THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JR 144/2022
In the matter between:
TSHEGOFATSO MARGARET KEEPILE Applicant
and
LEKWA -TEEMAN LOCAL MUNICIPALITY Respondent
Hear d: 4 December 2024
Delivered: 03 April 2025
JUDGMENT
NAIDOO, AJ
Introduction
[1] This is a judgment determining a special plea (based on “lack of jurisdiction”)
raised by the respondent , against a c laim for arrear back pay owing to the applicant
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in terms of an arbitration award handed down by the South African Local
Government Bargaining Council (the arbitration award) .
[2] According to the respondent ’s special plea , this court lacks jurisdiction to
determine the applicant’s claim for arrear back pay because even though the
arbitration award ordered her re -employment , “no agreement to re -employ the
applicant was ever concluded by the parties and no employment relationship came
into effect” .
Brief Chronology of Material Facts
[3] The arbitration award is dated 7 November 2014 and provides the applicant
with the following relief :
‘65. The dismissal of the Applicant member was both procedurally and
substantively unfair;
66. I therefore order the re-employment of the Applicant member as from
the date of her unfair dismissal (31
st of July 2014) o n any post similar to the
post the Applicant occupied before the dismissal ;
67. At a date of the Award the remuneration due to the Applicant Ms T
Keepile as a result of the re- employment, amounted to (3 x R11 534- 94 = R34
604-82) minus such deductions as the employer is in terms of law entitled.
68. The amount must be paid into the Applicant’s Banking Account on
2014/11/30.
69. The Applicant is to tender services to the Respondent on the 13th
November 2014. ’ [own emphasis]
[4] The respondent sent a letter to the applicant dated 21 November 2014, in
which it notified the applicant that it was in the process of reviewing the arbitration award and that “the status quo that prevailed at the time of the award should remain:
that your contract of employment with the Lekwa- Teemane Local Municipality
remains terminated pending a decision by the Labour Court ”. The applicant was also
advised “not to report for duty until the finalisation of your matter as you are currently
deemed not to be an employee of Lekwa- Teemane Local Municipality ”.
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[5] The respondent did institute a review application however, on 8 August 2017,
the Labour Court dismissed the review application and made the arbitration award
an order of court .
[6] The respondent filed a recission application in which it stated under oath that
should the rescission be granted and the respondent be unsuccessful in its review application, that the applicant “will receive her full retrospective payment of her remuneration and be reinstated in her job” .
[7] The respondent’s recission application was also dismissed and on 4
December 2019, the arbitration award was again made an order of court.
[8] The applicant sent a resignation letter to the respondent dated 4 December
2019, resigning from her position as “Secretary to the Mayor of Lekwa Teemane Local Municipality” and indicated that her “last day of employment will be 04
December 2019” . The applicant took up employment elsewhere since that date.
[9] The applicant contends in the statement of claim t hat the respondent paid her
R36 604.82 in respect of her back pay. The respondent denies this.
[10] On 2 March 2022, the applicant instituted a contractual claim against the
respondent in this court for the amount that the applicant would have earned from the date of the arbitration award (7 November 2014) until the date of resignation (4
December 2019) with interest.
[11] On 29 August 2023, the respondent filed its statement of response raising a
special plea of lack of jurisdiction because no agreement of re- employment was ever
concluded and so no employment relationship came into effect.
Summary of Material Submissions by the Parties
[12] In argument, the respondent made primarily the following submissions :
12.1 The applicant was never re- employed by the respondent and no
contract was ever negotiated and entered into by the parties, following the
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award of the Commissioner. As such the applicant did not tender any services
following the award. Her failure to tender her services was fatal to her claim as
she was never placed in a position whereby back pay would accrue to her .
12.2 The respondent relied on the decision of the Constitutional Court in
National Union of Metalworkers of S A on behalf of Fohlisa and o thers v
Hendor Mining Supplies ( A Division of Marschalk Beleggings (Pty) Ltd)1
(Hendor) arguing essentially that 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 and the employer should also have accepted those employees back into its employ. If the employer fails to do so, the employee should institute contempt proceedings
to compel the employer to do so. The respondent t hus contends that prior to
the respondent agreeing to restore the contr act or pursuant to an order to do
so, there is no contract in existence and thus, no judicial basis for a claim for
arrear wages.
[13] The applicant contends that :
13.1 The respondent undertook to comply w ith the award in its recission
application, reinstate the applicant and pay her “full retrospective payment” .
13.2 The respondent complied with a portion of the award.
13.3 The respondent previously raised an exception to the statement of
claim on the basis that : the arbitration award “did not revive the contract
between the parties” ; that no contractual agreement was in place between the
applicant and the respondent for the period between 1 November 2014 and 31 March 2017 and, that because there was no agreement on the terms to re-
employ the applicant, the applicant’s claim is without legal basis. This exception was dismissed by the Honourable Lallie J. According to the
applicant, the special plea is essentially s eeking to revive the exception.
13.4 It is disputed that there was no tender of services. In the pre -arb minute
signed by the parties, the following is recorded as a disputed fact:
1 (2017) 38 ILJ 1560 (CC) ; [2017] 6 BLLR 539 (CC) .
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‘The Applicant tendered her services, however, was advised not to report for
duty until the finalisation of the review proceedings. This stance was again
confirmed via a letter dated 21 November 2014. ’
13.5 The respondent rejected the tender because there was a review
application, therefore a contempt application was not competent.
Analysis
[14] The arbitration award order s the re-employment of the applicant from the date
of her unfair dismissal (31
st of July 2014) . The applicant’s case is that the respondent
failed to re- employ her in terms of an arbitration award and that she suffered the loss
of her remuneration that she would have earned had she been re- employed.
[15] The respondent r aised an exception that the statement of claim did not
disclose a valid cause of action and that the arbitration award did not revive the employment contract, which was dismissed by the Honourable Lallie J on the basis
that these arguments only took issue with whether or not the applicant’s claim had any merit , but did not render them excipiable.
[16] The respondent now seeks to raise that there was no employment
relationship between the parties, however, it has failed to identify any basis as to why this court would be deprived of jurisdiction to hear a claim for “back payment” in
terms of an arbitration award.
[17] The issues pertaining to whether or not there was a proper tender of services,
whether or not this tender was accepted or rejected or whether or not the respondent
complied with a portion of the award and in so doing, indicated that it would not be challenging the award are all matters for the trial court to determine in assessing whether the applicant has made out a case for payment of arrear back pay.
[18] The court does have jurisdiction to determine the applicant’s claim, whether or
not such claim has any merit is for the trial court to determine.
[19] In the premises, the following order is made:
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Order
1. The respondent’s special plea based on lack of jurisdiction is
dismissed.
2. There is no order as to costs.
P. Naidoo
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant : Advocate M Louw
Instructed by : A Botha Attorneys
For the respondent: Advocate M Vilakazi
Instructed by : Sibeko Attorneys