evidence before me, the Department only became aware of the certified Award when the Rule Nisi and the application were served on the Department on 22 January 2024.

Are the Respondents’ in contempt of court?

[28] The law regarding contempt of a court order has been addressed in the following important cases: Fakie NO v CCII Systems (Pty) Ltd[11], Pheko and Others v Ekurhuleni City[12], Matjhabeng Local Municipality v Eskom Holdings Ltd and Others[13], and Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others[14]. After considering these precedents Van Niekerk J in Ntlokotse v NUMSA and Others[15] confirmed that the elements of contempt consist of an existing order, that has come to the knowledge of the respondent, and non-compliance

with the order. Once these three factors have been proven beyond a reasonable doubt, the respondent bears an evidential burden to rebut the inference that the non-compliance was wilful and male fide. If the respondent adduces evidence in their defence, then a finding of wilfulness and male fides must still be made beyond a reasonable doubt. Furthermore, civil contempt remedies are also available (such as declaratory relief, a mandamus or a structural interdict), and in these circumstances the elements of contempt need only be proven on a balance of probabilities.

[29] Given that the Department only became aware of the certified Award when it received the ex parte application on 22 January 2024, can it be said that the Department (and Mr Mashinini) were in contempt of the certified Award thereafter? To begin with, I am not prepared to accept that the institution of contempt proceedings means that the respondent is no longer required to comply with the underlying order while such proceedings are pending. Such an interpretation of our law would, in my view, create an untenable situation; one need only think of an interdict preventing violent conduct during a strike. Judge Tlhotlhalemaje’s Rule Nisi called upon the Respondents to appear in court and demonstrate, on 6 March 2024, why they are not in contempt of court on that day, and that is what I intend to determine.

[30] Turning to the merits, Mr Mashinini says that he did not wilfully defy the Award because he “laboured under [the] apprehension that there is a review application” and that, thereafter, he took diligent steps to appoint competent attorneys to deal with the matter. It therefore seems that Mr Mashinini is not aware that, in terms of section 145(7) of the LRA, a review application does not suspend operation of an arbitration award unless a security bond is issued in terms of section 145(8). However, Mr Mashinini’s purported

ignorance is difficult to believe given that paragraph 19 of the Applicants’ founding affidavit states that “it is now trite that even if the Department had filed a review application (which they did not), this does not automatically stay or suspend the operation of an arbitration award. The arbitration award remains executable, despite any pending review”. On his own version Mr Mashinini read this paragraph but then decided to proceed with his stated defence in any event.

[31] In Fakie (supra) Cameron JA held that “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 the 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 order, but by the

deliberate and intentional violation of the court's dignity, repute or authority that this evinces” (my emphasis).[16]

[32] The above quotation sets a very high standard for wilful default (as, in my respectful view, it should – because the threat is a criminal sanction). On this test it seems to me that Mr Mashinini has established at least a reasonable possibility

that he was ignorant of section 145(7) and its consequences, making it reasonably possible that his failure to comply with the award was bona fide. I am also constrained to give Mr Mashinini the benefit of the doubt and find that he was not obliged to believe the Applicants when they told him in their founding affidavit about the consequences of section 145(7).

[33] However, what Mr Mashinini knew, and what the Department as a juristic entity may have known, is not necessarily the same thing. Our law recognises that a juristic entity has a “directing mind” that exists separately from its various members and employees. In Solidarity & Others v Eskom Holdings Ltd[17] this court adopted the test set out in the minority judgment of Heher JA in Consolidated News Agencies (Pty) Ltd (In Liquidation) v Mobile Telephone Networks (Pty) Ltd and Another[18] regarding how to identify the directing mind of a juristic entity. The following excerpt from the judgment of Heher JA represents, in my view, the current state of our law on this issue:

[29] Pursuing this line of attack, CNA's counsel submitted that as a matter of law the persons who have the management and control in relation to the act in point are the directing mind and will of the company…, and that on this matter there is no difference between South African and English law.... The 'directing mind' need not be one person or body - the knowledge of more than one can be combined to comprise a piece of information that is regarded as knowledge of the company...

[30] Counsel for the MTN parties sought, largely by reference to the same authorities, to place a different slant on the matter. They emphasised that not only a director of a company but any natural person who has management and control in relation to the act or omission in question can be said to be the directing mind of a company: El Ajou v Dollar Holdings plc supra at 696a - b, Blackman op cit at 4-123 to 4-133 and particularly at 4-130 (citing Canadian Dredge & Dock Co Ltd v R G (1985) 19 DLR (4th) 314 (SCC) at 330 - 331):

'The act will be considered to be that of the directing mind as long as it is performed by the person in question within the sector of the company operation assigned to him by the company, which sector may be functional or geographic, or be the entire undertaking of the company. No formal delegation is necessary, nor does it matter that the directors are unaware of the activity in question nor, in fact, that the conduct had been expressly prohibited by the company.'

