IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case no: JS165/2016

In the Rescission Application between:

G4S CASH SOLUTIONS (PTY) LTD Applicant

and


MATLALA, JERRY Respondent

In the matter between:

G4S CASH SOLUTIONS (PTY) LTD Applicant

and


MATLALA, JERRY Respondent

Decided in Chambers: 11 March 2025

JUDGMENT : RESCISSION APPLICATION I.T.O S165(a) AND (c) OF LRA

NORTON AJ

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Introduction 1. The Applicant in this matter , the employer / G4S Cash Solutions (Pty) Ltd
seeks to rescind and set aside the leave to appeal judgment , which I issued on 20
June 2024 under case number JS165/2016. The Applicant seeks to do so in terms of
section 165(a) and (c) of the Labour Relations Act 66 of 1995 (“LRA”).
2. In addition, the Applicant seeks to have the leave to appeal application heard
afresh, on the basis that their submissions should be considered. The thrust of the
Applicant’s rescission application is that I failed to consider their opposing
submissions in the leave to appeal application. 3. In terms of para graph 8 of the leave to appeal judgment, I indicated that the
Applicant did not file opposing submissions (when in fact it did) . The pleadings were
not in the court file before me.
4. To avoid confusion I am going to refer to the parties by their common
description of “employer” and “employee”.
Salient chronology
5. On 21 December 2010 the employee was dismissed by the employer for
misconduct.
6. The employee successfully pursued an unfair dismissal claim and the
bargaining council (the National Bargaining Council for the Road Freight and Logistics Industry) found that his dismissal was unfair and ordered reinstatement.
7. The employee tendered his services, but was the employer refused to accept
the tender.

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8. In April 2016 the employee instituted a contractual claim for payment of his
arrear salary amounting to R262 500,00 plus interest. This was opposed by the
employer.

9. On 29 February 2024 the dispute was ventilated before me in a trial.
10. On 29 April 2024 I dismissed the employee’s claim as I found that the
employee had followed the wrong legal path by pursuing a contractual claim in terms of section 77(3) of the BCEA, rather then contempt proceedings.
11. On 3 May 2024 the employee made an application for leave to appeal.

12. On 13 May 2024 the employee delivered his submissions.
13. On 20 June 2024 I granted leave, but unbeknown to me the employer had
filed opposing submissions on 28 May 2024.
14. On 16 July 2024 the employer brought an application to rescind my judgment
made in the application for leave to appeal. There are no papers before me from the
employee opposing the rescission application. I therefore assume that there is no
opposition from the employee.
15. It was as late as 25 February 2025, some 7 months later, when the matter
was first brought to my attention by the court, and the file delivered to my chambers
on 27 February 2025.
Legal considerations 16. In terms of section 165 of the LRA,
The Labour Court, acting of its own accord or on the application of any affected
party, may vary or rescind a decision, judgment, or order ‘erroneously sought or erroneously granted in the absence of any party affected’ by the decision, judgment or order ”.
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17. Rule 46 of the Labour Court rules makes provision for such an application. At
the time I considered the leave to appeal application, the employer’s opposing submissions were not in the court file. The judgment was therefore granted
erroneously in the absence of the employer.
18. I have now had the benefit of reading the employer’s submissions, with which
I generally concur.
19. When considering the standard in applications for leave to appeal, section
17(1) of the Superior Courts Act 2013 (the “Act”) applies. That section reads,
“Leave to appeal may only be given where the judge or judges concerned are
of the opinion that (a)(i) the appeal would have a reasonable prospect of success; or (a)(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.”
20. The threshold to cross for an audience with an appeal court is a high one,
requiring a strong prospect that another court would come to a different decision, or that there are compelling reasons justifying the attention of that court.

21. In Seathlolo & others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others
1 Judge Van Niekerk, discussing the test to be applied
states,
“The traditional formulation of the test that is applicable …requires the court to determine whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. …the use of the word “would” in s 17(1)(a)(i) is indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion…Further this is not a test to be applied lightly – the Labour Appeal Court has recently had occasion

1 (2016) 37 ILJ 1485 (LC). See too Sepheka v Du Pont Pioneer (Pty) Ltd (2019) 40 ILJ 613 (LC)
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to observe that this court ought to be cautious when leave to appeal is
granted…The statutory imperative of the expeditious resolution of labour disputes necessarily requires that appeals be limited to those matters in which that there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law …”
2
22. I do not think that there are reasonable prospects that the Labour Appeal
Court would arrive at a different finding, not that there are legitimate disputes of law to consider.
23. It is settled law that an employee may pursue a contractual claim in terms of
section 77(3) of the BCEA if the employee has been reinstated following a finding of an unfair dismissal and the employee tenders service and the employer accepts the tender of service. This was the situation in Coca Cola v Van Wyk
3 and the case the
employee sought to rely on.
24. An order of reinstatement does not automatically revive the contract of
employment. The contract is only revived when the employer accepts the employee back to work. If that occurs and the employer does not make payment of backpay, then the employee may pursue the matter as a contractual claim as Van Wyk did.

25. The situation of the employee, Mr Matlala, was however materially different.
The employer never accept ed his tender of service and therefore he could not
pursue a contractual claim – as simply put – the contract of employment had not
been revived.

26. The courts have held that in such circumstances, the employee’s recourse is
to pursue contempt proceedings.


2 At para 3
3 (2015) 36 ILJ 2013 (LAC)
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27. In Kubeka & others v Ni -Da Transport (Pty) Ltd4 the Labour Appeal Court held
quite clearly that
[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.
28. Recently i n Mahlanga NO v Rand Water
5 Judge Prinsloo in discussing the
principles of reinstatement stated that,
“The governing principle that the contracts of employment of unfairly
dismissed employees are terminated by dismissal and revive only when they
tender their services pursuant to a reinstatement order and the tender is
accepted by the employer. The reinstatement order does not in and of itself
reinstate the contract of employment, it is rather directing the employees to
tender their services and for the employer to accept those services. In
Hendor, it was confirmed that if an employee presents her - or himself for
work, but the employer refuses to accept him or her back, the remedy is not
contractual, but it is to bring the employer before the court for contempt of
court.”

29. In summary the employee should have filed a contempt of court application as
opposed to an action for breach of contract.

Analysis

4 (2021) 42 ILJ 499 (LAC)
5 (2023) 44 ILJ 569 (LC) , para 16. See too National Union of Metalworkers of SA on behalf of Fohlisa
& Others v Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd)5 (2017) 38 ILJ
1560 (CC) , para 51
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30. I am persuaded that my previous judgment granting the employee leave to
appeal should be rescinded.
31. I am also persuaded that there is little prospect of the LAC coming to a
different decision on the matter. The jurisprudence has gained the necessary clarity over time. If an employer does not accept an employee’s tender of service upon an order of reinstatement, then the contract of employment does not revive, and a
contractual claim in terms of the BCEA does not arise. The employee’s recourse is to pursue contempt proceedings. The employee, regrettably, took a wrong procedural
step by pursuing a contractual claim in terms of the BCEA, and the LAC is unlikely to
come to his assistance.
Order
32. In the circumstances, I make the following order:
32.1. The application for leave to appeal issued on 20 June 2024 under case
number JS165- 2016 is hereby rescinded and set aside.
32.2. The leave to appeal is dismissed.
32.3. No order as to costs.

D Norton
Acting Judge of the Labour Court of South Africa