THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: J661/23
In the matter between:
SOLIDARITY Applicant
and
MINISTER OF EMPLOYMENT AND LABOUR First Respondent
DEPUTY MINISTER OF EMPLOYMENT AND LABOUR Second Respondent
DEPARTMENT OF EMPLOYMENT AND LABOUR Third Respondent
THE DIRECTOR GENERAL OF THE
DEPARTMENT OF EMPLOYMENT AND LABOUR Fourth Respondent
Heard: 24 July 2025
Delivered: 3 September 2025
(This judgment was handed down electronically by emailing a copy to the
parties. The 3
rd of September 2025 is deemed to be the date of delivery of this
judgment).
JUDGMENT
2
ITZKIN, AJ
Introduction
[1] These proceedings have arisen in the context of a settlement agreement
concluded between the Republic of South Africa (represented by the erstwhile
Minister of Employment and Labour, TW Nxesi) and Solidarity, following the initiation
of two sets of proceedings by Solidarity.
[2] The first set of proceedings was launched in this Court under case number
J661/23, to declare sections of the Employment Equity Amendment Act
1
unconstitutional. The second set of proceedings involve s a complaint referred to the
International Labour Organi zation (ILO) by Solidarity against the Republic of South
Africa.
[3] The ILO complaint was referred to a mediation process , which was facilitated
by the Commission for Conciliation, Mediation and Arbitration. The settlement
agreement, which was concluded on 28 June 2023, was the product of that
mediation. It contained a clause in which it was agreed that it would be made an
order of court. On 31 October 2023, it was made an order of court in the first set of
proceedings (under case number J661/23).
[4] Regulations under the Employment Equity Act
2 (EEA) were gazetted on 15
April 2025. According to Solidarity, the Minister acted in contempt of the court order
(incorporating the settlement agreement) on the basis that the contents of the
settlement agreement were not gazetted with the regulations on 15 April 2025.
[5] It is on this basis that Solidarity seeks an order
requiring the Minister (who is
currently Minister N Meth) to appear and show cause why a finding of contempt
of court should not be made against her.
1 Act 4 of 2022.
2 Act 55 of 1998.
3
Analysis
[6] The leading judgment on the principles applicable to contempt of court
proceedings is Fakie.
3 In it, the Supreme Court of Appeal (SCA) (per Cameron JA,
as he then was) undertook a detailed consideration of the nature of contempt
proceedings and the principles applicable thereto, which were summed up as
follows:
‘[42] T o sum up:
1. The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives constitutional scrutiny
in the form of a motion court application adapted to constitutional
requirements.
2. The respondent in such proceedings is not an ‘accused person’, but is
entitled to analogous protections as are appropriate to motion proceedings.
3. 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.
4. 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. A declarator and other appropriate remedies remain available to a civil
applicant on proof on a balance of probabilities.’ (Emphasis added)
[7] The principles enunciated by the SCA in Fakie have been espoused in
several subsequent judgments, including by the Constitutional Court.
4
[8] Rule 58 of the Labour Court Rules envisages a bifurcated process.
3 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA).
4 See, for instance, Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) [2015] ZACC 10;
2015 (5) SA 600 (CC) at para 25.
4
[9] The first part of the process (referred to herein as ‘stage 1’) involves an
application launched on an ex parte basis in motion court, where in the applicant
seeks an order requiring the respondent to appear and show cause why a
finding of contempt of court should not be made. 5 The second part of the process
(referred to herein as ‘stage 2’) ensues if such an order is made.
[10] In these stage 1 proceedings, the requirements pertaining to the existence of
the order and notice thereof on the part of the Minister are established.
[11] With these requirements having been addressed, w hat (if anything) must be
established at stage 1 concerning a breach of the order ? In particular , must the
Court be satisfied that a breach has been established before it grants an order
calling on the Minister to show why she should not be held in contempt (which may
be shown through the absence of wilfulness and mala fides)?
[12] A requirement that a breach must be established presents several difficulties.
It would mean that the Court makes such a determination in ex parte proceedings in
relation to a party who is not heard regarding his/her alleged breach. A definitive
determination in stage 1 may also preclude the question of breach from being
revisited in stage 2 when both parties are before the court, based on the principles
on res judicata or issue estoppel.
[13] In the present matter, there are potentially complex questions about the
interpretation of the settlement agreement (incorporated into the court order), which
may have to be considered in assessing whether there was a breach.
