THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no.: 2026-145875
In the matter between:
TSHEPANG RAMATAPA APPLICANT
and
THE PROPERTY PRACTITIONERS’
REGULATORY AUTHORITY (PPRA) FIRST RESPONDENT
THATO RAMAILI SECOND RESPONDENT
THE BOARD OF DIRECTORS OF THE PPRA THIRD RESPONDENT
Heard: 10 March 2026
Delivered: 07 August 2026
Contempt - defence of prescription - statutory arbitration award – it is the underlying
claim, not the award, that constitutes a ‘debt’ for purposes of the Prescription Act -
referral to CCMA interrupts prescription - statutory arbitration award prescribes after
30 years - wilful and mala fide non- compliance established - suspended custodial
sentence.
JUDGMENT
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
(3) Revised
__________ _______
Signature 07/08/2026
2
HARVEY, J
[1] On 13 November 2025, this Court (per Morajane AJ) issued a rule nisi calling
upon the second respondent, the Chief Executive Officer of the first respondent
(the PPRA), to appear on 10 March 2026 and show cause why she should not
be held in contempt of court for failing to comply with a CCMA arbitration award
issued on 10 November 2020.
[2] The award arose from a dispute referred to the CCMA by 5 PPRA employees in
terms of sections 6 and 10 of the Employment Equity Act 55 of 1998 (EEA).
They alleged that the PPRA discriminated against them by remunerating them
on a cost -to-company basis , whilst paying other employees on a more
favourable basis, known as the basic-plus-benefits salary structure.
[3] The arbitrator upheld their claim, concluding that the employer unfairly
discriminated against the 5 employees on the listed grounds of political opinion
and conscience. In his award dated 10 November 2020 (the Award) , he
ordered the PPRA to pay each employee compensation of R30 ,000 and to
place them on the basic -plus-benefits salary structure (hereinafter referred to
as ‘basic+’) with effect from 1 November 2020, by no later than 16 November
2020. He also directed the PPRA to take steps to prevent the same or similar
unfair discrimination from occurring in future.
[4] On 13 November 2020, Mr Oscar Mangole, the PPRA’s Human Resources
Manager, sent an email to the 5 employees confirming that their R30,000
compensation had been paid. The email continued:
I refer to point 30 on the Award, which states that the employer should put all of
you on the basic +plus structure with effect from 01 November 2020 by no later
than 16 November 2020. Please note that because of the payroll cut-off dates
this month the employer will effect the changes accordingly with the December
payroll. S hould there be any monies due to you as a result of the migration
from CTC to basic +plus salary structure, that will be backdated from 01
from CTC to basic +plus salary structure, that will be backdated from 01
November 2020 and paid with the December payroll.’
[5] Despite this assurance, it is common cause that t he employer has not, to date,
‘migrated’ the 5 employees to basic+.
3
[6] The applicant, Mr Ramatapa, is one of the 5. He remains in the PPRA’s
employ as a Provincial Transformation Administrator.
[7] On 30 March 2021 the arbitration award was certified by the CCMA in terms of
section 143(3) of the LRA.1
[8] In her answering affidavit Ms Ram aili, the PPRA’s CEO, acknowledges the
existence of the Award and the respondents’ knowledge thereof. She submits
that the employer complied with the Award ‘partially’ in that the R30,000
compensation was paid, as ordered. She admits, however, that the employees
were not placed on basic+.
[9] Ms Ramaili submits that the non-compliance with the Award was neither wilful
nor mala fide. She offers 3 ‘reasons for non-compliance’, being:
9.1 ‘Operational and/or financial reasons’: the Board of Directors has resolved
that it is uneconomical to retain all employees on basic+. On 29 July 2025
all employees were informed that the PPRA would be migrating them to
the cost -to-company salary structure. The employer then consulted with
its employees and, as of December 2025, all but 3 had agreed to be so
migrated;
9.2 ‘A conflicting Award by the Pension Fund Adjudicator (PFA)’: In January
2021, a group of employees, including Mr Ramatapa, referred a complaint
to the PFA, including that their pension fund deduction was too expensive.
Ms Ramail i avers that in its decision the PFA ‘endorsed’ the cost -to-
company salary structure; and
1 Section 143 of the LRA is headed ‘Effect of arbitration awards’ and provides that:
(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…
(2) …
(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).
