THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case N o: J419/2 3

In the matter between:
NEHAWU Applicant

and
MINISTER OF PUBLIC SERVICE AND ADMINISTRATION 1
ST Respondent
DEPARTMENT OF PUBLIC SERVICE AND ADMINISTRATION 2
ND Respondent

MINISTER FOR HEALTH 3RD Respondent

DEPARTMENT OF HEALTH 4TH Respondent

EASTERN CAPE PROVINCIAL DEPARTMENT OF HEALTH 5TH Respondent
LIMPOPO PROVINCIAL DEPARTMENT OF HEALTH 6
TH Respondent
NORTH WEST PROVINCIAL DEPARTMENT OF HEALTH 7
TH Respondent
DEMOCRATIC NURSING ASSOCIATION OF SA (DENOSA) 8
TH Respondent

2
POLICE AND PRISONS CIVIL RIGHTS UNION (POPCRU) 9TH Respondent

SOUTH AFRICAN POLICE UNION (SAPO) 10TH Respondent
PUBLIC SERVICE COORDINATING BARGAINING COUNCIL 11
TH Respondent
HEAD OF DEPARTMENT: DEPARTMENT OF PUBLIC SERVICE ADMINISTARTION 12
TH Respondent
Heard: 31 January 2025
Delivered: 20 February 2025


JUDGMENT

TSHISEVHE, AJ
Introduction
[1] Before me is an application for contempt of court wherein the Applicant seeks
the First, S econd and Twelfth Respondents ( the Respondents ) to be found guilty of
contempt of court, for their failure to comply with an order of Thlotlalemaje J of 21
November 2023.
[2] On 29 August 2024, Tlhotlhalemaje J ordered the Respondents to:
2.1 The 1
st Respondent (Mzamo Buthelezi) and the Twelfth Respondent
(Yoliswa Makhasi) are to appear in the Labour Court on 11 October 2024 at 10:00 am to show cause why they should not be found guilty of contempt of
court for failing to comply with the Labour Court order granted by
Tlhotlhalemaje J on 21 November 2023, under case number J1625/23;
2.2 The 1
st Respondent (Mzamo Buthelezi) and the 12th Respondent
(Yoliswa Makhasi) are to explain their conduct and that of the 2nd Respondent
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by way of an affidavit on the date of hearing or, preferably, before that date
(although this will not excuse the 1st and 12th Respondents from being present
in court);
2.3 In the absence of providing an explanation to the court's s atisfactio n, or
failing to appear in c ourt despite being properly served and notified, the 1st
Respondent (Mzamo Buthelezi) and the 12th Respondent (Yoliswa Makhasi)
are to be found guilty of contempt of c ourt, and an order be made in terms of
which:
2.3.1 The 1st Respondent (Mamo Buthelezi) and the 12th Respondent
(Yoliswa Makhasi) are to be incar cerated for such period as the c ourt deems
appropriate; and/or
2.3.2 The 2nd Respondent is to be fined in an amount which the c ourt
deems appropriate; and/or
2.3.3 Other appropriate and/or alternative relief be granted.
2.4. Service of the order and the entire application be effected personally
on the 1st and 12th Respondents as well as the State Attorney, insofar as the
2nd Respondent is concerned;
2.5 The 1st, 2nd and 12th Respondents are to show cause, on the return
date, why they should not be ordered to pay the costs of this application, jointly and severally, the one paying, the other to be absolved, on scale C, and as between attorney and client.
[3] The order was duly served on the 1
st, 2nd, and 12th Respondent as per the
order .
[4] On 10 September 2024, the 1
st and 2nd Respondents filed a notice of intention
to defend.
[5] On 3 October 2024, the 1
st, 2nd and 12th Respondents filed their answering
affidavit .
[6] As a result of the filing of opposing papers, this matter has become fully
opposed.

