THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no : J90/2024
In the matter between:
RAIN MUDADI Applicant
and
COENG CONSULTING AND CONSTRUCTION First Responde nt
ENGINEERS (PTY) LTD
CASIAN DENDERE Seco nd Respondent
TAKALANI MBEDZI Third Respondent
WILHEMINA JEMINA SKOSANA Fourth Respondent
Heard : 19 November 2024
Delivered : This judgment was handed down electronically by emailing a copy
to the parties on 17 January 2025 . This date is deemed to be the date of
delivery of this judgment.
Summary: Application to hold respondents in contempt following failure to
comply with a court order dated 30th January 2024 . Applicant failed to prove
that non -compliance was wilful and mala fides beyond a reasona ble doubt.
Respondent ordered to comply with paragraph 4 of the court order dated 30th
January 2024.
JUDGMENT
PHAKEDI , AJ
Introduction
[1] The Applicant approached the Labour Court seeking an order to hold the
second and third respondents in contempt o f court for their failure to comply
with the court order dated 30 January 2024. The relevant parts of the said
order which the applicant seeks to enforce read as follows:
1.1 The disciplinary proceedings against the applicant and any
intended application by t he applicant to set aside the Resolution
authorising his suspension and disciplinary action are stayed
pending the finalization of the sale of the shares as set out
below.
1.2 The applicant will remain suspended on full pay as an employee
pending the sale of s hares of the Rain Mudadi Family Trust the
50% shareholder in Coeng Holding (Pty) Ltd (the sale of the
shares), alternatively, pending finalisation of the application.
1.3 ……….
1.4 ………….
1.5 ………….
1.6 …………
1.7 ………….
1.8 ………….
1.9 ……………
1.10 …………
1.11 If no agreement is reached in respect of the purchase of the
shares within 30 days of receipt of the last received valuation
and no later than 30 April 2023, the negotiations would be
deemed as having failed and any dispute about the value of the
shares will be referred to arbitration.
[2] On 17 Octob er 2024, Seedat AJ issued a rule nisi inter alia ordering the
second and third respondent to file an explanatory affidavit as to why they
should not be found guilty of contempt of court and to appear in court on 19
November 2024 . Seedat AJ ordered that the application together with the
court order be served personally upon the second and third respondent s and
further that the respondents must pay the costs of the application for
contempt.
[3] The application together with the court order were personally served on the
third respondent who filed an explanatory affidavit on 5 November 2024 . The
applicant thereafter filed a replying affidavit on 18 November 2024 and the
third respondent took an issue with the late filing of the replying affidavit.
However , the resp ondent did not file a notice of objection and instead filed
supplementary affidavit alleging that the replying affidavit introduced new facts
and evidence .
[4] The third respondent persisted with his point in limine that the replying
affidavit is not properl y before court , and the applicant contended that the third
respondent is not allowed to file a supplementary affidavit without the leave of
the court. I then directed that the matter be heard on merits because Rule 58
of the Labour Court Rules which regula tes contempt proceedings does not
prescribe a period within which a replying affidavit ought to be filed .
[5] Both parties submitted heads of argument and they were very helpful to the
court. The applicant argued that the respondents are in contempt of a court
order and must be found guilty of contempt. The third respondent argued that
the applicant himself failed to comply with certain terms of the court order and
he has since been dismissed from his employment with the respondents.
Background facts
[6] The applicant was employed by the Respondents as an employee and he was
also holding a position of a director. O n or during January 2024 he was
served with a charge sheet detailing certain allegations of misconduct levelled
against him. He then challenged the r esolution to charge him on an urgent
basis and the parties on 30 January 2024 entered into a settlement
agreement which was ultimately made an order of Court.
[7] The respondents partially complied with the terms of the court order in that the
applicant rece ived his salaries from January until June 2024 and he remained
on suspension with full pay . However, the respondents did not pay the
applicant his salary from the month of July 2024 until the application for
contempt was filed.
[8] The respondent raised a num ber of defences resisting the application brought
by the applicant and alleged that the applicant did not place all the facts
before court at the hearing of the application on 30 January 2024 , the
applicant unilaterally terminated his employment with the f irst respondent, the
applicant refused to sign bank guarantees in his capacity as director of the
first respondent which resulted in the first respondent failing to pay salaries for
the month of October 2024, the applicant is guilty of contempt in that he failed
to return all the assets belonging to the first respondent, he failed to attend
board meetings despite being invited , and he attempted to poach work for his
new employer, ZAENG Consulting and Construction Engineers , the applicant
committed fraud in that his qualifications appear to be fraudulent, he facilitated
fraudulent medical payments for his life partner, he caused the respondent to
suffer revenue losses and he failed to disclose a vehicle he purchased using
the first respondent’s resources and the vehicle remains in his possession
despite the order clearly stating that he must return the property belonging to
the first respondent. As a result of all these allegations, the respondent then
elected to terminate the contract of employment it held wi th the applicant.
