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[2019] ZALCD 1
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Kubeka and Others v Ni-Da Transport (Pty) Ltd (D726-18;J5386-17) [2019] ZALCD 1; [2019] 5 BLLR 463 (LC); (2019) 40 ILJ 1312 (LC) (31 January 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
Reportable
Case No: D 726-18
Case No: J 5386-17
In
the matter between:
MHLUPHEKI
WILLEM KUBEKA & OTHERS
Applicants
And
NI-DA
TRANSPORT (PTY) LTD
Respondent
Heard:
18 to 22 June 2018
Delivered:
31 January 2019
Summary:
Backpay is only contractually owing upon
the full restoration of the employment contract; B
ackpay
becomes due only after the employer has
reinstated the dismissed employees. A failure to reinstate and pay
backpay should attract
contempt proceedings as a response.
JUDGMENT
WHITCHER
J
[1]
This case concerns a claim for arrear wages in terms of section 77
(3) of the Basic
Conditions of Employment Act (BCEA).
[1]
The applicants contend they are entitled to this money after the
Labour Court on 24 July 2013 found their dismissal related to
a
strike to have been substantively and procedurally unfair. It bears
mention that the dismissals of the applicants took place
five years
earlier, in mid-2008.
[2]
The respondent unsuccessfully sought leave to appeal the Labour Court
judgment, per
Gush J, and then approached every higher court for a
reversal of this decision all the way up to the Constitutional Court
which
dismissed its application on 12 November 2014. The effective
date on which the respondent’s challenge to the Labour Court
order was finally extinguished, however, was 18 November 2014 when
the Supreme Court of Appeal (SCA) rejected a petition running
in
parallel to the Constitutional Court appeal.
[3]
The original judgment of the Labour Court included an order that the
respondent reinstate
the applicants, retrospective to the date of
their dismissal. The pertinent parts of the 24 July 2013 order of
Gush, J, reads as
follows:
1.
“
The respondent is ordered to
reinstate the applicants in both matters retrospectively to the date
upon which they were dismissed;
and
2.
The applicants are to report for duty
within 14 days of the date of this judgment”
[4]
It is trite that such an order, among other things, meant that the
applicants were
in line for the wages they would have earned but for
their unlawful dismissal back in 2008
[2]
.
As already stated, the employer elected to take the judgment on
appeal. This decision suspended the effect of the Labour Court’s
order as the matter wound its way through all the higher courts over
the next sixteen months. By 18 November 2014, the employer
had
succeeded in none of its challenges. How, by what intricacy of fact
or quirk of law, could it then be that the applicants end
up
receiving nothing in this application when an unappealable order of
reinstatement was made in their favour which was meant to
have placed
them in the same position they would have been but for their
employer’s original unlawful action?
[5]
Part of the answer proposed to this question by the respondent is
that the applicants
followed the wrong legal process to obtain
redress for its failure to comply with its obligation to reinstate
them. When the SCA’s
ruling against the respondent on 18
November 2014 finally extinguished all its appeals, the
enforceability of the Labour Court’s
order revived. However,
the applicants instituted a contractual claim for backpay, instead of
mounting contempt of court proceedings
for not being reinstated. In
doing so the applicants missed the fact that what revived after the
SCA’s decision was the respondent’s
obligation to
reinstate them upon their tender of services. What did not revive was
an obligation to pay them backpay in isolation.
Only
if the respondent took the applicants back into its employ would
their contracts be restored and backpay become owing.
[6]
It is necessary for what follows below to note that the entitlement
to backpay may
be broken into two periods. The first is from the date
of dismissals in mid- 2008 to the date of Labour Court judgment
ordering
reinstatement on 24 July 2013 (the first period). The second
is from the day after the Labour Court judgment, 25 July 2013
[3]
until the SCA’s denial of the respondent’s petition on 18
November 2014 (the second period).
[7]
In its argument, the respondent relied on a doctrine clarified
recently by the apex
court. Although a split decision, both judgments
by the constitutional court accepted the proposition drawn by
Madlanga, J in
National
Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining
Supplies
that
a reinstatement order covering the first period is an order
ad
factum praestandum.
In
other words, it is an order to do something as opposed to an order to
pay something. An order
ad
factum praestandum
may
be enforced through contempt proceedings.
[4]
Consequently, a reinstatement order, at least in respect of backpay
associated with the first period, constitutes a judgment debt.
What
this means is that a failure to reinstate and pay backpay for the
first period should attract contempt proceedings as a response.
[8]
Of course, what is needed as a prerequisite to reinstatement is a
tender of services.
