Ramahotswa v Minister of Police and Others (JR387/2015) [2016] ZALCJHB 352 (15 September 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JR387/2015

NATHANIEL RAMAHOTSWA

Applicant

And

MINISTER OF POLICE

First Respondent

ACTING NATIONAL COMMISSIONER OF SAPS

(COMMISSIONER KGOMOTSO PHAHLANE NO)

Second Respondent

LIEUTENANT GENERAL MOLEFE

(DIVISIONAL COMMISSIONER-LEGAL SERVICES)

Third Respondent

MAJOR GENERAL HENDRICKS N. O

(PROVINCIAL HEAD: LEGAL SERVICES.

GAUTENG PROVINCE)

Fourth Respondent

Heard: 09 September 2016

Delivered: 15 September 2016

TLHOTLHALEMAJE, J

[1] This matter concerns an extended return date for the Respondents to show cause why they should not be found guilty of contempt of Court for their failure to comply with two orders of this court dated 22 March 2016 and 29 July 2016.

[2] As at the hearing of this matter on 2 September 2016, the Respondents had not yet filed their answering affidavit and the matter remained unopposed. This is despite their Notice of Intention to Oppose that was filed on or about 13 May 2016. At the Court’s direction, the parties engaged in settlement discussion of the dispute and the proceedings were postponed to 9 September 2016.

[3] The parties managed to resolve the dispute in its entirety other than the issue of costs. The Applicant insisted on a cost order on a scale as between between attorney and own client. A tender of cost was made on behalf of the Respondents, but only on a scale as between party and party.

[4] Arguments were then heard in open court in regard to the issue of costs. The Applicant’s insistence on cost is based on the following submissions;

4.1 Since his successful review application on 22 March 2016, he reported back for duty on 23 March 2016 at the Alexandra Police Station and was informed that he could not be placed back on duty without the say-so of the Provincial Office.

4.2 Despite correspondence from his attorneys of record insisting on his reinstatement as per the court order of 22 March 2016, the Respondents still failed to allow him to come back to work. Rather than reinstating him, the Respondent instead sought to remit the matter back to the SSSBC for a hearing de novo. For some strange reasons, the SSSBC set the matter down for a fresh arbitration. The Applicant sought to return to work on 29 April 2016 and was again informed that he could not be placed on duty.

4.3 Following the institution of contempt proceedings, a rule nisi was issued by Moshoana AJ on 13 May 2016, calling upon the Respondents to show cause why they should not be found to be in contempt of court. The Respondents were ordered to jointly and severally, the one paying the other to be absolved, pay the costs of that application as between attorney and own client.

4.4 The Applicant contends that the court orders were ignored for a period of three months, and this was also despite the fact that the Respondents made an undertaking that they would comply with the order.

4.5 To the extent that the Applicant was compelled to approach the Court on no less than two occasions, and further in the light of the failure of the Respondents to implement their undertakings, he is of the view that he was burdened with unnecessary legal costs which he is entitled to on a punitive scale.

[5] Arguments advanced on behalf of the Respondents were to the effect that in light of the cost order made by Moshoana AJ on 13 May 2016, it was not necessary for the court to make a similar cost order. It was also submitted that the difficulty in implementing the court order or filing opposing papers was that the file was moved from one office of the State Attorney to the other, and that only in exceptional circumstances should the court make such a punitive cost order. It was further pointed out that the rule nisi issued by Moshoana AJ on 13 May 2016 was also extended by Steenkamp J on 29 July 2016, and costs were also granted in favour of the Applicant.

[6] By virtue of the provisions of section 162 of the LRA, this Court may make an award of costs, upon a consideration of the requirements of law and fairness. It is my view that although the Respondents have to a large extent been blameworthy in not complying with the orders of this court, significant with the chain of litigation is the extension of the rule nisi as granted on 29 July 2016. The purpose of that extension was to grant the Respondents an indulgence until 2 September 2016 to comply with the initial order by completing all the internal processes of reinstating the Applicant. I have no reason to doubt that the Respondents did indeed take means to complete those processes, as is evident from the parties’ agreement which was finalised as at 2 September 2016, but for the issue of costs.

[7] A cost order was made in favour of the Applicant on 13 May 2016 and also on 29 July 2016. To further grant any punitive cost order in circumstances where the Court had granted the Respondents an indulgence to comply with the order until 2 September 2016, would

definitely not be in the interests of fairness. To the extent that the Respondent had made a tender of costs but on a lesser scale, I am of the view that no exceptional circumstances exists for the Applicant to be entitled to more than what has been tendered.

Accordingly, the following order is made;

Order:

i. As per agreement between the parties;

(a) The applicant is to report for duty at the Alexandra Police Station of the SAPS at 07h30 on 12 September 2016 in accordance with paragraph 3 of the order granted by Coetzee AJ on 22 March 2016.09.

(b) The Respondents shall forthwith proceed to process all of the Applicant’s retrospective salary, benefits and entitlements or all that which is due to be paid to him in accordance with the reinstatement order referred to in paragraph 3 of the order of 22 March 2016.

(c) Payments of such retrospective salary, benefits and entitlements or all that which is due to be paid to the Applicant as above shall be made directly into his bank account, which details the SAPS is in possession of.

(d) All payments as mentioned in (b) and (c) above shall be made within twenty-one (21) days from 12 September 2016 after the Applicant has reported for duty. The Fourth Respondent undertakes to inform the Applicants’ attorneys of record in writing, once all the payments have been made.

(e) In the event that the Respondents are not able to make such payments for whatever reason within twenty-one (21) days from 12 September 2016, they shall approach the Court for an extension of time by no later than 10 October 2016.

ii. The Respondents are ordered to jointly and severally, the one paying the other to be absolved, pay the costs of this application as between party and party.

________________

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant:

Adv. VP Ngutshana

Instructed by:

Moaba Attorneys

On behalf of the First to Fourth Respondents: Adv. BT Moeletsi

Instructed by:

State Attorney