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[2019] ZALAC 35
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Mobile Telephone Networks (Pty) Limited v Pillay and Others (DA02/18) [2019] ZALAC 35; [2019] 8 BLLR 761 (LAC); (2019) 40 ILJ 2011 (LAC) (5 April 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case
no: DA 02/18
In
the matter between:
MOBILE
TELEPHONE NETWORKS (PTY) LIMITED
Appellant
and
SOMAHKHANTHI
PILLAY AND 37 OTHERS
Respondents
Coram
:
Waglay
JP, Coppin JA
et
Murphy AJA
Heard:
12
February 2019
Delivered:
05 April 2019
Summary:
Application for payment of arrear salary consequent upon Labour
Appeal Court’s order declaring that employees transferred
to
employer as contemplated in section 197 of the LRA – employer
refusing to heed to court order prompting employees to seek
payment
of remuneration from the date of the transfer, including mora
interest – employer
raised
an
exceptio
non adimpleti contractus
alternatively
prescription as defences to the claims for remuneration. The Labour
Court upheld the employees’ claims but only
granted mora
interest from the date of the Labour Appeal Court’s order
The
employer’s appeal is centered around its defences in the court
below while the employees cross-appealed the Labour Court’s
finding on mora interest-
In
respect of the
exceptio
court
held that:
the
tender of services was implicit in the employees’ conduct in
launching the application for a declaratory order. Further
that, it
is disingenuous for the employer to contend that the employees did
not tender their services to it, when it vigorously
resisted their
claims that it had become their employer.
Concerning
the prescription, court held that obtaining a declaratory order, that
the appellant was indeed their employer, was essential
and, thus,
effective in interrupting the running of prescription in respect of
their claims for remuneration for the period 1 December
2010 up to
and including 21 April 2015. In those circumstances the claims had
not prescribed.
Cross-
appeal - mora interest at the applicable legal rates is payable for
the period 1 December 2010 up to and including 21 April
2015 in
respect of the remuneration for that period that remained unpaid
subsequent to its due date, and shall continue to accrue
until the
payment in respect of such remuneration is made.
Appeal
dismissed with costs and cross –appeal upheld.
JUDGMENT
COPPIN
JA
[1]
This is an appeal against the judgment of the Labour Court (Gush J),
with the leave
of that court (“the court
a
quo”
).
It concerns the following: the duty to tender services in a claim for
arrear remuneration, the accrual of mora interest on the
arrears, and
the prescription of those claims, consequent upon a declaratory order
issued by this Court,
inter
alia
,
declaring that the respondents became employees of the appellant when
it acquired a business as a going concern, as contemplated
in section
197 of the Labour Relations Act
[1]
(“the
LRA”).
[2]
The appellant contests the correctness and validity of an order made
by the court
a quo
,
inter alia
, directing it to pay
remuneration to each of the respondents for the period 1 December
2010 to 21 April 2015; dismissing its defence
that the claims for
such remuneration prescribed and ordering the appellant pay the costs
of the proceedings. The respondents are
counter appealing that
court’s dismissal of their claims for mora interest on their
arrear remuneration.
[3]
The record of appeal was filed late and in a substantive, unopposed
application, the
appellant sought reinstatement of the appeal.
Considering all the relevant factors and the interest of justice, the
late filing
was condoned and the appeal was reinstated.
[4]
The facts are largely common cause. The respondents were employees of
Interaction
Call Centre (Proprietary) Limited (“Interaction
Call Centre”), a call centre business operating from Mount
Edgecombe
in Durban, when the appellant took over its business as a
going concern on 1 December 2010.
[5]
Notwithstanding the take-over, the appellant refused to recognise the
respondents
as its employees, disputed that the take-over fell within
the ambit of section 197 of the LRA and that the respondents’
contracts
of employment had automatically transferred to it as
contemplated in that section. Instead, the appellant offered
employment to
certain selected employees at Interaction Call Centre.
[6]
On 11 May 2011, the respondents launched application proceedings in
the Labour Court
for an order,
inter alia
, declaring that the
appellant’s acquisition of the business of Interaction Call
Centre fell within the ambit of section 197
and that, consequently,
the respondents had become employees of the appellant.
