Nomagugu Kunene and Another v Lexus Security and Another

In September 2022, the Applicants (Kunene and Mncube) approached the Labour Court seeking an order to find the Respondents (Lexus Security and Van Wyk) guilty of contempt of court for failing to comply with a settlement agreement that was made an arbitration award certified under section 143 of the LRA. The settlement agreement, reached on 13 June 2022 at the CCMA, provided for retrospective reinstatement of the Applicants from 11 February 2022, with them required to report for duty on 14 June 2022 at 268 Ontdekkers Road, Roodepoort. The Applicants did report on 14 June 2022 but refused to sign updating information sheets and new employment contracts presented to them, and did not return to work thereafter. The Applicants claimed the Respondent failed to take them back to work, while the Respondent contended they were prepared to reinstate the Applicants at a different site (as the previous client at Ikwezi Mine expelled them), but the Applicants refused to sign necessary documents and subsequently absconded. The Respondent sent letters on 28 June 2022 and later conducted disciplinary proceedings for abscondment, ultimately dismissing the Applicants on 17 August 2022.

• Whether the Respondent failed to reinstate the Applicants as per the certified settlement agreement
• Whether the failure to reinstate amounts to contempt of court
• Whether the Applicants returned to work on 20 June 2022
• What constitutes 'reinstatement' under section 193 of the LRA
• Whether the Applicants proved beyond reasonable doubt that the Respondent's non-compliance was wilful and mala fide
• The requirements for establishing contempt of court in civil proceedings

The application was dismissed. There was no order as to costs.

1. To establish contempt of court, an applicant must prove beyond reasonable doubt: (a) the existence of the order; (b) that the order was served on or brought to the notice of the alleged contemnor; (c) non-compliance with the order; and (d) that the non-compliance was wilful and mala fide. 2. Contempt of court does not consist of mere disobedience of a court order, but of 'contumacious disrespect for judicial authority'. 3. A reinstatement order does not automatically restore the contract of employment; rather, it directs the employee to tender services and the employer to accept that tender. The contract is only restored when the employer agrees to accept the tender of services. 4. If an employee presents for work but the employer refuses to accept them back, the remedy is to bring contempt proceedings, not a contractual claim. 5. Where an employer is prepared to reinstate an employee at a different site due to circumstances beyond its control (such as client refusal), this does not constitute a refusal to reinstate, provided the change does not violate the terms and conditions of employment. 6. An employee who refuses to sign reasonable administrative documents and fails to return to work after initially tendering services cannot succeed in proving that the employer wilfully and mala fide refused reinstatement.

1. The Court expressed concern about matters being referred for 'oral evidence' without specification of the narrow issues to be determined, noting the important distinction between ordering oral evidence on specified issues versus referring a matter to trial. 2. The Court noted that the Labour Court lacks jurisdiction to determine the fairness of a dismissal for abscondment or absence without permission, as such disputes must be pursued at the CCMA through arbitration, not in the Labour Court under section 191(5)(b) of the LRA. The Court emphasized that applicants must identify the provision in the LRA or other law conferring jurisdiction on the Labour Court. 3. The Court observed that if the Applicants had found alternative employment or reinstatement had become impracticable, they should have sought to amend their relief to claim compensation rather than pursuing reinstatement. 4. The Court noted that the Applicants' own statement in their section 142A application ('now we don't want to go back to Lexus Security anymore. What we want is our money') was indicative of their intentions regarding reinstatement.

This case clarifies important principles regarding contempt of court applications in the labour context and the meaning of reinstatement orders. It emphasizes the high threshold for proving contempt (beyond reasonable doubt with wilful and mala fide non-compliance constituting 'contumacious disrespect for judicial authority'), and confirms that a reinstatement order does not automatically restore the employment contract but rather creates an obligation for the employee to tender services and the employer to accept that tender. The judgment reinforces that employers can place reinstated employees at different sites if the original site is no longer available, provided this does not contradict the terms and conditions of employment. The case also underscores that employees must actively cooperate with reasonable administrative requirements for reinstatement and cannot simply refuse to sign necessary documents and then claim the employer is in contempt. It provides valuable guidance on the practical implementation of reinstatement orders and the distinction between an order for reinstatement and actual reinstatement.