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[2020] ZALAC 55
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Kubeka and Others v Ni-Da Transport (Pty) Ltd (DA10/19) [2020] ZALAC 55; (2021) 42 ILJ 499 (LAC); [2021] 4 BLLR 352 (LAC) (24 November 2020)

IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: DA10/19
In
the matter between:
MHLUPHEKI
WILLEM KUBEKA & OTHERS
Appellant
and
NI-DA
TRANSPORT (PTY) LTD
Respondent
Heard:
23 September 2020
Delivered:
24 November 2020
Coram: Coppin JA,
Murphy AJA and Savage AJA
JUDGMENT
MURPHY
AJA
[1]
This is an appeal against a judgment of the Labour Court (Whitcher J)
dated 31 January
2019 concerning a claim by the appellants for arrear
wages (or back pay) consequent upon an order for reinstatement made
by Gush
J on 24 July 2013. The employees in respect of whom the
claims are made were dismissed by the respondent more than 12 years
ago
in July – August 2008.
[2]
The claim of the appellants is in terms of section 77(3) of the Basic
Conditions of
Employment Act
[1]
(“the BCEA”) which provides that the Labour Court has
concurrent jurisdiction with the civil courts to hear and determine

any matter concerning a contract of employment. The claim is a
contractual suit for arrear wages for the period from the date of
the
appellants’ dismissal in 2008 until the order of Gush J became
finally enforceable after the exhaustion of the appeals
process in
November 2014.
[3]
Annexure A to the statement of claim is a schedule of 59 applicants.
The appellants
listed as numbers 1–10, 12, 14–20, 22,
25–29, 31–42, 44–47, 51 in Annexure A to the
statement of
claim are former employees of the respondent; and the
appellants listed as numbers 52–57 and 59 in Annexure A to the
statement
of case represent the estates of former employees of the
respondent who are deceased. The pre-trial minute agreed by the
parties
on 13 December 2017 records as common cause that the persons
listed as numbers 11, 13, 21, 23, 24, 30, 43, 48, 49 and 58 in
Annexure
A to the statement of case were not on the agreed list of
applicants in the original dispute determined by Gush J and are thus
not party to the present dispute. It is accordingly common cause that
these persons have no claim against the respondent and ought
not to
have been cited as applicants in the proceedings before the court
a
quo
.
The respondent annexed as Annexure A to its heads of argument a list
of the 49 appellants properly before this court. Counsel
for the
appellants has offered no objection to that list. The parties also
reached agreement on the respective dates of death of
the employees
whose estates are the 52
nd
to 59
th
applicants in Annexure A to the statement of claim.
[2]
[4]
Most of the facts in this matter are common cause and were agreed
upon by the parties.
[5]
The appellants were dismissed in 2008 for various acts of misconduct
relating to speeding
and participation in unprotected strike action.
The Labour Court (Gush J) held that the dismissals were substantively
and procedurally
unfair and issued the following orders:
‘
(a)
The dismissals by the respondent of the applicants in case numbers
D938 and 795/09 were both substantively and procedurally
unfair;
(b)
the respondent is ordered to reinstate the applicants in both matters
retrospectively to the date upon which they were dismissed;
(c)
the back pay due to the applicants is to be calculated in accordance
with the minimum wages as determined by the Bargaining
Council for
the Road Freight Industry from time to time during the period from
the dismissal to the date on which they are to report
for duty;
(d)
the applicants are to report for duty within 14 days of the date of
this judgment…’
[6]
The respondent applied to Gush J for leave to appeal to the Labour
Appeal Court (“the
LAC”). Gush J refused the application
on 7 August 2013. The respondent then petitioned the LAC. The
petition was refused
on 20 August 2014.The respondent then petitioned
the Supreme Court of Appeal (“SCA”), which petition was
refused on
18 November 2014. At the same time as petitioning the SCA,
the respondent lodged an application for leave to appeal to the
Constitutional
Court, which was dismissed on 12 November 2014. The
order of Gush J thus became enforceable on 18 November 2014 when the
appeals
process was exhausted.
[7]
The appellants referred their claim under section 77(3) of the BCEA
to the Labour
Court on 30 May 2017. They maintain that the
reinstatement order issued by Gush J, having become enforceable after
18 November
2014, entitles them to back pay or arrear wages with
effect from the retrospective date of the reinstatement order until
18 November
2014. They did not seek prospective reinstatement, nor
did they (after the dismissal of the petition to the SCA in November
2014)
tender their services to the respondent.
[8]
Some of the appellants however tendered their services to the
respondent on 29 July
2013 a few days after Gush J ordered their
reinstatement. There is a dispute about the number who did so. Three
witnesses testified
on behalf of the appellants regarding this issue.
Mr Khubeka testified that “almost over a hundred” people
tendered
their services on that day; Mr Mlambo testified that “a
lot” of people presented themselves; and Mr Sithole testified

that “it was all of us” who presented themselves. The
respondent’s witness, Mr Maritz, testified that not more
than
10 former employees tendered their services on 29 July 2013. The
appellants failed to call the union representative, Mr Mbina,
to give
evidence, notwithstanding his presence on 29 July 2013 and the fact
that it was he who spoke to Maritz. The respondent
applied for leave
to appeal after 29 July 2013, and in effect rejected any tender made
on that day, and the order was suspended
in terms of section 18 of
the Superior Courts Act.
[3]
It
is common cause that when the order once again became enforceable on
18 November 2014 the appellants did not make a second tender,
were
not reinstated and the respondent did not accept the tender of 29
July 2013.
[9]
The parties without making any admissions sought further to limit the
evidence by
agreeing
quantum
in the event of the claim being upheld. Relying on the minimum wages
as determined by the Bargaining Council of the Road Freight
Industry
for the relevant period, the parties agreed that the
quantum
of the
appellants claim in respect of all of the appellants amounts to
R19 949 719.05 from the date of their dismissal
until 18
November 2014. This calculation takes account of the fact that the
claims for appellants 52 to 59 are limited to the date
on which the
relevant employees died. Moreover, the parties also agreed that 15 of
the dismissed employees (listed in Exhibit 2)
were re-employed by the
respondent and one of its associated companies, Warlock Investments
CC (“Warlock”), between
September 2008 and September 2013
– (“the re-employed appellants”). The parties
agreed that if the re-employed
appellants’ claim is limited
until the date of their re-employment, then the total
quantum
of the appellants’ claim, set out in Exhibit 2, would be an
amount of R14 591 499.05.
[4]
[10]
In a considered judgment, the Labour Court dismissed the appellants
claim on the grounds that
they had followed the wrong legal process
to obtain redress for the failure of the respondent to comply with
its obligation to
reinstate them. It held that when the ruling of the
SCA in effect exhausted all appeal options on 18 November 2014, the
appellants
ought to have launched contempt proceedings seeking
retrospective reinstatement rather than a contractual claim for
arrear wages
in terms of section 77(3) of the BCEA. In reaching its
decision, the Labour Court applied the reasoning of the
Constitutional Court
in
National
Union of Mineworkers SA obo Fohlisa & others v Hendor Mining
Supplies
(A
Division of Marschalk Beleggings (Pty) Ltd)
[5]
(“
Hendor
”).
It concluded:
‘
Back
pay is only contractually owing upon the full restoration of the
employment contract. This required more than a tender of services
by
the unfairly dismissed employees. The employer should also have
accepted those employees back into its employ. If the employer
failed
to do so, the correct legal path was to have forced it to restore the
contract of employment by means of contempt proceedings….the

judgment ordering reinstatement does not in and of itself reinstate
the contract of employment; rather, it is an order directing
the
employer to accept those services. If the employer fails to do so,
the remedy is to bring contempt proceedings to compel the
employer to
do so.’
[11]
The appellants contend that the Labour Court erred. They maintain
that the employment contracts
of the appellants were restored by the
order of Gush J in July 2013 and their claim is for “arrear
wages following the restoration
of the employment contract”.
The respondent counters that the restoration of the employment
contract could have occurred
only if the appellants had tendered
their services after the ruling of the SCA in November 2014 and the
respondent accepted their
tender.
[12]
The key issues to be decided in this appeal, therefore, are whether
the claim depends on the
restoration of the contracts of employment
and when were the contracts of employment restored, if at all.
[13]
The respondent relying on the decision of the Constitutional Court in
Hendor
contends that a reinstatement order does not restore the contract of
employment. It is only restored when the employees pursuant
to the
reinstatement order return to work, tender their services and the
employer accepts the tender. This construction, it argues,
is
confirmed by the wording of section 193(1)(a) of the Labour Relations
Act
[6]
(“the LRA”)
which provides that if the Labour Court or an arbitrator appointed in
terms of the LRA finds that a dismissal
is unfair, the court or the
arbitrator may “order the employer to reinstate the employee”
from any date not earlier
than the date of dismissal. This wording,
the respondent submitted, makes it clear that the order of the court
does not reinstate
an employee. The court is merely empowered to
order the employer to reinstate the employee; it is not itself
empowered to reinstate
the employee. It is the agreement of the
employer to accept the tender of services that restores the contact
not the order of the
court.
[14]
There is, the respondent argued, a crucial difference between an
order for reinstatement and
actual reinstatement pursuant to the
right to reinstatement which the reinstatement order grants to the
employee. An employee who
is the beneficiary of a reinstatement order
can elect not to enforce it. If the employee does not enforce the
order (by tendering
services and seeking committal for contempt if
the offer is declined) the employment contract is not restored and
the relationship
does not resume. There can be no legal basis for any
contractual claim for arrear wages until such time as the contract is
restored
by the agreement of the employer to accept the tender of the
employees in respect of future services. Rights to back pay flowing

from the reinstatement order can only arise once the contract is
restored. Prior to the employer agreeing to restore the contact

pursuant to an order to do so, there is no contract in existence and
thus no juridical basis for a claim for arrear wages.
[15]
Before examining the implications of
Hendor
,
it will help to reflect briefly on the history of the remedy of
reinstatement in our law. For many years, our courts would usually

not order specific performance of a contract of employment.
[7]
This meant that an employee, in the event of a breach of contract by
the employer in the form of wrongful termination of the contract,
was
restricted to a claim for damages to remedy the breach.
[8]
The alternative of enforcing the contract specifically (which would
involve reinstatement) was generally not available. The rule
was
relaxed in
Stewart
Wrightson (Pty) Ltd v Thorpe
[9]
in which Jansen JA held that a fundamental breach of the contract of
employment, as in other contracts, did not
per
se
end
the contract, but served only to vest the employee with an election
either to stand by the contract or to terminate it. The
election to
opt for specific performance in the face of a wrongful termination
(repudiation) thus meant that the contract of employment
remained
extant.
[16]
In accordance with the general principles applying to reciprocal
contracts, an employee claiming
specific performance of a contract of
employment is obliged to perform or to tender to perform. An
employee’s principal obligation
under the contract of
employment is to make his or her services available to the employer
from the agreed date and for the duration
of the contract.
[10]
The reciprocal duty of the employer to pay wages under an extant
contract of employment depends therefore only on the tender of

services. Where the performances of a reciprocal contract are
divisible, the principle of reciprocity must be applied independently

to each different part of a performance. A contract of employment for
an indeterminate period is a divisible contract. Hence, a
party who
has fully performed a part of a divisible performance (for instance
by making his or services available for the relevant
period) is
entitled to the corresponding part of the counter-performance
(wages).
[11]
An employee who
sues for specific performance under a contract of employment (which
he or she has opted to keep alive) in effect
tenders his or her
services by making the claim.
[17]
Specific performance in relation to past tendered services under a
contract of employment (a
divisible performance) consequently does
not depend on a tender of future performance. The employee is
entitled to it solely on
the basis of the past tender of services,
just as the landlord is entitled to arrear rental from a tenant who
unlawfully terminated
a lease. If the reinstated employee does not
tender prospective services, the contract may be terminated by the
employer for non-performance.
Furthermore, there obviously can be no
valid claim for prospective wages without a proper tendering of
prospective services. Likewise,
if the employer is able to
demonstrate that an employee would not have been able to render past
services (for reasons such as death
or re-employment), the employee
concerned would not be able to claim arrear wages for the relevant
period.
[18]
Where an employer fails to comply with an order for specific
performance, the employee is not
obliged at common law to institute
proceedings for committal for contempt, but may rely on an
alternative action for cancellation
and damages,
[12]
which would include a contractual claim for arrear wages owing in
respect of tendered services.
[13]
[19]
The narrow scope of protection to employees afforded by the common
law of wrongful dismissal
led to the introduction of statutory rights
against unfair dismissal; first in 1980 through amendments to the
Labour Relations
Act 28 of 1956, introducing the unfair labour
practice jurisdiction in section 46(9) and the status quo remedy
(allowing for reinstatement)
in section 43; and later by the
enactment of Chapter VIII of the LRA in 1995.
[20]
Early on some employers argued that the power of the Industrial Court
to determine unfair labour
practices did not include a power of
reinstatement or specific performance. In
SEAWUSA
v Trident Steel
[14]
(Trident
Steel
)
the employer argued that it was not for the court to make a contract
for the parties or to do what courts ordinarily did not do,
grant an
order for specific performance of an employment contract. The
Industrial Court rejected the argument holding that the
unfair labour
practice jurisdiction permitted an order of reinstatement akin to
specific performance. It held that the employer’s
argument
“overlooks the fact that on reinstatement what is being done is
to restore the original contract, not to make a
new one, and that
[the contract] contains all the ingredients of the original.”
These
dicta
were taken to mean that the unfair labour practice jurisdiction
provided a statutory remedy of specific performance for the unfair

(as opposed to wrongful) termination of a contract of employment and
brought an end to the judicial reluctance to grant specific

performance in employment disputes. A reinstatement order of the
Industrial Court restored the original contract.
[21]
Commenting on the employer’s argument in
Trident Steel
,
Martin Brassey suggested that the statutory rights did not equate
precisely with the contractual right to specific performance.
He
said:
‘
One
might add that it also overlooked the fact that even the ordinary
courts now consider themselves entitled to order the specific

performance of an employment contract in a proper case. And moreover,
if reinstatement were not competent, the unfair labour practice

jurisdiction would be all but negated…..The court’s
remarks about restoring the contract, not creating a new one,
are not
to be taken too literally. The court was simply emphasizing that the
relationship being recreated was the one the parties
had shaped for
themselves. The order does not in fact operate in the realms of
contract at all. It is an exercise of statutory
power, and in the
case of a reinstatement order, the reinstated employee’s rights
and duties are statutorily created.”
[15]
[22]
Brassey’s line of thought intimates that the referral of an
unfair dismissal dispute seeking
reinstatement is not akin to the
common law remedy of electing to keep the contact of employment alive
and demanding specific performance.
It proceeds from the premise that
an unfair dismissal terminates the contract (even where the
termination was wrongful or unlawful)
meaning there is no longer an
existing contract of employment in place until it is restored by and
in accordance with the pre-requisites
of the exercise of the
statutory power (now) in terms of section 193(1)(a) of the LRA. The
definition in the LRA of a dismissal,
[16]
a pre-condition to jurisdiction under the LRA, confirms that a
dismissal means “an employer has terminated a contract of

employment with or without notice” and section 193(1)(a) of the
LRA does not permit an order resuscitating the contract but
only an
order directing the employer to reinstate the employee. The predicate
of the statutory power of reinstatement is the resuscitation
of a
contract of employment that is no longer in existence by the employer
accepting a tender of services. As such, a statutory
reinstatement
order differs from an order for specific performance in the narrow
contractual sense.
[23]
In
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[17]
(“
Equity
Aviation Services
”)
the Constitutional Court held:
‘
The
ordinary meaning of the word ‘reinstate’ is to put the
employee back into the same job or position he or she occupied
before
the dismissal, on the same terms and conditions.  Reinstatement
is the primary statutory remedy in unfair dismissal
disputes. It is
aimed at placing an employee in the position he or she would have
been but for the unfair dismissal. It safeguards
workers’
employment by restoring the employment contract. Differently put, if
employees are reinstated they resume employment
on the same terms and
conditions that prevailed at the time of their dismissal.’
[24]
These
dicta
do not clearly affirm that the effect of a
reinstatement order is merely to direct the employer to accept a
tender of the employees’
services and that no right to arrear
wages arises until it elects to do so; though the “resuming”
of employment implies
that the contract of employment was not extant
during the period of litigation. However, the
dicta
can be
interpreted equally to mean that the reinstatement order itself “puts
the employee back into the same job or position
he or she occupied
before the dismissal on the same terms and conditions”.
Likewise, the reinstatement order (not the employer’s

acceptance of the tender of services) “is aimed at placing an
employee in the position he or she would have been but for
the unfair
dismissal.”
[25]
If the latter interpretation were to be accepted, the right to claim
arrear wages to the retrospective
date provided in the order would
arise from the order itself and there would thus be no obligation on
an employee to tender prospective
services in order to claim arrear
wages. The reinstated unfairly dismissed employee claiming the
payment of arrear wages would
then be in a similar position to an
employee seeking specific performance at common law, where if the
employer refuses to obey
the court’s order of specific
performance the employee may cancel the contract and claim the arrear
wages as damages. There
would be no need for contempt proceedings.
Besides the obvious advantage of avoiding another round of litigation
requiring proof
of
dolus
on the part of the employer, such an
interpretation would be in accord with the presumptions of statutory
interpretation that the
legislature does not intend to alter the
existing law (of specific performance) more than is necessary or to
impose unreasonable
burdens. This interpretation perhaps also would
avoid the injustice of employees being denied arrear wages (owing
under a contract
that was unfairly and perhaps wrongfully repudiated)
on account of firstly the delays of an unmeritorious appeal and
secondly the
need of the employees to find alternative means of
survival (resulting in a prospective tender of services becoming
impracticable)
while the appeals process is dragged out inordinately.
[26]
However, there is no denying that there is strong support for the
respondent’s position
in the decision of the Constitutional
Court in
Hendor
. In that case, several employees were
dismissed for participating in a strike in August 2003. On 16 April
2007, the Labour
Court held that these dismissals were unfair and
ordered the reinstatement of the employees with effect from 1 January
2007. An
appeal against the reinstatement order was dismissed by the
Labour Appeal Court in June 2009 and by the Supreme Court of Appeal

on 15 September 2009. The employees were reinstated on 29
September 2009, but the employer did not pay the arrear-wages from

1 January 2007 to 28 September 2009. The employees issued a writ
of execution for the arrear-wages in October 2010. The
writ was
set aside by the Labour Court in June 2011on the basis that the
reinstatement order was not a money-judgment. The employees
were
directed to file a declaration setting out the amounts owed to each
one of them. The employees then brought a further application
on 19
September 2012 claiming the arrear-wages. The employer contended
that the claim had prescribed because more than three
years had
elapsed from the date the Supreme Court of Appeal dismissed the
employer’s application for leave to appeal against
the
reinstatement order.
[27]
The Labour Court held that the claim for arrear-wages for the period
1 January 2007 to 29 September
2009 (the date of reinstatement)
constituted a judgment debt, and therefore would only prescribe after
30 years. The Labour Appeal
Court overturned the decision of the
Labour Court, holding that a claim for arrear wages arising out
of a reinstatement order
is a debt under the reinstated employment
contract, and would therefore prescribe after three years.
[28]
The Constitutional Court was divided on the issue. The first judgment
of Madlanga J (Froneman
J, Khampepe J, and Mbha AJ concurring) held
that there was no legal distinction between the period before the
reinstatement order
and the period thereafter. He held that the claim
for arrear-wages arose from the reinstatement order. Consequently,
the arrear-wages
constituted a judgment debt and, as a result, the
claim will prescribe after 30 years.
[29]
The second judgment of Zondo J (Mogoeng CJ, Jafta J and Mhlantla J
concurring) agreed that the
claims had not prescribed, that the
workers were entitled to payment of their wages for the entire period
and that the appeal should
be upheld. However, Zondo J disagreed with
the reasons given in the first judgment for the conclusion that the
claim has not prescribed.
He held that the claim fell into two
distinct periods: the one before the reinstatement order of 16 April
2007, namely from 1 January 2007
to 15 April 2007
(the first period); and the other being the period after the
reinstatement order, namely, from 16 April 2007
to
28 September 2009 (the second period). Zondo J held that
only the claim relating to the first period was a judgment
debt and
thus such claim had not prescribed for that reason. However, the
claim in relation to the second period was different.
It was a
contractual debt, but one which on the facts had not prescribed.
[30]
Zondo J reasoned that the claim for the second period was not a
judgment debt as the reinstatement
order did not order payment of any
wages for the second period.  The claim was a contractual debt
which was to be dealt with
in terms of the principles of the law of
contract. The claim for the second period could not be a judgment
debt because the Labour
Court did not and could not have adjudicated
upon the question of wages which had not fallen due for payment at
the time it made
the reinstatement order. The claims for remuneration
for the second period were debts that only became due when the
contracts of
employment on which they were based were restored on
29 September 2009, being the day the tender of services by
the employees
was accepted by the employer. It was the actual
reinstatement of the workers which resulted in the restoration of the
contracts
of employment of the workers. Prescription therefore could
not have started running before the date of the restoration of the
contracts
as the employees could not institute legal proceedings to
enforce contracts that were not in place yet. The result was that
when
the applicants instituted their application for a declaratory
order on 19 September 2012 the prescription period of three years
had
not expired and the claims had not prescribed.
[31]
While the judges of the Constitutional Court in
Hendor
disagreed about the nature of the debt arising from a reinstatement
order and the reason for non-prescription, they were unanimous
about
the governing principle that the contracts of employment of unfairly
dismissed employees are terminated by a dismissal and
revive only
when they tender their services pursuant to a reinstatement order and
the tender is accepted by the employer. The judges
also agreed that a
reinstatement order is an order
ad factum praestandum
- an
order to do something (as opposed to an order
ad pecuniam
solvendam,
an order to pay something) which must be enforced
through contempt proceedings.
[32]
Madlanga J held that a reinstatement order does not in and of itself
reinstate the contract of
employment. It is rather an order directing
the employees to tender their services, and for the employer to
accept those services.
Thus, he explained:
‘
Cele
AJ’s order did not itself reinstate the employees. Rather it
ordered Hendor to do so.  Although a reinstatement
order places
a primary obligation on the employer to reinstate, it creates an
obligation in terms of which an employee must first
present her- or
himself for resumption of duties. The employer must then accept her
or him back in employment. These are reciprocal
obligations. The
employee’s obligation to present her- or himself for work and
the corresponding obligation to accept her
or him back to work flow
from the court order… If the employee presents her- or himself
for work, but the employer refuses
to accept her or him back, her or
his remedy is not contractual. It is to bring the employer before
court for contempt of court.
What contempt?  For not complying
with the judgment debt embodied in the order to accept her or him
back into employment…
[18]
To
expose a basic mistake made by the second judgment, let us look at
this from a millisecond before reinstatement actually took
place on
29 September 2009.  At that point, did any contract of
employment exist?  Of course not. Still looking at this
from the
same time, if no contract existed as at that time, it follows that
there was also no contractual obligation. The obligation
that existed
was to reinstate. ...The question then is: at that point, i.e. just
before reinstatement, could [one] appropriately
talk of remuneration
that was due in terms of the employees’ contracts of
employment? Obviously not. The reason is plain:
no contracts existed
at that point. All that existed was an obligation to reinstate, with
all that reinstatement entails. …
[19]
I
do not understand how an employee would be entitled to payment of
remuneration in terms of an employment contract that is (a)
still the
subject of debate in review or appeal processes and (b) yet to be
resuscitated. Until there has been reinstatement, there
is no
contract of employment. Until that has been done, one cannot talk of
an “extant” contract of employment and payment
of
remuneration in terms of it. What exists at that stage is the
twin-obligation to (a) reinstate and (b) pay remuneration in
accordance with the employment contract. But, needless to say,
remuneration is payable only after reinstatement. I repeat: the order

does not reinstate; it orders the employer to do so. Indeed, section
193(1)(a) says as much”.
[20]
[33]
Zondo J shared the view of Madlanga J regarding the effect of a
reinstatement order. In reaching
his
ratio decidendi
that
prescription in relation to back pay for the second period only
commenced to run once the employer accepted the employees’

tender of services, he reasoned as follows:
‘
[W]hen
Hendor put the second and further applicants back into its employ in
the positions which they had occupied before their dismissal
and did
so on the same terms and conditions of employment as those they had
enjoyed before their dismissal, the contracts of employment
which had
existed between each one of the second and further applicants and
Hendor before dismissal was restored. This means that
the second and
further applicants’ contracts of employment were restored on 29
September 2009 (the date their tender of services
was accepted by
Hendor) and not on 15 September 2009 when the Supreme Court of Appeal
issued its order dismissing Hendor’s
application for leave to
appeal.
When
the Supreme Court of Appeal dismissed Hendor’s application for
leave to appeal that did not necessarily restore the contracts
of
employment of the second and further applicants.  The
restoration of their contracts of employment was to occur by
operation
of law when the second and further applicants were actually
reinstated…. It was only upon complying with paragraph (a) of

Cele AJ’s order – that is taking them back and putting
them into their old positions on the same terms and conditions
of
employment as before – that the contracts of employment were
restored or reinstated ….
Between
15 and 28 September 2009 Hendor did not have an obligation to pay the
second and further applicants any remuneration for
the period after
Cele AJ’s order. It had an obligation to reinstate them
but, upon reinstating them, their contracts
of employment would be
restored and Hendor would then be obliged to pay the second and
further applicants for the first period.
The obligation to pay the
second and further applicants their remuneration for any period after
Cele AJ’s order only arose
once the contracts of employment
which had existed between each employee and Hendor prior to dismissal
were restored or reinstated….
This
means that, in so far as the second and further applicants’
claims for remuneration for the second period were debts
under the
Prescription Act, they only became due when the contracts of
employment on which they were based were restored.’
[21]
[34]
The finding of Zondo J that the claim had not prescribed thus rested
squarely on the conclusion
that it only became due upon actual
reinstatement and not when the reinstatement order became
enforceable.
[35]
The decision of the Constitutional Court in
Hendor
therefore
leaves little doubt that a reinstatement order does not restore the
contract of employment and reinstate the unfairly
dismissed
employees. Rather, it is a court order directing the employees to
tender their services and the employer to accept that
tender. If the
employee fails to tender his or her services or the employer refuses
to accept the tender, there is no restoration
of the employment
contract. If the employer fails to accept the tender of services in
accordance with the terms of the order, the
employee’s remedy
is to bring contempt proceedings to compel the employer to accept the
tender of services and thereby to
implement the court order.
[36]
As the employees in
Hendor
in fact tendered their services and
were reinstated, the Constitutional Court was not called upon to
decide what the position would
have been had the employees failed to
take up reinstatement pursuant to the order. However, it follows
plainly from the reasoning
in both judgments that an employee granted
retrospective reinstatement is not entitled to any of the contractual
benefits of reinstatement,
including back pay, without the contract
being restored through actual reinstatement.
[37]
As pointed out earlier, this seems at first glance to put an unfairly
dismissed employee at a
disadvantage when compared to an employee
seeking specific performance at common law. That is not entirely
true. The protective
scope of the unfair dismissal jurisdiction is of
course much wider. Specific performance is available only for
unlawful termination,
whereas a lawful dismissal may be held to be
unfair under the LRA. But still, at common law, employees seeking
specific performance
are not required to tender prospective services
to obtain arrear wages for which they have tendered services.
[38]
A requirement that back pay is only due and payable on reinstatement
is in keeping with the remedial
scheme and purpose of section 193 of
the LRA. As Mr Watt-Pringle SC, counsel for the respondents,
