Case  CCT62/20
[2021] ZACC 19

Hearing Date: 27 November 2020

Judgement Date: 29 June 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday, 26 November 2020 at 10h00, the Constitutional Court heard a direct leave to appeal against the full bench judgment and order of the High Court, Gauteng Division, Pretoria (High Court). On 10 March 2020, the High Court reviewed and set aside the decision by the Public Protector to investigate and report on the CR17 campaign for the African National Congress (ANC) leadership elected in December 2017. It also reviewed and set aside the findings and remedial orders in the Public Protector’s report. The Public Protector was also ordered to pay punitive costs in the application.

The litigation stems from 6 November 2018 when a question was posed to President Cyril Ramaphosa in Parliament by the then leader of the Democratic Alliance (DA), Mr Mmusi Maimane relating to the payment of an amount of R500 000 into an account which allegedly belonged to the President’s son, Mr Andile Ramaphosa. This payment was allegedly paid from the late Mr Gavin Watson who was Chief Executive Officer of Africa Global Operations (AGO), formerly known as Bosasa. In his response, the President explained that his son was involved in business with AGO, and that the payment was related to work which he had conducted for that company. Roughly a week later, the President wrote a letter to the Speaker to explain that the answer he had given in response to the question which was posed to him was incorrect. He explained that the payment was in fact made on behalf of the late Mr Watson to the CR17 campaign.

This gave rise to two complaints directed to the Public Protector. The first complaint was from Mr Maimane regarding the relationship between the President and AGO. The second complaint was lodged by Mr Floyd Shivambu, the Deputy President of the Economic Freedom Fighters (EFF) regarding the alleged breach of the Executive Ethics Code (Code) by the President. In light of the above complaints, the Public Protector conducted an investigation, the scope of which was whether the President, in giving an incorrect answer to the question directed to him in Parliament, misled Parliament in breach of the Executive Members’ Ethics Act (Members Act) and the Code.

At the conclusion of the investigation, the Public Protector found that the President deliberately misled the National Assembly (NA). Further that the President exposed himself to a situation involving the risk of a conflict between his official duties and his private interests or used his position to enrich himself and his son through businesses owned by AGO. In light of the findings, the Public Protector took remedial action which had a direct effect on the President, and further directing the Speaker and the National Director of Public Prosecutions (NDPP) to comply with the orders therein.

The President launched an application to review and set aside the Public Protector’s report in the High Court. AmaBhungane also filed a conditional application to challenge the Code and were granted leave to intervene as a respondent in those proceedings. AmaBhungane did not embroil itself in the main issues in dispute in respect of the Public Protector’s Report but instead brought a constitutional challenge to the Code.

The High Court had difficulties with the Public Protector’s finding that the President misled Parliament. It noted that the Public Protector failed to understand the law on which this complaint was based and misapplied it. This is the question of whether the President violated the Code by willfully misleading Parliament. The Court pointed out that in her Report the Public Protector replaced the word “willfully” with “deliberately or inadvertently”.

In addition, the High Court held that the Public Protector’s view that the President breached the Code by failing to disclose donations to the CR17 campaign was irrational and held that the legal prescripts upon which the Public Protector drew her conclusion on the issue of money laundering were wrong. With regards to the remedial action, the High Court noted that given its serious implications, the President’s right to just administrative action placed an obligation on the Public Protector to forewarn the President, and to be given an opportunity to make representations (audi alteram partem rule). The Court held that the Public Protector failed to comply with this obligation. Lastly, with regards to the Public Protector directed remedial action against the Speaker and the NDPP, the High Court held that the Public Protector must give due deference to the expertise within other organs of state. The remedial action and monitoring measures were inappropriate, and in some instances ineffective, and constituted a usurpation of the constitutional discretionary powers of the Speaker and the NDPP.

Unhappy with the outcome in the High Court, the Public Protector filed an application for direct leave to appeal to this Court. The EFF filed a conditional application in this Court only in the event that leave to appeal is granted to the Public Protector. AmaBhungane also filed a conditional application in this Court for leave to appeal insofar as their application was dismissed. Freedom Under Law (FUL) was admitted as amicus curiae.

