Thannippara v Member of the Executive Council Department of Education Eastern Cape and Another (202/15) [2017] ZAECBHC 7 (14 September 2017)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, BHISHO

Case No: 202/15

In the matter between: ABRAHAM SCARIA THANNIPPARA Applicant and THE MEMBER OF THE EXECUTIVE COUNCIL DEPARTMENT OF EDUCATION EASTERN CAPE First Respondent SUPERINTENDENT GENERAL DEPARTMENT OF EDUCATION EASTERN CAPE PROVINCE Second Respondent

JUDGMENT

CONJWA, AJ

[1] The applicant has brought these proceedings seeking to enforce a judgment that he had obtained against the respondents by consent. The parties concluded an agreement and the relevant parts of the agreement which was subsequently made an order of the Court read as follows:

“1……………..

2. The respondent calculate the difference between the employer’s contribution that the employer has made on the lower salary notch as opposed to the contribution that the employer should have made on the higher salary notch for the period 15 October 2002 to 31 January 2009 and to pay that amount into the pension fund to ensure that the Applicant receives the correct pension benefit according to the higher remuneration scale on which Applicant should have been placed:

3. That the Respondents pay to the Applicant the difference between the monthly pension payment that Applicant received from 31 January 2009 to date of this application and the amount that Applicant should have received in terms of the higher remuneration scale on which Applicant should have been placed:

4. That the respondents re-assess the Applicant’s leave pay and Gratuity on the basis of Applicant’s amended salary scale;

5. That the Respondent pay all the costs of this application jointly, the one paying the other to be absolved”.

[2] The respondents have since complied with paragraph 1 of the order and it is thus not the subject of the present enquiry.

[3] Although the notice of motion was couched such that the applicants were seeking for an interim relief it was argued on the basis of a final relief.

[4] Some time in 2004 the applicant and his employer, the Eastern Cape Department of Education, became embroiled in a dispute that resulted in an award being made by the Education Labour Relations Council that applicant be appointed to the position of Deputy Principal. The award was subsequently made an order of Court by the Labour Court in November 2007.

[5] The respondents allegedly failed to comply with that Court order and the applicant approached the court seeking their committal for the alleged contempt of court order. The application was withdrawn, presumably on 31st August 2009[1], on the basis that the respondent had complied with the court order.

[6] The applicant went on retirement in 2009 and he received pension benefits on the basis that he had retired on a salary scale of R209 496.00. This was followed by a flurry of correspondence between the parties resulting in a meeting being held between applicant’s attorney and the Department of Education employees on 17th August 2010. In that meeting the latter’s employees allegedly admitted that there was a discrepancy in applicant’s salary scale and that an adjustment would have to be effected. Applicant alleged that despite the undertaking made, the department took no steps to rectify and adjust the pension benefits.

[7] Aggrieved by this the applicant approached court seeking to compel the respondent to comply with the order. Legal representatives from both sides met and an agreement, which is the subject matter of the present enquiry, was reached of how the matter was to be resolved and that agreement was made an order of the Court by Gqamane A.J on 4th December 2012. Significantly the respondent in the answering affidavit that was filed in that matter and which formed the basis of the agreement, admitted that applicant’s salary as at January when he retired was supposed to be R240 816.00.[2]

The respondents took no steps to rectify the question of pension benefits and a Writ of Execution was issued to recover the amounts that were outstanding in terms of paragraph 1 of the Court order by Gqamane A.J. This appears to have achieved the desired effect as respondents made payment of interest which had accumulated because of the late implementation of salary adjustment into applicant’s attorney’s trust account in the sum of R39 507.21. A schedule[3] which accompanied the payment indicated that an amount of R9 456.62 had been deducted as a contribution that the applicant was supposed to have made towards his pension. An amount of R16394.94 was indicated in the schedule, as the amount that the employer was supposed to have contributed towards applicant’s pension.

[8] Applicant maintains that this amount of R16394.94, which the respondent according to the calculations was supposed to have contributed towards his pension, was never paid nor was any change effected on his monthly pension payment as was supposed to be the case because of the increase in his annual salary.

[9] The respondents contend that they cannot be compelled to comply with paragraphs 2, 3, and 4 of the court order as they have complied with the order. In amplification, they allege that contrary to the concessions that were made by the employee, the applicant was not supposed to have been remunerated at a salary scale of R240 816.00 per annum but at a scale of R 211 596.00. This, according to their argument, has resulted in an overpayment of R121 460.83. A reading of respondent’s answering affidavit seems to lend itself to an interpretation that the respondents take a view that by reason of this supposed overpayment, the respondents were not obliged to re-assess applicant’s leave pay and gratuity. It was stressed in argument by Mr Mayekiso for the respondents, that it is impossible to pay employer’s contribution to the Pension Fund as it is not possible to inject funds into the Fund after retirement. In developing this argument, he made reference to Government Employees Pension Law [4] and the Rules promulgated thereunder.

[10] Although the respondents had raised points in limine, these were not pursued in argument and wisely so in my view. Mr Mayekiso confined himself to arguing whether there was substance in the allegations that the respondents had disobeyed the Court Order.

