CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 170/24

In the matter between:


NHLANHLA ERNEST TEBOGO MAVUNDLA Applicant

and

GOTCHA SECURITY SERVICES (PTY) LIMITED Respondent



Neutral citation: Mavundla v Gotcha Security Services (Pty) Ltd [2025] ZACC 11

Coram: Maya CJ, Madlanga ADCJ, Dambuza AJ, Goosen AJ, Kollapen J,
Majiedt J, Mhlantla J, Opperman AJ, Rogers J, Theron J and
Tshiqi J


Judgment: Goosen AJ (unanimous )

Decided on: 18 June 2025

Summary: Labour Relations Act 66 of 1995 — reinstatement of dismissed
employee — claim for arrear remuneration — delay in factual
reinstatement due to dispute about conditions imposed by
employer — Labour Court order compelling unconditional
reinstatement — employee entitled to claim arrear remuneration
from original date of reinstatement




ORDER

2
On application for leave to appeal from the Labour Court:
1. Leave to appeal is granted.
2. The appeal is upheld , and the order of the Labour Court is set aside and
replaced with the following:
“The respondent is ordered to pay the applicant the remuneration due to
him for the period 1 August 2019 to 31 May 2021.”



JUDGMENT




GOOSEN AJ (Maya CJ, Madlanga ADCJ, Dambuza AJ, Kollapen J, Majiedt J,
Mhlantla J, Opperman AJ, Rogers J, Theron J and Tshiqi J concurring ):


Introduction
[1] This is an application for leave to appeal against an order of the Labour Court
which dismissed a claim for payment of arrear remuneration pursuant to the
reinstatement of an employee. The Chief Justice issued directions requiring the parties
to file written sub missions. Having received the submissions , this Court dispose s of the
matter without an oral hearing .

[2] The applicant, Mr Mavundla, was dismissed by the respondent , Gotcha Security
Services (Pty) Limited (Gotcha Security) , on 6 March 2019. He had been emp loyed to
provide VIP protection services. Mr Mavundla challenged his dismissal before the
Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the
Labour Relations Act1 (LRA) . On 22 July 2019 , the CCMA made an award reinstating
Mr Mavundla with effect from 1 August 2019. It also ordered Gotcha Security to pay

1 66 of 1995.
GOOSEN AJ
3 him an amount of R52 200 before 31 July 2019, as remuneration for the period from his
dismissal to date of reinstatement.

[3] On 1 August 2019, Mr Mavundla reported for duty at Gotcha Security’s place of
business to resume his duties. Gotcha Security, however, refused to accept
Mr Mavundla’s tender of employment services. The reason it gave was that it was
considering bringing a review app lication to challenge the arbitration award. Such
application was, however, not pursued. Instea d, on 25 September 2020,
Gotcha Security sent a letter to Mr Mavundla inviting him to resume his duties on
condition that he first produce a valid firearm comp etency certificate and a n industry
recognised registration2 so that he could execute his duties as a VIP Protection Officer.
He was given three days to comply with the conditions.

[4] Mr Mavundla disputed the obligation to comply with the conditions stipulat ed.
He instituted contempt proceedings in the Labour Court on the grounds that
Gotcha Security had failed to reinstate him in accordance with the award. The contempt
proceedings came before Moshoana J on 28 May 2021. The Judge required the parties
to en gage with one another and to furnish him with a draft order. On the same day,
Moshoana J issued an order that Gotcha Security reinstate Mr Mavundla with effect
from 1 June 2021 and that no further conditions be imposed on Mr Mavundla upon his
return to wo rk. The order stated that Mr Mavundla’s reinstatement was to be on the
same terms and conditions that applied at the time of his dismissal. It also stipulated
that Mr Mavundla was required to perform duties “as per his employment contract with
the job ti tle of a VIP Protection” and that he sh ould “receive the keys to the vehicle and
perform his normal VIP Driver duties .”

[5] Mr Mavundla returned to work on 1 June 2021. Gotcha Security complied with
the order and Mr Mavundla assumed his duties. Upon his ret urn to work, however, he
requested payment of his arrear salary for the period from 1 August 2019 to

2 A registration issued by t he Protection Services Industry Regulatory Authority.
GOOSEN AJ
4 31 May 2021. Gotcha Security failed to pay the remuneration he claimed to be due to
him. Approximately two months after resuming his duties, Mr Mavundla was
retrenched. He brought an application to the Labour Court claiming payment of the
remuneration allegedly due to him for the period from 1 August 2019 to 31 May 2021.