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 by way of contempt proceedings instituted in the
Labour Court.
4
9.3 ‘The arbitration award has prescribed’: Ms Ramaili submits that the Award
is a debt which prescribed after 3 years in terms of section 11(d) of the
Prescription Act 68 of 1969 ( the PA), and ‘ consequently, the Award
cannot be enforced as it prescribed on 10 November 2023.’
[10] Mr Segage, who appeared for the respondents, focused in argument on the
proposition that the Award had prescribed after 3 years – that is, on 10
November 2023. He argued that the contempt application, which was launched
in August 2025, must accordingly be dismissed. This was because, in his
submission, the primary purpose of contempt proceedings is to secure
compliance, whereas the employer is no longer under an obligation to migrate
Mr Ramatapa to basic+. He also argued that the employer’s non -compliance
was neither wilful nor in bad faith, because the intention was ‘always’ to move
the basic+ employees onto the cost-to-company salary structure and Mr
Ramatapa was (now) being treated the same way as everyone else.
[11] Mr Ramatapa represented himself . He submitted that the employer had
deliberately defied the CCMA’s directive to migrate him to basic+ . Despite the
CCMA’s finding of unfair discrimination and the clear directive that the employer
take steps to prevent the same or similar unfair discrimination from occurring in
the future, it chose to perpetuate the discriminatory conduct for more than five
years and continues to do so.
[12] Mr Ramatapa explained that, had the Award been implemented, he would not
have been required to make certain monthly contributions associated with the
cost-to-company remuneration structure, including contributions towards his
pension fund and medical aid and a monthly ‘staff debt’ deduction of R3,973.
He had repeatedly demanded that the employer implement the Award, cease
making those deductions, and reimburse him for the amounts he had paid as a
consequence of its continued non-compliance. H e sought to be placed in the
consequence of its continued non-compliance. H e sought to be placed in the
financial position he would have been in, had the Award been implemented.
[13] Neither party asked for costs.
5
Prescription
[14] The employer contends that the Award prescribed in November 2023 and that
this necessarily disposes of the contempt application. The latter proposition
does not necessarily follow from the former. Even if an arbitration award were
to prescribe, it does not inevitably follow that contempt proceedings based on
earlier non- compliance are thereby precluded. It is a crime unlawfully and
intentionally to disobey a certified arbitration award, and contempt proceedings
are concerned not only with securing compliance, but also with vindicat ing the
dignity and authority of court s and, in cases such as the present one, tribunals
such as the CCMA . Past contempt is , to my mind, a different question from
present enforceability.
[15] I begin by examining the premise that the Award has prescribed. Counsel's
submissions proceeded on the basis that it is settled law that statutory
arbitration awards prescribe after 3 years. I am not persuaded that the
authorities are to this effect.
[16] The interaction between the Labour Relations Act and the Prescription Act has
been explored by the Constitutional Court and the Labour Appeal Court in a
number of cases, and it is helpful to examine th e leading decisions to identify
the decided legal principles.
Myathaza
[17] In Myathaza v Johannesburg Metropolitan Bus Services 2 the Constitutional
Court was called upon to determine whether an arbitration award reinstating an
employee was a ‘debt’ under the Prescription Act 68 of 1969 (the PA) which
had prescribed after 3 years. The employer’s review application had remained
pending for more than 4 years when Mr Myathaza applied to make the award
an order of court. The Labour Court held that the award constituted a ‘debt’ for
purposes of the PA and that it had prescribed after 3 years. The LAC similarly
held that an award is a simple debt that prescribes after 3 years , and that
prescription is not interrupted by the institution of review proceedings.
prescription is not interrupted by the institution of review proceedings.
2 Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and others [2017] 3
BLLR 213 (CC) (Myathaza).
6
[18] Mr Myathaza approached the Constitutional Court, which unanimously held that
the award should be made an o rder of the Labour Court , but was evenly
divided as to why:
18.1 Jafta J ( supported by Nkabinde ADCJ, Khampepe J and Zondo J ), held
that the PA cannot apply to matters determined under the 1996 LRA.