[11] The main objectives of contempt proceedings are to vindicate the authority of court and coerce litigants into complying with court orders.[5] The rule of law, a foundational value of the Constitution, require that the dignity and authority of the courts be upheld. This is crucial, as the capacity of the courts to carry out their functions depend upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs to which they apply, and no person or organ of state may interfere, in any manner with the functioning of the Courts. It follows from this that disobedience towards court orders or decisions risks rendering our Courts impotent and judicial authority a mere mockery. The effectiveness of Court orders or decisions is substantially determined by the assurance that they will be enforced. In Fakie NO v CCII Systems (Pty) Ltd[6] the principles applicable to contempt of court proceedings were authoritatively set out as follows:

‘To sum up:

a) The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.

b) The respondents in such proceedings is not an “accused person”, but is entitled to analogous protections as are appropriate to motion proceedings.

c) In particular, the applicant must prove the requisites of contempt (the order, service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.

d) But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fides, contempt will have been established beyond reasonable doubt.”

[12] The question therefore is whether the applicant has proved the pre-requisites as set out above beyond a reasonable doubt.

[13] In the circumstances of the present matter I have no doubt in my mind that the order was granted against each of the respondent on 4th December 2012. The order was brought to their attention by means of service which was duly effected by the Sherriff on 8th May 2013.The existence of the order and its service was in any event never raised as an issue between the parties at the hearing of the matter.

[14] As set out above the respondents have argued that there’s no substance in the application as they have complied with the court order.

[15] It is my view that in seeking to answer the question whether there has been compliance with the order or not one needs to put this matter in its proper context by having regard to the issues that were alive between the parties that were ultimately settled by an agreement which was made an order of the court. In this regard the remarks by Lord Steyn in R v Secretary of State for the Home Department, ex parte Daly[7] that in law context is everything are apposite.

[16] Respondent contends that the applicant by insisting on the amount of R240 816.00 as being the amount to which his salary was supposed to be adjusted to, has misconstrued the court order as the court never granted such an order. It is indeed so that no such figure was set out in the court order but it is my view that in seeking to interpret the agreement and the subsequent order, the correct approach in accordance with the golden rule of interpretation is to have regard to the normal grammatical meaning of the relevant words, the context in which they were used, including the nature and purpose of the agreement, and the matters properly present to the minds of the parties when they concluded it.[8]

[17] It has always been applicant’s case that his salary was supposed to have been adjusted to R240 816.00 and this was conceded by respondents’ employee and this formed the basis of the agreement between the parties. It is not open to the respondents to maintain that the employee made a mistake when he made the calculations of the salary notch. It is being disingenuous and seeks to obfuscate issues when the respondents turn around and argue as they do. If there was a dispute between them and the applicants about the scope of the order it was not appropriate for the respondents to wait until the applicants came to court complaining of non-compliance in contempt proceedings.[9]

[18] The respondents in paragraph11.12 of the answering affidavit state as follows:

“ In so far as paragraph 2 of the Court order , I submit that it is impossible to pay the difference of the employer contribution to the Pension Fund, because it is impossible to inject funds to the Pension Services as Pension Fund has already calculated the pensionable salary of the Applicant as at the date of retirement”.

This is not something new as this was stated in the answering affidavit that had been filed in the application that led to the agreement and the subsequent order now under consideration. The respondents agreed to the court making the order being alive to this. They were thus under an obligation to make serious effort to comply with it. No doubt when they agreed to an order in these terms they intended to carry it out. If they experienced any difficulties, they should have returned to court and sought relaxation or variation of its order. It is further mind boggling if the respondents were experiencing these problems how they can turn around and argue that they have complied with the order of the court.

[19] Although the respondents are insistent that they paid applicant what was supposed to be his own contribution towards pension[10] it is evident from annexure AST 8 authored by the respondents that this amount was deducted from the final payment and was not paid over to the applicant as is alleged and no explanation is proffered.

[20] The respondents have failed to reassess applicant’s leave pay and gratuity on the basis that he had been overpaid and thus owes the Department of Education a sum of R115 334.42. The respondents despite their assertions have not instituted an action to recover whatever they believe is due to them. They are content with acting as Judge in their own cause.

[21] In my judgment therefore, it has been established beyond reasonable doubt that the respondents have wilfully disobeyed paras 2, 3 and 4 of the court order by Gqamani A.J dated 4th December 2012.

[22] The respondents are hereby ordered to comply with paragraphs 2, 3 and 4 of the said order within a period of 30 court days and file a report of their compliance of such order with the Registrar of this Court.

[23] In the result the following shall issue:-

[23.1] should the respondents fail to comply, the applicants are granted

leave to approach this court on the same papers duly amplified.

[23.2] respondents are to pay applicant’s costs including reserved

costs of 18th April 2017, jointly and severally, the one paying the other to be absolved.

N. CONJWA

ACTING JUDGE OF THE HIGH COURT

Counsel for the Applicant: Adv C B Woods Instructed by: Drake Flemmer & Orsmond (E.L) Inc. Unit 10B, Sutton Square KING WILLIAM’ STOWN Counsel for the Respondents: Adv M Mayekiso Instructed by : State Attorney Ground Floor, Spoornet Building EAST LONDON

Date heard:;01 June 2017

Date delivered:;14 September 2017

[1] This being the date on which the application was set down for

[2] The shortfall was paid on 22 June 2011

[3] See Annexure AST 8 of Applicant’s replying Affidavit

[4] 21 of 1996

[5] Meadow Glen Home Owners Association and others v City of Tshwane Metropolitan Municipality and ano.2015(2)SA 413(SCA)

[6] [2006] ZASCA 52; 2006 (4) SA 326(SCA) para 42

[7] [2001] 3 ALL ER (HL) at 447

[8] Gusha v Road Accident Fund [2011] ZASCA 242

[9] See no5 supra

[10] Para :11.13 respondent’s answering affidavit