DELETE WH:CHEVER IS NOT APPLICABL
(1) REPORTABLE: YES/NO.
(2) OF INTEREST TO OTHER JUDGES: YEt'~
") REVISED. ~ ·
.2-9.ho..l.6.S. . ..... ,.
D /\TE
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG ·, . .
In the matter between:
RONNIE MZWANDILE KHUMALO
CHRIS MATSEMELA MOLOI
and
THE COMMISSION FOR CONCILIA Tt(;?N,--MEDIA-TION,
AND ARBITRATION
COMMISSIONER KARABQG~aAO"90E N.O
PASSENGER RAIL ,AGENCY , OF SOUTH AFRICA
• ✓ --... ~ •
Heard:
.
2~ S~_p(embe:r1 2025
.
Delivered: '29 October 2025 ' .
Corarri: Chetty AJA, Djaje AJA et Basson AJA
JUDGMENT
Kiot~r:enor:table ' ~ ,..,.""-__,,
C~se No: JA94/24
First Appellant
Second Appellant
First Respondent
Second Respondent
Third Respondent
2
Introduction
[1) This appeal lies against the judgment and order of the Labour Court1
substituting a variation order granted by the Commission for Conciliation,
Mediation and Arbitration (CCMA) with the following order:
'1. Paragraph 503 of the variation order is substituted with the fQllbwJn~
order:
Factual background
"[503) The Respondent PRASA is ordered to rejnstate itylr 'Ronnie
Mzwandile Khumalo the first Applicant-~d \ry,r Chris1 Matsela
Moloi the second Applicant with effect :from 1~ June 2021 [the
date of the award]. The Appellant must F~pgrt f9r work on 5 July
2021 according to the terms:of employment before they were
unfairly dismissed".'
Dismissal: 5 June 2020
[2] On 5 June 2020, follovyiog a' disc:te!inary hearing, the third respondent, the
Passenger Rail Age,ncy of,qquth Africa (PRASA), dismissed the appellants for
misconduct related to,th$>i'rt~,~.ular appointment of a security company (SIDAS).
/ , ' ' '
The CCMA award:/14 June 2021 ' • .
[3] The<'appeli~ntsj~ferred an unfair dismissal dispute to the CCMA, challenging
,t~~ s,uQ~tantiVe and procedural fairness of their dismissal. The CCMA found in
their favour, holding that the dismissal was procedurally and substantively
'Li11Jair;:and made the following order:
'[503) The Respondent PRASA is ordered to reinstate Mr Ronnie Mzwandile
Khumalo the first Applicant and Mr Chris Matsela Moloi the second
Applicant with effect from 5 June 2020. The Applicants must report for
work on 5 July 2021 according to the terms of employment before they
were unfairly dismissed.'
1 By Gandidze, AJ dated 28 September 23.
3
[4] The Commissioner further ordered, in paragraph [504] of the award, that the
reinstatement is without back pay and subject to a final written warning, valid
for 12 months, to mark his disapproval of the appellants' conduct:
'[504] The reinstatement is without back pay and subject to a final written,
warning for 12 months issued to Mr Ronnie Mzwandile Khumalo the}ifsl.
Applicant and Mr Chirs Matsemela Moloi the second Applicantnil?ting: . ·'
to a failure to ensuring [sic] that the procurement process pertaining'to.
,,.. ' . '
' the award of the SIDAS was in compliance with the SCfl.1· policy, of
PRASA. The final written warning shall take effect from ttie,~ate:o(this
award.'
' [5] The Commissioner handed down a lengthy award setting_ qut the facts in minute
detail. In considering the sanction, the CoITJ,rnissioner states that the two
applicants "were not with clean hands as "!Y finaiti#-s tha/ they failed to ensure
a competitive bidding scope of influer,,qe of tt,~ic wpfk in respect of a three
quotation imperative". Moreover, ther"em,q/9ye·9"s cannot escape censure for the
misconduct committed''. FollpY'if!,g ~this feasoning, he concludes that
"reinstatement without bac~p_~y"ane[.a fina"rwritten warning valid for 12 months"
was considered a just an_ci'eql,litab'le,,_,r:emedy.
