Phasha v South African Broadcasting Corporation (SOC) Limited and Others In re: Phasha v South African Broadcasting Corporation (SOC) Limited and Others In re: South African Broadcasting Corporation (SOC) Limited v Phasha (J1149/2021; J1/2019; JA36/2020) [2021] ZALCJHB 341 (4 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1149/2021

In the matter between:

NOMPUMELELO PETUNIA PHASHA Applicant

and

SOUTH AFRICAN BROADCASTING CORPORATION

(SOC) LIMITED First

Respondent

MADODA MXAKWE Second

Respondent

NTUTHUZELO VANARA Third

Respondent

SANDILE JULY Fourth

Respondent

In re:

CASE NO: J1/2019

MINISTER OF COMMUNICATIONS Fifth

Respondent

In re:

CASE NO: JA36/2020

SOUTH AFRICAN BROADCASTING CORPORATION

(SOC) LIMITED Appellant

NOMPUMELELO PETUNIA PHASHA Respondent

Heard: 1 October 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 4 October 2021 at 19:00

JUDGMENT

TLHOTLHALEMAJE, J

Background:

[1] The applicant approached this Court on an urgent basis to seek an order declaring the first to fourth respondents (Respondents) to be in contempt of Court. It is alleged that the Respondents failed to comply with Court orders issued by Cele J on 6 February 2016

under Case Number J 1/2019[1], and by the Labour Appeal Court (LAC) on 27 November 2019 under case number JA 36/2019[2].

[2] In the Notice of Motion, it was alleged that contrary to the above Court orders, the respondents (cumulatively or individually), failed to reinstate the applicant, and have instead dismissed her from the first respondent’s (SABC) employment; failed to commence and finalise an inquiry under section 188A of the Labour Relations Act[3] (LRA) as directed by the LAC; and effectively continued to victimise her.

[3] The history leading to the two Court orders alleged not to have been complied with is hardly controversial, and may be summarised as follows;

3.1 The applicant has been in the employ of the SABC as General Manager: Commercial Service since 2012. It is common cause that she had also entered into a fixed term contract of employment commencing on 1 November 2016 until 31 October 2021.

3.2 In August 2018 charges of misconduct were preferred against her, and the parties had agreed to hold an enquiry under the auspices of the Commission for Conciliation Mediation and Arbitration (CCMA) in terms of section 188A of the LRA.

3.3 Despite being set-down several times by the CCMA, the enquiry never ever started, following various applications for a recusal of the appointed Commissioners. In the midst of the recusal applications, which were ultimately dismissed by the last appointed Commissioner (Moodley), the applicant on 18 December 2018 received correspondence from the SABC requesting her to make representations as to why she should not be dismissed for conduct related to the bringing of those recusal applications. SABC held the view that the applicant had engaged herself in improper conduct which negatively affected the trust relationship between herself and SABC.

3.4 It appears that SABC was irked by what it considered to be malicious, false and egregious accusations made by the applicant in seeking a recusal of the Commissioners, regarding the relationship between the SABC and those Commissioners for the purposes of section 188A of the LRA process. In a nutshell, the applicant accused the Commissioners, the SABC and its attorneys, Werksmans Attorneys, of collusion and bias to ensure that all matters between the SABC and its employees led to the latter’s dismissals. SABC held the view that the applicant through these attacks on its reputation and that of its management and attorneys, had failed to comply with the implied terms of her contract of employment.

3.5 Responses to the SABC’s correspondence seeking representations did not prove sufficient as it sent a letter to the applicant on 31 December 2018, summarily dismissing her.

3.6 The applicant then brought an urgent application in terms of section 77(3) of the Basic Conditions of Employment Act[4] (BCEA), contesting her summary dismissal and what she viewed to be a breach of her contract of employment, and further contending that the allegations of misconduct ought to be determined under the section 188A of the LRA process.

