THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 331/19
In the matter between:
SATAWU obo ELVIS RAMOTSONGA Applicant
and
GVR VERVOER B.K TRIO VERVOER Respondent
Heard: 25 May 2022
Delivered: 3 June 2022
Revised: 6 February 2026
Summary: An application brought in terms of section 77( 3) of the Basic
Conditions of Employment Act No. 75 of 1997. Applicant claims arrear wages –
contract of employment reinstated. Applicant is reinstated as a result he has a
contractual claim for arrear wages. No dispute of fact that cannot be resolved
on the papers. Held (1): The respondent is to pay to the applicant outstanding
salary for the period February 2014 to June 2017. (2): The respondent to pay
the applicant’s costs.
JUDGMENT
MOSHOANA, J
2
Introduction
[1] This is an application brought in terms of section 77 (3) of the Basic
Conditions of Employment Act
1 (BCEA). After being reinstated as per an
arbitration award, the respondent failed to pay to the applicant outstanding
salary for the period when the applicant was reinstated but not paid any
outstanding remuneration. This Court understands why the applicant chose
motion proceedings. No dispute of fact was anticipated because Elvis
Ramotsonga (Ramotsonga) was ultimately reinstated, as ordered, which
reinstatement spelled revival of his contract of employment. By being
reinstated, Ramotsonga acquired a contractual claim for arrear wages.
[2] Prior to hearing this application, the parties led by the respondent, suggested
that since there is a dispute of fact, the matter should be removed from the
motion roll and be referred to the trial roll for the purposes of hearing viva
voce evidence on the aspect whether Ramotsonga tendered his services in
February 2014 or not. This Court indicated that there is no basis for the
application to be referred to oral evidence. Having indicated that, it afforded
parties an opportunity to explore settlement. They failed to settle and the
matter was argued. On the papers, the only relevant dispute was whether
Ramotsonga was entitled to the arrear wages or not. In the Court’s view,
owing to a common cause fact that Ramotsonga was reinstated as ordered by
July 2017, the question of entitlement to arrear wages became a question of
law rather than fact. This Court may point out at this stage that as a general
principle, the Court has a discretion to decide whether to refer motion
proceedings to oral evidence where there is a dispute of fact that requires
resolution
2. Where a Court is not faced with a real and genuine dispute 3 of
fact, as it is the case in this matter, a Court should, in the exercise of its
1 No. 75 of 1997.
2 See Minister of Environmental Affairs and Tourism and Another v Scenematic Fourteen (Pty) Ltd
2005 (6) SA 182 (SCA) and Johnson Workwear (Pty) Ltd v Williamson and Another (2014) 35 ILJ 712
(LC)
3 See Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T).
3
discretion, refuse such an application, even when such an application is made
before a Court hears the merits of the application. A genuine dispute of fact
exists where there is a disagreement between opposing parties on facts
legally relevant to a claim. The alleged dispute of fact, as it shall be
demonstrated later in this judgment, is not relevant to the claim. It is
nevertheless not irresoluble on the papers before Court.
Background facts
[3] The respondent employed Ramotsonga since 1 September 2009 as a driver .
He earned an amount of R8654.04 per month. Around 7 October 2013, he
was informed by his supervisor that he has been suspended and should leave
the premises of the employer . Further, that he will be informed of the
disciplinary action to be taken against him. Aggrieved thereby, Ramotsonga
referred a dispute alleging an unfair labour practice to the bargaining council.
Conciliation failed to resolve the dispute. Ramotsonga requested resolution by
arbitration. The respondent failed to appear at the arbitration proceedings.
[4] The dispute was arbitrated in the absence of the Respondent. On 23 January
2014, Arbitrator Gerald Jacobs (Jacobs) rendered a default arbitration award.
Amongst others, Jacobs ordered the respondent to reinstate the terms and
conditions of Ramotsonga’s employment and to pay him remuneration with
retrospective effect from 7 October 2013. Further, he ordered Ramotsonga to
tender his services to the respondent on 3 February 2014. On 4 April 2014,
the default arbitration award was certified in terms of section 143 of the
Labour Relations Act
4 (LRA).
[5] In the papers before me, Ramotsonga alleged that as of February 2014, the
respondent refused or failed to comply with the arbitration award. He was only
reinstated in July 2017. In June 2017, the respondent unsuccessfully
attempted to rescind the arbitration award. In response to the papers before
me, the respondent admitted that it only complied with the award – by
me, the respondent admitted that it only complied with the award – by
4 No. 66 of 1995, as amended.
4
reinstating – Ramotsonga in July 2017 only. The respondent contended that
in February 2014, Ramotsonga failed to tender his services as ordered by the
arbitrator but only tendered services on 18 May 2017 and his tender was
accepted in July 2017 when he was physically taken into servi ce. In retort,
Ramotsonga testified that on 3 and 4 February 2014, he tendered his services
and one Van Rooyen refused to accept his tender. Since this assertion was
made in reply, the respondent could not with the leave of Court file a further
affidavit in response. Such leave was not sought nevertheless.
Evaluation
[6] This is a contractual claim. The only issue is whether Ramotsonga is entitled
to the arrear wages. There is no dispute that the reinstatement ordered by
Jacobs was with retrospective effect. Ordinarily, a reinstatement with
retrospective effect ought to take effect once so ordered. In casu , Jacobs
ordered Ramotsonga to tender his services on a specific date. However, there
was nothing that will have prevented Ramotsonga to demand or tender his
services after the order of retrospective reinstatement. By law, reinstatement
simply means that the status quo remains
5. Thus, the order of reinstatement
meant that Ramotsonga should be treated as if he was never terminated.
