THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JA28/23
In the matter between:
BKL MONITORING & INSPECTORATE CC Appellant
and
MADUKA PAUL AND 36 OTHERS Respondents
Heard: 25 September 2026
Delivered: 26 November 2025
Coram: Van Niekerk JA, Nkutha-Nkontwana JA, Basson AJA
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NKUTHA-NKONTWANA, JA
Introduction
[1] This is an appeal against the judgment and order of the court a quo delivered
on 6 October 2022. The key issues raised at the court a quo were whether the
dismissals of the respondent s were automatically unfair in terms of section
187(1)(c) of the Labour Relations Act 1 (LRA), or whether they were based on
1 Act 66 of 1995, as amended.
2
the appellant’s operational requirements as contemplated in sections 188 and
189 of the LRA.
[2] The court a quo found the respondents' dismissals not automatically unfair.
That finding is not assailed; hence, it is not the subject of this appeal .
Notwithstanding, the court a quo found the respondents' dismissals
substantively unfair under section 189. That is the finding the appellant
impugns in this appeal.
Condonation for the late filing of the notice and record of appeal
[3] The first hurdle the appellant faces is that the appeal lapsed due to the late
filing of the notice and the record of appeal after it successfully petitioned this
Court for leave to appeal . The order granting the petition was delivered on 31
May 2023. However, the appellants failed to file the further processes in the
prosecution of the appeal in accordance with the Rules of this Court .2 The
notice of appeal was filed on 20 August 2024, almost a year after the order of
31 May 2023 was rendered. Similarly, the appeal record was filed on 19
December 2024, more than a year after the order of 31 May 2023 was
rendered.
[4] The appellant does not accept the fact that the delay is inordinate. It contends
that the delay must be viewed in the context of the overall delay in this
litigation, which has been approximately five years since the respondents
were dismissed in April 2021. I disagree. While the delay in the persecution of
this matter in the court a quo is regrettable, it is well explained in the
impugned judgment. Notably, most of it is attributable to the administrative
challenges consequent to the COVID -19 pandemic. The delay of more than a
year in prosecuting the appeal is egregious.
[5] The appellant contends that it was not served with the order of 31 May 2023.
It only became aware of that order when it was served with the respondents'
ex parte application and the rule nisi for contempt of court . Mr Gordon
Mokoboto (Mr Mo koboto), the co -member of the appellant , a close
Mokoboto (Mr Mo koboto), the co -member of the appellant , a close
2 GN 1666 of 14 October 1996: Rules for the Conduct of Proceedings in the Labour Appeal Court
(repealed, 17 July 2024).
3
corporation, and deponent to the founding affidavit in support of the
application for condonation and reinstatement of the appeal, assert s that the
email address, ramalatsosobane@gmail.com, used by the Registrar of this
Court to serve the order of 31 May 2013 on the appellant’s attorneys of record
is incorrect. The correct email address is ramalatsosobane1@gmail.com.
Therefore, they were not aware that the order of 31 May 2013 had been
rendered.
[6] The respondents dispute the appellant’s assertion that the email used to
serve the order of 31 May 2023 is incorrect because it was provided by the
appellant’s attorneys of record when they filed the petition papers. The
appellant's bald assertion that it was served on an incorrect email address
should therefore be rejected, so the argument went.
[7] The appellant's explanation for what transpired over a period of almost a year,
while they were still unaware of the order of 31 May 2023, is curious. Mr
Mokoboto asserts that, as a lay person, he was not familiar with the
processes of this Court and relied on his legal representative, who assured
him that the petition was being processed. Yet he wants us to believe that he
constantly followed up with the nameless officials of this Court regarding the
status of the appellant’s petition , without success. At the same time, his
attorneys, who had always been on record and assisted him in filing the
petition, rested on their laurels.
[8] The appellant was clearly awakened by the respondents' contempt of court
application. It filed the notice of appeal in August 2023. Notwithstanding the
inordinate delay, the appeal record was filed on 19 December 2024, four
months after the filing of the notice of appeal . No cogent explanation was
proffered for the further delay. Appellant and its legal representatives showed
no sense of urgency in prosecuting the appeal.