[7]
The respondents appealed to this Court against the dismissal of their
application
by the Labour Court. In a judgement handed down on 21
April 2015, this Court upheld the respondents’ appeal with
costs, set
aside the Labour Court’s order dismissing the
application and substituted it with an order in the following terms:
declaring
that there was a transfer of business as a going concern
from Interaction Call Centre to the appellant and that the transfer
fell
within the ambit of section 197; secondly, declaring that the
respondents are in law employees of the appellant “effective
from 1 December 2010 with no loss of service” ; and lastly,
ordering the appellant to pay the costs in that matter.
[8]
Notwithstanding the order of this court of 21 April 2015, the
appellant failed and/or
refused to pay the respondents any
remuneration. As a result, the respondents launched another
application in the Labour Court
in which they claimed relief,
essentially, directing the appellant to give effect to this Court’s
order. In particular, they
sought orders directing the appellant to
provide each of them with contracts of employment and to pay the
remuneration that was
due to them in terms of their contracts of
employment from 1 December 2010 up to the date of the launch of the
second application,
inclusive of mora interest, and costs.
[9]
Shortly before the hearing of the application, the appellant tendered
to pay the remuneration
that was due to the respondents from 22 April
2015 to 27 June 2016. The tender was accepted by the respondents and
the hearing
proceeded in respect of the remaining issues, namely,
whether the respondents were entitled to be paid remuneration for the
period
1 December 2010 up to 21 April 2015 and whether that
remuneration would include mora interest.
[10]
The appellant resisted the claims on, essentially, two grounds. It
raised an
exceptio
non adimpleti contractus
,
a defence available to a party to a contract where the performance of
obligations are reciprocal, that its obligation to perform
has not
arisen, because the (suing) party has not performed its
obligation(s).
[2]
The appellant
contended that it was essential for the respondents to have, at
least, tendered their services to the appellant in
order to be
entitled to the remuneration, and submitted that since the
respondents had failed to tender their services to the appellant
on 1
December 2010, or, at least, to aver having tendered their services
then, they had failed to make out a case for the payment
of the
remuneration. In the alternative, the appellant raised prescription
as a defence, contending that the claims for remuneration
for that
period had prescribed in terms of the Prescription Act
[3]
,
as more than three years had elapsed since the remuneration became
due in terms of the contracts of employment.
[11]
Having dismissed the
exceptio
and prescription defence, the
court
a quo
held that the respondents were entitled to payment
of remuneration for the period 1 December 2010 to 21 April 2015, but
held that
mora interest only accrued from the date of this Court’s
order on 21 April 2015, because it is only then (according to the
court
a quo
) that the remuneration became due. Accordingly,
the court
a quo
ordered the appellant to pay the respondents
the amounts due to them in terms of their (respective) contracts of
employment for
the period 1 December 2010 up to and including 21
April 2015, but only awarded mora interest from 22 April 2015 on the
amounts
owed for that entire period. The court
a quo
also
ordered that “[t]he calculation of the quantum of the
remuneration is to be based on the principle applied by the
[appellant]
to the calculation of the tender accepted by the
[respondents] in respect of the remuneration payable to the
[respondents] for
the period from 22 April 2015 to 5 July 2016”
(my substitution). In addition, the appellant was ordered to pay the
costs
of the application.
[12]
On appeal, the appellant, basically, persists with the arguments it
made in the court
a quo
. It submits that the court erred in
rejecting its defences and in ordering it to pay the costs of the
application. The respondents,
on the other hand, argue that the court
a quo
was correct in that regard, but erred in finding that
mora interest only accrued from 22 April 2015.
[13]
The issues for determination on appeal are thus reasonably crisp,
namely, firstly, whether the respondents
had made out a case for the
payment of the remuneration they claimed for the period 1 December
2010 to 21 April 2015; secondly,
whether any of the claims for this
period had prescribed as envisaged in the Prescription Act; thirdly,
whether mora interest on
the amounts due for that period only accrued
as from 22 April 2015; and, lastly, whether the court
a quo
had exercised its discretion correctly in ordering the appellant to
pay the costs. I intend to deal with each of those issues in
turn.