They held that the LRA is post-1994 legislation enacted to give effect to
the constitutional right to fair labour practices, whereas the PA is pre-1994
legislation regulating the prescription of ordinary civil debts.3 In a separate
concurring judgment, Zondo J pointed out that, apart from judgment
debts, the PA provides for the extinction of debts for which liability has not
yet been finally determined, whereas a statutory arbitration award is not
such a debt because, like a judgment, it finally determines liability
between the parties.4
18.2 Froneman J (supported by Madlanga and Mhlantla JJ and Mbha AJ) held
otherwise. In his view, the PA is not inconsistent with the LRA , provided
the PA is reinterpreted in a manner that protects the fundamental right of
access to justice .5 He held that an unfair dismissal claim (which seeks
reinstatement, re -employment or compensation) is a claim for a 'debt'
under the PA .6 R eferring such a claim to the CCMA interrupts
prescription, and such interruption continues until review or appeal
proceedings are finalised.7
[19] No clear ratio emerged from Myathaza. The first judgment holds that the PA
cannot apply to matters decided under the LRA . The second judgment (the
approach later endorsed by the Constitutional Court) holds that the PA applies
but makes it clear that it is the unfair dismissal claim, as opposed to the award
determining that claim, that constitutes a debt capable of prescription. The
claim prescribes after 3 years , whereas a ( certified) arbitration award
3 Myathaza at 53-58.
4 Myathaza at 109-111.
5 Myathaza at 66-67.
6 Myathaza at 79.
7 Myathaza at 68 and 84-88.
7
prescribes after 30 years (the period of prescription applicable to a judgment
debt).8
Mogaila and van Tonder
[20] In Mogaila,9 decided the following year, the Constitutional Court found that, on
either approach in Myathaza, the appellant was entitled to an order declaring
that her reinstatement award had not prescribed. The LAC in Van Tonder 10
adopted the same approach.
Pieman’s Pantry
[21] In March 2018 t he Constitutional Court returned to the question of prescription
in FAWU obo Gaoshubelwe v P ieman's Pantry .11 In that matter, e mployees
dismissed for participating in an unprotected strike had referred an unfair
dismissal dispute to the CCMA . The CCMA had ruled that it lacked jurisdiction
to arbitrate , and the Labour Court dismissed the employees’ application to
review that ruling . By the time t he employees referred the dispute to the
Labour Court , more than 3 years had passed since the certificate of non-
resolution had been issued. Both t he Labour Court and the Labour Appeal
Court upheld the employer ’s assertion that the employees’ claim for
reinstatement had prescribed.
[22] Kollapen AJ, writing for the majority, noted that the core legal question for
determination was whether the PA applies to litigation involving unfair dismissal
claims brought under the LRA .12 He concluded that it does, thus settling the
question that had divided the Court in Myathaza. On the facts of that matter,
however, the employees’ claim for reinstatement had not prescribed, because
8 Myathaza at 71.
9 Mogaila v Coca-Cola Fortune (Pty) Ltd (2017) 38 ILJ 1273 (CC); [2017] 5 BLLR 439 (CC); [2017]
ZACC 6 (CC); 2018 (1) SA 82 (CC).
10 Van Tonder v Compass Group (Pty) Ltd and others [2017] 10 BLLR 1023 (LAC).
11 Food and Allied Workers’ Union obo Gaoshubelwe v Pieman’s Pantry (Pty) Limited [2018] ZACC 7
(Pieman’s Pantry).
12 Pieman’s Pantry at 138 and at 1.
8
their referral of the unfair dismissal dispute to the CCMA for conciliation had
interrupted prescription.
Brompton Court
[23] Pieman’s Pantry was decided on 20 March 2018. Three days later , the
Supreme Court of Appeal issued its judgment in Brompton Court Body
Corporate v Khumalo. 13 That case concerned the effect of a private arbitration
under the Arbitration Act 42 of 1965 . The SCA held that a private arbitration
award does not create a new debt , thus beginning a fresh 3- year period of
prescription. Rather, under s 13(1)(f) of the Prescription Act, pending private
arbitration is an ‘impediment’ to the completion of prescription of the underlying
debt. Significantly, however, the SCA expressly held that different
considerations would apply to statutory arbitration under the Labour Relations
Act.14
Motsoaledi v Mabuza
[24] In September 2018, the LAC delivered its judgment in Motsoaledi v Mabuza. 15
Ms Mabuza had referred a dispute to the bargaining council , claiming that the
employer’s failure to translate her to the post of Deputy Manager: Nursing
amounted to an unfair labour practice. She had obtained an award in her
favour dated 7 October 2010 . The employer did not comply with the award.
