I find it extremely intriguing that the meaning of a ‘trial’ is debatable among jurists, and the topic of much debate in the Constitutional Court (CC), which is perplexing, is the question: What constitutes a ‘trial’ (be it a civil or a criminal trial)? I had taken it for granted that this topic was settled. I could not have been more wrong!
Be that as it may, the focus of this article is not on what constitutes a ‘trial’ but rather on the effects of the hybrid contempt of court proceedings as developed in the Secretary of the Judicial Commission of Inquiry into the State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CC) (unreported case no CCT 52/21, 29-6-2021) (Khampepe ADCJ (Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Tlaletsi AJ and Tshiqi J concurring)) judgment of the CC within the context of labour law.
The CC has repeatedly held that court orders must be obeyed for the sake of protecting the rule of law, dignity and authority of the courts and the judiciary. This was the court’s view in Pheko and Others v Ekurhuleni Metropolitan Municipality (Socio-Economic Rights Institute of South Africa as amicus curiae) (No 2) 2015 (6) BCLR 711 (CC); Department of Transport v Tasima (Pty) Ltd 2017 (1) BCLR 1 (CC) and in the Zuma case at paras 26 to 27 and 59 to 62. In any event, s 165 of the Constitution says so in as many words. Therefore, I can safely take it that it is settled law that court orders from all courts must be obeyed.
There is no doubt that the Zuma judgment created a law that binds all lower courts from the small claims courts to the Supreme Court of Appeals. In labour law jurisprudence, contempt of court proceedings are a regular occurrence wherein an employer is ordered by court to reinstate an unfairly dismissed employee. The employer, despite knowing the order, openly, wilfully and with disdain disobeys the court order. Often, after obtaining an arbitration award ordering the reinstatement of an employee, and after converting that award into a court order in terms of s 143 of the Labour Relations Act 66 of 1995 (LRA) or using s 158(1)(c) of the LRA, the dismissed employee will serve the order through the Sheriff and tender their services to the employer and the employer simply does not reinstate that employee for no reason. The remedy open to that employee is to institute contempt of court proceedings, which are inherently civil contempt proceedings with some sort of civil law remedy in the form of coercive rather than punitive orders despite the papers clearly demonstrating wilful disobedience beyond a reasonable doubt. Contempt of court proceeding papers are also served by the Sheriff to the employer. The employer again often ignores those proceedings, thus rendering the coercive order inappropriate as the CC found in Zuma.
What the CC has done in the Zuma judgment is to enable that employee in those civil contempt of court proceedings to ask for a criminal remedy, such as committal of that recalcitrant employer to prison for 15 months, for instance. It was not possible in the past to seek direct imprisonment without some other option being available to the employer. Relying on Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), the Labour Court (LC) would refuse to imprison an employer without a trial in contempt of court proceedings for want of compliance with s 158 of the Criminal Procedure Act 51 of 1977. The LC insisted that the accused employer be brought to court to stand trial (see Premier, North West Provincial Government and Another; In re: Bogacwe and Others v Premier, North West Provincial Government and Others [2018] 10 BLLR 1029 (LC)). Committal to prison comes about with the hybrid contempt of court proceedings introduced into South African law by the Zuma judgment.
Whereas the CC invited former President Jacob Zuma to make representations on the appropriate sanction, it seems to me that in addition to asking for the employer to be held in contempt of court, an employee can simultaneously invite that employer to make submissions on the appropriate sanction in their founding papers. There is nothing that suggests that this invitation must only come from the court. It would be easy to convince the court that an invitation was extended to the employer and was ignored, therefore, the court can proceed to sanction that employer instead of repeating what has already been done. It seems to me that this will suffice to comply with s 35 of the Constitution and bring the proceedings within the ambit of a ‘trial’ contemplated in s 12(1)(b) of the Constitution.
The LC is always slow to issue costs orders against a losing party, more so if that party did not oppose such proceedings. The Zuma judgment says the opposite. An employee can now persuade the LC to issue a punitive costs order against an employer if they can show that but for the employer’s conduct of disobeying a court order they would not have been required to approach the court.
The 15 months jail term for Mr Zuma should be worrying to employers who wilfully disobey reinstatement orders issued by the LC. They can now be jailed and ordered to pay punitive costs. That is if the Zuma judgment is not rescinded.
Sthembelo Ralph Mhlanga LLM (Maritime Law) (UKZN) is a legal practitioner at Mhlanga Incorporated in Durban.
This article was first published in De Rebus in 2021 (Sept) DR 39.
