South African Police Service v Dube and Another (J2890/13) [2021] ZALCJHB 359; (2021) 42 ILJ 2681 (LC) (12 October 2021) (2024)

INTHE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Of interest to otherJudges

Case No: J 2890/13

In the matter between:

SOUTH AFRICAN POLICESERVICEApplicant

and

CHRISTIAN BAFANADUBEFirstRespondent

MALISELA DANIELTEFFOSecondRespondent

Heard:30September2021and 8 October 2021 (Virtual hearing)

Delivered:Thisjudgment was handed down electronically by circulation to theparties' legal representatives by email, andpublication on theLabour Court’s website. The date and time for hand-down isdeemed to be on 12October2021 at10:00

JUDGMENT

TLHOTLHALEMAJE,J

[1]Followingan urgent application brought by the applicant (SAPS), this Court hadon 30September2021issued an order in the followingterms;

‘1.Eachof the First Respondent and the Second Respondent are declared to bein contempt of the ordergranted by Prinsloo J under case number J2890/13 on 26August2021.

2.TheFirst Respondent and the Second Respondent are to appear before thisCourt on Friday,8October2021 at 10h00 or so soonthereafter as the matter might be heard, to show cause why an orderas follows shouldnot be granted against the First Respondent and theSecond Respondent:-

2.1Eachof the First Respondent and the Second Respondent are incarceratedfor such period as determinedby the Honourable Court.

2.2Alternatively,to 2,1 above, that a fine be imposed upon each of the FirstRespondent and the SecondRespondent in such amounts as to bedetermined by the Honourable Court.

2.3TheFirst Respondent and the Second Respondent are to pay the costs ofthe applicant on the attorneyand client scale.

3.Eachof the First Respondent and the Second Respondent are to serve andfile an answeringaffidavit by no later than 10h00 on Tuesday,5October2021.

[2]Asat 5October2021, no answering affidavit had been filedand served, nor did the First and SecondRespondents make anappearance on 8October2021. Mr. Hollander for theapplicant on the hearing date submitted thatthe First and SecondRespondents have shown utter disdain for this Court and its orders,and had implored the Court to impose theseverest of sanctions.

[3]Ifully agree that the First and Second Respondents have not only shownutter contempt for this Court and its orders, but have alsodone soin the most brazen manner which is unprecedented in this Court. Ithas repeatedly been stated by Courts that contempt ofcourt hasimplications for the effectiveness and legitimacy of the legal systemand the judicial functioning. There is thus a publicinterest elementin each and every case in which it is alleged that a party haswilfully and in bad faith ignored or otherwisefailed to comply witha court order, which further adds to the need for the matter to betreated with urgency[1].

[4]Thefollowing background to these contempt proceedings demonstrates theinsidious manner with which the First and Second Respondentshavedone everything in their power to ensure that the provisions ofsection165(5) of the Constitution[2],which provides that; ‘Anorder or decision issued by a court binds all persons to whom andorgans of State to which it applies’,are undermined. As shall be demonstrated below, the First Respondent(Dube), used to be a law enforcement officer, whilst theSecondRespondent (Teffo), is an Advocate and thus an officer of the Court.At the barest of minimum, in those positions, morewas expected ofthem to at least show some respect for the Court, its orders, and therule of law. They deliberately and shamelesslyfailed in that regard.

[5]Asif Khampepe ADCJ inSecretaryof the Judicial Commission of Inquiry into Allegations of StateCapture, Corruption and Fraud in the Public Sector includingOrgansof State v Zuma and Others[3]had the facts of this case in mind, she could not have expressed itbetter when she stated that;

‘It is indeed thelofty and lonely work of the Judiciary, impervious to publiccommentary and political rhetoric, to uphold, protectand apply theConstitution and the law at any and all costs. The corollary dutyborne by all members of South African society –lawyers,laypeople and politicians alike – is to respect and abide bythe law, and court orders issued in terms of it, becauseunlike otherarms of State, courts rely solely on the trust and confidence of thepeople to carry out their constitutionally mandatedfunction’[4]

[6]Thebackground to the contempt finding made by this Court against Dubeand Teffo on 30September2021is as follows;

6.1Dubeis a former Warrant Officer who was in the employ of SAPS sinceJuly1998.He was dismissed in February2010 on account ofallegations of serious acts of misconduct. Teffo is as per the papersbeforethe Court, a practicing Advocate.

