SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J52/25
In the matter between:
DANIELA KHOZA Applicant
and
ABF LEGEND LOGISTICS (PTY) LTD First Respondent
FOUCHE BLIGNAUT Second Respondent
Heard: 6 May 2025
Delivered: 13 August 2025
JUDGMENT
ENGELBRECHT, AJ
2
Introduction
[1] On 13 March 2025, my sister Madam Justice Phehane ordered the second
respondent (Mr Blignaut), the manager of the first respondent (Legend Logistics), to
appear before this Court on 6 May 2025 to show cause why he should not be held in
contempt for failure to comply with a certified arbitration award under case number
RFBC70675 dated 17 December 2024. Failure to do so could lead to the
respondents being found guilty of contempt, resulting in a fine and/or incarceration.
The order obtained in ex parte proceedings was to be served personally on Mr
Blignaut, and Mr Khoza was to file with this Court proof of service of the order and
the application 10 court days before the hearing – i.e. by 16 April 2025.
[2] On 6 May 2025, the parties appeared before me.
Relevant facts
[3] From 5 May 2019, Legend Logistics employed the applicant (Mr Khoza) as a
truck driver. On 26 April 2023, he was dismissed, having been found guilty on a
charge of dishonesty.
[4] Aggrieved by his dismissal, Mr Khoza referred an unfair dismissal dispute to
the Commission for Conciliation, Mediation and Arbitration (CCMA). Conciliation
failed, and arbitration followed before C ommissioner Mngomenzulu (the
Commissioner). The Commissioner found in Mr Khoza’s favour and awarded
backpay in the amount of R115 184.00 and reinstatement (the Award). It appears
from the documentation serving before this Court that the Award was sent to Legend
Logistics on 6 September 2024.
[5] In this founding affidavit in this application, Mr Khoza states that he reported
for duty on 30 September 2024, but he was told to go home, because Legend
Logistics intended to take the Award on review.
[6] On 4 December 2024, Mr Khoza approached the National Bargaining
Council for the Road Freight and Logistics Industry (NBCRFLI) to have the Award
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certified in terms of section 143 of the Labour Relations Act 1 (LRA). The application
was served on Legend Logistics on 4 December 2024, as appears from a letter from
the NBCRFLI inviting it to make representations, together with the email under cover
of which it was sent to, amongst others, ‘H[…]’.
[7] The certification was signed and issued by the senior commissioner of the
CCMA on 17 December 2024.
[8] Mr Khoza asserts that, despite being fully aware of the Award and its
subsequent certification, Legend Logistics are refusing to reinstate him and to make
payment of the amount contemplated in the Award.
[9] On the basis of these allegations, Mr Khoza obtained the order that called
upon the respondents to provide an explanation or face a finding of contempt.
[10] According to a return of service dated 24 April 2025, the papers in the ex
parte application and the order were served on “ MR MAARTENS – PR CLERK” .
Attempts to serve personally on Mr Blignaut were said to be unsuccessful.
[11] In an affidavit of 5 May 2025, Legend Logistics’ Human Resource Manager
stated that:
11.1. the order of 13 March had not been served personally on Mr
Blignaut;
11.2. the respondents had received the Award of 2 September 2024,
ordering Mr Khoza to report for duty on 30 September 2025;
11.3. Mr Khoza never reported for duty on or after 30 September 2024;
11.4. the respondents had not “ seen any award under case RFBC70676
dated 17 December 2024”; and
11.5. Legend Logistics had learnt from the records of the NBCRFLI that Mr
Khoza had accepted alternative employment.
Preliminary issues
1 Act 66 of 1995, as amended.
4
[12] It is common cause that the ex parte application and the order had not been
served personally on Mr Blignaut. The requirements of the order granted in the ex
parte application in this respect were not met. Mr Khoza’s representative accordingly
indicated an intention to abandon the relief sought against Mr Blignaut. The case for
contempt against Mr Blignaut is no longer before this Court.
[13] The second issue is that there was short service of the order on Legend
Logistics. Its legal representative, however, did not take issue with the short service,
in circumstances where Legend Logistics was placed in a position to file an affidavit
and where its legal representative could make representations to the Court. To the
degree necessary, this Court condones the short service.