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Relief Sought

[7] The Applicants seek the First, Second and Twelfth Respondents (the
Respondents ) be found guilty of contempt of court, for failure to comply with an order
of Tlhotlhalemaje J.
[8] The Applicants further seek costs on an attorney and client scale.
Nature of dispute
[9] The applicants argued that the Respondents failed to comply with or
imple ment the court order granted by Tlhotlhalemaje J on 21 November 2023, under
case number J 419/23, in terms of which this c ourt made a settlement agreement,
concluded between the parties an order of this c ourt in terms of Section 158 (1) (c) of
the Labour Relations Act
1 (LRA) .
[10] The crisp of the matter is that in terms of paragraph 1.3 of the settlement
agreement, a positive obligation was created on the respondents to positively deal
with tabled proposals.

[11] The Applicant’s case is that the Respondents failed to positively deal with the
tabled proposals.
[12] On the other hand, the Respondents contend that they complied with the
court order as they positively dealt with the proposals.
[13] The legal requirements set for a contempt application to succeed are clearly
set out below:
13.1 There is an order;
13.2 The Respondents are aware of the order;
13.3 There is non- compliance with the order; and
13.4 The non- compliance is deliberate/ wilful and mala fides .

1 Act 66 of 1995, as amended.
5

[14] The Respondents contend that they complied with the court order and the
application should be dismissed with costs.

Material background facts
[15] On 6 March 2023, NEHAWU and some of its members employed in the public
sector embark ed on a national strike action.
[16] On 14 March 2023, NEHAWU, DENOSA, POPCRU, SAPO and DPSA
representing the government entered i nto a settlement agreement under the
auspices of the PSCBC in respect of the dispute under case number PSCBC251-22/23, which gave rise to the strike and another dispute under case number PSCBC186 -22/23.
[17] On 16 March 2023 the Applicant and Respondents agreed that on 22
November 2018, the Third Respondent wa s granted an interdict by this honourable
court.
[18] The Applicant on 16 March 2023 tabled its residual demands at the PSCBC
as follows:
18.1 Re-open 2022/23 wage negotiations;
18.2 Augment the 3% implemented in 2022 by 4% backdated to 1 April 2022;
18.3 Give all employees in the bargaining unit a R2500.00 housing allowance;
18.4 Review PSCBC Resolution 7/2015, clause 4.5.6.5.3 by allowing employees who resign and who are dismissed to cash out the savings meant to promote home ownership;
18.5 Start negotiations on 1 April 2023 on Minimum Service Level (MSL) agreement and conclude an MSL within six (6) months;
18.6 Start negotiations on the Government Housing Scheme (GEHS) by the
last week of March 2023.
[19] The Respondents submitted that on 17 March 2023 they responded to the
above demands by saying the following:
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19.1 That they supported the demand for an MSL. DPSA tabled a draft MSL
at the PSCBC.
19.2 The demand to amend Resolution 7 of 2015 clause 4.5.6.5.3 to allow
for those who resign or are dismissed to be entitled to receive their
accumulated savings was not supported as it does not support the
government’s effort to promote home ownership;
19.3 The offer already tabled, cost the fiscus 47.4 Billion. The additional
demands are unaffordable. If agreed to would add the following additional
cost to the fiscus:
19.3.1 The demand of R2500.00 housing allowance would cost an additional
R10.5 Billion;
19.3.2 The demand for a 4% augmentation of 3% would cost an additional
R19 Billion;
19.3.3 The total cost for a year would be R66.9 Billion.
19.3.4 The total cost over 3 year period would be R198 Billion.

[20] DPSA pointed out that for 2022/23, they implemented a 3% increase plus a
non-pensionable monthly cash allowance paid to all employees.
[21] The Respondents further submitted that during negotiations with unions in
February 2023, they offered a 3.3% increase plus a non- pensionable monthly cash
allowance that amounted to a 4.2 % increase on the baseline, making the cost of the
increase to the employer amount to 7.5% on the baseline for 2023/24.

[22] The Respondents further argued that the majority of unions accepted that
offer on 31 March 2023.