The majority judgment penned by Jafta J concurred in by (Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ), held that the Public Protector misconceived the Code by holding that the President’s acknowledgment that he gave an incorrect answer in Parliament was enough for the conclusion that he had violated the Code. The majority judgment held that the Public Protector changed the wording of the Code from “wilfully” to “inadvertent” by holding that the President’s reply breached paragraph 2.3(a) of the Code, the standard of which she claimed included “deliberate and inadvertent misleading”. Because the Public Protector’s report revealed that, on the facts placed before her, the President did not wilfully mislead Parliament, he could not have violated the Code. The majority judgment agreed with the High Court that her finding in this regard constituted a material error of law and fell to be set aside.

On the issue whether the President had personally benefitted from the CR17 campaign donations, the majority judgment held that the Public Protector’s conclusion that the President had personally benefitted was not substantiated by her own report, which contained the summary of the evidence she heard during the investigation. The Public Protector’s acceptance of the e-mail evidence over conflicting evidence was held to be inconsistent with the principle set out by the Supreme Court of Appeal in Mail & Guardian, which held that where evidence is inconclusive or diverges, the Public Protector is obliged to carefully evaluate it to determine the truth. In the circumstances, the majority judgment held that the duty of the President to disclose personal benefits under the Code was not triggered without proof of that he had benefitted. Additionally, the majority judgment held that the Public Protector’s finding was fatally defective because she was not authorised to investigate whether the President personally benefitted from donations made to the CR17 campaign. Section 4 of the Members Act mandates the Public Protector to investigate violations of the Code only if there is a complaint by one of the persons listed in the section and the complaints received by her did not require her to investigate the President’s failure to disclose benefits derived from the CR17 campaign donations. Where the exercise of public power depends on the existence of certain conditions, such power cannot be validly exercised in the absence of those conditions.

On the issue of the competence to investigate the affairs of the CR17 campaign, the majority judgment held that neither section 6 of the PPA nor section 4 of the Members Act authorised the Public Protector to investigate the affairs of the CR17 campaign. The judgment also held that section 182(1) of the Constitution is concerned with state affairs and the affairs relating to the CR17 campaign were private affairs and did not fall under the scope of this section. What turns a private entity into an organ of state is the exercise of a public power or the performance of a public function.

The majority judgment further held that the evidence in the Public Protector’s report did not support the finding that the President had involved himself in illegal activities sufficient to evoke a suspicion of money laundering. Further, that the Public Protector was not empowered by the Members Act, nor the PPA, to investigate money laundering allegations. The majority judgment left the issue, whether the Public Protector’s remedial action constituted administrative action, open. It however held that the application of the audi principle does not depend on whether the exercise of power constitutes administrative action. Therefore, the Public Protector was obliged to afford an affected person an opportunity to respond to the implicating evidence, if the implication may be detrimental to that person or if a finding adverse to him or her was anticipated. The majority judgment agreed with the High Court that failure to afford the President a hearing before the decision on the remedial action was taken, was fatal to the validity of that remedial action. The majority judgment held further that the Public Protector’s remedial action fell to be set aside for additional reasons, including ordering the Speaker of the NA to take steps in respect of which she had no authority in law; issuing supervisory orders against the Speaker, the NDPP and the National Commissioner; and taking remedial action for the violations of the Code, not empowered by the Members Act.

Concerning AmaBhungane’s challenge to the Code, the majority judgment held that the High Court erred in concluding that the challenge was not properly before it and that court should have considered the merits of that claim. That issue was remitted back to the High Court for adjudication of the claim.

In a dissenting judgment, Mogoeng CJ concluded that Honourable Mmusi Maimane, MP lodged a formal complaint that allowed the Public Protector to investigate every aspect of the President’s CR 17-related conduct that she considered as potentially unethical.

He held that financial assistance from individual donors and even the composite amount from the CR17 Campaign, as an entity, constituted a personal benefit to the President and created a situation that involved a risk of conflict between the President’s private interests, his pursuit of the ANC Presidency with the assistance of private donors, and his official responsibilities as Deputy President of the Republic, Member of Parliament, Leader of Government Business in Parliament and even as President of the Republic. The President should, in his view, while still a Member of Parliament and Deputy President, have disclosed the sponsorship to the National Assembly as enjoined by the Constitution, the Members Act and the Code.