[9] In the whole, the appellant lays the blame for the delay squarely at the door of
[9] In the whole, the appellant lays the blame for the delay squarely at the door of
its attorneys of record. In my view, there is traction in the respondents'
contention that the appellant should not be allowed to hide behind his
attorneys’ ineptness, as it can avail itself of recourse in delict for any damages
4
it would suffer due to their conduct. Conversely, the respondents are seriously
prejudiced by the poorly explained inordinate delay , as they had been out of
employment since April 2021. It is a well-accepted tenet that a litigant cannot
hide behind the ineptness of the legal representatives it has freely sourced.3
[10] In Grootboom v National Prosecuting Authority, 4 the Constitutional Court
instructs that the standard for considering an application for condonation is
the interests of justice, which includes ‘the nature of the relief sought; the
extent and cause of the delay; the effect of the delay on the administration of
justice and other litigants; the reasonableness of the explanation for the delay;
the importance of the issue to be raised in the intended appeal; and the
prospects of success’.
5 An inquiry into what is in the interests of justice entails
due regard for all relevant factors, including those dictated by the particular
circumstances of each case.6
[11] Notwithstanding the inordinate delay and the insufficiency of the explanation
proffered, the importance of the issues raised and the appellant's prospect of
success, it is in the interest of justice that the appeal be disposed of on the
merits. Still, litigants and their legal representatives are warned that the
flagrant disregard of the periods prescribed in the Rules can no longer be
countenanced, as it is at odds with one of the dictates of the LRA that labour
disputes be expeditiously prosecuted.
Factual background
[12] There is not much controversy over the facts . The appellant provides
monitoring and inspection services to various transport companies that
operate passenger buses or rail services. It is contracted to supply clients with
inspectors whose duties include checking vehicles and driver compliance, as
well as monitoring scheduled bus trips to ensure compliance with regulatory
prescripts for safe transport services to bus and rail commuters. The portfolio
prescripts for safe transport services to bus and rail commuters. The portfolio
3 See: Salojee and another, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 14C;
SA Post Office Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ
2442 (LAC) at para 22.
4 2014 (2) SA 68 (CC) at paras 22 and 23.
5 Ibid at para 22.
6 Ibid.
5
of its client companies at the time included PRASA (Autopax), Brakpan B us
Company, Atamelang and Putco bus services.
[13] The respondents began their employment with the appellant around 2010.
They have held various positions, including inspector, cleaner, driver , and
administrative staff . The appellant had a total staff complement of 91
employees when it terminated the respondents' services on 30 July 2017.
[14] The appellant ’s operational challenges began in 2016, when some of its
clients failed to pay or made sporadic payments for services rendered. On 10
August 2016, the appellant held a meeting with its employees, including the
respondents, and shared its financial challenges. The outcome of the meeting
was an agreement that employees would forfeit their 2016 annual salary
increases and bonuses . However, there was no discussion on the possibility
of retrenchments. Mr Mokoboto testified that the appellant took an overdraft to
mitigate cash flow problems and pay employees’ salaries.
[15] Nothing eventful happened thereafter until , as it appears, s ome of the
appellant’s employees joined the trade union, TAWUSA. On 14 June 2017, Mr
Lucky November (Mr November) , a TAWUSA official, sent an email seeking
an audience with the appellant in a meeting he had scheduled for 5 July 2017.
The email was impolite and threatening, accusing the appellant of intimidating
employees who wished to exercise their right to join a trade union. The
appellant responded on 19 June 2017, declining Mr November's invitation and
making clear that it was disinclined to engage with TAWUSA until it could
provide proof of its eligibility for organisational rights per the LRA.
[16] What followed was an antagonistic communication between the appellant and
Mr November , which adversely affected the relationship between the
appellant and the employees who had joined TAWUSA. The employees
accused Mr Mokoboto of union-bashing. At the same time, the appellant was
accused Mr Mokoboto of union-bashing. At the same time, the appellant was
adamant that it would only engage TAWUSA once it had complied with
section 21 of the LRA.
