Clause 13 of the Practice Manual of the Labour Court of South Africa (the Practice Manual) prescribes how contempt of court applications are launched and subsequently dealt with at the Labour Court (LC).
In terms of the Practice Manual, an applicant must first launch an ex parte application on a Friday in Motion Court, seeking an interim order that the respondent be ordered to appear before the court to show cause why they should not be held in contempt of court.
In the notice of motion, as per clause 13, the applicant should set out –
The notice of motion must be accompanied by the applicant’s affidavit setting out the relevant submissions’ concomitant to the contempt proceedings.
Thus, pursuant to the ex parte application, the court grants an interim order calling on the respondent to show cause why they should not be held in contempt of court on the return date.
The remedy of incarceration for failure to abide by an order of the LC always has and remains a remedy in contempt applications.
However, unlike the order of the Constitutional Court (CC) in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (Helen Suzman Foundation as amicus curiae) 2021 (9) BCLR 992 (CC); which ordered incarceration on punitive grounds; the LC would in all likelihood order incarceration for coercive reasons.
In KPMM Road and Earthworks (Pty) Ltd v Association of Mineworkers and Construction Union and Others (2018) 39 ILJ 609 (LC), the LC held;
‘In the case of contempt of court, the applicable penalty to be imposed can be a period of imprisonment, a fine, or both. … But even if punishment is to be dispensed, I believe that punishment must however always have a purpose. Punishment for the sake of punishment has no point.’
Similarly, in Orthocraft (Pty) Ltd t/a Advanced Hair Studios v Musindo and Another (2016) 37 ILJ 1192 (LC), the Labour Court held that ‘the primary aim of contempt proceedings was to ensure compliance and not to punish’ (see also Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)).
This approach is likewise practical – it would serve little or no purpose to an employee who wants to be reinstated, to have their employer incarcerated for punitive reasons, without first using the threat of incarceration to force the employer to abide by the previous court order. Put differently, the order of incarceration ought to serve to compel the employer to abide by the previous court order failing which, they would be jailed.
On this score the court in the KPMM Roads and Earthworks case held:
‘In the case where the court order requires a party to take positive action, commit a specific act, or refrain from committing a specific act, which remains unfulfilled despite the order, then the appropriate punishment would be imprisonment as a punishment of first instance. The threat of imprisonment must surely be the most effective deterrent to ensure the necessary is done. For this reason, an order of imprisonment is normally suspended on condition that immediate compliance happens, and if the transgression persists, then the transgressor must serve time’ (see also Pikitup Johannesburg (Pty) Ltd v SA Municipal Workers Union and Another (2016) 37 ILJ 1710 (LC)).
Unlike the applicable principle in other courts, that being costs follow the result, s 162 of the Labour Relations Act 66 of 1995 governs the way the LC decides when to issue a cost order against a party.
The section reads:
‘(1) The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness.
(2) When deciding whether or not to order the payment of costs, the Labour Court may take into account –
(a) whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and
(b) the conduct of the parties –
(i) in proceeding with or defending the matter before the Court; and
(ii) during the proceedings before the Court.
(3) The Labour Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court’.
On the application of s 162, the CC in Zungu v Premier of the Province of KwaZulu-Natal and Others (2018) 39 ILJ 523 (CC) held:
‘The rule of practice that costs follow the result does not apply in Labour Court matters. In Dorkin, Zondo JP explained the reason for the departure as follows:
“The rule of practice that costs follow the result does not govern the making of orders of costs in this court. The relevant statutory provision is to the effect that orders of costs in this court are to be made in accordance with the requirements of the law and fairness. And the norm ought to be that costs orders are not made unless the requirements are met. In making decisions on costs orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers’ organisations from approaching the Labour Court and this court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this court frivolous cases that should not be brought to court.”
In this matter, there is nothing on the record indicating why the Labour Court and Labour Appeal Court awarded costs against the applicant. Neither court gave reasons for doing so. It seems that both courts simply followed the rule that costs follow the result. This is not correct’.
Having said that and in keeping with s 162(2)(b), I would surmise that an employer who has offered the court no plausible reasons to justify their recalcitrant behaviour, may well be met with a cost order against them in contempt proceedings.
Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).
This article was first published in De Rebus in 2021 (Oct) DR 10.