He further held that the emails which the President effectively admitted are authentic and true revealed that he deliberately represented a falsehood to the Public Protector. And this together with his failure to disclose the private donations to his campaign ran against the very essence of his obligations laid out in sections 96(2)(b), 83(b) and 181(3) of the Constitution and the values of transparency and accountability on which our democratic State was founded.

The Full judgment  here 

Case  CCT52/21
[2021] ZACC 18

Hearing Date: 25 March 2021

Judgement Date: 29 June 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 29 June 2021 at 10h00, the Constitutional Court handed down judgment in an urgent application for direct access seeking an order declaring former President Jacob Gedleyihlekisa Zuma to be in contempt of court, and sentencing him to a period of two years’ direct imprisonment.

In December 2020, in the matter of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma [2021] ZACC 2 (CCT 295/20), the applicant, being the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, approached the Constitutional Court on an urgent basis for an order that would compel Mr Zuma’s co-operation with the Commission’s investigations and objectives. On 28 January 2021, the Constitutional Court handed down judgment in that matter, ordering Mr Zuma to file affidavits and attend the Commission to give evidence before it. Mr Zuma responded by releasing a public statement in which he alleged that the Commission and the Constitutional Court were victimising him. From 15 to 19 February 2021, Mr Zuma did not attend the Commission as ordered. Accordingly, the Chairperson of the Commission announced that it would launch contempt of court proceedings. On the same day, Mr Zuma published another statement in which he levelled serious criticisms against the Judiciary and confirmed that he would neither obey the Constitutional Court’s order nor co-operate with the Commission

The applicant proceeded to approach the Constitutional Court for direct access on an urgent basis, submitting that a court that grants an order retains jurisdiction to ensure its compliance. The applicant submitted that, considering Mr Zuma’s former and current political position, his conduct constituted a particularly reprehensible attack on the rule of law and posed a serious risk that it would inspire others to similarly undermine the administration of justice. It was the applicant’s case that Mr Zuma was guilty of the crime of contempt of court as he had failed to comply with the order made in CCT 295/20. Furthermore, that in ostensibly defending his contempt, Mr Zuma conducted a politically-motivated smear campaign against the Constitutional Court, the Commission and the Judiciary, which constituted an aggravating factor relevant to the determination of an appropriate sanction. The applicant submitted that, in such unprecedented circumstances, it was apposite for the Constitutional Court to respond on an urgent basis and that only a punitive sanction, in the form of an unsuspended order of imprisonment for a period of two years, would be appropriate.

Mr Zuma did not oppose this application, nor did he file any submissions.

The Helen Suzman Foundation applied to be admitted as amicus curiae. Its main submission was that an appropriate sanction in contempt proceedings must play the dual role of vindicating the dignity of the court as well as compelling compliance with the impugned order. And, to this end, it proposed several sanctions which contained both punitive and coercive elements. Its submissions were relevant to the question of sanction and were of assistance to the Court. Since it met the requirements to be admitted as amicus curiae in terms of the Rules of the Constitutional Court, the Helen Suzman Foundation was admitted.

The main judgment was penned by Khampepe ADCJ (Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Tlaletsi AJ and Tshiqi J concurring). The second judgment was penned by Theron J (Jafta J concurring).

Both judgments agreed that this matter engaged the Constitutional Court’s jurisdiction and that the circumstances warranted granting direct access on an urgent basis. Contempt of court proceedings exist to protect the rule of law and the authority of the Judiciary, and any disregard of an order of the Constitutional Court requires its intervention. It was held that neither the public’s vested interests, nor the ends of justice, would be served if the matter had been required to traverse the ordinary, and lengthy, appeals process. It was accordingly held to be in the interests of justice to grant direct access, and to do so on an urgent basis.

The main judgment held that there could be no doubt that Mr Zuma was in contempt of court. The Constitutional Court had handed down an order in CCT 295/20. This had been served on Mr Zuma, who had subsequently failed to depose to affidavits or appear and give evidence before the Commission, as he had been ordered to do. And, he had failed to present evidence to establish a reasonable doubt as to whether his non-compliance was wilful and mala fide.

