The Minister of Public Service v Swaziland National Association of teachers (03/2017) [2018] SZHC 91 (03 May 2018);

Search Summary: 

Contempt of Court – Application for commital of Appellant for want of compliance with a Court order and breach of a collective Agreement to implement salary job, grading review; Application of Section 35, 56 and 57 of the Industrial Relations Act defining procedure and effect of Registration substations Collective Agreements; as pertains to Registration pf Collective Agreements in terms of the Act discussed; orders to register collective agreements as contractual obligations distinguished from Registration  and Settlement Agreements involving resolution of a lis between litigamts; Legal requirements and principles pertaining to enforcement of order using contempt proceedings discussed; only orders ad factum praesfandum capable for contempt.

 

 

 

 

 

 

 

 

 

IN THE INDUSTRIAL COURT OF APPEAL OF SWAZILAND

 

HELD AT MBABANE                                                                                 CASE NO. 03/17

 

In the matter between:

 

THE MINISTER OF PUBLIC SERVICE N.0.                                            1st Appellant

 

MR EVART M. MADLOPHA                                                                     2nd Appellant

 

THE ATTORNEY GENERAL                                                                      3rd Appellant

 

 

and

 

 

SWAZILAND NATIONAL ASSOCIATION OF TEACHERS                      Respondent

 

Neutral Citation:      The Minister of Public Service v Swaziland National Association of teachers (03/2017) [2018] SZHC 91 (03/ 2018)

 

Coram: J. Maphanga AJA,

    J. Magagula AJA,

    J. Maseko AJA

 

 

Date Heard: 05/03/2018

 

Date Delivered: 03/05/2018

 

Summary:                 Contempt of Court – Application for commital of Appellant for want of compliance with a Court order and breach of a collective Agreement to implement salary job, grading review; Application of Section 35, 56 and 57 of the Industrial Relations Act defining procedure and effect of Registration substations Collective Agreements; as pertains to Registration pf Collective Agreements in terms of the Act discussed; orders to register collective agreements as contractual obligations distinguished from Registration  and Settlement Agreements involving resolution of a lis between litigamts; Legal requirements and principles pertaining to enforcement of order using contempt proceedings discussed; only orders ad factum praesfandum capable for contempt.

 

                     

                                 

 

JUDGMENT

 

[1]                 This is an appeal against a judgment of the Industrial Court handed down on the 24th February 2017. In that  matter the applicants (Respondent presently)  had brought an urgent application in which it sought a mandamus and an order for commital as a means of enforcing or executing an earlier order of court of the Industrial Court making a collective agreement entered into between the Government of Swaziland (represented by an adhoc intra government panel, on the other. The collective agreement had been an outcome of a collective bargaining process involving the re-evaluation grading and of existing posts within the professional corps of the participating unions which largely entailed the progression and allocation of new grades and payment notches within the prevailing remuneration structure and scales.

 

[2]                 By way of background it is common cause that the negotiations had followed the engagement by Government in terms of which it retained a firm of consultants referred to as LCC Capital ( LCC or the consultants) to conduct a comprehensive remuneration and job grading re-evaluation and grading review during 2014. It is common cause that this process culminated in the production by LCC of a Draft Final Report containing the recommended restructured grading and remuneration system in October, 2016.

 

[3]                 The source of contention and the litigation came in the implementation of the scheme in that on the 12th July 2016 the 1st and 2nd Appellant caused to be issued an instrument called the Establishment Circular No. 1 of 2016. It is convenient to refer to this instrument simply as ‘the circular’ henceforth. In effect the circular sought to implement and declare the new grading and remuneration structure ostensibly putting the reconfigured agreed job grading and remuneration structure into effect. It is not in dispute that the new structure published in terms of the circular lists, inter alia specific bands or categories of certain members of the Respondents, the heads of department of schools within the teaching service at a designated grade and notch to which they were progressed.

 

[4]                 It is the affected Heads of Departments who are aggrieved by the circular. Their cause of grievance which has given rise to the proceedings a quo and ultimately this appeal, is that the circular had an adverse impact and thus prejudicial to their interest in that it allegedly altered or changed the appropriate grade for their designated positions as indicated in the consultants’ report which was given the designation code (EDN 030) originally allocated grade C6 but progressed to grade E1 as per the LCC report had been unilaterally changed by the 1st and 2nd Appellants to D3. It is common cause that there is a material financial difference between the grades E1 and D3 with the effect that the affected cadre of the Respondents members were financially worse off in being placed in the grade stated in the circular relative to the grade designated by the Consultants in their final draft report.