7
7Section 21 regulates the exercise of organisational rights, and subsections (1) and (2) provide:
6
[17] The employees lodged a complaint with the Department of Employment and
Labour (DEL) regarding their conditions of employment . Following an
investigation by the DEL, it was found that the appellant ’s employees did not
have formal employment contracts. The appellant was directed to enter into
month-to-month employment contracts with its employees, as it had no long -
term agreements with its clients following payment challenges that
commenced in 2016.
[18] The appellant attemp ted to dissuade the employees from joining TAWUSA,
but was unsuccessful. It also failed to encourage the employees to sign
month-to-month employment contracts. On 11 July 2017, the appellant issued
the employees with a 48- hour ultimatum to accept a month-to-month
extension of their employment contracts pending permanent agreements with
its clients; failing to do so, it would be assumed that they were no longer
interested in the employment relationship. The respondent s refused to sign
the month-to-month employment contracts because they viewed the
ultimatum as a retaliation for joining TAWUSA and a ploy to get rid of them.
[19] On 12 July 2017, the appellant gave Autopax notice of intention to terminate
the service contract, effective from 31 July 2017, due to the sporadic nature of
the payments. On 20 July 2017, the respondent issued a section 189(3)
notice to the employees , inviting them to a consultation meeting on 26 July
2017. The n otice explained, inter alia , the rationale for the proposed
retrenchments; that the proposed timing for the retrenchments would be 31
July 2017 if nothing came out of the negotiation with the appellant’s clients ;
that the possible number of affected employees had not been determined;
and that the selection criteria would be inform ed by that the appellant’s
operational requirements, (including established skills, speciali sed positions
and disciplinary record of the employees ). Subsequently, the appellant also
and disciplinary record of the employees ). Subsequently, the appellant also
‘(1) Any registered trade union may notify an employer in writing that it seeks to exercise one or more
of the rights conferred by this Part in a workplace.
(2) The notice referred to in subsection (1) must be accompanied by a certified copy of the trade
union’s certificate of registration and must specify—
(a) the workplace in respect of which the trade union seeks to exercise the rights;
(b) the representativeness of the trade union in that workplace, and the facts relied upon to
demonstrate that it is a representative trade union; and
(c) the rights that the trade union seeks to exercise and the manner in which it seeks to exercise
those rights.’
7
undertook to consider LIFO (last -in, first-out) as a fair and objective selection
criterion.
[20] The events that transpired at the consultation meeting held on 26 July 2017
are controversial. Mr Mokoboto testified that the consultation meeting ended
on a negative note due to the confrontation that ensued between the
appellant's representatives and the employees. The respondents, on the other
hand, disavowed the allegation that the consultation meeting was marred by
conflict. Their version is corroborated by the minutes of that meeting, which
were interestingly signed off by Mr Mokoboto. He is recorded to have ‘…
asked employees to come up with suggestions on how to minimise the effect
of retrenchments. He is still busy with clients to see if they cannot pay and
extend the contract. If the client refuses, the company unfortunately has no
choice because the power is in the hands of the client ’. The court a quo
correctly accepted the respondents' version.
[21] On 28 July 2017, Autopax duly accepted the appellant’s notice of intention to
terminate the service contract and confirmed that the termination would be
effective as of 31 July 2017. The appellant, in turn, effected the
retrenchments. On 30 July 2017, the respondents were served with
retrenchment letters at their respective homes. The retrenchments took effect
on 1 August 2017, and t he respondents were paid in lieu of one month's
notice and severance pay.
[22] The respondents challenged the fairness of the retrenchments, alleging that
there was no genuine economic rationale for them and that their dismissals
were automatically unfair because they were selected solely because they
had joined TAWUSA . The appellant , in defence, persistently contended that
the retrenchments were justified as it had a serious cash flow problem due to
its clients’ sporadic payments . It also defended the selection criterion it
ultimately implemented, contending that respondents were selected for
ultimately implemented, contending that respondents were selected for
retrenchment because they had refused to sign month- to-month employment
contracts.