In determining the appropriate sanction, the main judgment considered the differences between coercive orders, which use suspended imprisonment as a threat to compel compliance, and punitive orders of direct committal. The main judgment held that a coercive order would be both futile and inappropriate as Mr Zuma was resolute in his refusal to comply. The main judgment held that affording Mr Zuma another opportunity to attend the Commission would have no effect other than to prolong his defiance and to signal that impunity is to be enjoyed by those who defy court orders. It was held that, notwithstanding the importance of the work of the Commission, neither the Court’s honour, nor the public’s interest in Mr Zuma’s testifying before the Commission, would be vindicated by a coercive order. In any event, the main judgment noted that the public has an equally important, if not more acute, interest in a functioning Judiciary than in Mr Zuma’s testifying before the Commission. An additional deficiency with a coercive order, so the main judgment found, was that the punitive effect of it would only operate upon future non-compliance. In other words, it would wield no punitive power in respect of Mr Zuma’s contemptuous conduct, already so worthy of rebuke.

Finding that the appropriate sanction was likely to be a punitive order of unsuspended committal, the Court was alive to the need to safeguard Mr Zuma’s right not to be arbitrarily deprived of physical freedom, as enshrined in section 12 of the Constitution. The main judgment acknowledged that after conviction in a conventional criminal trial, it is a violation of an accused person’s right to a fair trial under section 35 of the Constitution to proceed to impose a sentence without affording her or him an opportunity to say something in mitigation of sentence. Whereas the second judgment concluded that Mr Zuma ought to have been afforded an accused person’s rights given that what the applicant sought was a punitive order, the main judgment found that this was not a conventional criminal trial and a contemnor in civil proceedings is not an accused person for the purposes of section 35. Notwithstanding this, the main judgment was acutely aware that contempt proceedings, although brought by civil process, have a criminal component. It found that section 12 imports the right to be afforded a fair procedure akin to that afforded by section 35. Thus, affording a contemnor an opportunity to say something in mitigation of sentence is important given that removing a person’s freedom is a drastic step. Accordingly, directions were issued on 9 April 2021, in which Mr Zuma was invited to file an affidavit on an appropriate sanction and sentence in the event that he be found guilty of contempt. The main difference between the procedure followed in this matter and that which is ordinarily followed in a criminal trial was that, since contempt proceedings deal with guilt and sentence in one process, the invitation was sent before the Court reached a decision on guilt.

In response to the directions, Mr Zuma did not file an affidavit but addressed a 21-page letter to the Chief Justice, in which he made further inflammatory statements intended to undermine the Court, portray himself as a victim of the law and evoke public sympathy. He also attempted to justify his contempt by stating that, by hearing this application while the outcome of his application for the review of the decision by the Chairperson of the Commission not to recuse himself was outstanding, the Constitutional Court had acted unconstitutionally. The main judgment held that this defence was unfounded since, had Mr Zuma not wanted to participate in the Commission hearings whilst his review application was pending, he should have sought an interim stay of proceedings, which he did not do. The main judgment emphasised that the Constitutional Court went to great lengths to safeguard Mr Zuma’s rights. Consequently, there was no sound basis on which he could claim to have been treated unfairly or victimised.

Having found that Mr Zuma could not be described as an accused person as envisaged in section 35 and that a fair procedure had been followed to safeguard his right to freedom, the main judgment held that no section 36 limitations analysis arose in the circumstances.

The main judgment held that an unsuspended order of committal was further justified by certain exceptional features of this matter. First, Mr Zuma’s scurrilous and unfounded attacks on the Judiciary and its members were intolerable and could not be met with impunity. Protecting courts from slanderous public statements, it was emphasised, has little to do with protecting the feelings and reputations of Judges, and everything to do with preserving their ability and power to perform their constitutional duties. Furthermore, the main judgment found that contempt is not the act of non-compliance with a court order alone, but encompasses the nature of the contempt, its extent and the surrounding circumstances. Thus, the Court was enjoined to take cognisance of the unique and scandalous features of the matter. It held that if these aspects were to be ignored, the Court would be adjudicating the matter with one eye closed, and declining to decide it without fear, as it is constitutionally mandated to do.