The award was certified on 3 October 2013, and Ms Mabuza applied to make it
an order of the Labour Court. Shortly thereafter, she launched an application to
hold the employer in contempt of court , to which it responded that certification
of the award had not interrupted prescription, and that the award had
prescribed on 6 October 2013. The Labour Court held that certification had
interrupted prescription, and made the award an order of court. The matter was
taken on appeal to the LAC.
13 Brompton Court Body Corporate v Khumalo (398/2017) [2018] ZASCA 27 (Brompton Court).
14 Brompton Court at para 9, referring to Myathaza and Mogaila.
15 Motsoaledi and Others v Mabuza (JA47/16) [2018] ZALAC 43; [2019] 1 BLLR 21 (LAC); (2019) 40
ILJ 117 (LAC) (6 September 2018) (Mabuza).
9
[25] The LAC summarised the legal principles established in Myathaza and
Pieman’s Pantry: a claim for unfair dismissal activates proceedings for the
recovery of a ‘debt’ as contemplated in the PA; there is no conflict between the
PA and the LRA; the referral of a dispute to the CCMA interrupts prescription of
the claim ; and such interruption continues until the outcome of review
proceedings.16 There was no reason to treat claims for unfair labour practices
differently from claims for unfair dismissal . An unfair labour practice claim is
accordingly a ‘debt’17 in respect of which presc ription begins to run as soon as
it is due. The debt is extinguished after 3 years.18
[26] The LAC then considered whether the debt (the unfair labour practice that was
the subject of the arbitration proceedings ) had prescribed in accordance with
the PA as interpreted by the Constitutional Court. It noted that the
Constitutional Court in Pieman’s had adopted Froneman's approach in
Myathaza, namely that the interruption of prescription ceases when review
proceedings are terminated by judgment. The judgment continues:19
[26] ….The award in this appeal was not taken on review. So when did the
interruption of prescription cease?
[27] The reasoning in Myathaza suggests that the interruption of prescription
ceases when the award is published because the publication of the award
gives rise to a new prescription period of 30 years. This follows from the
observation made in the judgment at para 71:
‘[71] Where a debt is the object of a dispute subjected to arbitration, the
period of prescription is delayed. The award of an arbitrator in terms of
an arbitration agreement has the status of a court order between the
parties, and the applicable prescription period is that which is
applicable to a judgment debt. There seems little reason why parties
subjected to statutory arbitration should not enjoy similar protection in
respect of arbitration awards in their favour.’
16 Mabuza par 20.
respect of arbitration awards in their favour.’
16 Mabuza par 20.
17 Mabuza par 22.
18 Mabuza par 24.
19 Mabuza paras 26-28.
10
[28] It follows that, on the application of Froneman’s judgment in Myathaza to
the facts of this appeal, the award gave rise to a new period of
prescription of 30 years. This period had not expired when the
respondent’s application to hold the appellant in contempt of court was
served.
[27] In its judgment the LAC also considered the SCA’s decision in Brompton Court
Body Corporate v Khumalo 20 and observed, obiter, that on that approach
Mabuza’s claim would have prescribed.21
[28] The LAC nevertheless held that it was bound by the Constitutional Court ’s
decision in Pieman’s and by Froneman’s approach in Myathaza.22 On the facts,
the arbitration award gave rise to a new prescription period of 30 years, which
period had not yet expired when Ms Mabuza applied to hold the employer in
contempt of court.23 Although it was unnecessary, in view of this conclusion, to
decide whether an application to certify an award interrupt s prescription, the
LAC held that it does not.24
Majebe
[29] In NUM obo Majebe v Civil and General Contractors 25 the Labour Court had
refused to make an arbitration award, which had been taken on review, an
order of court, on the basis that it had prescribed. Coppin JA observed that the
majority judgment in Pieman’s had confirmed the judgment of Froneman in
Myathaza and that the law is that:26
29.1 The PA applies to claims under the LRA;
29.2 A claim for reinstatement is a debt and prescribes after 3 years;
20 Brompton Court Body Corporate v Khumalo [2018] ZASCA 27; 2018 3 SA 347 (Brompton).
21 Mabuza par 36. The LAC here omitted to engage with the SCA’s express disclaimer to the effect
that different considerations apply to statutory arbitrations under the LRA (Brompton par 9).
