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: J1199/17
In the matter between:
NKATEKO KATE MULAUDZI Applicant
and
MEC OF BASIC EDUCATION
LIMPOPO PROVINCE First Respondent
KHATUTSHELO ONICA DEDEREN N.O. Second Respondent
KHAMA MARTIN MASHABA Third Respondent
Heard: 28 March 2025
Delivered: 06 January 2026

JUDGMENT

MAFA-CHALI, AJ
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised

2026-01-06
Signature Date

2

Introduction
[1] The Applicant has brought an application to this court seeking to place the
respondents in contempt of court as a result of failing to comply with an order
dated 14 February 2022. The first respondent is the Limpopo Province
Member of Executive Council: Basic Education; the second respondent is the
Head of the Department: Limpopo Basic Education and the third respondent
is the Deputy Director General for Corporate Management : Limpopo Basic
Education.
[2] The respondents have also brought a rescission application to rescind the
court order. The a pplicant has opposed the rescission application, and the
respondents have also opposed the contempt of court application raising
points in limine regarding the application.
Background
[3] The applicant is a 68 year old female person, and a former employee of the
Department of Basic Education, Limpopo Province. She was employed as an
educator since 1977.
[4] The a pplicant has already reached the pensionable age and suffered long
term ill health since 2004. Since 2004, the Applicant was at home and
receiving her salary. According to the Applicant, she was awaiting the first
respondent to assign medical practition ers to determine the incapacity in
terms of legislation and policies of the public sector governing the first
respondent.
[5] In 2010, the first respondent stopped the salary payment of the applicant. The
applicant approached the district of the first respondent, and the payment
were reinstated. Again in 2015, the first respondent stopped the salary of the
applicant, seemingly on a “no work no pay” principle, and on the basis that the
applicant refused to attend examinations by the medical practitioners of the
first respondent.

3

[6] The first respondent has not insti tuted disciplinary hearing against the
applicant or terminated her employment until she reached her pensi onable
age and her pension benefits have also not yet been released.
[7] In 2017, the applicant laun ched the proceedings at this court and sought an
order for reinst atement and her outstanding benefits from the year 2010 to
date of reinstatement and an order for the first respondent to comply with the
relevant policies of the public sector for medical incapacity, to appoint the
Health Risk Manager to determine her incapacity.
[8] On 21 August 2018, the application was granted in terms of a court order in
default against the first respondent. In 2019, the first respondent launched a
rescission application of the court order granted in August 2018 which was
granted by the Court on 27 August 2019, and the first respondent was granted
leave to file a notice of intention to oppose and the answering affidavit in
respect of the main application , however, for a period of two years the first
respondent did not file the opposing papers.
[9] On 14 F ebruary 2022, again the applicant was granted an order, which the
applicant now seeks to hold the respondents in contempt of failing to comply
with. The Court order ordered the first respondent to appoint health risk
managers, within a period of ten days from the date of the order, to verify the
extent of the applicant’s illness in accordance with the provisions applicable in
the application process for permanent incapacity leave in the public service, to
wit paragraph 15.8.2, re ad with paragraph 16.1 of the government policy on
Determinations and Directive on Leave of Abse nce in the Public Service
issued in June 2015, as amended.
[10] The first respondent was also directed to reinstate and pay all outstanding
salaries of the applicant, with effect from February 2010, pending the final
determination of the applicant’s permanent incapacity leave process in

determination of the applicant’s permanent incapacity leave process in
accordance with paragraph 16 of the Determination and Directive on Leave of
Absence in the Public Service issued in June 2015 as amended; such as
salaries to be paid within 30 days from the date of this order.

4

[11] On 28 June 2022, the respondent’s attorneys sen t correspondence to the
applicant’s attorneys indicating that the order which directed the Respondent
to file the answering affidavit has no time frame , and same should have been
done within a reasonable period. It was also mentioned that since the matter
was coming as far back as the year 2003, it was difficult for the respondent to
obtain the documents and officials who dealt with the matter at the time could
not be able to establish what the actual position is on the matter. Notice to
oppose was also filed with the answering affidavit in July 2022. The answering
affidavit was filed in July 2022 with the notice to oppose without a condonation
application.
[12] On 10 January 2023, the current attorneys of the applicant sent
correspondence to the State A ttorneys at three email addresses: M[...], S[...]
and R[...]. The correspondence was sent with the court order and also sought
the first respondent to comply with the court order of February 2022. The
three email addresses belong to employees of the State Attorneys.
[13] In August 2022, the court order was again sent by the applicant ’s attorneys to
the email T[...], which is also the respondent State Attorneys, but no response
was received.
[14] The applicant then launched an urgent application to this court and obtained
an interim order seeking the respondents to show cause why they should not
be held in co ntempt of court for failing to comply with the order of February
2024.
[15] In April 2024, the respondent s launched a rescission applica tion which is
opposed by the applicant. The Respondent has also raised points in limine
regarding the applicant’s contempt application.
Submissions on contempt of court
Submissions by Applicant
[16] The Applicant submitted that there is a court order issued by this C ourt, which
the respondents accepts, and the court order was served on the respondents,

