THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: J1031/2023
In the matter between:
JABULANI NKOSI Applicant
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA
SOC LTD (PRASA) Respondent
Heard: 15 May 2025
Delivered: 15 May 2025
Reasons: 24 June 2025(This judgment was handed down electronically by
circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing -
down is deemed to be 10h00 on 24 June 2025.)
REASONS FOR ORDER
PHEHANE , J
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Introduction
[1] This is an application by the applicant (Mr Nkosi) to compel the respondent,
the Passenger Rail Agency of South Africa S oc Ltd (PRASA) , to reinstate him in
terms of a judgment by the Lab our Appeal Court (LAC) dated 21 November 2017.
[2] PRASA opposed this application on the basis that it has complied with the
LAC judgment , which ordered it to reinstate its former employees , including Mr
Nkosi , retrospectively to the date of their dismissal ; however , Mr Nkosi failed to
report for duty . In the circumstances, PRASA submitted that the application ought to
be dismissed with costs.
[3] On 15 May 2025, after hearing oral argument , this Court issued an order
condoning the late filing of the respondent ’s heads of argument and dismissing the
application to compel the applicant ’s reinstatement with no order as to costs .
[4] The reasons for the order follow below.
Relevant timeline and factual background
[5] The relevant timeline of the factual background pertaining to this dispute is as
follows:
5.1 Mr Nkosi and further former employees were dismissed from the
employ of PRASA in February 2013.
5.2 Following dispute resolution process es concluded in terms of the
Labour Relations Act
1 (LRA) on 21 November 2017, the LAC ordered the
reinstatement of the employees retrospectively with backpay. At the time of
the LAC judgment and order, Mr Nkosi had been incarcerated as he was
sentenced during April 2017 for a murder conviction.
5.3 On 31 January 2018, the Constitutional Court dismissed PRASA’s
application for leave to appeal , thus confirming the LAC order.
1 Act 66 of 1995, as amended.
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5.4 On 3 September 2018, PRASA informed the former employees to
return to work . Mr Nkosi contends that he was not aware of the specified date
to report for duty to render services.
5.5 On 11 October 2019 , in an application for contempt of the LAC
judgment of 21 November 2017, this Court, per Whitcher J , ordered PRASA to
effect payment of the backpay owed to the employees in two tranches, in
November 2019 and January 2020. Mr. Nkosi w as accordingly paid backpay
from February 2013 to August 2018 and while he was incarcerated,
unbeknown st to PRASA at the time. PRASA only discovered during August
2018, upon commissioning an enquiry as to the whereabouts of Mr Nkosi, that
he had been incar cerated since April 2017. He was visited in prison during the
investigation. According to PRASA, Mr Nkosi did not inform the investigators that he was in the process of appealing his conviction.
5.6 On 17 December 2019, Mr Nkosi was released from prison on bail
pending an appeal .
5.7 On 18 December 2019, Mr Nkosi presented himself for duty , but
PRASA refused to reinstate him.
5.8 Mr Nkosi launched this present application in July 2023, approximat ely
three years later, to compel PRASA to reinstate him.
Condonation
[6] PRASA brought an application for condo nation for the late filing of its heads of
argument. The application was unopposed. G ood was shown cause for the late filing
of the heads of argument . In the circumstances , condonation was granted.
Argument
[7] Mr Nkosi contends that he was not aware of the date of 3 September 2018 as
being the date on which he was due to report for duty. He complains that when the
invest igators visited him in prison, they did not inform him that he was required to
report for duty.
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[8] On the day after he was released on bail, that is, 1 8 December 2019, he
presented himself to render his services, but PRASA refused to reinstate him. He
contends that he could not have reported for duty as he did not know he was to
report for duty on 3 September 2018.
[9] Mr Nkosi contends that another fellow employee, namely, Mr Nyathu, reported
for work in Octo ber 2019, well beyond the deadline of 3 September 2018, but he was
allowed to resume his duties. [10] PRASA contends that Mr Nk osi has delayed in launching this pres ent
application, and in any event, it has no legal duty to reinstate Mr Nkosi, as he was
required to report for duty on 3 September 2018 but failed to do so. Further, Mr
Nkosi was not entitled to the backpay as he failed to report for duty. Alternatively, Mr
Nkosi’s incarceration was a supervening impossibility that prevented him from reporting for duty , and therefore, his employment was terminated. In the
circumstances, his remedy lies in the unfair dismissal dispensation in terms
provisions of section 191 of the LRA. In the further alternative, P RASA contends that
Mr Nkosi should bring an application to hold it in contempt of the LAC order.
[11] Mr Nk osi denie d that he delayed in launching this application, as there was a
series of correspondence between the parties after PRASA refused to reinstate him. He further denied that his employment was terminated, as he was never allowed to
resume duties in the first place. In addition, he denied that he has an alternative
remedy in contempt of court proceedings, as it is not possible for him to prove that PRASA’s non-compliance is wilful – he would only be able to prove this after the
grant of this application and where PRASA fails to comply with the order of this Court to reinstate him. The difficulty wit h this submission is that , as Mr Nkosi was not
reinstated and thus was not entitled to the backpay he received, in addition, Mr Nkosi already has a court order in his favour, ordering his retrospective reinstatement. He
is essentially asking this Court to issue an order that has already been issued. This ,
in my view, is an abuse of Court process . Contempt of court proceedings against
PRASA for non- compliance with the LAC order would not suc ceed, as PRASA has
complied with the LAC order.