The test in contempt
[14] The leading judgment on contempt of court is Fakie NO v CCII Systems
(Pty) Ltd
2 (Fakie). The Supreme Court of Appeal (SCA) explained in that judgment
that:
‘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 es sence 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 functions, should always be maintained’.’
3
[15] It observed, further, that a contempt of court application:
‘[7] … is a most valuable mechanism. It permits a private litigant who has
obtained a court order requiring an opponent to do or not do something (ad
factum praestandum), to approach the court again, in the event of non-
compliance, for a further order declaring the non- compliant party in contempt
of court, and imposing a sanction. The sanction usually, though not invariably,
of court, and imposing a sanction. The sanction usually, though not invariably,
2 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).
3 Ibid at para 6.
5
has the object of inducing the non- complier to fulfil the terms of the previous
order.
[8] 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 enforcement 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.’4
[16] The SCA went on to recount the requisites for contempt as follows:
‘[42] …
(c) In particular, the applicant must prove the requisites of contempt (the
order; service or notice; non- compliance; and wilfulness and mala fides)
beyond reasonable doubt.
(d) But once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in relation to
wilfulness and mala fides: should the respondent fail to advance evidence that
establishes a reasonable doubt as to whether non- compliance was wilful and
mala fide, contempt will have been established beyond reasonable doubt.’
5
[17] There are four points to be highlighted in the present case:
17.1. First, proof of the requirements for contempt – the order, service or
notice, non-compliance, and wilfulness and mala fides – must be established
beyond a reasonable doubt.
17.2. Second, actual service of the order is not required; notification of the
order may suffice.
17.3. Third, the requirement of wilfulness and mala fides suggests that
contempt is committed not only by disregarding the court order but also by
deliberately and intentionally violating the court’s dignity, reputation, or
authority, which this demonstrates; and
4 Fakie at paras 7 – 8.
5 Ibid at subpara 42 (c) and (d).
6
17.4. Finally, the shift of the evidentiary burden onto the respondent to
prove that his non- compliance was not wilful and mala fide, once the first
three requirements for contempt —order, service or notice, and non -
compliance, have been satisfied, implies an inference of wilful and mala fide
non-compliance in such circumstances, which the respondent must then rebut
by providing evidence.
[18] However, as regards the standard of proof, the Constitutional Court in
Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and
Others v Compensation Solutions (Pty) Limited
6 explained that:
‘Summing up, on a reading of Fakie, Pheko II, and Burchell, I am of the view
that the standard of proof must be applied in accordance with the purpose
sought to be achieved, or differently put, the consequences of the various
remedies. As I understand it, the maintenance of a distinction does have a
practical significance: the civil contempt remedies of committal or a fine have
material consequences on an individual’s freedom and security of the person.
However, it is necessary in some instances because disregard of a court
order not only deprives the other party of the benefit of the order but also
impairs the effective administration of justice. There, the criminal standard of
proof – beyond reasonable doubt – applies always. A fitting example of this is
Fakie. On the other hand, there are civil contempt remedies − for example,
declaratory relief, mandamus or a structural interdict − that do not have the
consequence of depriving an individual of their right to freedom and security
of the person. A fitting example of this is Burchell. Here, and I stress, the civil
standard of proof – a balance of probabilities – applies.’
Discussion
[19] In contempt proceedings, the questions to be asked are the following:
19.1. first, is there a valid and binding order, duly granted?
19.2. second, was the order directed at the respondents?
19.2. second, was the order directed at the respondents?
19.3. third, do the respondents have knowledge of the order?
6 2018 (1) SA 1 (CC) at para 67.
7
19.4. finally, did the respondents wilfully and intentionally disobey the
order?
[20] In the present case, the first requirement is clear ly met: before this Court is
an award, certified by the CCMA on 17 December 2024 in accordance with section
143(3) of the LRA.
[21] The second requirement is also met: the award clearly identifies Lege nd
Logistics as the respondent, and Legend Logistics does not contend otherwise.
[22] The third requirement is not so easily disposed of.
[23] The founding papers include the certification of 17 December but do not
allege that the certification award was served on or sent to Legend Logistics. Mr
Khoza relies on an allegation that the respondents are ‘ fully aware of the arbitration
award and its subsequent certification’ . Unfortunately, th e allegation that Legend
Logistics was fully aware of the certification is a conclusion pleaded without factual
basis, which is not acceptable in motion proceedings where affidavits serve not only
as pleadings but also to present the essential evidence supporting the cause of
action.
