IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO:JR323/21
In the matter between:
RUDOLPH ARNOUX, MARE
And
Applicant
THE NATIONAL BARGAINING COUNCIL
FOR THE ROAD, FREIGHT AND LOGISTIC
INDUSTRY COUNCIL
First Respondent
MARI HAYWOOD N.O.
MMABATHO OLIVIA MOOEKETS N.O.
THE SHERIFF OFTHE HIGH COURT,
BOKSBURG
Second Respondent
Third Respondent
Fourth Respondent
Heard: 23 April 2026
Delivered: (This judgment was handed down electronically by
emailing a copy to the parties. The judgment is deemed 28 August 2026 is
deemed to be the date of delivery of this judgment).
JUDGMENT
MOGOLANE, AJ
(1) Reportable No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] The Applicant brought an application to set aside writ s of arrest issued
as a result of a court order, granted by Coetzee AJ under Case number
J 2203/19 on 21 August 2020. The application is premised on section
12 of the Constitution, the right not to be arbitrarily detained.
[2] The Applicant contends that the writ s for his arrest were issued in
violation of his Constitutional rights, as a court of law did not decide on
his committal but rather his opponent, the First Respondent, made this
final determination.
Background
[3] There had been several previous proceedings between the Applicant
and the First Respondent. Before its liquidation, the Applicant was
shareholder and sole director of Innovative Staff Holdings (Pty) Limited
(“ISH”). The First Respondent’s registered scope is the Road Freight
Industry, as defined in its certificate of registration. The First
Respondent’s Main Collective Agreement (MCA) obliges all employers
in the industry to register with the First Respondent and to render
returns on a monthly basis. The First Respondent averred that the
Applicant failed over many years to register with the First Respondent
and to provide returns to the First Respondent in accordance with its
MCA. Through the Order granted on 28 February 2020, entered into by
agreement between the parties, the Applicant accepted the
responsibility to ensure that all of the required documentation will be
submitted to the First Respondent.
[4] The matter thus has importance not only to the Applicant but also to all
the affected employees. According to the information received during
the demarcation dispute , there were more than 750 affected
employees. In the absence of the required registration and returns , the
Applicant has neither accounted for nor paid to the First Respondent
3
the amounts due in relation to the affected employees engaged in the
Road Freight Industry as prescribed by the MCA.
[5] The current dispute between the Parties mainly relates to the
interpretation of the Order granted by Coetzee AJ on 21 August 2020,1
and the constitutional implications thereof. The Order reads as follows:
1’ The Second Respondent is declared to be in contempt of a
certified Arbitration award of the CCMA dated
19 September 2019 under Case number MB897/18.
2’ The proceedings against the First Respondent is stayed in
view of its liquidation.
3’ The Second Respondent is sentenced to a period of
imprisonment for 30 days.
4’ The Sheriff of the Court is hereby authorized and ordered to
take the Second Respondent into custody and hand him over
to the South African Police Service and /or South African
Correctional Services for imprisonment in terms of this Order;
5’ The Orders in paragraphs 3 and 4 shall be suspended:
5.1’ In event the Second Respondent by 30th October 2020 fully
complying with the Order of this Court of 28 February 2020
and producing proof to the Applicant by such date of such
compliance;
5.2’ In the event of the Second Respondent by 30th October 2020
making arrangements to the satisfaction of the Applicant to
comply with the Order of this court of 28 February 2020 and
adhering to those arrangements.
6’ The Applicant is granted leave to supplement its papers and
approach this court for further relief in the event of the Award
1 Caselines 01137-01138
4
or this order not being fully complied with after execution or
attempted execution of the Orders above.
7’ The Second Respondent is liable for cost of this application on
a scale between attorneys and client including all costs of the
Sheriff relating to this order.
8’ In view of the final order t he Rule nisi is confirmed to the
extend incorporated in this order”.Emphasis added.
