IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT
MBABANE
CASE NO.
117/05
In the matter
between:
Swaziland Nurses
Association…………..Applicant
And
Board of
Trustees of the Swaziland …….1st
Respondent
Nazarene Health
Institutions ……………2nd
Respondent
Cleopas Dlamini
Leonard Dlamini ……..3rd
Respondent
Coram:
NDERINDUMA :
PRESIDENT
JOSIAH YENDE :
MEMBER
NICHOLAS MANANA
: MEMBER
FOR APPLICANT :
P. R. DUNSEITH
FOR RESPONDENT :
S. DLAMINI
Judgement -
02/06/05
These are civil
contempt proceedings arising from the failure of the 1st,
2na and 3rd Respondents to comply with an order
issued by this court on the 16th December 2004. The
details of the circumstances which have given rise to this situation
are set out hereunder:
THE ISSUES
On the 1st
April 2005 the Applicant launched motion proceedings against the 1st,
2nd and 3rd Respondents in which it sought,
inter alia, the following relief:
(a) Committing the 2nd
and 3rd Respondents to prison for contempt of court for
such period as this Honourable Court may determine;
(b) Directing the
Respondents to pay a fine to the Applicant as a penalty for contempt
of court in such amount as this Honourable court may determine.
(c) Costs on the
attorney-client scale;
(d) Further and/or
alternative relief.
The application
is grounded on the Affidavit of Goodness Dlamini the Chairperson of
the Swaziland Nazarene Health Institutions (SNHI) which is alleged to
be a branch of the Swaziland Nurses Association, the Applicant.
The 1st
Respondent is the Board of Trustees of the Swaziland Nazarene Health
Institutions, the proprietor and governing body of the Raleigh Fitkin
Memorial Hospital, Manzini. The members of the Applicant, the subject
of the application, work as nurses and health workers at the said
hospital.
The 2nd
Respondent is one Mr. Cleopas Dlamini, sued in his capacity as the
chairman of the 1st Respondent. The 3rd
Respondent on the other hand is one Mr. Leonard Dlamini sued in his
capacity as Acting Chief Personnel Officer of the 1st
Respondent at the RFM Hospital, Manzini.
The Respondents
filed an Answering Affidavit on the 29th April 2005
deposed to by one Mr. Cleopas Dlamini, the 2nd Respondent
herein.
Therein he
raised points in limine couched in the following terms:
5.1 The 1st
Respondent has never recognized the Swaziland Nurses Association in
terms of Section 42 of the Industrial Relations Act No. 1 of 2000 as
an employee representative.
5.2 The court order dated
the February 2005 is in favour of the RFM Nurses Unit Committee and
support staff and not the Applicant herein.
5.3 The 1st
Respondent is only aware of an informal body known as the RFM Nurses
Unit Committee and support staff with which it was engaged in
negotiations on behalf of its employees.
5.4 In the premises the
Swaziland Health Institutions (SNHI) branch of the Swaziland Nurses
Association does not have legal capacity/persona to move the
application.
The Applicant
responded to the Answering Affidavit and the points in limine in a
Replying Affidavit deposed to by Goodness Dlamini and filed on the
4th May 2005.
Goodness Dlamini
reiterates her assertions in the Founding Affidavit that indeed the
RFM Nurses Unit Committee is the local branch of the Applicant.
That the
Applicant union has the locus standi in judico to move the
application on behalf of the Branch Committee. She attached to the
Replying Affidavit a copy of the resolution authorizing the
institution of the proceedings.
A confirmatory
Affidavit by one Masitsela Mhlanga, the President of the Applicant
was filed wherein he confirmed that M/s Goodness Dlamini was the duly
elected and appointed chairperson of the SNHI Branch of the Applicant
and that the RFM Nurses Unit Committee is a sub-branch of the Manzini
branch of the Swaziland Nurses Association.
It was common
cause that the Applicant is a duly registered trade union and the
sole representative of the nurses in the Kingdom of Swaziland.