[24] On behalf of Legend Logistics, the human resources manager states that the
company received the original award dated 2 September 2024; however, the
respondents ‘have not seen any award under case RFBC70676 dated 17 December
2024’. Unfortunately, this denial, phrased in very specific terms referencing a case
number, creates its own issues: firstly, the case number in the affidavit does not
match the one in the court order; secondly, it is clear that the case number in the
order pertains to the certification of the award dated 2 September 2025, and the
respondents seem to rely on a typographical error to avoid addressing the real
question. Due to the detailed manner in which the denial was crafted, there is no
denial before this court of the allegation that the respondents were aware of the
certification.
8
[25] The issue for Legend Logistics is this: section 143(1) of the LRA states that
an arbitration award is final and binding, ‘and it may be enforced as if it were an
order of the Labour Court in respect of which a writ has been issued, unless it is an
advisory arbitration award’ . It is true that section 143(3) states that an arbitration
award may only be enforced after certification, but the award intended for
enforcement remains the original award. In this case, Legend Logistics admits that it
received the original award. Section 143 of the LRA does not require a fresh service
of the certification; it only requires that the applicant seeking to enforce the order has
obtained such certification. Here, it has been shown that Legend Logistics was
aware of the award intended for enforcement through contempt proceedings, and Mr
Khoza demonstrated that he had the award certified prior to initiating the contempt
application.
[26] That, however, is not the end of the matter. I now turn my attention to the
question whether this is a case of wilful and intentional disobedience, which is the
final requirement that must be met.
[27] In Kubeka and others v Ni -Da Transport (Pty) Ltd
7 (Kubeka), the Labour
Appeal Court (LAC) held that:
‘[35] The decision of the Constitutional Court in Hendor therefore leaves
little doubt that a reinstatement order does not restore the contract of
employment and reinstate the unfairly dismissed employees. Rather, it is a
court order directing the employees to tender their services and the employer
to accept that tender. If the employee fails to tender his or her services or the
employer refuses to accept the tender, there is no restoration of the
employment contract. If the employer fails to accept the tender of services in
accordance with the terms of the order, the employee’s remedy is to bring
contempt proceedings to compel the employer to accept the tender of
services and thereby to implement the court order.
services and thereby to implement the court order.
[36] As the employees in Hendor in fact tendered their services and were
reinstated, the Constitutional Court was not called upon to decide what the
position would have been had the employees failed to take up reinstatement
7 [2021] 4 BLLR 352 (LAC).
9
pursuant to the order. However, it follows plainly from the reasoning in both
judgments that an employee granted retrospective reinstatement is not
entitled to any of the contractual benefits of reinstatement, including back pay,
without the contract being restored through actual reinstatement.
…
[38] A requirement that back pay is only due and payable on reinstatement
is in keeping with the remedial scheme and purpose of section 193 of the
LRA. As Mr Watt- Pringle SC, counsel for the respondents, correctly
submitted, if an employee in receipt of a reinstatement order could on the
strength of the order alone claim contractual payment for the retrospective
part of the order without actually seeking reinstatement (tendering prospective
services), it would convert a reinstatement remedy (which requires a tender of
services) into a compensation award (which does not), in excess of the
statutory limitation on compensation awards. Such an outcome would be
inconsistent with the purpose of sections 193 and 194 of the LRA. An unfairly
dismissed employee must elect his or her preferred remedy and if granted
reinstatement must tender his or her services within a reasonable time of the
order becoming enforceable. If reinstatement has become impracticable
through the effluxion of time, for instance where the employee has found
alternative employment, he or she should seek to amend his or her prayer for
relief to one seeking compensation.’ (Emphasis added).
[28] Following the judgment in Kubeka, my sister, Madam Justice Prinsloo, held
in Tshenolo Waste (Pty) Ltd v Sekgoro and Others
8:
‘As was confirmed in Kubeka, there is a crucial difference between an order
for reinstatement and actual reinstatement pursuant to the right to
reinstatement which the reinstatement order grants to an employee. An
employee who is the beneficiary of a reinstatement order can elect not to
enforce it. If the employee does not enforce the order (by tendering services
enforce it. If the employee does not enforce the order (by tendering services
and seeking committal for contempt if the offer is declined) the employment
contract is not restored and the relationship does not resume. There can be
no legal basis for any contractual claim for arrear wages until such time as the
8 (2021) 42 ILJ 2693 (LC) at para 26.