3.7 Cele J then granted the applicant relief as per prayers 1 – 9 of her Notice of Motion. In order to contextualise the basis upon which it is alleged that the respondents are in contempt of the two Court orders, it is necessary to state the prayers and the order granted in full, which read as follows;

1. ‘THAT this Honourable Court dispenses with the forms and service and ordinary time periods provided in the Labour Court Rules (as amended)

and disposing of the Application as one of urgency in terms of Rule 8(2)

2. THAT this Honourable Court condone the manner of service of these papers, being by the Applicant’s Attorneys of record effecting

service on the Respondents by email and/or fax, given the urgency of this matter.

3. Abridging the time limits relating to the filing of affidavits and service and permitting the matter to be heard as one of urgency.

4. THAT the unlawful and summary dismissal and ultimate termination of the applicant’s contract of employment by the First, second and Third Respondents constituted a breach of the First Respondent’s contractual obligation to address allegations of misconduct against the Applicant by way of a pre-dismissal arbitration in terms of section 188A of the Labour Relations Act 66 of 1995 (as amended)

5. THAT the unlawful termination of the Applicant’s contract of employment by the First, Second and Third Respondents is set aside.

6. THAT the applicant is reinstated into her employment with the First Respondent with retrospective effect from 31 December 2018,

without loss of remuneration and benefits.

7. In the event that the First Respondent elects to pursue an enquiry into the alleged misconduct by the Applicant, it is directed to conduct a pre-dismissal arbitration as contemplated in Section 188A of the Labour Relations Act 66 of 1995

8. Interdicting and restraining the First to the 4th Respondents from taking any disciplinary action and any other acts of victimization against the Applicant other than section 188A Inquiry which is currently pending before the Commission for Conciliation and Arbitration (CCMA) under case number HO3701-18

9. THAT the Second to the 4th Respondents shall pay the costs of this application on Attorney and Client scales personally, each paying for the other to be absolved.’

3.8 SABC subsequently appealed against Cele J’s judgment and order. In its judgment delivered on 27 November 2020, the LAC made the following order;

‘[37] For the reasons set out, the following order is made;

1. The appeal is dismissed with costs

2. The order of the court a quo is upheld only to this extent:

2.1 by confirming paras 1 to 7 of the order.

2.2 By setting aside paras 8 and 9 of the order and substituting para 9 as follows:

“The South African Broadcasting Corporation SOC Limited, the first respondent, is to pay the costs of the application on party and party scale”’

3.9 Pending the delivery of the LAC judgment, the SABC embarked on a restructuring process, which resulted in the applicant’s previous position of GM: Commercial Services becoming redundant. Upon receipt of the LAC’s judgment and order, the applicant could thus not be reinstated in her now redundant position and was offered an alternative position of GM: Litigation Management, which she had accepted on 24 March 2021. The position was offered on the same terms and conditions of employment prior to the termination, and thus for the remainder of the contract, which was due to expire on 31 October 2021. Accordingly, on 7 September 2021, she was notified that her contract of employment would not be renewed.

The legal framework and evaluation:

[4] The principles applicable in contempt proceedings were recently restated in 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[5] as flows;

‘[37] As set out by the Supreme Court of Appeal in Fakie, and approved by this Court in Pheko II, it is trite that an applicant who alleges contempt of court must establish that (a) an order was granted against the alleged contemnor; (b) the alleged contemnor was served with the order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order. Once these elements are established, wilfulness and mala fides are presumed, and the respondent bears an evidentiary

burden to establish a reasonable doubt. Should the respondent fail to discharge this burden, contempt will have been established.’

(Citations omitted)

[5] Prior to applying the above principles to the facts of this case, several concerns need to be highlighted, particularly with the manner with which the applicant has approached this Court. The respondents correctly point out that the founding affidavit is convoluted in the extreme, and it is difficult to determine the exact basis upon which a declaration of contempt is sought.

[6] The first concern is that in the Notice of Motion, the applicant seeks a declaratory that her employment contract with the SABC remains extant. This relief is indeed superfluous to the extent that it is common cause that the applicant remains employed until her fixed term contract comes to an end on 31 October 2021. It is therefore apparent that with this relief, the applicant is merely making an attempt to have her fixed term contract not terminated on 31 October 2021, and she is well aware that the circumstances of the imminent termination of her fixed term contract ousts the jurisdiction of this Court to even interdict that eventuality.