5

which service the respondents confirmed occurred on 23 January 2023. The
respondents answered on emails used to send the court order that one of the
employees have left the service of the respondent’s attorneys but silent on the
other three emails , of which one of the emails be long to the Head of State
Attorney in Polokwane and other email was provided by Ms Makhamathe.
[17] The court was again served on the respondents’ attorneys in August 2023 by
email. The court order provides for specific timeframes for the first respondent
to comply specifically:
17.1 The respondents directed to appoint health risk managers, within a
period of ten days from the date of this order , to verify the extent of the
applicants illness in accord ance with the provisions of applicable in
application process for permanent incapacity leave in the public
service, to with paragraph 15.8.2 read with paragraph 16.1 of the
government policy on determination and Directive on Leave of
Absence in the Public Service issued in June 2015, as amended.
17.2 The respondent is directed to reinstate and pay all outstanding salaries
of the applicant, with effect from February 2010, pending the final
determination of the applicant ’s permanent incapacity leave process in
accordance with paragraph 16 of the government policy on
“Determination and Directed in Public Service issued in June 2015 as
amended, such salaries to be paid within 30 days from the date of t his
order.
[18] The mere fact that a court order has not been complied with, despite same
being known to a party, it is pres umed that non-compliance is wilful and mala
fide. The r espondents lied to the court about not receiving emails and the
court order . The respondents being members of the executive are
dangerously comfortable with non-compliance
[19] Once non-compliance has been pro ven by the applican t, the burden shifts to
the r espondent who must provide evidence beyond reasonable doubt that

the r espondent who must provide evidence beyond reasonable doubt that
non-compliance is not wilful and mala fide. Even after becoming aware of the
court order of February 2024, non-compliance has been shown, and no

6

application was launched to stay the order. Instead, the rescission application
has been launched.
[20] The defence of the respondents that reinstatement of the applicant is
impossible due to the pensionable age of the applicant is untenable . The
purpose of reinstatement is res titution, which has to place the applicant in the
position she would have been had it not been for the unlawful conduct of the
respondents arbitrarily stopping her salary. The non -payment of the
applicant’s salaries for all those years has a direct and material influence on
the pension benefit of the applicant and same must be restored. The no-work-
no-pay principle does not apply here . The applicant could not work as she
was incapacitated and was denied a Health Risk Manager’s report.
[21] The Employment of Educators Act 1 (the Act) is clear on what must be done
with the employee who is medica lly incapacitated and has exhausted their
leave days. Schedule 8- Item 3 of one makes it a misconduct which ought to
be subjected to a disciplinary hearing if there is refusal by an educator to
submit to medical examination. Nothing in the Act justifies the withholding of
an employee’s remuneration.
[22] The Policy and Procedure on Incapacity L eave and Ill -Health Retirement
August 2021, paragraph 7.1.9.2 provides:
“Failure by the employee to submit an application form within the stated
periods, or failure by the supervis or manager to properly manage it, must be
viewed in a serious light given the financial and service delivery implications.
Disciplinary steps should be taken a gainst both the supervisor manager and
the employee. For this purpose, the employee must be charged with
unauthorised absence from work, and the supervisor manager must be
charged with failure to comply with or contravenes an act, regulation or legal
obligation”.
[23] The respondents chose not to institute disciplinary ac tion against the
applicant, and that does not excuse the unlawful termination of the applicant’s