10
contract is restored by the agreement of the employer to accept the tender of
the employees in respect of future services. Rights to backpay flowing from
the reinstatement order can only arise once the contract is restored. Prior to
the employer agreeing to restore the cont ract pursuant to an order to do so,
there is no contract in existence and thus no juridical basis for a claim for
arrear wages.’
[29] The result of these judgments is that, unless Mr Khoza tendered his services
and Legend Logistics accepted the tender, he cannot enforce payment of the arrears
wages under the award. Therefore, in order for Mr Khoza to succeed in these
contempt proceedings, it must be shown that he tendered his services, and that
Legend Logistics failed to accept the tender, in breach of the obligation, thereby
wilfully and intentionally failing to comply with the award.
[30] Legend Logistics says that Mr Khoza did not tender his services. Here,
unlike the case of the narrow denial on knowledge of the certified award, it provides
an expansive denial, asserting that Mr Khoza did not tender his services at all,
whether on 30 September 2024 or thereafter.
[31] This allegation introduces a dispute of fact. I accept that a real dispute of fact
arises most obviously when the respondent denies material allegations made by the
deponents on the applicant’s behalf and produces positive evidence to the contrary,
9
and that a ‘bare denial of [ an] applicant’s material averments cannot be regarded as
sufficient to defeat [ an] applicant’s right to secure relief by motion proceedings ’.10
However, in context, what more can the deponent for Legend Logistics be expected
to say other than that Mr Khoza did not tender his services? It cannot make positive
additional allegations to prove a negative.
[32] Mr Khoza’s representative asked this Court to infer on a balance of
probabilities that Mr Khoza did tender his services. This, because his application for
probabilities that Mr Khoza did tender his services. This, because his application for
certification was made on 8 October 2024, not long after the 30 September date.
9 A C Cilliers, C Loots and H C Nel, ‘ Herbstein & Van Winsen: Civil Practice of the High Courts and
the Supreme Court of Appeal of South Africa’, Juta at p 296.
10 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) ( Room Hire) at
1165.
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Why, the question is rhetorically asked, would he have done so if he had not
reported for duty and been shown the door?
32.1. The issue here is , firstly, the applicable standard of proof . Mr
Khoza’s notice of motion does not explain what the consequence is that he
seeks if Legend Logistics is to be found in contempt, but the ex parte order
envisages imposition of a fine or imprisonment, i.e. criminal consequences,
not civil remedies such as a structural interdict. If the higher standard of proof
applies, it does not assist Mr Khoza to rely on the balance of probabilities.
32.2. The second issue is that, according to Mr Khoza’s version, he only
presented himself for duty once, on 30 September 2025. There is no
allegation in the founding papers that, after he obtained his certification, he
returned to Legend Logistics to offer his services again, this time with the
benefit of the certified order. Why should this Court infer that the application
for certification was made after he presented himself and offered his services?
An application for certification does not prove that Mr Khoz a actually tendered
his services.
32.3. The third point I wish to raise is that, considering the allegation Mr
Khoza makes, he fails to provide any details that would assist the Court in
determining that his version (that he tendered his services) should be
preferred. Had Mr Khoza stated that he visited the offices of Legend Logistics
at a specific time, and identified the person he approached (such as human
resources, the security guard, or the manager), Legend Logistics would have
needed to do more to disprove his claim. However, a simple statement that he
attended and was told there would be a review is easier to dismiss, especially
since there is no evidence before this Court that Legend Logistics actually
initiated such a review.
[33] In the circumstances of the case, where a dispute exists about whether Mr
Khoza presented himself to Legend Logistics, this Court cannot conclude that the
Khoza presented himself to Legend Logistics, this Court cannot conclude that the
non-compliance was wilful.
Conclusion
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[34] Mr Khoza has failed to meet the requirements for contempt. His application
fails, but this Court does not consider it appropriate to grant a costs order.
[35] In the result, I make the following order:
Order
1. The application is dismissed.
2. There is no order as to costs.
M Engelbrecht
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant: S Seepamore
For the respondent: A Kleynhans (Yusuf Nagdee Attorneys)