At the court a quo
8
[23] The court a quo accepted the appellant's version that there was a commercial
rationale for the retrenchments, especially for those employees attached to or
servicing the Autopax contract, which terminated on 31 July 2017. Having
found that the respondents' dismissals were not automatically unfair, the court
a quo interrogated the fairness of the retrenchments as contemplated in
section 189. The only issue for determination was whether the selection
criterion implemented by the appellant was fair and objective. 8 It found that
the appellant abandoned its undertaking to the respondents that the selection
criteria would include LIFO . Accordingly, it made the following instructive
observations:
‘[46] Mr Mokoboto unequivocally conceded that the employees that were
selected for retrenchment were all those who had refused to sign the
month-to-month. employment contracts, and these employees
happened to be the 37 applicants [respondents]. He also accepted
that this method of selecting the employees for retrenchment was not
discussed with the employees, and they were never warned that their
refusal to sign these month-to-month contracts could expose them to
selection for retrenchment. Indeed, this selection criterion does not
appear in the section 189 letter dated 20 July 2017 and the follow -up
letter dated 26 July 2017. Even the termination letters dated 30 July
2017 do not indicate the selection criteria applied. These concessions
by Mr Mokoboto are fatal to the respondent's case.
[47] It does not require a rocket scientist to come to a conclusion that the
selection criterion used by the respondent was arbitrary, unfair and
subjective. There is no rational connection whatsoever between the
commercial reason for retrenchment (termination of Autopax contract)
and the selection criterion used. There is no evidence as to how many
and which employees were attached to or servicing the Autopax
contract or any other contract whose termination may have been
imminent.’
contract or any other contract whose termination may have been
imminent.’
8 Section 189 (7) of the LRA reads as follows:
‘The employer must select the employees to be dismissed according to selection criteria –
(a) that have been agreed to by the consulting parties; or
(b) if no criteria have been agreed, criteria that are fair and objective.’
9
[24] The court a quo found the respondents' retrenchments to be substantively
unfair and ordered their reinstatement with 18 months' back pay.
In this Court
[25] The appellant impugns the above findings on the following grounds of appeal:
25.1. Whether the court a quo was entitled to consider and extend the
enquiry beyond the scope of an automatically unfair dismissal in terms
of section 187;
25.2. Whether there was a genuine economic rationale to justify the need to
retrench the respondents; and
25.3. If the retrenchment of the respondents is found to be substantively
unfair, whether the legal principles applicable under section 193 (2)
were correctly applied to justify the relief ordered by the court a quo.
Was the court a quo entitled to extend the enquiry beyond the scope of an
automatically unfair dismissal?
[26] The appellant submits that the court a quo’s finding that the dismissal s were
not automatically unfair was dispositive of the matter. That is so , it further
submits, because the respondents’ pleaded case was solely premised on the
allegation that their dismissals were automatically unfair ‘in that the reason for
the dismissal was victimisation of union members, rather than genuine
economic reasons’.
[27] It further submits that the court a quo was alive to the fact that the pleaded
case was limited to an automatically unfair dismissal claim. Hence, it invited
the respondents’ legal representative, Ms Norton, to reflect on the implications
of a finding that the dismissal was not automatically unfair and make
submissions in her closing arguments whether it would be dispositive of the
matter. Notwithstanding the invitation , the respondents did not seek leave to
amend their statement of case to include a section 189 dismissal claim.
10
[28] The appellant further submits that its contention that the scope of enquiry was
limited to the automatically unfair dismissal claim is corroborated by the relief
sought in the statement of case, the expressly listed issues for determination
in the pre-trial minute, the respondents’ opening arguments, the evidence that
was led during trial; and respondents’ closing arguments which solely
addressed the automatically unfair dismissal claim.
[29] The respondents support the court a quo’s finding that their dismissals were
substantively unfair. They submit that their cause of action was not limited to a
section 187 automatically unfair dismissal claim, as it is apparent from
paragraph 23 of the statement of case, which reads:
‘Applicants submit that the Respondent's dismissal of the Applicants failed to
adhere to the principles of substantive fairness in that the reason for the
dismissal was victimisation of union members, rather than genuine economic
reasons. The dismissal was substantively unfair.’