The respondent also disputed that a proper tender
of services occurred. I will deal with this matter later. However,
viewed in
its proper light, whether the unfairly dismissed employees
tendered their services or not is irrelevant in the respondent’s
schema. Backpay 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.
Once
an employer bends the knee in this regard, backpay becomes payable
too
.
Madlanga, J, explained that the judgment ordering reinstatement does
not in and of itself reinstate the contract of employment;
rather, it
is an order directing the employee to tender services, and for 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.
[5]
[9]
The judgment in
Hendor
made findings on the distinction between a judgment debt and contract
debt in a matter that was concerned with prescription. The
order the
applicant sought to be enforced in
Hendor
also concerned a debt involving money and not performance by the
losing party. That court was thus not confronted with an employer
who, after its ultimate loss, continued to resist its obligation to
take the employees back into its employ. Notwithstanding the
difference in the facts giving rise to the conclusions drawn in
Hendor
,
the procedural implications of the legal principle the constitutional
court enunciated are unavoidable in the present matter.
[10]
I earnestly considered whether the second opinion in
Hendor
might permit the applicants to take away at least some backpay in a
matter where legal doctrine really did seem to favour the less
virtuous party. The court in
Hendor
was evenly split on whether the debt incurred in respect of the
second period defined in paragraph 6 above was not perhaps a contract
debt. Madlanga J, viewed it as an artificial line to draw but Zondo,
DCJ, writing the second judgment
,
found that, after the noting of an appeal and until all appeals are
exhausted, the portion of backpay occasioned by such a delay
constitutes a contractual debt.
[6]
One of Madlanga, J’s criticisms of this approach of Zondo, DCJ,
was that
it
carved up the period during which there was non-compliance with the
Labour Court’s order into separate periods that give
rise to
different legal consequences.
[11]
The ability to generate separate legal consequences, with respect,
recommended the approach of
Zondo, DCJ, to me
in
casu
. Accepting that an order in
respect of the first period did not sound in money, could it not
perhaps be that backpay associated
with the second period, as a
quantifiable contractual debt, did?
[12]
It is important to record that this matter is not about whether the
applicants were, at a colloquial
level,
entitled
to the full amount of backpay for both the first and second periods.
They plainly were. However, the respondent has taken the point
that
the applicants erred in not using the correct legal process to
achieve the outcome which, barring the liquidation of the respondent,
was otherwise theirs for the taking. I considered whether, if in
terms of the second judgment in
Hendor
,
claims for arrear wages for the second period were contractual debts,
these amounts could not be claimed
under section 77(3) of the
BCEA
.
[13]
If one scans Zondo, DCJ’s views in the second judgment more
widely, however, it appears
that, for him too, contract debts in
respect of the second period become due only after the employer has
reinstated the dismissed
employees. The learned judge states:
“
[174] 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. When the
Supreme Court of Appeal
dismissed Hendor’s application for
leave to appeal, the suspension of Cele AJ’s order was, by
operation of law, lifted.
The lifting of that suspension revived Cele
AJ’s order and, thus, Hendor’s obligations in terms of
that order.
[175] This
meant that in terms of paragraph (a) of Cele AJ’s order, Hendor
was again obliged to put the second
and further applicants back into
their former positions of its employ on the same terms and conditions
of employment as they had
before dismissal. In other words, the
obligation to reinstate them. 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 and they were deemed to have
been in place from
the date of Cele AJ’s order.
[176] 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.”
[14]
To my mind, there is simply no way of getting around it. The
applicants used the wrong process
to obtain the relief they sought.
[15]
In my research, I came across the Labour Appeal Court case of
National Electronic Media Institute of
South Africa v Nkanyison (
case JA19/03,
unreported). Here Willis, JA, found that an employee whose dismissal
in an internal hearing had been overturned by
an in-house appeal and
had had his subsequent tender of services refused by the employer
could claim unpaid wages, essentially
backpay. This matter is
distinguishable on the facts as it rested in the main on a finding
that the employee had not
validly
been dismissed. The contract thus persisted, entitling him to be
paid. Even if the facts were the same, the constitutional court
in
Hendor
has
come to another view.
[16]
I turn now to deal with the factual matter of whether the applicants
tendered their services,
either in the time frame set by the Labour
Court (within 14 days after 24 July 2013), and/or retendered their
services after the
SCA’s order on 18 November 2014. I will also
deal with the legal question of whether a retender of services after
the SCA
order of 18 November 2014 was necessary.