In El Ajou v Dollar Holdings plc supra at 699h - j Rose LJ said:

'First, the directors of a company are, prima facie, likely to be regarded as its directing mind and will whereas particular circumstances may confer that status on non-directors. Secondly, a company's directing mind and will may be found in different persons for different activities of the company.'

[31] The authorities relied upon by the parties are not in conflict. Each must of course be read in context. In each case the court strives to determine whether it is the company which has spoken or acted to a particular effect through the voice or conduct of a human agency and is thereby to be held to the consequences, or whether that agency was engaged in an activity which cannot fairly be attributed to the company. Each case raises different facts and the eventual conclusion must depend upon inference and probability in the absence of express evidence of adoption of the statements or conduct as the company's own.

(my emphasis, some reference omitted)

[34] While I must accept (for the purposes of a finding of criminal contempt) that Mr Mashinini may not have been aware of section 145(7), I cannot accept that the Department was therefore also unaware of section 145(7). It seems to me very likely that someone like Advocate Ramabulana (the Department’s Deputy Director of Legal Services) would have known about section 145(7). Certainly, in his email to the State Attorney on 18 October 2023 Advocate Ramabulana refers to the Department’s labour matters being “archived”, demonstrating, at the very least, a rudimentary understanding of practice in the Labour Court. However, for the reasons that follow, there is no need for me to attribute any one particular person’s knowledge to be that of the Department’s.

[35] Paragraph 23 of the Applicants’ founding affidavit alleges that both Mr Mashinini and the Department knew about the consequences of section 145(7). Mr Mashinini does not deny this allegation directly but his stated defence (that he was not in wilful defiance of the Award because he “laboured under [the] apprehension that there is a review application”) is, when giving him the benefit of the doubt, inconsistent with him making an admission on his own behalf. However, Mr Mashinini does not state that “the Department” did not know about section 145(7), or more specifically that “no one in the Department who worked on this matter knew about section 145(7)”. Had he done so, he may well have raised a reasonable doubt about the Department’s knowledge of section 145(7). In the

circumstances, I am going to accept the Applicants’ uncontroverted allegation[19] that the Department knew about section 145(7). This is important for what follows.

[36] When the Department received the Rule Nisi and the contempt application on 22 January 2024, it was aware of at least five things:

36.1 Firstly, the Award had now been certified.

36.2 Secondly, Tlhotlhalemaje J was of the view that the Applicants had made out a prima facie case for contempt of court.

36.3 Thirdly, both the State Attorney and the counsel on brief expressed an opinion that a review of the Award had “no prospects of success” and that the Award was “unassailable”.

36.4 Fourthly, the Department had tried to obtain a copy of the review application since at least 18 October 2023, without success.

36.5 Fifthly, the purported review application would not, in any event, have suspended operation of the Award unless the Department issued a security bond in terms of section 145(8).

[37] Nowhere in Mr Mashinini’s answering affidavit does he ever mention the possible existence of a security bond. On the facts before me there has never been a security bond.

[38] In response to the above circumstances, instead of complying with the Award, the Department told this court that it does not have to comply with the Award because it had apparently filed a review application two years ago which it cannot find. Given that the Department knows that a review application does not suspend operation of the Award, this is not a bona fide excuse. The excuse can therefore only be seen as male fide and demonstrates, in my view, not only deliberate and wilful non-compliance with the Award, but disrespect to this court and to

the LRA’s imperative of expeditious resolution of labour disputes.[20]

[39] In light of the above I find that the Department was in criminal contempt of the Award on the date of the hearing of this matter, being 6 March 2024.

[40] While Mr Mashinini has demonstrated a reasonable doubt that he was in wilful default himself (and thus would have avoided a finding of criminal contempt if such a finding were competent – see paragraph [19] above), in my view he should still be placed in civil contempt in his official capacity as HOD (with the result being a structural mandamus ordered against him – discussed below). I make this finding because, in my view, it is more likely than not that, after receipt

of the ex parte application, Mr Mashinini knew that a review application does not suspend operation of an award. Firstly, the Applicants told him as much in their founding affidavit (and he confirms that he has read the document). Secondly, the Department’s new (and allegedly more competent) attorneys would also have read the relevant paragraphs and advised Mr Mashinini of their accuracy (unless the new attorneys were exceedingly incompetent which, again, is unlikely). My finding may have been different if Mr Mashinini had at least denied the allegations in the founding affidavit that he knew about the consequences of section 145(7) – where the Plascon-Evans Rule might have assisted him – but since these allegations are not denied I am satisfied on a balance of probabilities that he knew about the consequences of section 145(7) – even if he did not necessarily know the exact section number.

