South African Municipal Workers Union obo Khalamashe and Others v City of Ekurhuleni Metropolitan Municipality and Another (J412/2021) [2023] ZALCJHB 120 (3 May 2023)

IN THE LABOUR COURT OF SOUTHN AFRICA, JOHANNESBURG

Not Reportable

case no:J412/2021

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION OBO PAUL KHALAMASHE AND OTHERS Applicant And CITY OF EKURHULENI METROPOLITAN MUNICIPALITY First Respondent IMOGEN MASHAZI Second Respondent

Heard: 25 November 2022

Delivered: 03 May 2023

Summary: Contempt of Court application. A rule nisi was granted on 4 June 2021 the return date was 5 November 2021. On 5 November 2021 the matter was removed from the roll and the rule nisi was not extended to a specific date. The rule nisi has lapsed – contempt of court cannot be granted at this stage.

JUDGMENT

SWARTZ AJ

Introduction

[1] This is a contempt of court application. As detailed below, on 5 November 2021 the applicants’ contempt of court application was inter alia removed from the roll.

[2] The respondents contend inter alia that as the contempt application was not extended to a specific date, the rule nisi issued on 4 June 2021 has lapsed and further as there was no personal service on the second respondent the respondents seek the application to be dismissed with costs. The respondents also contend that as the second applicant was never cited in the review application, the second respondent cannot be a party to the contempt application.

[3] The applicants contend that the interpretation of 5 November 2021 order did not discharge the rule nisi and the order has not lapsed. The applicants further contend that there has been service on the second respondent and that that they are entitled to cite the second respondent in the contempt application despite the second respondent not being cited in the review application.

Background

[4] On 23 April 2018 an arbitration award was issued by the South African Local Government Bargaining Council which ordered amongst others, that the first respondent to retrospectively with effect from 1 April 2017, place the applicants on T13-T14 Grade.

[5] The respondents failed to comply with the arbitration award and on 21 August 2018 the arbitration award was certified by the Commission for Conciliation, Mediation and Arbitration in terms of section 143 of the Labour Relations Act[1] (the LRA).

[6] On 22 August 2018 the certified award was served on the first respondent and was not complied with.

[7] On 13 September 2018 the first respondent launched a review application under case number JR 1910/18 to set the arbitration award aside. On 14 October 2020 the review application was dismissed.

[8] On 29 October 2020 the first respondent applied to the Labour Appeal Court for leave to appeal the dismissing of the review application. On 12 January 2021 leave to appeal was refused and on 7 April 2021 the certified award was served on the second respondent.

[9] The respondents failed to comply with the certified award and on 23 April 2021 the applicants filed a contempt of court application.

[10] On 4 June 2021 Acting Judge Tulk issued an order stating:

“1. Rule Nisi is granted.

2. First and Second Respondent to show cause on 05 November 2021 why failed to comply with arbitration award.”

[11] On 18 October 2021 the respondents filed their answering affidavit.

[12] On 5 November 2021, being the return date of the rule nisi, Judge Prinsloo ordered:

“1. The matter is removed from the roll in light of the Respondents’ intention to apply to the Constitutional Court for leave to appeal the Labour Court order under case number JA73/21, which application to be made on or before 30 November 2021;

2. The wasted costs for today are reserved for determination at the hearing of the contempt of court application;

3. Subject to the outcome of the Respondents’ application for leave to appeal the Labour Appeal Court Order to the Constitutional Court (and in the event that the Applicant intends to persist and proceed with its contempt of court application), then and in that event the matter will be re-enrolled in an opposed court roll.”

Evaluation

[13] I will first deal with the second point in limine as this point deposes of the entire matter. This point is essentially whether the contempt application that was removed from the roll on 5 November 2021 and not extended to a specific date has lapsed.

[14] The Court in VLG Accounting CC and another v Koloni Consulting Enterprise cc and others[2] stated the following in regard to rule nisi :

“[18] A rule nisi is an order calling upon respondents to show cause, if any, on a fixed date why the rule should not be made final. It may, or may not, have interim effect”.

[19] A rule will almost always be granted in an ex parte application as in this matter.

[20] Such interim order is temporary and provisional…

[22] The postponement of a rule nisi does not, so it has been held, of itself end the rule but automatically has the effect of extending the rule according to Crundall Brothers (Pvt) Ltd v Lazarus NO and Another.

[23] However, in my view as a rule nisi is an interim order, and in this matter given ex parte, it is conditional upon confirmation by the Court. It seems to me that a Court has no authority to mero motu extend the life of a lapsed order whether or not a rule.”

[15] As I understand it, the matter was removed from the roll on 5 November 2021 and the return date was not postponed to a specific

date.

