Beyond disobedience: What makes conduct contemptuous in labour law?

Contempt of court is a serious allegation, particularly in labour law where compliance with rulings and awards is essential to maintaining the integrity of dispute resolution processes.

The recent case of CCMA and Aphane v Discovery Connect Distribution Services and Others provides a timely reminder of what is required to prove contempt and the high threshold that must be met.

Background

The case arose from a constructive dismissal dispute referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). During arbitration, the employee requested disclosure of audio recordings and performance-related documents. The commissioner issued a disclosure ruling, directing the employer to provide the requested materials.

When the employer failed to fully comply, a contempt ruling was issued by the CCMA. The matter was referred to the Labour Court to confirm the contempt finding and potentially impose sanctions, including fines or imprisonment. The respondents opposed the application, arguing that they had made reasonable efforts to comply and that some of the requested materials could not be located.

What is contempt of court?

Contempt of court in the labour context typically arises when a party fails to comply with a court order, such as an order for reinstatement or compensation. However, not every failure to comply automatically amounts to contempt. The law requires a careful and structured approach.

Legal requirements for contempt

The Labour Court reaffirmed the legal principles governing contempt, drawing on the seminal case of Fakie NO v CCII Systems (Pty) Ltd.

To succeed in a contempt application, the applicant must prove the following elements beyond reasonable doubt:

Existence of a court or tribunal order

• There must be a clear and binding order issued by a competent authority.

Knowledge of the order

• The respondent must have been aware of the order, typically through service or communication.

Non-compliance with the order

• The respondent must have failed to comply with the order.

Wilfulness and mala fides (bad faith)

• The non-compliance must be deliberate and in bad faith.
• This is the most difficult element to prove and is often the reason why contempt applications fail.

Once the first three elements are established, the respondent bears an evidential burden to show that the non-compliance was not wilful or in bad faith.

The court’s findings

The Labour Court found that:

• The respondents had partially complied with the disclosure ruling.
• They provided a reasonable explanation for the missing documents and recordings, including evidence of diligent searches by the IT department.
• The CCMA had not provided a complete record of the contempt proceedings, making it difficult for the court to assess the basis of the contempt finding.
• The respondents’ conduct did not amount to wilful defiance or bad faith.

As a result, the court set aside the contempt ruling and directed the CCMA to proceed with the arbitration of the constructive dismissal dispute.

Legal implications

This judgment reinforces several important principles:

Contempt is not just about non-compliance

• Mere failure to comply with an order is not enough. The conduct must be shown to be wilful and in bad faith.

High burden of proof

• Contempt must be proven beyond reasonable doubt, making it a stringent remedy.

Reasonable efforts matter

• If a party can show that it made genuine efforts to comply, even if unsuccessful, contempt will not be established.

Procedural integrity is essential

• Referring a contempt ruling to the Labour Court requires a complete record of proceedings and clear procedural compliance.

Key takeaways

Contempt requires more than non-compliance

A finding of contempt is not based solely on failure to comply with an order. It must be shown that the conduct was deliberate and in bad faith.

High burden of proof applies

The applicant must prove the elements of contempt beyond reasonable doubt: existence of an order, knowledge of the order, non-compliance, and wilfulness or mala fides.

Reasonable explanation can defeat contempt

If a respondent provides a plausible and well-supported explanation for partial or non-compliance, contempt will not be established.

Procedural integrity is essential

Referrals for contempt must be accompanied by a complete record of proceedings and must follow prescribed procedures to enable proper judicial assessment.

Contempt is a last resort

It is a serious remedy reserved for cases of obstinate defiance of lawful authority. It should not be used to enforce compliance where genuine efforts have been made or where information is unavailable.

Final thoughts

Contempt of court is a powerful but narrowly defined remedy. The Labour Court’s approach in this case underscores the importance of fairness, reasonableness, and procedural rigour. Employers must act transparently, and employees must use the correct legal tools to assert their rights. Contempt is not a shortcut. It is a last resort for deliberate defiance of lawful authority.

For advice or more information contact Riona Kalua, Head of our Labour and Employment Team.