[6] The terms of the above Order dated 21 August are premised on an
earlier Order dated 28 February 2020 , entered into by agreement
between the parties , which essentially provides for a postponement of
the contempt proceedings against the Applicant , a return date for a
Rule Nisi, an order for wasted costs occasioned by the postponement
against the Applicant and the grant ing of leave for Condonation.The
Applicant was ordered to file properly completed registration
documents on behalf of ISH and submit all documentation required by
the First Respondent , to the First Respondent as an employer in the
Road Freight Industry, by no later than 13 March 2020.
[7] Furthermore, in terms of the Order of 28 February 2020, the Applicant
was also ordered to file the required monthly returns and subsequently
all outstanding returns on behalf of the ISH with the First Respondent
for January, February, Marchand May 2020 , no later than the dates
specified in the order being 20 March 2020, 20 April 2020 and
20 May 2020. The Applicant was also ordered to henceforth comply
with the MCA in the Road Freight I ndustry and with all l egal
requirements regarding payment of levies and other fees, and
submission of all relevant information and documents, as required by
the First Respondent .Provided that the Applicant have complied full y
and timeously with the terms of the order dated 28 February 2020 , the
5
First Respondent would file a notice of withdrawal of the Application by
25 May 2020.2 [Emphasis Added].
[8] The due date for compliance with the order dated 21 August 2020 was
30 October 2020.According to the First Respondent , on
30 October 2020 the Applicant had not met the conditions stipulated in
the Order.The Respondents advised the Applicant that he had not met
the conditions of the Contempt Order ; warning emails were sent to the
Applicant’s Attorneys. On 2 November 2020, the First Respondent’s
Attorneys confirmed to the Applicant’s Attorneys that the Applicant took
no steps to comply with the Contempt Order. The First Respondent’s
Attorneys subsequently had a Writ of Committal issued by the C ourt
Registraron 8 November 2020 and, on 21 December 2020, forwarded it
to the Fourth Respondent for execution. 3 There had been various
unsuccessful attempts to execute this Writ of Committal.
[9] Following the unsuccessful attempts to execute the writs ,the Applicant
brought an urgent application 4 with costs to be reserved, premised as
follows: Part A: that the enforcement and execution of paragraphs 3
and 4 of the Order granted by Coetzee AJ dated 21 August 2020 be
suspended; that the First and Fourth Respondents be interdicted and
restrained from taking any steps or further steps in execution of
paragraphs 3 and 4 of the same Court Order .Further that, the Fourth
Respondent be interdicted and restrained from executing the writ s of
arrest issued by the Registrar under case number J 2203/19 on
21December 2020 or any other writ of arrest for failure to comply with
paragraph 5 of the same Court Order.
[10] Part B of the Applicant’s U rgent Application sought an Order setting
aside the writ of arrest dated 21 December 2020 and 8 November 2020
and declaring that the Applicant complied with the Court order granted
2 Caselines 01139- 01140.
3 Caselines 004-3 para 8.12.
Caselines 01141- AM 3) 01143 (AM 4).
4 Caselines 009- 1;Caselines 009-6.
6
by Coetzee AJ dated 21 A ugust 2020 under case J 2203/19,“in so far
as it was legally and factually possible and permissible for him to do
so”. Alternatively,the Applicant sought a variation of paragraph 5 of the
same Order, to the effect that:the orders in paragraph 3 and 4 of the
same Order are suspended and further that paragraph 5.1 and 5.2 of
the same Order t o be read to include the phrase “in so far as it is
legally and factually possible and permissible for him to do so and
producing proof to the Applicant of such compliance”.