[7] The above is specifically linked to the second concern with this application to the extent that the applicant had raised issues surrounding the non-renewal of her fixed term contract and the allegation that she had a reasonable expectation of a renewal. Clearly these are issues that fall outside the jurisdiction of this Court at this stage. The only time that this Court can intervene in such matters is where a review application has been brought to challenge any adverse decision following arbitration proceedings at some stage.

[8] A third concern further relates to whether to the extent that the applicant instituted contempt proceedings, she was entitled to bring such an application on the urgent roll, let alone during recess. Ordinarily, these types of applications ought to be in compliance with the provisions of Clause 13 of the Practice Manual of this Court. They are ordinarily launched on an ex parte basis on a Friday in Motion Court, and where the applicant must seek an order that the respondent be ordered to appear at the Labour Court to show cause why it should not be held to be in contempt.

[9] What is even more concerning is that the applicant even failed to properly cite the respondents to be found guilty of contempt as envisaged in clause 13(2)(a) of the Practice Manual[6]. For instance, the fourth respondent (Mr Sandile July), is not an employee of the SABC, and it is not clear on what basis he could as its legal representative, be found guilty of contempt of Court, when it is not within his powers to enforce the Court orders.

[10] The Court in the light of the provisions of the Practice Manual does not ordinarily entertain contempt applications on the urgent roll, and this conduct by litigants should be frowned upon, as it clearly constitutes an abuse of Court processes. It is accepted that there are exceptions where this Court has in the past entertained contempt applications on its urgent roll. The exceptions are however far and in between. The examples in this regard would be where an unprotected strike action accompanied by violence has been interdict and where the strike and the violence nonetheless continued. A further instance would include disputes surrounding restraint of trade which are by their nature inherently urgent, and where interdictory orders that have been granted are not immediately complied with.

[11] Contempt of court applications related to reinstatement orders, especially arising from Court orders that have long been granted, hardly qualifies as exceptional circumstances. It is therefore extraordinary, that the applicant would approach this court on an urgent basis to seek a declaratory of contempt, in circumstances where the orders in question were granted as far back as February 2019 and November 2020 respectively.

[12] It further follows from the above concerns that any urgency claimed insofar as the alleged non-compliance with these Court orders is concerned, dissipated at most, ten months ago. It is therefore disingenuous for the applicant to contend that; ‘This application has been brought at the earliest opportunity following the unlawful defiance by the Respondents to abide by the terms of the Court orders[7]’. The letter allegedly forewarning the Respondents that this Court would be approached should the Court Orders not be complied with was only despatched on 14 September 2021. This is exactly ten months since the LAC order, and I am at a loss for words as to the meaning of ‘earliest opportunity’.

[13] As it was correctly pointed out on behalf of the respondents, the only basis upon which this Court was approached at this belated stage with this extraordinary urgent application was simply because the applicant has since been formally reminded and notified that her fixed term contract of employment would not be renewed when it comes to an end on 31 October 2021. In fact, counsel for the applicant conceded that the letter of 7 September 2021 reminding the applicant of the end date of the contract triggered this application.

[14] This application is clearly a fantastical ruse, with the sole intention of preventing the imminent termination of the fixed term contract, and worst still, to circumvent the normal dispute resolution procedures after the termination. The applicant was well aware of the end date of the contract as far back as March/April 2021 when she was offered and had accepted the alternative position following her reinstatement in compliance with the LAC. The urgency claimed is clearly self-created, and this application is indeed an abuse of this Court’s processes. On this ground alone, the application ought to be struck off the roll.

[15] Striking this matter off the roll will not serve any purpose as it would find itself back on the ordinary roll. The merits of this application do not deserve to burden this Court’s roll any further. The principles applicable to contempt proceedings have been set out elsewhere in this judgment, and it ought to be stated outrightly that no case has been made for any contempt finding.

[16] Applying the said principles, it is not in dispute that the respondents were aware of the LAC order as it was served on them. There is however no basis for any conclusion to be reached that the applicant was not reinstated. She was reinstated, albeit in a different position, in compliance with the LAC order.

