The applicant was employed by the first respondent as a Security Officer in February 2015 and dismissed on 29 September 2016 following a disciplinary enquiry. The parties entered into a settlement agreement at the CCMA on 27 January 2017, which was subsequently made an arbitration award on 19 April 2017 under section 142A of the LRA. The settlement provided for: (a) retrospective reinstatement on the same terms and conditions; (b) the applicant to report for duty on 1 February 2017 at Pretoria office; (c) assistance with travelling logistics from Polokwane to Pretoria; and (d) payment of rental expenses for February 2017. The applicant alleged he reported for duty on 1 February 2017 but was not reinstated, being told to wait to be contacted about placement. After seven years, he launched contempt proceedings on 6 October 2023. The first respondent contended that the applicant travelled with their HR official (Legodi) from Polokwane to Pretoria, was reinstated and placed at Zambezi office/Beestekraal Mine site, worked for a few days between 24 February and 1 March 2017, then absconded. A telegram was sent on 2 March 2017 requesting his return by 9 March 2017, after which he was dismissed for absconding on 10 March 2017. Time sheets and the telegram were produced as evidence.
The rule nisi issued on 16 November 2023 was discharged. The applicant's contempt application was dismissed. No order as to costs was made, taking into account the circumstances of the case and the nature of the applicant's legal representation.
To establish contempt of court, an applicant must prove: (a) existence of an order; (b) that the alleged contemnor was served with or had knowledge of the order; and (c) non-compliance with the order. Once these elements are established, wilfulness and mala fides are presumed, and the respondent bears an evidentiary burden to establish a reasonable doubt. If the respondent discharges this burden, contempt will not be established. In contempt proceedings based on affidavits where disputes of fact arise, the Plascon Evans principle applies: the court may grant relief if the admitted facts in the applicant's affidavits together with facts alleged by the respondent justify such relief, and where the court is satisfied as to the inherent credibility of factual averments. Substantial compliance with a reinstatement order is sufficient to avoid a contempt finding. Only persons with direct and substantial interest in the matter (such as CEOs, heads of department, owners, proprietors, or municipal managers as contemplated in the Practice Manual/Rules) should be cited as respondents in contempt proceedings, not ordinary line managers or supervisors.
The Court observed that while arbitration awards made orders of court under section 142A of the LRA may have a lifespan of thirty years, this does not mean parties may approach courts at their leisure without regard to the effects of delays. The interests of justice require reasonable explanation for delays, as excessive delays prejudice respondents in mounting meaningful defences and affect the administration of justice. The Court noted it was "perplexing" and "ridiculous" that the first respondent initially denied the validity of the settlement agreement while simultaneously alleging compliance with it, though it acknowledged the respondent's constraints in mounting a defence given the time lapse. The Court also commented that the applicant's explanation for a six-year delay in obtaining legal assistance from Legal Aid "amounts to no explanation at all" and was "not worth any consideration." The Court indicated that applicants making contempt applications must be candid and make full disclosure from the outset in founding affidavits, and that raising new material facts only in replying affidavits raises serious credibility concerns.
This case illustrates the evidentiary requirements for contempt of court proceedings in the labour context, particularly regarding settlement agreements made arbitration awards under section 142A of the LRA. It demonstrates the courts' application of the Plascon Evans principles when faced with disputed facts on affidavit, the importance of credibility assessment in motion proceedings, and the requirement for applicants to make full and frank disclosure from the outset. The judgment emphasizes that delays in bringing contempt proceedings can prejudice respondents and affect the administration of justice, requiring proper explanation even where orders technically have long enforcement lifespans. It also clarifies the proper citation of respondents in contempt proceedings, confirming that only persons with direct and substantial interest (such as CEOs, heads of department, owners, proprietors) should be cited, not ordinary managers or line supervisors. The case reinforces that substantial compliance with reinstatement orders may be sufficient to avoid contempt findings, and that the burden shifts to respondents to raise reasonable doubt about wilfulness and mala fides once prima facie non-compliance is shown.