[9] The applicant was removed as a director of the first respondent in terms of
section 71(3) of the Companies Act1 on 17 October 2024 and subsequently
dismissed in absentia on 1 November 2024.
[10] The applicant contends that the respondents ar e guilty of contempt in that the
defences raised to not disclose a bona fide mistake for non -compliance with
the court order.
Contempt of court orders
[11] It is trite that compliance with court orders is an issue of fundamental concern
for a democratic soci ety that seeks to base itself on the rule of law and
supremacy of the Constitution. The leading case dealing with contempt of
court is Fakie NO v CCII Systems (Pty) Ltd2 (hereafter referred to as “Fakie ”)
where the Supreme Court of Appeal per Cameron JA he ld that :
‘[6] It is a crime unlawfully and intentionally to disobey a court order.
This type of contempt of court is part of a broader offence, which
can take many forms, but the essence of which lies in violating
the dignity, repute or authority of the court. The offence has, in
general terms, received a constitutional 'stamp of approval',
since the rule of law - a founding value of the Constitution -
'requires that the dignity and authority of the courts, as well as
their capacity to carry out their fu nctions, should always be
maintained.
1 No. 71 of 2008
2 2006 (4) SA 326 (SCA) at para 6 .
[7] In the hands of a private party, the application for committal for
contempt is a peculiar amalgam, for it is a civil proceeding that
invokes a criminal sanction or its threat. And while the litigant
seeking enforc ement has a manifest private interest in securing
compliance, the court grants enforcement also because of the
broader public interest in obedience to its orders, since
disregard sullies the authority of the courts and detracts from the
rule of law.
[8] The test for when disobedience of a civil order constitutes
contempt has come to be stated as whether the breach was
committed ‘deliberately and mala fide’. A deliberate disregard is
not enough, since the non -complier may genuinely, albeit
mistakenly, believ e him - or herself entitled to act in the way
claimed to constitute the contempt. In such a case good faith
avoids the infraction. Even a refusal to comply that is objectively
unreasonable may be bona fide (though unreasonableness
could evidence lack of goo d faith) .
[9] These requirements - that the refusal to obey should be both
wilful and mala fide, and that unreasonable non -compliance,
provided it is bona fide, does not constitute contempt accord
with the broader definition of the crime, of which non -comp liance
with civil orders is a manifestation. They show that the offence is
committed not by mere disregard of a court order, but by the
deliberate and intentional violation of the court’s dignity, repute
or authority that this evinces. Honest belief that n on-compliance
is justified or proper is incompatible with that intent.”
[12] At para 42, Cameron JA (as he then was), succinctly set out the requirements
for contempt. The SCA held that an applicant must prove all the requirements
for contempt : existence of the order; service of the order; non -compliance;
wilfulness and mala fides , and all these elements must be proved beyond
reasonable doubt. The applicant bears the onus to prove that the respondent
is guilty of contempt. However, once the applicant has prov en the existence of
the order, service or notice of the order, and non -compliance, then the
respondent bears an evidential burden in relation to wilfulness and mala fides .
If the respondent fails to advance evidence that establishes reasonable doubt
as to whether the non -compliance was wilful and mala fide then contempt will
have been established beyond reasonable doubt.
[13] The Constitutional Court revisited the issue of contempt of court proceedings
in Pheko and others v Ekurhuleni City3. The court endorse d the findings in
Fakie , and confirmed that “civil contempt”, a form of relief sought through civil
proceedings, relates to conduct ex facie curiae apropos a wilful disregard of
order of court. The court also confirmed that because civil contempt is a
criminal offence, it may also be determined through criminal proceedings, the
object of which would be punitive. The court held that civil contempt may be
both punitive and coercive, but usually it is only coercive (upholding the
dignity of the court by coerci ng compliance with the court order).
[14] The rule of law, a foundational value of the Constitution, requires that the
dignity and authority of the courts be upheld. This is crucial, as the capacity
of the courts to carry out their functions depends upon it. As the Constitution
commands, orders and decisions issued by a court bind all persons to whom
and organs of state to which they apply, and no person or organ of state may
interfere, in any manner, with the functioning of the courts. It follows from this
that disobedience towards court orders or decisions risks rendering our courts
impotent and judicial authority a mere mockery. The effectiveness of court
orders or decisions is substantially determined by the assurance that they will
be enforced.”4
[15] In Federation of Governing Bodies of South Africa African Schools (Gauteng)
v MEC for Education, Gauteng5 the Court unequivocally held that 'contempt of
3 2015 (5) SA 600 (CC) .
4 Pheko supra at para 1 .
5 2002 (1) SA 660 (T) at 6730 -E
court is not an issue inter parties; it is an issue between the court and the
party who has not complied wit h a mandatory order of court. ’
Analysis
[16] In order to give rise to contempt, a litigant’s non -compliance must be ‘wilful
and mala fide’ . This means that the second and third respondent must
deliberately defy the court order and must have wilfully and mali ciously failed
to comply with the court order dated 17 October 2024.6 The SCA in Fakie has
already laid down the law that a deliberate disregard of the court order is not
enough to establish contempt. The next question is whether the second and
third respo ndents ’ non-compliance with the order was wilful and mala fides ?