Variation applications in terirls·of section 144(b) of the LRA
[6] Both parties were dissatLsfied with the order and brought their own applications
for a v~riatti~11i • Wliil_$t they agreed that the Commissioner erred in granting
retr(?~pectiv~ re{!)statement without back pay, they differed on how the order
,oug_~ftq be .corrected, and, more specifically, on the date of the reinstatement
order.
fwr)ell~nts' variation application
[7] In their variation application dated 17 June 2021, the appellants sought an order
varying paragraph [504] of the award to read that PRASA is directed to reinstate
them retrospectively from 5 June 2020 (the date of the dismissal), with back
them retrospectively from 5 June 2020 (the date of the dismissal), with back
pay. The appellants contended that there is a material disjuncture between the
orders in paragraphs [503] and [504], in that the former provides for
retrospective reinstatement with effect from the date of dismissal (5 June 2020),
4
which contemplates reinstatement with back pay, whereas the latter states that
the reinstatement (from the date of the dismissal) is without back pay. The
appellants did not challenge the part of the order imposing a final written
warning for negligence arising from their failure to insist on three quotations in,
the procurement process. They even suggested that such a warning, 'be,
incorporated into the order.
PRASA's variation application
[8) PRASA sought to vary paragraph [503) of the award, contendjng that)the error
should be corrected by varying the order to provide fdr refns~~tement from 5
July 2021, the date the appellants were instructed to 'r€ltµrn J9 work. In this
manner, PRASA submitted, the issue of back:' pay would not arise, and the
Commissioner's disapproval of the appella~~~· misc,onduct would remain intact.
In this court, counsel appearing on behc!lf ofPRf.SA_c'bnceded that it had erred
in submitting to the Commissioner ,f~at the daf~ of reinstatement should be 5
July 2021, as that was plainly ajfat~ aft~r thfe'award.
◄
Commissioner's variation ruling/9 Jbfy 20,21
' ' . '
[10) In considering the twp'v~riatiq_n applications, the Commissioner accepted that:
(a) section 144(b) of t9e'Labour Relations Act2 (LRA) empowers the CCMA to
vary an a~c1rd t~at contains an ambiguity, obvious error, or omission, but only
to the exten(qf thai,ambiguity, error, or omission; (b) section 193 of the LRA
conf~rs a '<;fiscretion on the CCMA to determine the effective date of
telnstatep1e_rit; and (c) where reinstatement is ordered from a date preceding
the employees' actual return to work, the employees are entitled to back pay.
·fj tf Tf'.le Commissioner concluded that there was an error in the "wording" of the order
and reiterated what he had stated in the award that it was never the intention
to order any back pay. Accepting that paragraph [503) of the award contains an
obvious error, the Commissioner varied the order by ordering reinstatement
obvious error, the Commissioner varied the order by ordering reinstatement
with effect from 5 July 2021, which is the date on which they had to report for
duty. The variation ruling therefore varied the reinstatement date to a date after
2 Act 66 of 1995, as amended .
5
the date of the award (14 June 2021).
Labour Court review
[13) Dissatisfied with the variation ruling, the appellants brought a review in ,t~~
Labour Court, which PRASA opposed. The issue in the review was whethe(th~·
Commissioner was correct in varying the order as he did. Both pa~ies wete. acf
idem that the award contained an error in that it did not allow. for'Q._ack p_ay,
whereas they agreed that back pay follows as a matter of law
1
in the ·~vent of a
retrospective reinstatement order from the date of dismi~$al ·
[14) The Labour Court granted the review, correctly 'C!"OQ~Ju'ding that the
Commissioner erred in ordering reinstatem~nt as of 5 July 2021, as
reinstatement cannot, in law, take effect <{!Jft.er the, a~ard.3 The court a quo
substituted paragraph [503] of the yciriatiop Juling • with an order directing
PRASA to reinstate the appellants, e'{fec;t1v'e fr91J114 June 2021 (the date of the
award), and to report for duty 9n'S July 2Q2J.-'Although not recorded in the order
itself, the court a quo, in iJ$· jµdgrnent, required PRASA to pay the appellants
their remuneration for th'e~~pe,ribd fr(tm 14 June 2021 (the date of the award) to
5 July 2021 (the date. ofcepdrting for work). PRASA elected not to cross-review.
Reinstatement
[15] The me'at,tng:of "relnstatement" is settled law, as explained by Nkabinde J in
Equity Aviat(on Services (Pty) Ltd v CCMA & others,4 which is "to put the
,, empl9yee_-/_fack into the same job or position he or she occupied before the
',
, cfismissal, on the same terms and conditions. Reinstatement is the primary
_statutory remedy in unfair dismissal disputes. It is aimed at placing an employee
1n the position he or she would have been but for the unfair dismissal. It
safeguards workers' employment by restoring the employment contract.
