Marius Stephanus van der Westhuizen v BDM Management (Pty) Ltd

Van der Westhuizen worked as a boilermaker at Namakwa Sands from 1989, employed through a labour broker, BDM Management (Pty) Ltd. He started losing his hearing in 2007 but continued working. In March 2012, after occupational health testing, the mine's medical practitioner determined he could no longer work in a "noise zone". BDM dismissed him on 16 March 2012. He referred an unfair dismissal dispute to the CCMA. On 28 May 2012, the parties signed a settlement agreement stating that BDM would ensure Van der Westhuizen "is given the first available opportunity for re-employment should a suitable vacancy arise soonest". The settlement agreement was made an order of court on 19 April 2013. BDM did not offer Van der Westhuizen any employment. Six years after dismissal, Van der Westhuizen brought a contempt of court application alleging BDM willfully failed to comply with the court order.

• Whether BDM failed to comply with the settlement agreement made an order of court
• Whether the requirements for contempt of court were established, namely: (a) the existence of a court order; (b) service or notice of the order; (c) non-compliance with the order; and (d) willful and mala fide non-compliance
• What constitutes a 'suitable vacancy' under the settlement agreement
• Whether Van der Westhuizen could work as a boilermaker given medical advice that he could not work in a noise zone
• Whether costs should follow the result in Labour Court proceedings

The application for contempt of court was dismissed. No order as to costs was made.

In contempt of court proceedings, the applicant must prove beyond reasonable doubt: (1) the existence of a court order; (2) service or notice of the order; (3) non-compliance with the order; and (4) that the non-compliance was willful and mala fide. Once non-compliance is proven, the respondent bears an evidential burden to raise a reasonable doubt regarding willfulness and mala fides. Where a settlement agreement contains vague or ambiguous terms (such as "suitable vacancy" without definition), and a party reasonably interprets those terms based on objective circumstances (such as medical advice that an employee cannot work in particular conditions), failure to comply with the agreement will not constitute willful and mala fide contempt. In the Labour Court, costs do not automatically follow the result; costs orders must be made in accordance with the requirements of law and fairness, with courts required to balance not unduly discouraging parties from approaching the court while preventing frivolous litigation.

The court observed that the settlement agreement was "not a model of clarity" and was "drafted in vague terms". The court noted that the agreement did not specify what constituted a "suitable vacancy", who should decide whether a vacancy was suitable, did not refer to the employee's hearing loss and its effect on any jobs, and did not explain what time period "soonest" referred to. The court expressed sympathy for Van der Westhuizen as "an individual who has lost his job through no fault of his own, but rather because of his disability in the form of progressive hearing loss" and noted he "has attempted to secure employment pursuant to a settlement agreement that is not a model of clarity." These observations emphasize the importance of careful drafting of settlement agreements and suggest that parties and practitioners should ensure such agreements clearly define obligations, especially regarding re-employment.

This case illustrates the application of contempt of court principles in the Labour Court context, specifically: (1) the high threshold required to establish contempt (proof beyond reasonable doubt of willful and mala fide non-compliance); (2) the importance of clear and unambiguous drafting in settlement agreements, particularly regarding obligations to re-employ; (3) the interpretation of vague terms like "suitable vacancy" in settlement agreements; (4) the evidential burden that shifts to a respondent once non-compliance is proven; and (5) the distinctive approach to costs in the Labour Court where costs do not automatically follow the result, with fairness considerations weighing heavily, particularly where individual employees seek to enforce their rights.