[14] The settlement agreement reads as follows:
‘Following the Applicant's article 24 representation to the ILO, and the
conciliation process as facilitated by the CCMA, the parties are desirous to
settle the above-mentioned dispute as follows:
a) Affirmative action is a coherent packet of measures, of a temporary
nature in line with the Constitution, aimed specifically at correcting the position
nature in line with the Constitution, aimed specifically at correcting the position
5 Rule 58(1).
5
of members of a target group as defined in the Employment Equity Act in the
workplace, in order to obtain effective equality;
b) Affirmative action shall be applied in a nuanced way, as embodied in
this agreement, and the economically active population statistics will only be
one of many factors that will be taken into account in the compliance analysis
of affirmative action in any workplace;
c) No absolute barrier may be placed upon any employment practices
affecting any persons from any group;
d) For the purpose of preparing and implementing an employment equity
plan and reporting and compliance analysis of affirmative action in any
workplace, the following criteria must be taken into account -
• Inherent requirements of the job;
• The pool of suitably qualified persons;
• The qualification, skills, experience and the capacity to acquire, within
a reasonable timeframe, the ability to do the job;
• The rate of turn-over and natural attrition within a workplace;
• Recruitment and promotional trends within a workplace.
e) In the compliance analysis of affirmative action in any workplace
justifiable/reasonable grounds for not complying with the targets as set by the
employer and/or any other targets set by any other party, may include:
• Insufficient recruitment opportunities;
• Insufficient promotion opportunities;
• Insufficient target individuals from the designated groups with the
relevant qualification, skills and experience;
• ССМА awards/Court Order;
• Transfer of business;
• Mergers/ Acquisitions; and
• Impact on Business Economic circumstances.
f) No penalties or any form of disadvantage will be incurred by the
employer if in the compliance analysis of affirmative action in any workplace,
there are justifiable/reasonable grounds for not complying with the targets.
g) No employment termination of any kind may be effected as a
consequence of affirmative action.
6
The parties agree that the aforementioned agreement will be gazetted as part
of the 2023 Employment Equity regulations, and will be deemed a settlement
under case number J661/23 where it will be made an order of a Court.’
[15] Solidarity complains that the final regulations published on 15 April 2025 do
not comply with the settlement agreement in that they do not incorporate its
provisions as required by the obligation to gazette the agreement.
[16] During the hearing, counsel for Solidarity disclosed that following the
settlement agreement being concluded, and before the publication of final
regulations on 15 April 2025, a further iteration of draft regulations was gazetted for
public comment in 2024. These were gazetted in Government Gazette Number
500058. Paragraph 4 thereof is headed “Implementation of Affirmative Action
Measures”, and sub-paragraphs 4.1 to 4.7 contain provisions corresponding with the
substantive provisions contained in paragraphs a) to g) of the settlement agreement.
[17] In these circumstances, in assessing the existence of a breach, t he meaning
of the portion of the settlement agreement requiring its gazetting will stand to be
determined. This includes whether the agreement required gazetting as part of draft
regulations published for public comment (which occurred on 1 February 2024) , or
as part of final regulations.
[18] The tenets on the interpretation of contracts which require a consideration ( in
addition to the language) of the context , the purpose, and the material known to
those responsible for its production,
6 can also not properly be undertaken in ex parte
stage 1 proceedings where no input is received thereon from the other party.
[19] A further (and associated) layer of potential complexity arises from the fact
that the issuing of regulations is a function designated to the Minister by the EEA ,7
6 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA); 2012 (4) SA
593 (SCA) at para 18; Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms)
Bpk [2013] ZASCA 176; [2014] 1 All SA 517 (SCA) at para 12.
7 See section 55(1).
7
which is of an administrative nature 8 and which must thus be undertaken in a
procedurally fair manner.9 The draft regulations gazetted on 1 February 2024, which
included the substantive contents of the agreement, were published for public
comment.
[20] The requirement of public participation (and the potential implications thereof)
may be a contextual factor relevant to the interpretation of the agreement , and in
particular, the assessment of whether , correctly interpreted, it required publication
with draft regulations or as part of the final regulations.
[21] If publication as part of the final regulations is required, this will necessitate a
further inquiry into the content of the final regulations and whether, properly
interpreted, they incorporate the principles in the settlement agreement (or fall short
thereof in any respect s). Both parties would also require the opportunity to be heard
thereon.