The 1st
Respondent had not signed a recognition agreement with the Applicant
but had provided a check-off to all its nursing employees for payment
of subscriptions to the Applicant.
In all previous
disputes brought to this court either by the Applicant or by the 1st
Respondent, it appears that it was generally accepted that the
Applicant was the trade union representing the interests of the
nurses employed by the 1st Respondent.
Indeed, one such
is the Industrial Court Case No.413 of 2004 between the present
Applicant and the 1st Respondent which case culminated in
an order granted by the court on the 16th December 2004,
which the Applicant seeks to enforce by the contempt proceedings. No
objection was raised at all to the locus standi of the Applicant in
those proceedings.
The Respondent
in a Johnny-come-lately fashion now seeks to impeach the legal
standing of the Applicant after the horse has bolted as it were. The
point in limine is not good, cannot be sustained and same is
dismissed. The court is indebted to the arguments by counsel for the
parties in the points in limine.
AD MERITS
On the 16th
December 2004, the Applicant represented by Attorney Peter Dunseith
obtained an exparte order directing and ordering the 1st
Respondent to pay the salaries/wages of its employees promptly on due
date namely, 23rd day of each and every month.
The order was
obtained upon submissions by Mr. Dunseith that M/s Lindiwe Khumalo
the appointed attorney of the 1st Respondent had given
consent to the granting of the order.
It is common
cause that the RFM Hospital is the sole referral hospital for the
Manzini Region.
That it does not
charge patients attended to therein commercial rates in terms of an
arrangement entered into between the 1st Respondent and
the Government of the Kingdom of Swaziland.
In return, and
in recognition of the essential service provided to the members of
the public by the RFM hospital, the Government undertook to provide
annual subventions to cater for the salaries of all the employees and
other budgetary needs of the hospital.
It is now common
cause that such subventions have often come late and when they do,
have fallen short of the budgetary estimates of the RFM hospital. One
of the immediate consequences of these delays and shortfalls in the
subvention provided has been regular and at times inordinate delays
in paying the salaries of the nurses and other medical staff at the
RFM.
It was one such
delay that had necessitated the bringing of an urgent application in
Case No. 413/04 resulting in the order of the 16th
December 2004.
Particularly
problematic has been the Respondent's inability to provide timeously
for the annual salary increments to its employees. Whenever the
Government of Swaziland conducts a salary review of the Civil
Servants, the practice has been to award the employees of the
Respondent a similar and equal salary review. This is then followed
by a request for a further subvention to cater for the increased
salaries.
On the 12th
November 2004 the RFM nurses Unit Committee and support staff and RFM
Hospital entered into an agreement that was reduced into writing in
settlement of a wage negotiations dispute. It was expressly agreed
therein in writing that the back pay as per Government Circular No. 3
of 2004 will be paid in full by not later than the 31st
January 2005.
This agreement
was made an order of the court on the 9th February 2005.
the 3rd Respondent represented the 1st
Respondent in the negotiations and in court when the agreement was
made an order of the court.
The Applicant
agreed as an indulgence to the deadline for payment of the back pay
being extended from 31st January 2005 to 30 days from the
date of the order namely until 23rd March 2005.
On the 15th
March 2005 the 3rd Respondent informed the Applicant at a
meeting that the 1st Respondent was unable to comply with
the court order due to the delay in obtaining the Government
subvention timeously.
As at the time
the application was brought, the back pay had not been paid.
On the 23rd
March 2005, the 3rd Respondent also notified the Applicant
and the 2nd Respondent that the March 2005 salaries will
be delayed due to the 1st Respondent's "mechanism of
sourcing funds". A copy of the notice is annexed to the
Application and marked "B".
As of the 1st
April 2005 when this application was launched, the said salaries had
not been paid. However during the hearing of this matter, the court
was informed that March salaries had been paid in mid April.
The Applicant
submits that the Respondents are in willful and flagrant contempt of
the court orders dated the 16th December 2004 and the one
dated the 9th February 2005.