 

[5]                 In essence the applicants allege this to be a breach of the collective agreement in so far as, or so it is contended, that the collective agreement was implementing agreed salary structure adopting the scales and grades allocated in the LCC Report.  That contention was disputed by the Appellants a quo a position which they maintain presently.

 

[6]                 In the application for mandamus and commital for contempt Respondent had sought the following substantive orders (I have somewhat abridged the prayers):

 

“1.       …….(……;

 

                      2.        ………………….;

 

3.         Directing the 1st and 2nd Respondents to forthwith, in terms of the Court Order dated the 28th of July, 2016 annexed ‘SNAT 1’ to comply with the order and interdicting them from continuing to act in breach of the referred Court Order by unilaterally changing the pay grade of the Applicants members, Heads of Department from E1 to D3;

         

4.        Directing and ordering that the 1st and 2nd Respondents’ to show cause why on a date to be determined by this Court they should not be held in contempt of Court;

 

5.         Declaring that the establishment Circular Number 1 of 2016, dated the 12th July, 2016, issued by the 1st and 2nd Respondents a copy of which is annexed hereto marked ‘SNAT 2’ to be illegal and unlawful thus of no force and effect in so far as the same relates to the payment of the Applicants members who are Heads of Department, School holding grade EDN 030 is concerned.

 

6.        Directing the 1st and 2nd Respondents to pay the costs of this application on the scale as between attorney and own client….”

 

[7]                In the outcome the Industrial Court granted the application by the Respondent a quo and ordered that the Appellants show cause on the 24th March 2016 why they should not be held in Contempt of Court. Effectively the 1st and 2nd Appellants appeal against the judgment of the Court a quo and so doing have raised three grounds of appeal; namely:

 

“1.       That the court a quo erred in law and in fact that the 2nd Appellant unilaterally changed the Collective Agreement. In the Collective Agreement there is nowhere where it placed Heads of Department of Schools at E1.

 

2.         That the court a quo erred in fact and in law that the Respondents be placed at E1 as it will clearly violate the Collective Agreement and the expenditure will exceed the E850 million provided for specifically No.1 of the Collective Agreement.

 

3.         That the court a quo erred in fact and in law in placing Heads of Department of Schools at E1 thus making them earn more than their supervisors the Deputy Head Teachers”.

 

[8]                In this appeal there are two issues emerge as the foremost preliminary questions that presented before the trial court given the purpose of application and the relief sought therein.  Firstly the court had to discern what was the legal status and effect of making the collective agreement an order of court-whether the order was of the type and form that was enforceable; if so, the next question was whether the orders sought to be enforced were capable of enforcement by way of commital for contempt proceedings. This would have required the court to examine the applicable guiding principles in these considerations against the facts of this case.

 

THE APPLICABLE LEGAL PRINCIPLES

 

Status of an Agreement once made an order of court

 

[9]                The practice of having agreements made into orders of court is now well established and quite common in our jurisdiction.  It is a device and procedure that has been adopted parties for purposes of ease of execution or enforcement of obligations by way of contempt proceedings and thus obviate the need to institute a full fledged action to enforce contractual obligations.

 

[10]              Having said that the effect and status of such orders vary and may differ depending on the nature of the agreement itself and the legal effect thereof. The order itself could adopt the content and form of specific draft orders in the terms of agreement itself if couched in that fashion or it may do so by reference only.

 

[11]              Certain orders are issued in the form and with the intention of being capable of enforcement and that include orders ad factum praestandum and those ad pecuniam solvendam. In those instances whether such orders merely follow the form of specific those terms in the agreement that lend themselves to being part of a court order. I must however hasten to raise a caveat, in that the foregoing statement may well ring true in those instances where the order itself or the agreement seeks to bring about a specific outcome or to settle a dispute or a question as in the case of a compromise or settlement agreement. That is so where there is a lis between the parties and in such cases the agreement has an effect of settling that dispute.

 

[12]              This must be distinguished from the sort of agreement that even when made into a court order simply achieves the status of a registry of the rights and obligations of the parties and certainly are not ad factum praestandum or ad pecuniam solvendam.