[17]
I address questions that may seem redundant given my finding above. I
do so in the event that
I am wrong in my reasoning that the
applicants are unable to pursue their claim for arrear wages under
the BCEA unless reinstated.
If I am wrong, it is only fair that I
have also disposed of the remaining legal and factual questions
standing between the applicants
and the relief they seek.
[18]
Three witnesses testified for the applicants that at least some
workers presented themselves
for work on 29 July 2013, well within
the time-frame set by the Labour Court.
[19]
The applicants’ first witness, Mhlupheki Kubeka, stated that
around 40 employees, accompanied
by a SATAWU official, Edgar Mbina,
presented themselves for work. Some of the names Kubeka mentioned
could not logically have presented
themselves and it appears he may
have exaggerated the number of employees doing so. However, he
testified that the respondent’s
manager, Louis Maritz, refused
the tender of services stating that the company was not aware of the
court judgment, Maritz further
advised the applicants present to
consult its (the respondent’s) lawyers.
[20]
The respondent pointed out serious problems with the evidence of 2
nd
witness, Samson Mlambo, who seemed confused between the strike itself
and the tender of services after the Labour Court judgment.
I have
discounted his evidence for this reason.
[21]
The evidence of the applicants’ third witness, Mbhekeni
Sithole, on the identity of those
tendering service, was also not
very strong. He did however confirm that a union official of SATAWU,
Edgar Mbina, accompanied the
workers who did present themselves at
the respondent’s gates. He confirmed that the tender of service
was refused by the
respondent’s manager, Maritz, on the grounds
that the company was not aware of the judgment.
[22]
The problems with the applicants’ witnesses’ evidence do
however not matter very
much. From the respondent’s own
witness, Louis Maritz, confirmation of the important features of the
applicant’s case
emerged. This was that on 29 July 2013, the
SATAWU official, Mbina, accompanied by about 10 workers, arrived at
the respondent’s
premises. Mbina informed him that the
applicants had been reinstated by an order of the Labour Court. By no
stretch of the imagination
(and probabilities) could this
communication be anything other than a tender of work. Maritz further
conceded, in effect, that
this offer was refused on the grounds that
the respondent did not have knowledge of the court order.
[23]
It also does not matter who or what number of employees tendered
their services on that day.
While the group of individual applicants
may have been only ten, on the respondent’s version, they were
accompanied by a
union official. Mbina was an agent for all the
dismissed employees who were, in terms of the Labour Court order,
entitled to reinstatement.
It was as good as if the applicants’
attorney had written to the respondent stating that his or her
clients ‘hereby’
tendered their services to test the
employer’s attitude. It is not critical that the employees all
personally arrived at
the gate on the day. Whether in response to a
lawyer’s letter or on arrival at the gates in person, with 10
days still to
spare, Mbina, an agent and representative of all the
employees entitled to reinstatement, received the same negative
answer. The
company representative declined to accept the tender to
work stating that the company knew nothing about the court order.
[24]
If the law of agency does not already provide for a union official
tendering services on behalf
of his members, there are compelling
policy reasons to permit this instead of expecting all applicants to
arrive for work only
to be shown away for whatever reason, as they
were
in
casu
.
It is notorious that workers in South Africa often have to travel
significant distances at relatively high cost to attend work.
It is
to be expected in circumstances such as applied in this matter that
at least some employees would wait for a union official
to contact
the employer or wait for others to first test the waters of
reinstatement before incurring the wasted costs, especially
after a
period of prolonged unemployment, of being shown away. The
difficulties workers experience reporting for duty at a given
time
after a reinstatement order is a matter that Zondo, DCJ, in
Hendor
,
also recognized and lamented
[7]
.
I am thus satisfied that in this matter, Mbina in all likelihood
performed the general function of tendering the service not only
of
the employees physically around him but of all those entitled to
reinstatement. I cannot imagine his attendance on 29 July 2013
as
being only in respect of the employees whom he accompanied. Maritz
himself accepted that Mbina was there because of a Labour
Court order
requiring the reinstatement of all the applicants.
[25]
Mbina also received, on behalf of all the applicants entitled to
reinstatement, news of the respondent’s
refusal to do so.
Nothing turns on the fact that he did not arrive with court order in
hand. Any responsible employer, unsure about
the serious claims Mbina
made, could have readily checked with their own attorneys and taken a
decision that they considered wise.
If such a decision could not be
taken immediately, and the employer subsequently decided to abide by
the Labour Court order, the
duty would have rested on the respondent
to contact the union and accept the tender of services it had
provisionally declined a
few days earlier. As it turns out, we know
that the respondent in this matter was not deprived of an opportunity
to accept any
or all of the employees entitled to reinstatement
because they may not have presented themselves at the gates on 29
July 2013.