The
nature of the order of 21 April 2015
[14]
In their founding affidavit in the application, the respondents
(i.e., the applicants there) aver,
inter alia
, that in failing
to pay them the appellant had failed “
to comply with the
spirit and letter
”of the order of this Court of 21 April
2015. In the replying affidavit, they specifically mention that they
“
had been deprived for a substantial period of time of
the relief that should necessarily flow from the Labour Appeal
Court order which is their reinstatement, and their right to payment
for the period December 2010 to date of reinstatement, together with
mora interest
.” (My emphasis).
[15]
The question thus arises whether this Court’s order of 21 April
2015 was a reinstatement of the
respondents, and notwithstanding,
whether it implicitly directed the appellant to pay to the
respondents, the amount of remuneration
that was due to them
(respectively) from 1 December 2010 to 21 April 2015.
[16]
If this was indeed a reinstatement order, then the Constitutional
Court’s decision in
National
Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining
Supplies (A Division of Marschalk Belleggings (Pty)
Ltd
[4]
(“
Fohlisa
”)
provides the answer to the first two issues to be determined without
any need for further analysis.
[17]
In
Fohlisa,
it appears to have been established that a (retrospective)
reinstatement order, in fact, implicitly requires the employer to pay
the employees their backpay for the retrospective period. It was held
that where a claim for backpay, for the retrospective period,
is
based on a simple reinstatement order, the claim arises from the
reinstatement order and not from the employment contract, even
though
the employee’s entitlement to backpay flows from the reinstated
contract of employment.
[5]
It
was further held concerning its prescription, that such a claim
constitutes a judgement debt with a prescriptive period of 30
years.
[6]
Regarding the
exceptio
non adimpleti contractus,
it
was held in
Fohlisa
that in such a case, the defence was not available to the employer in
respect of the retrospective backpay (i.e. up to date of
the
reinstatement order), because the court that gave the reinstatement
order had already, albeit implicitly, ordered payment of
such
backpay. The defence would only have been available to an employer if
the claim arose from contract.
[7]
[18]
However, despite the wording of the second paragraph of this Court’s
order of 21 April 2015,
it is not a reinstatement order. The
respondents were never dismissed and never lost their employment,
which is a necessary circumstance
for reinstatement.
[8]
The order of 21 April is a mere declaration of rights,
[9]
without any consequential relief. It declared that when the appellant
acquired the business of Interaction Call Centre, for whom
the
respondents were working at the time, there was “a transfer of
a business as a going concern” by Interaction Call
Centre to
the appellant, and that the transfer fell within the ambit of section
197 of the LRA. Significantly, it goes further
and declares that the
respondents were, in law, the employees of the appellant from 1
December 2010 “with no loss of service”.
The order
clearly implied,
inter
alia
,
that as far as the respondents’ employment was concerned, the
transfer was seamless, their service unbroken, and they ought
to
suffer no loss of “service” as a result of the transfer.
[19]
Section 197 (2) of the LRA spells out the position of the new
employer and the employees, unless otherwise
agreed by them, as
contemplated in that subsection. The same terms and conditions that
were applicable to the employees under the
old employer “continue
in force” under the new employer. The new employer “
steps
into the transferor’s shoes, and after the transfer is
affected, simply employs the transferred employees as if they
had
always been on its payroll
”.
[10]
It is thus implicit in section 197 that the new employer, like the
old employer, has a duty,
inter
alia
,
to pay the employees their wages as and when they fell and fall due
in terms of their, respective, employment contracts.
[20]
Even though it is not a retrospective reinstatement order, this
Court’s order of 21 April 2015,
not only implicitly declares
that the new employer is to allow the employees to work, but also
that it pays the arrear remuneration
that is due to them in terms of
their contracts of employment, at least up to the date of the order.
The
tender of services
[21]
The court
a quo
, in essence, held that taking into account the
nature and effect of section 197 – “it would appear that
it was not
required of the employees to tender their services where
the business employing them is transferred in accordance with section
197”, because “the employment continues uninterrupted”.
It held, alternatively, that the respondents had in fact
tendered
their services to the appellant as “[n]othing could be a
clearer tender of their service by the [respondents] than
their
referral of the dispute to the Labour Court concerning the
applicability of s 197 and the relief they sought”.