That the
Respondents should be found guilty of such contempt and be committed
to gaol for a period to be determined by the court and/or until they
comply with the court order to punch the contempt.
It is conceded
by the Applicant that the reason for the failure to pay salaries and
back-pay on due date is because Government is failing to comply with
its obligations under the Management Agreement wherein it undertook
to finance the 1st Respondent.
The Applicant
argues that the 2nd Respondent being the Chairman of the
1st Respondent and the representative of the Government in
the Board of the 1st Respondent, should be committed for
contempt of court in order to ensure compliance in future with the
1st Respondent's obligations to its employees and the
Government's obligations to the 1st Respondent.
In respect of
the 3rd Respondent, it was submitted that he was at the
time, the court orders were granted the most senior employee at the
RFM hospital. That he committed the 1st Respondent and
undertook to ensure compliance with the court orders. His failure to
ensure such compliance also amounts to willful disregard of the court
orders and he should be found guilty of contempt of court.
In the Answering
Affidavit and during submissions before court the Respondents deny
any flagrant and/or willful disregard of the court order. They have
pleaded helplessness in that efforts to get Government to provide
subvention have in the past been rewarded belatedly, if at all.
Monthly salaries in particular are dependent on an overdraft facility
with their bankers, which facility must be secured by the Government.
This also has often caused delays in paying the salaries on the 23rd
May of every month in terms of the consent order made by the court on
the 16th December 2004.
In conclusion
the 2nd and 3rd Respondents plead innocent of
alleged contempt and seek dismissal of the application with costs.
THE LAW
It is a general
principle of common law that an order for imprisonment for contempt
of court will not be made by a court for the willful failure to
comply with an order adpecuniam solvendam it will only do so if the
order not complied with is an order ad factum praestandum.
It is also true
that committals for willful disobedience of orders to make money
payments at stipulated times have been confined almost exclusively to
maintenance cases.
The principle
upon which the courts have approached this question is set out in
Slade v Slade 4 E.D.C in which the court decided that a
husband could be committed for contempt by reason of his failure to
pay maintenance for a judicially separated wife.
SHIPPAR J;
stated at page 248-9:
" Where a
money payment is ordered by the court (after due enquiry as to the
party's ability) to be made at a particular time or place or in a
particular manner, so that something is to be done over and above the
mere payment of the money, willful disobedience of such an order
affords ground for an application for committal for contempt of
court. What gives the court power to deal with this case as one for a
committal order is the fact that the Respondent after the
investigation as to his circumstances is ordered to pay to his wife
at a certain place and by a certain date. It is on that account, and
because there was a judgment not merely for money payment in general
terms but for alimony to be paid in prescribed manner, that the court
is enabled to deal with the Respondent's refusal as a contempt."
In the case of
Swanepol v Bovey 1926 T.P.D 457 it was stated:
"The cases
have laid down that proceedings for committal for contempt in the
case of an order for payment of money are limited to the case where
the court has ordered a Respondent, to do a certain thing and has
indicated the manner in which it should be done."
The case of
Bocain v Bocain 1921 S.W.A 17, deals with contribution towards
costs but not maintenance.
Banks SJ. in
Singers Estate v Kotse 1960 (2) SLR C.P.D.
states that:
"It seems
to me that whereas in the present case, the order not only fixes the
lump sum but also the manner in which the money should be paid, there
is no reason why the court should not apply the same rule as it does
to the payment of monthly amounts of maintenance, nor in my opinion
does it make any difference that in the present case the order of the
13? June 1936 was made by consent".
