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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, MTHATHA)

Case No: CA 24/08

In the matter between:

MBASHE LOCAL MUNICIPALITY First Appellant

THE MUNICIPAL MANAGER:

NOBUNTU CHARMANE VUSANI Second Appellant

and

MAZISI ZINGISANI NYUBUSE Respondent

Coram: Miller, Chetty, JJ and Nhlangulela, AJ

Date Heard: 30 May 2008

Date Delivered: 12 June 2008

Summary: Constitutional law- whether High Court has jurisdiction to adjudicate matter involving alleged withholding of employees emolument by municipality – Order of Court – contempt – Rule 6 (12) (c) – whether municipality precluded from being heard prior to contempt being purged – exception to the general rule .

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JUDGMENT

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CHETTY, J

[1] This appeal, with leave of the court a quo (Maqubela A.J) has its origins in the alleged ‘withholding’ by the appellants of what the respondent contends was his emolument due to him on 15 February 2007. The issues raised are diverse and the legal position in respect of certain of them not entirely harmonious. The first appellant is the Mbashe local municipality, established in terms of the Local Government: Municipal Structures Act¹, the second appellant, its municipal manager. The respondent was employed by the first appellant as its protection services manager in April 2002 for a fixed period terminating on 31 April 2007, his monthly emolument being paid on the 15^th day of each month.

[2] The gravamen of the respondent’s complaint was, as adumbrated earlier, the non payment of his salary on 15 February 2007 and the anticipated non payment of his further monthly salary until the expiration of his fixed term contract. In the founding affidavit he contended that the first respondent’s action of “. . . withholding my salary constitutes improper and unfair administrative action on its part, which is in breach of my constitutional right to fair administrative action”. It would seem his claim for the enforcement of the constitutional right to fair administrative action was sourced in s 33 of the constitution and codified through the Promotion of Administrative Justice Act² (PAJA). However from the plethora of correspondence exchanged between himself and the appellants the true nature of his grievance surfaces viz. a dispute between himself as employee and the appellants as employers relating to his poor work performance.

[3] Despite service of the application papers on the first respondent, there was no opposition to the application when the matter came before Pakade J in the Mthatha High court on 16 March 2007. The learned judge made an order in conformity with the relief sought in the notice of motion. For reasons which will become apparent in due course it is necessary to set out the entire order. In brief those reasons relate to the question of urgency and the interpretation to be accorded to paragraphs 2.2 and 2.3 thereof which were ordered to operate as an interim interdict pending the return day.

“1. That the applicant be and is hereby granted leave to bring this application:

(a) by utilising Form 2

(b) In accordance with Rule 6 (12) (i) of the Rules of this Honourable Court

2. That a rule Nisi do hereby issue calling upon the Respondent to show cause, if any, to this honourable court on Thursday 5 April 2007 at 10h00 or so soon thereafter as the matter may be heard why an order in the following terms should not be granted.

2.1 that Respondent’s action of withholding and/or failing to pay Applicant’s salary on 15 February 2007 be and is hereby declared unlawful.

2.2 that Respondent be and is hereby ordered to pay Applicant his full monthly salary and other entitlements that should have been paid to him on 15 February 2007 forthwith.

2.3 That Respondent is interdicted and restrained from any further unlawful withholding of Applicant’s salary or failure to pay same to Applicant on any due date.

2.4 That Respondent be and is hereby ordered to pay the costs of this application.

3. That paragraphs 2.2 and 2.3 of the Rule Nisi shall operate as an interim interdict/mandamus pending the finalization of this application.”

Shortly before the return day the first appellant filed a notice to oppose and a further notice in terms of Rule 6 (12) (c) (the Rule 6 (12) (c) application) for reconsideration of the orders granted by Pakade J. No affidavit was annexed to the Rule 6 (12) (c) application, the first appellant contending that it would rely on the defences raised in its opposing affidavit in the main application for the order to be reconsidered. In those opposing papers the first appellant (who at that stage was the only respondent) raised a number of preliminary objections to the grant of the relief sought - it denied that the matter was sufficiently urgent to warrant a departure from the prescribed time periods; secondly, it alleged that the dispute between the parties fell within the exclusive jurisdiction of the Labour Court in terms of the Labour Relations Act³ over which the High court lacked jurisdiction and thirdly it contended that even assuming the applicability of PAJA the respondent, as an employee failed to comply with the grievance procedure which formed part of the collective agreement concluded in the South African Local Government Bargaining Council.