[22]
Counsel for the appellant criticised those findings and, relying on
what he perceived was held by this
Court in
Coca-Cola
SABCO (Pty) Ltd v Van Wyk
[11]
(“Coca-Cola”)
concerning the tender of services, argued that the court
a
quo
,
therefore, erred in its finding that the respondents “were not
in law to tender their services before instituting a contractual
claim for remuneration”. Counsel also argued that there was no
“basis in law for the court
a
quo
’s
conclusion that the mere launching of a section 197 application
constituted a tender of services by the respondents”.
[23]
The reliance on the decision in
Coca-Cola
was
misplaced. In fact, that decision is authority for the proposition
that an employee’s tender of her labour after the reinstatement
is a tender in terms of the employment contract and the employee is
therefore entitled to payment in terms of the contract of
employment.
[12]
In that
matter, this Court’s statement concerning the tender of
services turned on the question how the reinstated employee
could
recover remuneration between the date of the reinstatement award and
the date of actual reinstatement, if she tendered her
services,
because the LRA does not expressly provide for relief between the
date of the reinstatement award and the date of actual
implementation
of the award. The issue in the present matter is different. In any
event, what this Court had to say about the matter
in
Coca-Cola
seems to have been overtaken by the Constitutional Court’s
judgements in
Fohlisa
.
[24]
In any event, the argument of the appellant does not resolve the
question of how and when the respondents
were to tender their
services in respect of a period that had already passed. Because the
appellant does not seem to accept that
the tender of services was
implicit in the respondents’ conduct in,
inter alia
,
launching the application for a declaratory order, and appears to
suggest that the tender should be retrospective, which would
clearly
be a superfluous exercise.
[25]
The principle is still valid, namely, that in a claim for the payment
of agreed salary or wages, the
employee needs not allege having
provided, or tendered the required service, but would have to prove
having provided or tendered
the service if the employer contends that
the service has not been provided, or tendered.
[13]
But the appellant’s argument in this Court, probably due to a
misreading of the decision in
Coca-Cola,
appears to be a misconception of the requirements for making out a
case for the payment of backpay, or remuneration, in general,
in that
it seems to suggest that the employee has to, at the outset, allege
and prove having provided the service, or of having
tendered to
provide it, even though the employer does not dispute that fact.
[26]
In any event, it is disingenuous for the appellant to contend that
the respondents did not tender their
services to it, when it
vigorously resisted their claims that it had become their employer.
The appellant had never before, including
in the proceedings that
culminated in this Court’s order of 21 April 2015, contended
that the respondents had not rendered,
or had not tendered to render
services to it. And that is hardly surprising, because such a
contention would have detracted from
the cogency of the appellant’s
denial that the respondents automatically became its employees upon
transfer of the business
to it. Further, there is no merit in the
appellant’s assertion, that the respondents’ pursuit of
the declaratory order
did not imply a tender of their services to it.
[27]
In fact, the appellant’s resistance of the respondents’
claims, that it was their employer,
was tantamount to a repudiation
of the contracts of employment with the respondents. Being innocent
in the matter, the respondents
would in those circumstances have been
relieved of the obligation to perform their reciprocal contractual
duties, or of tendering
performance thereof.
[14]
[28]
For the reasons stated above, the court
a quo
’s findings
on the tender of services are unassailable.
Prescription
[29]
The defence of prescription is, similarly, disingenuous for various
reasons, the most obvious being
that it fails to address the impact
which the appellant’s resistance to the respondents’
claims, that it had become
their employer, and the steps taken by the
respondents in that regard, had on the running of prescription.
[30]
It was correctly submitted by the respondents’ counsel that the
application for a declaratory
order launched on 11 May 2011,
effectively interrupted the running of prescription as contemplated
in section 15 of the Prescription
Act and that this interruption
endured until this Court finally decided that application on 21 April
2015.
[31]
Section 15(1) of the Prescription Act provides that “the
running of prescription shall, subject
to the provisions of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment
of the debt”. The
application for the declaratory order is process as contemplated in
that section. It is for the enforcement,
inter
alia
,
of the very right the respondents have to the payment of
remuneration, or for the substantial enforcement of that right.