applicant, and that does not excuse the unlawful termination of the applicant’s

1 Act 76 of 1998

7

salary and benefits and no reasons was advanced by the respondents for
that.
[24] The respondents have launched an abortive rescission application, and the
court must dismiss it. Nothing in the Labour Relations Act2 (LRA) or the Rules
Regulating the Conduct for the Labour Court provides for the suspension of
the operation of the order by merely bringing an application to rescind. Case
law makes it clear that a suspension of a court order amounts to the limitation
on the substantive rights of a litigant and same cannot be easily extinguished
by the existence of an application before a court . It is only upon the granting
of an order to stay the operation of the order can the enforceability of an order
be stayed /suspended. The respondent s ought to bring a substantive
application seeking to stay any order, and until such time the court grants a
stay in the operation of the order of February 2022, the respondents are non -
compliant with the order. Failure of the respondents to comply with the court
order and submit that the order is incorrect is untenable.
Submissions by Respondents
[25] The respondents have opposed the application and raised some preliminary
points in limine.
[26] The first point in limine is that the first r espondent is an Organ of state and
the Applicant failed to serve the application in terms of the Judicial Matters
Amendment Act3 (JMAA).
[27] Secondly, to the extent that the a pplicant has reached a retirement age, her
claims is moot. Thirdly, the applicant’s claim against the r espondents served
has prescribed. Fourthly, the applicant’s claim from February 2010 to August
2010 was dismissed by the Thoyondou High Court and is therefore res
judicata.
[28] On the merits, the r espondents submitted that it endeavoured to appoint t he
Health Risk Manager for the a pplicant and requested her to attend to the

2 Act 66 of 1995
3 Act 8 of 2017.

8

Tshilidzini Hospital to be assessed and she did not accept the le tters with
appointments information, and she directed her helper not to accept the letter
when it was served. The applicant therefore never honoured the appointment
to attend the examinations. The a pplicant did not report for work to teach the
learners, and there was therefore no obligation or reason for t he respondents
to pay her salary hence her salary was stopped in the year 2010 and from 01
July 2015 to August 2021.
[29] On the first point in limine, the Respondents submitted that Sectio n 3 (2 ) of
the JMAA, provides that the a pplicant or her l egal representative after any
court process institution proceedings and in which the executive authority of a
Department is cited as a nominal respondent or defendant, must serve a copy
of that process on the Head of Department concerned at the Head Office of
the Department and within five days after the service of the process, serve a
copy thereof on the office of the State Attorney operating within the are a of
jurisdiction of the Court from which the process has been issued.
[30] Section 5(i)(a) of the JMAA4 entails that any process by which any legal
proceedings contemplated in terms of section 3 (i) thereof and pertaining to
service of the process. The applicant has failed to comply with the provisions
of the said Act and Rules of set out above in that she failed to serve the
applicant in accordance with Section 3(2) of the 2017 as ame nded, and in
accordance with the rules of this court, and this constitutes a ruling and is
invalid.
[31] On the second point in limine, it was submitted that the applicant has reached
the age of 65 and reached he r retirement age. The prayer of the a pplicant to
direct the r espondents to appoint Health Risk Manage rs can no longer be
possible as her claim is moot and should not be considered by this court, but
her application must be dismissed with costs.

her application must be dismissed with costs.
[32] On the third point in limine regarding prescription, it was submitted by the
respondents that in terms of section 11 (a) of the Prescription Act5, the period

4 Act 8 of 2017
5 Act 68 of 1969

9

of prescription of debts are three years in respect of any debt . It was argued
that section 12 (1), (2) and (3) the Prescription Act further provides that when
the period of prescription begins to run, and that it commences to run as soon
as the debt is due. The applicant alleged that she is owed salary for the
months of February 2010 to July 2010. Therefore, the applicant’s claim fell as
the salaries’ debt lapsed on or about 31 July 2013.
[33] Furthermore, the a pplicant allege d that she was not paid salary from July
2015 to date, and this debt also laps ed on or about June 2018. The period of
prescription is interrupted by the issuing and service of the notice of motion
and the a pplicant has not served the notice of motion on the r espondents in
terms of the JMAA, read with Institution of Legal Proceedings against Certain
Organs of State6, and part of her claim has prescribed on or about June 2021,
and the claim must be a dismissed with costs.
[34] The forth point in limine is the res judicata. It was submitted and argued by the
respondents that on or about 23 June 2011, the Applicant iss ued an action at
Thohoyandou High Court against the first re spondent, Head of the
Department and Service District Manager for Education Vhembe, seeking
payments of her unpaid salaries for the months of February 2010 to July
2010. Justice AML Phat udi dismissed her claim. Her claim for the period
February 2010 to July 2010 was considered and determined by the
Thohoyandou High Court and was dismissed, and thus res judicata.
Therefore, the Applicant’s claim must be dismissed with costs.
[35] In the event the points in limine are not upheld by this court, the respondents
submitted that most of the vital information and documents could not be
obtained due to the fact that the incidents in the matter are for the year 2004.
[36] The applicant was appointed as an educator in 1977, later promoted to head
of department in 1996 and deputy principal in 2004 , and has never reported

of department in 1996 and deputy principal in 2004 , and has never reported
for duty from 01 July 2004 to August 2021. As a result, no job evaluations
were conducted for her. On 01 September 2007, the applicant was transferred