[17] As stated above, the practice in this Court is that an applicant who seeks an
order finding the respondent guilty of contempt must comply with the
provisions of Rule 58 of the Labour Court Rules. The Rules require personal
service of the order on the responsible respondent (Directors ), the respondent
to file an explanatory affidavit explaining to the court why he should not be
found guilty of contempt and that the respondent despite having f iled this
affidavit, he must still attend court on the date stated in the court order. The
Applicant in this matter has proven these requirements and the burden now
shifts to the Second Respondent.
[18] The Constitutional Court confirmed the decision by the S upreme Court of
Appeal in Fakie (supra) and held in paragraph [36] that the decision creates a
presumption in favour of the Applicant in that:
'Therefore the presumption rightly exists that when the first three
elements of the test for contempt have been established, mala fides
and wilfulness are presumed unless the contemnor is able to lead
evidence sufficient to create reasonable doubt as to their existence.
6 See: Matjh abeng Local Municipality v Eskom Holdings Ltd and others 2018 (1) SA 1 (CC).
Should the contemnor prove unsuccessful in discharging this evidential
burden, contempt will be established.
[19] I have had regard to the defences raised by the respondents and although I
do not find that the non -compliance is wilful and mala fide, I agree with the
applicant that the respondents were at all material times aware that they have
an option to apply to the Court for a variation of the court order dated 30
January 2024. The non -compliance with the court order was mandatory until
the said order is varied or set aside.
[20] I have also taken into account the fact that the respondents have since
termi nated the contract of employment of the applicant and he has remedies
available to him to challenge the said dismissal. As such, it would be f utile for
this court to enforce the provisions of paragraph 4 of the order dated 30
January 2024 which states that ‘the applicant will remain an employee on
suspension will full pay pending the sale of shares. ’
[21] The sale of shares held by the applicant through Rain Mudadi Family Trust in
the First Respondent is regulated by paragraphs 5, 6, 7, 8, 9, 10 and 11 of the
court order. Paragraph 11 unequivocally states that:
11. “If no agreement is reached in respect of the purchase of the
shares within 30 days of receipt of the last received valuation
and no later than 30 April 2023, the negotiations would be
deemed as having f ailed and any dispute about the value of the
shares will be referred to arbitration.”
[22] Accordingly, I find that the applicant has not proven beyond a reasonable
doubt that the respondents are guilty of contempt of court by failing to comply
with the provi sions of the court order dated 30 January 2024 and the court
order dated 17 October 2024. However, this does not mean that the
respondents are entitled to disregard the said orders as such would create a
mockery of the justice system and bring the courts i nto disrepute.
[23] Finally, in determining whether the respondents are guilty of contempt, I have
taken into account that in contempt proceedings there is no onus on the
respondent, but merely an evidentiary burden to create a reasonable doubt as
to the exis tence of wilfulness and mala fides. In this matter, the respondents
have discharged the necessary evidentiary burden creating reasonable doubt
in respect of their wilfulness and mala fide conduct for their non-compliance
with the court order dated 30 Janua ry 2024.
Costs
[24] Both parties argued that they should be awarded costs against the other
based on the manner in which they conducted themselves since the issuing of
the court order on 30 January 2024 . However, I must express my
discontentment regarding the manner in which this matter was conducted by
both parties. The applicant knew that his matter was scheduled to proceed on
19 November 2024 but only filed his replying affidavit at the late hour on 18
November 2024 . The answering affidavit is voluminous containing some
annexures which were not relevant to the application before me.
[25] I have had regard to section 162 of the LRA which empowers this court to
award costs in accordance with the requirements of the law and fairness. Both
parties failed to comp ly with Rule 29 (3) of the Labour Court Rules and I do
not believe that it is in the interests of justice and fairness that I award a costs
order against the other . I am therefore of the view that it is just and equitable
to make an order that each party m ust be burdened with their own costs.
[26] Section 158(1)(a)(iii) of the LRA provides that t he Labour Court may make
any appropriate order, including an order directing the performance of any
particular act which order, when implemented, will remedy a wrong and give
effect to the primary objects of the LRA.
[27] Accordingly, the following order is made :
Order
1. The rule nisi issued on 17th October 2024 is discharged in its entirety .
2. The second and third respondents are ordered to pay the Applicant his
unpaid salaries from July 2024 until 30 November 2024 within thirty
(30) days of receipt of this order .
3. There is no order as to costs.
_______________________
G. C. Phakedi
Acting Judge of the Labour Court of South Africa
Appearances :
For the Applicant: Adv F Storm
Instructed by: Naude Dawson Attorneys
For the Respondent: Adv T Masvika
Instructed by: EMG Attorneys