6.2Dubeupon his dismissal subsequently referred a dispute to the Safety &SecuritySectoral Bargaining Council (SSSBC), resulting in anarbitration award being issued in his favour in June2012. Hewas grantedretrospective reinstatement together with back-pay, andwas to report for duty from July2012.

6.3SAPSsubsequently launched an application to review and set aside thearbitrationaward under case number JR 2422/2012, together with anapplication for condonation for its late filing.

6.4Notwithstandingthe review application, which remains unopposed, Dube inSeptember2012 brought an application under case numberJ2316/2012 to have the arbitration award made an order of Courtin terms of the provisions of section 158(1)(c) of the LabourRelations Act[5] (LRA), whichthe SAPS had opposed. Dube subsequently withdrew that application.

6.5Havingwithdrawn the section 158(1)(c) of the LRA application, Dube broughtasimilar application under case number J 2890/2013 (the present casenumber). The SAPS did not oppose that application as its contentionwas that it belaboured under the impression that the secondapplication was the same as the first one which was withdrawn.

6.6Dubehad obtained a default order under case number J 2890/2013 beforeBassonJ on 13 February 2014. The SAPS then brought an applicationfor rescission of that default order in April2014, which Dubehad opposed.

6.7InNovember2014, Dube then launched ex parte contemptproceedings against SAPS and its officials. On 5December2014,the Court granted the order, calling upon thethen Minister of Policeand then National Commissioner to appear in Court on 6March2015,to show cause why a contemptfinding should not be made against themfor failing to comply with the arbitration award issued in June2012which was subsequentlymade an order of Court.

6.8TheSAPS subsequently brought an application to stay the contemptproceedingspending the rescission application in respect of thedefault order obtained on 13February2014. The order wasgrantedon 6March2015.

6.9Dubehas further obtained a variation of the arbitration award from theSSSBCin September2017, in regards to the quantification of theamounts awarded to him in June2012. At the same time, he alsolaunched an application in terms of Rule 11 of the Rules of thisCourt to have the rescission application dismissed. Dube againinSeptember2017 obtained a writ of execution.

6.10On26October2017, the Court ordered that the initial Rule 11application beremoved from the unopposed roll, to be enrolledtogether with the rescission application on the opposed roll as bothmatters hadbecome opposed.

6.11Basedon the writ of execution obtained in September2017, the SAPShad in February2018brought an urgent application seeking thestay of that writ pending the determination of the rescissionapplication which was grantedon 22February2018.

6.12Therescission application together with its application for condonationcame before theCourt and were granted on 5September2018,thus effectively rescinding the default order of 13February2014in terms of which the arbitration award was made an order of Court.

6.13Dubesought leave to appeal against the order of the Court granted on6March2015in terms of which his application for contemptwas stayed pending the outcome of the rescission application. Thatapplication remaineddormant. A further application for leave toappeal was brought by Dube in regard to the order granted on5September2018.The same fate befell it as it remainsdormant.

6.14Despiteall of the above orders, Dube in November2020 obtained yetanother writ ofexecution. The Sheriff, Lenasia, sought to effectattachment on 14December2020. In January2021, Dubebroughtan application in terms of Paragraph 16 of the PracticeManual of this Court to have the SAPS’ review applicationarchived.

6.15Theattachment was subsequently released by the Sheriff on19February2021. TheSheriff however on 11August2021advised the SAPS of its intention to proceed with an attachmentflowing from the writobtained in November 2020.