[23] The Respondents further argued that the offer accepted was as follows:
23.1 The state as an employer offered the translation of the non- pensionable
once off cash payment into a pensionable salary increase, in addition to
the 3.3% Cost of living allowance (COLA).
23.2 They further argued that the above offer had the effect of making cash
allowance pensionable. That resulted in increasing the bottom -line wage
of every employee. The value of the allowance was added to the bottom
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line salary, pension and all other benefits enjoyed by every employee. A
reference to that effect was made to annexure AA1 on page 224 of the
updated index bundle.

[24] In this regard, the Respondents argued that the State complied with the court
order.
[25] They argued further that the 31 March 2023 agreement with the majority
unions in the PSCBC amounts to compliance with clause 1.3.3 of the settlement agreement.

[26] They argued further that after the agreement of 31 March 2023 at the PSCBC,
the Applicant never complained that they never complied with the 14 March 2023 agreement nor did it take any further steps under the LRA to enforce that agreement.
[27] That they heard about the non- compliance for the first time through the media,
which prompted them to reply indicating that they complied with the Court Order.

[28] On 21 November 2023, the above settlement agreement was made an order
of court by Tlhotlhalemaje J.

[29] On 25 July 2024, the Applicant launched an ex parte contempt proceedings
seeking an order that the 1
st, 2nd and 12th Respondents be found guilty of contempt
of court for failing to comply with the order of Tlthotlhalemaje J dated 21 November 2023.
[30] The Applicant argued that the Respondents failed to comply with clause 1.3.3
of the settlement agreement.
‘1.3.3 The employer commits that residual and substantive matters
emanating from 2022/23 wage dispute related to COLA, shall be tabled, positively dealt with and concluded as part of 2023/2024 wage negotiations.’

8
[31] The Applicant argued that the Respondents were duly served with the order of
Tlhotlhalemaje J , together with the settlement agreement but they failed to comply
with the court order and the same constituted contempt of court.

[32] The Applicant submitted that this is despite knowledge of their obligations in
terms of the said order, they deliberately and wilfully/ mala fide refused to comply with
the c ourt order.
The Issue of Contempt and Its Analysis
[33] In deciding an issue of contempt of court, it must be reiterated that the
existence of contempt of c ourt must be established.
[34] I wish to state that the existence of an order is not in dispute. However, the
Respondents deny that they failed to comply with the court order.
[35] The Respondents argued that the then Minister and DPSA became aware of
the settlement agreement which has been made an order of court t hrough media on
29 August 2024.
[36] The Respondents further submitted that the DPSA Director General and the
current Minister only became aware of the contempt applicati on and order in
September 2024.
[37] The Applicant argued that the Respondents flatly refused all the tabled
proposals made by the Applicants, thereby failing to positively deal with those
issues.
[38] I am therefore required to make a determination to establish compliance with
the court order.
[39] The Applicant averred that they seek a coercive order, should I find the
Respondents guilty of contempt of c ourt.

9
[40] During the hearing of this application, I tried to inquire if the Applicant’s
understanding of clause 1.3.3 meant that the Respondents are supposed to give in
to their tabled proposal s. Counsel for the Applicant argued that they were not
expected to agree but to positively engage instead of just a flat refusal on all the
tabled proposals .

[41] It is common cause that all residual matters were tabled for discussion on 16th
March 2023 and were responded to on 17 March 2023 where some were granted
with counter offers/proposals.

[42] It is further common cause that what was proposed by the State/DPSA was
accepted by the majority of unions at the bargaining unit.
[43] The test to determine whether contempt indeed exists was dealt with in Fakie
NO v CCII Systems (Pty) Ltd
2 where the c ourt said:
‘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, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids infraction. Even a refusal to comply that which is objectively unreasonable may be bona fide (though unreasonableness coul d evidence lack of good
faith).
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-compliance 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 the authority that this evinces.'


