THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: CA 1/25
In the matter between:
ROBERTSON AND CAIN (PTY) LTD First Appellant
THEO LOOCK Second Appellant
and
RANDALL MOSES Respondent
Heard: 4 November 2025
Delivered: 14 January 2026
Coram: Molahlehi JP, Djaje AJA and Kganyago AJA

JUDGMENT

MOLAHLEHI JP
Introduction
[1] The issue in this appeal is whether the Labour Court erred in finding that the
appellant was in contempt of court for failing to assist the respondent in
completing the application forms for medical incapacity. The respondent
instituted contempt proceedings arising from the arbitration award issued by
the Metal and Engineering Industries Bargaining Council (MEIBC) under

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section 143 of the Labour Relations Act 1 (LRA). The arbitrator issued the
arbitration award on 09 August 2023, which required the appellant to assist
the respondent in completing the Unemployment Insurance Fund (UIF)
application forms.
Background facts
[2] The issue that led to the contempt of court proceedings arose from the
settlement agreement between the parties, which had been made an
arbitration award and enforced as such in terms of the LRA. The settlement
agreement was concluded following an alleged unfair dismissal dispute
concerning the respondent, Mr Moses, who was employed as a carpenter by
the appellant.
[3] It is apparent that due to injuries sustained, Mr Moses w as unable to attend
work and, accordingly, exhausted his sick leave. During August 2019, the
appellant convened an incapacity inquiry , which was finalised in
November 2019.
[4] The respondent did not dispute that he worked only thirty -two days due to his
back injury. He told the incapacity inquiry that he was awaiting a
neurosurgeon’s report to confirm his health condition, which he never
submitted.
[5] It is apparent from the record that the issue of the respondent’s incapacity
arose after he sustained work -related injuries. He attended Milnerton Medi -
Clinic, where the attending doctors prepared a medical report on his injuries to
comply with the requirements of the Occupational Injuries and Diseases Act.
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[6] On 17 January 2020, the Department of Labour enquired of the appellant
regarding the respondent’s condition following receipt of the UI 19 form, which
stated that the reason for the termination of his employment was “ill-
health/medically boarded.” The appellant responded that the form had been
erroneously sent by its payroll department.

1 Act 66 of 1995, as amended.
2 Act 130 of 1993.

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[7] Aggrieved by his dismissal, the respondent referred an alleged unfair
dismissal dispute to MEIBC. The parties settled the dispute amicably at the
bargaining council on the following terms:
“10.1. The Respondent agrees to assist with the completion of the forms as
required by the Applicant, as applicable to the employer.”
[8] The respondent's case was that the appellant was obliged to assist him in
completing the forms required for an application for permanent medical
disability benefits under the Unemployment Insurance Fund. In addition, in
the founding affidavit, he contends in paragraph 22.4.1 that the appellant
“ignores the terms of the binding award to re-employ me.”
[9] After signing the agreement, the respondent went to the Medi Clinic, which he
described as a follow -up visit, and requested assistance in completing the
UI 2.2 form of the Unemployment Insurance Fund. He was advised to seek
assistance from the physician who boarded him.
[10] In December 2022, the respondent met with the appellant's representatives to
discuss the implementation of the settlement agreement. As the meeting
achieved nothing, the respondent approached the MEIBC for assistance. The
MEIBC wrote to the appellant requesting feedback on the settlement
agreement. Ms Lategan of the appellant responded to the bargaining
council’s query as follows:
“... the company will assist with his application as per the MEIBC Settlement
Agreement (signed on 11 February 2020); however , we do require
documentation from his doctor/treating physician, indicating that he is
medically unfit for work. Unfortunately, in the absence of such documentation,
we are unable to assist with his disability application, as the documentation
forms the basis of the application.
We have informed Mr Moses that, should he submit such documentation from
his doctor/treating physician, the company will assist with the information
required to be completed. To date, Mr Moses has not returned to the

required to be completed. To date, Mr Moses has not returned to the
company to submit the required documentation.”