6.16Inthe light of all the threats and intentions to proceed withattachment on the part ofDube, the SAPS launched an application andobtained an order before Prinsloo J on 26August2021. Itis this order thatis the subject of the contempt proceedings.

6.17Interms of Prinsloo J’s order, the writ of execution dated5November2020was set aside; Dube and Teffo, wereinterdicted from issuing, or causing to be issued and enforcing, orcausing to be enforced,any writ of execution in respect of thearbitration award dated 11June2012, absent certificationof the arbitrationaward in terms of section 143 of the LRA, or theaward being made an order of Court in terms of section 158(1)(c) ofthe LRA.

6.18Itis significant to point out that despite the urgent application thatcame before PrinslooJ having been properly and timeously served,Dube and Teffo failed to either file answering papers or to make anappearance. Instead,Dube and Teffo brought an application seekingthe recusal of Prinsloo J, and further contesting the locus standiof the SAPS’ attorneys of record (Larry Dave Attorneys (LDA)).

6.19Bothwritten objections (or applications) are dated 19 and 25August2021respectively.The application for recusal is purportedly signed byTeffo, whilst the objection related to locus standi of LDA ispurportedly signed by ‘Tlomatsane Attorneys’, who werepurportedly the instructing attorneys. It is not clearwhether theseattorneys remain Teffo’s instructing attorneys.

6.20Copiesof both ‘applications’ are part of the record and it isnot necessaryto state the contents thereof, other than to point outthat in contesting its locus standi and authority to act onbehalf of the SAPS, LDA is accused of a variety of misdemeanours,including unethical conduct, fraud, corruption,and defeating theends of justice. In the same ‘application’, the Sheriff,who was also copied (together with the Ministerof Police, theChairperson of the Portfolio Committee on Police, and the Presidentof the Republic), ‘is directed and instructed’ tocontinue with the attachment and removal of SAPS’ movablegoods.

6.21Prinsloo J in the ‘application for recusal’ was notspared scurrilous and spuriousallegations of impropriety. It appearsthat she is scandalously attacked by Teffo, simply because prior toher elevation to thebench, as counsel, she happened to have been anopponent of Teffo in matters involving SAPS, and at the time when hewas a POPCRUshop steward representing members of the SAPS.

6.22Worststill however, most of Judges of this Court who happened to havepresided over mattersinvolving Teffo previously were equally notspared in the application for Prinsloo J’s recusal, as they heraccused of inter alia, being ‘captured by the Officeof the State Attorney’. Senior members of the SAPS seen tobe reluctant to comply with the arbitration award were not spared ofvituperative allegationsof impropriety either.

6.23Offurther significant however is that in the ‘recusalapplication’, Teffo specificallyindicated that he and Dubewould not form part of the hearing scheduled for 26August2021before Prinsloo J. Indeedthere was no appearance despite email linksbeing sent to them as the hearing was to be conducted virtually.

6.24Ordinarily,any practising legal practitioner would have known that where suchapplicationsand objections were made before a Court, a party raisingthem would have made an appearance before the Court and made itscase.This was however not to be the case in this matter, and theseobjections were filed and served without more.

6.25Uponthe Prinsloo J’s order having been served on Teffo, Dube andTlomatsane Attorneys,Teffo had on 7September2021, fileda founding affidavit in support of what appears to be an ‘applicationforrescission’ of Prinsloo J’s order.

6.26Whatfollowed next was correspondence sent to the Sheriff titled;‘Fraudulent Court Order Case No J2890/2013’. Theessence of that correspondence was that the SAPS, together with LDAand Prinsloo J facilitated a ‘fraudulent court order,which was obtained under circumstances where both Dube and Teffo hadelected not to oppose the urgent application nor to attenditshearing on 26August2021. In the same correspondence, theSheriff was directed and instructed to effect attachmentand removalof the SAPS’ vehicles at Eldorado Park Police Station. TheSheriff was further advised that if he was in doubt,he must confirmthe status of LDA with both the Minister of Police and the NationalCommissioner. For good measure, the Sheriffwas also in thatcorrespondence, furnished with the details of the mobile phonenumbers of both the National Commissioner and theMinister.