[4] The affidavit was deposed to by the first appellant’s municipal manager, who in addition to the aforegoing narrated the history of the dispute between the first appellant and the respondent. The latter’s version that his salary had been unlawfully withheld was disputed, the deponent contending that the respondent’s conduct in absenting himself from his work station in effect amounted to a breach of his contractual obligations entitling the first appellant to withhold the respondent’s salary for February on the basis of the adage no work, no pay.

[5] The next day i.e. 4 April 2007 (one day prior to the return day) the respondent filed an application (the contempt application) as one of urgency against the first and second appellants in which he sought orders in the following terms:-

“1. That the First Respondent be and is hereby declared to be in contempt of the Court order granted by the honourable Mr Justice Pakade on 16 March 2007 under Case No. 383/07 for its failure to comply with paragraphs 2.2 and 2.3 thereof.

2. That the Second Respondent be and is hereby ordered to ensure compliance with the Court order referred to in paragraph 1 above by ensuring that the Applicant is paid his full monthly salary and other entitlements for the months of February and March 2007 within 24 hours of the grant of this order.

3. That in the event of the Second respondent failing to comply with the order in paragraph 2 above, the Applicant be and is hereby granted leave to bring an application against the Second Respondent on the same papers, duly amplified as needs be, for the committal of the Second Respondent for contempt of Court.

4. That the Respondents are ordered to pay the costs of this application on the attorney and client scale.

5. Further and/or alternative relief.

[6] On the return day of the rule nisi i.e. 5 April 2007 three applications - the main application, the Rule 6 (12) (c) application and the contempt application confronted Petse J. Orders by consent were made – the three applications were postponed for hearing to 19 April 2007, the rule nisi was extended and directions were given in relation to the filing of further papers and heads of argument. It was further ordered that the costs of the three applications be costs in the cause. These matters were duly heard by Maqubela AJ. Judgment was handed down on 21 June 2007 and the following orders issued:-

“1. The Rule Nisi is confirmed with costs.

2. The Respondent is declared to be in contempt of the order of this Court dated 17 March 2007.

3. The 2^nd Respondent is directed to appear in person before this Court on Thursday 5 July 2007 for determination of an appropriate sanction.

4. The application in terms of Rule 6 (12) is dismissed with costs.”

[7] In the judgment the judge dealt with the history of these matters. He sketched the factual background to the three applications and as regards the main application recognised that there was a clear dispute of fact⁴. Notwithstanding, the judge held that⁵:-

“[33] Stopping payment of one’s salary to a salary earner may sometimes have very adverse consequences. It may not always be the case. The applicant has stated that he was in dire straits because of the non deposit of his salary to his bank. He was unable to inter alia buy food for his children. The Court accepted the urgency of the matter and granted an order on the basis of the Applicant’s disclosure of the adverse consequences of the non payment of the salary.”

[8] The judge then proceeded to analyse the orders made by Pakade J and a number of judgments concerning contempt of court orders viz Fakie N.O v CCII Systems (Pty) Ltd ⁶; Cats v Cats ⁷ and Hadkinson v Hadkinson ⁸; Di Bona v Di Bona and Another ⁹ and Gordon v Gordon ¹⁰. After quoting extensively therefrom the judge concluded that the second respondent was clearly in contempt of court and that he would not afford either appellant a hearing (presumably in relation to both the main and the Rule 6 (12) (c) applications until the contempt had been purged. I say presumably because the judge had already found that the appellants’ conduct in “withholding” the salary for February 2007 amounted to a breach of the respondent’s right to fair administrative action¹¹. It is no doubt because of that finding that the rule nisi was confirmed and the appellants ordered to pay the costs of that application. However, notwithstanding his admonition that he would not afford the appellants a hearing in regard to the Rule 6 (12) (c) application until they had purged themselves of their contempt of the orders made by Pakade J, the judge quite incongruously then dismissed that application with costs. It is clear from the judgment that in confirming the rule the judge disregarded the appellants’ contentions that they were lawfully entitled to stop payment of the respondent’s salary.

