Solidarity obo Van Der Linde v City of Matlosana Local Municipality and Another (J167/05) [2014] ZALCJHB 393 (15 October 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

NOT REPORTABLE

CASE NO J 167/05

In the matter between:

SOLIDARITY obo J VAN DER LINDE

APPLICANT

and

CITY OF MATLOSANA LOCAL MUNICIPALITY

1ST RESPONDENT

MOTSEMMME ET (MUNICIPAL MANAGER)

2ND RESPONDENT

Application heard: 1 August 2014

Heads of argument received: 28 August 2014

Judgment delivered: 15 October 2014

VAN NIEKERK J

Introduction

[1] This is an application in which the applicant seeks to hold the respondents in contempt of this court on account of their failure to comply with an order granted by Jammy AJ on 27 June 2008.

Material facts

[2] The matter has a long and sorry history, but the material facts are not in dispute. Van der Linde was employed as a traffic

superintendent by the Hartebeesfontein visibility on 29 June 1999. In 2000, the municipality was amalgamated with others to form the Klerksdorp municipality. Van der Linde remained employed as a traffic superintendent.

[3] On 23 August 2002, the then municipal manager placed Van der Linde in the position of leading firefighter at post level 8. Van der Linde lodged a grievance in response to this placement. In April 2003 Van der Linde was placed in the position of examiner of motor vehicles at post level 9. Van der Linde again contested this placement and the matter was ultimately referred to the CCMA. At an arbitration hearing in January 2004, an award was made by default against the first respondent. That award was rescinded in July 2004. In a hearing de novo conducted in September 2004, a default award was again made against the first respondent, in terms of which the first respondent

was ordered to reinstate Van der Linde in the position of traffic superintendent.

[4] During July 2005 the applicant filed an application in terms of s 158 (1) (c) to have the default award made an order of court. An order to that effect was made on 7 September 2005. The first respondent sought unsuccessfully to rescind the order. In March 2008, an interim order of contempt of court was granted. On 5 May 2008, the applicant again attempted to rescind the s 158 order, and to discharge the interim order made in the contempt application. On 27 June 2008 the matter was settled when the parties entered into a settlement agreement which was made an order of court on the same day. The salient part of the settlement agreement reads as follows:

1. The applicant will reinstate the respondent member to the position he initially occupied i.e. that of superintendent, at post level 8 of the applicant's existing post levels.

2. The change will be affected within 14 days of signing this agreement.

3. This offer is made in full and final settlement of any claims between the parties.

4. The reinstatement will act retrospectively from the date of the arbitration award, being 14 September 2004.

[5] At this point, some 12 years after the dispute originally arose and more than six years after the settlement agreement was made an order of this court, but for a brief period between November 2011 and January 2012 when Van der Linde was reinstated into the position of traffic superintendent, he has not occupied that post. During January 2012, Van der Linde was ordered to assume duties as an examiner of motor vehicles, a post lower in status to that of a traffic superintendent.

Applicable principles

[6] The principles that apply in the present matter are well-established. Before a party came to be found guilty of the offence of contempt, it must be established that an order of court was granted against the respondents, that the respondents were aware of the order and its terms, that they were in fact in breach of the order and that their failure to comply with the order was willful.

Analysis

[7] I do not understand the applicant to dispute that there has not been compliance with that part of the agreement which requires him to be reinstated to post level 8. The essence of the present dispute is what the applicant contends to be the first respondent's failure to appoint Van der Linde into the position of superintendent. It is not disputed on the papers that Van der Linde, but for the brief period referred to above, has not been appointed in the position of traffic superintendent. It is not sufficient, in my view that the first respondent has placed Van der Linde in a position that it contains is equal to or as close as possible to his previous position, and that he has been paid accordingly. Van der Linde’s title was obviously a material element of the dispute that was declared, and it is a material element of the settlement agreement. The terms of the court order do not afford the first respondent the scope to comply with the agreement by placing Van der Linde in some alternative position. Had this been the intention, the parties would have said so.

[8] The applicable legal principles require that once the first three elements of the applicable test are met (i.e. the existence of an order, service or notice and non-compliance) have been established, this is an inference of wilful and mala fide non-compliance and a shifting of the evidentiary burden to the respondent to establish that non-compliance was not wilful and mala fide. In my view, the first respondent has failed to rebut this inference. It is not disputed that the settlement agreement was entered into voluntarily and, as I have indicated above, specifically on the basis that Van der Linde would be reinstated into the position of superintendent. There is no ambiguity in the provision. The only reason proffered by the first respondent for its failure to comply with the order is that Van der Linde does not have the qualification to be appointed in the Klerkdorp region as superintendent. If this is so, then the first respondent should never have entered into the agreement on the terms it did. Having done so, it is bound by the agreement and in my view, its failure to comply with an order of this court can only be said to be willful. Van der Linde did at some stage, after the amalgamation, occupy the position of traffic superintendent.

[9] In short, the settlement agreement entered into and the order of court subsequently made was by agreement between the parties. The terms of the agreement are clear – Van der Linde was to be appointed to the position he originally occupied, namely traffic

superintendent. Neither the settlement agreement nor the order of court is conditional nor do their terms afford the first respondent

the right to place Van der Linde in any similar or alternative position. In particular, it is not sufficient for the first respondent to place Van der Linde in a post that it deems equal to or sufficiently equivalent to his previous position. The placement of Van der Linde as an examiner of motor vehicles is a clear breach of the settlement agreement and an act that amounts to a wilful refusal

to comply with an order of this court

I make the following order:

1. The respondents are held in contempt of this court on account of their failure to comply with the order granted on 27 June 2008.

2. The applicant is given leave, should the respondents fail to comply with the order within 14 days from the date of this order, to enroll the application for hearing on 21 November 2014, on which date the respondents are called upon to show cause why the court should not impose an appropriate sanction.

3. The first respondent is to pay the costs of this application.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA