Suspended Prison Sentence for breach of Labour Court Order

By Neil Coetzer, Senior Associate, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

labour-guideOn 14 January 2016 the Labour Court handed down judgment in the matter of Orthocraft (Pty) Ltd t/a Advanced Hair Studios v Musindo & Another (J1636/15) [2016] ZALCJHB 12.

The case concerned an application to declare the respondents to be in contempt of an Order of the Labour Court which had previously been handed down on 23 September 2015.

The Order of 23 September 2015 was handed down after the Applicant, Orthocraft, applied to the Labour Court to enforce a restraint of trade agreement against the respondents. Anne Musindo, a former employee of Orthocraft, had taken up employment with, Bremag Trading International, a competitor of Orthocraft shortly after resigning from her position in July 2015.

The Labour Court found that Musindo had breached the provisions of the restraint of trade agreement and ordered, inter alia, that she be restrained from remaining in the employ of Bremag until April 2016.

Shortly after this, Orthocraft became aware of the fact that Musindo had continued in her employment with Bremag, in direct violation of the express terms of the Order handed down on 23 September 2015.

Orthocraft thereupon applied to the Labour Court for an Order declaring Musindo and Bremag to be in contempt of the earlier Court Order and ordering that Musindo be imprisoned until April 2016.

The Labour Court, considering the application, found that the question before it was whether the breach of the Court Order of 23 September 2015 was wilful, whether Musindo and Bremag should be held in contempt of Court and, if so, what the appropriate sanction should be.

The Court noted that the Order had been served on both Musindo and Bremag and that both respondents had failed to show that their conduct in breaching the Order was neither wilful nor malicious.

Musindo admitted in papers before the Court that when she received a copy of the Order, she ‘noted that the document related to the restraint of trade but did not read the documents fully’. She also admitted that she had breached the Order but averred that English was not her first language. Nevertheless, it appeared from her letter of resignation that she was fluent in English.

Similarly, Bremag continued to employ Musindo despite having full knowledge of the fact that doing so was in breach of the Order. Accordingly the Court found that it was clear beyond reasonable doubt that Musindo and Bremag had breached the Order wilfully and in bad faith, with full knowledge not only of the Order but of the restraint to which Musindo was bound.

The Court found that the primary aim of contempt proceedings is to ensure compliance with the Order breached, rather than to punish. Musindo gave an undertaking that she would not breach the Order again, but the Court was of the view that such an undertaking was insufficient in light of her previous conduct. The Court was of the view that in order to ensure compliance, a suspended jail sentence would be appropriate.

The Court accordingly ordered a period of 30 days imprisonment, suspended until 30 April 2016. As for Bremag, the Court found that Musindo had worked for Bremag for at least two months in violation of the Order at a salary of R10 000 per month. It accordingly found that an appropriate measure would be the imposition of a fine in the amount of R20 000, suspended until 30 April 2016. The Court also ordered both Musindo and Bremag to pay the costs of the application.

The judgment serves as an important deterrent to persons who deliberately fail to comply with Orders of the Labour Court. It will be interesting to see whether similar Orders will be handed down in instances where Court Orders requiring Union Officials to assist employers in controlling strikes or employers to reinstate employees are not complied with.

For more information please contact Neil Coetzer at or (011)  783 8711 /(011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys

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