CASE LAW UPDATE

Facts: In August 2023, the university obtained an order declaring Carlson, Goringhaicona Home of Coloured and/or any entity that Carlson is associated with, as vexatious litigants in terms of section 2(1)(b) of the Vexations Proceedings Act 3 of 1956. Carlson and the Goringhaicona Home of Coloured were barred from instituting any legal proceedings in any court against the university without leave of the High Court or any judge thereof. The order was granted in view of Carlson’s multiple frivolous and persistent applications against the university seeking unsubstantiated relief and multi-million Rand claims. Notwithstanding the granting of this order, Carlson caused to be issued out of the Equality Court an application against various respondents, including the university. He thereafter approached the Constitutional Court for direct access in another matter against the university, also without first seeking leave.

Application: The university approaches the court to hold Carlson, who also describes himself as His Majesty King Khoekhoe De Goringhaicona the First, and also as a representative of Goringhaicona Home of Coloured (second respondent) in contempt of the order which declared both respondents as vexatious litigants. Carlson represents, or is the alter ego, of the second respondent.

Discussion: Carlson is indeed in contempt of court as he instituted the Equality Court application after being declared a vexatious litigant, and the evidence points to the conclusion that Carlson did not obtain leave from a judge nor from the High Court. The university put forward the view that it is open to the court to impose a criminal sanction, even though such an order has not specifically been requested in the notice of motion. The university contends that any person has the right to inform the court that its processes are being abused and the court, considering the circumstances, will issue a rule nisi if it deems fit. It is submitted that there is no bar to a litigant bringing to the court’s attention, criminal contempt which is connected with a breach of an order obtained in civil proceedings.

Findings: The remedy for contempt of court exists not only to force compliance for the civil litigant’s benefit, but also to vindicate the court’s judicial authority. As time has passed, the conduct of Carlson and his Goringhaicona Home of Coloured, has become progressively more contemptuous, not only of the court order, but also in respect of the court's authority. The contempt of and disobedience of the order is continuous and there seems little or no prospect that the respondents’ conduct will abate. The imposition of a suspended committal order would hopefully bring Carlson to his senses and also serve to vindicate the court’s authority in view of his continued breaches of the order, his verbal and abusive attacks on the High Court judiciary, the utter contempt displayed at the authority of the court, and the refusal to attend the proceedings.

* See paras [56]-[62] as to whether the university is an informer which is entitled to approach the court and seek a punitive sanction.

Order: It is declared that Granville Colin Carlson and/or King Khoekhoe De Goringhaicona, and Home of Coloured, are in contempt of the order granted in August 2023. Carlson is directed to withdraw his complaint and application against the university in the Equality Court within 10 court days, failing which, the application would be deemed to be withdrawn. Carlson is fined R4,000 or 4 months’ imprisonment, suspended for five years on condition that he does not breach the order of August 2023 again, and he complies with the terms of this order. Carlson is to pay the costs of the application on an attorney and client scale.

PANGARKER AJ

Facts: The appellant is employed by the municipality as the municipal manager. On 1 March 2024 the appellant was suspended, with immediate effect, pending an investigation into alleged misconduct. On 31 May 2024 the appellant was served with a notice to attend a disciplinary hearing, accompanied by charges. On 3 June 2024 the appellant reported for work, contending that her suspension had lapsed. An exchange of correspondence between the parties’ respective attorneys followed. On 13 June 2024, the appellant filed an urgent application in the Labour Court contending that a continuation of her suspension beyond a period of three months was in breach of her employment contract. Specifically, the appellant averred that her contract of employment incorporated the regulations, and that the municipality was in breach of regulation 6(6)(a).

Appeal: In its judgment, the Labour Court held that the disciplinary proceedings against the applicant commenced upon the service of the notice of disciplinary proceedings, which was before the expiry of the three-month period. Her suspension had not lapsed. The appellant appeals against the judgment delivered by the Labour Court in dismissing the application for a declaratory order that the appellant’s suspension had lapsed on 31 May 2024 in terms of regulation 6(6). The difference in meaning has profound consequences for the appellant. If the former meaning is correct, the appellant’s suspension, which commenced on 1 March 2024 remains extant; if the latter meaning is correct, her suspension lapsed on 31 May 2024 and she is entitled to return to work.

