Pikitup Johannesburg (Pty) Ltd (Pikitup) v South African Municipal Workers' Union (SAMWU) and Another (J2362/15) [2016] ZALCJHB 149; (2016) 37 ILJ 1710 (LC) (19 April 2016)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Reportable

Case no: J2362/15

In the matter between:

PIKITUP JOHANNESBURG (PTY) LTD (‘PIKITUP’) First Applicant And SOUTH AFRICAN MUNICIPAL WORKERS’ UNION (‘SAMWU’) First Respondent SIMON MATHE (GENERAL SECRETARY OF SAMWU) Second Respondent

Heard: 16 and 18 March 2016

Delivered: 19 April 2016

Summary: (Contempt of interim court order – liability of union and general secretary – failure of officials employed by the union to desist from encouraging participation in unprotected strike – no reasonable doubt raised on evidence that non-compliance was intentional or wilful – imposition of suspended fines)

JUDGMENT

LAGRANGE J

Introduction

[1] This is an application in which the first and second respondents, being the South African Municipal Workers’ Union (‘SAMWU’) and its General Secretary, Mr Simon Mathe (‘Mathe’) are called upon to show cause why they should not be found guilty of contempt for failing to comply with the interim order of this court handed down by Whitcher J, on 24 November 2015, which was granted on an urgent basis and which further read:

“2. A rule nisi is hereby issued calling upon the First to Second and Further Respondents (“the Respondents”) to show cause on 11 February 2016 why an order should not be granted in the following terms:-

2.1 Declaring that the concerted obstruction or retardation or

collective refusal by the Second and to Further Respondents, with effect from 23 November 2015, to work in accordance with their normal terms and conditions of employment with the Applicant is an unprotected strike as contemplated in section 68 and 213 of the Labour Relations Act, No 66 of 1995 (“the LRA”);

2.2 interdicting and restraining the Second to Further Respondents from participating in such unprotected strike;

2.3 interdicting and restraining the Second to Further Respondents from interfering with the business operations of the Applicant by:-

2.3.1 blocking, in any way, access to and egress from the Applicants head office at 63 Juta street, Johannesburg (“the Applicant’s premises”) and/or at any of the Pikitup Depots (“the Depots”);

2.3.2 preventing, in any way, non-striking employees from entering or leaving the Applicant’s premises or tendering her services at the Applicant’s premises and/or depots; and

2.3.3 intimidating and/or harassing and/or threatening with by islands, in any way, any of the Applicant’s non-striking employees and/or any of the Applicant’s customers, clients or business associates;

2.4 Interdicting and restraining the First Respondent or any of its officials from persuading, encouraging, inciting, and/or procuring of its members, including the Second to Further Respondents, in any way to participate in any other unlawful conduct in contemplation or in furtherance of the said unprotected strike;

2.5 directing the First Respondent and/or its officials and/or shop stewards to take immediate and urgent steps or measures to relay to all of its members, including the Second to Further Respondents, the contents and terms of this order;

2.6 directing the First Respondent and/or its officials and/or shop stewards to take immediate steps or measures to ensure that all its

members, including the Second to Further Respondents, comply with the terms of this order; and

2.7 ordering and directing the First Respondent to pay the costs of this application on a scale as between attorney and client.

3. The relief set out in prayers 2.1 to 2.7 about shop operate as an interim order with immediate effect pending the final adjudication of this application.”

[2] When the application came before Van Niekerk J on the return day, 11 February 2016, he confirmed the interim order including the payment of costs by the union and its members on an attorney own client scale. In the light of one of the affidavits filed in the application proceedings, Van Niekerk J issued an additional order in the following terms, in which the first and second respondents are SAMWU and Mathe respectively:

“IT IS ORDERED THAT:

1. The second respondent, Mr Simon Mathe, representing the first respondent, is ordered to appear in the labour court on 16 March 2016 at 10 H00 and to show cause why the respondents should not be found guilty of contempt of court for failing to comply with the order of this court dated 24 November 2015.

2. The second respondent may explain the respondents’ conduct by way of an affidavit filed not later than 8 March 2016 or before that date although this will not exonerate him from being present in court.

3. In the absence of providing an explanation to the satisfaction of the court or failing to appear in Court despite being properly served, the respondents may be found guilty of contempt of court and that the second respondent be imprisoned for such period as the Court deems appropriate and for the first respondent to be fined in an amount the court deems appropriate, or other alternative relief.

4. The service of this order shall be effected by the sheriff on the second respondent personally by means of serving a copy on him, together with a copy of the papers filed under case number J2362/15.”