[9] This appeal then, with leave of the court a quo, is directed at the entire judgment and orders made. The issues which arise for decision are threefold:- (i) should the main application have succeeded; (ii) was the judge correct in effect finding both appellants to be in contempt of court and ordering the second appellant to present herself before the court for the determination and imposition of an appropriate sanction and (iii) the correctness of the order dismissing the Rule 6 (12) (c) application.

[10] Before I proceed to consider the issues raised in the appeal, it is however necessary to dispose of a matter which, although inextricably bound to the issue relating to the court a quo’s findings in relation to the contempt application, formed the crux of the respondents attorney’s argument before us. Mr Gwebindlala urged us at length to refuse to hear the appeal until such time as the appellants have purged themselves of their contempt of the orders made by Pakade J. Suffice it at this juncture to say that there is no merit whatsoever in the suggestion. The appellants are before us with leave of the court a quo. They have a right to be heard. The propriety of the contempt order is one of the issues we are called upon to consider and the right of appeal would be valueless if the appellants are not afforded a hearing. I shall in due course return to this issue.

The main application

[11] I have in the course of this judgment adverted to the principal contention advanced on behalf of the respondent that the appellants’ conduct in withholding his salary for the month of February “was in direct violation of the applicant’s constitutional right to fair administrative (sic) action and was a breach of the audi alterem (sic) partem rule and as such unlawful and worthy of being interdicted as sought in the present application”.

[12] On appeal before us Mr Smuts, who together with Mr Boswell appeared for the appellants, submitted that it was apparent from the judgment that the judge failed to address the cardinal question raised by the appellants that the conduct complained off viz “the withholding” of his salary was not a matter justiciable by the High Court. The appellants’ conduct, counsel submitted, was the exercise of contractual power in the sphere of labour relations. Consequently the respondent’s remedy lay in the mechanisms provided by the LRA. In addition it did not amount to administrative action in terms of PAJA.

[13] In support of this submission we were referred to Chirwa v Transnet Limited and 2 others¹² and in particular paras [142] and [149] of the judgment of Ngcobo J where the learned judge stated:-

“[142]The subject matter of the power involved here is the termination of a contract of employment for poor work performance. The source of the power is the employment contract between the applicant and Transnet. The nature of the power involved here is therefore contractual. The fact that Transnet is a creature of statute does not detract from the fact that in terminating the applicant’s contract of employment, it was exercising its contractual power. It does not involve the implementation of legislation which constitutes administrative action. The conduct of Transnet in terminating the employment contract does not, in my view, constitute administration. It is more concerned with labour and employment relations. The mere fact that Transnet is an organ of State which exercises public power does not transform its conduct in terminating the applicant’s employment contract into administrative action. Section 33 is not concerned with every act of administration performed by an organ of state. It follows therefore that the conduct of Transnet did not constitute administrative action under section 33.”

And further

“[149] In my judgment labour and employment relations are dealt with comprehensively in section 23 of the Constitution. Section 33 of the Constitution does not deal with labour and employment relations. There is no longer a distinction between private and public sector employees under our Constitution. The starting point under our Constitution is that all workers should be treated equally and any deviation from this principle should be justified. There is no reason in principle why public sector employees who fall within the ambit of the LRA should be treated differently from private sector employees and be given more rights than private sector employees. Therefore, I am unable to agree with the view that a public sector employee, who challenges the manner in which a disciplinary hearing that resulted in his or her dismissal, has two causes of action, one flowing from the LRA and another flowing from the Constitution and PAJA.”

before concluding in para [150] “that the decision by Transnet to terminate the applicant’s employment did not constitute administrative action under s 33 of the Constitution”. The learned judge thus held that the dispute between Mrs Chirwa and Transnet fell within the exclusive jurisdiction of the Labour court. As such the High Court had no jurisdiction to adjudicate upon the claim.