[22] None of this has been properly ventilated in these stage 1 proceedings,
which, as ex parte proceedings, are not geared to a full ventilation thereof.
[23] What, then, must be established in stage 1 proceedings concerning the
question of breach?
[24] Whilst our domestic jurisprudence does not appear to contain a n authoritative
articulation of the stage 1 breach threshold, the Labour Court of Namibia ( in the
context of the application of a bifurcated process in relation to contempt) has
articulated the threshold as being whether “there is some prima facie evidence
supporting the applicant’s allegation that the respondent has breached and
continues to breach a valid order of the Court”.
10
[25] This threshold appears to be in line with the notion that an order requiring a
respondent to appear and show cause why he/she is not in contempt of court would
8 Esau and Others v Minister of Co -Operative Governance and Traditional Affairs and Others [2021]
ZASCA 9; [2021] 2 All SA 357 (SCA) at paras 76 to 88.
ZASCA 9; [2021] 2 All SA 357 (SCA) at paras 76 to 88.
9 See section 4 of the Promotion of Administrative Justice Act 3 of 2000.
10 Alexander Forbes Group Nambia (Pty) Ltd v Ahrens [2011] NALC 11 at para 3.
8
at least require some prima facie evidence of contempt to be put up, with a definitive
determination of the issue being reserved for stage 2.
[26] Applied to the present matter, I am satisfied that an order ought to be made to
facilitate the definitive determination of the issue of breach (and the remaining issues
of wilfulness and mala fides) in stage 2.
[27] I am, however, disinclined to grant the additional order prayed for by Solidarity
to the following effect:
‘That…
3.1 the respondents be directed to purge their contempt by-
3.1.1 taking such steps as may be necessary to withdraw the Employment
Equity Regulations published under Government Gazette No 52515 and the
Sectoral Numerical Targets published under Government Gazette No. 52514;
3.1.2 declining to implement, enforce or give effect to the EE Regulations
and Sector Targets, pending full compliance with the order of this Court dated
31 October 2023;
3.1.3 within 90 (ninety) days from the date of the granting of this order,
demonstrating to this Court the steps taken to comply with the order of 31
October 2023.
[28] Such an order is not in accordance with Rule 58(2), which provides as follows:
‘The notice of motion must seek an order in the following terms:
(a) that the respondent, [chief executive officer / head of department /
owner / proprietor / municipal manager of the respondent] (full names) appear
in the Labour Court on (date) of (month) (year) at 10h00 to show cause why
he/she should not be found guilty of contempt of court for failing to comply
with the order of this court dated (date) that the respondent may explain its
conduct by way of affidavit filed prior to the date of hearing, although this will
not excuse him/her from being present in court;
(b) that in the absence of providing an explanation to the satisfaction of the
court, or failing to appear in court despite being properly served, the
respondent(s) be found guilty of contempt; and
9
(c) that the respondent(s) be incarcerated for such period as the court
deems appropriate; or for the respondent(s) to be fined in an amount the court
deems appropriate; or other alternative relief;
(d) that service of the application and order be effected personally upon
the respondent [chief executive officer / head of department / owner/
proprietor / municipal manager of the respondent] and on the state attorney, if
the matter concerns an organ of state.’
[29] More fundamentally, given what has been said in this judgment regarding the
breach issue in stage 1 proceedings, it would be inappropriate to make an order that
identifies any steps that may be warranted to purge any breach.
[30] In the circumstances, the following order is made:
Order
1. The first respondent is to appear in the Johannesburg Labour Court on
19 November 2025 at 10h00 to show cause why she should not be found
guilty of contempt of court for failing to comply with the order of this court
dated 31 October 2023, and may explain her conduct by way of affidavit filed
prior to the date of hearing, although this will not excuse her from being
present in court.
2. In the absence of providing an explanation to the satisfaction of the
court, or failing to appear in court despite being properly served, the first
respondent is to be found guilty of contempt and incarcerated for such period
as the court deems appropriate; or fined in an amount the court deems
appropriate; or other alternative relief.
3. Service of the application and order is to be effected personally upon
the first respondent and on the State Attorney, Pretoria.
4. Costs are reserved.
R Itzkin
Acting Judge of the Labour Court of South Africa
10
Appearances
For the Applicant: M Engelbrecht SC
Instructed by: Serfontein Viljoen & Swart Attorneys