 

[13]              Courts would have cause in certain instances to approach applications or requests to make agreements orders of court with caution. So it is that we could do well to heed the words of a South African court in the case Mansell v Mansell 1953 (3) SA 716 (N) where the pitfalls of this practice were all too well illuminated. I can do no better than quote the remarks of the court here:

 

“For many years this Court has set its face against the making of agreements orders of Court merely on consent. We have frequently pointed out that the Court is not a registry of obligations. Where persons enter into an agreement, the obligee’s remedy is to sue on it, obtain judgment and execute. If the agreement is made an order of Court, the obligee’s remedy is to execute merely. The only merit in making such an agreement an order of Court is to cut out the necessity for instituting action and to enable the obligee to proceed direct to execution. When, therefore, the Court is asked to make an agreement an order of Court it must . . . look at the agreement and ask itself the question: ‘Is this the sort of agreement upon which the obligee (normally the plaintiff) can proceed direct to execution?’ If it is, it may well be proper for the Court to make it an order. If it is not, the Court would be stultifying itself in doing so. It is surely an elementary principle that every Court should refrain from making orders which cannot be enforced. If the plaintiff asks the Court for an order which cannot be enforced, that is a very good reason for refusing to grant his prayer. This principle appears . . . to be so obvious that it is unnecessary to cite authority for it or to give examples of its operation.”

[14]              As it happens in that case the court was being asked to make a maintenance agreement as part of a divorce settlement to an order of court and declined to do so.

 

[15]              It is important that in civil litigation the court will all too often be approached to render a compromise in the dispute as an order of court. In those circumstances clearly such an order is a settlement agreement and the intention is to enable the party in whose favour such agreement enures to execute on it and its terms as in the example referred to earlier are usually such that they are executable or capable of enforcement.  A settlement agreement strictu sensu is one where after negotiations a compromise in a lis between the parties is reached. It is distinguishable from a situation where although a product of antecedent negotiations a mere agreement recording rights and obligations of parties is made.

 

[16]              The legal effect and status of a settlement agreement and the approaches that courts in that jurisdiction have adopted to the practice of making such agreements orders of court are discussed lucidly in a recent South African constitutional court case of Eke v Parsons [2015] ZACC 30. I am certain that the values and principles discussed therein hold equally true and persuasive in our jurisdiction.

 

[17]              Considering the collective agreement that was the subject of the proceedings a quo it is quite clear that it was not a settlement agreement in the ordinary sense in legal parlance of one that is a compromise in a lis but one intended to register a collective agreement in the context of collective bargaining.

 

[18]              But surely there may be instances justifying the mere registration of an agreement other than a settlement agreement. In my view the instance of the collective agreement which was the subject of the application a quo and the relative order of court, is one such scenario. It is one that is countenanced by an Act of Parliament in the interests of promoting collective bargaining and harmonious industrial relations. This was also submitted by the Appellant’s counsel in their submissions.

 

Registration of Collective Agreements before the Courts

 

[19]              Sections 55 and 56 of the Industrial Relations Act of 2000 (as amended) provides for the submission and registration of a collective agreement before the Industrial Court.

Section 57 sets out the import and effect of registration of a collective agreement as follows (for context I set out the provisions in fullness:

 

Status of registered collective agreements.

 

                 57.  “(1)   The terms and conditions of a collective agreement registered under section 56 (referred to in this Part as a “registered agreement”) shall be binding on the parties.

 

                          (2)   The terms and conditions of a registered agreement shall, where applicable, be deemed to be terms and conditions of the individual contract of employment in the case of an agreement reached —

 

  1. in a Joint Negotiation Council, for all employees covered by the agreement in the industry or area in which the Joint Negotiation Council was established;

 

  1. between a trade union or unions, and one or more individual employers,

                      for all  employees covered by the agreement who are employed by such    employer or employers; and

 

  1. between a staff association or associations and one or more individual employers, for all employees covered by the agreement who are employed by such employer or employers.

 

       (3)             Registration of a collective agreement shall be deemed to

                     constitute usual Notice to affected parties of all the provisions of

                     the collective agreement”.

 

      [20]             It is quite clear that what the parties did was utilise the facility of the provision to record the memorandum of the collective agreement with the intention of achieving the legal effect referred to in the section. It is also quite clear that given the form of the agreement that what the parties intended was the registration of the terms of the agreement as set out in the  collective  agreement.

 

       [21]              In the relative Notice of Motion moving the court to request the registration the substantive prayer stipulated by the parties on approach to the court is explicit. They exhorted the court:

 

“That the Collective Agreement entered into on the 6th July 2016 by the Swaziland Government (Government Negotiations Team) and all the Public Sector Unions including the 1st and 2nd applicant be registered and made an order of this honourable court”

 

                     (my emphasis and underscore)

 

specific so   that there can be no doubt as to the true intention of the parties. It was an application sui generis.