Litigation history
Labour Court
[6] Before the Labour Court, Mr Mavundla’s case was that he was entitled to the
salary he would have earned from 1 August 2019 to 31 May 2021, since he was only
reinstated on 1 June 2021. Gotcha Security, however, contended that Mr Mavundla was
in fact reinstated on 25 September 2020, but had failed t o comply with the conditions
stipulated in his employment contract . It contended that the order of Moshoana J was
silent as to payment of arrear remuneration because Mr Mavundla had compromised his
claim for payment of arrear remuneration.

[7] The Labour Cou rt (Nkutha -Nkontwana J) dismissed Mr Mavundla’s claim. The
Labour Court took the view that, in light of Moshoana J’s order, Mr Mavundla’s date
of reinstatement was 1 June 2021. It held that the “impasse ” between the parties,
regarding the conditions of h is reinstatement, was resolved by that order. It further held
that, in accepting the terms of the Moshoana J order, Mr Mavundla had abandoned his
claim to be reinstated with effect from 1 August 2019. The Labour Court reasoned that,
until an employee’s t ender of service has been accepted by the employer, no contractual
obligation exists between the parties. On this basis, it held that there was no contractual
obligation upon Gotcha Security to pay Mr Mavundla his salary for the period between
1 August 2019 and 31 May 2021 .

[8] The Labour Court subsequently dismissed Mr Mavundla’s application for leave
to appeal against its judgment for lack of any reasonable prospects of success.
Mr Mavundla’s application for leave to appeal to the Labour Appeal Court suffe red the
same fate on 20 February 2024.

GOOSEN AJ
5 In this Court
Condonation
[9] Mr Mavundla commenced the application for leave to appeal before this Court
by filing it by email with the Registrar on 14 March 2024. He also served the application
by email on Muller & Co Attorneys (Muller & Co) , the attorneys who had acted for
Gotcha Security in the Labour Court. During May 2024 , it came to the attention of
Mr Mavundla’s attorneys that the Registrar had only received the application on
15 March 2024. Accordingly, on 30 May 2024, Mr Mavundla filed an application for
condonation for t he late filing of his application for leave to appeal. In that application
he accepted that it had been filed one day late. He explained the delay on the basis that
the email was dispatched to the Registrar after hours on 14 M arch 2024 . He contended
that Gotcha Security suffered no prejudice, that the delay was minimal and that he
enjoyed reasonable prospects of success on the merits. On this basis , Mr Mavundla
contended, it would be in the interests of justice to condone the late filing of the
applicat ion.

Jurisdiction and leave to appeal
[10] Mr Mavundla submits that this Court’s jurisdiction is engaged because the matter
involves his right to fair labour practices in terms of section 23 of the Constitution as it
concerns a decision that violates this right.

[11] He further submits that it is in the interest s of justice for this Court to grant leave
because the Labour Appeal Court ’s refusal to do so impaired his right of access to court.
He contends that there are reasonable prospects of success in that this C ourt will find
that the Labour Court was wrong when it found that he was reinstated from the date of
the order granted by Moshoana J and not in terms of the arbitration award.

Merits
[12] Mr Mavundla submits that the Labour Court confused the legal principles
relating to contracts of compromise or settlement with principles of waiver and thus
misconceived the effect and context of Moshoana J’s order. He contends that no
GOOSEN AJ
6 compromise or waiver was established. The purpose and effect of Moshoana J’s order
was to compel compliance with the terms of the arbitration award which reinstated him.
The Labour Court was incorrect to hold , mero motu (of its own accord), that he had
“abandoned” his claim to be reinstated on 1 August 2019 when h e accepted the “new”
date of reinstatement set by the Moshoana J order.

Respondent’s submissions
Condonation
[13] Gotcha Security oppose s the application for condonation. The basis of its
opposition is pleaded in its answering affidavit to the application for leave to appeal
where it is raised as a preliminary objection. The answering affidavit was filed on
26 June 2024. Gotcha Security states that it only received the application on
11 June 2024 when a copy was left at the offices of its attorneys, L Britz Attorneys.
According to Gotcha Security the papers were emailed to its erstwhile attorneys,
Muller & Co. They state that L Britz Attorneys had been on record as their attorneys
since 2022. It is therefore contended that the application for leave to appe al was only
commenced on 11 June 2024, which was more than two months out of time. Since there
was no condonation application dealing with this period , condonation should be refused
and the application dismissed on this ground. Gotcha Security claim s that it has
suffered prejudice because it had to expend resources on an application which was not
prosecuted in accordance with the rules of this Court.

