SAMWU obo Prince v Sol Plaatjie Municipality and Another (J2080/19) [2021] ZALCJHB 146 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J2080/19

In the matter between:

SAMWU obo ISAAC PRINCE Applicant

And

SOL PLAATJIE MUNICIPALITY

First Respondent

NOMONDE KESIYAMANG

Second Respondent

Heard: 05 March 2021

Delivered: 22 June 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 22 June 2021.

JUDGMENT

VAN AS, AJ

Introduction

[1] This is an application to hold the second respondent in contempt of court for failing to comply with a settlement agreement which was made an order of this Court on 10 June 2019 (“the Labour Court Order”).

[2] The respondents oppose the contempt application.

The Factual Background

[3] The applicant (“SAMWU”) referred an unfair practice dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) concerning the grading of the position of one of its members, Mr Isaac Prince (“Mr Prince”). Mr Prince is an employee of the Municipality who alleged that he should be remunerated for taking on additional responsibilities which fell beyond the designated scope of his position.

[4] On 3 March 2016, the applicant and the first respondent (“the Municipality”) concluded a settlement agreement in terms of which the Municipality essentially undertook to re-evaluate Mr Prince’s position. This re-evaluation had to be completed by 30 June 2016. This settlement agreement was then made an order of this Court.

[5] SAMWU contends that the Municipality had not complied with the Labour Court Order and now seeks to hold the Second Respondent, the former Municipal Manager of the Municipality, in contempt of court and to have her incarcerated.

Evaluation of the merits

[6] At paragraph 9.10 of his founding affidavit, Mr Prince alleges that the Municipality has not complied with the Labour Court Order because “the additional duties are still not evaluated therefore this means for all these years I am rendering service of these additional duties for free and without being remunerated for same.”

[7] In a further affidavit (“the Explanatory Affidavit”), Mr Prince states that his attorney received a letter from the Acting Municipal Manager of the Municipality, Mr Dhluwayo, which states that the work done by Mr Prince has been assessed and that he has been moved from level 7 to level 9 with immediate effect but with no retrospective payment. This effectively means that Mr Prince’s current position has been upgraded.

[8] In this same affidavit, Mr Prince alleges (at paragraph 25) that “the Respondents’ purported compliance with the arbitration award was out of time and inconsistent with the agreement to compensate me for FLISP [Financial Link Individual Subsidy Programme] tasks”.

[9] In his answering affidavit, Mr Abraham Nkgodi Pitso, the Internal Legal Advisor of the Municipality alleges at paragraph 11.9 that the Municipality has complied with the Labour Court Order by re-evaluating Mr Prince’s post and adjusting his salary and remuneration. Mr Pitso referred to a letter from the Municipality to Mr Prince’s attorneys, dated 2 December 2000, which states, “Please be advised that Mr Isaac Prince has been assessed and has now been placed on Task Level 9 from Task Level 7 with immediate effect

[10] In his replying affidavit, Mr Prince essentially denies that the Municipality has complied with the Labour Court Order by upgrading his position from Task Level 7 to Task Level 9 and further contends that the Municipality has also failed to comply with the Labour Court Order because it has not provided the minutes of this job evaluation to him.

[11] What is important is that Mr Prince does not dispute that his position has been upgraded from Task Level 7 to Task Level 9. He also does not allege that his position should have been upgraded to a higher task level.

[12] The gravamen of Mr Prince’s complaint appears to be fourfold:

12.1. first, that the Municipality has not disclosed the minutes of the job

evaluation committee meeting at which the decision to upgrade his position was taken;

12.2. second, that his position has not been upgraded retrospectively;

12.3. third, the delay in completing the job evaluation exercise;

12.4. fourth, the upgraded position does not compensate him for FLISP tasks

already done by him.

[13] Whilst it is so that the Municipality has been extremely dilatory in upgrading Mr Prince’s position, I am of the view that the Municipality has substantively complied with the Settlement Agreement by upgrading Mr Prince’s position from Task Level 7 to Task Level 9.

[14] If Mr Prince is still dissatisfied with the upgrading of his position or the procedure followed in doing so, he can challenge this decision or this procedure in the appropriate legal forum.

[15] In my view, the respondents cannot be held in contempt of court because Mr Prince disagrees with the re-evaluation of his position. The Labour Court Order does not require the Municipality to retrospectively re-evaluate Mr Prince’s position. It also does not state that Mr Prince should be compensated (retrospectively or prospectively) for doing the FLISP tasks.

[16] Similarly, the Settlement Agreement (and hence the Labour Court Order) does not require the Municipality to disclose the minutes of the job evaluation committee meetings to SAMWU or Mr Prince. The Settlement Agreement does no more than require the Municipality to revert back to Mr Prince on a monthly basis as to the status of the job evaluation process.

[17] The contempt application was filed on 17 October 2019. Mr Prince’s position was upgraded in December 2020. Mr Prince makes reference to the upgrading of his position in the Explanatory Affidavit.

[18] At paragraph 25 of the Explanatory Affidavit, Mr Prince alleges that “the Respondents’ purported compliance with the arbitration award was out of time and inconsistent with the agreement to compensate me for FLISP tasks”.

[19] It is settled law that the criminal standard of proof must be applied in contempt proceedings.[1]

[20] There is a dispute of fact between the parties as to whether the Municipality has complied with the Labour Court Order. The Municipality contends that it has done so by re-evaluating and upgrading Mr Prince’s position and communicating same to Mr Prince’s attorney.

[21] SAMWU and Mr Prince, on the other hand, dispute (for the reasons set out herein above) that the Municipality has complied with the Labour Court Order.

[22] The This dispute of fact must be determined on the Municipality’s version of events unless such version is implausible.[2] This is especially so where the criminal standard of proof is applicable.

[23] Accordingly, I am of view that the Municipality has substantially complied with the Labour Court Order and, as such, the respondents are not in contempt of court.

[24] Since I have found that the respondents are not in contempt of court, it is unnecessary for me to make a finding as to whether the second respondent, who is no longer the municipal manager of the Municipality, can be held in contempt of court for events which mostly appear to have occurred beyond her tenure as municipal manager.

Costs

[25] There is an ongoing relationship between the parties since Mr Prince is still employed at the Municipality. I have also taken into account the dilatory behaviour of the Municipality in addressing this issue and complying with the Labour Court Order.

[26] In my view, it would be fair and equitable to make no cost order in this matter

Order

[27] Accordingly, I make the following order:

1. The contempt application is dismissed;

2. There is no order as to costs.

__________________

M J VAN AS

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant: Advocate I Tshoma

Instructed by:

Ndou Attorneys

For the respondent:

Advocate L Bodlani

instructed by:

Van de Wall Incorporated

[1] Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 9

[2] Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634A