[14] Although the claim in Chirwa ¹³ and that of the respondent might appear distinguishable in as much as the respondent’s claim is for the payment of his monthly emolument whereas Chirwa concerned a dismissal the distinction is in my view more apparent than real. The non payment of the respondent’s salary was directly linked to his poor work record and akin to a dismissal. In fact the respondent by his own admission¹⁴ confirms that on 23 January he had been called upon to indicate why his continued absence from work should not be regarded as abscondment.

[15] Whatever concerns there may be about the apparent conflict between Chirwa and the judgment in Fredericks and others v MEC for Education and Training, Eastern Cape and others¹⁵ (see for instance Rufus Narumo Nakin v The MEC: Department of Education, Eastern Cape Province and Others ¹⁶ and Makambi v The MEC for Education, Eastern Cape ¹⁷ I regard the decision in Chirwa as binding upon me. I conclude therefore that the court a quo lacked the requisite jurisdiction to determine the application and it ought to have dismissed it on that ground alone. For the reasons set out in both majority judgments of Skweyiya J ¹⁸ and Ngcobo J¹⁹ I agree that the appellants’ conduct did not constitute administrative action under s 33 of the Constitution. It is accordingly unnecessary to decide whether PAJA applies.

Urgency

[16] However, even assuming in favour of the respondent that the court a quo had the requisite jurisdiction to adjudicate the main application, the rule nisi should in any event have been discharged. The application was brought as one of urgency and the grounds of urgency relied upon was the respondent’s alleged parlous financial position. In the founding affidavit he foretold of impending starvation of his family should his monthly salary not be ordered to be paid to him forthwith. The appellants’ replying affidavit demonstrated quite unequivocally that the respondent was possessed of substantial means, held directorships and controlling member’s interests in several business ventures. Although the respondent sought in his answering affidavit to downplay the extent of his business interests it is clear that he is a man of means. No case had accordingly been made that the application be heard as one of urgency and on that ground alone the main application fell to be dismissed.

[17] Secondly a serious dispute of fact existed. The judge in fact recognized this but nevertheless decided the application on the respondent’s version completely ignoring the principle enunciated in Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd²⁰. As adverted to earlier prior to the application being launched a plethora or correspondence flowed between the respondent and the appellants. The appellants made it clear to the respondent that his continued absenteeism constituted a breach of his contractual relationship with it. When he deposed to the founding affidavit, he must therefore have realised that a serious dispute of fact was inevitable. He nonetheless persisted in bringing the application. On that ground too the rule fell to be discharged²¹.

The Rule 6 (12) (c) application

[18] I have previously referred to the incongruity between the order made dismissing the Rule 6 (12) (c) application and the judge’s admonition that he would only entertain that application upon the second appellant purging herself of her contempt of Pakade J’s order. The difficulty with the approach adopted by the court a quo is threefold – in the first place the application for reconsideration was filed prior to the contempt application; secondly the alleged contempt by the second appellant could not preclude the court from hearing the Rule 6 (12) (c) application brought by the first appellant and thirdly the general rule of not affording a litigant who is in contempt a hearing prior to the contempt being purged ought not to have been enforced particularly where the court’s jurisdiction was placed in issue.

[19] The general rule that orders of court must be obeyed is a long standing one and its rationale self evident. In Di Bona ²²Rose Innes J articulated the position thus:-

“It is a strong thing for a Court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a Court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing a compliance. Applying this principle I am of the opinion that the fact that a party to a cause has disobeyed an order of Court is not itself a bar to his being heard, but if his disobedience is such that so long as it continues it impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make then the Court may, in its discretion, refuse to hear him until the impediment is removed or good cause shown why it should not be removed .”²³