[7]TheSAPS contends that by purporting to instruct the Sheriff, Dube, aslegally represented by Teffo, are attemptingto enforce or cause tobe enforced, a writ of execution in respect of the arbitration award,absent the certification of the awardor an application in terms ofsection 158(1)(c) of the LRA, contrary to the order granted byPrinsloo J on 26August2021.

[8]Despitecorrespondence from LDA advising the Sheriff of Prinsloo J’sorder, and that the conduct of Dubeand Teffo in seeking attachmentand removal constituted contempt, Teffo’s sent furthercorrespondence to the Sheriff, informinghim that he was paid byDube, and was therefore instructed to proceed with the removal,failing which he would be reported to the‘Board of Sheriff’.

[9]Theintimidatory, inflammatory, demeaning and racist tone and languageused by Teffo in the correspondenceto the Sheriff cannot bedignified by being repeated in this judgment. The correspondenceremains part of the record, and one canonly express horror anddisbelief that such language can be used by a practicing Advocate andofficer of this or any other Court.Of further significance however,is that Teffo and Dube are clearly intent on disobeying Prinsloo J’sorder, and the Sheriffis being pressurised to effect removal ofSAPS’ property.

[10]Theprinciples applicable in contempt proceedings were recently restatedin Secretary of the Judicial Commission of Inquiry intoAllegations of State Capture, Corruption and Fraud in the PublicSector includingOrgans of State v Zuma and Others as flows;

‘[37]Asset out by the Supreme Court of Appeal in Fakie,and approved by this Court in Pheko II,it is trite that an applicant who alleges contempt of court mustestablish that (a) an order was granted against the allegedcontemnor; (b) the alleged contemnor was served with the order or hadknowledge of it; and (c) the alleged contemnor failed to complywiththe order. Once these elements are established, wilfulness andmalafides are presumed, and the respondent bears an evidentiaryburden to establish a reasonable doubt. Should the respondent fail todischarge this burden, contempt will have been established.’(Citations omitted)

[11]Flowingfrom the background as outlined above, there is no doubt that theCourt order granted by PrinslooJ on 26August2021 wasimmediately served on Dube, Teffo and Tlomatsane Attorneys. There isfurther no doubt that theyare aware of the Court order, haveknowledge of its contents, and fully aware of what is expected ofthem.

[12]Thereis further no doubt that wilfulness and malafides have been established. Thisis borne out by the ‘applications’ for recusal andrescission, combined with various correspondence to the Sheriffadvising it of the ‘Fraudulent Court Order’ andinstructing and directing him to proceed with the removal of SAPS’property. These demonstrates that both Dube andTeffo are not only intent on disregarding Prinsloo J’s order,but also seek to ensure throughintimidatory and inflammatory means,that the writ of execution, which has been set aside, should beexecuted. Worst still, Dube and Teffo haverebuffed any opportunity granted to them to discharge any evidentiaryburden to establish a reasonable doubt,by refusing to oppose theapplications before Court let alone make an appearance to state theircase.

[13]Thewilfulness and mala fides is further evident from the factthat upon the contempt finding having been made on 30September2021,again copies ofthe Court order were served on Dube and Teffo. Theopportunities afforded to both Teffo and Dube to explain theirconduct and toat the very least redeem themselves were equallyrebuffed. Instead, Dube continued to file further papers in regardsto the rescissionapplication which the SAPS has opposed.Effectively, Teffo and Dube continue to conduct themselves as if theorders of this Courtissued on 26August2021 and30September2021 do not exist.