2 2006 (4) SA 326 (SCA) ; [2006] ZASCA 52 at para s 9 - 10.
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[44] The Applicant correctly draws this court’s attention to the case of General
Secretary, Judicial Commission of I nquiry into Allegations of State Capture v Zuma
and Others ,3 where the court re- emphasised the test for contempt of court, at
paragraph 37 of the judgment the court held that:
‘As set 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
must establish that (a) an order was granted against the alleged contemnor;
(b) the alleged contemnor was served with the order or had knowledge of it;
and (c) the alleged contemnor failed to comply 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. Should the respondent fail to discharge this burden, contempt will have been established.’

[45] As held in Pheko II —
‘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 a
reasonable doubt as to their existence. Should the contemnor prove
unsuccessful in discharging this evidential burden, contempt will be
established.’
4
[46] The Constitutional Court recently in Pheko and Others v Ekurhuleni
Metropolitan Municipality and Another
5 dealt with the ratio in CCII Systems and then
summarized the position when it comes to considering whether contempt of court
exists, as follows:
‘Contempt of court is understood as the commission of any act or statement that displays disrespect for the authority of the court or its officers acting in an official capacity. This includes acts of contumacy in both senses: wilful disobedience and resistance to lawful court orders. This case deals with the latter, a failure or refusal to comply with an order of court. Wilful disobedience

3 2021 (5) SA 327 (CC) ; [2021] ZACC 28 .
4 Pheko v Ekurhuleni City (Pheko II) 2015 (6) BCLR 711 CC at para 28.
5 2015 JOL 33198 (CC).
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of an order made in civil proceedings is both contemptuous and a criminal
offence. The object of contempt proceedings is to impose a penalty that will
vindicate the court's honour, consequent upon the disregard of its previous
order, as well as to compel performance in accordance with the previous order.’

[47] The c ourt then concluded:
6
‘The term civil contempt is a form of contempt outside of the court, and is
used to refer to contempt by disobeying a court order. Civil contempt is a
crime, and if all of the elements of criminal contempt are satisfied, civil
contempt can be prosecuted in criminal proceedings, which characteristically
lead to committal. Committal for civil contempt can, however, also be ordered in civil proceedings for punitive or coercive reasons. Civil contempt proceedings are typically brought by a disgruntled litigant aiming to compel another litigant to comply with the previous order granted in its favour.’
[48] In the context of employment dispute resolution specifically, the issue of
contempt of court most often arises in cases where employers fail to comply with
arbitration awards issued by the CCMA or bargaining councils, where it is required
that an employer takes positive action pursuant to a finding of unfair dismissal or
unfair labour practice against the employer. It can also occur when an employer or
party fails to comply with an order of court.

[49] In the matter in cas u, the Applicant argued that the Respondents failed to
comply with an order of this court in that they failed to positively engage them as outlined in the court order.
[50] My understanding of a positive obligation to ‘ positively engage the Applicant’
simply means that parties must engage in good faith and this view was equally
supported by both the legal representatives of the parties herein including that of the
Applicant .


6 See para 30.
12
[51] The Respondent argued that all employees from the lowest paid to the
highest earning employee were given an increase in cost of living allowance (COLA)
adjustment amounting to between 7.5% and 11.5% which is way higher than what
the Applicant proposed.7

[52] However, the Applicant argued that even if the offer was implemented at that
percentage, it did not address the tabled proposal of the Applicant as the offer was only implemented effective 1 April 2023, whereas the Applicant wanted it to be
effective from 1 April 2022.
[53] I should state that the Applicant conceded that the implementation was
effected and their members benefited from same at the time of its implementation.
[54] If that is the case, where did the Respondents fail to comply? if any . From the
reading of the papers and arguments before me. It is clear that, even if the majority
of unions in the bargaining unit did not accept the offer from the Respondents, it is
clear that the Respondents engaged the Applicant in good faith.