We know that the respondent resolved to resist the order
by the fact that it launched the succession of appeals and petitions
that
it did.
[26]
I also find that, after the SCA’s order against the respondent
on 18 November 2014, no
new tender of service was required. This is
because the effect of the SCA’s order was to revive the
enforceability of the
Labour Court order. In a sense, the parties
travelled back in time to the point they were at before the appeal
process was started.
By then, a tender of service had been made. To
use the absence of a new, formal tender of service as a means to deny
the applicants
their due at this late stage of the game strikes me as
artificial and technical to a degree that would frustrate the objects
of
labour law generally. If there were any quibbles about accepting
certain of the employees who had originally tendered their services
in 2013 into the respondent’s employ in 2014, perhaps as a
result of some new, disqualifying characteristic, this could be
dealt
with on a case by case basis. Those applicants who had already taken
up employ with the respondent again before the SCA’s
ruling
could similarly be identified and denied full back pay.
[27]
That no new tender of services was required is obvious if one
considers what would happen in
respect of the claims on behalf of
employees who died after the Labour Court order on 24 July 2013 but
before the Supreme Court
order on 18 November 2014. In my view, after
contempt proceedings had achieved compliance with the original
reinstatement order,
the estates of these deceased employees would
have been entitled to backpay equal to the time it would have been
possible for such
an employee to have worked. These employees however
would obviously not have been able to re-tender their services after
the SCA’s
18 November 2014 decision and such an expectation,
enveloped in law, would offend public morality.
[28]
Should the respondent have acted in accordance with its revived
obligation to reinstate after
18 November 2014, it would have
contacted the union inviting those of the applicants who were still
able to render services back
into its employ, perhaps subject to a
reasonable deadline and preceded by a sensible discussion as to their
roles after six years
of unemployment.
[29]
The last question to be decided concerns the newly introduced claim
against fourteen applicants
as contained in Annexure B handed up in
court on 18 June 2018. I find that this evidence is inadmissible.
[8]
[30]
In light of what I have stated above, it is with some reluctance that
I find that the applicants
have not made out a case for payment of
arrear wages.
[31]
On the subject of costs, a fairly abstract point of law, not as
clearly stated at the time the
applicants made their litigation
decisions in this matter as it now is, favoured the respondents.
Overall morality, I fear, does
not.
Order
1.
The application is dismissed.
2.
There is no order as to costs.
________________________________
B
Whitcher
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the Applicants:T Tshabalala, with P Botha, instructed by Mashoana
Mabena Mogane Inc
For
the Respondent:CE Watt-Pringle, SC with KS McLean, instructed by
Grant & Swanepoel Attorneys
[1]
Act Number 75 of 1997, herein after referred to as the BCEA.
[2]
See:
Equity
Aviation Services (Pty) Ltd v CCMA and Others
(2008) 29 ILJ 2507 (CC) at para 36.
[3]
It
may be that the second period properly begins with the filing of an
application for leave to appeal some days after the Labour
Court’s
order, but nothing turns on this
in
casu
.
[4]
(
2017)
38 ILJ 1560 (CC) at para 18.
[5]
Madlanga, J, at para 22 and 23, stated: “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
his self 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. The
order of reinstatement cannot be a contractual debt. But the fact
that the reciprocal
rights and obligations are then governed by
contractual principles does not mean that the original obligation to
comply with
the reinstatement order has also somehow morphed into a
contractual debt. For as long as that obligation is not complied
with
it continues to maintain its essential nature of being a
judgment debt.”
[6]
Zondo, DCJ
at
para 89 stated: “
If
Hendor did not put the second and further applicants back into the
positions contemplated in para (a) of Cele AJ’s order,
the
second and further applicants would have been able to bring contempt
of court proceedings against Hendor. If the second and
further
applicants were asked which order required Hendor to take them back
into the positions concerned, they would have been
able to point to
para (a) of Cele AJ’s order. If they were asked to point out
the order that required Hendor to pay them
their remuneration in
respect of the first period, they would also have been able to point
it out, namely, para (b) of Cele AJ’s
order. However, if they
were asked to point out the order which required Hendor to pay them
their remuneration for the second
period, they would not have been
able to point it out. This shows that the debt relating to the first
period is a judgment debt
whereas the debt relating to the second
period is not a judgment debt.”
[7]
At
para
79.
[8]
Reasons
set out in para 18 of Applicants’ Heads of Argument.