 

[23]     In my view it is clear that the nature and form of the agreement which was rendered  an order of the Court a quo on the 12th May between the Government of Swaziland and the Respondent presently was one specifically framed in the course of collective bargaining as envisaged by the above quoted statutory provisions. It was not a settlement agreement in the sense of a settlement of antecedent dispute or lis. It was

imperative form. It simply sought to record the contents of the collective agreement to which specific reference is made in the express and specific terms articulated in that agreement.

 

[24]     There are instances where the rendering of an agreement into an order of court is not intended to give rise to an executable order but merely to register the rights and obligation of the parties to the agreement.

 

[25]      That leads me to an examination of the second and more central question to the matter   before the court a quo and this appeal; whether the order (and by extension the collective agreement terms) was capable of enforcement through the relief invoked by the applicant, i.e., commital of the 1st and 2nd Appellants for contempt of court.

 

[26]     The application presenting before the court was one primarily for the enforcement of a court order predicated on an alleged breach by the 1ST and 2nd Appellants of the order concerned and the collective agreement incorporated by the order of court.

 

[27]     The law on what orders may be enforced by way of commital for contempt proceedings is well settled and clear. They are well articulated by the authors Herbstein and Van Winsen and have been oft cited and applied by our courts in innumerable court decisions. The authors give an exposition of the law as to in what cases proceedings for committal for contempt are appropriate as follows:

 

“ Orders of court are, generally speaking, divided into orders ad pecuniam solvendam (i.e. orders to pay a sum of money) and orders ad factum praestandum (i e orders to do, or abstain from doing, a particular act, or to to deliver a thing). It is not every order of court which can be enforced by committal for contempt. The order must be one ad factum praestandum before the court will enforce it in that manner”[1]

 

                     ANALYSIS OF THE FACTS

 

[28]            From a reading of the judgment and in the light of the record, the facts, evidence and the parties submissions presented before it, it appears in my view that the court a quo failed to appreciate and properly conceive the crucial issues for adjudication before it. This is so because in my view it missed a critical step from the onset of considering and properly interpreting the order it was being called upon to enforce. That elemental step would call for the consideration of the exact wording of the order itself. Nowhere in the judgment does the court indicate that it even considered the very order and its terms. It is therefore evident how it found itself straying on a number of fundamental issues.

 

[29]            Implicitly in determining whether the 1st and 2nd Applicant had violated the order of court relied on by the respondent, the court was being called upon to primarily consider and interpret the order in order to discern the intention scope and effect of the order sought to be enforced. That it should have done by before all else, examining the wording of the order itself. As stated earlier there is no indication in the judgment that it did so.

 

[30]            The applicable principles in construing court orders are so well known and were succinctly laid down in Firestone South Africa (Pty) Ltd v Gentiruco A.G. 1977 (4) SA 298 (A) at 304 :

 

The basic principles applicable to construing documents also apply to the construction of a court’s judgment or order:  the court’s intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual, well-known rules.  See Garlick v. Smartt and Another, 1928 A.D. 82 at p.87; West Rand Estates Ltd, v.  New Zealand Insurance Co. Ltd., 1926 A.D. 173 at p. 188.

 

[31]              The court in the Firestone case elaborates further on the practical application of the above principle as follows:

           

Thus, as in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.  If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it”.

 

[32]              Now clearly this order is not one emanating from a judgment of the court itself but one that was derived by consent from an  agreement of the parties (albeit a collective agreement) there were no reasons to read or consider in relation to the order of the Industrial Court. The exercise therefore was more simpler and one requiring only a reading of the text of the order itself to ascertain what it entailed in the language.

 

[33]              On the basis of the principle in Firestone the courts have distilled it to the following test that has been followed in this and other jurisdiction which in effect echo the Supreme Court remarks above. I can do no more than quote:

 

“The starting point is to determine the manifest purpose of the   order. In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.[2]

 

[34]              In Engelbrecht and Another v Senwes Ltd [2006] ZASCA 138; 2007 (3) SA 29 (SCA) at paras 6-7 there the court in applying the test in Firestone also touches on the approach to what evidence may be admissible in the interpretation of judgments derived from settlement agreements in the following words:

“The Court order in this case records an agreement of settlement and the basic principles of the interpretation of contracts need therefore be applied to ascertain the meaning of the agreement. . . .

The intention of the parties is ascertained from the language used read in its contextual setting and in the light of admissible evidence. There are three classes of admissible evidence. Evidence of background facts is always admissible. These facts, matters probably present in the mind of the parties when they contracted, are part of the context and explain the ‘genesis of the transaction’ or its ‘factual matrix’. Its aim is to put the Court ‘in the armchair of the author(s)’ of the document. Evidence of ‘surrounding circumstances’ is admissible only if a contextual interpretation fails to clear up an ambiguity or uncertainty. Evidence of what passed between the parties during the negotiations that preceded the conclusion of the agreement is admissible only in the case where evidence of the surrounding circumstances does not provide ‘sufficient certainty”.