in the case of
Ferreira v Bezuidenhout (19701 (1) O.P.D. De
Villier J states that the cases of Singers Estate v Kotse,
supra and Stellenbosch Farmer Winery fEdmsl BPK v Goldberg,
wherein it was held that "orders similar to the one in issue in
the present case are orders ad factum praestandum because they are to
be performed in a particular manner and at a particular place. He
said
"In my
respectful view these cases are wrongly decided. An order to pay
maintenance in a matrimonial suit is entirely distinguishable from an
order to discharge a commercial debt or an order to pay costs. The
reasons why an order for periodical payments for maintenance is
regarded as an order ad factum praestandum is stated by Schreiner J
as he then was in Carnick v Williams 1937 W.L.D. 76atp.83
as follows:
"it seems
to me that the reason for holding maintenance
orders.................................. to be orders ad factum
praestandum is that they are not really money judgments at all. In
their essential nature they are orders that the defendant do
something, namely maintain his wife or the children. This duty might
be performed in various ways including the provision of housing,
clothing and food in kind or the transfer of property, but in
practice the court indicates how the defendant is to fulfill the duty
by the payment of a periodical sum of money………..This
direction by the court does not convert the judgement from one
ordering the doing of an act by the defendant into one awarding a sum
of money to the plaintiff".
In the Swanepol
v Bovey, supra at p. 458 it was stated:
" The
ordinary object of such an order is to give...................... the
right of execution. But the ordinary consequences (sic) of the
non-fulfillment of an order of court to pay a sum of money is
certainly not liability to be committed for contempt of court.
That
has been laid down repeatedly. There is an apparent exception in
matrimonial suits. / know of no case and no case has been quoted from
the Bar, where the court had entertained an application for contempt
of court where the order is not a matrimonial one. In this case it is
pure money debt which has been made an order of court. I attach no
importance to the fact that the money is payable in a certain manner
- in instalments; that element cannot give the court the right to
commit for contempt of court."
Mr, Dunseith for
the Applicant submitted that the order of the Industrial Court dated
the 16th December 2004 entered into by consent directed
the 1st Respondent to pay its employees' salaries/wages
promptly on due date, namely the 23rd day of each and
every month.
He argued that
though the judgement was for payment of money namely, salaries and
wages, it also directed the manner and date in which the payment was
to be made.
According to Mr.
Dunseith therefore, the order was one ad factum praestandum and not
adpecuniam solvendam.
He likened it to
an order for maintenance discussed above and urged the court to
enforce compliance thereof by an order for imprisonment for contempt
of court.
In this regard I
take instruction from the reasoning of Devilliers J in the case of
Ferreira v Bezuidenhout. supra and state that the order of the
16th December 2004 was one for payment of money on a
monthly basis and on a specific date, and was unlike an order for
maintenance which is an order to comply with a duty to maintain. It
is not an order ad factum praestandum merely because it is an order
to pay in a particular manner or on a particular date, and at a
particular place.
Mr. Dunseith in
the alternative submitted that although it was the 1 Respondent
(Board of Trustees of the Swaziland Nazarene Health Institution)
which was the employer of the members of the Applicant and was in
default; the real culprit was the Government of Swaziland represented
in the Board of Trustees by the 2nd Respondent Cleopas S.
Dlamini.
For this reason,
so the argument went, these proceedings for contempt, were very much
similar to those against Government officials who willfully or by
negligence and dilatory failed to comply with the orders of the
court.
Mr. Dunseith
submitted that it was necessary to commit the 2nd
Respondent for contempt of court to uphold the dignity of the court.
Similarly, the
3rd Respondent being the most senior official of the 1st
Respondent, and with specific responsibility to ensure payment of the
salaries timeously should also be visited with the similar fate.
It has been held
by the courts in a long line of decisions in Swaziland and in South
Africa that contempt of court is the willful and malafide refusal to
comply with an order issued by the court.
See Clement v
Clement 1961 (3) SA 861 CD:
Noel
Lancaster Sands f Edmsl BPK v Theron en Andrere 1974 (3) SA.
688:
Freankel Max
Peollak Vindenue Inc v Menell Jack Hyman Rosenberg & Co. Inc. and
Others 1966 (3) SA 355 (A) at 367H;
Ben Zwane v
The Prime Minister of the Kingdom of Swaziland and Anor 2001 flQ.
