IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J1014/24
In the matter between:
PSA obo MODISE MMADIKGOMO SOPHIE Applicant
and
THE MEMBER OF THE EXECUTIVE COUNCIL:
PUBLIC WORKS & ROADS, NORTH WEST PROVINCE First Respondent
THE HEAD OF DEPARTMENT:
PUBLIC WORKS & ROADS, NORTH WEST PROVINCE Second Respondent
MOSES IKGOPOLENG KGANTSI Third Respondent
Heard: 6 May 2025
Delivered: 18 February 2026
___________________________________________________________________
JUDGMENT
___________________________________________________________________
ENGELBRECHT, AJ
2
Introduction and background
[1] The Applicant seeks an order that the First to Third Respondents, i.e. the
Member of the Executive Council: Public Works & Roads, North West
Province (MEC), the Head of Department: Public Works & Roads, North West
Province (HOD), and Mr Moses Ikgopoleng Kgantsi (Mr Kgantsi), be “ found
guilty of contempt” and that, in consequence, they be incarcerated and/or
fined in an appropriate amount.
[2] As is the practice, the application was initially brought ex parte. On 6 February
2025, Ramjii AJ issued an order calling upon the Respondents to show cause
why they should not be held in contempt for failing to comply with a certified
Arbitration Award of 6 March 201 7, allowing them, for that purpose, to file an
affidavit prior to the hearing. Thereafter, on 14 March 2025, my sister
Phehane J extended the rule nisi to enable the Applicant to serve the rule nisi
and the application on the Respondents. The matter accordingly came before
this Court on 6 May 2025.
[3] The Applicant is the Public Servants’ Association (PSA), a duly registered
trade union acting on behalf of its member ( Ms Modise), who is now retired,
but who was formerly an employee of the Department of Public Works &
Roads, North West Province (the Department).
[4] The factual background on which the PSA relies is as follows:
4.1. On 6 March 2017, the Public Service Coordinating Bargaining
Council (PSCBC) issued an Arbitration Award, ordering the
Department to grade progress Ms Modise from salary level 6 to
salary level 7.
4.2. On 24 March 2017, the PSCBC transmitted the Arbitration Award to
one “M Rakgoale”, a Labour Relations Official of the Department
who represented the Department at the arbitration.
4.3. On 5 June 2017, the Department launched a review, but that review
lapsed for failure to prosecute it within the prescribed time period.
3
4.4. On 31 March 2023, Ms Modise retired. She remained at salary level
6 at that point.
4.5. On 10 June 2024, the Commission for Conciliation, Mediation and
Arbitration (CCMA) certified the Arbitration Award in terms of section
143(3) of the Labour Relations Act
1 (LRA).
4.6. At no stage did the Department give effect to the Arbitration Award.
[5] The Respondents filed an answering affidavit deposed to by the State
Attorney acting for the Department.
5.1. He effectively states that the State Attorney did not prosecute the
Department’s review for a variety of reasons and discovered, toward
the end of January 2021, that the review had been archived.
5.2. He further explains that an application for reinstatement of the review
has been filed.
5.3. The deponent raises a point in limine that there was no personal
service.
5.4. In addition, he asks that the Court exercise a discretion to stay
enforcement of the Arbitration Award pending resolution of the
reinstatement and review applications.
5.5. Moreover, he asserts that the department was not aware that the
Arbitration Award had been certified. This came to light only when
the contempt application was filed.
Requirements for contempt
[6] The leading judgment on contempt of court is Fakie NO v CCII Systems
(Pty) Ltd
2 (Fakie). The Supreme Court of Appeal (SCA) recounted the
requirements for contempt as follows:
1 66 of 1995.
2 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).
4
“[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.”3
[7] There are four points to be highlighted:
7.1. 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.
7.2. Second, actual service of the order is not required; notification of the
order may suffice.
7.3. 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
7.4. 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.
3 Ibid at subparas 42 (c) and (d).
5
[1] 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) Limited4 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
[8] In the circumstances of the present case, this Court considers that the
applicable standard of proof is the criminal standard, as the relief sought is
incarceration and a fine.
[9] Before this Court is called upon to enter upon the question of wilfulness or
mala fides , it must be satisfied that the Applicant has shown, beyond a
reasonable doubt, that the Respondents bore knowledge of the order that
they are said to have been in contempt of.
[10] If that hurdle cannot be overcome, then the remaining questions that may
arise in the circumstances of the case (for example, personal service,
arise in the circumstances of the case (for example, personal service,
identity of the party or parties responsible for taking the actions required to
4 2018 (1) SA 1 (CC) at para 67.
6
give effect to the Arbitration Award, the effect of the lapsed review, and any
reinstatement application that may be pending) become irrelevant.
[11] Accordingly, I first deal with the question of knowledge of the order relied on.
11.1. It is common cause that the Arbitration Award was sent to the
Department, and that officials in the Department bore knowledge of
the Arbitration Award. Indeed, since the Department knew of the
Arbitration Award, it was placed in a position to initiate the now -
lapsed review.
11.2. However, the Applicant’s founding papers also make it evident that
the Arbitration Award was certified more than seven years after it
was rendered.
11.3. Absent from the founding papers is any allegation that either the
application for certification of the Arbitration Award or the certification
itself was sent to the Department, or to the MEC or the HOD.
[12] The question that arises directly is this: does knowledge of the Arbitration
Award issued in March 2017 suffice for purposes of these contempt
proceedings, or is the Applicant required to show knowledge of the
certification?