Differently put, if employees are reinstated they resume employment on the
same terms and conditions that prevailed at the time of their dismissal".
same terms and conditions that prevailed at the time of their dismissal".
3 Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others
(Equity Aviation) 2009 (1) SA 390 (CC); [2008] 12 BLLR 1129 (CC) at para 36.
4 Ibid.
6
[16) An order for reinstatement in terms of section 193(1 )(a) thus contemplates the,
restoration of the status quo ante, as if the employee had never been dismis/~~d~
Reinstatement is often only ordered as of the date of the award, ~~d;_,an
employer who reinstates an employee as of that date will be in compliance,¥Jith
the reinstatement order. From that date, the terms and conditions· of lhe , . ,..., ' -. .. .
employee's employment, as they existed at the time of dismissal, will afJain take
effect.
[17) Section 193(1)(a), however, only provides for the CommissiQ.rJer;s discretion to
reinstate. This section does not statutorily prescrit?e the e,xtent or retrospectivity
of such reinstatement (backpay). The o~ly ~,tatuJory,lt~6itation on reinstatement . ;
is that it cannot be ordered to an earlier date ttfan the actual date of dismissal,5
◄ >
nor can it commence after the arbitratiori awarc:t6 .. .. '. , . /
[18) A distinction must therefore _beN~trawn between the discretion to reinstate (in
terms of section 193( 1 )'(~.)) 7 ,and 'ttie discretion relating to the extent of its
retrospectivity. The ~trpspeb~'(e of the reinstatement is generally referred to as
' ,
backpay and is, as pointe·d • out, a separate issue for determination. The
Constitutiopa'i G,ourt in Equity Aviation explained that: "[i]f a Commissioner of
the CCfy'IA' -qrtfeT the reinstatement of an employee that reinstatement will
ope(ate frbi(, the, date of the award of the CCMA, unless the Commissioner
,deciges.[o.render the reinstatement retrospective to make it retrospective". 8
,{19) A.n qroer for reinstatement, therefore, "carries no automatic retrospective
ionnotation". Back pay is therefore not a sine qua non of an order of
reinstatement, although it is coupled with such an order. 9 It is for the
Commissioner to decide specifically on the retrospectivity10 of a reinstatement
5 SA Commercial Catering & Allied Workers Union & others v Massmart Holdings Ltd & another (2020)
41 ILJ 2403 (CAC); [2020] 10 BLLR 1041 (CAC) at para 22.
6 Coca Cola Sabco (Ply) Ltd v Van Wyk (2015) 36 ILJ 2013 (LAC); [2015] 8 BLLR 774 (LAC) at para
16.
7 The power to grant one of the remedies in section 193 is inherently discretionary and must be
exercised judicially by the court that has that unfettered discretion.
8 Equity Aviation at para 36.
9 Ludick v Vodacom (Ply) Ltd & others (2021) 42 ILJ 2621 (LC); [2021] 12 BLLR 1226 (LC) at para 23.
Themba v Mintroad Sawmills (Ply) Ltd (2015) 36 ILJ 1355 (LC) at para 23.
10National Union of Metalworkers of SA on behalf of Fohlisa & others v Hendor Mining Supplies (A
Division of Marschalk Beleggings (Ply) Ltd) (2017) 38 ILJ 1560 (CC); [2017] 6 BLLR 539 (CC) at para
13.
7
order: Whether back pay is payable depends on whether the reinstatement is
made retrospective. The Court in SA Commercial Catering & Allied Workers
Union & others v Massmart Holdings Ltd & another11 explains:
This appeal
'[23] Section 193(1 )(a) of the LRA provides that if the Labour Court or ,an.·
arbitrator finds that a dismissal is unfair, the court or the arbitratq(ma~
'order the employer to reinstate the employee from a date n6t earli.!3i"
than the date of the dismissal'. Consequently, the retrosp'e~ivity o(an·
order of reinstatement granted in terms of the LRA '1s riot-automcitic.
