IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
CASE NO: J887/20

In the matter between:

NETSHISAULU ROBERT & 75 OTHERS	Applicant

and

DEPARTMENT OF HEALTH: LIMPOPO 	First Respondent

MEC OF HEALTH: DR P.C. RAMATHUBA 	Second Respondent

HEAD OF DEPARTMENT: DR F.T. MHLONGO 	Third Respondent

CHIEF OF STAFF: MS N. MATSHIVHA 	Fourth Respondent

CHIEF FINANCIAL OFFICER: MR J. MUDAU 	Fifth Respondent

DIRECTOR EMERGENCY MEDICAL 
SERVICES LIMPOPO: DR M. SIBANDA	Sixth Respondent

DEPUTY DIRECTOR GENERAL 
CORPORATE SERVICES: MR. M.Z. MAWASHA	Seventh Respondent

DEPUTY DIRECTOR GENERAL 
HEALTH CARE SERVICES DR M DOMBO 	Eight Respondent

ACTING DEPUTY DIRECTOR GENERAL 
TERTIARY HEAL SERVICES AND ACADEMIC 
DEVELOPMENT DR N. NDWAMATO 	Ninth Respondent

Heard:	17 February 2023

Delivered: This judgment was handed down electronically by circulation to the Applicants' and Respondents' Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 15h00 on 21 July 2023.

JUDGMENT

LALLIE, J

[1]	On 27 May 2022 this court issued the following order which had been sought by the applicants ex parte:

'1.	A rule nisi is hereby issued calling upon the first to eight respondents to appear before this Court on 5 August 2022 at 10:00 to show cause why they should not be found guilty of contempt of Court for failing to comply with the order of tis Court dated 28 April 2021;

2.	The first to eight respondents may explain their conduct by way of an affidavit on or before the date of the hearing, although this shall not excuse them from being present in court;

3.	In the absence of the respondents providing an explanation to the satisfaction of the Court or failing to appear despite being properly served, the second to eight respondents may be found guilty of contempt of Court and may be fined in an amount that the Court deems as appropriate or the respondents may be incarcerated for a period that the Court may deems as appropriate;

4.	The ex parte application together with this Court order shall be effected personally upon the second to eight respondents.'

[2]	In obtaining the above rule nisi the applicants alleged that this court granted an order in their favour with costs on 22 October 2020-.and a further order on 28 April 2021. The first respondent opposed the application on the grounds that the applicants failed to make out a case to have the contempt of court relief granted. The first respondent also raised two points in limine, namely, misjoinder and non-service of the contempt of court application.

Misjoinder

[3]	The respondents submitted that there was no need to join the second and fourth to ninth respondents in these proceedings as they have no direct substantial interest in this litigation. The reason given by the applicant for citing the second to ninth respondent is that they are executives of a Provincial Health Department whose employees are compelled to execute any lawful request or instruction given by the first to seventh respondents. They further submitted that the execution of court orders is effected through administrative action or instruction performed by the respondents. The allegations the applicants sought to rely on for citing the second and fourth to ninth respondents have no legal basis. I accept the respondents' version which is based on National Union of Metal Workers of SA v lntervalve (Pty) Ltd and Others where it was held that a person may be joined as a party where that person inter alia 'has a direct and substantial interest in the court's order'. The applicants failed to show the second and fourth to ninth respondents' substantial interest in these proceedings and any order that any be issued. The point in limine on mis-joinder must therefore succeed.

Non service of the contempt application on the respondent.

[4]	The respondents cited no authority in support of their contention that the applicants' conduct of obtaining the rule nisi ex parte was irregular. In Uncedo Taxi Service Association v Maninjwa it was held that bringing contempt proceedings summarily by notice of motion was neither unfair nor unconstitutional. In the absence of prejudice resulting from the applicants' conduct, the point in limine cannot succeed and is therefore dismissed.

Contempt

[5]	The respondents' main grounds for seeking the dismissal of this application is that the applicants have not made the necessary averments to have the contempt of court order granted. The material facts relevant to this application are that in an arbitration award issued by the Public Servants Co-ordinating Bargaining Council (the PSCBC) on 24 March 2019 the first respondent was ordered to stop using the averaging method of calculating the applicants' overtime pay with immediate effect. The first respondent was ordered to use the applicants' contracts of employment in calculating their overtime pay. The award was certified as envisaged in section 143 of the Labour Relations Act (the LRA) on 11 July 2019. In the founding affidavit the applicants submitted that the first respondent complied with the award immediately after the certification.

[6]	The applicants based their case of contempt of court on the alleged non­ compliance with two court orders granted on 22 October 2020 and 28 April 2021. The test for contempt of court is settled. In Fakie No v CCII Systems (Pty) Ltd one of the authorities the respondents relied on, the court re-affirmed that for an application for contempt of court to succeed, the applicant must establish the existence of a court order, service of that court order on the respondents and wiful and mala fide non-compliance with the court order.

[7]	The court orders the applicants sought to rely on do not form part of their founding papers. The respondents submitted that the court orders were not served on them. They therefore contented that they cannot be in wilful non­ compliance with court orders that were never served on them. The applicants did not file a replying affidavit. The respondents' averments are not far-fetched and remained unrefuted. In terms of the principle in Plascon Evans Ltd v Van Riebeeck Paints (Pty) Ltd I must accept the respondents' version. Other than stating the requirements for contempt of court in their founding affidavit the applicants failed to make the necessary averments to establish the requirements. They therefore did not establish valid ground to be granted the relief they are seeking. Their application can, in the circumstances, not succeed.

[8]	The respondents sought a costs order against the applicants. All the grounds the respondents relied on for seeking a costs order are based on the manner in which the applicants' attorney presented their case. He failed to attach crutial documents including the court orders the applicants' case is based on. He also omitted essential averments and cited, incorrectly a lot of officials who have no material and direct interest in these proceedings and their outcome. Section 162 (1) of the LRA enjoins the Labour Court to consider fairness in deciding whether a costs order should be granted. Section 162 (3) of the LRA enables the Labour Court to grant a costs order against any person who represented a party in proceedings before it. Section 162 of the LRA therefore protects a party against a costs order that may be granted as a result of the conduct of that party's representative. Granting the costs order the respondents sought against the applicants would, in the circumstances, be unfair.

[9]	In the premise the following order is made:

1.	The application is dismissed.

2.	There is no order as to costs.

Z. Lallie
Judge of the Labour Court of South Africa
Appearances:

For the Applicant: 	Advocate M.B Mulaudzi
Instructed by 	Mathada Tshedza Attorneys

For the Respondents: 	Advocate T. Machaba SC 
	with Advocate N. Mhlanga
Instructed by	State Attorney