THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 927/24
In the matter between:
SHONISANI KHOMOLA AND 192 OTHERS Applicant
and
MASTECH GENERAL TRADING First Respondent
JABULANI MASUNDA Second Respondent
Heard: 30 April 2025
Delivered: 13 October 2025
JUDGMENT
DANDADZI, AJ
Introduction
[1] This matter concerns an application for contempt brought by the Applicant
against the First and Second Respondents (collectively, the Respondents) ,
arising from the certification and subsequent making of a settlement
agreement concluded between the Applicant and the First Respondent in
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February 2024 an arbitration award under section 142A of the Labour
Relations Act 1 (LRA). In this application, the Applicant also seeks certain
declaratory relief which, in my view, cannot properly be sought by way of a
contempt application. The application is opposed by the First and Second
Respondents, who raise points in limine to the application.
[2] The Respondents raise three points in limine . The first pertains to the alleged
improper service of the application on the Respondents, as it was not served
by the Sheriff. The second relates to the locus standi of the First Applicant,
who, according to the Respondents, lacks a resolution authorising him to act
on behalf of the other Applicants and is, in any event, no longer in the employ
of the First Respondent. The third point in limine concerns the declaratory
relief sought by the Applicants, which the Respondents contend is not
competent in contempt proceedings, as it introduces new matters that were
not covered in the original settlement agreement.
[3] Should any of the points in limine raised by the Respondents be upheld, it
would be dispositive of the present application. Our courts have consistently
held that where a jurisdictional or procedural defect goes to the root of the
proceedings, such as defective service, lack of authority, or the
impermissibility of the relief sought , the court or tribunal is entitled to dispose
of the matter without entering into the merits.
Points in linime
[4] I will address the points in limine in turn.
[5] It is evident from the court file and the submissions made that the Applicants
did not serve the application on the Respondents in accordance with the
Rules of this Court. Service was effected personally by the First Applicant at
the Respondents’ offices, rather than through the Sheriff as required. It was
further submitted that the Applicants had previously been cautioned by the
Court to ensure compliance with the Rules regarding service, yet there has
Court to ensure compliance with the Rules regarding service, yet there has
been continued non-compliance. While it is evident that there was no service
1 Act 66 of 1995, as amended.
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through the Sheriff, there appears to be no prejudice suffered by the
Respondents. The Respondents were clearly aware of the proceedings and
have participated fully. The Labour Court has, in appropriate circumstances,
condoned defective service where the purpose of service, to give notice and
allow participation , has been achieved and no prejudice is shown. The
interests of justice further dictate that finality be afforded to the parties through
the proper ventilation of the issues on their merits. I am therefore inclined to
condone the non-compliance with the Rules relating to service.
[6] The next point in limine raised by the Respondents concerns the locus standi
of the First Applicant. It is common cause that the First Applicant is no longer
in the employ of the First Respondent and that no resolution has been signed
by the remaining 192 employees authorising him to act on their behalf in
these proceedings. In the absence of such written authority, the First Applicant
lacks the requisite standing to institute and prosecute this application in a
representative capacity. The Labour Appeal Court has held that a person who
purports to act on behalf of others must demonstrate proper authorisation at
the time of instituting proceedings, failing which the application is fatally
defective. There being no proof of authority before me, I find that the First
Applicant lacks locus standi to act on behalf of the other Applicants, and this
point in limine accordingly stands to be upheld.
[7] The third point in limine concerns the declaratory relief sought by the
Applicants, which the Respondents contend is not competent in contempt
proceedings, as it introduces new matters that were not covered in the original
settlement agreement. I agree with this contention. Contempt proceedings are
sui generis and are designed solely to enforce compliance with an existing
court order or arbitration award. They are not a vehicle through which a party
court order or arbitration award. They are not a vehicle through which a party
may seek new or additional declaratory or substantive relief. C ontempt is a
narrow and exceptional remedy which must not be used to create or extend
rights beyond those already confirmed by an existing order and is limited to
determining whether a party has wilfully and mala fide failed to comply with an
existing order. Should new relief be sought, it must be properly referred to the
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Bargaining Council or the Labour Court , as the case may be. On that basis,
the third point in limine must accordingly be upheld.
[8] While I need not deal with the merits of the matter having upheld the points in
limine, it appears to me that there was compliance with the terms of the
settlement agreement insofar as the Provident Fund, UIF, and SARS
payments are concerned. This contention was not disputed by the Applicants
during argument, nor was any proof tendered to demonstrate that these
payments remain outstanding. To the extent that the Applicants contend non -
compliance, it is incumbent upon them to place before the Court evidence in
support of such contentions. In the absence of proof, the Court would be
constrained to find that the Respondents are in contempt of the settlement
agreement and the subsequent arbitration award made in terms of section
142A of the LRA.
[9] In considering the points in limine, I am satisfied that the irregularity in respect
of service does not warrant the dismissal of the application. The Respondents
were clearly aware of the proceedings and have suffered no prejudice. The
non-compliance with the requirement that service be effected by the Sheriff is
therefore condoned. However, the objections relating to the locus standi of the
First Applicant and the inclusion of new matters and relief outside the scope of
the contempt application are well -founded. Accordingly, the points in limine
pertaining to the First Applicant’s authority and the impropriety of seeking
declaratory relief within these proceedings are upheld.
[10] In the premises, the following order is made:
Order
1. Having upheld the relevant points in limine , the application falls to be
dismissed.
2. There is no order as to costs.
___________________________
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N. L. Dandadzi
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicants: Mr Shonisani Khomola
For the Respondents: Advocate M Pienaar
Instructed by: Nico van der Westhuizen Attorneys