There is, therefore, a discretion to be exercised in rel_ation to the period
of retrospectivity of a reinstatement order, an~:f a re{nstated employee's
entitlement to backpay and other benefits ma~\be limited. The ordinary
meaning of 'reinstatement', in acco~gance with Equity Aviation, is that
the reinstated employee 'resum~s• his"or her _service from the date of
the order on the same contract~i:11:terms't~af applied when his or her
services were terminated:. It ts i1:i' • this ·/espect that the remedy of
• '
'reinstatement' differ~ f;oq:Lthe rerri'edy of 're-employment', since the
latter does not reqdire th:e em~lc(yer to allow the dismissed employee to
resume emplpym~rit;cf n the terms which previously applied.'
(20] The fairness of the disn:i1ssal and the Commissioner's exercise of the discretion
to reinst~te th¢, appel'lants are not in issue on appeal. The issue for
determihc!tion:,in th1s"appeal is whether the Labour Court misdirected itself by
subitj_tuting the Commissioner's variation award with an order reinstating the
··appelJants from the date of the award (14 June 2021). The appeal is with leave
\of the ,court a quo.
Tt9J )t is necessary to briefly revisit the basis on which the variation of paragraph
[503] (on the appellants' version) or paragraph [504] (on PRASA's version) of
the award was sought. As already noted, the parties are in agreement that the
the award was sought. As already noted, the parties are in agreement that the
error relates to the fact that the order disallowed back pay, despite the
reinstatement having been made retrospective to the date of dismissal.
11 (2020) 41 ILJ 2403 (CAC); [2020] 10 BLLR 1041 (CAC).
8
Furthermore, both parties are ad idem that this was the error and that it,~acMp
be corrected.
General observations regarding variations
[20] The general rule is that, once a court has duly pronouri~ed a ffr:,al judgment or
order, it has itself no authority to set it aside or to correct, ·alter, or supplement
it because it becomes functus officio.12 Section 1'4~.13 of ti:,~ LRA does, however,
make provision for the variation (or r.eci~~,o·ri) of<~n award in exceptional
instances.14 Subsection 144(b) permits a vc:1ria{ion but only "to the extent of that . ' '
ambiguity, error or omission". T~e· ,9)Urts/ /have generally interpreted the
provisions of section 144 narr6~!y.1$
[21] A "patenf' error or omis~ipr:, ,r:~fers to a mistake that is clear, self-evident, and
apparent on the fac;;e 9f th$ !ecord without requiring elaborate argument,
interpretation, or fresh,eviderfce. The court's corrective power exists solely to
give effecttothe court's 'true intention where there is a patent error and may not
•
be used;to CIJange·tlie substance of the order.16 The purpose of this section is
' ' .
to ptovide ·tne 'parties with an expeditious procedural means to correct an
,Qbvie>us.,erro'r.17 The Constitutional Court in Minister for Correctional Services
and A'(lother v Van Vuuren and Another; In re Van Vuren v Minister for
¢orfectional Services and Others explains:18
12Erasmus Superior Court Practice RS 26, 2025, D1 Rule 42-1. Firestone South Africa (Pty) Ltd v
Genticuro AG 1977 (4) SA 298 (A) at 306F - G.
13 This rule is almost indistinguishable from rule 42 of the High Court Rules. An order of the Labour
Court may be varied in terms of section 165(b) of the LRA and Rule 16A 1 (a)(ii), which provide for the
correction of an ambiguity, obvious error or omission in a decision, judgment or order.
14 Colyn v Tiger Food Industries Ltd tla Meadow Feed Mills (Cape) [2003] ZASCA 36; 2003 (6) SA 1
(SCA).
(SCA).
15 See in respect of rule 42(1) of the High Court Rules: MEG for Public Works, Eastern Cape and another
v lkamva Architects CC 2023 (2) SA 514 (SCA); [2024] ZASCA 95 at para 28; Williams v Shackleton
Credit Management 2024 (3) SA 234 (WCC) at para 23.