22 Mabuza par 39.
23 Mabuza par 28. This is because an application to certify an award does not satisfy section 15( 1) of
the PA, as it is not a process claiming payment of the debt, nor must it be served on the debtor.
24 Mabuza par 30.
24 Mabuza par 30.
25 NUM obo Majebe v Civil and General Contractors [2021] JOL 49619 (LAC) (Majebe).
26 Majebe par 32-33.
11
29.3 Referring an unfair dismissal dispute to the CCMA interrupts prescription,
and prescription remains interrupted until review proceedings are
finalised.
[30] The LAC held that the award had not prescribed because the review had
interrupted prescription.
[31] At paragraph 38, the LAC held that ‘the appellant’s award for reinstatement and
back pay, which is a debt as contemplated in the PA, has not yet prescribed
because the respondent’s application to review that award has not been
finalised’. It continues:
[39] While the facts in Pieman's were slightly different from those in the present
matter, they are similar in material respects. To reiterate, there the majority of
the Constitutional Court concluded that a claim in terms of the LRA for
reinstatement, or re- employment and/or compensation was a ‘ debt’ as
contemplated in the Prescription Act and the prescriptive period was three
years. While a claim for such relief and an award granting such relief are
conceptually different, it is rather artificial to conclude that such a claim is a
‘debt’ in terms of the Prescription Act, but that an award, in terms of which such
a claim is granted, is not . In any event, an award made pursuant to a claim for
reinstatement (or for re-employment, or compensation) also seeks to enforce a
legal obligation and enjoins the employer to do something positive. In this
instance, to essentially resuscitate Mr Majebe's employment agreement with it
and to pay him back -pay. A quintessential ‘debt’, and as contemplated in the
Prescription Act.
[40] More importantly, the Constitutional Court in Pieman's held that a referral
to the CCMA interrupts prescription, and prescription remains interrupted until
the finalisation of the processes relating to it, which would include the review
proceedings of the award made consequent to the referral.
[40] …
[41] That view is confirmed in the amendment to section 145 of the LRA.
Section 145(9) provides, in essence, that a review application does interrupt the
Section 145(9) provides, in essence, that a review application does interrupt the
running of prescription in respect of an award made in terms of the LRA.
12
[42] Thus, while the Labour Court was correct in applying this Court's decision
in Myathaza (LAC), it erred in its conclusion, as this Court erred, that the review
application brought by the respondent did not interrupt prescription. In the
circumstances, the decision of the Labour Court cannot stand. [emphasis
added]
Koopman
[32] Counsel for the employer also relied on SAMWU obo Koopman v City of Cape
Town and others 27 in support of his proposition that awards prescribe after 3
years. In that matter, the Labour Court had dismissed the employee’s
contempt application on the basis that the award, which had been issued more
than 9 years prior and had not been taken on review, had prescribed. In an
appeal to the LAC, the union argued that an arbitration award is not a debt that
prescribes after 3 years but, once certified, it prescribes after 30 years like a
judgment of the Labour Court. It submitted that it is the claim, not the award,
that prescribes. The LAC recorded these submissions , but elected to decide
the matter only with reference to the undisputed fact that the employee had
failed to tender his services , making it unnecessary to decide the question of
prescription.
Summary of legal principles
[33] Three legal principles relevant to the present enquiry emerge from these
authorities:
33.1 First, that it is the underlying LRA claim (the unfair dismissal or unfair
labour practice claim) that constitutes the ‘ debt’ for purposes of the PA.
That claim prescribes after three years (Myathaza, as confirmed in
Pieman's Pantry);
33.2 Second, that referring the claim to the CCMA (or bargaining council with
jurisdiction) interrupts prescription until the statutory process, including
27 South African Municipal Workers Union obo Koopman v City of Cape Town and Others (CA5/2023)
[2025] ZALAC 7; [2025] 5 BLLR 495 (LAC); (2025) 46 ILJ 1132 (LAC) (22 January 2025) (Koopman).