[55] Now that the Respondents’ offer was accepted by the majority of unions, the
contempt of court application should not have been launched as it stands to fail. I
say so because the Respondent positively engaged the Applicant . Moreover, the
Applicant should have been aware that they are bound by the decision of majority of
unions as the principle of majoritarianism should prevail.
[56] It is important to state that the principle of m ajoritarianism is not defined in the
LRA, but the Constitutional Court has explained that it merely means that the will of the majority will prevail over that of the minority.
8

[57] In essence, the principle of majoritarianism states that the majority’s will
prevails over that of the minority.9 This is reflected throughout the LRA.10 In Kem-Lin

7 See page 224 of the updated bundle.
8 Transport and Allied Workers Union of S outh Africa v Putco Ltd 2016 4 SA 39 (CC) ; [2016] 6 BLLR
537 (CC) at para 61.
9 Kem-Lin Fashions CC v Brunton and a nother (Kem -Lin Fashions) 2001 22 ILJ 109 (LAC) ; [2000]
ZALAC 25 at para 19.
13
Fashions , Zondo JP underscored that majoritarianism resulted from a conscious
policy choice made by the Legislature when formulating the LRA.11

[58] When a majority union enters into a collective agreement with an employer
which identifies and binds non- parties, such agreement will be binding upon minority
unions. According to Baskin and Satgar,12 the LRA is profoundly majoritarian.

[59] The Respondent in my view positively engaged the Applicant in line with
clause 1.3 in that majority if not all tabled proposals of the Applicant were responded
to even though some of them were not favourably considered due to the reasons
adumbrated in paragraph 19 supra.

[60] In my view, clause 1.3.3 of the settlement agreement only created a positive
obligation on the Respondent to continue with the consultations, obviously in good
faith. It would therefore be unfair t o expect that the Respondent was supposed to
accept all the tabled proposals even if it was financially impossible for them. Same
would have been against the spirit of collective bargaining.

[61] Pursuant to the above, I am not convinced that the Respondents failed to
comply with the court order.

Conclusion

10 The LRA affords majority trade unions a number of benefits. See, for example, section 14(1) (the
right to appoint trade union representatives); section 16 (the right to information); section 18 (the right
to establish thresholds of representativeness); section 26(2) (conclusion of agency shop and closed
shop agreements); and sections 80 and 81 (establishment of workplace forums and choice of
members from its elected representatives to serve on the trade union forum) See further section
23(1)(d), which allows the extension of collective agreements to employees that are not members of a
majority trade union.
11 In Kem-Lin Fashions case where, the same court reiterated that the majoritarianism system was a
policy decision chosen by legislatures which is good not only for collective bargaining but also good
democratisation of the workplace. The Court further pointed out the Constitutional case of Association
of Mineworkers and Construction Union and others v Chamber of Mines of South Africa and others
[2017] 7 BLLR 641 (CC) ; (2017) 38 ILJ 831 (CC), where the Court in essence held that
majoritarianism is part and parcel of the LRA. As mentioned above the majority union enj oys certain
privileges and the c ourt stated that in order to enhance these privileges, the majority union may enter
into a collective agreement with an employer, which was done by NUM and UASA and which is being
disputed by AMCU as the sought to set the collective agreement aside. The Act defines what a collective agreement is and in the definition it provides that the agreement which concerns terms and
conditions of employment or any other matter which is matter of mutual interest, and this collective
agreement binds parties to the agreement, and non- parties to the agreement.
12 Baskin and Satgar 2019 South African Labour Bulletin 12.
14

[62] Having considered the submission by the parties I find that the Respondents
complied with the Court Order.

[63] Succinctly put , the Applicant failed to m ake out a case for contempt of c ourt
and their application stands to fail.
[64] The application was egregious and meritless. The Applicant failed dismally to
convince this court that the Respondents failed to comply with the court order.

Costs

[65] The Applicant’s conduct was irresponsible and caused the Respondents to
incur unnecessary costs to defend this application.
[66] I have had regard to the requirements of law and fairness in considering costs
and having done so, I am of the view that a cost order is warranted in this matter.

[67] In the premises, I make the following order:

Order
1. The application is dismissed with costs .

N Tshisevhe
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Adv G. Fourie SC
Adv N. Deeplal
Instructed by: Scholtz Attorneys
For the Respondent: Adv T . Bruinders SC
Instructed by: C.N. Phukubje Inc. Attorney