6 Act 20 of 2002

10

to another school around Elim area and also never reported to the post
establishment since that date.
[37] In terms of the employment contract entered into between the r espondents
and the applicant as an e ducator, she is ex pected to render her teaching
services and to be compensated in the form of monthly salaries and benefits.
The applicant filled in sick leave forms for some days and on the other days,
she was not reporting on duty with no explanation.
[38] The applicant was advised to attend to the Tshilidzini Hospital to facilitate her
examination in consideration of her alleged ill-health. It was submitted that the
applicant was not cooperative and did not show up for the appointments until
she exhausted all her leave days in 2008/2009. The Applicant’s salar y was
stopped in February 2010 for failing to report to work.
[39] The applicant wrote a letter of demand through her attorneys demanding to be
paid her outstanding salaries from February to April 2010, and the HOD, Mr
Boshielo instructed that the a pplicant’s salary be paid, effective August 2010
and she was also advised that respondents would still treat her case as
incapacity due to ill -health and Health Risk Manager still to be appointed to
verify the extent of her alleged illness.
[40] The Applicant’s claim of salaries for the months of February 2010 to July 2010
lodged at Thohoyandou High Court was dismissed by Judge Phatudi on 03
November 2016 and the urgent application to be paid the same month
salaries was also stuck off the roll, with costs . The r espondents continued to
unjustifiably pay the a pplicant’s salaries whilst she continued not to report to
work. As the applicant did not respond to the d istrict officials’ letters notifying
her to submit the necessary documents within 10 days, her salary was
stopped from July 2015 to August 2021 , when she reached retirement age of
65 her contract of employment was then terminated.

65 her contract of employment was then terminated.
[41] The applicant was supposed to fill in Go vernment Employment Pension Fund
(GEPF) forms. Sh e indicated that she acknowledged that she reached the
retirement age, but she was not filling the pension fund forms until the issue is
finalized.

11

Evaluation
[42] The applicant in this matter has brought an application seeking to place the
respondents in contempt of court as a result of failing to comply with an order
of this Court dated 14 February 2022. The respondents in response brought a
rescission application to rescind the court order with condonation applic ation
and raised four points in limine to the application.
[43] The law on contempt of court is well established. Contempt of court is defined
as the wilful disobedience of a Court Order and the purpose of contempt
proceedings is to protect the rights of everyone to fair trials, maintaining public
confidence in the judicial arm of government and upholding the integrity of
Court Orders.
[44] The primary purpose of the contempt of court proceedings is to compel
compliance with the court's order. The court may impose fines or
imprisonment as a means of coercing the individual or entity to comply with
the order. In some cases, the court may also order the individual or entity to
pay the costs associated with the contempt proceedings.
[45] Contempt of court therefore refers to the disobedience or disregard of a court
order or judgment. This can occur when an individual or entity fails to comply
with a specific directive issued by the court, such as a directive to pay a
certain amount of money, perform a specific action, or refrain from engaging
in a particular behavior.
[46] Contempt proceedings are fundamental to preserving the authority of the
judiciary and ensuring adherence to legal processes. Therefore, respecting
court orders and procedures is essential for maintaining the rule of law and
the proper functioning of the South African justice system . Contempt of court
is not an issue between the parties; it is rather an issue between the court and
the party who has not complied with a mandatory order of court.

12

[47] The leading case dealing with contempt of court is Fakie NO v CCII Systems
(Pty) Ltd7 (Fakie) where the Supreme Court of Appeal per Cameron JA held
that:
“[6] 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 essence 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', sin ce the rule of law in
terms of the 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.”
[48] The test for when disobedience of a civil order constitutes contempt has come
to be stated as to whether the breach was committed deliberately and mala
fide. A deliberate disregard is not enough, since the non -complier may
genuinely, albeit mistakenly, believe that he or she is entitled to act in the way
claimed to constitute the contempt. In such a case good faith avoids the
infraction. These requirements, that the refusal to obey should be both willful
and mala fide, and that unreasonable non -compliance, provided it is bona
fide, does not constitute contempt.
[49] At para 42, Cameron in Fakie, succinctly set out the requirements for
contempt. The Supreme Court of Appeal held that an applicant must prove all
the requirements for contempt: existence of the order; service of the order;
non-compliance; willfulness and mala fides, and all these elements must be
proved beyond reasonable doubt. The applicant bears the onus to prove that
the respondent is guilty of contempt. However, once the applicant has
proven the existence of the order, service or notice of the order, and non -
compliance, then the respondent bears an evidential burden in relation to
willfulness and mala fides.
[50] If the respondent fails to advance evidence that establishes reasonable doubt

[50] If the respondent fails to advance evidence that establishes reasonable doubt
as to whether the non -compliance was willful and mala fide , then contempt
will have been established beyond reasonable doubt. The Constitutional Court

7 2006 (4) SA 326 (SCA) at para 6.

