In Betafence South Africa (Pty) Ltd v NUMSA & Others (C194/2016)  ZALCCT 33 the Labour Court held a Union’s members to be in contempt of Court for failing to abide by the terms of an Order of the Labour Court.
By Neil Coetzer, Partner and James Horn, Associate, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys
NUMSA, on behalf of the employees of Betafence, referred a mutual interest dispute to conciliation at the Metal and Engineering Industries Bargaining Council. Betafence contended that the mutual interest dispute was regulated by a collective agreement and therefore could not form the basis of a protected strike. The Bargaining Council declined to deal with the contention raised by Betafence and accordingly a certificate of outcome was issued. The employees then embarked on a strike without issuing a strike notice. Betafence immediately approached the Labour Court on an urgent basis to interdict the strike. Before the application could be heard by the Court, Betafence and NUMSA agreed to the terms of a Court order which suspended the strike with immediate effect and time-limits were agreed for both parties to file affidavits in the Labour Court application.
Despite the Court order that was agreed to, the employees did not suspend the strike and Betafence approached the Labour Court again to have NUMSA and the striking employees held in contempt.
When examining the issue of contempt of court, the Court restated the well-established requirements for contempt of court, namely that (1) there must have been a court order; (2) the order must have been properly served on the parties bound by it; and (3) there must have been wilful and mala fide non-compliance with the court order.
Turning to the facts of the case, it appeared that NUMSA had made various attempts to persuade the employees to comply with the Court Order. However, notwithstanding these attempts the striking employees did not comply with the Order. The Court expressed its disapproval of such conduct in the following terms:-
“An observation that needs to be made in this Court is that employees, especially in the face of strike interdicts, routinely disregard the orders of this court for no reason other than that they simply do not like them. This contemptuous approach towards orders of this court is in some or most instances, aggravated and/or encouraged by Unions, their officials and/or shop stewards. In some instances, as in this case, employees refuse to even heed the advice of their union representatives and leaders. In the latter instance, and where unions even confirm in papers before the court that employees have indeed refused to heed court orders, the invariable conclusion to be reached is that the non-compliance by the employees was indeed both wilful and mala fide”.
The Court also treated the excuse proffered by the employees for their contempt (namely that they were frustrated by the conduct of Betafence in not finding a resolution to these issues) with disdain and held that “no amount of frustration with the employer’s alleged conduct can mitigate this level of contempt towards court orders”
Finally, the Court placed great emphasis on the effect of non-compliance with court orders on the Rule of Law. In this regard, the Court held as follows:-
“This level of contempt has reached a point where if unchecked, the rule of law will become meaningless. In the end, anarchy and mayhem, which normally characterizes most industrial actions we have witnessed, will become the new normal. This cannot bode well for our constitutional democracy, and only a stern approach by the courts can stop this slippery slope”.
The Court therefore found the employees in contempt which warranted, in the Court’s view, a “heavy penalty” and consequently the employees were fined R1 million which was suspended for a period of 24 months provided they were not found in contempt of the final Order made by the Court.
It is important for employees to be aware that a Court Order is a lawful and binding document issued by a Court of law. It must be respected and complied with and a failure to do so could lead to a fine or even imprisonment of individual employees.