[16] It was in order to address the issue of a lapsed rule nisi (in the absence of appearance by an applicant) that rule 27(4) of the Uniform Rules of Court was inserted into the rules in 1987, and probably as a result of Fischer v Fischer.[3]

[17] The Rule reads as follows:

“After a rule nisi has been discharged by default of appearance by the applicant, the court or a judge may revive the rule and direct that the rule so revived need not be served again.”

[18] The trigger is said to be in “default of appearance by the applicant”. The first question is to consider whether this includes a situation where the parties appear but by agreement the matter is removed by the Court, but the rule nisi is not extended. The rules are for the Court and not vice versa and in context the purpose of rule 27(4) was to lessen the burden on an applicant whose rule was discharged due to non-appearance.[4]

[19] The rules are intended, inter alia, to expedite the decision of the Court.[5] They are interpreted and applied in a spirit that will facilitate the work of the Courts and enable litigants to resolve their differences in a speedy and inexpensive manner.[6] The Courts do, of course, have inherent jurisdiction to grant relief should insistence on exact compliance with the rules cause injustice – though exercised sparingly.[7]

[20] On the return day of a rule nisi accordingly if a matter is postponed, or as in this case, removed from the roll with no extension of the rule and no date for the matter to be heard in the future, the rule nisi must automatically lapse discharging respondents from the duty of compliance.[8]

[21] A rule nisi is but an order of Court to which a fixed period of validity has been assigned. Once that period of validity has expired the rule

lapses.[9]

[22] This means that on 5 November 2021 being the return date, when the matter was removed from the roll and there was no order of Court dealing with the life of the rule nisi, the rule nisi lapsed and consequently the umbrella of protection afforded to the applicant by the rule fell away, leading to the discharge of the duty of compliance on the respondent.

[23] In the result it seems to me that the removal from the roll without extension of the rule nisi, in this matter, is such as to be essentially the type of issue which the rule 27(4) of the High Court Rules envisages as being subject to revival on application in appropriate circumstances.

[24] The applicants have come to Court on a contempt application and not a revival application.

Conclusion

[25] For the reasons stated above, the rule nisi has lapsed and therefore this Court cannot find the respondents in contempt of Court. While the applicants have merit in their application, in absence of an extension of the rule nisi the applicants cannot obtain the relief they seek at this point and their remedy lies elsewhere.

[26] Insofar as the other points in limine are concerned, there is no need to address these points as the rule nisi has lapsed and thus this disposes of the contempt application.

Costs

[27] With respect of costs and in terms of section 162(1) and (2) of the LRA, I have a wide discretion where it comes to the issue of costs. The applicants are individuals who have been frustrated by the respondents’ conduct in that the rule nisi was removed specifically for the respondents to approach the Constitutional Court, which they never did. Although the applicants should have realised that the rule nisi had lapsed, this is a case where the Court must strike a balance. In the present circumstances, the interests of justice will best be served by making no order as to costs.

[28] In the circumstances, the following order is made:

Order

1. The Application is removed from the roll.

2. There is no order as to costs.

S. Swartz

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: E Masombuka Instructed by: Madlela Gwebu Mashamba Attorneys Inc. For the Respondents: E Sithole Instructed by: Madhlopa & Thenga Inc.

[1] No. 66 of 1995

[2] [2021] JOL 51789 (ECLD, East London).

[3] Fischer v Fischer 1965 (4) SA 644 (W)

[4] Manton v Croucamp NO and Others 2001 (4) SA 374 (W) 380I-381J

[5] SOS Kinderdorf International v Effie Lentin Architects 1993 (2) SA 481 (NM) 491D-R; Centre for Child Law v Hoërskool Fochville and Another 2016 (2) SA 121 (SCA) 131G; Uramin (Incorporated in British Columbia) t/a Areva Resources Southern Africa v Perie 2017 (1) SA 236 (GJ)

[5] SOS Kinderdorf International v Effie Lentin Architects 1993 (2) SA 481 (NM) 491D-R; Centre

for Child Law v Hoërskool Fochville and Another 2016 (2) SA 121 (SCA) 131G; Uramin

(Incorporated in British Columbia) t/a Areva Resources Southern Africa v Perie 2017 (1) SA 236

(GJ)

[6] Herbstein & Van Winsen, The Civil Practice of the High Courts, Fifth Edition, Volume 1 page 30

[7] Herbstein (supra) 30/31

[8] National Director of Public Prosecutions v Walsh and Others 2009 (1) SACR 603 T [24] and [25]

[9] Fischer v Fischer 1965 (4) SA 644 (W)