[3] It is this order which gave rise to the contempt proceedings which are the subject matter of this judgement.

Merits

[4] Mathe was served with the order in terms of paragraph 4 of the order and appeared in court as instructed. On 16 March the matter was postponed to 18 March 2016 by agreement.

[5] The limited scope of this application must be emphasised. This application is solely concerned with whether or not the union and, or alternatively, the general secretary are guilty of contempt of the interim order of 24 November 2015. It does not concern whether other officials or shop stewards of the union or indeed those members of the union who participated in the unprotected strike action were also personally in contempt of court.

[6] The application is therefore concerned in particular with whether or not the union and the general secretary acted in breach of the provisions of paragraphs 2.4, 2.5 and 2.6 of the interim order which placed specific obligations on the union and its officials. Paragraph 2.4 was aimed at stopping the union and any of its officials from promoting participation in, or conduct in support of, the unprotected strike. Paragraphs 2.5 and 2.6 of the order were intended to compel the union, its officials and shop stewards to convey the contents of the interim court order to SAMWU’s members and to take immediate positive steps to ensure that the

union’s members complied with the order.

[7] The first question then is whether these obligations were complied with. Secondly, if they were not, did such non-compliance amount to contempt of the court order?

[8] The foundation for the case of contempt was laid in the supplementary affidavits filed by Pikitup on 29 January and 9 February the 2016, filed prior to the return date. By the time of the hearing on 11 February 2016 to determine if the interim order should be made final, SAMWU had not filed any answering affidavit. Following the order on the return day calling upon the first and second respondents to explain why they should not be held in contempt of the interim order, the general secretary filed an affidavit on 8 March. Pikitup filed a further supplementary affidavit on 11 March to which the respondents replied on 16 March. The respondents filed a further supplementary affidavit on 18 March to which Pikitup answered the same day. Not all the contents of these affidavits relate to the events while the interim order was in force and to the extent they deal with events after the final order was made they are not relevant.

[9] The supplementary affidavit filed by the respondents on 18 March was supposedly to respond to ‘a directive’ from the court that the second respondents must also give reasons why they should not be found guilty of contempt. The reference to the second respondents appears to refer to the individual respondents in the original application and not the contempt application. No directive of this nature was issued. At the hearing on 16 March, it was suggested by respondents’ counsel, that there was some confusion in the respondents’ minds over the capacity in which the general secretary was called upon to defend his actions in terms of the order issued by Van Niekerk J. In order to prevent any confusion a letter was issued by the court on 16 March pointedly directing the parties to the order issued by the honourable Judge. Paragraphs 2 and 3 of the letter stated:

“2. PLEASE TAKE NOTE THAT, during the hearing this morning, the issue of the capacity in which the second respondent is appearing was raised.

3. To avoid any uncertainty, Judge Lagrange wishes to direct the parties’ attention to the order of the Niekerk J, at page 219 of the bundle, which makes it clear that the second respondent is called upon to show cause why both the first and second respondents should not be found guilty of contempt.”

[10] It is patently obvious on the face of Van Niekerk J’s order that both SAMWU and Mr Mathe were being called upon to account for why they ought not to be found guilty of contempt. The citation of parties in the order of Van Niekerk J made it abundantly clear who the respondents in the contempt application were and there was no excuse for the supposed misunderstanding of Mathe, especially as he was assisted by his attorneys. In any event, his affidavit did not really deal with the failure of individual members to heed the court order.

[11] The nub of whether or not the interim order was breached rests on allegations about the conduct of the union and the General Secretary between the late afternoon of 24 November when the order was served on the union and when the strike action initially ceased on 3 December 2015 when striking workers returned to work.

[12] In the applicant’s supplementary affidavit of 27 January, the following averments were made:

12.1 On 25 November 2015, the day after the order was issued, the individual respondents marched through the central business district of Johannesburg and Braamfontein armed with sticks “trashing and burning waste disposal bins” and emptying them out onto the streets.

12.2 They further marched to the head office of the applicant, threw stones at the building, burned tires at the entrance, and demanded that the managing director of Pikitup should address them.

12.3 Two days later on 27 November this conduct was repeated and police fired rubber bullets to disperse them.

12.4 The emptying of the contents of bins and refuse bags into the streets of Braamfontein continued while the individual respondents remained on strike.

12.5 Identified shop stewards, office bearers and an official of the union played a prominent role in encouraging this conduct and took no steps to discourage or prevent the individual respondents from behaving contrary to the order. The official identified in the supplementary affidavit is Mr S Qwabe, who was designated as a “Cluster Secretary”.