The main judgment further emphasised that Mr Zuma was no ordinary litigant, but was the former President of the Republic of South Africa, who continued to wield significant political influence and in whom lies a great deal of power to incite others to similarly defy court orders. Thus, if his conduct were to be met with impunity, he could do significant damage to the rule of law. The main judgment held that no person enjoys exclusion or exemption from the sovereignty of the laws of the Republic. And it would be antithetical to the value of accountability if those who once held high office were not bound by the law. The main judgment emphasised the existence of a heightened obligation on the President to conduct her or himself in a manner that accords with the Constitution. Although Mr Zuma was not President at the time of his contempt, his contumacy was all the more outrageous in light of the position he once occupied. The main judgment further noted that it was not insignificant that Mr Zuma’s contemptuous conduct related to his duty to account for his time in Office. Accordingly, it was disturbing that he who twice swore allegiance to the Republic, its laws and the Constitution, sought to ignore and undermine the rule of law altogether.

The main judgment concluded that the cumulative effect of these factors was that the only appropriate sanction was a direct, unsuspended order of imprisonment.

In determining the length of sentence, the main judgment held that the Court was enjoined to consider the circumstances; the nature of the breach; and the extent to which the breach was ongoing. In doing so, it held that quantifying the egregiousness of Mr Zuma’s conduct was an impossible task, but that the focus had to be on what kind of sentence would demonstrate, generally, that orders made by a court must be obeyed, and, to Mr Zuma specifically, that his contumacy stood to be rebuked in the strongest of terms. The main judgment concluded that if, with impunity, litigants, especially those in positions like that of Mr Zuma, are allowed to decide which orders they wish to obey and those they wish to ignore, a constitutional crisis will be precipitated. The main judgment ordered an unsuspended sentence of imprisonment for a period of 15 months.

The applicant sought costs on a punitive scale. The Constitutional Court affirmed the principle that punitive costs are exceptional and are reserved for instances where a litigant has conducted themselves in an indubitably vexatious and reprehensible manner, deserving of extreme opprobrium. The Court held that it was without question that the extraordinary award of punitive costs was warranted. Costs were awarded on an attorney and client scale.

The second judgment, penned by Theron J (Jafta J concurring), agreed that Mr Zuma was in contempt of the order in CCT 295/20 but concluded that it would be unconstitutional to grant an order of unsuspended committal in the context of motion proceedings if the committal is not aimed at coercing compliance with a court order.

After surveying our jurisprudence on civil contempt, the second judgment concluded the following. First, that civil contempt has dual remedial and punitive purposes, with the main purpose of civil contempt proceedings being the enforcement of a court order, and that it had found no case in which a punitive committal order (unconnected to coercing compliance) had been ordered. Secondly, that the Constitutional Court had yet to consider the constitutionality of punitive committal orders in the context of civil contempt proceedings but had concluded, in respect of criminal contempt of scandalising the court, that a summary contempt procedure intended purely for penal purposes is inconsistent with the fundamental rights protected by sections 12 and 35(3) of the Constitution because there was no interference in the judicial process or the administration of justice, which called for swift remedial action.

The second judgment considered whether a common law rule allowing a civil court to order a punitive sanction of committal with no paired remedial purpose constituted a justifiable limitation of the right to freedom and security of the person (section 12) and an accused’s right to a fair trial (section 35(3)). The second judgment emphasised, at the outset, that because constitutionality is determined objectively, it would be a mistake to fixate on Mr Zuma’s conduct in these proceedings and that regard should instead be had to the position of contemnors in Mr Zuma’s position.

The second judgment concluded that depriving a contemnor of liberty without a criminal trial limits section 12 of the Constitution and that there are a host of respects in which the civil contempt procedure falls short of the protections enshrined in section 35(3). First, although civil contempt proceedings are a hybrid of civil and criminal elements, and therefore must be conducted in a manner that is grounded in sections 12 and 35(3) of the Constitution, the adaptation of motion proceedings to reflect their hybrid status depends on a judicial officer’s assessment of what seems fair in the circumstances. By contrast, the procedural rights in section 35(3) are peremptory. Secondly, civil contempt proceedings, especially when brought on an urgent basis (as they were in this case), limit the right to have adequate time to prepare a defence as enshrined in section 35(3)(b). Thirdly, the consequence of granting direct access in this matter was that the main judgment’s committal order would be unappealable, which limits section 35(3)(o). Fourthly, the motion procedure limits the alleged contemnor’s fundamental right to remain silent and to be presumed innocent to the extent that it requires the alleged contemnor to present her or his defence before the initiating party has made out a prima facie case against her. The second judgment concluded that these deficiencies amounted to a serious violation of constitutional rights when one has regard to the fact that sections 12 and 35(3) protect a profound and essential right to freedom, which is the bedrock of our constitutional order.