correctly submitted, if an employee
in receipt of a reinstatement
order could on the strength of the order alone claim contractual
payment for the retrospective part
of the order without actually
seeking reinstatement (tendering prospective services), it would
convert a reinstatement remedy (which
requires a tender of services)
into a compensation award (which does not), in excess of the
statutory limitation on compensation
awards. Such an outcome would be
inconsistent with the purpose of sections 193 and 194 of the LRA. An
unfairly dismissed employee
must elect his or her preferred remedy
and if granted reinstatement must tender his or her services within a
reasonable time of
the order becoming enforceable. If reinstatement
has become impracticable through the effluxion of time, for instance
where the
employee has found alternative employment, he or she should
seek to amend his or her prayer for relief to one seeking
compensation.
[39]
It is common cause that the respondent did not accept the earlier
tender (suspended by the appeals
process) of the appellants (other
than the re-employed appellants) after the reinstatement order became
enforceable in November
2014. Consequently, their contracts of
employment were not revived and they acquired no contractual right to
back pay which could
be claimed in terms of section 77(3) of the
BCEA. As the Labour Court correctly held, in terms of
Hendor
they were required to bring contempt proceedings to compel the
employer to accept their tender. Their appeals accordingly must
be
dismissed.
[40]
Similarly, the claims of the deceased estates cannot be sustained.
There is no contractual entitlement
enforceable under section 77(3)
of the BCEA. At the time of their death the deceased employees had no
vested contractual right
to reinstatement and back pay. Reinstatement
became impracticable with their deaths and the only remedy available
to their deceased
estates was compensation in terms of section
193(1)(c) read with section 193(2)(c) of the LRA. It was incumbent on
the executors
to apply to the Labour Court for the variation of the
order or alternatively to file a cross-appeal.
[41]
It is common cause that 15 of the re-employed appellants (two are
since deceased) were re-employed
by the respondent or Warlock at
various dates after their dismissal. Warlock is a related entity (a
closed corporation) which was
established after the dismissal of a
large number of drivers for participating in an unlawful strike in
order to provide driving
and other support services to the
respondent. While the re-employed appellants employed by Warlock were
paid by Warlock, they continued
to drive the respondent’s
trucks and perform the same driving services for the respondent.
These employees were in effect
reinstated by the respondent at the
different dates of their re-employment/reinstatement and remained
employed in November 2018
when the reinstatement order became
enforceable. It may be assumed that they tendered their prospective
services which tender was
accepted by the respondent. They
accordingly have a contractual right to back pay enforceable in terms
of section 77(3) of the
BCEA. Their claim for back pay is however
limited to the period from their dismissal up until their date of
re-employment because
after their date of re-employment, they were
employed by the respondent and received their salaries. Their back
pay is limited
to the
quantum
set out in Exhibit 2.
[42]
In the result, the appeal must be upheld in respect of the
re-employed appellants and dismissed
in respect of all the other
appellants. Fairness dictates that there should be no order as to
costs. Interest is payable on each
wage owing from the dates the wage
was due and payable until payment.
[22]
[43]
The following orders are made:
43.1
The appeals of the appellants listed as numbers 1–10,
14–15, 18, 22, 25–26, 32-33, 35-39, 42,
47, 51, 53, 55-57
and 59 in Annexure A to the statement of case are dismissed.
43.2
The appeals of the appellants listed as numbers 12, 16,
17, 19, 27, 28, 29, 31, 34, 37, 38, 44, 50, 52 and 54
(the
re-employed appellants) are upheld and the order of the Labour Court
in relation to these appellants is varied and substituted
with an
order directing the respondent to pay them back pay in the individual
amounts set out in Exhibit 2 annexed to the respondent’s
heads
of argument, together with interest at the prescribed rate from the
date the weekly/monthly wages were due and payable in
terms of the
contract of employment to the date of payment.
______________________
JR
Murphy
Acting
Judge of Appeal
Coppin
JA and Savage AJA concur in the judgment
APPEARANCES:
FOR
THE APPELLANT:
K Tsatsawane SC and
Adv. T Tshabalala
Instructed
by Mthimunye-Hluyi Attorneys
FOR
THE RESPONDENT:

Adv C Watt-Pringle SC and Adv KS McLean
Instructed
by Grant Swanepoel Attorneys
[1]
Act
75 of 1997.
[2]
It was not possible to agree to the precise date of death of all the
deceased employees. So the dates of death in relation to
each
deceased estate were agreed as follows: i) applicant 52 – in
April 2017; ii) applicant 53 - 7 July 2010; iii) applicant
54 in
early 2015; iv) applicant 55 - 11 June 2011; v) applicant 56 –
in July 2009; vi) applicant 57 in July 2012; and vii)
applicant 59 -
in May 2009.
[3]
Act
10 of 2013.
[4]
Exhibit 2 is a spread sheet setting out the back pay claimed by all
of the appellants from the date of their dismissal until
18 November
2014. The claims for the 15 re-employed appellants are limited until
the date on which they were re-employed by Warlock
or the
respondent.
[5]
(2017)
38 ILJ 1560 (CC).
[6]
Act
66
of 1995.
[7]
Schierhout
v Minister of Justice
1926
AD 99
[8]
Restricted
to a claim of notice pay – being the positive interest, in
that an employee’s contract can usually be terminated
lawfully
on notice and thus that was the position he/she would have occupied
had the contract been fully performed.
[9]
1977
(2) SA 943
(A) at 952
[10]
Potchefstroom
Municipality v Bouwer NO
1958
(4) SA 382 (T)
[11]
Van
der Merwe at al:
Contract
– General Principles
(Juta 1998) page 281 and 285
[12]
Custom
Credit Corp (Pty) Ltd v Shembe
1972
(3) SA 462 (A).
[13]
Leaman
v Kieswetter
1949
(4) SA 38
(C).
[14]
(
1986)
7 ILJ 418 (IC) at 437.
[15]
Brassey
et al:
The
New Labour Law
(Juta 1987) 47-48
[16]
Section
186(1)(a) of the LRA.
[17]
[2008] ZACC 16
;
2009
(1) SA 390
(CC) para 36.
[18]
Hendor
paras
22-23.
[19]
Hendor
paras
36-37.
[20]
Hendor
para
51.
[21]
Hendor
paras
172-177.
[22]
Hendor
paras
200-204.