IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case N umbers : J928/2022
J1053/22
J1051/22
J1192/22
In the matter between:
JOSEPH RABBI TSHABALALA & 139 OTHERS First to Further Applicant s
and
MALUTI -A-PHOFUNG LOCAL MUNICIPALITY First Respondent
THE MUNICIPAL MANAGER Second Respondent
FUTHULI MOTHAMAHA Third Respondent
Heard: 22 May 2024
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email, and publication on the Labour
Court’s website. The date for hand- down is deemed to be on 14 May 2025
JUDGMENT
2
TLHOTLHALEMAJE, J
Introduction:
[1] There are four consolidated applications before the Court . They all pertained
to order s sought by the individual applicants, to hold the respondent s to be in
contempt of court for non- compliance with various settlement agreement s entered
into between the parties dating back from 5 May 2015. Those agreement s have
since been made arbitration awards which were certified under the provisions of
section 143 of the Labour Relations Act (LRA)
1.
The individual applications prior to consolidation:
[2] Under Case Number J928/22 launched in July 2022, the individual applicant
sought a contempt finding on the basis of a settlement agreement signed on 5 May 2015 in terms of which the Municipality had agreed to appoint him to post level 4 effective from June 2015.
[3] The basis of the 125 individual applicants’ claim under J1053/22 launched in
August 2022, is an arbitration award issued in terms of which the Municipality was
ordered to pay to them their salaries inclusive of Sundays, public holidays and night
shift allowance, in accordance with the SALGBC collective agreement and the
provisions of the Basic Conditions of Employment Act ( BCEA)
2. The payments were
to be back -dated to October 2015. Against this award and a further settlement
agreement, the individual applicants quantified the amounts due to them as equal to R31.5m, which they presented to the Municipality in January 2018 for payment . They
had caused a warrant of execution in respect of this amount, which warrant was set
aside by this Court under Case Number 57/18 in January 2018.
[4] Some of the individual applicant s under Case Number J1053/22 through
passage of time are unfortunately since deceased. The respondents had object ed to
their inclusion in these matters on account of any lack of evidence of authority to act
1 Act 66 of 1995, as amended.
2 Act 75 of 1997
3
on their behalf by the current legal representative, and further in the absence of proof
of executorship. Counsel for the applicants nonetheless argued that their claim s
remained properly before the Court as those claims were instituted prior to their
unfortunate deaths. It would not be necessary for the Court to deal with this
preliminary point in the light of the conclusions to be reached below.
[5] Under Case number J1051/22 launched in August 2022, the two individual
applicants sought a contempt finding on the basis of an award issued on 12 January
2015. In the award, the Municipality was ordered to ‘investigate’ the issues giving
rise to an alleged unfair labour practice dispute, and that to the extent that unfair
labour practices were established, to rectify them and backdate remedies from
October 2015. In the same token, the award referred to a settlement agreement
entered into in October 2015, and for any payments due to be made.
[6] Under Case Number 1194/22 launched in September 2022, the 13 individual
applicants’ basis for a contempt finding is a settlement entered into between their SAMWU on their behalf and the Municipality in March 2015, in terms of which the
latter agreed to correct or adjust their salaries in accordance with their post levels
from April 2015.
The parties’ respective case s:
[7] The various settlement agreement s and awards followed upon numerous
alleged unfair labour practice dispute that w ere referred to the SALGBC against the
first respondent (Municipality). At the core of the disputes were alleged failures by
the Municipality to appoint the individual applicants to post level 4 as Sports Officers
in the Sports and Culture Directive since June 2015; adjust their post levels and
salary scales , and pay them salaries including payments for Sunday and public
holiday worked, and shift allowances dating back to 2015. In some instances the
disputes pertained to alleged unfair labour practices which t he Municipality was
simply ordered to investigate and rectify to the extent established. Of course any
award from an Arbitrator ordering an employer to ‘ investigate’ alleged unfair labour
practices is for all intents and purposes meaningless , as it is not finally determinative
4
of a dispute. A ll that such an award does is to create further disputes as evident in
this case.
[8] Of importance however from the pleadings, is that it is apparent that
notwithstanding having instituted contempt proceedings in which they seek the
incarceration of the second respondent, t he individual applicants have conceded that
the Municipality did in fact act in accordance with the agreements and the award by
effect ing adjustments of the post levels and salary scales , and also paid to them
certain amounts. This issue will be dealt further below in this judgment to the extent
that it was the respondent’s contention that there was full compliance with the
awards and settlement agreements.
[9] The primary complaint however of the individual applicants , is that the
Municipality did not act in accordance with the agreements or awards . They contend
that despite compliance, this was only with effect from July 2021. They thus claim
non-payment for the adjustments to their salaries for the period between 15 July
2015 and June 2021 , since they contend that arising from those awards, the
payments were retrospective.