[13] The starting point is section 143 of the LRA. In the relevant parts, it reads as
follows:
“143 Effect of arbitration awards
(1) An arbitration award issued by a commissioner 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.
…
7
(3) An arbitration award may only be enforced in terms of subsection (1) if
the director has certified that the arbitration award is an award
contemplated in subsection (1).
(4) If a party fails to comply with an arbitration award certified in terms of
subsection (3) that orders the performance of an act, other than the
payment of an amount of money, any other party to the award may,
without further order, enforce it may way of contempt proceedings
instituted in the Labour Court.”
[14] The Constitutional Court in Myathaza v Johannesburg Metropolitan Bus
Services (Soc) Ltd t/a Metrobus and Others 5 confirmed the finality and
enforceability of arbitration awards under section 143 of the LRA. However,
as my brother Meyerowitz AJ pointed out in Nxumalo & Others v Gauteng
Department of Sports, Arts, Culture & Recreation & Another
6 (Nxumalo):
“When it comes to the issue of contempt of the Labour Court (which is what the
present proceedings are all about), an arbitration award cannot be considered the
equivalent of a Labour Court order until that award has been certified. Two of the
essential requirements for a finding of contempt is that (a) a court order must exist,
and (b) the order must have come to the attention of the respondent. This means
that, until the arbitration award has been certified, no equivalent of a Labour Court
order exists. Furthermore, until the respondent has knowledge of the
certification of an award, the respondent cannot have knowledge of the
equivalent of a court order.”7
and
“In my view the phrase ‘final and binding’ in s 143(1) simply means that the
arbitration award is final and binding (which creates certain legal consequences such
as the accrual of interest), but the award cannot be considered the equivalent of
a Labour Court order until it is certified.”
[15] In coming to these conclusions, the learned Meyerowitz AJ placed reliance on
the observation of the Labour Appeal Court (LAC) in Commission for
5 2018 (1) SA 38 (CC).
the observation of the Labour Appeal Court (LAC) in Commission for
5 2018 (1) SA 38 (CC).
6 (2024) 45 ILJ 2778 (LC).
7 At para [24]. Footnotes omitted. Emphasis supplied.
8
Conciliation, Mediation & Arbitration v MBS Transport CC & others;
Commission for Conciliation, Mediation & Arbitration v Bheka Management
Services (Pty) Ltd & others
8 (MBS Transport), which expressed the view that
“If the certified aw ard to be enforced is for the performance of an act which
was not done, then contempt proceedings may be instituted in the Labour
Court … This may be done because in terms of subsection (1),
the certified award is assumed to be an order of the Labour Court”.9
[16] This Court also takes note of the comment of the LAC in Techniflex and
Another v Maanaso and Another
10 that the Labour Court a quo in that litigation
had “erred in finding beyond a reasonable doubt that the appellants were
wilfully in contempt of court” , including because “ it was common cause that
the certified award had not come to the knowledge of the appellants until the
contempt proceedings were initiated by the respondents”.
11
[17] The jurisprudence, therefore, dictates that the Applicant had to show
knowledge, not only of the Arbitration Award, but also of the fact of
certification.
[18] The facts of the present case underscore why this is so.
18.1. The Arbitration Award was certified seven years after it was first
granted, at a time when the employee in whose favour the relief had
been granted had been retired for more than a year.
18.2. The relief granted was for the adjustment of the salary band, and no
adjustment could be made once the employee was no longer in
employment.
18.3. Moreover, the Respondents explain that the individuals who now
occupy the positions of MEC and HOD were not in office when the
Arbitration Award was first brought to the Department's attention,
many years before the certification.
8 (2016) 37 ILJ 2793 (LAC).
9 MBS Transport at para 35, quoted in
10 (2021) 42 ILJ 366 (LAC).
11 At para [16].
9
18.4. To then reach the conclusion that the HOD and the MEC must be
held in contempt even though the certified Arbitration Award had not
been served on them or brought to their attention prior to the
moment when the ex parte application and order were served on
them would fly in the face of the requirement that they had
knowledge of the order they are said to be acting in contempt of.
[19] In circumstances where the Applicant has failed to show beyond a reasonable
doubt that those sought to be held in contempt had any notice of the certified
award, no further analysis is required. The requirements for contempt cannot
be met.
[20] The success that the Respondents have achieved in thwarting an order
holding them in contempt should be no cause for celebration. As the
Constitutional Court explained in Kirland:
12 “there is a higher duty on the state
to respect the law, to fulfil procedural requirements and to tread respectfully
when dealing with rights. Government is not an indigent or bewildered litigant,
adrift on a sea of litigious uncertainty, to whom the courts must extend a
procedure-circumventing lifeline. It is the Constitution’s primary agent. It
must do right, and it must do so properly” .
13 It is shocking that an employee
who obtained a favourable award is left without its benefit years after the fact.
The labour dispute regime under the LRA is intended to facilitate the
expeditious resolution of disputes. State departments that fail to comply with
awards and hide behind pending review applications that are not properly
pursued, for whatever reason, act inconsistently with the higher duty placed
on them. The “ victory” here is hollow, and this Court expresses its
dissatisfaction with the conduct of the Department and its responsible officials.
For this reason, no order of costs is made. The Applicant should not bear the
costs of an attempt – albeit an unsuccessful one – at holding the Department
and its officals responsible.
and its officals responsible.
[21] I make the following order:
12 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC).
13 Kirland at para 82. Emphasis supplied.
10
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
Applicant’s counsel: L Corns
Respondent’s counsel: S Dlali