The second judgment concluded that in an open and democratic society based on human dignity, equality and freedom, litigants are not prosecuted criminally in civil court by their adversaries in circumstances where they are not afforded an opportunity to cure their contempt in order to avoid being deprived of their liberty. Although a contemnor faces a deprivation of liberty without a criminal trial when the committal order sought is coercive as well as when it is punitive and unsuspended, the second judgment explained that the limitation of rights inherent in the civil contempt procedure becomes unreasonable and unjustifiable when punitive committal is ordered, for two reasons. The first is that while civil contempt proceedings serve the legitimate purpose of providing successful litigants with a speedy and effective means of enforcing court orders, when the relief sought is singularly punitive and not linked to enforcement, this justification for limiting rights falls away. The second is that the limitation of rights is substantially tempered when the contemnor can avoid imprisonment by complying with the court order.

The second judgment agreed that the Constitutional Court must defend its orders and authority, but stressed that it can only do so within the bounds of the Constitution. It agreed that Mr Zuma’s contempt exposed him to an order of committal, but concluded that the constitutionally compliant approach would have been either to make an order of coercive committal aimed at inducing Mr Zuma to comply with the Court’s order (if the Commission’s term has not come to an end by the time judgment is handed down) or an order referring the matter to the Director of Public Prosecutions for a decision on whether to prosecute Mr Zuma for contempt of court.

 

The Full judgment  here 

Case  CCT154/20
[2021] ZACC 16

Judgement Date: 22 June 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 22 June 2021 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Labour Appeal Court. The applicant, the National Union of Mineworkers, acts on behalf of five of its members, namely, Ms Violet Masha, Mr Vincent Pholwane, Mr Nkipilili Siqalane, Mr Father Mhlongo, and Mr Moses Khoza (the employees). These members were employed by SAMANCOR Limited (Eastern Chromes Mines), the first respondent. The second respondent is Mr Nicholus Sono, the commissioner in the proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA). The third respondent is the CCMA. The second and the third respondents did not participate in these proceedings.

On 19 October 2015, Mr Madikwane, the mine overseer visited the North 8 North Tip section of the first respondent’s mine. Upon arrival, he discovered that the employees were performing their duties in unsafe conditions. They had failed to install a temporary support and safety net before commencing drilling in the area. One of the team members, Ms Maseko, was not present. The mine overseer instructed the employees to stop, install the safety measures and then resume work. On his return, he discovered that his instructions had not been carried out. He proceeded to reissue the instruction in writing. A few days later, he returned to the site and found that the employees had continued to work despite his instruction. The employees were charged for insubordination. After a disciplinary inquiry, they were found guilty of misconduct and dismissed.

Aggrieved with the outcome, the employees lodged a dispute with the CCMA. They alleged that the employer had been inconsistent in disciplining them, in that Ms Maseko had not been charged along with them until the applicant complained. Furthermore, once charged, Ms Maseko and another employee had not been dismissed. The arbitrator, having considered the evidence, held that there was an unjustifiable differentiation in the treatment of the employees which amounted to inconsistency in the application of disciplinary measures. He, therefore, held that the dismissal was unfair and issued an award of reinstatement.

Dissatisfied with this outcome, the first respondent instituted review proceedings before the Labour Court. The Labour Court held that, on the evidence, the mine overseer only returned days after his written instruction to the employees and found the site as it was before. Further, there was insufficient evidence to conclude that the written instruction had been defied. This could have been remedied had the mine overseer concluded a report immediately. However, this being the case, the evidence pointed to him not having gone back to inspect the site as he had alleged. Therefore, on a balance of probabilities, it had not been proven that the employees had defied the mine overseer’s written instruction. Consequently, the review application was dismissed with no order as to costs.

On appeal, the Labour Appeal Court held that the Labour Court failed to consider the actual issue, which was the question whether there had been inconsistency of discipline. After considering the evidence, the Labour Appeal Court held that Ms. Maseko’s acquittal was appropriate as she had not been present when the instructions to cease work at the site were issued. Thus, the employees’ allegation of inconsistency of disciplinary measures was founded on an incorrect premise. Lastly, it held that no reasonable decision maker could find that the employees did not disregard the mine overseer’s instructions. As the employees were aware of the rules, dismissal was an appropriate sanction given the seriousness of the misconduct. The Labour Court order was set aside. The Labour Appeal Court held that the dismissal was procedurally and substantively fair and ordered the applicant to pay costs incurred in the Labour Court and Labour Appeal Court.