[10] In some instance, they also complain that the Municipality did not investigate
whether it had committed any unfair labour practices nor rectified them. I have
already expressed a view in respect of the latter issue and the nature of award
issued in that regard. This is further borne out by the respondents’ contention that there was compliance with that award in that investigations were conducted and
brought to an end as no alleged unfair labour practices were established. The
respondents thus contend that there was nothing to rectify.
[11] The respondents in resisting the contempt applications further contended
that they lacked merit and that there had been full compliance with the settlement
agreements and awards in any event . It was accordingly submitted that the
consolidated applications failed to meet the requirements of contempt. They further
raised two preliminary points upon which it was contended that the applications
ought to be disposed of.
5
The Rule Nisi had lapsed and non -service of orders ?:
[12] The preliminary point pertaining to the non- service of the orders on the
second respondent is an issue which the Court considers appropriate to determine within the within the context of whether the requirements for contempt were met.
Central to the preliminary point is whether the Rule Nisi issued in all the consolidated
applications had lapsed.
[13] The respondents’ contention is that the Rule Nisi granted under J928/22 on
2 September 2022 had lapsed. It was issued with the return date of 3 February 2023
and further extended to 19 April 2023. On the latter date, there was no further
extension granted by the Court .
[14] It was further submitted that the Rule Nisi under Case Number J1053/22 had
equally lapsed. This was so in that it was issued on 14 October 2022 with a return
date of 17 February 2023. It was then extended to 21 April 2023, when it was
removed from the roll without a further extension.
[15] The Rule Nisi is also said to have lapsed under Case Number J1051/22 after
it was issued on 14 October 2022 with the return date of 17 February 2023. It was
submitted that on the return date, the matter was removed from the roll as it was not
ripe for hearing, and without the Rule Nisi being extended.
[16] The application under Case Number J1194/22 is said to have met the same
fate. This was so in that after t he Rule Nisi was issued , on the return date on 4 May
2023, it was simply removed from the roll without it being extended. A further defect
in respect of this application was that the settlement/award forming the subject of
contempt proceedings was at no stage certified under the provisions of section
143(3) of the LRA. Accordingly, it was contended that there was no order upon which
the respondents could be said to have been in contempt of.
Evaluation of the preliminary point :
6
[17] The respondents’ consolidated heads of argument were delivered on or
about 7 May 2024. Notwithstanding the preliminary points raised by the respondents,
the applicant did not deem it necessary to supplement their heads of argument which
were delivered in March 2024. Effectively, the preliminary points were not addressed
by the applicants.
[18] In the proceedings, t he arguments in response to the preliminary point on
behalf of applicants was that these were opportunistic. The sum -total of the response
was that once the respondents had delivered answering affidavit s, one c ould not
speak of an existing interim order that needed any extension to be extant and valid.
The argument as I further understood it, was that once there are answering
affidavits, what was then before the Court was a basis for a final order.
[19] Of course the submissions made on behalf of the applicants lack logic and
any legal foundation. It is trite that contempt applications in this Court are brought ex
parte, and where appropriate, a Rule Nisi will be issued directing the respondents or
calling upon them to appear in court at a future date to show cause why the rule
should not be made final.
[20] A Rule Nisi does not have an indefinite and independent lifespan as it is
interim and conditional upon confirmation by the Court. I n MV Snow Delta Serva
Ship Ltd v Discount Tonnage Ltd
3, it was held that the court has no authority to mero
motu extend the life of a lapsed order, irrespective of whether or not the relief sought
is depended on the existence of the rule nisi . It has also been held that upon the
lapse of the R ule Nisi, the r espondent party is discharged from the duty of
compliance with the terms of that Rule4, which is to come and show cause why the
terms of the Rule should not be confirmed.
[21] Effectively, once a return day passes without the R ule being extended to a
future date by the Court, a mere removal of a matter on the return date or a
3 2000(4) SA 746(SCA)
4 National Director of Public Prosecutions v Walsh & Others 2009 (1) SACR 603 T at paras 24-25
7
postponement without more, invariably implies that the R ule Nisi automatically
lapses , discharging respondents from the duty of compliance5.
[22] In the absence of a revival of the Rule, there are no further obligations on the
respondents . One cannot therefore speak of a final order merely on the basis of
answering affidavits having filed, and when no determination was made either to confirm or discharge the Rule Nisi. A mere filing of an answering affidavit in which a
respondent shows cause why the R ule Nisi should not be made final, does not
automatically make that R ule final. Only a Court can upon the consideration of the
pleadings, make a determination whether the rule is final or may be discharged .