Jurisdiction and leave to appeal
[14] Gotcha Security submits that this matter does not engage our jurisdi ction because
it does not raise any issues of interpretation of the LRA. It contends that the issues
raised in this matter are confined to Mr Mavundla’s complaint that the Labour Court
erred in the application of the principles relating to compromises and waivers which, it
submits, do not concern labour law.

GOOSEN AJ
7 Merits
[15] According to Gotcha Security there are two issues that arise in this matter. The
first is whether the order of Moshoana J deprived Mr Mavundla of a right to demand
back pay. Secondly, whether the Labour Court raised the issue that Mr Mavundla
abandoned his entitlement to arrear salary mero motu without affording the parties an
opportunity to make submissions.

[16] On the first issue, Gotcha Security submits that the Labour Court correctly
accepted that the order had been reached by agreement between the parties .
Gotcha Security contend s that Moshoana J’s order must be interpreted with reference
to the plain language used. The order is silent about whether Gotcha Security was in
contempt, despite this being the basis upon which the application was brought. In the
absence of an order declaring that it was in contempt as well as reference to
Mr Mavundla’s entitlement to reinstatement or payment of arrear salary, it must be
understood as aiming to se t a new date for reinstatement without conditions.

[17] Regarding the context in which the order was made, Gotcha Security submits
that at the invitation of Moshoana J, the parties reached an agreement that did not
include an order declaring that Gotcha Securi ty was in contempt of the award. It
contends that should such an order have been included , it would have had the effect of
entitling Mr Mavundla to claim arrear salary as set out in the award. Gotcha Security
further submits that the Moshoana J order was intended to allow Mr Mavundla to retain
the title of a VIP Protection Officer but to be deployed to perform VIP Driver duties,
thus avoiding the dispute regarding the provision of a firearm competency certificate
and industry registration. In any event, Gotcha Security says, there is a factual dispute
underlying Moshoana J’s order. This does not raise a constitutional issue nor is it a
question of law of general public importance. It therefore submits that leave to appeal
must be refused.

GOOSEN AJ
8 Analysis
Condonation
[18] The order of the Labour Appeal Court dismissing Mr Mavundla ’s application for
leave to appeal the Labour Court order was issued on 22 February 2024. He therefore
had until 14 March 2024 to commence the application before this Court. Mr Mavund la
filed the application with the Registrar by email on that day. The papers were also
dispatched to Gotcha Security’s attorneys, Muller & Co, on that date.

[19] Mr Mavundla’s attorneys contacted Muller & Co and the Registrar to enquire
about their receipt of the papers and to obtain proof of such receipt. The communication
with Muller & Co initially went unanswered. Mr Mavundla was informed, however,
that the Registrar had only received the application on 15 March 2024. Consequently,
on 4 June 2024, Mr Mavundla lodged an application seeking condonation for filing the
application on e day out of time.

[20] In its answering affidavit to the main application, filed o n 26 June 2024,
Gotcha Security raise s a preliminary challenge to the application on the basis that it
commenced out of time. Gotcha Security contend s that the application only
commenced when it was served on its attorneys, L Britz Attorneys. This occurred when
the papers were “left” at thei r offices on 11 June 2024. Gotcha Security states that there
was no reason for service on Muller & Co, who were not their attorneys, and that
L Britz Attorneys had been on record since 2022. It is therefore argued that there was
no explanation for the su bstantial delay in commencing the application and that
condonation should be refused.

[21] It is important to observe that Muller & Co were Gotcha Security’s attorneys of
record before the Labour Court. Although it is alleged that L Britz Attorneys have acted
as their attorneys “since 2022 ”, Muller & Co are recorded as Gotcha Security’s
attorneys in the judgment which is the subject of this application. The matter was heard
by the Labour Court in April 2023 and judgment was delivered on 11 May 2023. The
emai l address to which Mr Mavundla sent the application papers was
GOOSEN AJ
9 lezijl@muller.co.za. The proof of dispatch filed with this Court indicates that the email
was delivered. The email address of Gotcha Security’s present attorneys,
lezijl@lbritzattorneys .co.za , suggests that that matter is being handled by the same
attorney, albeit in a different firm of attorneys.