[35]              It is important to note that these principles and rules of interpretation of court orders address instances where the order is derived from a settlement agreement which instances are distinguishable from the registration of a collective agreement. The status and effect of collective agreements is dealt with in terms of a specific statutory provision which also conferrers on the court the powers to register such agreements as have been referred to earlier. It follows therefore that the registration of collective agreements as orders of court constitutes a sui generis proceedings.

 

[36]              The cardinal rule for interpretation of court orders is generally the same as that of interpretation of contracts and I have already alluded to the Firestone rule as has been adopted and applied by our courts including the recent Swazi Mtn v Swaziland Posts and Telecommunications case. Practically speaking the application of that rule to the court order registering the collective agreement impels us to have regard to the wording of the agreement as well evidence as the background facts to determine the intention of the parties to the agreement. In the context of this case the clear and express intention of the parties was to record and register the collective agreement in its form with the annexure thereto as an order of court.

 

[37]              In the absence of any examination or comment by the court on the content of the order itself, there is nothing in the record to suggest that there was ever an issue concerning any ambiguity or uncertainty arising as pertains any aspect of the order emerging in its terms or wording in any sense whatsoever.

 

[38]              In the circumstances of this application the respondent’s case before the court a quo was a simple one. It was founded on the allegation that the 1st and 2nd Appellants violated the court order by issuing the circular complained. This is set out in paragraph 25 and 26 of the Applicant’s founding affidavit[3] as follows:

 

“VIOLATION OF THE COURT ORDER

 

25.      After the Order of the 28th day of July, 2016, which was issued by the Honourable Justice Nkonyane, has been violated by the 1st and 2nd Respondents without lawful justification or reason by the issue of the circular dated the 1st April, 2016.

 

26.      The said circular is in direct violation of the Court Order as it has caused a change to the rates set and agreed on between the parties and made an order of Court. The Heads of Department to date are not being paid in terms of the schedule which was made an Order of Court, but are being paid according to the circular by the Respondents. The Court is being referred to Page 34 of the said Circular, under EDN 030 Department Heads section and the Court will not the change to D3.”

 

[39]              Having been formulated and cast in this manner, I think the matter landed a simple question before the court a quo, namely what the violated terms of the court order referred to were. It should have directed the court to focus on the alleged change or deviation that the circular sought to introduce contrary and in violation of the precise terms of the court order and whether indeed the issuing of the circular breached those terms.

 

The Court Order

 

[40]              An examination of the court order is necessary at this juncture. It appears at Page 36 of the Record and shorn of the headings and preamble reads as follows:

 

“1 The collective agreement entered into on the 6th of July 2016 by the Government of Swaziland (The Government Negotiations Team) and all the Public Sector Unions including the 1st and 2nd applicant is hereby registered and made an order of this court”.

 

[41]              It is noteworthy that in the proceedings for the registration of the collective agreement the Respondent was the 1st Applicant referred to in the order.

 

[42]              For the content of the collective agreement itself we are drawn to page 94 of the record. For purposes of this appeal I highlight the key points of the memorandum and the prelude in the introduction as follows:

 

“INTRODUCTION

The Joint Negotiation Forum (JNF) commenced negotiations on the Salary Review on the 10th May 2016. The negotiations continues in a series of meetings until the 6th July 2016 where the parties agreed as follows:

 

  1. The Salary Review exercise be implemented on a Notch-to-Notch basis at 93% of the recommended Salaries across all grades, which shall not exceed E850 million of basic salary and be implemented in 2016/17 financial year, (See Annexure 1).

 

  1. That he effective date will be the 1st April 2016.

 

  1. That existing allowances will be paid at the prevailing rates.

 

  1. That an appeals procedure will be elaborated in the Establishment Circular implementing the Salary Grade Structure.

 

  1. That all other issues of mutual interest to parties, including allowances, will be engaged jointly and bilaterally through the Joint Negotiations Forum by November 2016.

 

  1. That the next Salary Review will be implemented in the year 2021 in line with the prevailing 5 years interval agreed by the parties………..”