Unless
the appellant was the employer of the respondents it would
have no obligation to pay them a salary or wages as per their
contracts
of employment. Obtaining a declaratory order, that the
appellant was indeed their employer, was essential and, thus,
effective
in interrupting the running of prescription
[15]
in respect of their claims for remuneration for the period 1 December
2010 up to and including 21 April 2015. In those circumstances,
the
claims had not prescribed.
[32]
Another possible reason why the prescription defence is bad, but
which was not argued by either of
the parties and in respect of which
I make no finding, relates to whether prescription could ever have
started to run in circumstances
where the appellant, effectively,
denied being the debtor. In terms of section 12(1) of the
Prescription Act, prescription commences
when the debt is due, but in
terms of section 12(3), a debt shall not be deemed to be due until
the creditor has knowledge of the
identity of the debtor. The
respondents in this instance could only establish in law that the
appellant was indeed their debtor
by the declaratory order sought and
eventually granted by this Court on 21 April 2015.
Mora
Interest
[33]
The court
a quo
held that the debt (in respect of the arrear
remuneration) only fell due when this Court made its order on 21
April 2015 and mora
interest can only run from that date.
[34]
The respondents’ counsel submitted that the court
a quo
erred in that regard. According to the argument, this Court’s
order “was retrospective in operation” and amounted
to a
correction of the court
a quo
in that instance. Thus,
effectively, this Court’s order stated what the Labour Court’s
order ought to have been on
23 May 2013, when its judgement was
handed down. The court
a quo,
in the present matter,
therefore, erred in stating that interest would run from the date of
this Court’s order (i.e. 21 July
2015). It should have held
that the interest ran from 23 May 2013.
[35]
However, so it was argued by counsel for the respondents, even that
date would be incorrect, since
mora interest would have begun to run
in terms of the common law as and when the remuneration was not paid
when it fell due at
the end of each month. The appellant was in
mora
ex re
as
the time for payment had been fixed by the individual contracts of
employment read with the Basic Conditions of Employment Act
[16]
(“the BCEA”).
[36]
Ultimately, the argument of the respondents’ counsel posits for
consideration whether the claims
for remuneration relating to the
period 1 December 2010 up to and including 21 April 2015, arises from
the order of this Court
of 21 April 2015 or from the individual
contracts of employment.
[37]
Whilst it may be so that the court
a quo
erred in holding that
the amounts claimed became due on 21 April 2015, whereas that date
ought to have been 23 May 2013, as this
Court’s order
substituted the Labour Court’s order, there is, nevertheless, a
difficulty with the argument, in effect,
that the amounts claimed by
the respondents only became due as a result of the order of this
Court of 21 April (i.e., which the
Labour Court ought to have made).
[38]
With regard to a retrospective reinstatement order, it was held in
Fohlisa
that the claim for the backpay for the period retrospective to the
reinstatement order (after the date of the reinstatement order)
arises from the reinstatement order and was not due before that order
was made. The reasoning, especially in the judgment of Zondo
J (as he
then was) in
Fohlisa
,
was that the backpay was ordered (albeit implicitly) in the
reinstatement order, in the exercise of the Labour Court’s
discretion and not because the employees there were entitled to
backpay in terms of their contracts of employment, and that,
therefore,
mora interest relating to the backpay had to run from the
date of the reinstatement order.
[17]
[39]
As mentioned above, this Court’s order of 21 April 2015 is a
declaration of rights and not a
retrospective reinstatement order. It
determines the existing, future and contingent rights of the
respondents in their capacity
as employees of the appellant, flowing
from their individual contracts of employment and the law (including
the BCEA). While the
Labour Court had also exercised a discretion in
determining whether to grant the declaratory order, a declaratory
order is no more
than what its name suggests. It does not implicitly
order that the appellant pay the respondents any specific amount as
remuneration,
but declares that the appellant is liable to pay the
respondents such remuneration as may be due to them, for the
requisite period,
in terms of their contracts of employment and the
law.
[40]
The remuneration claimed did not only become due when the declaratory
order was made but was due on
the dates fixed in the contracts of
employment, read with the BCEA. When the appellant failed to pay the
remuneration as and when
it fell due at the end of each month, in
terms of those instruments, it was in mora (ex re).