[11] This Court dismissed the urgent application. Subsequently, at the
hearing held on the 23 April 2026 the Applicant confined issues for
determination by this court in Part B to Prayers 5, 6 and 8 of the
Amended Notice of Motion, seeking an Order setting aside the writs
and/or further relief, and requesting that fourth Respondent be
interdicted and restrained from executing the writ of arrest dated
21 December 2020 or any other writ of arrest issued for failure to
comply with paragraph 5 of the same Court granted by Coetzee AJ.5
[12] Counsel for the Applicant submitted that the Order granted by
Coetzee AJ is conditional, coercive and unconstitutional , as n o court
made the determination of detention as entrenched in section 12(1) of
the Constitution for the Applicant’s committal. Only a court of law can
make the determination whether a person should be committed for
contempt of court , as committing a person involves imprisonment
(deprivation of their liberty).Furthermore, any detention of the Applicant
has to be both substantively and procedurally fair.
[13] The Applicant’s Counsel further contended that in the present case the
determination of whether the suspensive conditions were met was not
made by the Court and that once this Court accepts that only a court
could make such determination after a fair procedure, that would be the
end of the issues between the parties for the purposes of this
end of the issues between the parties for the purposes of this
application. Further issues relating to the question as to who made the
5Caselines 009-4
7
determination of the Applicant’s committal, Applicant’s substantive
compliance and further constitutional breaches were only addressed by
the Applicant out of the abundance of caution.Costs of opposition were
also sought by the Applicant.
[14] Counsel for the First Respondent contended that the Applican t’s
Constitutional challenge is a collateral attack on a valid O rder. The
Applicant‘s incarceration was already considered and pronounced
upon under the oversight of the Court on 21August 2020. Allowing the
Applicant‘s incarceration was not arbitrary in nature, as the C ourt had
already ordered such incarceration, having found the Applicant to be in
Contempt. The Court suspended the Order granted on 21 August in
order to allow the Applicant to comply with the terms of the O rder or
make alternative arrangements with the First Respondent for such
compliance.
[15] Furthermore, the First Respondent ’s Counsel submitted that the
Applicant failed to comply with the Court Order dated 21 August 2020.
The First Respondent’s Attorneys subsequently had a Writ of
Committal issued by the Court’s Registrar on 8
November 2020 and
21 December 2020 and forwarded the same to the Fourth Respondent
for execution .Furthermore, it was the First Respondent’s contention
that t here was no need for the First Respondents to approach the
Court for the second time prior to the writs being issued, as the Order
dated 21 August allowed for the Applicant’s imprisonment unless the
Applicant fully complied with the terms of the same Order. Furthermore,
prior to launching this constitutional challenge, the Applicant provided
the First Respondents with various excuses for his non- compliance
with the court order of 21 st August 2020. According to the First
Respondents, the Order dated 21 August 2020 is constitutionally valid.
If the Applicant was of the view that there was a mistak e or ambiguity
in Coetzee AJ’s O rder, the Applicant could have appealed, varied
and/or rescinded the same order.
8
Applicable Law
[16] In consideration of the issues between the parties , this court had
regard to the applicable law set out herein below. Section 38 of the
Constitution provides that anyone acting in their own interest has a
right to approach a competent court alleging infringement or threatened
infringement of constitutional right and a court may grant appropriate
relief including declaration of rights . It is also trite that e veryone has a
right to have a fair hearing prior to detention and to have any dispute
resolved and determined by theCourt.
[17] Section 12(1)(a) and (b) of the Constitution provides that e veryone has
the right to freedom and security of theperson, which includes the right
not to be deprived of freedom arbitrarily or without just cause, and not
to be detained without trial. It follows therefore that a ny deprivation of
freedom must be substantively and procedurally fair. A fair process and
acceptable reasons must follow any act of deprivation of freedom ;such
deprivation of freedom must also not be arbitrary and without just
cause.6 Furthermore, the determination for committal to prison can only
be made by a court of law. 7 Similarly, only a court of law can impose
and/or determine the manner in which conditions for committal are to
be met.
[18] The rights in the Constitution may only be limited by law of general
Application to the extent that the limitation is reasonable and justifiable
in an open and democratic society based on human dignity, equali ty
and freedom and taking into the relevant factors, including (a) nature of
the right (b) the importance and purpose of the limitation (c) the nature
and extent of the limitation (d) the relation between the limitation and its
purpose(e) less restrictive means to achieve the purpose.