Before the Constitutional Court, the applicant sought leave to appeal against the judgment and order of the Labour Appeal Court. The Chief Justice issued directions calling on the parties to file written submissions on the issue of costs, with regard to this Court’s decision in Zungu. Upon receipt of the written submissions, the matter was determined without oral argument. The applicant submitted that the Labour Appeal Court was wrong on the law and on the facts. It submitted that the main issue was the question of inconsistency of discipline since the employer had been inconsistent in disciplining its employees. As a result, the employees were entitled to the award of reinstatement. Regarding the sanction, the applicant submitted that dismissal was inappropriate as the alleged seriousness of the risk was over stated and the personal circumstances of the employees were not considered. Lastly, the employer dismissed employees who were merely standing around, which constituted derivative misconduct and is at odds with this Court’s decision in Dunlop.

The first respondent submitted that the applicant seeks to raise an argument (the derivative misconduct argument) not raised in the Labour Appeal Court. In any event, the argument lacks substance and there is no suggestion that had the argument been considered it would have been material to the outcome. The employees were dismissed for working under unsafe conditions despite an instruction to the contrary. Further, Dunlop is distinguishable from this case. It argued further that the applicant failed to demonstrate that the Labour Appeal Court erred in its iteration and application of the principles relating to inconsistency of discipline.

In a unanimous judgment penned by Mhlantla J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Pillay AJ, Theron J, Tlaletsi AJ, and Tshiqi J concurring), the Constitutional Court granted condonation for the late filing of the application. The Court further held that the matter engaged its jurisdiction as it implicated the employees’ rights to fair labour practices, a fair hearing and access to justice.

On the merits, this Court held that it had to be borne in mind that Ms Maseko had not participated in the drilling exercise and was not present when the mine overseer arrived at the site. Another employee, Mr Motlhabing, had installed the safety mechanisms but had failed to do so adequately. Therefore, their cases were distinguishable from that of the dismissed employees. Thus, the Labour Appeal Court’s finding that there was no inconsistency of discipline was unassailable. On the question whether the sanction imposed was disproportionate, the Court held that given the nature of the mining industry, and its often unsafe conditions, the disregard of the mine overseer’s instructions was serious. This misconduct endangered the employees’ lives and that of the other workers. Accordingly, dismissal was an appropriate sanction. Therefore, the Court held that the application for leave to appeal against the dismissal lacked prospects of success and fell to be dismissed.

In relation to costs, the applicant submitted that the costs order was unjustified as the Labour Appeal Court had failed to apply the principle set out by its earlier decision in Dorkin and later by this Court in Zungu. Therefore, it did not exercise its discretion judicially. The first respondent argued that the principles on the awarding of costs are trite and do not constitute a point on which this Court should expand as it is neither an arguable point of law nor a constitutional issue.

This Court held that the Labour Appeal Court erred in awarding costs against the applicant as this was at odds with its decision in Zungu. In Zungu, this Court held that the rule of practice that costs follow the result does not apply in labour matters. It further cited Dorkin, for the underlying rationale in relation to the principle, wherein it was stated that it is important not to discourage employees, unions, and employers’ organisations from approaching the labour courts for fear of an adverse costs order. In any event, where such an order is made, reasons must be provided. The applicant has a duty to defend its members’ rights, and that alone cannot justify a costs order in the absence of untoward conduct on their part. In this case, the Labour Appeal Court failed to provide reasons. This was compounded by the fact that the Labour Appeal Court substituted the order of the Labour Court on costs and issued a costs order against the applicants where the Labour Court had not done so. This Court held that the Labour Appeal Court did not exercise its discretion judicially and it was thus entitled to interfere with the costs orders. Leave to appeal on costs was granted. In the result, this Court issued an order where it dismissed the application for leave to appeal on the merits, granted leave to appeal on costs, upheld the appeal and set aside the costs orders issued by the Labour Appeal Court.

The Full judgment  here