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Evaluation
[12] In National Union of Metalworkers of SA on behalf of Fohlisa and O thers v
Hendor Mining Supplies (A division of Mar schalk Beleggings (Pty) Ltd)2 (Hendor) ,
the Constitutional Court hel d that contracts of employment of unfairly dismissed
employees are terminated by a dismissal and revived only when the former
employees have tendered their services pursuant to a reinstatement order and the
tender is accepted by the employer. The reinstatement order , therefore, does not in
and of itself reinstate the contract of employment . Rather , it direct s the employees to
tender their services and the employer to accept that tender.
[13] In Kubeka and Others v Ni -Da Transport (Pty) Ltd
3 (Kubeka) , the LAC
followed the approach in Hendor and stated as follows regarding the restoration of
the contract of employment and the payment of backpay:
‘[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.
[36] …an employee granted retrospective reinstatement is not entitled to
any of the contractual benefits of reinstatement, including back pay, without
the contract being restored through actual reinstatement.
[38] A requirement that back pay is only due and payable on reinstatement
is in keeping with the remedial scheme and purpose of section 193 of the LRA. As Mr Watt-Pringle SC, Counsel for the respondents, correctly
submitted, if an employee in receipt of a reinstatement order could on the
2 (2017) 38 ILJ 1560 (CC).
3 [2021] 4 BLLR 352 (LAC) at para s [35] - [36] and [38].
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strength of the order alone claim contractual payment for the retrospective
part of the order without actually seeking reinstatement (tendering prospective services), it would convert a reinstatement remedy (which requires a tender of services) into a compensation award (which does not), in excess of the statutory limitation on compensation awards. Such an outcome would be inconsistent with the purpose of sections 193 and 194 of the LRA. An unfairly dismissed employee must elect his or her preferred remedy and if granted reinstatement must tender his or her services within a reasonable time of the order becoming enforceable. If reinstatement has become impracticable through the effluxion of time, for instance where the employee has found alternative employment, he or she should seek to amend his or her prayer for relief to one seeking compensation. ’ (Own emphasis).
[14] Considering the relief sought in the notice of motion,
4 the present application
is not an application to compel PRASA to accept Mr Nkosi’s tender of his services on a spe cified date, placing all the necessary facts before this Court .
[15] In South African Municipal Workers Union obo Koopman v City of Cape Town
and Others
5 (SAMWU) this court held as follows :
‘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 services 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 tendere d.
The right to fair labour practi ces also extends to employers. It would be unfair
and unreasonable to expect them to wait for an employee who was unfairly
dismissed and subsequently 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. ’ (Own emphasis)
4 See: pleadings bundle, prayer 2 of the notice of motion on p 2. There is no dispute that Mr Nkosi
was an applicant in the LAC judgment ; thus prayer 1 of the notice of motion falls away.
5 (CA5/2023) [2025] ZALCCT 5 (22 January 2025) at para [16].
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[16] Mr Nkosi was at all material times represented by a union, and he also had
legal representation – yet, he failed to keep his employer informed about his
whereabouts. It is not fair for PRASA to be expected to sit and wait for an extended
period of time for a former employee armed with a reinstatement order to present
himself to tender services when it suits him. It was incumbent upon Mr Nkosi to
inform his employer of his incarceration and to inform the employer what his
intentions were in challenging his conviction and or his sentence. The duty is not on
the empl oyer to ascertain the whereabouts or intentions of an employee who has a
reinstatement order in their favour.
[17] Expedient resolution of disputes is a principle espoused by the LRA. In the
present application, Mr Nkosi took a considerably long period of time to approach
this Court for relief. It was clear to him in December 2019 that PRASA refused to reinstate him, but he did not present cogent reasons why he did not approach thi s
Court timely for rel ief. On his own version, it was only in March 2021 when his
attorney of record sent correspondence to PRASA ’s attorney of record seeking an
undertaking that PRASA will reinstate Mr Nkosi. When no response was received,
this application was not launched. This application was launched approximat ely two
years later, and approximately four years after Mr Nkosi’s tender of his services was not accepted.
[18] PRASA complied with the LAC order. Mr Nkosi failed to tender his services
and failed to contact his employer to explain his si tuation. There is , therefore, no
basis to compel PRA SA to comply with an order it has already complied with. This
application, therefore, cannot succeed.
[19] The facts surrounding the reinstatement of Mr Nyathu beyond 3 September
2018 were not placed before this Court. Therefore, noting further needs to be said in this regard. Conclusion
[20] It is for the aforesa id reasons that the above order was made.
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M. T. M. Phehane
Judge of the Labour Court of South Africa