8Any
deprivation of liberty must be reasonable and acceptable, having due
regard to dignity, equality and freedom of a person, the right to freedom
regard to dignity, equality and freedom of a person, the right to freedom
6 Makana Peoples Centre v Minister of Health and others 2023(5) 1 (CC)
7 In De Lange v Smuts and Others 1998(3) SA 785 (CC)- para 174
8 Section 36 Constitution
9
and security including the right not to be detained without trial, the right
to be free from all forms of violence and not to be tortured in any way
or to be treated or punished in a cruel, inhuman or degrading way. 9
Everyone has inherent dignity and the right to have their dignity
respected and protected.10The Courts uphold the right to dignity as the
Cornerstone of the Constitution.
[19] All of the rights are also limited by the R ule of law , which requires
legality. It is also trite that “interpretation of court order s is subject to
the same principle applicable to the interpretation of legislation,
contracts and any other written instruments . The general principle is
that interpretation is a unitary process, whereby the language used, the
context in which certain provisions appear and surrounding
circumstances leading to the creation of the document are all taken into
consideration in deriving the meaning of a document. I n this regard, a
sensible interpretation ought to be preferred over an insensible or
unbusinesslike one, or one that undermines the a pparent purpose of
the document”
.11
[20] The approach to be adopted when interpreting an Order or Judgment is
first to read the whole Judgment or Order and to give effect to the
ordinary literal meaning of words and language used in the judgment or
Order.12 Secondly, such interpretation must give effect to C ourt‘s
intention in the order and judgment . Thirdly, the interpretation must be
in accordance wit h the usual well knownrules relating to interpretation
of documents or legislation and have regard to the rule of law as well
9 Section 12 (1) ( b)-(c)
10 Section 10 Constitution
11Graduate Institute of Financial Sciences (Pty) Ltd v Insurance Sector Education andTraining
Authority and Another [2024] ZAGPJHC457 at para 33
12 See Volschenk v Volschenk 1946 TPD 486 at 487-“The Cardinal rule of construction is that
words must be given their ordinary, literal, grammatical meaning.”See also Hulisani
words must be given their ordinary, literal, grammatical meaning.”See also Hulisani
Viccel Sithangu v Capricon District Municipality (593/2022) 2023 ZASCA 151(14 November
2023) para 23. Zondi JA stated,“it is now settled, when interpreting a document including a
court order, the point of departure should be the language in question, read in context while
also having regard to the purpose of its provision and background.”
10
as the fundamental values entrenched in the C onstitution.13In that
case, Ackerman J stated:
“Accordingly, judicial officers must prefer interpretations of legislation
that fall within constitutional bounds over those that do not, provided
that such an interpretation can be reasonably ascribed to the
section.”14
[21] When interpreting orders or judgments,the Court must secure a
conclusion which is in line with the dictates of common sense and the
interests of justice. The Court’s intention in any Order or judgment can
be established from literal words used in the Order and the surrounding
circumstances. The main reason for the grant of an order has to be
established as well.
Evaluation and Interpretation
[22] It is Common cause that the terms of the Order dated 21 August 2020
are premised on the terms of the Order d ated 28 February 2020. The
terms of the Order dated 28 February 2020 were entered into by
consent between the parties .It is trite that a consent Order remains
legally binding between the Parties until it is set aside. In this regard,
the Constitutional Court held that, “Once a settlement agreement has
been made an order of court, it is an order like any other. It will be
interpreted like all court orders ”.15 An order or decision issued by a
court binds all persons to whom and organs of the state to which it
applies.
16 In the present case, the aforementioned two Orders remain
legally binding on the Parties. The two Orders must be read together in
order to better understand the intention of the court a quo.
13HulisaniSupra f(n) 12 at para 23.
14Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others ; In re: Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others [2000] ZACC 12; 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC);
2000 (2) SACR 349 (CC) at para 23.