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[11] On 15 April 2024, the respondent requested that the appellant either assist
him in completing the UI 2.2 forms or forward them to the doctor who
recommended his medical boarding. The relevant parts of the email read as
follows:
“Ms. Karin Lategan as you know on my Certificate of Service and UIF form it
says I'm medically boarded from work. Ms. Karin Lategan can you please ask
the Specialist Doctor who medically boarded me from work, to complete my
MIBFA Permanent Disability, Medical Examination Reports on Working
Capabilities and my UI-2.2 form of the Compensation Fun at the Labour
Department. Because I don't know who's the Specialist Doctor who medically
boarded me from work.”
[12] The head of the human resources department, Ms Lategan, responded on
23 April 2024 to the above as follows:
“Dear Randal
I trust that you are well. Unfortunately, I am unable to assist you in this regard
as I am not aware of a specialist doctor who medically boarded you. Your
services with the company were terminated based on your confirmation
during the incapacity hearing, that you were unable to work.”
[13] The respondent followed up on the above request by calling the human
resources manager, who advised him to obtain a medical report from the
doctor who had medically boarded him.
[14] In light of the above uncertainty on the part of the respondent, he approached
the MEIBC for advice. He was advised to apply to have the agreement
between him and the appellant declared an arbitration award under section
142 of the LRA.
[15] The settlement agreement was accordingly made an arbitration award on
9 August 2023 and subsequently an order under section 143 of the LRA. The
order was then served on the appellant. Upon receipt of the order, the
appellant responded that it was unable to comply.

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[16] For the reasons stated above, the respondent brought contempt of court
proceedings before the Labour Court to enforce the arbitration award made in
his favour.
The Labour Court
[17] The Labour Court found the appellants guilty of contempt of court on
19 September 2024. It accordingly ordered the appellants to pay a fine of
R100 000,00 within thirty days of the order. The payment was suspended on
condition that the appellants: (a) refer the respondent to a neurosurgeon, (b)
pay the costs of the assessment, and (c) assist the respondent in completing
the UI -2.2 form, the MIBFA Permanent Disability forms, and the Medical
Examination Reports on Working Capabilities forms.
[18] In making the above order, the Labour Court reasoned that it was common
cause that the appellant had failed to comply with the terms of the arbitration
award, which had been made an order of the court. It also found that
although the order was silent as to the specific forms the appellant was to
assist the respondent with, those forms were apparent in the context of the
agreement. In this regard, the rules governing the interpretation of court
orders and other documents were applied. It rejected the appellant's
contention that the parties' agreement was ambiguous because the forms at
issue were not specified.
[19] The other point noted by the Labour Court concerns the appellant's denial that
the respondent was medically boarded; instead, he was dismissed for
incapacity. It found, having regard to the fact that the appellant provided him
with a UI-19 form and a Certificate of Service recording that he was medically
boarded, that the dismissal was indeed for medical boarding. The Court
rejected the appellant's assertion that the issuance of these two documents to
the Department of Labour was erroneous.
The Appeal
[20] The appellant contends that the L abour Court mistakenly found the appellant
guilty of contempt of court, rather than recognising that the respondent, Mr

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Randal Moses, did not establish a case of deliberate, mala fide, or wilful
contempt of the court order. It further argued that the Labour Court's
interpretation of the parties' agreement was flawed, particularly with respect to
the appointment and funding of a neurosurgeon to examine the respondent.
Concerning the settlement that had been made an order of the court, the
appellants argued that the agreement was drafted in a manner that was
unclear as to which forms, specifically, the appellant must assist the
respondent, Mr Moses in completing.
[21] The respondent opposed the appeal and contended that the appellant had
failed to assist him in completing the forms required by the agreement,
including referring him to a neurosurgeon.
Legal principles
[22] It is trite that i n contempt proceedings, the applicant bears the onus of
establishing, beyond a reasonable doubt, the existence of a valid court order,
service or notice of it, and non- compliance. To succeed in an application for
contempt of court, the appellant must prove beyond a reasonable doubt that
the con duct of the contemnor amounts to contempt of court. 3 The test to
apply in determining whether a contemnor committed contempt of court was
set out in Fakie NO v CCII Systems (Pty) Ltd (Fakie),4 as follows:
“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 the
infraction. Even a refusal to comply that is objectively unreasonable may be
bona fide (though unreasonableness could evidence lack of good faith).”
[23] It is further trite that o nce the above elements have been proven, the
evidentiary burden to prove absence of wilfulness and mala fides shifts to the