Discussion: The appellant submits that the Labour Court erred by failing to draw a distinction between the commencement of disciplinary proceedings and the commencement of a disciplinary hearing. There is merit in this submission. While disciplinary proceedings in a broad sense may commence with the service of a charge sheet, the regulations contain an internal definition of the point at which a disciplinary hearing commences. Regulation 5 contemplates the appointment of an independent external presiding officer and an officer to lead evidence. The officer leading evidence must formulate and serve charges of misconduct within 30 days of appointment. Regulation 6 provides that if a senior employee is suspended, the disciplinary hearing must commence within three months of the date of suspension. What this construction contemplates is a disciplinary process that is commenced by the service of charges on the employee, and which culminates in the conclusion of a disciplinary hearing. A disciplinary hearing is an integral part of the disciplinary process or proceedings; it does not constitute the proceedings in themselves.

Findings: Read sequentially, the regulations contemplate that the disciplinary hearing is convened by the presiding officer and commenced by the reading of the charges to the senior manager accused of misconduct. This construction has previously been upheld and applied by the Labour Court. The regulation of precautionary suspension is directed not only at the interests and protection of the affected employee; the general public has an interest in the funds expended on public sector employees who remain on suspension for inordinate periods. The disciplinary hearing did not commence within three months of the date of her suspension, 1 March 2024. The suspension thus lapsed on 31 May 2024. The Labour Court thus erred in applying the ratio in Goba, and the appeal stands to be upheld. The appropriate orders ought properly to be made against the first respondent, the appellant’s employer. The second respondent, so it transpires, is the first respondent’s executive mayor. It is sufficient that the declaratory order sought, and the consequential order of reinstatement be made against the first respondent.

Order: The appeal is upheld. The order of the Labour Court is substituted. It is declared that the applicant’s suspension lapsed automatically on 31 May 2024 in terms of Regulation 6(6)(a) of the Local Government: Disciplinary Regulations for Senior Managers. The first respondent is ordered to reinstate the applicant as Municipal Manager of Moqhaka Local Municipality, with immediate effect.

VAN NIEKERK JA (SAVAGE ADJP and GOVINDJEE AJA concurring)

Facts: Ms Skulpad referred a dispute to the bargaining council. She sought relief against her employer, the Department, contending that it had misinterpreted a provision in a collective agreement, when processing her application for temporary incapacity leave. She engaged an attorney and counsel to prosecute her referral. The parties were ready to proceed. The arbitrator, however, mero motu raised the issue of what he said was his jurisdiction. In his view he was required, in the light of prevailing jurisprudence concerning disputes about the application and interpretation of collective agreements (section 24 disputes), to determine whether Ms Skulpad had locus standi to refer the dispute “in her personal capacity”. The insurmountable hurdle facing Ms Skulpad was, the arbitrator said, that she was not a party to the resolution. For that reason, she had no locus standi.

Application: A review application to set aside the ruling barring Ms Skulpad from pursuing her dispute. Section 24 provides that a party to a dispute about the application and interpretation of a collective agreement may pursue such dispute in terms of the dispute resolution mechanism contained in the collective agreement itself, alternatively, if certain conditions are met, the party may refer it to the CCMA for determination. In enacting section 24 of the Labour Relations Act 66 of 1995, did the legislature intend to divest an employee of her common law right to institute litigation? That is the question which the court must tackle.

Discussion: The case law relied on by the arbitrator was Arends v SALGBC [2013] ZALCPE 6 and SAPS v Du Preez [2019] ZALCPE 3. The approach taken in these two judgments, that employees have no locus standi to refer section 24 disputes and that it is only unions which may do so, is fundamentally unsound. In Arends the court commences its analysis by baldly stating that section 24 “limits the dispute to be between the parties”. The court then, abruptly and in seemingly precipitous fashion, pronounces that a party to a dispute must mean a party to a collective agreement. It provides no justification for this conclusion. After a detailed analysis of section 24 by this court, there is none.

Findings: The Arends interpretation is irreconcilable with the language of section 24; unjustifiably divests an employee of her right to institute litigation in her own cause; results in outcomes which are inequitable, illogical and absurd; is inconsistent with the objects of the LRA; is unconstitutional; and is contrary to the prevailing authorities. Properly interpreted, section 24 does not strip employees of their common law right to refer disputes about the application and interpretation of collective agreements. Every person is entitled to be heard in her own cause. The Arends interpretation, as followed by the arbitrator, turns this fundamental principle on its head. The representative, who has no legal interest in the matter, becomes the party whilst the grievant is without a remedy.

