THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: CA5/2023
In the matter between:
SOUTH AFRICAN MUNICIPAL WORKERS UNION (SAMWU) obo KOOPMAN Appellant
and
CITY OF CAPE TOWN First Respondent
LUNGELO MBANDAZAYO: CITY MANAGER CITY OF CAPE TOWN Second Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Third Respondent
I DE VLIEGER- SYNHAEVE N. O Fourth Respondent
Heard: 12 September 2024
Delivered: 22 January 2025
Coram: Savage ADJP, Mlambo JA, and Davis AJA
Summary: Reinstatement – employment contract – reciprocal duties on
employees and employers – reinstatement order is not self -executing – duty
on employee to tender services following reinstatement – failure to tender
2
services is fatal to execution of arbitration award or judgment ordering
reinstatement – appeal dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MLAMBO, JA
Introduction
[1] This appeal , with the leave of the court a quo, turns on a question of law of
whether an arbitration award is a debt and if certified, whether it becomes a judgment prescribing after 30 years, as defined in the Prescription Act.
1 The court a
quo found that the award was a debt and that certification does not affect this fact.
However, it dismissed the application having found that it had already prescribed by
the time it was certified .
Background
[2] In February 2014, the appellant (Mr Koopman) was dismissed by the first
respondent ( the City) following a disciplinary hearing. Aggrieved with the decision, a
referral was made to the South African Local Government Bargaining Council (SALGBG or the council). The council ruled in his favour and issued an award
ordering his retrospective reinstatement to 25 February 201 4 with back pay. In
August 2022, the applicant certified the award in terms of section 143(3) of the Labour Relations Act
2 (LRA). This was followed by an ex -parte contempt application
against the City for failing to comply with the now -certified arbitration award. This
application was launched on 30 June 2023 and on 25 July 2023, the Labour Court issued rule nisi calling on the respondents to show cause why they should not be
held in contempt.
1 Act 68 of 1969.
2 Act 66 of 1995, as amended.
3
In the Labour Court
[3] There were three issues before the court a quo. First was whether the
amended section 143(4) of the LRA applied to the matter. The section, which provides for the enforcement of certified arbitration awards through contempt proceedings only took effect for awards that were issued after 1 January 2015. The second was urgency and the third related to the respondents’ defence of prescription. Only this last issue is relevant for purposes of this appeal.
[4] The court a quo found that the award had prescribed. It reasoned that
arbitration awards are debts for the purposes of the Prescription Act and that they prescribe after a period of three years. This w as on the basis that the Constitutional
Court had not conclusively dealt with the matter in Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others
3 (Myathaza ), and
Mogaila v Coca Cola Fortune (Pty) Limited4 (Mogaila ), in which that Court did not
make a definitive finding on the issue. Instead, it took the view that this Court had
correctly dealt with the issue in its decisions in NUM obo Majebe v Civil and General
Contractors5 (Majebe) and Motsoaledi and Others v Mabuza.6 In these decisions,
this Court conclusively determined that arbitration awards are debts prescribing in
three years in line with section 11(d) of the Prescription Act.
[5] The court a quo thus concluded that the award had prescribed in 2017, five
years before it was certified. Further that there was no evidence of a review
application being filed which would have interrupted prescription. I t further concluded
that based on the decision in Tony Gois t/a Shakespeare’s Pub v Van Zyl and
Others ,
7 certification does not clothe an arbitration award with the status of a
judgment as it would still prescribe after three years. Lastly, it found that there was
no evidence that the appe llant had to tender his services and that the City prevented
3 [2016] ZACC 49; (2017) 38 ILJ 527 (CC).
4 [2017] ZACC 6; [2017] 5 BLLR 439 (CC).
5 [2020] ZALAC 56; [2021] 4 BLLR 374 (LAC) .
6 [2018] ZALAC 43; (2019) 40 ILJ 117 (LAC).
7 [2003] 11 BLLR 1176 (LC); 2011 (1) SA 148 (LC) .
4
him from returning to work. In the result, the contempt application was dismissed on
the grounds of the award having prescribed.
In this Court
[6] The appellant’s main contention is that arbitration awards are not debts
prescribing after three years for the purposes of the Prescription Act. Instead, once certified, their prescription period is 30 years, the same as C ourt judgments. They
argue that the Constitutional Court decisions in Myathaza and Mogaila concluded
that the Prescription Act does not apply to arbitration awards, while Food and Allied
Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Limited
8 (Pieman’s
Pantry ) concluded that it is a claim for unfair dismissal and not an award finding such
a dismissal unfair, that prescribes after three years. The appellants argued that the
court a quo was incorrect in placing reliance on PTAWU obo Xoloani and Others v
Mhoko's Waste & Security Services ,9 as, in their view, that case did not interpret the
Constitutional Court cases correctly.