[13] Of greater relevance to this application were the alleged public statements of prominent SAMWU staff. Four days after the interim order had been issued SAMWU National Spokesperson, one Papikie Mohale, was reported in an article appearing in the Saturday Star on 28 November 2015 as saying that members were prepared to continue striking until Christmas. He was also reported to have “lashed out at the company’s decision to hire casuals as ‘this is not in line with the Labour Relations Act’”. The article continued:

“He said the union intended to disrupt the casual workers from carrying out their duties.

‘The City of Joburg should brace itself for a dirty Christmas if our members’ grievances are not met’ he said.

‘Since garbage bins are Pikitup employees’ tools of trade, what they do with the bins when they strike is up to them,’ Mohale told Talk Radio 702.”

(emphasis added)

[14] Further, the Deputy Regional Secretary of SAMWU, Mr Paul Tlhabane (elsewhere identified as Tlhabang), was reported in the Citizen newspaper on 1 December as saying that talks between Pikitup and the union were abandoned due to lack of commitment from the employer. The article quoted him directly as follows:

“ ‘The employer told us that in order for the talks to continue we needed to tell our members to go back to work first, but we said that is not going to happen. What this means now is that the strike will continue until such time as management starts taking us seriously,’ Thlabane said.”

[15] Lastly, a press statement issued by SAMWU Head office and appearing on the SAMWU website on 1 December 2015, under the heading ‘SAMWU to intensify Pikitup strike’, stated:

“The South African Municipal Workers’ Union (SAMWU) has made every effort to engage the arrogant and stubborn management of Pikitup however we are disappointed to report that there have been no positive outcomes as there was no logical conclusion in the interest of municipal workers.

Rubbish is piling up in Johannesburg posing potential health risk for residents especially children in informal settlements and townships. Despite this, Pikitup does not think that the situation has reached crisis point, they bluntly refused to have meaningful engagements with us aimed at resolving the impulse. All they know is to deploy military style private companies by Pikitup to intimidate workers. Workers’ grievances are genuine and will not be overshadowed by the arrogance of the employer.

We are very worried about the excessive force which we have seen been applied by the police on an armed workers, workers who pose no threat to anyone. Surely the police have not learned from the mistakes they made in Marikana. We shall not be deterred by such acts of police brutality, in fact the police cannot take away workers’ constitutional right to embark on a strike action.

We want the issue of the use of casual workers at the waste management entity to be abolished. This is in line with the recently amended Labour Relations Act which clearly states that any employee employed for a period of three months should automatically be employed on a permanent basis. Pikitup

are ever continues with this practice because they do not want to pay workers decent wages including benefits such as medical aid, pension and housing. They have even gone to an extent of implementing Jozi at Work program which is also aimed at displacing workers. Our view is that all municipal services should be rendered by municipal workers who are directly employed by municipalities on a permanent basis.

Our members are ready to return to work but will only do so once all our grievances have been addressed by management. Workers are also adamant that a thief who also happens to be the managing director of Pikitup Amanda there should be removed. In her two-year tenure at the entity she has not done anything in the interest of municipal workers, all she knows is stealing equipment belonging to the city and victimising workers.

We will therefore be intensifying our strike action at Pikitup and will be including all workers from the city of Johannesburg, Ekhurleni and Tshwane who will be going on strike in solidarity with Pikitup workers. Unless some sort of divine intervention is achieved, we will bring Gauteng province to a standstill.

Issued by SAMWU Head Office

Simon Mathe

Deputy General Secretary[1]

[0.....]

Or

Papikie Mohale

National Media Officer

[0.....]“

(sic – emphasis added)

[16] The union did not file an answering affidavit opposing the confirmation of the interim order before the hearing on 11 February. Consequently no alternative version to that of Pikitup’s was placed before the court. In the first answering affidavit relating to the contempt proceedings deposed to on 8 March 2016, Mathe sought to address his own role in events on the basis that he only had to account for that and not for the conduct of the union. In essence he claimed that -

16.1 He had no knowledge of the application launched by Pikitup on 24 November 2015.

16.2 He claimed to have been “bombarded” with calls from various “media houses” asking about the strike action to which he responded that he was “not aware of the strike and the details they of and once I establish all the facts I will be able to respond.”

16.3 He then says:

“4.3 Late in the afternoon of 1 December 2016, I discovered that one Papiki Mohale, who is employed by the first Respondent as its Media Officer, issued a media statement attached to the applicant’s

supplementary affidavit as ANNEXURE JT6 and put my name and contact details, as well as his, for further inquiries.

4.4 I pause here and state that I did not authorise the issuing of the media statement, neither did my office authorise same. Secondly, I must emphasise that I never approved nor ratified the media statement. Instead upon becoming aware of the statement, I called the Media Officer and reprimanded him that in future he must first obtain my instructions or approval before issuing any media statements. I thereafter issued him with a formal reprimand letter, a copy of which is attached hereto and marked as ANNEXURE SM1”

16.4 Mathe then goes on to explain that a so-called “Political Facilitation Meeting” was held together with Pikitup and the MEC for Local Government as a result of which the parties agreed workers should return to work and a Political Facilitation Agreement (‘PFA’) was concluded to which he was a signatory. What the full PFA entailed is a mystery as it was not attached to Mathe’s affidavit, nor did Pikitup choose to make it known to the court.

16.5 He then goes on to state that ever since he became involved he had been a proponent of finding a solution to the matter “to give effect to the court order and promote labour peace, and good relationship between the employer and the employee’s. I never at any stage have any mind to disrespect any court of law.”

[17] Attached to Mathe’s affidavit is the reprimand letter he claims to have issued to the Media Officer on 02 December 2015. In passing, I should mention that the letter attached to the affidavit appears to be the original letter on which the Media Officer appears to have signed for receipt of the letter. Ordinarily, one might expect that the original letter would be retained by the

recipient and a signed copy by the party issuing it. Be that as it may, the somewhat conciliatory letter of reprimand read:

“TO: Papikie Mohale

National Media Officer

Comrade,

RE: MANAGEMENT OF MEDIA STATEMENTS

Receive my greetings

Kindly be informed that, on the 01 December 2015, I was called by various media houses pertaining to the statement you issued on behalf of my office.

As a result of the above, I therefore instruct you that, any statement issued on behalf of my office should be authorised by myself before it can be circulated, and in furtherance, you are instructed not to issue any media statement pertaining to the Pikitup issue pending my intervention.

Kindly consider this communiqué as a reprimand and wait for this instructions after I have been properly briefed by the regional

leadership of Johannesburg.

Kind regards

Deputy General Secretary”

[18] On 11 March the applicant filed a further supplementary affidavit deposed to by Ms A Nair (‘Nair’), the Managing Director of the applicant. In that affidavit, the applicant complains that within a day of Mathe’s answering affidavit being delivered, the respondents resumed the unlawful strike and committed further acts of unlawful conduct.

[19] Mathe filed a further affidavit, answering the additional material raised in Nair’s supplementary affidavit. In it, he claims to have been unaware of the renewed strike before receiving an email from Pikitup at around 17h30 on 9 March. He undertook to revert to Pikitup after consulting regional leadership which he claimed, without providing any detail of his attempts to get hold of anyone in particular, “proved to be difficult” because he was out of the province attending a regional conference. It proved so difficult it seems, that it took him until 11 March to contact them and telephonically instruct them “to refrain from their unlawful conduct”. Again no details are provided of whom he eventually spoke to, or why in this age of easy electronic communication he was thwarted in his attempts to communicate with a single regional office bearer for so long. The kind of vague averments made by Mathe are completely inadequate in an affidavit addressing a matter of this seriousness.

[20] The applicant replied to this latest affidavit of Mathe before the resumption of hearing of the application on 18 March. Amongst other things, the applicant claimed that despite Mathe’s contention that he had instructed Regional Office Bearers on 11 March to direct members to return to work, the Regional Secretary Mr Tlhabang made a number of media statements to the effect that workers were not backing down and would not return to work until their demands were met. Of relevance to this application, the applicant also cited a Twitter tweet dated 2 December 2015 appearing on the SAMWU website, which reads:

“Samwu Official @SAMWUnion – 2 Dec 2015

SAMWU Deputy General Secretary Simon Mathe also on stage, says National Office supports workers at Pikitup”

[21] Yet another affidavit by Mathe was handed up in court on 18 March. Supposedly, this was filed to explain why the “Second Respondents” should not be held in contempt. I have already dealt with the supposed confusion underlying the filing of this affidavit, which is not credible. Despite already having filed an affidavit that dealt with events on 11 March, Mathe now claimed, for the first time, that on 11 March a meeting had been convened with workers through their shop stewards at which they were to be addressed about the court orders and why they should return to work. No mention is made of any attempts to do this prior to 11 March. He goes on to say:

“A meeting was convened, however, before we could attend the meeting, we were bombarded with death threats messages on our cell phones from unknown numbers. We were told that we have sold workers by stating that the workers should return to work.”