[14]Untilthe contempt finding was made on 30September2021, andupon the order being served, it couldnot have been expected thatTeffo’s conduct could get more egregious than it already was.The icing on the cake was to followon 8October2021,before the hearing was to be held as per the order of the Court dated30September2021.

[15]MsGretchen Anker, an attorney with LDA, out of courtesy attempted totelephonically contact Teffo with aview of reminding him of thehearing to be held virtually. Teffo’s response as per Anker’saffidavit which forms partof the record, was instead shockinglycrude and dehumanising even by his lowest standards, as referred toher as a ‘Fucking bitch’. From this response, itis apparent that ethical and professional conduct, which is expectedof officers of a Court, and whichfurther calls for integrity,fairness, respect, and the avoidance of behaviour which is insultingand demeaning, clearly escapedTeffo, or at worst, he is not as apractitioner, aware of these basics.

[16]Fromthe egregious contempt of Prinsloo J’s orders, the only issuethat remains is what sanction shouldbe imposed on both Dube andTeffo. Mr Hollander for the SAPS sought the most punitive sanction inthe light of the utter disdainshown by both. From the background setout above, it is apparent that their continued disdain for ordersrisks further denigrationof the Court’s authority to carry outits constitutionally mandated functions.

[17]Itis trite that Court orders cannot simply be ignored with impunitysimply because litigants are aggrievedby them. It cannot be thatlitigants and legal representatives routinely approach this Court andobtain favourable orders whichthey promptly seek enforce, yet at thesame time adopt a recalcitrant, disdainful and defiant posture whenadverse orders are grantedagainst them.

[18]Itwas long stated in Phekov Ekurhuleni City[6]thatdisobedience towards court orders or decisions risks rendering ourcourts impotent and judicial authority a mere mockery, andthat theeffectiveness of court orders or decisions is substantiallydetermined by the assurance that they will be enforced. Thus,clearlythe conduct of Teffo and Dube needs to be addressed as a matter ofurgency, in order not only to vindicatethis Court’s authority and the rule of law,but also to ensure that both understand the importance of complyingwith court orders, and to take the appropriate and legallyrecognisable steps when they are aggrieved with such orders, withoutresorting to what effectively amounts to hooliganism.

[19]Theintended appropriate sanction ought to be determined within thecontext of Teffo and Dube’s conduct,which evinced malafides and an unequivocal intention not to comply with the orderin question. To recap, the impugned conduct was accompanied byscurrilousand defamatory attacks against Prinsloo J, the SAPS andLDA. The particular verbal abuse and dehumanisation of Ms Anker whenallshe intended was courtesy to a fellow practitioner is not onlyheinous and inexcusable in the extreme and I intend to address itinmy order to follow.

[20]Theattacks on Prinsloo J and other Judges of this Court in the so called‘recusal application’simply because they happen to havepresided over matters involving Teffo in the past were equallymalicious and unwarranted. Theseattacks are worrisome coming from apractitioner, as they impugn the reputation, dignity and integrity ofnot only this Court butits Judges.

[21]Ithas repeatedly been stated that Judges are not immune from criticism.However such criticism must be fair and be supported byfacts.Litigants cannot simply vent their frustrations with scurrilousattacks on Judges simply because their orders are not whatlitigantsexpected. It cannot be correct that Judges remain easy prey and animmediate source of past-time venting of anger andobject of insults.It is in this respect that I invite Teffo and Dube to substantiatetheir allegations that Judges of this Courtare either corrupt or‘capturedby the SAPS’,and to do so by following proper channels including but not limitedto those provided in the Judicial Services Commission Act[7].If they are incapable of doing that, then they should cease anddesist from attacking Judges of this Court, unless of course suchcriticism has become a hobby for them.