13
statutory arbitration and any review proceedings, has been concluded
(Myathaza, as confirmed in Pieman's Pantry);
33.3 Third, that the prescription period applicable to a statutory arbitration
award that finally determine s the LRA claim is that applicable to a
judgment debt ( Mabuza, relying on paragraph 71 of Froneman J's
judgment in Myathaza).
[34] What, then, is to be made of paragraph 39 of Majebe, which describes the
award itself as a debt ? I n my view, that observation is obiter; it was
unnecessary to the issue before the Court , namely whether prescription of the
underlying claim had been interrupted by the review. I therefore do not read
that paragraph as having displaced the ratio in Mabuza , particularly in the
absence of any express consideration by the LAC of that decision.
[35] In support of his conclusion that an LRA award falls to be treated , for purposes
of prescription, like a judgment debt , Froneman J observ ed that there is no
reason why parties who must submit their labour disputes to statutory
arbitration should not enjoy the same protection in respect of their awards as
parties whose disputes fall to be adjudicated in the Labour Court .28 Th e
allocation of labour disputes between the CCMA /bargaining councils and the
Labour Court is purely ‘pragmatic’ and is not based on any substantive
distinction between the rights in issue. 29 The disputes all involve the vindication
of statutory rights enacted to give ef fect to constitutional rights , and all are
resolved by the application of law either in the Labour C ourt or before the
CCMA/bargaining council , which is a ‘tribunal’. It would be anomalous if a
CCMA award prescribed after 3 years whereas an order of the Labour Court
prescribed after 30 years, because the enforceability of a final determination of
constitutional rights would then depend solely upon the forum to which
Parliament had directed the dispute.
Parliament had directed the dispute.
28 Myathaza at 71; see also National Union of Metalworkers of South Africa obo M Fohlisa and Others
v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (CCT04/16) [2017] ZACC 9;
[2017] 6 BLLR 539 (CC); 2017 (7) BCLR 851 (CC); (2017) 38 ILJ 1560 (CC) (30 March 2017)
confirming that an order for backpay consequent upon reinstatement is a judgment debt .
29 Myathaza at 84-85.
14
[36] Finally, in support of the contention that an award prescribes after 3 years,
counsel for the employer pointed me to section 145(9) of the LRA , which
provides that the institution of review interrupt s the running of prescription ‘ in
respect of the award’. Froneman J expressly considered that LRA provision in
Myathaza30 and observed obiter that it was doubtful whether it sufficiently
indicated a legislative intention that the PA should apply to arbitration awards ,
suggesting instead that it was enacted in response to earlier Labour Court and
Labour Appeal Court decisions. In my view, the wording of section 145(9) does
not support the proposition that the award, as opposed to the underlying claim,
is itself a debt for purposes of the PA. The subsection can be read consistently
with Myathaza and Pieman's Pantry as referring to the underlying statutory
claim finally determined by the award.
Conclusion regarding the point of prescription
[37] As the point was not raised or argued before me, I shall assum e, without
deciding, that a claim of unfair discrimination under the EEA is , like an unfair
dismissal or unfair labour practice claim under the LRA, a claim for a ‘debt’ for
purposes of the PA. A claim of unfair discrimination would, in that case,
prescribe after 3 years. Prescription is interrupted by referral of the claim to the
CCMA and remains interrupted until the dispute has been finally determined,
whether by arbitration (and any review proceedings) or by judgment of the
Labour Court (and any appeal proceedings).
[38] It follows that the Award in favour of Mr Ramatapa, issued by the CCMA on 10
November 2020, has not prescribed.
[39] In light of my conclusion that the Award has not prescribed, it is unnecessary to
determine whether the subsequent prescription of a statutory arbitration award
would, in any event, preclude contempt proceedings founded upon earlier wilful
non-compliance with that award.
30 Myathaza at 61. See also Majebe at para 41.
15
Contempt
[40] The present contempt application concerns the respondents’ failure to comply
with paragraph 30 of the Award, which required that Mr Ramatapa be migrated
to basic+ with effect from 1 November 2020.
[41] The requirements for civil contempt are well established. Once the applicant
proves the existence of the order, knowledge thereof, and non- compliance,
wilfulness and mala fides (bad faith) are presumed. The respondent then bears
an evidential burden to adduce evidence which establishes a reasonable doubt
as to whether the non -compliance was deliberate and in bad faith. Wilfulness
means deliberate non-compliance with the order. Bad faith entails that the non-
compliance was not the result of an honest mistake, misunderstanding or
inability to comply, but a conscious decision not to do so.