Once again, no details of a single instance of this barrage of threatening emails was provided, though clearly this time there was no difficulty with cellphone communications. What is not explained is why these additional claims of what transpired on 11 March were not included in his original reply to the applicant’s supplementary affidavit of the same date. In any event, as mentioned, the union’s actions after the final order were issued are not the subject matter of this application.

[22] Reference is also made by Mathe in his last affidavit to an attempt to call a mass meeting with members on 14 March to advise them to return to work. It is not clear whether he was actually present in the meeting, or where the meeting was convened, but he claimed that it was clear that there was a group of people who were “planted in the crowd” who were not employees of the applicant to disrupted the meeting and were shouting that there “should be blood”. Mathe says he had to be whisked out of the meeting venue in haste to protect him from the people who were threatening to kill John Dlamini, another national office bearer who was attending the meeting. Yet another attempt to call a meeting was made on the date the matter was first due to be heard on 16 March but Mathe claims that before any headway could be made a group of more than 200 people invaded the meeting threatening

“to kill us”. After this event a plan was made to hold meetings with small groups of 50 members at a time “at a venue outside Johannesburg where the unruly and criminals who are not some were members are based.” The affidavit goes on to explain efforts to meet at a police station in Pretoria where attempts would be made to obtain affidavits from members why they should not be held in contempt of court. Lastly he mentions that the Cluster Secretary, S Qwabe is suspended pending the outcome of a disciplinary process.

[23] Before evaluating the evidence relating to the respondents cited in this application, it should be mentioned that a few minutes before the postponed hearing of the contempt application was due to begin at 14h00 on Friday 18 March, a large crowd of people, many of whom were wearing SAMWU T-shirts or hats arrived in the street outside the Court and proceeded to upend rubbish concrete bins into the street and strew the contents of the bins and rubbish bags across the road. For good measure they also dragged a tree trunk into the street and effectively made the street difficult for traffic to negotiate. Some of the crowd then entered the Court and sat in the public gallery, while the remainder assembled in the street outside the Court. Clearly, the demonstration was either intended as a display of contempt for the Court proceedings or an attempt to intimidate the Court. Under the circumstances, I was not prepared to proceed until the crowd outside the Court had been dispersed and instructed the union to ensure that its officials attended to this. That was done and within about 15 minutes, the group had dispersed and moved off. After this episode,

it was suggested by the respondents’ representative that this impeccably timed demonstration was unrelated to the Court proceedings

but concerned a march taking place to the municipal offices. It is true there was a separate march which passed the Court shortly after the events described above, but the group that was responsible for the mayhem described were clearly there in connection with the Court proceedings and not en route to another venue. I mention this incident only because it demonstrated, amongst other things, that whatever the union leadership might suggest about criminal elements sabotaging or undermining the actions of members and the union, acts of public vandalism are also committed by persons wearing union garb, who are able to be swayed by union leadership to behave in an orderly fashion when required to do so. The suggestion that the union has no ability to influence the conduct of members is somewhat exaggerated.

[24] Be that as it may, the issues for consideration of the Court concern a more limited time frame, between the time the interim order was handed down on 24 November 2015 and when it was confirmed as a final order on 11 February 2016. Consequently, the factual material in the affidavits concerning the course of events after the final order were handed down will only be relevant in any subsequent contempt proceedings that might be brought in relation to non-compliance with that order.

Evaluation

[25] The twofold object of contempt proceedings concerning the unlawful and intentional refusal or failure to comply with an order of court is the imposition of a penalty in order to vindicate the court’s authority following the disregard of its order and, or alternatively, to ensure compliance with the order.[2] Usually, the latter is an issue of greater concern, particularly where the underlying dispute is a matter between private parties with no broader public interest ramifications. In this instance, the strike was a matter of significant public interest impacting as it did on the provision of fundamental sanitary services in the largest metropolitan area in the country. The conduct of the strikers after the interdict was granted, which is not disputed in any of the affidavits filed by Mathe, openly flouted the court order on a dramatic scale. Between the issuing of the order on 24 November and the initial cessation of the strike on 3 December, Pikitup claims it made various plans to enforce the order, such as initiating contempt proceedings, instituting a claim for damages against the union and the strikers and scheduling a collective hearing on 4 December. However, none of these steps were followed through apparently in view of the action initially ceasing on 3 December and an agreement reached in the PFA that issues of discipline would be part of the facilitation process set out in that agreement. Neither of the parties were willing to take the court into their confidence about the contents of the PFA except those parts they chose to mention. By the time the final order was handed down and despite the resurgence of strike action in March there was no evidence that Pikitup had done anything further to enforce the order. Perhaps because a public entity like Pikitup is not affected by the same financial considerations that would apply to a private business facing such prolonged strike action, it did not pursue the remedies available to it with more alacrity. Whatever the reasons, a situation had resulted in which the authority of the Court’s order had been very publicly undermined and it was considered necessary for the Court to set these proceedings in motion.

