Contempt, targets and the dispute over Employment Equity: Solidarity v Minister of Employment and Labour

FACTS

On 28 June 2023 Solidarity and the erstwhile Minister of Employment and Labour concluded a settlement settlement, mediated by the CCMA, as a part of a criticism lodged with the International Labour Organisation (ILO) objecting to the employment fairness interventions by the Government. Pursuant to an software by Solidarity, the Labour Court made that settlement an order of court docket. The order fashioned a part of Solidarity’s broader problem to the 2022 amendments to the Employment Equity Act (EEA) coping with the setting and enforcement of sectoral numerical targets by designated employers. For a extra detailed account of this context, please check with our alert on this settlement settlement right here.

On 15 April 2025 the incumbent Minister of Employment and Labour promulgated the ultimate Employment Equity Regulations. Solidarity contends that the laws deviate materially from the phrases of the court docket order and due to this fact represent a breach of the court docket order. Relying on rule 58 of the Labour Court Rules, Solidarity launched an ex parte contempt software.

LAW

Civil contempt of court docket is a constitutionally permissible mechanism to implement compliance with court docket 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 creating:
(a) the existence of a legitimate order;
(b) service or discover of that order on the respondent; and
(c) the respondent’s non-compliance.

Once these three parts are proven, the evidentiary burden shifts to the respondent to show that the non-compliance was neither wilful nor mala fide (unhealthy religion).

Rule 58 prescribes a bifurcated process for contempt purposes:

• Stage 1: an ex parte movement wherein the applicant seeks an order directing the respondent to seem and clarify its conduct; and
• Stage 2: the respondent is afforded a chance to clarify its conduct and the court docket decides whether or not contempt has been proved and, in that case, what sanction or remedial reduction is suitable.

APPLICATION OF LAW TO THE FACTS

The Labour Court acknowledged the absence of authoritative South African precedent on the evidential threshold an applicant should clear at Stage 1 of a bifurcated contempt software. Drawing on Namibian jurisprudence, the Court adopted the usual that the applicant should current prima facie proof of a seamless breach of a legitimate court docket order.

Solidarity happy the Court that: (i) a court docket order embodying the settlement settlement exists; and (ii) the Minister had been served with that order. The alleged non-compliance, the Court noticed, raises intricate questions of statutory interpretation and administrative motion that can not be resolved within the Minister’s absence. Accordingly, the Court held that the Stage 1 threshold had been met and issued an order directing the Minister to seem and present trigger at Stage 2 why she shouldn’t be held in contempt and sanctioned.

The Court declined Solidarity’s additional request for rapid coercive reduction, specifically, the withdrawal of the laws and proof of compliance inside 90 days, holding that such substantive cures fall outdoors the restricted function of Stage 1, which is confined to figuring out whether or not a prima facie case of contempt exists. Coercive or remedial orders could be contemplated solely after the respondent has been heard or has been supplied with a chance to be heard at Stage 2.

 KEY TAKEAWAYS

The Employment Equity Regulations of 15 April 2025 stay in power. Compliance is compulsory except and till a court docket guidelines in any other case.

Rule 58 establishes a two step contempt process. At Stage 1 an applicant want show solely prima facie non-compliance; definitive findings of wilfulness, unhealthy religion and applicable sanctions are reserved for Stage 2 after the respondent’s look.

Should the Court, at Stage 2, verify contempt, it might problem any order essential to purge the breach, together with necessary directives, time-bound compliance orders, or different reduction.

When a settlement settlement made an order of court docket intersects with the chief’s delegated law-making powers (such because the promulgation of laws) questions of interpretation, administrative justice and separation of powers might complicate enforcement.