FACTS

On 28 June 2023 Solidarity and the erstwhile Minister of Employment and Labour concluded a settlement agreement, mediated by the CCMA, as part of a complaint lodged with the International Labour Organisation (ILO) objecting to the employment equity interventions by the Government. Pursuant to an application by Solidarity, the Labour Court made that settlement an order of court. The order formed part of Solidarity’s broader challenge to the 2022 amendments to the Employment Equity Act (EEA) dealing with the setting and enforcement of sectoral numerical targets by designated employers. For a more detailed account of this context, please refer to our alert on this settlement agreement here.

On 15 April 2025 the incumbent Minister of Employment and Labour promulgated the final Employment Equity Regulations. Solidarity contends that the regulations deviate materially from the terms of the court order and therefore constitute a breach of the court order. Relying on rule 58 of the Labour Court Rules, Solidarity launched an ex parte contempt application.

LAW

Civil contempt of court is a constitutionally permissible mechanism to enforce compliance with court orders, as affirmed in Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) and subsequent authority.

In contempt proceedings the applicant bears the onus of establishing:
(a) the existence of a valid order;
(b) service or notice of that order on the respondent; and
(c) the respondent’s non-compliance.

Once these three elements are shown, the evidentiary burden shifts to the respondent to prove that the non-compliance was neither wilful nor mala fide (bad faith).

Rule 58 prescribes a bifurcated procedure for contempt applications:

• Stage 1: an ex parte motion in which the applicant seeks an order directing the respondent to appear and explain its conduct; and
• Stage 2: the respondent is afforded an opportunity to explain its conduct and the court decides whether contempt has been proved and, if so, what sanction or remedial relief is appropriate.

APPLICATION OF LAW TO THE FACTS

The Labour Court acknowledged the absence of authoritative South African precedent on the evidential threshold an applicant must clear at Stage 1 of a bifurcated contempt application. Drawing on Namibian jurisprudence, the Court adopted the standard that the applicant must present prima facie evidence of a continuing breach of a valid court order.

Solidarity satisfied the Court that: (i) a court order embodying the settlement agreement exists; and (ii) the Minister had been served with that order. The alleged non-compliance, the Court observed, raises intricate questions of statutory interpretation and administrative action that cannot be resolved in the Minister’s absence. Accordingly, the Court held that the Stage 1 threshold had been met and issued an order directing the Minister to appear and show cause at Stage 2 why she should not be held in contempt and sanctioned.

The Court declined Solidarity’s further request for immediate coercive relief, namely, the withdrawal of the regulations and proof of compliance within 90 days, holding that such substantive remedies fall outside the limited purpose of Stage 1, which is confined to determining whether a prima facie case of contempt exists. Coercive or remedial orders can be contemplated only after the respondent has been heard or has been provided with an opportunity to be heard at Stage 2.

 KEY TAKEAWAYS

The Employment Equity Regulations of 15 April 2025 remain in force. Compliance is obligatory unless and until a court rules otherwise.

Rule 58 establishes a two step contempt procedure. At Stage 1 an applicant need demonstrate only prima facie non-compliance; definitive findings of wilfulness, bad faith and appropriate sanctions are reserved for Stage 2 after the respondent’s appearance.

Should the Court, at Stage 2, confirm contempt, it may issue any order necessary to purge the breach, including mandatory directives, time-bound compliance orders, or other relief.

When a settlement agreement made an order of court intersects with the executive’s delegated law-making powers (such as the promulgation of regulations) questions of interpretation, administrative justice and separation of powers may complicate enforcement.