Mthethwa v Department of Health: Gauteng Province and Another (JR2485/12) [2019] ZALCJHB 166 (25 June 2019)

/ / 2019, Labour Law, News


On analysis of the factual matrix, the dispute at hand emanated from the unfair dismissal of TP Mthethwa (“the Employee”) by the Department of Health: Gauteng Province (“the Employer”).  The Employee initially referred the unfair dismissal dispute to the relevant bargaining council where the Employee was unsuccessful, being dissatisfied with that outcome, the Employee instituted review proceedings against the commissioner’s arbitration award in the Labour Court.  

The Employee was successful in the review proceedings and the arbitration award was reviewed and set aside and substituted with an order reinstating the Employee into his previous employment.  

However, even though the Employer caused a large payment to be made to the Employee in compliance with the order of Benjamin AJ, there still remained outstanding capital and interest from 16 January 2015 on the arrears.  

In consideration of the contempt proceedings instituted by the Employee, the Court reiterated the requirements of a contempt order as encapsulated in our law:
  1. The existence of a court order;
  2. That the respondent had service or notice of the court order;
  3. Non-compliance by the respondent with the court order; and
  4. That the respondent acted wilfully (intentionally) and mala fide in transgressing the court order.

The court was also mindful of the judgment of MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) where the Court held that:   “It must be clear beyond reasonable doubt that the official in question is the person who has wilfully and with knowledge of the court order failed to comply with its terms.”   

Furthermore, the court in Member of the Executive Council for Health, Gauteng v Lushaba (1) SA 106 (CC); 2016 (8) BCLR 1069 (CC) held that:  

“Contempt of court proceedings can only succeed against a particular public official or person if the order has been personally served on him..”


Being cognisant of the prevailing legislation and precedent, the Court noted that the Employee had erroneously cited the second respondent as “The Head of the Department.”  

The Court duly noted that the Employee had failed to adequately identify the official responsible for implementing the order (being the head of the department) in its papers.  

Accordingly, the Employee’s papers were defective, and the application stands to fail.  

The Application was accordingly dismissed.


This judgement highlights that the Court is ever mindful of the well-established common law principles entrenched in our law. Contempt applications have particular requirements which must be carefully incorporated when initiating such proceedings. The judgment further demonstrates that there are safeguards in place to maintain and preserve the integrity of the labour law legislative framework in South Africa.  

Written by John Mackechnie and Omphile Boikanyo

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