 

(my emphasis and underscore)

 

[43]              To the agreement text is annexed a four-page document with figures and other data presented in a tabular format comprising a schedule of some thirteen columns in which the data referred to is presented.  It is common cause and this is confirmed in the parties affidavits, that this is the document annexed to the text of the agreement is the one referred to in clause 1 of the Agreement as ‘Annexure 1. That schedule purports to tabulate the grades, notches and matching calculations using the formula set out in the agreement to achieve the objective of 93% of the recommended salaries across all grades as listed therein on a notch-to-notch basis. The parties intended it to illustrate to record those parameters. Until the alleged breach there was no allegation of any ambiguity or lack of certainty as to the purpose and meaning of the schedule.

 

[44]              By its nature the schedule does not elaborate cadre per cadre individual placement of all professional staff within a specific category or salary grade. It is common cause that for that one would have to look elsewhere for the detailed analysis and specifics.

 

[45]              It is common cause that the memorandum of agreement was subscribed to by the parties on the 6th July 2016. Indeed that is the date appearing in the main page of the agreement. The annexure also appears to bear the various parties’ signatories initials.

 

[46]              It is important to observe here that apart from the reference to the annexure in the main text of the agreement there is no other explanatory note or narrative as to the significance, description or purpose of the annexed schedule to the agreement.

 

[47]              The respondents case a quo was simply that there had been a deviation or breach of the terms of the settlement agreement. On the age old adage he who alleges must prove. The difficulty faced by the applicant was that on the face of the collective agreement upon an ordinary reading thereof it could not demonstrate any violation of any specific order ad factum praestandum enjoining the 1st and 2nd Respondent to pay the Heads of Departments in terms of the scales and grades claimed in the application.

 

[48]              A plain reading of the terms of the collective agreement as a whole including the attached schedule nothing therein discloses  an agreement or an order that the members of the Respondent described as Heads of Department of schools are to be remunerated at the scale asserted by the Respondent.

 

[49]              A matter that generated considerable debate during the argument at the hearing of this appeal was the Respondent’s counsel’s submission that an order to remunerate the Heads of Department as a cadre designated the code HOD 030 could be inferred from the 18th row of the data tabulated on the 3rd Page of the schedule appearing at page 108 of the Record of Proceedings, to illustrate the grades claimed to be appropriate to the affected members of the respondent.

 

[50]              The difficulty with this position is that nothing in the schedule and the data we were referred to supports the assertion that the members of the Respondent as a cadre specifically fall within the alleged designation or grade pointed out in the schedule. In advancing their proposition the Respondents relied on a reference in the report prepared by LCC and a narrative in that report.

 

[51]              The further difficulty with the respondent’s case is that the LCC report was not incorporated either by mere reference or otherwise into the collective agreement as part and parcel thereof; this being something that should be apparent and can be readily resolved ex facie the collective agreement. Consequently the LCC report and its contents do not form part of the collective agreement and by extension, the Court Order.

 

[52]              There was a further debate as to whether, in the absence of the full report in the record or proceedings, the LCC report was placed before the court a quo as evidence of the ‘agreed’ and remuneration structure in reference to the said heads of department. Whether this was the case does not cure the anomaly and further raises questions of admissibility of the report as evidence in the said proceedings. Certainly apart from a cursory reference to the report in the judgment the Court a quo does not offer any insight as to whether the placement in evidence of that report and the relative weight it accorded that evidence in the context of the application.

 

[53]              Reverting to the cause of complaint, on an ordinary reading of the wording of the collective agreement and in particular the principal clause (Clause 1) thereof the articulate premis of that clause is the implementation of ‘at 93% of the recommended salaries across all grades on a notch-to-notch basis, which shall not exceed the stipulated figure of E850million’ in regard to which the reader is referred to the annexure, presumably for illustrative purposes.

 

[54]              It clearly does not command the 1st and 2nd Appellants to pay the at the alleged scale. It is not expressed as a order ad factum praestandum. The court order and the underlying collective agreement on the applicable legal principles, clearly not of the kind that lends itself to enforcement by commital for contempt. It is patently clear therefore that the court a quo fell into error in misconstruing the court order as one susceptible of enforcement in the sense of it being ad factum praestandum.

 

[55]              Undoubtedly certain differences have emerged between the parties affecting the application of the collective agreement to do with the conversion, progression or grading of the Applicant’s members; that is at the heart of the dispute giving rise to this application. There is no questioning that there exists a dispute between the parties as regards the restructuring exercise in so far its implementation affects the aggrieved teachers.

 

[56]              Where the difficulty has arisen is in regard to how the court a quo conceived the precise nature of the issues before it. It would appear to me that the trial court was led into error in so far as it strayed from the purpose and object of the application; namely the enforcement by commital of the 1st and 2nd Appellant to gaol for the alleged non-compliance  of a court order as alleged by the applicants the mandamus and declaratory orders sought.

