Johan van Deventer - Directors May Face Possible Jail Time
Grant Adlam
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The purpose behind contempt proceedings is to secure compliance with court orders.
Contempt of court occurs when an individual or entity wilfully disobeys or shows disrespect to a court’s order, disrupting the administration of justice. This played out quite famously in Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others 2021 (5) SA 327 (CC) which made history in finding a former President of the Republic of South Africa in contempt of court and sentencing him to a period of incarceration. In labour law, contempt of labour court refers to an employer’s failure to comply with court orders related to employment disputes, labour violations, and even settlements. This contempt can lead to severe legal consequences, including fines, imprisonment, and the inevitable damage to the employer’s reputation.
In the recent case of Raubenheimer v Commission For Conciliation Mediation and Arbitration and Others (J424/24) [2024] ZALCJHB 340 handed down on 21 August 2024, the Labour Court found the company (and its directors) guilty of contempt of court for their non-adherence to a CCMA award and ordered them to effect the payment and actions of the contested arbitration award, or failing to do so, that the directors of the company be sentenced to a period of 30 days imprisonment each.
So, what leads to such an occurrence?
Where an employer has failed to comply with an award issued by the CCMA or a Bargaining Council, the employee may either approach the CCMA or the Bargaining Council (whichever has jurisdiction) and apply for the certification of the award. When the award is certified by the Director of the CCMA, the Sheriff is tasked to execute in terms thereof. Section 143(1) of the Labour Relations Act states that if a party then fails to comply with an arbitration award or the order of the performance of an act, other than the payment of an amount of money, any other party to the award may enforce it by way of contempt proceedings instituted in the Labour Court.
The Court in Raubenheimer referenced Snyman AJ’s direction in South African Municipal Workers Union and Others v Thaba Chweu Local Municipality and Another [2015] JOL 32840 (LC) outlying what proof is required (beyond reasonable doubt) to prove contempt:(1) there was a refusal to comply with the Order;(2) this refusal was wilful (deliberate); and(3) the deliberate refusal to comply must be mala fide, in other words, there must be a complete absence of any kind of bona fide justification for the refusal to comply.
Simply put, a respondent is in contempt where the respondent knows and understands the terms of the order and what is required to be done to comply with the order, but then without any cause or justification deliberately does not comply.
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The Court went on to reaffirm in Raubenheimer that a review application alone does not suspend the enforcement of an arbitration award and without compliance to sections 145(7) and (8) an award remains enforceable. It was in these circumstances that the employers were found to be in contempt of court.
By seeking timely labour law advice, employers can:
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