13

revisited the issue of contempt of court proceedings in Pheko and others v
Ekurhuleni City8. The court endorsed the findings in Fakie, and confirmed that
“civil contempt ”, a form of relief sought through civil proceedings, relates to
conduct ex facie curiae apropos, a willful disregard of order of court. The court
also confirmed that because civil contempt is a criminal offence, it may also
be determined through criminal proceedings, the object of which would be
punitive. The court held that civil contempt may be both punitive and coercive,
but usually it is only coercive (upholding the dignity of court by coercing
compliance with the court order). The Court further held that:
“The rule of law, a foundational value of the Constitution, requires that the
dignity and authority of the courts be upheld. This is crucial, as the capacity of
the courts to carry out their functions depends upon it. As the Constitution
commands, orders and decisions issued by a court bind all persons to whom
and organs of state to which they apply, and no person or organ of state may
interfere, in any manner, with the functioning of the courts. It follows from this
that disobedience towards court orders or decisions risks rendering our courts
impotent and judicial authority a mere mockery. The effectiveness of court
orders or decisions is substantially determined by the assurance that they will
be enforced.”
[51] An applicant in a contempt application must therefore establish (1) the Court
Order, (2) service or Notice of the Court Order, (3) non -compliance with the
terms of the Order and (4) wilfulness and mala fides but once the applicant
has proved, (1) the Court Order, (2) service or Notice of the Court Order, and
(3) on -compliance with the terms of the Order, the Respondent bears an
evidentiary burden in relation to (4), i.e. wilfulness and mala fides.
[52] However, for the contempt proceedings to succeed, the above mentioned

[52] However, for the contempt proceedings to succeed, the above mentioned
requirements must still be met. Once the applicant proves the order, its
service and non-compliance, the onus shifts to the respondent prove that the
non-compliance was not willful, reckless or in bad faith.
[53] I will first deal with those points in limine raised by the respondents before the
rescission application and its condonation as well as the merits if necessary. It

8 2015 (5) SA 600 (CC)

14

is common cause that there is an order issued by this Cour t on 14 February
2022, and the respondents have conceded to that in its rescission application.
[54] However, the r espondents raised the first point in limine in respect of the
service of th e order. I t was contended by the r espondents that the applicant
failed to serve the contempt application in terms of the provisions of section
3 (2) of the JM AA, which provides that the a pplicant or the legal
representative after any court process institution proceedings and in which the
executive authority of a department is cited, as a nominal r espondent or
defendant has been issued, must serve a copy of that process on the Head of
Department concerned at the Head Office of the Department and within 5
days after the service of the process, serve a copy thereof on the office of the
State Attorney operating within the area of jurisdiction of the Court from which
the process has issued.
[55] The practice in this Court is that an applicant who seeks an order finding the
respondent guilty of contempt must comply with the provisions of rule 58(2)
(d) of the Rules Regulating the Conduct of the Proceedings of the Labour
Court9 (the Rules) . The Rules require personal service of the order on the
Head of Department, the respondent to file an explanatory affidavit explaining
to the court why he should not be found guilty of contempt and that the
respondent despite having filed this affidavit, must still attend court on the
date stated in the court order.
[56] The a pplicant in this matter has only shown the first leg of the test for
contempt of court, namely, that an order was granted against the respondents
including the MEC of Limpopo Department of Education and the Head of
Department on 10 January 2023 and again in August 2023. The
correspondences mentioned by the applicant with the court order were sent to
the respondents’ attorneys, the State Attorneys’ to emails of several officials

the respondents’ attorneys, the State Attorneys’ to emails of several officials
of the State Attorneys . At no stage has th e Applicant submitted that the
personal service of the Court order was also made on the Head of the
Department of Education, Limpopo.