[22]Inthe end, two essential options are available to the Court todemonstrate its displeasure at the disdainthat Teffo and Dube hasshown towards its orders. In fact, the draft orders submitted onbehalf of SAPS envisage both coercive and punitiveorders. A coercive order gives Teffo and Dube an opportunity to avoidimprisonment by complying with PrinslooJ’s order and desistingfrom the offensive conduct. It is my view however that even if thistype of order was to be considered,given the conduct of both asalready outlined and their clear resolve to disobey Prinsloo J’sorder, it is doubted that onits own, such an order will yield thedesired result. The purpose with such orders is to vindicate theauthority of the court thathas been disobeyed. It is therefore inthat regard that such an order is to be granted, it should bereinforced by a punitive orderthat involves a sentence ofimprisonment, should contumacy on the part of Teffo and Dube beevident should the coercive order tobe imposed not yield the desiredresults.

[23]Inconclusion, a further consideration relates to a costs order whichwas granted on 30September2021. Such a punitivecostorder should be confirmed having had regard to what the requirementsof law and fairness dictates as envisaged in section162 of the LRA.The appalling conduct of both Teffo and Dube has been outlinedthroughout this judgment. Both have behaved in themost reprehensiblemanner in not only disobeying an order of this Court but alsocompelling SAPS in having to approach the Courtyet again, incircumstances where both have steadfastly refused to recognise theauthority of this Court and its orders. Clearlya punitive costsorder is appropriate in such circumstances. This is particularly sosince they were warned to desist from haranguingand intimidating theSheriff to execute an order which had been set aside already, failingwhich this Court would be approachedon an urgent basis. Both hadnonetheless ignored the warnings, and the consequences must thereforefollow.

[24]Accordingly,the following order is made;

Order:

1.TheFirst and Second Respondents are found to be in contempt of the orderissued by the HonourablePrinsloo J on 26August2021 underCase Number J 2890/2013.

2.Afine is imposed upon each of the First and Second Respondents in theamount of R50000.00payable at the office of the Registrar ofthis Court by not later than 15h00 on Friday 22October2021.

3.TheFirst and Second Respondents are sentenced to Three Monthsimprisonment in the event ofthe fine mentioned above not being paidtimeously, fully or at all.

4.TheApplicant shall bear the responsibility of ascertaining whether order(2) above has beencomplied with.

5.Inthe event of non-compliance, Members of the South African PoliceService (SAPS) are authorisedand directed to arrest and detain theFirst and Second Respondents wherever they may be found in order togive effect to paragraph(3) as above, and for them to be kept at afacility nominated by the SAPS at its discretion.

6.TheFirst and Second Respondents are further sentenced to three months’imprisonment,wholly suspended for three years, on condition thatthey are not again found to be in contempt of the order granted byPrinslooJ as mentioned above, and during the period of thesuspension.

7.TheRegistrar of this Court is directed to forward a copy of thisjudgment to the Legal PracticeCouncil, to investigate the conduct ofthe Second Respondent in relation to this matter. Particular regardin the assessment ofsuch conduct should be had to;

7.1TheSecond Applicant’s ‘Application for recusal of PrinslooJ’ dated 25August2021;

7.2TheSecond Respondent correspondence of 9September2021addressed to the Office of the Sheriff,Lenasia (Attention Mr OBKhumalo), and titled ‘FRAUDULENT COURT ORDER NO J2890/2013’.

7.3The‘Affidavit in Re: Telephone call with Adv MD Teffo’ asdeposed to by Ms Gretchen Anker,an attorney with Larry DaveAttorneys Inc

8.TheFirst and Second Respondents are ordered to pay the costs of theApplicant, jointlyand severally, the one paying the other to beabsolved, on an attorney and client scale.

EdwinTlhotlhalemaje

Judgeof the Labour Court of South Africa

Appearances:

Forthe Applicant:LHollander, instructed by Larry Dave Attorneys INC

Forthe 1^st & 2^nd Respondents:Noappearance

[2]TheConstitution of the Republic of South Africa, 1996 (Act 108 of 1996)

[3](CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327(CC)

[4]Atpara 1

[5]Act66 of 1995, as amended

[7]Act 9 of 1994