[26] The importance of complying with court orders, which is necessary for the existence of a properly functioning democratic legal order has already been emphasised by the LAC in North West Star (Pty) Ltd (Under Judicial Management) v Serobatse & Another [3] but warrants repetition:

“[17] Section 165(5) of the Constitution reads: 'An order or decision issued by a court binds all persons to whom and organs of State to which it applies. 'In this matter the order of 6 September 2002 issued by the Labour Court applied to the appellant and was, therefore, binding on the appellant. Mr Fourie and the other co-judicial manager were obliged in their capacities as the appellant's judicial managers to take the necessary steps to ensure that the appellant complied with that order unless the appellant noted an appeal against such order. If they failed to take such steps and the appellant failed to comply with the order and there was no appeal against the order, the appellant would be guilty

of contempt of court.

[18] The respondents' failure first to obtain the leave of the High Court

before they could refer the dismissal dispute to the CCMA and before they could bring the application to make the award an order of court did not invalidate the award or the order and was no valid reason for the appellant not to comply with the order. Upholding the submission made by counsel for the appellant would make a mockery of the Constitution and the rule of law that forms part of the foundations of our constitutional democracy. In order to establish whether a party has acted in contempt of the Constitution and the rule of law that forms part of the foundations of our constitutional democracy. It would be a licence for people to disregard orders of courts simply because they not agree with the court that such orders should have been issued. A society that would allow such would in no time be a society of chaos and lawlessness. To do so would sow in society a culture in terms of which people felt free to obey only those court orders with which they agreed or to obey only those laws which they like and to disregard those laws they do not like. I have no doubt in my mind that such a principle has no place in our legal system. The correct principle is that, if a court has issued an order against you and you are unhappy with it, you must take that decision to a court higher than the one that issued such order and which has competent appellate or review jurisdiction and seek to have such order set aside. If there is no such court, for example, where there is no appeal or review available against that court or against such order or if the court which issued the order is the court of final jurisdiction in such matters or is the highest court in the land, then you have no choice but must simply comply with the order. A person cannot say: 'I don't like this court order; it is wrong; therefore I will not comply with it.' If we want to deepen our democracy, promote the rule of law, discourage

self-help and encourage those who have disputes to take them to the courts of the land and not to seek to resolve them through physical fights or violence, the whole society must frown upon anyone who disobeys an order of court or who, either by word or deed, encourages or incites another or others to disobey an order of court.”[4]

[27] One may add that when prominent public figures, civil institutions like trade unions, organs of state or private corporate bodies which exercise economic power are selective in the respect they display for Court orders, that kind of conduct tends to promote a view that compliance with Court orders is a matter of preference rather than an unavoidable legal obligation. When persons or institutions in positions of power or influence express those sentiments, such conduct can powerfully affect public sentiment and in turn undermine the rule of law as a foundational principle of our constitutional order.[5] We no longer labour under an undemocratic order where the legitimacy of certain laws and court orders made under them was questionable. Obviously that does not mean Courts are above criticism.[6] Moreover, parties who are aggrieved by a Court’s decision are not remediless and may seek leave to appeal. In this instance, if the respondents had believed the interim order was legally unjustifiable they could have anticipated the return day on 48 hours’ notice. They did not and did not even file an opposing affidavit by the time the Court sat to determine if the order should not be made final.

[28] The pre-requisites for finding someone guilty of contempt were reformulated in Fakie NO v CCII Systems (Pty) Ltd[7] where Cameron JA, stated as follows:

“[23] Once the prosecution has established (i) the existence of the order, (ii) its service on the accused, and (iii) non-compliance, if the accused fails to furnish evidence raising a reasonable doubt whether non-compliance was wilful and mala fide, the offence will be established beyond reasonable doubt: The accused is entitled to remain silent, but does not exercise the choice without consequence.