[17] In prayer 4.1 of the Notice of Motion, it is alleged that the respondents ‘failed to comply with the reinstatement of the applicant as they had offered her a permanent position as to avoid retrenchment and to comply with reinstatement but have unlawfully dismissed her from her employ. Other than the issue of reinstatement and dismissal which have been dealt with already, nowhere in the LAC order is there mention of any ‘retrenchment’, and it would appear the applicant seeks to impute terms in the LAC order which are not there. Inasmuch as the applicant complained about the alleged non-reinstatement, in the same breath, she complained about being offered a permanent position. Clearly the applicant is unsure of what she seeks ultimately, and from those averments, it can only be assumed that the applicant had an expectation after the restructuring process that she would be retrenched.

[18] The allegation that the respondents have not complied with the LAC order as they continue to victimise the applicant is a red herring. The LAC in its order specifically set aside the order granted by Cele J under its paragraph 8 regarding any allegations of victimisation. Too much time was spent by the applicant in her papers in demonstrating how and when she was victimised. I fail to appreciate the necessity to burden the Court’s papers with these allegations when they were specifically disposed of by the LAC. There is therefore no order interdicting the respondents from victimising the applicant, even if there was any merit to those allegations.

[19] The answer to the question whether the respondents were ordered to commence and finalise the section 188A inquiry can only be gleaned from paragraph 7 of the order granted by Cele J, and which was confirmed by the LAC. It provides that; ‘In the event that the First Respondent elects to pursue an enquiry into the alleged misconduct by the Applicant, it is directed to conduct a pre-dismissal arbitration as contemplated in Section 188A of the Labour Relations Act 66 of 1995’.

[20] A plain reading of that order gives the SABC an election. Thus if it elected to pursue the allegations of misconduct against the applicant, it is specifically directed to do so through the section 188A process. The SABC has not elected to pursue any allegations of misconduct against the applicant, and has instead, allowed the fixed

term contract of employment to see its end.

[21] The arguments that there is a binding tripartite agreement between the applicant, SABC and the CCMA to commence the section 188A process are misplaced and lack merit. The SABC has not been compelled to pursue the allegations of misconduct, and it has exercised an election not to do so. It has a management prerogative and discretion in regards to disciplinary matters at the workplace which it has exercised. It is not for this Court to micromanage how employers should conduct their own disciplinary processes or to dictate to employers whether they should or not pursue allegations of misconduct against employees.

[22] To the extent that the allegations of misconduct against the applicant that were left undetermined may have adverse consequences for her future employment or reputation, these are issues that are left for the applicant herself to pursue separately at some point if she so desires. These issues however cannot constitute a ground for contempt, nor should this Court be burdened with them.

[23] In the end, to the extent that the respondents have complied with the LAC order by reinstating the applicant, and further to the extent that nothing in that order compels the respondents to cease victimising the applicant, or for the parties to commence with the section 188A inquiry, it follows that there is no basis for any contempt of Court finding to be made against the respondents.

[24] In regards to costs, it is acknowledged that the requirements of section 162 of the LRA provides that the requirements of law and fairness are paramount in determining whether a costs order should be made.

Arising from the principles in awarding costs as restated in Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others[8], this Court retains its discretion to make such orders, which discretion is to be exercised judicially[9]. Furthermore, it was reaffirmed that when awarding costs, the Court should seek to strike a fair balance between, on the one hand, not unduly discouraging workers, employers, unions, and employers’

organisations from approaching the Labour Court to have their disputes dealt with, and, on the other, allowing those parties to

bring to the Labour Court frivolous cases that should not be brought to court[10]. Equally important are the considerations of the principle of fairness and the conduct of the parties.

[25] Having had regard to the facts of this case as set out in this judgment and the overall conduct of the applicant in persisting with this matter, it is my view that a costs order is appropriate in this case for the following reasons;

24.1 Other than the fact that urgency in this case was self-created and contrived, it has already been pointed out that in the light of the period it took the applicant to approach this Court on an urgent basis with contempt proceedings, the proper approach would have been to follow the provisions of Clause 13 of the Practice Manual of this Court in seeking any relief. There was nothing spectacularly exceptional about the facts of this matter which necessitated that this Court be burdened with prolix founding papers and heads of argument on its already overburdened urgent roll, let alone during recess.