 

[57]              The first port of enquiry the court a quo should have dealt with at inception of the application before it was whether such an application  was competent i.e., whether the prayers  or relief sought were sustainable regard being had to the form, nature and effect of the order sought to be enforced.  Although on its face the respondents grievance appears to be a genuinely held and legitimate one it was not one that lent itself for adjudicati on by the court in the course of enforcement proceedings and thus executable as an ordinary order of court.

 

[58]              In the context of the whole matter it is not a matter turned on an interpretation as opposed to application of the collective agreement.  Had the court properly considered the issues it would have come to appreciate also that the applicants were unsuited in the proceedings a quo in that firstly Section 56 of the Industrial Relations Act sanctions and makes provision for the incorporation of a procedure for the settlement of differences arising out of the interpretation and application of a collective agreement. Further the Collective agreement itself prescribes the process for to be followed for the settlement of any such differences or disputes arising as adverted in clauses 4 and 5 of the collective agreement.[4]

 

[59]              It appears therefore that the court a quo fundamentally misdirected itself on a material and germane point of law when it held that the applicants were entitled to proceed to court by way of contempt proceedings as opposed to what it refers to as an  ‘internal process provided by the circular’. By characterising the problem in this manner and juxtaposing the remedial process of the collective agreement against the contempt proceedings, the court misconceived the nature of the proceedings that the application presented and as such fell into error.

 

[60]              In so far as the court relies on the authority of the Swazi Mtn Ltd and 3 Others v Swaziland Posts and Telecommunications case in support of its conclusions, it is necessary to comment briefly and seek to place proper perspective on the circumstances of that case to distinguish it from the present proceedings. It becomes exceedingly clear when one considers the Swazi MTN case that the case involved the enforcement and interpretation of an order incorporating the terms of an arbitral award bearing orders expressed ad factum praestandum. In that case at paragraph 19 of the judgment the court articulated the order as follows (and I quote it in extensu):

 

  1.  

 

[61]              That paragraph in the arbitrators award was subsequently expressed as an order of court upon application of the parties on the 12th October 2012. In my view the differences upon contrasting the order in the SNAT case could not be more stark. For that reason the Swazi MTN is a very useful illustrative specimen of the type of order ad factum praestandum (to do or refrain from carrying out a certain act) which is susceptible to enforcement and execution by way of commital for contempt proceedings.

 

[62]              Firstly there is no question that unlike the order in this case, the wording of the order in the MTN case was clearly one in terms of which an  injunction compelling the respondents to do and refrain from doing specific acts i.e., to terminate the mobile component or the telephony system it operated and to cease and desist from advertising or promoting it in the market. In contradistinction to the order before the court a quo where the order was clearly not one expressed in imperative terms.

 

[63]              Secondly in the MTN case the Supreme Court also held that in its conduct the respondent had failed to abide by certain specified orders as contained in the underlying arbitral award as confirmed by order of court directed to it and in that regard pointed to specific violations of identified terms of the Court order invoked against it.

 

[64]              Thirdly whereas in the MTN case there may have been a genuine question surrounding the scope, application and interpretation of the wording and import of the order, the precise issue a quo does not turn on an interpretation but rather on an application of the collective agreement or mode of implementation arising from any perceived ambiguity in the wording of the order or collective agreement; whose ordinary wording is in my view clear and plain.

 

[65]              A fourth distinction in the reasoning of the MTN judgment contrasted with that of the court a quo is in the manner the latter equates the rejection by the Supreme court of the decision by the High Court to refer the interpretation of the order of its own judgment to arbitration in the MTN case with the Industrial Courts inclination and dismissal of the Appellant’s contention that any disputes arising out of the collective agreement were intended to be referred to appeal under the process prescribed in the Establishment Circular as per a provision in the collective agreement.

 

[66]              In the SNAT matter clearly the referral to an appeal as well as bilateral and multilateral fora and mechanism is sanctioned by the Industrial Relations Act and expressly prescribed by the very agreement itself that the Court a quo was moved to enforce. I am unable to discern the basis upon which the court a quo rejected the respondent’s contention that the ‘applicants were entitled to approach the court in the manner they did’ on the authority of the Swazi MTN judgment to which the learned judge adverts.

 

[67]              Fifthly it is clear that whilst the orders considered in the Swazi MTN judgment were drawn from and founded upon an arbitral award couched in a manner and form as would lend it to enforcement, the orders relied on by the Applicant were to register and incorporate a collective agreement. In this regard we are in agreement with the submissions made by Mr M. Dlamini for the Respondent when he contended that the effect of rendering the collective agreement in question into an order of court primarily served as a registry of the parties obligations ex contractury as set out in the precise wording of the collective agreement and thus admitted of no interpretation. To suggest otherwise would stray beyond the clear intention of the parties evident from the clear content of the terms of the agreement itself as read with the provision of the Act regarding the status and effect of collective agreements upon registration. That is the framework for the analysis and consideration of the import of such agreements.