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 mentioned 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.” [8]

[29] In H v M [9] a judgement handed down shortly after the decision in Fakie, it was held that the existence of mala fides is really a question of whether dolus exists. The court went on to say:

“[12] Insofar as dolus is concerned, it has long been recognised that where a person deliberately closes his or her eyes for what the law requires, dolus in the form of at least dolus eventualis will be found to have existed. In S v De Blom it was held that, once the act has been proved, an inference may be drawn, depending on the circumstances, that the act was done intentionally, with knowledge of unlawfulness. If the accused wishes to rely on a defence it would succeed if a reasonable possibility exists, on the evidence as a whole, that the accused did not know that his act was unlawful.”[10]

[30] In this matter, the first respondent is SAMWU and the second respondent is Mathe, who is called upon to answer the claim that SAMWU as a corporate body is in contempt and to answer for his own conduct as an official of the union. In relation to the union’s liability for contempt, it is important to distinguish the obligations imposed on the union as distinct from those imposed on the members. In Food & Allied Workers Union v In2Food (Pty) Ltd [11] the LAC stated:

“The fact that a trade union can be liable for the acts of its members does not assist in deciding whether the trade union, in its own right, has breached a court order. This distinction was also not addressed in the judgment of the court a quo. The upshot is that when there is evidence to implicate the union vicariously in the unlawful acts of its members, there may well be an action available to the respondent for redress, but the liability of the appellant for contempt of a court order is strictly determined by reference to what the court ordered the trade union, itself, to do and the presentation of evidence that it did not do as it was told.”[12]

(emphasis added).

[31] As the evidence revealed, there was ample reason for other officials to have been cited for contempt, but their personal liability is not under consideration in this application as they were not cited as respondents, even though their actions do have a direct bearing on the respondents’ liability.

[32] It is common cause that the interim order was handed down and was served on the union and on Mathe. Inexplicably, Pikitup’s affidavits completely failed to deal with the question whether or not SAMWU took any of the positive steps it was obliged to take in terms of paragraphs 2.5 and 2.6 of the interim order namely, to relay the contents of the order as a matter of urgency to members and to take immediate steps to ensure that members comply with the order. The affidavits deposed to by Mathe are also silent on this question and it would seem as a matter of probability that it was only in March that steps were taken. Nonetheless, as no specific factual allegations were made by Pikitup in relation to non-compliance with those provisions of the interim order, the focus of this contempt application is on whether paragraph 2.4 of the order was breached.

[33] Paragraph 2.4 of the order essentially prohibited the union and its officials from doing anything to encourage participation in the strike by its members or action in support of the strike. In relation to the reported public statements of prominent SAMWU officials namely Hlabang, Qwabe and Mohale mentioned above, there can be no doubt that they conveyed both the sense that the union endorsed the strike and supported its continuation. There is no denial that such statements were indeed made by the individuals concerned. Obviously, such statements would encourage participants in the strike to continue their action. There is obviously also not the slightest hint in their statements about the existence of a court order prohibiting the very conduct they were promoting. As such, the actions of these officials were plainly in breach of paragraph 2.4 of the court order.

[34] The next question therefore is whether the evidence establishes a reasonable doubt whether the non-compliance of the union’s officials amounted to intentional and wilful conduct on the part of the union. In this regard what is critical is whether the union as an organisation acted to repudiate or distance itself from any of these utterances.

[35] The only instance in which corrective action was allegedly taken was in relation to the statement issued by Mohale on 1 December. That statement was a ringing endorsement of the strike and a call issued in the name of the union to intensify it. The only issue which the alleged reprimand of Mohale addressed was whether the issuing of the statement had been authorised by Mathe. Nothing in the letter of reprimand indicates that the contents of the statement issued were inaccurate or dangerously misleading about the

union’s official stance towards the strike. What is even more glaring is that, if indeed the statement issued by Mohale was

contrary to the stance the union had adopted towards the strike, why Mathe did nothing to correct the statement which was in the public domain for all to read as the official position of the union. No explanation was provided for the failure to take remedial action to correct the public stance of the union in any of the affidavits Mathe attested to even though this issue had been raised by the court on 16 March before proceedings adjourned. It is also noteworthy that there is no evidence advanced of any proactive steps taken by the union to ensure as far as possible that its officials complied with the order. On the contrary, what emerges overwhelmingly from the evidence is a complete indifference on the part of the union towards the court order.

[36] What is also noteworthy is that, on the evidence, no effort was made by the union to try and invoke the statutory dispute mechanisms for resolving the underlying dispute. The procedures for embarking on lawful strike action are simple and not onerous. They are designed to ensure that a proper opportunity for conciliation between the parties occurs before any need to resort to industrial action arises. The failure to invoke these procedures suggests a worrying disdain for using the dispute resolution procedures, which the Labour Relations Act, 66 of 1995 (‘the LRA’) provides for. Unions and their members who disregard these processes should be alive to fact that following such a course of action is not risk free, as it exposes them to the prospect of justified dismissal and claims for compensation by employers. Of course, even if a strike is protected in terms of the LRA that does not include a license to commit acts of violence, destruction of property and the like.

[37] In the circumstances, I am not satisfied that the respondents have established a reasonable doubt that the statements made were not made intentionally and wilfully in defiance of the court order, or that the union and Mathe took reasonable steps to correct these actions taken by employees of the union under its name. The only reasonable inference to draw is that the union and Mathe were completely indifferent as to whether their actions were in breach of the court order or not. In this regard, I should mention

that in reaching this conclusion, it is not even necessary to consider the reported statement by Mathe himself in the official

SAWMU tweet recorded above, which was only mentioned in the last affidavit filed by the applicant.

[38] The next question is what penalty is appropriate. In this instance the contempt relates to the interim order alone and the time for compliance with that order has passed. The Court is primarily concerned with imposing a salutary penalty as a mark of disapproval of the respondent’s disregard for the authority of the interim order. If the Court had to still deal with non-compliance of the interim order a period of incarceration of Mathe failing immediate compliance would have been appropriate to consider. The union as an organisation must bear primary responsibility for the failure to prevent its officials from acting contrary to paragraph 2.6 of the interim order and any penalty should also be designed to deter a repetition of such conduct in what has been a long and drawn out conflict between Pikitup, the SAMWU members it employs and SAMWU itself. Mathe’s omission to correct the flagrant breach of the order by Mohale is also deserving of severe censure. In determining an appropriate penalty, I am also mindful of the scale of the disruption caused by the unprotected strike action in which SAMWU claimed 4000 members were involved. However, the period in respect of which the findings of contempt were made ended on 3 December 2015 which has inclined me to impose much lower fines than would probably have been the case if the period of continued disruption after the confirmation of order was also under consideration.

[39] On the issue of costs, the applicant’s costs in this matter arose because of the flagrant disregard of this Court’s order by the respondents and there is no reason why it should bear any of those costs.

Order

[40] In light of the above,

40.1 The first respondent, being the South African Municipal Workers Union (‘SAMWU’), is found guilty of being in contempt of paragraph 2.4 of the interim order of this court dated 24 November 2015, by encouraging its members through the actions of its officials to continue to participate in the said unprotected strike,

40.2 The second respondent, Mr Simon Mathe, the General Secretary of SAMWU is found guilty of being in contempt of paragraph 2.4 of the interim order by failing to take any appropriate steps to correct the statement of Mr P Mohale which was in breach of paragraph 2.4 of the order.

40.3 SAMWU is ordered to pay a fine of R 80, 000 -00 (eighty thousand rands), which is suspended for a period of 24 months from the date of this order on condition the union is not found guilty of contempt of any order of this Court during that time.

40.4 Mr Simon Mathe is ordered to pay a fine of R 10,000-00 (ten thousand rands), which is suspended for a period of 24 months from the date of this order on condition he is not found guilty of contempt of any order of this Court during that time.

40.5 The first and second respondents are jointly and severally liable for the applicant’s costs on an attorney own client scale, the one paying the other to be absolved.

____________________________________

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES APPLICANT: M Van As instructed by Bowman Gillfillan Inc. RESPONDENTS: R Venter instructed by Maenetja Attorneys

[1] It seems at that stage that Mr Mathe was a Deputy General Secretary but by the time he deposed to his first affidavit in this matter occupied the position of General Secretary.

[2] See Cilliers, et al, Herbtein & Van Winsen, The Civil Practice of the High Courts of South Africa, Vol 2, (5ed), Juta’s, 2009 at 1100.

[3] (2005) 26 ILJ 56 (LAC)

[4] At 63-64.

[5] Section 1 of the Constitution of the Republic of South Africa, Act 108 of 1996 (‘the Consitution’) states: “The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. (b) Non-racialism and non-sexism. (c) Supremacy of the constitution and the rule of law. (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.” (emphasis added)

[5] Section 1 of the Constitution of the Republic of South Africa, Act 108 of 1996 (‘the Consitution’) states:

“The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

(emphasis added)

[6] An exhaustive discussion of the limits to freedom of expression in relation to court decisions is set out in S v Mamabolo (E TV and Others Intervening) [2001] ZACC 17; 2001 (3) SA 409 (CC) at 425-433, paras [27] – [47], a case which dealt with the criminal offence of contempt ex facie curiae.

[7] 2006 (4) SA 326 (SCA) 1

[8] at paras 22 and 23 (338E - 339A):

[9] 2009 (1) SA 329 (W)

[10] At 334-5 (footnotes omitted).

[11] (2014) 35 ILJ 2767 (LAC)

[12] At 2771, par [12].