[41] Once it is established, on a balance of probabilities, that Mr Mashinini knew about the consequences of section 145(7) but nonetheless told this court that the Department did not have to comply with the Award because there was a pending review application, the excuse cannot be considered bona fide. As a result, the lack of bona fides demonstrates wilful and male fide non-compliance with the Award – again, on a balance of probabilities.

[42] As discussed above, the LAC in Bruckner held that “Without first obtaining… a mandamus it was not, in my view, competent for Ms Bruckner to seek an order for the committal of the minister and the director-general to gaol for contempt of court”[21]. Quite clearly the LAC is here only referring to criminal contempt; civil contempt is still, in my view, competent for the person who is responsible for complying with an arbitration award on behalf of a government department (whether it be an MEC, an HOD, or some other government functionary). Civil contempt generally brings about a mandamus against specific individuals; a failure to comply with a mandamus will attract a criminal sanction.

Sanction, remedy and costs

[43] In its written submissions to this court on 30 July 2024 (this is now five months after the hearing), the Department explained that it had still not been able to find the review application, and that it had “not launched a review yet to set aside [the Award] pending the court’s reserved judgment on 6 March 2024” (my emphasis). It therefore appears that, despite these pending contempt proceedings, the Department still intends reviewing the Award (presumably along with what would have to be a formidable condonation application).

[44] Under these circumstances I do not think it would be appropriate to suspend the Department’s criminal sanction for contempt of court (which would be a monetary fine) on condition that it complies with the Award within a certain period of time (as is the norm). If such an order were granted the Department would, in effect, have to accept the fine as a penalty for taking the Award on review. Furthermore, if the Department issued a security bond it might be able to avoid the fine by arguing that sections 145(7) & (8) prevent it from complying with the Award. These possibilities do not sit well with me. I also do not think it would be appropriate to in any way preclude the Department from filing a review application and seeking condonation; I am only charged with determining whether the Department was in contempt of the Award on 6 March 2024, it is not my place to prejudge any possible future condonation application.

[45] I am therefore going to issue the monetary sanction as a purely punitive measure, and thereafter issue a structural mandamus to ensure that this matter reaches a conclusion as quickly as possible.[22] In Zuma (supra) the Constitutional Court majority confirmed that, in certain circumstances, a purely punitive sanction for contempt of court

(one not designed to ensure compliance with an order) may be appropriate to vindicate the dignity of the court.[23]

[46] An apt expression of the above principle can be found in Barberton Mines (Pty) Ltd v Mnisi[24] where certain individuals were interdicted from disrupting mining activities and, in disregard of the order, perpetuated serious acts of violence and destruction (including assaulting mine employees and firing automatic weapons). During contempt proceedings the mine initially asked that the perpetrators be imprisoned for six months but, at the hearing of the matter, only asked that a two month suspended sentence be imposed. Roelofse AJ rejected this proposal and sentenced the perpetrators to direct imprisonment for six months. This finding illustrates that contempt proceedings are not just a matter between an applicant and the respondent, it is also a matter between the court and the respondent. As the ConCourt in Zuma (supra) held “A coercive order that employs the threat of imprisonment in the event of further non-compliance would be incapable of vindicating the extent to which this Court’s authority has already been violated. As expounded in Fakie, a coercive order only incidentally vindicates a court’s honour: mere incidental vindication is far from what is warranted in these circumstances, which demand direct and incisive vindication”[25] (my emphasis).

[47] In the present matter the Department received advice that a review of the Award had “no prospects of success” and that the Award was “unassailable”. Although I make no finding on the merits of any possible future review, it certainly seems that this advice was not unreasonable.

In this regard I need only point out that the second applicant’s claim for a reasonable expectation of renewal of employment was based on his contract being renewed ten times over the course of ten years. The Department failed to comply with the Award for more than two years and, when confronted with a contempt application, could not even find the review application it had allegedly filed (let alone demonstrate that it had been diligently and timeously pursuing the application).

[48] This deplorable scenario is precisely the mischief that sections 145(7) & (8) were enacted to prevent. These sections provide that if an employer has a legitimate challenge to an arbitration award, and it wants to keep its employees out of work while the challenge goes through the court system, then it needs to put its money where its mouth is and put up a security bond. Frankly the Department should have put up the required bond of some R4 million (or a smaller amount acceptable to this court) as a

matter of course. Given the large sums of money involved in this matter, and as a warning to other employers, I have no hesitation in directing the Department to pay a fine of R500,000.00 for its contemptuous behaviour.