[23] In the end, the lapse of a Rule Nisi and without its revival is fatal to any
future conduct of any application under which the Rule was issued. This means that
this should be the end of these contempt proceedings , to the extent that despite the
raising of this important preliminary point, no attempt was made on behalf of the
applicants to either explain why the various rule nis i had not lapsed, nor had they
sought a revival.
[24] To the extent that it is determined that the various Rule Nisi had lapsed, the
respondents sought that the applications be dismissed. There is no basis for this
Court to accept as the respondents sought, that a lapse of a Rule Nisi called for a
dismissal of the matter. At most, the Court should remove the matter from the roll
with an appropriate cost order, and permit the applicants an opportunity to revive the
Rule. This in my view would ensure fairness and access to justice. This approach is
further based on the principle already alluded to, that a Court cannot mero motu
extend let alone revive a Rule Nisi.
[25] Removing the matter from the roll however does not assist in bringing it to
finality in the light of its history dating back to 2015. Furthermore, t he interests of
justice and convenience will best be served by this Court finally disposing of it.
Importantly, the pertinent issues for contempt were fully canvassed in the papers ,
and all t he parties are likely to suffer prejudice if the matter is not finalized.
5 See SAMWU obo Paul Khalamashe and Others v City of Ekurhuleni & and Another. ( Case
no:J412/2021 . Delivered on 3 May 2023 per Swartz AJ) (Unreported) at pages 19 - 21
8
The legal approach in contempt applications ,and evaluation:
[26] The principles applicable in contempt proceedings are trite. The central
feature of a contempt order is to protect the authority and integrity of the courts. It
has been reaffirmed in various authorities that when a party wilfully disobeys an
order of court and acts mala fide by not taking serious steps to comply therewith, the
order holding such a party in contempt is manifestly justified6.
[27] The applicable principles were restated in Secretary of the Judicial
Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others
7 as follows;
“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. ” (Citations omitted)
8.
(i) The orders and their service:
6 City of Ekurhuleni Metropolitan Municipality and Another v SAMWU obo Gwejane and Others (JA
06/24) [2025] ZALAC 18 (20 March 2025) at para 18
7 [2021] ZACC 18; 2021 (9) BCLR 992 (CC) ; See also Matjhabeng Local Municipality v Eskom
Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited [2017]
ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC ).
2017 (11) BCLR 1408 (CC) at para 74 where the Constitutional Court confirmed the requisites for
contempt of court as follows:
‘I now determine whether the following requisites of contempt of court were established in
Matjhabeng: (a) the existence of the order; (b) the order must be duly served on, or brought
to the notice of, the alleged contemnor; (c) there must be non -compliance with the order;
and (d) the non- compliance must be wilful and mala fide. It needs to be stressed at the
outset that, because the relief sought was committal, the criminal standard of proof −
beyond reasonable doubt − was applicable.’
8 At para 37.
9
[28] The award s and those emanating from the settlement agreements are not in
dispute. Amongst the complaints raised by the Municipality is that to date, there was
no personal service of the orders on the second respondent despite two Court orders
issued compelling the applicants in that regard. The complaint particularly related to
the service of the various Rule Nisi flowing from the ex parte applications launched
by the applicants. In response, it was submitted on behalf of the applicants that
personal service could not be effected on the second respondent who is the Munic ipal Manager, merely on the basis that he was not available .
[29] It is not necessary for the Court to explore whether there is any merit in the
applicants’ response. All that can be said is that it cannot be an acceptable excuse
that an alleged contemnor such as a Municipal Manager , cannot be found for the
purposes of a proper service as per a Court order . The applicants’ response
however fails to appreciate the principal point in contempt proceedings , which is that
a party cannot be in contempt of a court order if it was not made aware of that order
and what was required of it to the extent that it was said to have not complied with
any order. Equally so, a finding of wilfulness or mala fides cannot be inferred in
circumstances where the alleged contemnor has not been properly served with an
order (Rule Nisi). Again, the applicants are found wanting in this regard. However, as
already indicated elsewhere in this judgment , the approach of the Court is to put an
end to this matter as consolidated, notwithstanding the valid preliminary points raised
on behalf of the respondents .
(ii) Alleged non- compliance:
[30] From the pleadings, and to the extent that the settlement agreements and
subsequent arbitration awards were not contested, the respondents ’ case was that
there was compliance flowing from a ‘Conclusive Agreement’ that was concluded
between the Municipality and the representative unions (SAMWU and IMATU).
(Incidentally, neither SAMWU nor IMATU are party to these proceedings) . The
‘Conclusive Agreement’ came about resulting from numerous similar disputes that were pending or finalised with the settlement agreements and awards that are the
subject of these contempt proceedings. The ‘Conclusive Agreement’ was t herefore
meant to resolve all the various disputes.