Order: The ruling is reviewed and set aside. Ms Skulpad may request the bargaining council to re-enrol her dispute, if so advised. The parties are responsible for their own costs.

KROON AJ

Facts: The individual respondents are all members of the Independent Democratic Union of South Africa (IDUSA). The employees are employed by the applicant in terms of individual contracts of employment, regulating all terms and conditions of employment, which include remuneration and bonuses. The current dispute arose from the 2024 wage and substantive issues negotiations for the 2024/2025 years. In this respect, IDUSA tabled demands for a wage increase and bonuses for the employees. Pursuant to such negotiations, the parties concluded a wage agreement (2024 wage agreement). A wage increment was agreed to. However, and where it came to the issue of bonuses, the parties agreed that the discussion pertaining to the payment of bonuses would stand over until the draft financial statements were available, because considerations of affordability dictated that should the applicant not be in a financial position to pay out bonuses, then no bonuses will be paid. The applicant contended that the "unspoken agreement or meeting of the minds" contemplated by clause 2.2 was that should the applicant not be in a position to afford paying bonuses, that no bonuses will be paid, and the dispute pertaining to the payment of bonuses was in fact settled on that basis.

Application: IDUSA disputed that there was any such unspoken agreement. IDUSA issued the applicant with a notice of intention to embark upon strike action, commencing in November 2024, as contemplated by section 64(1) of the Labour Relations Act 66 of 1995. The notice recorded that the issue in dispute remained the payment of the bonuses (13th cheques) in December 2024 to the employees. The applicant seeks to interdict the strike action by the respondent. The application was brought in terms of section 68(1) of the LRA. The matter was brought and then argued on the basis of interim relief being sought by the applicant.

Discussion: The applicant has based its case on two contentions. First, it contends that the issue in dispute concerning the bonuses was a benefit as contemplated by the unfair labour practice jurisdiction under the LRA, and needed to be arbitrated, and thus strike action was prohibited by virtue of section 65(1)(c) of the LRA. Secondly, the applicant contends that properly construed, the 2024 wage agreement regulated the issue of the bonuses, and as such, strike action was not competent by virtue of section 65(3)(a) of the LRA. The appropriate point of departure is a consideration of the right to strike, and its implications. A matter of mutual interest can encompass both what is commonly known as a rights dispute and an interest dispute, as both can legitimately form the subject matter of a demand by a trade union. Therefore, and at a conceptual level, even a dispute of right would qualify to be susceptible to protected strike action pursuant to a demand by a trade union. The issue in dispute is a demand by IDUSA for the payment of bonuses (13th cheques) to the employees in December 2024. In terms of the employees’ contracts of employment, they have no right or entitlement to such bonuses. In fact, the employment contracts make it clear that the applicant has "no legal obligation" to pay such bonuses.

Findings: IDUSA tabled the issue of bonuses in the current round of negotiations in 2024 as a demand, and the parties negotiated on it. However, and as the 2024 wage agreement shows, the parties could not achieve agreement on the issue of the bonuses. Without an agreement, the issue in dispute, as articulated by this specific demand, remained unresolved, and as a matter of course, industrial action would follow to finally resolve it. That is exactly what IDUSA did. When it and the employees were told in no uncertain terms that there would be no bonuses and this was not negotiable, it referred such dispute to the CCMA, and following unsuccessful conciliation, gave notice to strike as contemplated by section 64(1) on this very issue. The applicant has attempted to opportunistically misconstrue the provisions of the 2024 wage agreement. The applicant has simply not established the existence of a tacit term in the 2024 wage agreement as it has contended for. In the absence of a written agreement on bonuses, and by law, it would not be permissible for the applicant to rely on a tacit term. The unfortunate reality for the applicant remains that it has failed to illustrate a prima facie right to the relief sought. It has failed to establish that the contemplated strike action by IDUSA and its members, initiated in terms of section 64(1) of the LRA, can be considered to be unprotected by virtue of the application of any of the provisions of section 65 of the LRA.

Order: The application is dismissed.

SNYMAN AJ