15 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC);2016 (3) SA 37 (CC).
16 Constitution Section 165(5).
11
[23] The ordinary, literal meaning as well as the wording and language used
at paragraphs 1, 3 and 4 of the Order granted by Coetzee AJ dated
21August 2020 mean that, on 21 August 2020, the Applicant was found
to be in Contempt of court and the Applicant was on the same day
sentenced to 30 days'imprisonment for being in such Contempt. T he
Sheriff of the c ourt was authorised and ordered in terms of the very
same court order to take the Applicant into custody and hand him over
to the South African Police and/ or South African Correctional Services
for 30 days'imprisonment, unless on the occurrence of the two events
mentioned in subsequent paragraphs 5.1’ and 5.2 of the same Order.
17
[24] The language and wording used to at paragraph 4 of the same Order:
“hereby authorized” and “ in terms of this order ”, denotes that the
Sherriff is so authori zed to take the Applicant into custody and hand
him over to the South African Police Service and /or South African
Correctional Services for imprisonment in terms of the very order same
Order dated 21 August 2020 granted by Coetzee AJ’s under case
number J2203/19 in other words , the authority to execute paragraph 3
and 4 is granted by the same Order.
[25] Furthermore, by agreement between the Parties (in terms of the Order
dated 28 February 2020), the Applicant undertook to file monthly
returns and henceforth comply with MCA in the Road Freight Industry
and comply with all the legal requirements regarding payment of levies
and other fees, and submission of all rele vant information and
documents, “as required“ by the First Respondent. Currently, there is
no dispute between the parties regarding the constitutionality of the
Order dated 28 February 2020 or any misunderstanding of the terms
thereof. It is therefore clear that f rom the outset , the Applicant agreed
to comply “as required” by the First Respondent.
17 Caselines 01137- 01138 at para 1,3 and 4
12
[26] Having regard to the circumstances surrounding the grant of this Order,
it is clear that the First Respondent is well conversant with all the
relevant information, necessary returns, documents and all the relevant
legal requirements regarding registration, payment of levies and other
fees required for compliance with the MCA . The First Respondent also
averred that the returns envisaged in paragraphs 4.2 to 4.5 of the
Order of 28 February 2020 are nothing more than a reflection of
employee details and together with a mathematical calculation of
benefits due to those employees.
18 In this regard, the First Respondent
is in fact in a better position to fully investigate compliance and to make
compliance arrangements with the Applicant.
[27] In a way, the Court relied on the First Respondent ( as the Applicant in
the court aquo) to satisfy itself regarding the accuracy and veracity of
the information furnished by the Applicant. Similarly, all such
arrangements had to be made to the satisfaction of the First
Respondent and not the satisfaction of a court of Law. A court of law is
established for administration of justice;it is not an administrative office
responsible for investigating registration document s or process,
monthly returns, collection of fees and levies or payments required by
administrative bodies. From the outset, the Applicant consented
through Order dated 28 February 2020 that the Applicant would furnish
compliance “as required” by the First Respondent . It would be illogical
and absurd to now expec t any other form of compliance. There is
therefore nothing untoward with the terms of the Order granted to the
effect that full compliance be made as required by the First
Respondent and to its satisfaction.
[28] With regard to the issue of powers of Committal, the First Respondent
did not dispute that powers of committal lie with the courts. The First
Respondent however contends that the court a quo already made the
Respondent however contends that the court a quo already made the
final determination of the conditions for the Applicant‘s committal,
18Caselines 004-5 para 9.6.
13
which conditions were suspended subject to the terms of paragraphs 5
of the same order. This C ourt is in agreement with both parties that
only a court of law can make a determination for committal of persons
to prison. In this regard, this C ourt aligns itself with the views
expressed by the Constitutional Court 19 where Sachs J stated “…only
judicial officers should have the power to send people to prison. ” This
Court is also of the view that the court a quo already made the
determination for the Applicant‘s committal as well as the conditions
attached thereto, through the terms of paragraphs 1,3 and 4 of the
Order dated 21 st August 2020. In the same way, the conditions for
committal were also determined by a court of law in terms of paragraph
5, 5.1 and 5.2 of the same Order.