The learned judge emphasized however, with reference to the judgments of Romer, L.J. and Denning, L.J. in Hadkinson ²⁴ that the rule that a person in contempt will not be heard is not an absolute one. In Hadkinson ²⁵ Romer, L.J. referred with approval to the judgments of Vaughan Williams, L.J. and Cozens-Hardy, L.J. in Gordon ²⁶ where the learned judges expressed themselves as follows:-

“. . . taking it generally it has not been disputed in the discussion before us that this rule, that a person who is in contempt cannot be heard, prima facie applies to voluntary applications on his part – when he comes and asks for something, and not to cases in which all that he is seeking is to be heard in respect of matters of defence. I do not for one moment suggest that every matter of defence entitles a person in contempt to be heard; for instance, if an order has been made in the exercise of the discretion of the court, and someone who is oppressed, or thinks himself oppressed, by that order appeals, saying that the court has exercised its discretion wrongly, that person if he is in contempt cannot be heard to say anything of the kind until he has purged his contempt”

Cozen-Hardy, L.J., in concurring said (ibid., 174):

“. . . I desire expressly to limit my judgment to a case in which the [party in contempt] is saying that the order complained of is outside the jurisdiction of the court, as distinguished from the case of an order which, although it is within the jurisdiction of the court, ought not, it is said, to have been made.”

[20] The latter judgment unequivocally holds that a person in contempt may nevertheless be heard where the defence raised is that the court has no jurisdiction to hear the matter. In casu this was the very point raised in limine by the first appellant in its replying affidavit. Although the judge a quo confirmed the rule nisi, presumably by considering the merits of the main application, he omitted to deal with the jurisdictional point or the other preliminary objections raised. In my view the jurisdictional defence raised by the appellants in the main and the Rule 6 (12) (c) application clearly fell within the exception to the general rule and the decision not to afford the appellants’ a hearing clearly wrong. As Denning L.J remarked in Hadkinson²⁷

“It is a strong thing for a court to refuse to hear a party to a cause and it is only be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.”

In my view the non compliance with the court orders did not in any way impede the course of justice. The appellants should, as I have said, been afforded a hearing.

The Contempt application

[21] The court a quo convicted the second appellant of contempt of court and directed that she appear at an appointed date for the imposition of an appropriate sanction. In concluding that the second appellant was guilty of contempt the judge found that “the respondent clearly sat idly and ignored the court order.” These remarks were not only unfortunate but factually incorrect. It is common cause that it was only after Pakade J’s order was communicated to the second appellant on 19 March 2007 that she and the first appellant became aware of the main application. Far from procrastinating she immediately consulted with her superior, the mayor and forwarded the application papers to the first appellant’s attorneys and sought advice. The latter in turn sought counsel’s views and the opinion furnished to the appellants was that the non compliance with the court order, given the respondent’s absenteeism from his employment, would not be in contempt of the court order in as much as the order specified that the appellants should not unlawfully withhold whatever salary was due to the respondent. The court a quo considered the second appellant’s affidavit but inexplicably found that “the second respondent did absolutely nothing”.

[22] The legal position is trite. It was expounded by Cameron J.A in Fakie ²⁸ as follows:-

“The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed ‘deliberately and mala fide’. 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 (though unreasonableness could evidence lack of good faith).”

[23] In my view it can hardly be contended, given the factual scenario, that the appellants were in wilful and mala fide contempt of court.

[24] In the result therefore the following orders will issue:-

1. The appeal is allowed with costs, such costs to include the costs of two counsel.

2. The order of the court a quo is set aside and replaced by the following:

“1 The rule nisi is discharged with costs;

2 The contempt application is dismissed with costs;

3 The applicant is ordered to pay the respondent’s costs of the Rule 6 (12) (c) application.”

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D. CHETTY

JUDGE OF THE HIGH COURT

Miller, J

I agree.

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S.M. MILLER

JUDGE OF THE HIGH COURT

Nhlangulela, AJ

I agree.

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Z.M. NHLANGULELA

ACTING JUDGE OF THE HIGH COURT

Obo the Appellants: Adv Smuts / Adv Boswell

Obo the Respondent: Attorney Gwebindlala

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