10
[31] According to the respondents, the objectives of the ‘Conclusive Agreement’
were achieved. It was recorded in that agreement that the placement and
appointment letters in all the disputes already dealt with through arbitration awards, were to be issued on 28 April 2021, and that the process of any remuneration was to
be effected from July 2021. In accordance with that agreement, letters of
appointments were indeed issued to the individual applicants, and as at July 2021,
adjustments to salary scales of the i ndividual applicants were made.
[32] In reply, the individual applicants either sought to disavow the binding nature
of the ‘Conclusive Agreement’ on various grounds including that it was never made an order of Court, and/or that it could not supersede existing awards which formed
the basis of the contempt proceedings . These contentions are in my view not only
disingenuous, but displays an approach of approbating and reprobating. The
applicants had accepted the payments and letters of appointments and adjustments
made to their positions. In ac cordance with the ‘Conclusive Agreement’, its effect
was to take place from 21 July 2021.
[33] As I understood the applicants’ case, they cannot seriously dispute that the
terms of the ‘Conclusive Agreement’ were implemented accordingly, long before they
decided to launch these various contempt applications. Their only complaint is that
contrary to the settlement agreements and awards, the Municipality failed to
retrospectively pay or adjust salaries and positions from July 2015.
[34] Other than the fact that it is impermissible for the applicants to approbate
and reprobate, if indeed they disagreed with the interpretation and the
implementation of the ‘Conclusive Agreement’ in terms of which the respondents had
acted, that is a separate dispute that does not give rise to any contempt finding.
[35] Other than the above, the applicants’ complaint is essentially about non-
payment of amounts which would have accrued arising from the retrospective
implementation of the ‘Conclusive Agreement’. Their underlying cause for the
contempt and incarceration of the respondent is the non- payment of retrospective
payments arising from the implementation of the ‘Conclusive Agreement’.
11
[36] It is trite that the j udgments (court orders) sounding in money may not be
enforced by incarceration through contempt proceedings. The legal position is clear
that a money judgment is enforced by execution9. Accordingly, to the extent that the
applicant clearly seeks payment of monies (retrospective payments ), the relief
sought cannot be obtained through means of incarceration of the second
respondent s.
[37] To the extent that some of the applicants seek that the Municipality must
investigate allegations of unfair labour practices and rectify them, I have already
expressed a view on the vagueness of that award. Effectively , on the application of
the doctrine of effectiveness
10, it is not clear to the Court as to how it would be able
to give effect to such an award. This is particularly so since it is further the respondents’ case that some form of investigation was conducted and no unfair labour practices were established. It follows that any payments due could only have been made flowing from a positive investigation that there were indeed unfair labour practices against the t wo concerned individual applicants under Case Number
J1053/ 22. Notwithstanding, adjustments to the positions and salaries of the
individual applicants affected by the award were effected in April 2021. The Court
cannot take it further than what has already been stated above.
[38] In the end, and to the extent that the respondents had complied with the
settlement agreements and award through the implementation of the equally binding
‘Conclusive Agreement', there can be no basis for any finding of w ilfulness and mala
fides . This is particularly so where it is evident from the facts of this case, that the
Municipality had since the inception of the various disputes, made attempts to settle
the dispute with the applicants , which attempts had culminated in the ‘Conclusive
Agreement’ which terms were implemented.
[39] Against the above observations and conclusions, it follows that it ought to be
invariably held that the applicants have not established a basis for any contempt
9 Jayiya v MEC for Welfare, Eastern Cape 2004 (2) SA 611 (SCA) at paragraph [15].
10 FIFA v Sedibe 2021 JDR 2021 SCA
12
finding to be made against the respondents, and the applications ought to be
dismissed.
[40] I have further had regard to the requirements of law and fairness to the
extent that the respondents sought a costs order against the applicants.
Notwithstanding the fraught working relationship between the parties since 2015,
and their non- disclosure of the existence of the ‘Conclusive Agreement’ in their
respective founding affidavits, it is nonetheless my view that any award of costs is
not warranted. It follows that each party must be burdened with its own costs.
[41] Accordingly, the following order is made;
Order:
1. The various Rule Nisi issued on various dates under Case Numbers:
J928/2022; J1053/22; J1051/22 and J1192/22 as consolidated, are
discharged.
2. The individual applicants’ applications under the above- mentioned
case numbers as consolidated for a contempt of court finding against the
respondents are dismissed
3. Each party is to pay its own costs.
Edwin Tlhotlhalemaje
Judge of the Labour Court of South Africa
Appearances :
For the 1st – Further Applican ts: Adv. Z Feni, instructed by Qhali Attorneys .
For the 1st – 2nd Respondent s: Adv. R Schmidt , instructed by Noge Attorneys .