9 GN 4775 of 3 May 2024 (effective 17 July 2024).

15

[57] Furthermore, section 3 (2) of the JMAA, provides that the applicant or her
legal representative after any court process institution proceedings and in
which the executive authority of a Department is cited as a nominal
respondent or defendant, must serve a copy of that process on the Head of
Department concerned at the Head Office of the Department and within five
days after the service of the process, serve a copy thereof on the office of the
State Attorney operating within the area of jurisdiction of the Court from which
the process has been issued.
[58] The applicant has failed to show proof of the second leg of contempt, which in
this instance is specifically personal service of the application upon the
respondents, the MEC and the Head of the Department in compliance with
the provisions of rule 58(2) (d) of the Rules and section 3 (2) of the JMAA.
The applicant has therefore failed to show that there was proper personal
service of the Court orders 10 January 2023 and August 2023 on the
respondents and that the incumbents had knowledge of the court orders prior
to the institution of these proceedings. The contempt application was certainly
served on the State Attorneys, as the legal representative of the MEC of
Education Limpopo and HOD of Education Limpopo.
[59] Once it has been established that there is no proof of the proper service on
the respondents in terms of the Court Rules and the JMAA, there cannot be
a question of non-compliance with the terms of the court order and wilfulness
or mala fides.
[60] A court order must be complied with for as long as it has not been set aside,
stayed or varied by the Court , provided there has been proper service. The
applicant has failed to show that the respondents are in contempt of Court of
14 February 2022 due to lack of proper personal service on the MEC of
Education Limpopo and HOD Education Limpopo, w ho have been cited as
first and second respondents in this matter.

first and second respondents in this matter.
[61] The application stands to be dismissed on this ground alone. It becomes an
academic exer cise to consider the other points in limine raised by the
respondents.

16

Condonation and Rescission applications
[62] In April 2024, the respondents made an application for rescission of the order
granted by this Court on 14 February 2022 with condonation.
[63] The condonation application shall be determined on the submissions made by
the parties regarding the following factors: the length of the delay ; the
explanation or cause for the delay; the prospects of success for seeking
condonation; the importance of the issue(s) that the matter raises; the
prejudice to the other party or parties; and the effect of the delay on the
administration of justice.
[64] The respondents submitted that the Court order came to its attention on 21
February 2024 when the contempt application was served as it was attached
thereto. It took time to identify the legal officer dealing with the matter as it did
not have the reference number. It was only established on 28 February 2024
that the matter was allocated to Mr Masindi, and after consulting with the
respondent it held the preliminary view to oppose the application and consider
to set aside the court order. Consultations between Mr Masindi and Mr
Masete took place on 14 March 2024 , the answering affidavit prepared and
settled on 27 March 2024, and it was only finalised on 02 April 2024.
[65] The respondent did not receive the correspondence from the applicant’s
attorneys dated 16 February 2021 and 29 March 2021 as Ms Makhamathe
was on maternity leave.
[66] It was submitted by respondents that the rescission application was attended
to in anticipation that it would be served on 09 April 2024, which was 29 days
since the applicant served the application for contempt with the court order,
and the application was made within a reasonable time giving sufficient
explanation for the delay.
[67] The applicant opposed the condonation application and submitted that the
Court order was served in 2023 on the State Attorney and specifically with Mr
Masete and Ms Makhamathe via emails which are valid, and the respondents

17

decided to do nothing about them. It was denied that the Court order was
brought to the attention of the respondents in January 2023 and August 2023.
[68] It was further submitted that the respondents ignored the Court order and
even the times frames given in the urgent application even after being given
an opportunity to defend the matter in 2021. The respondents’ conduct cannot
be a conduct deserving the Court’s indulgence.
[69] There are no prospects of success for defence raised by the respondents.
The respondents’ version illustrates that the respondents did not take its own
policies into regard and also the Court’s orders. The matter has dragged since
the year 2015 and the respondents is using its resources to fail to comply
with legislation. The respondents have not done anything for two years after
being ordered to file the notice to oppose and answer the affidavits. The Court
order is clear and enforceable . The respondents filed the answering affidavit
months after the matter was finalised without a condonation application. The
respondents have trampled upon the applicant’s rights to a fair hearing and
speedy resolution and therefore it was prayed that the application for
condonation be dismissed with costs.
[70] The requirements that must be satisfied to succeed in an application for
condonation are well-known10. An applicant in a condonation application must
set out the degree of the delay and show good cause for the delay; further,

10 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). In Grootboom v National Prosecuting
Authority and another (2014) 35 ILJ 121 (CC) at para 50, the Constitutional Court stated that the
factors that are to be considered, in the interests of justice, in determining a condonation application
include the following:
‘(a) the length of the delay;
(b) the explanation for, or cause for, the delay;
(c) the prospects of success for the party seeking condonation;
(d) the importance of the issue(s) that the matter raises;

(d) the importance of the issue(s) that the matter raises;
(e) the prejudice to the other party or parties; and
(f) the effect of the delay on the administration of justice.’
The Constitutional Court went on further to state at para 51 that: ‘The interests of justice must be
determined with reference to all relevant factors. However, some of the factors may justifiably be left
out of consideration in certain circumstances. For example, where the delay is unacceptably
excessive and there is no explanation for the delay, there may be no need to consider the prospects
of success. If the period of delay is short and there is an unsatisfactory explanation but there are
reasonable prospects of success, condonation should be granted. However, despite the presence of
reasonable prospects of success, condonation may be refused where the delay is excessive, the
explanation is non -existent and granting condonation would prejudice the other party. As a general
proposition the various factors are not individually decisive but should all be taken into account to
arrive at a conclusion as to what is in the interests of justice.’