(Unrept).
It is clear that
the 2nd and 3rd Respondents are in a
predicament. The 1st Respondent is not permitted to charge
market rates for the health services it provides to the members of
the public. For that reason, it is unable to generate enough revenue
to pay its staff.
The Government
of Swaziland has by agreement in recognition of the essential service
rendered to the public undertaken to provide annual subventions to
discharge its commitments including payment of salaries to the staff.
Unfortunately as
stated earlier efforts by the 2nd and 3rd
Respondents to obtain the subvention timeously are frustrated by
bureaucracy and other impediments common to Government operations.
Mr. Cleopas S.
Dlamini stated in the Answering Affidavit that "/ wish to submit
that the failure to pay the salaries and back-pay to Respondents
employees is the result of the non availability of funds. Respondent
has through 2nd and 3rd Respondents sourced for
funds from Government and awaits the subvention."
Similarly
Leonard Siphiwa Dlamini states that "I wish to state that the
Respondent through myself and the 2nd Respondent are not
in willful default of the court orders and further that if the 1st
Respondent was in a financial position it would have paid to its
employees the salaries on the 23rd day of every month and
the back pay due to its employees whom I am part of ".
It is clear to
the court that the 2nd and the 3rd Respondents
are not in willful and malafide contempt of the court order of the
16th December 2004, that was entered into by consent.
It is to put it
more mildly very embarrassing that an employer in the most essential
service finds itself unable to pay its health workers timeously or at
all in some instances.
The problem is
compounded by the requirements of Section 94 (2) of the Industrial
Relations Act of 2000 as follows:
"strikes
and lockouts shall be prohibited in respect of any service that has
been designated as a minimum maintenance service in terms of
sub-section (1)."
The employees
the subject of this application fall in the said designation.
It is therefore
imperative that their contractual rights are respected and adhered to
timeously without fail. Such failure may result in automatic release
of the employees affected from their contractual obligations and all
the concomitant consequences would follow from such release.
Whereas, the
Government Proceedings Act, preclude any judgement creditor from
attaching Government property, the 1st Respondent is not
immune from attachment of its property.
For that reason,
unlike litigants who obtain judgements against the Government, the
Applicants herein are at liberty to execute judgments obtained in
their favour against the 1st Respondent.
In the matter of
East London Local Transitional Council v Mec for Health EC 2001
(3) SA 1133.
Ebrahim J, cited
the decision of the full bench of the Transki High Court in the case
of Mjeni v Minister of Health and Welfare, Eastern Cape Case No.
824/96 with approval as follows:
"The common
distinction between orders ad pecuniam solvendam and those ad fuctum
praestandum regarding contempt of court proceedings would not in my
view make sense in cases where the state is the judgement debtor in
the light of the provisions of S 3 of Act 20 of 1957. (This is
similar to the Government Proceedings Act of Swaziland).
It would simply
mean that the judgement creditor cannot enforce the judgement in the
event of failure to pay whereas his counter parts would be able to do
so against judgement debtors who are private persons. Effectively, it
would mean those who sue the state run the risk of obtaining hollow
and unenforceable judgements. The state could just ignore such
judgements with complete impunity.
As the rationale
behind that common law rule is that the successful party has other
options to enforce an order ad pecuniam solvendam, I am of the
opinion that its application cannot be extended to matters where the
state is the judgement debtor because no such option is available to
the successful party. To hold otherwise would lead to consequences
too ghastly to contemplate. In effect the courts would be condoning
and encouraging deliberate disobedience of their orders or even
conduct which holds such orders in utter contempt."
It is the courts
conclusion that the Applicant herein unlike a judgement creditor
against Government, has alternative remedy to contempt of court
proceedings where judgements sounding in money are concerned.
For this, and
other reasons stated herein, the application fails.
No order as to
costs.
The members
agree.
NDERI NDUMA
JUDGE PRESIDENT-
INDUSTRIAL COURT