[29] The ordinary and literal meaning of the Order dated 21 August 2021
indicates that the court a quo ordered the Applicant’s committal having
found the Applicant to be in contempt of court. The just cause for the
Applicant’s committal Order was that the Applicant is in Contempt of
court. There is therefore no violation of Section 12 of the Constitution at
all, the right not to be deprived of freedom arbitrarily or without just
cause. The contempt Order was justified in that the Applicant failed to
comply with a previous Order . Through the Contempt finding, the
Court’s intention was to vindicate the court’shonour. The Court in E.K v
P.K and Others
20 held that “the object of Contempt proceedings is to
impose a penalty that will vindicate the court’s honour, consequent
upon disregard of its previous order as well as to compel performance
in accordance with the previous Order ”. The Court cannot ignore
lawlessness and / or injustice . In the circumstances, therefore, the
Applicant‘s right to freedom and security is limited by the rule of law
which requires legality. As already indicated , this matter has
importance not only to the Applicant but to a large number of affected
importance not only to the Applicant but to a large number of affected
employees.In the circumstances therefore , the limitation of the
19 In De Lange v Smuts and Others, supra, at para 174.
20 E.K v P.K and Others [2023] ZAGPPHC 257 at para 21.
14
Applicant’s rights by the court aqu o was reasonable and justifiable
having regard to the deeming Section 36 of the Constitution.
[30] During oral submissions it became clear that the contentious issue
between the parties was the interpretation of the next paragraph 5’, 5.1
and 5.2 of the Order dated 21August 2020. Once again, paragraph 5,
5.1 and 5.2 of the same Order must be read in light of the consent
order dated 28 February 2020. Parties already agreed to this process
of submitting compliance “ as required” by the First Respondent.
Therefore, the alternative Order to the effect that arrangements be
made with the First Respondent is consistent with the consent Order
dated 28 February 2020. In this regard, the terms of the Order dated 21
August 2020 are consistent with the terms of the Order dated
28 February 2020. In Volschenk, Malan J also stated the following “ If
…a rigid grammatical construction of the language employed leads to a
result which is manifestly absurd, unjust, unreasonable, inconsistent
with other provisions or repugnant to the general object, tenor or policy
of a statute, the court will be justified in departing from the literal sense
and in modifying or extending it in such a manner as will secure a
conclusion which will eliminate such objection and give expression of
the true intention of the legislature”.
21
[31] In the present case, there is also no justification for departing from the
literal meaning of the terms of Order dated 21 August 2020 as the
terms thereof are clear and unambiguous and consistent with the terms
of the Order dated 28 February 2020. The Court‘s intention here was to
afford the Applicant afurther opportunity of complying with its earlier
Order, which was subject to the Matter of the Contempt finding on the
21 August. The words “fully complying” as stated at paragraph 5.1 are
also self explanatory, such words must be read within the meaning and
context of the Order dated 28 February 2020. It was never the Court a
context of the Order dated 28 February 2020. It was never the Court a
quo‘s intention that partial compliance would constitute full compliance
21Volschenk Supra at 487-487-8
15
as such interpretation would clearly undermine the apparent purpose of
this Order.
[32] As already indicated, the apparent purpose of the Order and theCourt’s
intention was to give the Applicant an opportunity to fully comply with
the court Order dated 28 February 2020 rather than to coerce the
Applicant in any manner.The remarks of the C ourt 22 find application
herein ”a sensible interpretation ought to be preferred over an
insensible or unbusiness like one, or one that undermines the apparent
purpose of the document ”.Contrary to the submissions made by
Counsel for the Applicant t his meaning of interpretation by this court
can be gathered from ordinary words and language used at paragraphs
5.1 and 5.2 of the same Order, which reads:
5’ The Orders in paragraphs 3 and 4 shall be suspended:
“5.1’ In event the Second Respondent by 30th October 2020 fully
complying with the Order of this Court of 28 February 2020
and producing proof to the Applicant by such date of such
compliance;
5.2’ In the event of the Second Respondent by 30th October 2020
making arrangements to the satisfaction of the Applicant to
comply with the Order of this court of 28 February 2020 and
adhering to those arrangements“ Emphasis Added.