[30] It is a well- established tenet that the role of pleadings is to define the issues
for the opposing party and the court. 9 A party has a duty to allege in the
pleadings the material facts upon which it relies and cannot be allowed to
establish a different case at trial. 10 This tenet was confirmed in Damons v City
of Cape Town 11 (Damons), per the majority judgment penned by Majiedt J ,
which rejected the observation by the minority judgment , penned by Pillay AJ,
that the pre- trial minute supersedes the pleadings and defines the causes of
action for determination. 12 Therefore, Damons instructs that a pre-trial minute
cannot be used to introduce a new cause of action not properly pleaded ;
precisely because ‘… pleadings fulfil an essential role in litigation – they foster
legal certitude, which is a central element of the rule of law’.13
[31] While I accept that the respondents ’ statement of the case is not articulately
[31] While I accept that the respondents ’ statement of the case is not articulately
drafted, a close reading of the pleadings reveals two causes of action. Firstly,
the respondents assert, in paragraph 23 of the statement of claim mentioned
9 Molusi and others v Voges NO and others 2016 (3) SA 370 (CC) (Molusi) at para 28; Minister of
Safety and Security v Slabbert [2010] 2 All SA 474 (SCA), referred to with approval in Molusi.
10 Ibid.
11 (2022) 43 ILJ 1549 (CC) at paras 117-119.
12 Ibid at para 25.
13 Ibid at para 119.
11
above, that their dismissal s were not for a genuine economic reason and ,
therefore, were substantively unfair. Secondly, they assert, in paragraph 24 of
the statement of case, that the appellant violated their right to freedom of
association in terms of section 5 of the LRA and consequently, their dismissal
was automatically unfair in terms of section 187 of the LRA.
[32] The appellant was not oblivious to the case it had to meet because it asserts
the following in paragraphs 1.1 and 1.2 of its statement of response:
‘1.1 Firstly, this Response constitutes a notice of opposition to the
Applicants' referral based on the averments made in the statement of
case insofar as it is alleged the that the Respondent acted in
contravention of the provisions of Section 189A (8); as well as in
breach of Section 187(1) of the LABOUR RELATIONS ACT 66 OF
1995 (AS AMENDED) (hereinafter referred to as "the LRA").
1.2 Secondly, the Respondent categorically denies and take issue with
the assertions by the Applicants that it unfairly terminated the service
of the Applicants in breach of the provisions of Section 189, 189A of
the LRA, 'Dismissals based on operational requirements '; as well as
violated the Applicants rights of freedom of association in terms of
Section 187; read with Section 5 of the LRA.’ (Emphasis added)
[33] Unlike in Damons, in this instance, the pre-trial minute did not introduce a new
cause of action but records the issues for determination as follows:
‘5.1 Whether the Applicants were unfairly dismissed, specifically whether
the provisions of s 189A were not followed.
5.2 Whether the dismissal was automatically unfair.’
[34] The parties proceeded to conclude the addendum to the pre- trial minute,
which specifically addressed the dismissal due to operational requirements as
required by clause 10.4.2 of the repealed Labour Court Practice Manual .14
The addendum to the pre -trial, signed by the parties' legal representatives,
The addendum to the pre -trial, signed by the parties' legal representatives,
clearly records that the respondents took issue with the criteri a used to select
them for retrenchment s, contending that it was unfair because only union
14 Practice Manual of the Labour Court of South Africa, 1 April 2013 (repealed, 17 July 2024).
12
members were targeted. In response, the appellant persisted with its
contention that respondents were retrenched solely because they had refused
to sign the month-to-month employment contracts as directed by the DEL.
[35] As mentioned above, t he court a quo found that there was a genuine
economic rationale for the retrenchments. Since the rationality of the selection
criteria unilaterally adopted by the appellant was in dispute, there is nothing
untoward in the court a quo’s decision to interrogate same. The court a quo
might indeed have created some confusion and uncertainty when it requested
that the respondent’s counsel address the effect of its finding that the
dismissal was not automatically unfair. Nothing much turns on that, however,
as the pleadings and evidence on record support its approach. Moreover, it is
not the appellant’s case that the respondents abandoned their impugn against
the selection criteria.
Was there a genuine economic rationale to justify the need to retrench the
respondents?
[36] The appellant contends that the court a quo erred in finding that there was no
economic rationale to justify the respondents' retrenchment s. The court a quo
pertinently found that ‘… although there was, generally, a need to retrench;
there is no acceptable evidence justifying the retrenchment of the 37
applicants [respondents]….’ My understanding of this finding is that , while
there may have been an overall economic rationale to justify the
retrenchments, the appellant could not justify the selection of the respondents.
[37] In the present case, the fairness of the implementation of the selection criteria
was not in issue. Hence, the enquiry turns on the fairness and objectivity of
the selection criteria, which is part of the enquiry into the substantive fairness
of the retrenchment s. Recently, this Court confirmed this notion in Umicore
Catalyst South Africa (Pty) Ltd v National Union of Metalworkers of South
Africa and Others .
Catalyst South Africa (Pty) Ltd v National Union of Metalworkers of South
Africa and Others .
15 In that case, Umicore embarked on a retrenchment
process and implemented LIFO in most departments. However, during the
consultation process, Umicore abandoned LIFO and introduced a different
15 [2024] 11 BLLR 1138 (LAC) at paras 42 – 34.
13
assessment for the laboratory department, which was based on behavioural
and competency-based questions. Four of the laboratory employees refused
to participate and were retrenched. NUMSA challenged the substantive
fairness of the retrenchments, particularly contending that Umicore's selection
criterion was subjective and unfair. The L abour Court found in favour of
NUMSA and ordered the reinstatement of the retrenched employees. Umicore
was unsuccessful in its appeal against the Labour Court's judgment and
order. This Court reiterated the tenet that, where there are no agreed
selection criteria, the employer must adopt fair and objective selection criteria.
It found the behavioural assessment inherently subjective.
[38] In this case, the appellant similarly abandoned the selection criteria it
proposed during the consultation meeting, which included LIFO. The evidence
reveals that the signing of month-to-month employment contracts was not
among the issues discussed during the consultation meeting. In fact, the
discussion of month- to-month employment contracts occurred before the
issuance of section 189(3) notices. Mr Mobokoto readily conceded that the
month-to-month employment contracts were introduced in response to the
DEL directive.
[39] As I see it , what may have exacerbated the situation is the brevity and haste
with which the consultation process was undertaken. Nothing more to be said,
though, because the procedural fairness is not in issue. However, the
respondents were never fore warned that failure to sign the month- to-month
employment contracts would result in their selection for retrenchment.
[40] The appellant submi ts that employers enjoy unfettered prerogative to adopt
selection criteria, including the option to avoid retrenchments by offering
alternative employment. Well, the selection criteria that have been unilaterally
adopted must still pass the fairness and objectivity muster. In my view, t he
adopted must still pass the fairness and objectivity muster. In my view, t he
present case is distinguishable from the National Union of Metalworkers of SA
and others v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) and
another,
16 where the Constitutional Court affirmed the employers’ right to offer
employees an alternative employment to avoid retrenchments . Here, t he
16 (2021) 42 ILJ 67 (CC) at paras 94 – 96.
14
appellant did not and could not have offered the month-to-month employment
contracts to avert retrenchments because its case was that it had lost not only
Autopax’s contract but also other contracts thereafter.
[41] Therefore, the court a quo cannot be faulted for finding that there was no
connection between the directive issued by the DEL to conclude month- to-
month employment contracts and the retrenchment process. Nor can it be
assailed for finding that the selection criterion adopted by the appellant was
marred by subjectivity and unfairness.
Whether the legal principles applicable under section 193 (2) were correctly applied to
justify the relief ordered by the court a quo.
[42] The court a quo found, based on the dictum of the Constitutional Court in SA
Commercial Catering & A llied Workers Union v Woolworths (Pty) Ltd
17
(Woolworths), that the appellant had the onus to lead evidence to show that
reinstatement of the respondents was not reasonably practicable, but failed.
