Shema v Ditsobotla Local Municipality (J1625/23) [2024] ZALCJHB 387 (23 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J1625/23

In the matter between:

ISAAC

TSIETSI SHEMA Applicant and

DITSOBOTLA

LOCAL MUNICIPALITY First Respondent

RASUPANG

MOOKETSI Second Respondent

OLAOTSE

BOJOSINYANE (MUNICIPAL MANAGER) Third Respondent

Heard: 20 September 2024

Delivered: 23 September 2024

(This judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 23 September 2024.)

JUDGMENT

MYBURGH, AJ

Introduction

[1] This is an opposed application to place the respondents in contempt of court for failing to the obey this order made by Ngwenya AJ at the end of her judgment delivered on 2 April 2024:

“[31] The Respondents’ refusal to allow the Applicant to render services as the First Respondent’s Legal Manager is unlawful.

[32] The First Respondent is in breach of the Applicant’s employment contract and must comply with its contractual obligations by permitting the Applicant to render his services, in terms of his contract of employment, as the First Respondent’s Legal Manager.”

[2] When the matter came before me on 13 September 2024, it was postponed to 20 September 2024 so as to enable the third respondent (the current municipal manager) to file a supplementary affidavit and heads of argument. He duly did so on 18 September 2024. At the hearing on 20 September 2024, the applicant withdrew the application as against the second respondent (the former acting municipal manager) with each party to pay their own costs. This narrows the present application to being against the first respondent (Municipality) and the third respondent alone.

The factual chronology

[3] The material chronology of events is this: (i) on 1 June 2021, the applicant commenced employment with the Municipality as its legal manager; (ii) on 23 April 2023, the applicant was dismissed; (iii) on 14 June 2023, the applicant and the Municipality entered into a settlement agreement in terms of which the applicant was retrospectively reinstated with effect from 3 July 2023; (iv) on 8 August 2023, and in circumstances where he had not been allowed to work despite having been reinstated, the applicant issued his first urgent application for payment of salaries; (v) on 11 August 2023, the Municipality issued a review application to set aside the settlement agreement (but has not advanced it); (vi) on 18 September 2023, Baloyi AJ delivered judgment in the first urgent application ordering payment of the applicant’s salary; (vii) on 25 September 2023, the Municipality brought an application for leave to appeal against the judgment of Baloyi AJ (which was dismissed on 10 April 2024); (viii) sometime in November 2023, the applicant issued a second urgent application principally for an order that the Municipality’s refusal to allow him to render his services is unlawful; (ix) on 2 April 2024, Ngwenya AJ delivered judgment in the second urgent application, with her order being as quoted above; (x) on 25 July 2024, and following alleged non-compliance with the order and the launching of an ex parte contempt application, this court issued the standard ex parte contempt rule nisi; and (xi) what followed was the filing of explanatory affidavits by the second and third respondents and an answering affidavit by the applicant, and then, a supplementary affidavit by the third respondent.

[4] The second respondent appears to have been the acting municipal manager at all material times up until June 2024, with the third respondent having assumed the position of municipal manager with effect from 8 July 2024. It is apparently because the second respondent is no longer the municipal manager (and thus no longer responsible for complying with the order of Ngwenya AJ) that the applicant withdrew this application against him.

Is non-compliance wilful and mala fide?

[5] The applicant has to prove the requisites of contempt – (i) the order, (ii) service or notice, (iii) non-compliance, and (iv)

wilfulness and mala fides – beyond a reasonable doubt. But, once the applicant had proved the order, service or notice and non-compliance, the respondent bears an evidentiary burden in relation to wilfulness and mala fides: should he or she fail to advance evidence that establishes a reasonable doubt as to whether his or her non-compliance was wilful

and mala fide, the applicant would have proved contempt beyond a reasonable doubt.[1]

[6] Importantly, regarding the fourth requirement for a contempt order, 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.[2]

[7] Turning to the facts of the present matter, the first three requirements for a contempt order have been met, with the issue thus boiling down to whether non-compliance is wilful and mala fide.

[8] In the third respondent’s explanatory affidavit dated 22 August 2024 (filed further to the rule nisi issued on 25 July 2024), he explained that he was unaware of the decisions taken by his predecessor (the second respondent) and requested more time to investigate the matter. It was in these circumstances that I postponed the hearing of the application on 13 September 2024 until 20 September 2024, to enable the third respondent to file a supplementary affidavit.

[9] In his supplementary affidavit, the third respondent explains that, in his capacity as the new municipal manager, he has now had the opportunity to consider the review application aimed at setting aside the settlement agreement, the orders granted by Baloyi AJ and Ngwenya AJ, and the current criminal charges brought against the applicant by the Hawks. According to the third respondent, the settlement agreement was unlawfully entered into by the applicant and a junior official, without any explicit lawful authority from the Municipality, which he describes as fraudulent.

[10] The third respondent goes on to explain that he has now undertaken three courses of action: firstly, he instructed the Municipality’s attorneys of record to file urgently an application for leave to appeal against the judgment / order of Ngwenja AJ, with this being attached to his affidavit; secondly, he instructed the aforesaid attorneys to take any other action required to prosecute the review application; and thirdly, he instructed the aforesaid attorneys to take all other steps to ensure that the Municipality makes available any other records in relation to the criminal investigation / prosecution.

[11] As appears from the relevant affidavit of service, the application for leave to appeal was served and filed on 18 September 2024. The application runs to nine pages and is, on the face of it, a considered application. It appears from the application that the Municipality’s core contention is that Ngwenya AJ erred in finding (or assuming) that the applicant has a valid contract of employment – this on the basis of its contention that the settlement agreement was unauthorised. The Municipality’s

attack on the judgment is thus bound up with its attack on the settlement agreement.

[12] In argument before me, Mr Saloojee (counsel for the applicant) made these main points: (i) having not been accompanied by an application for condonation for the late filing thereof, the application for leave to appeal is a nullity; (ii) a case has not been made out that the review application will be prima facie successful, and the application has lapsed on account of it not having been prosecuted timeously; (iii) moreover, no security was furnished so as to stay reinstatement; (iv) the criminal charges have no bearing on this matter; and (v) there is, in the result, nothing in the third respondent’s supplementary affidavit to demonstrate reasonable doubt that non-compliance is wilful and mala fide.

[13] I am not persuaded by the points raised by Mr Saloojee: (i) while it is correct that the application for leave to appeal was not accompanied by an application for condonation, there is a clear intention to seek to appeal the judgment of Ngwenya AJ and there is no reason why a condonation application cannot follow; (ii) a prima facie case for the success of the review application has been established (this on the basis of the contention that there was no authority to enter into the settlement agreement) and while the review application may have lapsed for want of timeous prosecution, an application to reinstate the review would fall within the scope of the relevant instruction issued by the third respondent to the Municipality’s attorneys of record; (iii) it is by no means clear to me that the security provisions set out in section 145 of the LRA apply to the review of the settlement agreement (and in any event, this point does not appear to have been pleaded by the applicant); (iv) I have attached no weight to the criminal charges in reaching my finding; and (v) in my view, reasonable doubt that non-compliance by the third respondent (and the Municipality on whose behalf he has taken the relevant decisions) is wilful and mala fide has been demonstrated by the decision that he took to action the application for leave to appeal, and the prosecution of the review application.

Order

[14] Accordingly, I make the following order:

1. the application is dismissed;

2. there is no order as to costs.

Myburgh, AJ

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant: Adv Y Saloojee instructed by Scholtz Attorneys

For the third respondent: Mr Mataka of Morathi & Mataka Attorneys

[1] Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 42.

[2] Ibid.