24.2 A second consideration is that the applicant’s papers were prolix as already mentioned, with minimal issues relevant for the purposes of any contempt proceedings. The bulk of averments and submissions were dedicated to issues which clearly fell outside the jurisdiction of this court. As already indicated, the application was an attempt to circumvent the normal dispute resolution processes at the end of the fixed term contract. The applicant was well aware of all of these alternative remedies, and instead chose to abuse the processes of this Court.

24.3 A third consideration is that the applicant miserably failed to make out a case for contempt of Court. This was not a case where the applicant sought to vindicate and enforce her rights flowing from Court orders. It was about seeking rights which do not form part of the orders in question. It was apparent, even from her own concessions, that there was compliance with the Court orders in question as primarily, she was reinstated. All the other issues that she had raised in alleging contempt were all imagined and a misreading of the LAC order, with a clear intention to conjure up a case that did not exist.

[26] In conclusion, it ought to be emphasised that the applicant is not an ordinary employee who it can be said relied solely on the advice of her legal representatives. She is employed as a General Manager: Litigation Management. In that position, she ought to have been able to read and understand Court orders, and to further be able to distinguish between compliance with those orders, and whether there is basis for a finding of contempt. She spectacularly failed in that regard despite having legal representatives in tow.

[27] In the end, as a result of not only the poor merits of the applicant’s case but also her conduct in persisting with this matter, the SABC in particular was unnecessarily burdened with costs in having to oppose a hopeless application. It ought to be emphasised that the application was indeed an abuse of Court process, and the consequent order to be made is not meant to discourage litigants from approaching this Court, but merely to restate that the Court’s processes are not meant for abuse and to discourage litigants from bringing matters that are hopeless in the extreme.

[28] Consequently, the Court in the exercise of its discretion, and further having had regard to the requirements of law and fairness is satisfied that the applicant should be burdened with the costs of this application.

[29] Accordingly, the following order is made;

Order:

1. The Applicant’s application to have the First to Fourth Respondents declared to have been in contempt of Court orders issued under Case Numbers J 1/2019 and JA 36/2019 is dismissed with costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv,

MT Kufa, instructed by Machaba Attorneys

For the 1st – 4th Respondents: Mr S July of Werkmans Attorneys

[1] Phasha v SABC J1/2019 (Unreported)

[2] South African Broadcasting Corporation SOC Ltd v Phasha (JA 36/2019) [2020] ZALAC 50; [2021] 3 BLLR 270 (LAC); (2021) 42 ILJ 816 (LAC)

[3] Act 66 of 1996, as amended

[4] Act 75 of 1997, as amended

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

[6] Which provides: 13.2 An application which seeks for the court to make a finding that a party is in contempt of an order of the Labour Court must be made ex parte by way of a notice of motion accompanied by a founding affidavit. The notice of motion must seek an order in the following terms: (a) That the respondent, [Chief Executive officer/Director General/owner/proprietor of the respondent] (full and proper names) appear in the Labour Court on (date) of (month) 2012 at 10 am to show cause why he/she should not be found guilty of contempt of court for failing to comply with the order of this court dated xyz;

[6] Which provides:

13.2 An application which seeks for the court to make a finding that a party is in contempt of an order of the Labour Court must be made ex parte by way of a notice of motion accompanied by a founding affidavit. The notice of motion must seek an order in the following terms:

(a) That the respondent, [Chief Executive officer/Director General/owner/proprietor of the respondent] (full and proper names) appear in the Labour Court on (date) of (month) 2012 at 10 am to show cause why he/she should not be found guilty of contempt of court for failing to comply with the order of this court dated xyz;

[7] Para 71 of the Founding Affidavit

[8] (CCT 192/20) [2021] ZACC 26 (7 September 2021)

[9] At para 34

[10] At para 30