16 Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA298 (A) at 306F-307H
17 Section 144 is similar to section 165(b) of the LRA (which provides for the Labour Court to vary and
rescind orders of the Labour Court) and rule 42 of the Uniform Rules of the High Court. See Mostert
NO v Old Mutual Life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA): "[5] In dealing with the parties'
contentions it has to be borne in mind that the general rule is that a court's final judgment is not capable
of being altered or supplemented. However, there is a limited number of exceptions to the rule. The
only one which could apply here is that a court may clarify its judgment or order if, on a proper
interpretation, the meaning remains uncertain and it is sought to give effect to its true intention. Even
then the sense and substance of the order must not be altered. Firestone South Africa (Pty) Ltd v
Gentiruco AG 1977 (4) SA 298 (A) at 306F -307A ".
18 2011 (10) BCLR 1051 (CC); [2011] JOL 26968.
The award
9
'[8] A court may clarify its order or judgment to give effect to its true intention
which is to be ascertained from the language used without altering the
sense and substance of the judgment if, on its proper interpretation, the
meaning remains unclear. But once a court has pronounced a final
judgment or order, it has, itself, no authority to correct, alter -0r
supplement it. The rationale for this principle is delineated by Nge~bo J,
in Zondi v MEG, Traditional and Local Government Affairs that
"In the first place a Judge who has given a fin?1l::Pt~e_r'i~fun9tus
officio. Once a Judge has fully exercised his;_ or her j~risdiction,
his or her authority over the subject matter ce·~ses.-_"The other
equally important consideration is the \public interest in bringing
litigation to finality. The parties must be,a~Cired that once an
order of Court has been ma~e! . it is final and they can arrange
their affairs in accordancewith that or'de.r.'"19
\ --,..., • '· .,
[21] A plain reading of paragraphs:f5b3]/and'-[.~64] of the award reveals an internal
contradiction between th~efe two 'p.€3ragraphs that gives rise to a patent error on
the face of the order:_ Paragraph [503] orders the retrospective reinstatement of
the appellants "with eltec( frqm~5 June 2020" (the date of the dismissal), which,
as a matter qf Jaw, cat~ies wfth it the necessary consequence that they would
be entitleqio b~9~pay as from that date. Paragraph [504], however, provides
that the'·r~inst€3temerit is "without back pay," which is legally irreconcilable with
the 'rettrospective effective date of the reinstatement order in paragraph [503].
,,Tfle•s~ two provisions cannot coexist: the one creates a right to back pay, while
.)he ot~er purports to extinguish it. The inconsistency is manifest on the face of
.fhe ·award and requires no extraneous evidence or subsequent explanation to
/reveal it.
[22] Having regard to the Commissioner's stated intention in the award that the
/reveal it.
[22] Having regard to the Commissioner's stated intention in the award that the
appellants "were not with clean hands" and that they "cannot escape censure
for the misconduct," the Labour Court correctly found that the order created
uncertainty, required clarification, and contained an obvious error in that the
19 Footnotes omitted.
[23)
10
order did not reflect the Commissioner's true intention. I am also in agreement
with the Labour Court's finding that the variation of the date of reinstatement
did not amount to a change of mind on the part of the Commissioner, but was
rather an effort to clarify the award and bring it into conformity with the'
expressed intention not to grant reinstatement with retrospective effect. ◄ll(the
' ,
circumstances, it follows that the award did not accurately reflect the •is .
maker's true intention and accordingly falls within the category of~ceptiopa
cases justifying a variation in order to resolve the inconsistenc~?ind~v.,....,........,
effect to what the Commissioner intended. The variation as~ ~ .nnot
change the substance of the award. Since an order f~t-'reins , ement cannot
take effect from a date later than that of the award, ttie.. L our Court was , r
entitled, in giving effect to the Commissi~r's intention not to award
retrospective reinstatement (back pay), to the ward accordingly.
The appeal, therefore, falls to be dia1,.1:sec:l.~ ee~i~g with the requirements .~ .. ;,,.
of law and fairness, there is no ~·' ;f~ c~~.20
~ ,i
Conclusion
[24] In the event the foll • r is made :
Order
1.
AC. Sasson
Acting Judge of the Labour Appeal Court
Chetty AJA and Djaje AJA concur.
20 Section 179(1) of the LRA provides: "The Labour Appeal Court may make an order for the payment
of costs, according to the requirements of the law and fairness"
11
APPEARANCES :
FOR THE APPELLANTS: Mr Sebola of Sebola Nchupetsang Sebola Inc
FOR THE THIRD RESPONDENT:Ms Norton
Instructed by Mkhabela Juntley Attorneys