[18]
[41]
A fundamental difference between the situation in
Fohlisa
and the present is,
inter-alia
,
the following. Absent the retrospective reinstatement order, in the
case of a dismissal, there would be no entitlement or claim
for
backpay. On the other hand, the absence of a declaratory order does
not entail that there would be no claim for the arrear
remuneration.
The employee can still claim such a remuneration based on the
employment contract and the law. A separate declaration
of rights
would not necessarily have been essential, for the employee to
succeed in, what could be termed, a claim for consequential
relief,
either to do perform an act(s) (
ad
factum praestandum
)
and/or to pay money (
ad
pecuniam solvendam
).
[19]
[42]
In conclusion on this point, mora interest accrued and is payable for
the period 1 December 2010 up
to and including 21 April 2015 in
respect of the remuneration that remained unpaid subsequent to its
due date, and shall continue
to accrue until the payment in respect
of such remuneration is made. The Prescribed Rate of Interest Act
[20]
fixes the applicable interest rates, and it is significant to note in
that regard that the rate applicable, when mora interest
first begins
to run in respect of a particular debt, applies until the payment of
that debt, irrespective of variations in the
rate over that period.
The
costs
[43]
The appellant’s counsel argued, in effect, that the court
a
quo
had exercised its discretion wrongly in ordering the
appellant to pay the costs. Counsel submitted that the order was
inappropriate
because the court
a quo
failed to take into
account that the respondents had only succeeded in obtaining mora
interest from 22 April 2015 and that the
matter involved novel points
of law.
[44]
It is trite that while a court of appeal has the power to amend an
award of costs, it will not exercise
that power hastily, and will
only exercise the power where it is satisfied that the lower court
has not exercised its discretion
judicially.
[21]
In this case that has not been established. Taking into account all
factors and circumstances, including the disingenuousness of
the
points relied upon by the appellant in the face of this Court’s
order of 21 April 2015, the costs order of the court
a
quo
is more than appropriate.
Conclusion
[45]
In light of the above, the appeal must fail. It is appropriate,
taking into account both the law and
fairness, that the costs should
follow the result.
Quantification
of the claims
[46]
As mentioned earlier, before the hearing in the court
a quo
,
the appellant made a tender to pay specific amounts in respect of the
period 22 April 2015 to 5 July 2016, and the respondents
accepted
that tender. The court
a quo
was of the view that the tender
and acceptance thereof was “helpful in determining the basis of
the calculation of the remuneration”
due to the respondents for
the period 1 December 2010 to 21 April 2015. In paragraph 46(a) of
its order, the court
a quo
provides the formula for
calculating the remuneration due. The paragraph reads: “the
calculation of the quantum of the remuneration
is to be based on the
principle applied by [appellant] to the calculation of the amount of
the tender, accepted by the [respondents]
in respect of the
remuneration payable to the [respondents] for the period from 22
April 2015 to 5 July 2016” (my substitutions).
[47]
None of the parties took issue with the court
a quo
’s
approach to the quantification of the claims (including the aforesaid
formula). The respondents accepted it. However, at
the hearing before
us, the amounts payable to the individual respondents had not been
calculated accordingly (even tentatively).
[48]
For reasons of expediency, we requested the parties to attempt to
settle the quantum of the claims
of each of the respondents and to
submit agreed figures to this Court for incorporation into its order.
Unfortunately, it appears
that the figures could not be agreed upon.
Despite the formula, each of the parties, claiming to have applied
it, submitted their
own figures which differed materially, evidencing
a lack of consensus in that regard. We are unable to resolve those
differences
in this forum. The quantification of the claims was not
an issue before us and as we are not apprised of all the facts
pertaining
to the quantification of the claims and no submissions
concerning that issue was addressed in argument before us. Unless the
parties
are able to settle the amounts in accordance with the
formula, duly adjusted to accommodate this Court’s finding on
the mora
interest, they would have to resort to quantification by the
Labour Court or an agreed forum.
[49]
In the result, the following is ordered:
49.1
The appeal is dismissed;
49.2
The cross-appeal (in respect of interest) is upheld;
49.3
The appellant is to pay the costs of the appeals.