evidentiary burden to prove absence of wilfulness and mala fides shifts to the
contemnor. In this regard, the contemnor must present evidence that

3 See: Matjhabeng Local Municipality v Eskom Holdings Ltd [2017] ZACC 35; 2017 (11) BCLR 1408
(CC); 2018 (1) SA 1 (CC).
4 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) at para 9 (‘Fakie’).

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establishes reasonable doubt to avoid the inference that the non- compliance
was wilful and mala fide. Thus, mere non-compliance with a court order does
not constitute contempt.5 The requirements of mala fides and wilfulness as an
essential element in proving the existence of contempt were reaffirmed in
Secretary of the Judicial Commission of Inquiry into Allegations of State
Capture v Zuma, 6 and Samancor Chrome Ltd v Metal and Engineering
Industries Bargaining Council.7
Discussion
[24] In the present matter, the three essential requirements to sustain a finding of
contempt of court have been satisfied, except for the elements of wilfulness
and mala fides. While the applicant has demonstrated the existence of a valid
court order, the respondent’s knowledge of it, and non- compliance with its
terms, the evidence does not establish beyond a reasonable doubt that such
non-compliance was deliberate or actuated by bad faith. Accordingly, the
issue the Labour Court had to determine was whether the breach of the order
was deliberate or actuated by bad faith. Due to the lack of clarity and
specificity in the order, the Labour Court inferred wilfulness and mala fides by
interpreting the order in light of the circumstances underlying the agreement.
[25] The rules for interpreting an order of court, like any other document, are set
out in Natal Joint Municipal Pension Fund v Endumeni Municipality ,
8 the
Supreme Court of Appeal as follows:
“Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, contract or other
instrument, having regard to the context provided by reading the particular
provision or provisions in the light of the document as a whole and the
circumstances attendant upon its coming into existence.”

5 See: Fakie (ibid).
6 2021 (5) SA 327 (CC).
7 (2011) 32 ILJ 1057 (LAC) . See also Matjhabeng Local Municipality v Eskom Holdings Limited and

Others; Mkhonto and Others v Compensation Solutions (Pty) Limited (CCT 217/15; CCT 99/16)
[2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC) (26 September 2017).
8 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18.

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[26] However, the S upreme Court of Appeal in that case also cautioned against
applying the rules of interpretation with the temptation to substitute what the
judge regards as reasonable, sensible, or businesslike for the words actually
used in any document. In this respect, the Supreme Court of Appeal had the
following to say:
“The process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document. Judges must be alert to,
and guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To do so in
regard to a statute or statutory instrument is to cross the divide between
interpretation and legislation. In a contractual context it is to make a contract
for the parties other than the one they in fact made. The ‘inevitable point of
departure is the language of the provision itself’,
read in context and having
regard to the purpose of the provision and the background to the preparation
and production of the document.”9
[27] The Supreme Court of Appeal reiterated the above cautionary rule in Capitec
Bank Holdings Ltd and another v Coral Lagoon Investments 194 (Pty) Ltd and
others,10 as follows:
“Endumeni is not a charter for judicial constructs premised upon what a
contract should be taken to mean from a vantage point that is not located in
the text of what the parties in fact agreed. Nor does Endumeni licence judicial
interpretation that imports meanings into a contract so as to make it a better
contract, or one that is ethically preferable.”
[28] In applying the contextual and purposive principle s of interpretation, the
Labour Court in the present matter took into account the terms of the
settlement agreement that had been made an order of the court. It is
apparent from its approach that it treated the agreement as reflecting what it

apparent from its approach that it treated the agreement as reflecting what it
would have preferred the parties to have agreed to, rather than the actual
wording of the agreement.