[42] The second respondent has failed to discharge that evidential burden. None of
the explanations advanced by Ms Ramail i raises a reasonable doubt as to
either wilfulness or bad faith. On her own version, t he employer deliberately
declined to implement paragraph 30 of the Award. Her affidavit seeks to justify
that decision.
[43] None of the reasons advanced justifies the deliberate non- compliance. The
employer’s operational preference for the cost -to-company salary structure
does not entitle it to disobey paragraph 30 of the Award. The Pension Fund
Adjudicator's determination concerned the employer’s failure to register
employees and to pay over their contributions. It did not address , much less
determine, Mr Ramatapa’s entitlement to basic+. Nor do the 2025
consultations with employees relieve the employer of its obligation to comply
with a binding arbitration award addressing a finding of unfair discrimination. Ms
Ramaili's evidence that almost all employees accepted migration to the cost -to-
company remuneration structure during 2025 neither excuses the respondents'
failure to comply with paragraph 30 of the Award nor renders compliance
failure to comply with paragraph 30 of the Award nor renders compliance
impossible. If the first respondent wishes thereafter to consult with Mr
Ramatapa regarding any future migration, it remains free to do so in
accordance with the law.
16
[44] The respondents deliberately elected not to implement paragraph 30 of the
Award because they disagreed with its consequences and preferred a different
remuneration structure. That deliberate and unjustified non-compliance was not
the product of any honest mistake, misunderstanding or inability to comply.
[45] I am accordingly satisfied, beyond a reasonable doubt, that the respondents’
non-compliance with paragraph 30 of the Award was both wilful and mala fide. I
find Ms Ramaili , in her capacity as Chief Executive Officer of the PPRA, in
contempt of paragraph 30 of the arbitration award dated 10 November 2020.
Sanction
[46] The purpose of a sanction for civil contempt is twofold. It is intended both to
secure compliance with the Award and to vindicate the dignity and authority of
the Court. Those objectives must be balanced in determining an appropriate
sanction.
[47] The first respondent has deliberately failed to comply with paragraph 30 of the
Award for more than five years. Ms Ramaili has failed to raise reasonable
doubt that the non-compliance was wilful and mala fide . The applicant
approached this Court primarily to secure compliance with paragraph 30 of the
Award. A fine payable to the Registrar would do little to achieve that objective.
[48] I am satisfied that th at conduct warrants a custodial sentence. The sentence
should, however, be suspended to afford the respondents a final opportunity to
comply with paragraph 30 of the Award.
[49] As to the period for compliance, I consider that t he first respondent has been
aware of paragraph 30 of the Award since November 2020 and requires no
further opportunity to comply. 30 calendar days is sufficient time within which to
implement paragraph 30 of the Award and give it full retrospective financial
effect. A suspended sentence of imprisonment therefore best serves the dual
purposes of civil contempt proceedings by securing compliance with the Award
purposes of civil contempt proceedings by securing compliance with the Award
while marking the seriousness of the continued non- compliance with a binding
arbitration award.
17
Order
[1] The second respondent, Ms Ramail i, is declared to be in contempt of
paragraph 30 of the arbitration award issued under case number GAJB24072-
20 on 10 November 2020 (the Award).
[2] The second respondent , Ms Ramaili, is sentenced to 14 days' imprisonment,
wholly suspended on condition that the first respondent, within 30 calendar
days of the date of this order, fully complies with paragraph 30 of the Award by
placing Mr Ramatapa on the basic -plus remuneration structure with effect from
1 November 2020 and by placing him in the financial position he would have
occupied had paragraph 30 of the Award been implemented in accordance with
its terms.
[3] In the event that the first respondent fails to comply with paragraph 2 of this
Order, the applicant is granted leave to re-enrol the matter, on the same papers
supplemented where necessary, for an order declaring that the condition of
suspension has not been fulfilled and directing that the sentence of
imprisonment be carried into operation.
[4] There is no order as to costs.
___________________
SJ Harvey
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr Ramatapa (in person)
For the Respondents: Mr Segage instructed by BZ Attorneys Inc