49.4
The court
a quo
’s order is amended to read as follows:
“
(a)
The respondent (Mobile Telephone Networks (Pty) Ltd) is ordered to
pay the applicants (Pillay
and 37 others) the remuneration due to
them in accordance with their contracts of employment for the period
1 December 2010 up
to and including 21 April 2015;
(b)
The respective amounts contemplated in paragraph (a) shall bear mora
interest at the legal
rate applicable from the day following the date
upon which the respective amount became due and payable, up to the
date of its
payment;
(c)
The calculation of the quantum of the remuneration is to be based on
the principle applied
by the respondent to the calculation of the
amount of the tender accepted by the applicants in respect of the
remuneration payable
to the applicants for the period from 22 April
2015 to 5 July 2016, save that interest should be calculated in
accordance with
paragraph (b);
(d)
The respondent is to pay the costs of the application.”
____________________
P
Coppin
Judge
of the Labour Appeal Court
I
agree
_______________
B
Waglay
Judge
President of the Labour Appeal Court
I
agree
__________________
J
Murphy
Acting
Judge of the Labour Appeal Court
APPEARANCES:
FOR
THE APPELLANT:
M J Van As
Instructed
by Mashiane Moodley & Monama Inc.
FOR
THE RESPONDENTS: M
Pillemer SC
Instructed
by Brett Purdon Attorneys
[1]
Act
66 of 1995.
[2]
Grand
Mines (Pty) Ltd v Giddy NO
[1998] ZASCA 99
;
1999
(1) SA 960
(A);
BK
Tooling (EDMS) Bpk v Scope Precision Engineering (EDMS) Bpk
1979
(1) SA 391
(A).
[3]
Act
68 of 1969.
[4]
National
Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining
Supplies (A Division Belleggings (Pty) Ltd
(2017)
38 ILJ 1560 (CC) (“
Fohlisa”)
.
[5]
Fohlisa
(above)
at paras 10-14 (Madlanga J); at para 90 (Zondo J).
[6]
Fohlisa
(
above)
paras 15, 22-24 (Madlanga J); para 29 (Zondo J).
[7]
Fohlisa
(
above)
paras 116-123 (Zondo J); J Grogan “Basic Principles” ELJ
(June 2017; Part 3) (Lexis Nexis).
[8]
See:
s 193(a) and s193(2) of the Labour Relations Act 66 of 1995 (‘the
LRA”).
[9]
In
terms of s 158(a)(iv) of the LRA the Labour Court has the power to
grant a declaratory order.
[10]
J
Grogan
Workplace
Law
(9
ed. Juta) p 251.
[11]
Coca-Cola
SABCO (Pty) Ltd v Van Wyk
[2015] 8 BLLR 774
; (2015) 36 ILJ 2013 (LAC) (“
Coca-Cola
”)
at paras 24-26.
[12]
Coca-Cola
(above) at para 24.
[13]
Coca-Cola
(above)
at para 24;
Prins
v Universiteit van Pretoria
1980 (2) SA 171 (T).
[14]
GNF
Office Automation CC v Provincial Tender Board Eastern Cape
1998 (3) SA 45
(A) at 51F; RH Christie
The
Law of Contract in South Africa
6ed (2016 Lexis Nexis) p518; M Brassey
Employment
Law
(1997
Juta) at F2:33.
[15]
CT
Municipality v Allianz Insurance Co Ltd
1990 (1) SA 311
(C), referred to with approval in
Peter
Taylor & Associates v Bell Estates (Pty) Ltd
2014 (2) SA 312
(SCA) at paras 12, 13 and 16.
[16]
Act 75 of 1997.
[17]
Fohlisa
(above) at para 199.
[18]
Crookes
Brothers Ltd v Regional Land Claims Commission, Mpumalanga
2013 (2) SA 259
(SCA) at paras 15-17; RH Christie
The
Law of Contract in South Africa
6ed (2016 Lexis Nexis) pp 519-520.
[19]
See
inter
alia,
the recent, as yet unreported, decision of this Court in
Road
Traffic Management Corporation v Tasima (Pty) Ltd
(LAC
case no. JA10/19) (delivered 15 March 2019) at paras 25-30.
[20]
Act
55 of 1975.
[21]
Merber
v Merber
1948 (1) SA 446
(A) at 453.