Non-compliance “Gunned” down
Non-compliance “Gunned” down
CASE:
Case: Gunn v Hoogengyk and Another (J 1031/15) [2023] ZALCJHB 130; [2023] 8 BLLR 787 (LC) (6 May 2023)
BACKGROUND (FACTS):
The applicant, Mr. Gunn, was employed by SA Timber as a sales representative and dismissed for gross negligence. Aggrieved by his dismissal, Gunn referred a dispute to the CCMA and alleged that SA Timber had unfairly dismissed him.
The Commissioner who arbitrated the dispute alleging unfair dismissal, issued an arbitration award in terms of which he found that:
- the dismissal of Gunn was substantively unfair;
- SA Timber had to reinstate Gunn on the same terms and conditions of employment that existed before dismissal;
- SA Timber was ordered to pay Gunn an amount of R33 500.00 as back-pay;
- the amount ordered had to be paid by 31 December 2011; and
- Gunn had to report for duty on 21 December 2011 at 07h00.
LABOUR COURT
SA Timber referred an application reviewing and setting aside the Commissioner’s award. Gunn opposed the review application. In 2014 the review application was dismissed and the application for leave to appeal was dismissed in 2015.
The arbitration award was made an order of court in terms of section 158 (1) (c) of the Labour Relations Act 66 of 1995 (“the LRA”). Thereafter in August 2016, there was partial compliance with the court order when an amount of R36 540.95, which included interest, was paid to Gunn.
More than three years later, in October 2019, Gunn reported to work, and SA Timber directed him to report elsewhere. Gunn later referred an application for contempt and cited the directors of SA Timber.
It was held that in a contempt application the complainant is in fact the court and not a party who brings the application. For the integrity of its orders, a court jealously guards its orders and non-compliance is not tolerated. One of the requirements of contempt is that there must be a deliberate and intentional violation of the court’s dignity, repute or authority.
The court found that the award, which was made an order of court, was clear: SA Timber had to reinstate Gunn on the same terms and conditions that operated before his dismissal. Without doubt, SA Timber failed to comply with the order to reinstate Gunn. SA Timber as a legal entity was incapable of complying with the order, and it was up to the directors of the company to ensure compliance. This they failed to do so seven years after the order was made.
The court referred to the leading case on contempt applications – that of Secretary of the Judicial Commission of Enquiry into allegations of State Capture v Zuma and others 2021 (5) SA 327 (CC). In that case, the Constitutional Court made it clear that: “It is trite that an applicant who alleges contempt must establish that (a) an order was granted against the alleged contemnor; (b) the alleged contemnor was served with the order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order. Once these elements are established, wilfulness and mala fides are presumed and the respondent bears an evidentiary burden to establish a reasonable doubt. Should the respondent fail to discharge this burden, contempt will have been established.”
In the SA Timber case, the order was made against the entity and the directors of SA Timber had knowledge of the order yet failed to comply. Therefore, the court must presume that they were wilful in their non-compliance and acted in bad faith, and they were guilty of contempt.
The court disagreed with the argument that the onus was on the employee to tender his services within a reasonable time. The court held that SA Timber, having exhausted its appeal rights, was required as a law-abiding entity to call upon Gunn to report for duty as ordered.
A court cannot countenance disobedience of its orders on the basis that a person in whose favour the order was made decides to do nothing. Once the court is informed that its orders are ignored, it is entitled to frown upon that anytime, for as long as its order is still valid in law.
A Court order prescribes after 30 years. Only then could SA Timber successfully argue that it is not obliged to comply with an order. Until then, SA Timber remained legally obliged to comply. It is one thing for SA Timber to argue that Gunn has waived and or abandoned his right to be reinstated; it is another thing for SA Timber to comply with the Court order.
It is a waste of judicial resources to expect judges to make an order and then make further orders for the order to be complied with.
The court found the directors of SA Timber in contempt, and they were fined R100 000 each, suspended on condition that they comply with the order within 14 days. The Respondents where further ordered to pay costs of the application.
CONCLUSION
Compliance with court orders is not an option, and it goes to the integrity of the court as a constitutional institution. Until a court order is complied with, a party liable to ensure compliance remains in contempt of court.