18

the applicant must deal with the prospects of success on the merits and
prejudice to the Respondent. It is trite that condonation is not for the mere
asking. An applicant for condonation seeks an indulgence from the Court and
is to show sufficient cause to succeed in the grant of condonation by the
Court.
[71] In Allround Tooling (Pty) Ltd v NUMSA and Others11, the Labour Appeal Court
(LAC) restated the well -established principle that a condonation application
must be filed without delay and/or as soon as an applicant becomes aware of
the need to do so. This did not occur in the present case.
[72] The reasons advanced by the respondents for the delay to file the rescission
are very lame. In the first instance the respondent’s failed to file the answering
affidavit when ordered by the Court clearly demonstrated that the respondents
did not take the matter seriously and did not prioritize it . It is clear fr om the
respondents’ submissions has not given valid reasons why the rescission
application was not filed on time.
[73] The manner the respondents took time deal with the matter and time it has
taken is indicative that it did not treat the matter with the urgency it deserved.
The Respondent already failed to rescind the judgment of this Court of 21
August 2018. The respondents were directed by the Court an opportunity to
file the notice to defend the matter and the answering affidavit for but failed to
comply with the directive for a period of more than two years with no valid
reason. Even though Ms Makhamathe was on maternity leave, the applicant
has been able to show that there were email correspondences with the other
officials of the State Attorney on the matter. If the respondent complied with
the directive of Court to file the papers, the applicant would not have
proceeded to set the matter down on an unopposed roll and obtain default
order on 14 February 2022.
[74] If the respondents’ submission is to be accepted that the Court order of 14

[74] If the respondents’ submission is to be accepted that the Court order of 14
February 2022 came to its attention on 21 February 2024 as claimed, then the
respondents have not accounte d for the whole period of delay, as every

11 [1998] 8 BLLR 847 (LAC) at para 8.

19

period of the delay remain ed unexplained. The respondents submitted that
after it established that the matter was allocated to Mr Masindi on 28 February
2024, it was then that consultation took place. The period between from 29
February 2024 February to 15 March 2024 has not been properly accounted.
Again the period 15 March 2024 to 27 March 2024 when the affidavit was
prepared has also not been accounted. Besides indicating that there were
holidays until 02 April 2024, the rescission application was only filed around
24 April 2024. Yet again, this period of delay was also not accounted for. The
respondent chose to explain only some pe riods of delay in a rather staggered
manner.
[75] The respondents have therefore failed dismally in the founding affidavit in the
condonation application to make out a case for condonation and to show good
cause for the delay. The reasons for the delay are unsound and amount to no
reasons. It is now accepted that in the absence of any reasons for the delay,
the prospects of success are immaterial. In terms of Rule 46 (2) of the Labour
Court Rules, a party within 15 days of acquiring knowledge of the order of
judgment, must apply to set aside the order o r judgment on good cause
shown.
[76] In Melane v Santam Insurance Co Ltd 12, the following was said about the
factors that will be taken into account when considering a condonation
application:
‘In deciding whether sufficient cause has been shown, the basic principle is
that the Court has a discretion, to be exercised judicially upon a consideration
of all the facts, and in essence it is a matter of fairness to both parties. Among
the facts usually relevant are the degree of lateness, the explanation therefor,
the prospects of success and the importance of the case. Ordinarily these
facts are interrelated, they are not individually decisive, save of course that if
there are no prospects of success there would be no point in granting

there are no prospects of success there would be no point in granting
condonation. Any attempt to formulate a rule of thumb would only serve to
harden the arteries of what should be a flexible discretion. What is needed is
an objective conspectus of all the facts. Thus a slight delay and a good

12 1962 (4) SA 531 (A) at 532.

20

explanation may help to compensate prospects which are not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent’s interest in finality must not
be overlooked’.
[80] The Labour Appeal Court in NUM V Council for Mineral Technology 13, said
the following:
“The approach is that the Court has a discretion to be exercised judicially
upon a consideration of all the facts, and in essence it is a matter of fairness
to both sides. Among the facts usually relevant are degree of lateness, the
explanation, the prospects of success and the importance of the case. These
factors are interrelated. They are not individually decisive. What is needed is
an objective conspectus of all the fats. A slight delay and good explanation
may help to compensate for prospects of success which are not strong. The
importance of the issue and strong prospects of success may tend to
compensate for a long delay. There is a further principle which is applied and
that is without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial and without prospects of success, no
matter how good the explanation for the delay is, an application for
condonation application should be refused.”
[81] A similar view was held in the matter of United Plant Hire (Pty) Ltd v Hills and
others14, where the court stated the position succinctly as follows:
"It is well settled that, in considering applications for condonation, the Court
has a discretion to be exercised judicially upon a consideration of all the facts;
and that in essence it is a question of fairness to both sides. In this enquiry,
relevant considerations may include the degree of non -compliance with the
relevant Rules, the explanation therefore, the prospects of success on
appeal, the importance of the case, the respondent's interest in the finality of
his judgment, the convenience of the Court, and the avoidance of