9 Natal Joint Municipal Pension Fund (ibid) at para 18.
10 [2021] ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) at para 26. See also
Wheelwright v CP De Leeuw Johannesburg (Pty) Ltd [2023] ZALAC 6; (2023) 44 ILJ 767 (LAC);
[2023] 5 BLLR 393 (LAC).

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[29] In my view, the Labour Court’s reliance on the interpretation of the underlying
agreement to infer intent and mala fide is a misdirection. As the authorities
referred to earlier indicate, to succeed in contempt proceedings, it must be
shown, amongst other things, that there is a clear and unequivocal court
order. This means that a contempt application cannot succeed where
compliance with the order depends on a disputed interpretation of the order.
The requirement for enforcement of an order by way of contempt proceedings
is stringent, requiring proof of disobedience beyond a reasonable doubt.
[30] In this matter, the respondent’s case does not expressly indicate that he was
medically boarded, which would ordinarily impose an obligation on the
appellant to complete the UI -19 form. The appellant disputed this allegation
and maintained that the employment contract was terminated on the grounds
of the respondent’s incapacity. It is essential, in this regard, to note that both
the founding affidavit and the terms of the agreement are silent as to the
status of the unfair dismissal dispute.
[31] Furthermore, the appellant contended that they were unaware of the forms
that the respondent, Mr Moses claims to have presented to them for
completion, and that those forms were within their capability to complete.
There is also a lack of clarity as to whether the forms in question were to be
completed by a medical doctor or by the appellant.
[32] The other reason why the respondent ought not to have succeeded in his
application for contempt of court is that, given the sparsity and the generic
nature of his founding affidavit, there was no basis to conclude that the
appellants were in mala fide contempt of court. In Pheko and Others v
Ekurhuleni Metropolitan Municipality,
11 the Constitutional Court held that:
"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

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. Wilful disobedience of an
order made in civil proceedings is both contemptuous and a criminal offence.

11 [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) at para 28.

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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."
[33] In this matter, there is no evidence that the appellant was wilful and mala fide
in failing to comply with the court order. The record shows that the appellant
did not refuse to assist the respondent in completing the UIF forms. On the
contrary, the appellant indicated its willingness to assist, subject to the
respondent furnishing a medical report confirming his ill -health. This
requirement was neither unreasonable nor inconsistent with the appellant’s
obligations.
[34] The Labour Court further misdirected itself by granting the respondent the
relief based on a flawed interpretation of the settlement agreement, which he
had not sought in his papers. In any case, the order and the agreement are
silent as to the nature of the relief that could be sought in the event of a
breach of its terms.
Cost order
[35] In light of the above, it goes without saying that the cost order was
erroneously made, as there was no basis for finding the appellant guilty of
breaching the order. Insofar as the cost s of the present proceedings are
concerned, I do not believe that it would be in the interest of both fairness and
the law to make an order as to costs.
[36] In the circumstances, the following order is made:
Order
1. The appeal against the Labour Court's contempt order of
19 September 2024 is upheld..
2. The order of the Labour Court is substituted with the following order.
2.1 ‘The application for contempt of the order made in terms of
section 143 of the LRA is dismissed with no order as to costs.’

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3. There is no order as to costs.

E. Molahlehi
Judge President of the
Labour Appeal Court
Djaje AJA and Kganyago AJA concur


APPEARANCES:
For the Appellants: A.J. Posthuma of Snyman Attorneys.
For the Respondent: N. Mkabayi of Nobahle Mkabayi Attorneys.