[7] The appellant therefore submits that because the unfair dismissal claim was
filed and prosecuted timeously and the award granted in his favour was
subsequently certified, it has the status of a judgment. Therefore, prescription played
no role and the City remains in contempt of the arbitration award.
[8] The respondent argue d, in the first place, that the C ourt a quo was incorrect in
grant ing leave to appeal because the stringent test in section 17(1)(a)(i)
10 had not
been met. This as , in its view, the appeal raises no novel issues nor does it involve
any issue of public importance. Secondly that the correct position regarding the status of an arbitration award with regard to the Prescription Act is that set out in
Pieman's Pantry and Majebe. The respondent further argued that, i n any event , the
appellant had failed to show that prescription had been interrupted and that, by the
time the award was certified, it had already prescribed as certification does not
8 [2018] ZACC 7; (2018) 39 ILJ 1213 (CC).
9 [2018] ZALCCT 32; (2019) 40 ILJ 185 (LC).
10 Superior Courts Act 10 of 2013.
5
change its status. Lastly, the respondent argued that the appellant had also failed to
tender his services in line with the award so contempt did not arise.
[9] The conclusion I have reached only necessitates that I only deal with the
respondent ’s argument that Mr Koopman failed to tender his services , subsequent to
the issuing of the award. Counsel for the appellant conceded that if this was true, then that would be dispositive of the appeal rendering the question of prescription
moot .
Tender of service
[10] A fundamental tene t of the employer -employee relationship is that the
employee must tender their services and the employer must remunerate them in return.
11 When an employee is dismissed, it follows that he no longer has the
obligation to tender his services. If such dismissal is found to be unfair by an
arbitrator or a Court and the employer is ordered to reinstate or re- employ him, then
the employee once again has a duty to tender his services.
[11] In National Union of Metalworkers of South Africa obo M Fohlisa and Others v
Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd)12 (Hendor ),
the first judgment concluded that an order of reinstatement has the purpose of
creating a reciprocal obligation on the employee and the employer, stating:
‘[A reinstatement] order [does] not itself reinstate the employees. Rather it
order[s] [an employer] 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 .’
13 (Own e mphasis)
11 See: Kubeka and Others v Ni -Da Transport (Pty) Ltd [2020] ZALAC 55; (2021) 42 ILJ 499 (LAC) at
para 16 (Kubeka ).
12 [2017] ZACC 9; [2017] 6 BLLR 539 (CC).
13 Ibid at para 2 2, see also para 48.
6
[12] Despite there being no majority in Hendor , as this Court found in Kubeka, the
Constitutional Court was “ unanimous about the governing principle that the contracts
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 ”(Own emphasis) .14 Therefore, an employee has an
election. If he want s reinstatement with backpay, he must tender his services within
the period set out by the reinstatement order, or alternatively, on good cause shown, after a reasonable time following the expiry of that period. To illustrate this, I consider
the decisions in Sibiya v South African Police Service
15 (Sibiya ) and Association of
Mineworkers and Construction Union and Others v Northam Platinum Mine Limited16
(AMCU).
[13] In Sibiya , there was a long delay between the appellant’s dismissal and this
Court granting a reinstatement order. By the time this Court granted its order, the
appellant had become employed elsewhere on more favourable terms, so a
conditional order was granted to the effect that the appellant’s backpay would
depend on whether he tendered his services. If he did so in line with the timelines set
out in the order, he would receive 14 months ’ backpay, whereas, if he did not, he
would only receive 12 months ’ compensation for an unfair dismissal.
17 What this
demonstrates is that t he tender of services becomes a pre -requisite to the
enforcement of the reinstatement order . Where an employee is unfairly dismissed,
the default remedy is reinstatement , where reinstatement or re- employment are
either not pursued or inappropriate then compensation becomes an appropriate
remedy .
[14] In AMCU, the Labour Court had found the appellants ’ dismissals substantively
unfair but instead of reinstatement, ordered compensation because reinstatement
was not practicably possible. This as the employees had made certain demands
14 Kubeka supra fn 11 at para 31.
15 [2022] ZALAC 88 (LAC); (2022) 43 ILJ 1805 (LAC) .
16 [2021] ZALAC 32; (2021) 42 ILJ 2565 (LAC).
17 The LRA limits compensation to a maximum of 12 months’ salary for unfair dismissals and 24
months for automatically unfair dismissals.