his judgment, the convenience of the Court, and the avoidance of
unnecessary delay in the administration of justice. The list is not exhaustive.
These factors are not individually decisive but are interrelated and must be
weighed one against the other; thus a slight delay and a good explanation
may help to compensate for prospects of success which are not strong".

13 [1999] 3 BLLR 209 (LAC) at para 10.
14 1976 (1) SA 717 (A) at 720 E-G.

21

[82] In Nair v Telkom SOC Ltd and Others 15 , the Court held that significant with a
determination of such applications is that condonation cannot be for the mere
asking, and a party is required to make out a case entitling it to the court’s
indulgence by showing sufficient cause, and giving a full, detailed and
accurate account of the causes of the delay; and in the end the explanation
must be reasonable enough to excuse the default.
[83] The respondents have also not demonstrated prima facie prospects of
success to defen d the matter. No articulation of prospects of success has
been made in this application The respondents in its own affidavit conceded
that it has stopped the applicant’s salary, which decision was reversed by the
then Head of Department Mr Boshielo. Despite be ing aware that the
respondent has a right to charge the applicant for failing to comply with the
lawful instructions to attend to medical examinations, the respondent failed to
do so but continued to stop the applicant’s salary repeatedly.
[84] This court is obliged to consider the reasonableness and adequacy of the
explanation for the delay, in conjunction with other factors in making an order
that would achieve fairness to both parties.
[85] Prospects of success in the action is an important factor in determining
whether condonation should be granted in the present matter. It is trite that
the applicant will have to make out a case for condonation. In order to assess
the strength of his prospects of success, traversing the merits to some extent,
is necessary. In the condonation application, the respondents have not at all
demonstrated prima facie prospects of success to defen d the matter. No
articulation of prospects of success has been made in this application . The
respondents in its own affidavit conceded that it has stopped the applicant’s
salary, which decision was reversed by the then Head of Department Mr
Boshielo. Despite being aware that the respondent ha s a right to charge the

Boshielo. Despite being aware that the respondent ha s a right to charge the
applicant for failing to comply with the lawful instructions to attend to medical
examinations, the respondent failed to do so but continued to stop the
applicant’s salary again. The respondents instead raised several points in

15 (JR59/2020) [2021] ZALCJHB 449 (7 December 2021).

22

limines as a defence to the applicant’s claim ra ther than to put a valid
defence against the claim.
[86] The prejudice to the Applicants is obvious. The respondents have been tardy
in the way it has dealt with the matter and the Court tends to agree with the
applicant that it lacked the appreciation of the authority of this Court.
[87] Justice unnecessary delayed as a result of the conduct of the party to
litigation undoubtedly causes prejudice to the other litigant of the case. Finality
is an important part of litigation without which the party who did not cause the
delay suffers prejudice not only on the delay for relief but, also being denied to
put the matter to rest on time and more with the challenges of life.
[88] In view of the afore -going, the condonation application for the late f iling of the
rescission application falls to be dismissed.
Costs
[89] It is a rule of practice that costs following the result does not apply in labour
matters, however the Court retains its wide discretion in respect of costs in
consideration of the requirements of the law and fairness.
[90] In my view, this is a case where the interest s of justice will be best served by
making an order as to costs against the respondents , in particular in the
manner the respondents dealt with the matter and its lack of appreciation of
the orders of the court. This matter dates back to 201 7 and 2018, and
throughout the proceedings, the respondents have not shown any interest i n
dealing with the matter as expeditiously as possible, to the extent that it even
failed to abide by the Court’s directive to file its notice to oppose and
answering affidavit.
[91] In the premises, the following order is made:
Order
1. The contempt application is dismissed.
2. The condonation application is dismissed.

23




3. The respondents are ordered to pay the costs of this application on
the scale as between attorney and client, jointly and severally, the
one paying the other to be absolved

___________________
G. Mafa-Chali
Acting Judge of the Labour Court of South Africa

24

Appearances:
For the Applicant : Mr I N Risenga of Risenga Attorneys
For the Respondents : Adv M N Kgare
Instructed by : The State Attorney