[22] Accepting that Muller & Co were the erstwhile attorneys until sometime in 2022,
it is troubling that Gotcha Security and their present attorney chose not to explain the
circumstances in which the matter came to be transferred to the new attorneys. As is
apparent from the judgment of the Labour Court, it proceeded on the basis that
Muller & Co were still on record when the case was argued before it and when the
judgment was delivered. It is hardly surprising then that Mr Mavundla served the papers
on Muller & Co . In any event, it is common cause that Gotcha Security received
effective notice of the application and had the opportunity to enter opposition and file
an answering affidavit. The only prejudice claimed by it is the prejudice caused by
having to expend resources in answering the application. That is not the sort of
prejudice which is relevant to determining w hether condonation for failing to comply
with the rules of court should be granted.

[23] As will be apparent from what follows, Mr Mavundla enjoys reasonable
prospects of success. The interests of justice therefore favour the granting of
condonation for the applicant’s non -compliance. Condonation is granted.

Jurisdiction and leave to appeal
[24] Careful analysis of Nkutha -Nkontwana J’s judgment shows that the gravamen of
this Court’s judgment in Hendor3 was misunderstood. In doing so , the Labour Court
accepted that an order enforcing a prior order to reinstate an employee replaces the prior
order and, in the absence of an order specifying an entitlement to payment of arrear
remuneration, is to be treated as an abandonment of a claim to payment of remuneration.

3 National Union of Metalworkers of South Africa v Hendor Mining Supplies (a division of Marschalk Beleggings
(Pty) Ltd) [2017] ZACC 9; 2017 (7) BCLR 851 (CC) ; (2017) 38 ILJ 1560 (CC).
GOOSEN AJ
10 In this case the finding of the Labour Court involves an employee’s right to fair labour
practices. It therefore engages this Court’s constitutional jurisdiction.

[25] Furthermore, the tenability of the legal basis upon which the Labour Court
proceeded is an arguable point of law of general public importance which this Court
ought to consider . It follows that this Court has jurisdiction to entertain the matter. In
light of the Labour Court’s misapprehension of the effect of Hendor , which I shall set
out more fully below, Mr Mavundla enjoys reasonable prospects of success. Leave to
appeal must therefore be granted. It is worth emphasi sing that, in any event, the interests
of justice favour the granting of leave to appeal.

Merits
[26] Mr Mavundla’s claim was for payment of remuneration benefits due to him in
terms of his contract of employment which had been restored pursuant to the order
issued by Moshoana J. He sought payment of what was due to him f rom the period
1 August 2019 (the date of reinstatement provided by the arbitration award) to
31 May 2021 (the date immediately prior to his actual reinstatement). The
Labour Court framed the question it was called upon to answer as being whether there
was “a full restoration of [Mr Mavun dla’s] contract of employment during this period ”.
In doing so, the Labour Court misconstrued the nature of the claim before it.

[27] The Labour Court relied upon Kubeka ,4 where the Labo ur Appeal Court asserted,
following this Court’s judgment in Hendor ,5 that a reinstatement order does not restore
the contract of employment. The contract of employment is restored when the employer
accepts the employee’s tender of services pursuant to the order. However, despite this
principle, the Labour Court went on to as sert that the contract of employment was
restored by Moshoana J’s order and not the arbitration award.


4 Kubeka v Ni -Da Transport (Pty ) Ltd [2020] ZALAC 55; [2021] 4 BLLR 352 (LAC) ; (2021) 42 ILJ 499 ( LAC)
at paras 35-6.
5 Hendor above n 3.
GOOSEN AJ
11 [28] The Labour Court failed to appreciate that the proceedings before Moshoana J,
in the form of a contempt application, were intended to compel Gotcha Secu rity to
comply with the order to reinstate the applicant on 1 August 2019. Those proceedings
were initiated because Gotcha Security had sought to impose conditions, namely the
provision of a firearm competency certificate and an industry recognised regist ration .
That impasse was resolved when Moshoana J ordered reinstatement to occur without
any conditions. Upon the tender of services on 1 June 2021 by the applicant, his tender
was accepted unconditionally by Gotcha Security , in accordance with Moshoana J’s
order. Mr Mavundla’s contract of employment was therefore restored from
1 August 2019, the date on which it was restored in terms of the arbitration award.