7
relating to workplace safety before returning to work. On appeal to this Court, the
ground that the Labour Court had erred in refus ing reinstatement was dismissed
because it was found that employees cannot make unreasonable demands as pre -
conditions for their tender of services in line with a reinstatement order. What again
emerges is the principle that tender ing services is essential in the enforcement of a
reinstatement order . This , I find forceful in this matter .
[15] In Tshongweni v Ekurhuleni Metropolitan Municipality ,18 this Court explained
the effect of the unfair dismissal regime introduced following the recommendations of
the Wiehahn Commission of Enquiry into Labour Legislation. It said:
‘Reinstatement may be ordered from a date later than the date of dismissal
(section 193(1)(a) of the LRA) and thus may be of limited retrospectivity. Re -
employment implies termination of a previously existing employment
relationship and the creation of a new employment relationship, possibly on
different terms both as to period and the content of the obligations
undertaken. In both instances, as in the case of the common law remedy of
specific performance, the employee must make his services available if the
remedy is to be maintained; there must be a willingness to resume
employment . Aside from the requirements of the common law, that much
follows in part, it would seem to me, as the corollary arising from the provision
in section 193(2)(a) of the LRA that reinstatement or re- employment should
be ordered unless the employee does not wish to be reinstated or re -
employed. ’19 (Own e mphasis)
[16] The appellant ’s counsel conceded that there was no tender of services by Mr
Koopman. Even if we were to find in the appellants’ favour on prescription, the failure
to tender ser vices is fatal to their cause. Once an employee has an award or order
granted in his favour , reinstating or re- employing him, the duty falls on the employee,
not the employer to ensure that services are tendered. The right to fair labour
practices also extends to employers. It would be unfair and unreasonable to expect them to wait for an employee who was unfairly dismissed and subsequently
18 [2012] ZALAC 17; (2012) 33 ILJ 2847 (LAC).
19 Id at para 37 ; see also Kubeka supra fn 11 at paras 15 - 22.
8
reinstated, to decide for themselves when they feel it appropriate to return to work
and to tender their services , whenever they deem this appropriate at their own
time.20 The appeal must therefore fail.
Postscript
[17] Before concluding, it must be stated that section 167(1) of the LRA
establishes this Court as ‘ a court of law and equity ’. The blunt effect of the dismissal
of this appeal , on Mr Koopman, who has presumably been unemployed for over 10
years – despite being in possession of an award that reinstated him – is not lost on
us. Unfortunately, no information was placed before us explaining the circumstances
for his failure to tender his services . Nor was any reason provided by his union
explaining any communication they may have had with the respondent regarding the
date Mr Koopman was required to tender his services .
[18] In these circumstances, we are limited in the relief we can provide. At best,
we think it appropriate to refer this judgment to the Minister of Employment and Labour for consideration o f whether any legislative amendments might remedy
similar situations in future. A simple suggestion might be a requirement that an
employer be required to initiate communication with an employee after all review or
appeal proceedings , if any. In the communication, the employer should be expected
to inform the reinstated employee (s) by when they are expected to tender services ,
taking into account what the arbitration award or judgment has stated in relation to
reinstatement or re- employment . This will provide both employers and employees
with certainty and proof that a request for tender of services was made while keeping
the onus on the employee to tender services .
21
Costs
20 City of Johannesburg and Another v Independent Municipal & Allied Trade Union on behalf of
Erasmus and Another (2019) 40 ILJ 1191 (LAC) at para 30.
21 See: Insurance Banking Staff Association (Absa) and Others v Southern Life Association Limited
(C600/98) [1999] ZALC 198 (1 December 1999) where the Labour Court made a proposal for
legislative reform of section 194 of the LRA which was ultimately enacted through the Labour
Relations Amendment Act 12 of 2002.
9
[19] This matter has been protracted for years and bringing it to finality is
paramount. It is therefore not appropriate to order costs in this matter and each party
must bear their own costs.
[20] In the circumstances, the following order is granted:
Order
1. The appeal is dismissed.
2. There is no order a s to costs.
3. The Registrar of this Court is directed to send a copy of this Judgment
to the Minister of Employment and Labour , drawing their attention to
paragraphs 17 and 18.
Mlambo JA
Savage ADJP and Davis AJA concur.
APPEARANCES:
FOR THE APPLICANT: E Geldenhuys
Instructed by MacGregor and Erasmus Attorneys
FOR THE FIRST AND SECOND RESPONDENT S: S Mbobo
Instructed by Mamatela Attorneys Inc