 

[68]              The only supportable departure from the statutory principles in the Act would be where the terms of the agreement having been made an order of court clearly obliged the respondents to positively carry out a particular act or obligation.

 

[69]              In conclusion it is notable that in spite of the various references the court makes to the court order sought to be enforced, it is remarkable that the honourable court does not even set out or examine the exact terms of that order it determined were violated let alone investigate and examine the real nature of the violations.  It seems to us it was prepared to assume and admit as evidence of the contents of an alleged agreement as to the restructured grading and remuneration scheme by way of extrinsic documents contrary to the parole or integration rule in a manner that would in effect supplement the collective agreement placed before the court. That was an impermissible misdirection on procedural point of view.

 

[70]              In summary the conclusions made by the court cannot be fully comprehended outside and without regard to the precise wording and terms of the order or even precise wording of the collective agreement relied. By contrast the Supreme Court in the Swazi MTN case not only specifically quotes but also discusses the precise terms breached in the cited contempt.

 

[71]              Where there are differences or disputes it is clear what the circular provides for. It is our considered view that the Collective agreement and by extension the Circular, in keeping with the statutory principles turning on the legal effect and status of collective agreements, provides for an extra-curial dispute resolution mechanism. The parties could do well to put that process in motion to iron out any grievances objections and or complaints before resorting to the courts.

 

Costs

 

[72]              I now turn to the question of costs which in light of he punitive scale of costs awarded  against the Respondent’s warrant special mention and comment here.

 

[73]              It is trite that on the question of costs the Industrial Court enjoys a more lateral discretion whether to award costs and will do so reservedly in well-considered circumstances where it deems a costs award appropriate[5]. Even more stringently the Industrial Court is to consider and award costs on a punitive scale. In the latter instance costs are to be awarded in extraordinary circumstances on the high level scale as at a rate between an attorney and own client and only where the conduct of a litigant is so egregious and so reprehensible as to warrant the censure and disapproval of the Court.

 

[74]              In this case the court a quo found it necessary to award costs against the 1st and 2nd Respondent. I cannot find anything in the judgment on the basis of which a punitive award of costs let alone a costs award could be justified against the respondent even if the reasoning of the court in granting the application could be sustained.  I make these remarks by the by as in any event no submissions on the matter of costs was made nor grounds submitted by the appellants in that regard.

 

[75]              In conclusion the appeal succeeds on the first ground of appeal; namely the court a quo erred in its conclusion that the 2nd Appellant acted in breach of or violated the Court order of the 28th of July, 2016 and or the collective agreement in as much as neither that Court order or collective agreement enjoined the 2nd Appellant to pay the Heads of Department of Schools at E1.

 

[76]              Having upheld the appellants foremost ground of appeal we find it unnecessary to venture into the second and third grounds.

 

In the event the Appeal succeeds with costs.

 

 

 

_____________________

MAPHANGA  AJA

 

 

I concur,

 

 

______________________

 

MAGAGULA  AJA

 

 

 

I concur,

 

 

 

_______________________

MASEKO AJA

 

[1] Herbstein and van Winsen, The Civil Practice of the Superior Court of South Africa, 3rd Edition, JUTA, at page 652.

[2] Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012] ZASCA 49; 2013 (2) SA 204 (SCA) (Finishing Touch 163) at para 13. See also Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A). This was the approach adopted by the Supreme Court of Swaziland in the recent Swazi MTN Ltd v SPTC and Another discussed elsewhere in this judgment.

 

[3] Page 18 of the Record

[4] John Grogan in the juristic work Workplace Law, 8th Edition., JUTA at page 375, strikes a distinction between the concepts and says that a dispute over an interpretation of a collective agreement exists when the parties disagree over the meaning of a particular provision whereas a dispute over the application of a collective agreement occurs when the parties disagree over whether the agreement applies to a particular set of facts or circumstances, although he also emphasizes that at times the dividing line may be blurred.

[5] See Section 14 of the Industrial Relations Act as amended where the court is conferred with a wide discretion that includes considerations of equity and fairness as well as vexatious or dilatory conduct on the part of a litigant in exercising such discretion to award costs. Indeed as a matter of practice the Industrial court will often make no award as to costs directing that each party bear own costs.