Hence, it ordered the reinstatement of the respondents with 18 months' back
pay.
[43] The appellant impugns this finding and contends that the court a quo ignored
the evidence on record, which showed that it was in a financial detriment; that
its business operations were further reduced following the termination of other
contracts after Autopax ; and that it had been experiencing continuous
financial distress. It further contends that, as a result, the respondents’
positions had become redundant due to the reduction in business operations .
Given these circumstances, reinstatement was not reasonably practicable.
[44] The respondents , on the contrary, contend that the court a quo correctly
ordered the primary remedy of reinstatement, as the appellants failed to
address the impracticability of reinstatement in the event that the respondents'
retrenchments were found to be substantively unfair.
17(2019) 40 ILJ 87 (CC) at paras 43 – 47; see also Booi v Amathole District Municipality & Others
(2022) 43 ILJ 91 (CC) (Booi) at paras 34 – 43.
15
[45] The Constitutional Court and this Court have had to consider, on several
occasions, the remedy of reinstatement contemplated in section 193(1), and
instances in which it is not appropriate to grant it in terms of section 193(2) .18
What emerged from the body of authorities is that , while reinstatement is a
primary remedy, it does not consequentially follow a finding that a dismissal
was substantively unfair.19 Ignoring the requirements of section 193(1) and (2)
may cause the Labour C ourt or arbitrator to grant a reinstatement order in
circumstances where section 193(2) expressly excludes that remedy.20
[46] The overriding consideration in the enquiry , Billiton Aluminium SA Ltd t/a
Hillside Aluminium v Khanyile & others 21 (Billiton) instructs, should be the
underlying notion of fairness between the parties, rather than the legal onus.22
Still, ‘[f]airness ought to be assessed objectively on the facts of each case
bearing in mind that the core value of the LRA is security of employment ’.23
However, as correctly observed by the court a quo, in Woolworths,24 it was
found that the onus is on the employer to demonstrate to the court that
reinstatement is not reasonably practicable by adducing compelling evidence.
[47] Despite differing observations by the Constitutional Court on the onus in
Billiton and Woolworths, there is clear alignment on the fundamental premise
that the enquiry requires an assessment of the facts to establish whether the
statutory exceptions in section 193(2) are met. Since it is the employer that
18 Section 193(2) provides:
‘The Labour Court or the arbitrator must require the employer to reinstate or re- employ the employee
unless –
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment
relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.’ (Emphasis
added)
19 Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & others
(2008) 29 ILJ 2507 (CC) (Equity Aviation) at paras 36 - 39; Billiton Aluminium SA Ltd t /a Hillside
Aluminium v Khanyile & others (2010) 31 ILJ 273 (CC) (Billiton) at para 43; Xstrata South Africa (Pty)
Ltd (Lydenburg Alloy Works) v National Union of Mineworkers obo Masha and Others (Xstrata) [2017]
4 BLLR 384 (LAC) at para 11; Dunwell Property Services CC v Sibande and Other s [2012] 2 BLLR
131 (LAC) at para 32; SA Revenue Service v Commission for Conciliation, Mediation and Arbitration
and Others (2017) 38 ILJ 97 (CC) (SARS) at paras 37 – 38;