[33] It is therefore clear that the above terms of the Order dated
21 August 2020 are not coercive and unconstitutional as the Applicant
is afforded a further opportunity of avoiding the full effect of paragraphs
3 and 4 by complying with the strict terms of the Order dated
28 February 2020.An arbitrary Order would not have afforded the
Applicant this opportunity.
22 In Graduate Institute of Financial Sciences (Pty) Ltd v Insurance Sector Education and
Training Authority and Another Supra at para 39
16
[34] In terms of the same Order , during the period of suspension, the
Applicant had to furnish the required information to the satisfaction of
the First Respondent.The Applicant incorrectly refers to this element of
leniency and/or less restrictive means as an unconstitutional process
during which the First Respondent is allowed to “determine conditions”
for committal . It is clear from paragraph 5 of the Order dated 21 st
August 2020 that the Court a quo already determined the conditions for
the Applicant’s committal. All that the Applicant had to do was to satisfy
the First Respondent with full compliance or compliance arrangements.
The Court a quo was mindful of the Applicant’s inherent right to dignity
and right to have his dignity respected and protected by allowing him a
further opportunity to fully comply with the Order or to make alternative
arrangements.
[35] The Applicant also seems to be under an erroneous view that the
Contempt Order is conditional. 23 Contrary to the Applicant’s assertion,
the contempt finding is final and requires no further determination of
the finding or conditions attached thereto. The Committal Order
mentioned at paragraphs 4 and 3 were only suspended on t he
happening of the two events mentioned at paragraphs 5.1 and 5.2
thereof.
[36] It is also noteworthy that the Court referred to the compliance date of
“30 October 2020” twice in paragraphs 5.1’ and 5.2’ in amplification of
the same date and to allow paragraphs 5.1’ and 5.2’ to operate in the
alternative, meaning that in the event of paragraph 5.1’ being fulfilled,
the terms stipulated in paragraph 5.2 become superfluous. Full
compliance with paragraph 5.1 effectively nullified paragraph 5.2.
[37] This Court is mindful of the audi alterem partem rule and conscious of
the fact that decisions of the First Respondent are subject to judicial
control. The Applicant was afforded a hearing by this Court and the
23Caselines 011-2 para 5
17
Court a quo. There also appears to be no impropriety or mala fides on
the part of the First Respondent in requesting the information sought
from the Applicant. The Applicant averred that a fair procedure would
undertake a proper enquiry into the fulfilment of the suspensive
conditions. However, in his compliance Affidavit, the Applicant stated
that he was unable to comply by 30 October 2020 since he struggled to
gather all the information and even after requesting such inform ation
from previous employees, he was not supplied with such information. 24
He exhausted all reasonable measures in an attempt to comply with
the Court’s order dated 21 August 2020. It is therefore clear that on his
own version, the Applicant was unable to fully comply with the Order
dated 21August 2020, on or before 30 October 2020. This concession
is also in line with the information contained in the contested Writs.
