22 May 2018 Employment Alert

Comply or be committed to prison

Compliance with court orders is an important part of the dispute resolution mechanism in any legal system and as such, non-compliance with court orders goes against the binding nature of court orders and the powers of the court. The existence of the contempt procedure is to deal with instances of non-compliance and to ensure that in one way or another, non-compliance is punishable.

The recent Labour Appeal Court decision in Ilembe Outsourcing and Recruitment CC and Others v Nosango case (the Ilembe case) is an example of contempt orders used to ensure that court orders are complied with. Briefly, the facts of this case are that the employee was suspended and aggrieved by his suspension, he referred an unfair labour practice dispute to the CCMA, which directed the employer to uplift the suspension, reinstate the employee and pay him the arrear wages for the period of suspension. When he reported for duty, he was informed that there was no work for him.

Seeing that the employer did not intend to comply with the award, the employee instituted contempt proceedings at the Labour Court and the employer opposed this. The employer’s case was that the order of reinstatement was not appropriate, as the employee was never dismissed. The Labour Court ordered the employer to reinstate the employee within four days and the employee to approach the Labour Court in the event of non-compliance, on notice to the employer, for a directive for the employers’ members’ to be committed to prison for 15 days. The employer was a close corporation.

The employer appealed the Labour Court judgment on the basis that since its members would be the one who is committed to imprisonment, the employee must notify them when he approaches the Labour court for the directive. Although the Labour Appeal Court granted this order, it found that the employer’s members did not discharge the onus to show that their non-compliance with the award was not wilful and mala fide. The Labour Appeal Court found the members to be in contempt of court and that they are to be committed to imprisonment for 15 days. The order of committal was suspended for 10 days in order to afford the members to comply.

It is clear contempt applications are an effective tool in ensuring compliance with court orders especially when the relief sought is that of committal to imprisonment.

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