[29] This Court’s judgment in Hendor is not authority for the proposition, as
suggested by the Labour Court, that an order enforcing a reinstatement order ipso facto
(automatically) replaces the original reinstatement order. All that is replaced is the date
upon which the restoration of the contract of employment by mutual tender and
acceptance must occur. There is no magic in the setting of a new date. The prior date
will have come and gone because the employer did not reinstate the employee. That is
precisely why the enforcement order was sought.

[30] This Court was evenly split in Hendor on the characteri sation of the debt due to
an employee upon reinstatement for purposes of prescription . It was however
unanimous in finding that , upon restoration of the contract of employment by factual
reinstatement , an employee is entitled to the benefits (including remuneration ) which
they would have been entitled to but for the dismissal, unless limited by the terms of
the reinstatement order.6 Hendor is not authority for the proposition that a reinstated
employee is only entitled to be paid as from the date of their factual reinstatement. In
Hendor , because of appellate proceedings, the employee s were only factually reinstated
on 28 September 2009, but the Court was unanimous that by not later than
28 September 2009 the employees became entitled to their arrear remuneration for the

6 Hendor above n 3 at paras 10-13 (Madlanga J [as he then was] ) and para 96 (Zondo J [as he then was] ).
GOOSEN AJ
12 period from 23 April 2007 (when the employer should factually have reinstated them)
to 28 September 2009.

[31] One final observation must be made . The Labour Court found that there had
been a compromise of Mr Mavundla’s claim for payment in circumstances where it was
not pleaded as a defence, and no case had been advanced that he had waived his rights
before Moshoana J. In this respe ct, the proceedings before the Labour Court were
procedurally unfair.

[32] Gotcha Security’s argument regarding the “interpretation ” of Moshoana J’s
order as embodying a “compromise ” of Mr Mavundla’s claim is without substance or
merit. The fact that Moshoana J did not find Gotcha Security to be in contempt is
irrelevant to its meaning. Moshoana J may not have been satisfied that it h ad been
established that Gotcha Security had wilfully disobeyed the arbitration award. H e may
have accepted that Gotch a Security had believed, wrongly, that it was entitled to impose
conditions before reinstating Mr Mavundla. None of this matters. What matters is that
Moshoana J issued an order requiring that Mr Mavundla be reinstated without
conditions. He did so in t he context of a dispute about conditions which bedevi lled
implementation of the reinstatement order. If Gotcha Security had understood that
Moshoana J’s order of reinstatement was based on a compromise of a claim for
remuneration, it would undoubtedly hav e recorded that in the order.

Conclusion
[33] It follows that the Labour Court’s judgment cannot stand, and that the appeal
before this Court must be upheld. Mr Mavundla had claimed payment of remuneration
which was due to him f rom the period 1 August 2019 to 31 May 2021. He is entitled
to such an order. He has already been paid the remuneration which was due to him
from the date of his dismissal until 31 July 2019 , as required by the original arbitration
award.

GOOSEN AJ
13 [34] No costs orders were made by the Labour Court and Labour Appeal Cou rt. It
does not follow, in a labour matter, that the costs should follow the result.7
Gotcha Security was entitled to defend the judgment it had obtained in the Labour Court
before this Court. The principle of f airness governs the award of costs in labour matters.
In this case there are no circumstances present which warrant a departure from ordinary
practice. Accordingly, no cost order is made.

Order
[35] The following order is made :
1. Leave to appeal is granted .
2. The appeal is up held, and the order of the Labour Court is set aside and
replaced with the following:
“The respondent is ordered to pay the applicant the remuneration due to
him f rom the period 1 August 2019 to 31 May 2021. ”


7 Zungu v Premier of the Province of KwaZulu -Natal [2018] ZACC 1; 2018 (6) BCLR 686 (CC) ; (2018) 39 ILJ
523 (CC) at para 24.

For the Applicant:


For the Respondent:
GI Hulley SC and B Ford instructed by
Rabia Sayed Attorneys

MJ Engelbrecht SC and SP Stone instructed
by L Britz Attorneys