[38] At the same time, the Applicant also averred in his compliance Affidavit
that he complied in that he sent Registration documents , which were
partly accepted and rejected by the First Respondents. 25 No averment
is made by the Applicant that he fully complied as contemplated by the
Order of 21 August 2020. Furthermore, the Applicant averred that he
was precluded from making arrangements for compliance with the
Court Order dated 28 February in circumstances where compliance
was “not legally and factually possible or permissible” having regard to
the liquidation. 26 The Applicant also submitted that he took all
reasonable steps possible for him to attempt to comply with the Court’s
order dated 21 August 2020, he is unable to comply . According to the
Applicant he also struggled to gather all of the information, and even
after requesting such information from previous employees, he was not
supplied with such.”27
24 Caselines 002-171 para 25.
25 Caselines 002-171 para 21.
26 Index 1 April 2021 (Part 5) page 417 para 34.3.
27 Caselines 002-171 para 25 and 26
18
[39] It has been five and a half years since the grant of the Order dated
21 August 2020, to date, no arrangements exist between the parties to
fully comply with the Order of 21 August.The Applicant raised various
challenges regarding his ability to comply with the Order dated 21
August 2020 as a result of the Liquidation of ISH which took place on
the 19th August 2020 (prior to the grant of the Order of 21 st August
2020).According to the Applicant , the fact that he may have
documentation relating to Innovative staff does not mean it is “ legally
and factually possible and/or permissible” for him to comply with the
Order. Applicant submitted that it has always been contended that an
extensive audit was required of the employees because IHS was not
only supplying employees to the transport industry but also other
industries 28
[40] During oral submissions made at the hearing held on the 23 rd of April
2026, Counsel for the Applicant submitted that paragraph 6 of the
Order obliged the First Respondent to approach the court for directions
as to compliance with suspensive condition “ prior to execution stage”.
This court disagrees. If the court a quo intended to be approached prior
to the execution stage, the Court would have stated such an option in
clear and unequivocal terms. Instead of clearly stating the option of
being approached prior to the execution stage, the court a quo opted to
state the following:
6’ “The Applicant is granted leave to supplement its papers and approach
this court for further relief in the event of the Award or this order not being
fully complied with after execution or attempted execution of the Orders
above. Emphasis Added. Clearly, the words “prior to” or “before
execution” are lacking in support of the Applicant ‘s proposition that
paragraph 6 oblige d the First Responde nt to make such an
approach before execution.This court is of the view that , it was not
the intention of the court a qu o that it should be approached agai n
the intention of the court a qu o that it should be approached agai n
to give effect to its Orders at paragraphs 3 and 4 of prior to the
28 Index 1 April 2021 (Part 5) page 415 para 28
19
execution stage. If this was the court a quo’s intention, it would
have been stated in clear terms.
[41] The Applicant was also at liberty to approach the court since the last
date of the grant of the Order . The Applicant could also have disclosed
any compliance issues to the court at his earliest convenience prior to
30 October 2020 and not merely wait for the First Respondent to set
the process of execution in motion. Again, if the Applicant was
unsatisfied with the terms of the court a quo ’s Order, he could have
applied for suitable remedies.
[42] Having considered all of the relevant facts of this case, the
requirements of law, and in fairness to both parties, the following Order
is made:
Order
1. The Applicant’s Application to set aside the two writs of arrest
dated 21
December 2020 and 8 November 2021is dismissed.
2. The two writs of arrest issued by the Registrar on
21
December 2020 and 8 November 2020 under cas e number
J2203/19 or any other writs of arrest issued for failure to comply
with paragraph 5 of the court Order dated 21 August 2020
granted by Coetzee AJ under the same case number J 2203/19
stand, for execution.
3. The leave granted to the First Respondent in terms of paragraph
6 of the same Order granted by Coetzee AJunder case number
J 2203/19 dated 21 August 2020, to supplement papers and
approach the court for further relief, is re- enforced. The matter
may be enrolled on the urgent roll due to the nature of its
exigency.
20
4. Costs are reserved for the determination of anyfurther relief as
contemplated by paragraph 5 of the Order dated 21 August
2020 under case Number J2203/1.
_________________
E.M. Mogolane
Acting Judge of the Labour Court of South Africa
21
APPEARANCES:
For the Applicants A. Katz SC with I. de Vos , and S. A. Karim
instructed by Cliff Dekker HofmeyrIncorporated.
For the first Respondent W.J.Hutchinson,
instructed byTricker Incorporated.