20 See: SARS supra at para 38.
21 Billiton supra.
22 Ibid at para 42.
23 Equity Aviation supra at para 39.
24 Woolworths supra at para 50.
16
seeks to avail itself of the statutory exceptions , it follows, by necessary
implication, that it bears the burden to show that reinstatement would not be
reasonably impracticable, which means it would not be feasible or reasonably
possible in the sense that it may be potentially futile. 25 The view I take is
buttressed by the jurisprudence of the Constitutional Court and this Court ,
which emerged post-Woolworths, endorsing its dictum that the onus is on the
employer to adduce compelling evidence to show that the statutory
exceptions in section 193(2) are met.26
[48] The appellant conceded that it did not adduce any specific evidence during
the trial regarding the impracticability of the reinstatement order. Still, the
appellant’s undisputed evidence was that it was in an operational predicament
upon termination of the Autopax contract, which was soon followed by the
termination of contracts with other clients, Brakpan and Putco. In
Mediterranean Textile Mills (Pty) Ltd v SACTWU & Others,27 confronted with a
similar situation, this Court decried the respondent’s failure to adduce specific
evidence on the impracticability of the reinstatement. Even so, it found that:
‘…at the conclusion of each case it remains the responsibility of the court or
the arbitrator to determine whether or not, on the evidentiary material properly
presented and in the light of the Equity Aviation principle, it can be said that
the reinstatement order is justified. In other words, even in a situation, such
as the present, where no specific evidence was canvassed or submissions
made during the trial on the issue of the non-reinstatable conditions, the court
or the arbitrator is not only entitled but, in my view, is obliged to take into
account any factor which in the opinion of the court or the arbitrator is relevant
in the determination of whether or not such conditions exist.’
28
[49] It follows that the court a quo erred in failing to consider the uncontroverted
28
[49] It follows that the court a quo erred in failing to consider the uncontroverted
evidence that the appellant lost three service contracts in succession, with an
25 See: Xstrata, which is referred to with approval in Woolworths supra at para 49.
26 See: Faeroes Properties (Pty) Ltd v Southern African Clothing and Textile Workers Union and
Others [2025] 9 BLLR 901 (LAC) at para s 42 -42. See also Booi supra at paras 34 – 43; and
Mathebula v General Public Service Sectoral Bargaining Council and Others (2024) 45 ILJ 979
(LAC) at para 19. In both these authorities, the courts dealt with the intolerability of reinstatement in
the context of section 193(2)(b).
27 [2012] 2 BLLR 142 (LAC) at paras 29-30.
28 Id.
17
adverse effect on its operations. Notably, the court a quo accepted that there
was an overall economic rationale for the retrenchment. Yet it was
incongruously found that reinstating the respondents may result in genuine
redundancies. It is also curious that , having noted the possibility of further
retrenchments due to the appellant’s prolonged financial strain and loss of
contracts, the court a quo did not appreciate the futility of the reinstatement
order.
[50] The appellant is therefore correct in its contention that the court a quo’s
reinstatement order and the 18 months' back pay would unreasonably
exacerbate its financial woes. Consequently, it is not reasonably practicable
under the circumstances . Fairness, as mentioned above, entails a balanced
and equitable evaluation of the positions and interests of both employees and
employers, and it involves a value judgment based on proven facts and
circumstances.29
Compensation
[51] In terms of section 194(1) , the compensation to be awarded to an employee
whose dismissal is found to be substantively unfair must be just and equitable
in all the circumstances , but not be more than the equivalent of 12 months'
remuneration. The compensation order that I grant is, therefore, informed by a
consideration of various factors, which include the fact that the retrenchments
constitute a no- fault dismissal, the LRA's imperative in promoting security of
employment, the operational challenges that confronted the appellant, and the
fact that the appellant had acquiesced to the prospect of paying up to six
months' salary . Thus, I am inclined to grant the respondents compensation
equivalent to six months' remuneration, respectively.
Conclusion
[52] The appeal succeeds in part , and the court a quo’s order reinstating the
respondents ought to be set aside and substituted with an order that the
29 See Equity Aviation supra, Billiton supra at para 43.
18
appellant shall pay the respondents compensation equivalent to six months'
salary.
Costs
[53] As to costs, since both parties are considerably successful, each should bear
its own costs.
[54] In the result, the following order is made:
Order
1. The late filling of the notice and the record of appeal is condoned.
2. The appeal is upheld in part.
3. The order of the court a quo reinstating the respondents is set aside
and substituted with the following order:
3.1 The appellant shall pay each respondent compensation
equivalent to six months' remuneration.
3.2 The above payments shall be effected within two months of this
order.
4. There is no order as to costs.
_______________________
Nkutha-Nkontwana JA
Van Niekerk JA et Basson AJ concur.
APPEARANCES:
FOR THE APPELLANT: Adv AR Coetsee
Instructed by Matsobane Ramalatso Attorneys
FOR THE THIRD RESPONDENT: Khomola Attorneys