[49] As alluded to above, I have also prepared a structural mandamus to ensure that this matter reaches a conclusion as quickly as possible. On the issue of costs, the Department’s contemptuous

behaviour is sufficient reason to depart from the norm that costs do not follow the result in labour matters. Certainly, the Applicants

should not have to bear the cost of this application.

[50] In the circumstances I make the following order:

Order

1. The Rule Nisi issued by Tlhotlhalemaje J on 23 November 2023 under case number J1584/23 is hereby partly confirmed and partly dismissed, and

therefore replaced in its entirety by the orders that follow hereunder.

2. The first respondent is declared to have been in contempt of court on 6 March 2024 for failing to comply with the arbitration award issued by the General Public Service Sector Bargaining Council on 26 October 2021 under case number GPBC645/2021 (“the Award”).

3. The first respondent is ordered to pay a fine of R500,000.00 as a consequence of its contempt of court.

4. Within 20 court days of receipt of this order the second respondent must deliver (within the meaning of Rule 1) an affidavit on his own behalf, and on behalf of the first respondent, demonstrating that:

4.1. the Award has been complied with; alternatively

4.2. the Award is the subject of a review application within the meaning of the relevant provisions of the Labour Relations Act 66 of 1995 (“the LRA”).

5. In the event that the Award is subject to a review application as contemplated by paragraph 4.2 above, the second respondent must also demonstrate in the aforementioned affidavit that, if the review application has been filed outside of the relevant time period and/or has been placed in archives, then the first respondent has filed the applicable condonation application and/or application to have the matter removed from archives.

6. If the aforementioned affidavit establishes that there exists a pending condonation application and/or application to have the review application removed from archives, then the Registrar is directed to place these applications on the appropriate roll as soon as possible.

7. If the Applicants are of the view that the first and/or second respondents have not complied with any aspect of this order, and/or if the Applicants are of the view that the first respondent has remained in contempt of the Award after receipt of this order, then the Applicants are granted leave to approach this court on supplemented papers for further direction and/or further findings of contempt.

8. The first respondent is ordered to pay the Applicants’ costs of this contempt application on an attorney and client scale.

Mark Meyerowitz

Acting Judge of the Labour Court of South Africa

Appearances:

For the First to Third Applicants: Advocate C Mathonsi Instructed by: Ipeleng Mompati Inc For the First and Second Respondents: Advocate T Moloi Instructed by: RAMS Attorneys

[1] 20 of 1957

[2] 66 of 1995

[3] ,1994

[4] (2007) 28 ILJ 612 (LAC)

[5] At [42]

[6] At [46] & [50]. The decision in Bruckner was handed down before the 2014 amendments to section 143 of the LRA brought about a more streamlined enforcement mechanism for

arbitration awards. The amendments now introduce competing considerations: on the one hand it would be tedious for government

employees to first have to obtain a mandamus in the Labour Court before instituting contempt proceedings for non-compliance with arbitration awards ad factum praestandum, on the other hand it may not be desirable for national ministers and MECs to be sent to jail for non-compliance caused by their

respective subordinates. This issue may warrant revisitation by the LAC.

[7] (J1174/20) [2021] ZALCJHB 276 (7 September 2021) at [8]. In light of the findings I make in this judgment I should perhaps also point out, obiter dictum, that I respectfully disagree with Mabaso AJ where the learned judge found, at [8], that certification is not a necessary prerequisite

for enforcement of an arbitration award ad pecuniam solvendam. The reasons therefore are apparent from paragraphs 23 to 25 of this judgment and need not be taken any further.

[8] (2016) 37 ILJ 2793 (LAC)

[9] See Ntlokotse v NUMSA and Others: Unreported decision of the Labour Court dated 23 August 2022 under case number J941/2022 per Van Niekerk J at [12].

[10] At [35]

[11] 2006 (4) SA 326 (SCA)

[12] 2015 (5) SA 600 (CC)

[13] 2018 (1) SA 1 (CC)

[14] 2021 (5) SA 327 (CC)

[15] Supra (note 9) at [12]

[16] At [9] to [10]

[17] (2012) 33 ILJ 464 (LC)

[18] 2010 (3) SA 382 (SCA)

[19] Regarding the importance of answering to allegations in founding affidavits directly and to the point, see Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) at [13] which held as follows: “A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say 'generally' because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognize or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter”.

[20] Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & Others (2016) 37 ILJ 313 (CC) at [1]

[21] At [46]

[22] See Ntlokotse v NUMSA and Others (supra (note 9)) at [13]

[23] Zuma (supra (note 14)) at [86] to [87]

[24] Barberton Mines Proprietary Ltd v Mnisi and Others (2495/19) [2022] ZAMPMBHC (21 January August 2022)

[25] At [52]