[7] The respondent made a meal about the dispute over whether Ramotsonga
tendered services on 3 February 2014 or not. It is not the respondent’s case
that as a result, Ramotsonga lost or waived his reinstatement order. If that
was its case, it should not have taken him back into employment in July 2017
after it failed to overturn the reinstatement order. By reinstating Ramotsonga,
the respondent revived the employment contract. Above all, it acquiesced to
the reinstatement order of Jacobs. It matters not whether Ramotsonga failed
to tender in February 2014. Of importance, for a contractual claim for arrear
wages is the physical reinstatement , which has as a legal effect the revival of
wages is the physical reinstatement , which has as a legal effect the revival of
the employment contract. Once revived, an employee enjoys a contractual
5 See: Equity Aviation Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and
Others [2008] 12 BLLR 1129 (CC).
5
claim. Effectively, a claim for arrear wages, is one for specific performance.
One of the known defences where a contractant claims contractual
performance is exceptio non adempleti contractus . It is available in reciprocal
contracts, an employment contract is one. Such a defence has not been
appropriately pleaded in this matter. The respondent was obliged to properly
plead such a defence
6. On the respondent’s own version, Ramotsonga
tendered his services in May 2017. The question is , if the respondent was not
aimed at dislodging the reinstatement order of Ramotsonga, it should have
accepted his tender then and not proceed to seek a rescission. The
probabilities are that , as alleged by Ramotsonga, the respondent failed and
refused to comply in February 2014. Absent waiver, this Court cannot accept
the respondent’s case that in February 2014, Ramotsonga failed to tender his
services. Question is , why would Ramotsonga fail t o tender his services in
February 2014 and choose to do so in May 2017 ? The conclusion this Court
must reach is that Ramotsonga indeed tendered his service in February 2014
and his tender was not accept ed. Before me Mr De Villiers for the respondent
submitted that the respondent was under an impression that the award was
only compensatory in nature and did not carry a reinstatement order. That
submission inadvertently provides an answer to why in February 2014 and
May 2017 Ramotsonga was not taken back. In our law, where a party does
not accept the tender, an obligation to still pay wages even if services are not
provided remains. In Myers v SA Railways and Harbours
7 Solomon JA aptly
stated the law to be as follows:
“If however, it was due to his employer that he had been unable to perform
his work, then he would be entitled to be paid notwithstanding that no service
had been rendered by him”.8
6 See Telcordia Technologies Inc v Telkom SA Ltd 2007 3 SA 266 (SCA) at 163.
7 1924 AD 85.
6 See Telcordia Technologies Inc v Telkom SA Ltd 2007 3 SA 266 (SCA) at 163.
7 1924 AD 85.
8 Myers at 90. See also Singh v SA Rail Commuter Corporation t/a Metrorail (J812/07) [2007] ZALC
31 (26 April 2007).
6
[8] The Labour Appeal Court (LAC) in Kubeka and Others v Ni -Da Transport
(Pty) Ltd9 made it abundantly clear and said:
“[41] …These employees were in effect reinstated by the respondent at
different dates of their re-employment/reinstatement and remained
employed in November 2018 when the reinstatement order became
enforceable. It may be assumed that they tendered their prospective
services which tender was accepted by the respondent. They
accordingly have a contractual right to back pay enforceable in terms
of section 77 (3) of the BCEA. Their claim for back pay is limited to the
period from their dismissal up until date of re -employment because
after their date of re- employment, they were employed by the
respondent and received their salaries…”
[9] Therefore, based on Kubeka, once an employee is reinstated, the contractual
right to back pay accrues to that employee. In casu , there is no dispute that
Ramotsonga was reinstated. As such, his contractual right to back pay
accrued to him from July 2017. Recently, the LAC in Fidelity Fund Security
Services v Ngqola10 confirmed that legal position and concluded thus:
“[19] In the circumstances, I conclude that the respondent was indeed
reinstated and her contract of employment ensued until she resigned
on 16 February 2016. Consequently, the Labour Court cannot be
faulted when it calculated her arrear salary to the date on which she
resigned.”
[10] Accordingly, since Ramotsonga was reinstated, he is entitled to his
contractual back pay. The fact that he may have failed to tender his services
at some point is of no consequences given his reinstatement. The argument
by Mr De Villiers that in Kubeka the LAC held that once a tender is not made,
a back pay claim does not accrue, amounts to a partial reading of the ratio
decidendi of the judgment. It is indeed the current law that what earns an
employee a contractual right is not the tender per se but the physical
9 (2021) 42 ILJ 499 (LAC) at para 41.
9 (2021) 42 ILJ 499 (LAC) at para 41.
10 (JA 61/21) [2022] ZALAC 87 (7 April 2022)
7
reinstatement – acceptance of the tender. In casu , the tender made on 18
May 2017 on the respondent’s own version was only accepted in July 2017.
Had the respondent not accepted the tender, the contractual right would not
have accrued11.
[11] Regarding costs, this is a civil claim and costs follow the results.
[12] In the results the following order is made:
Order
1. The respondent (GVR Vervoer B.K t/a Trio Vervoer) is ordered to pay
to Ramotsonga an amount of R354 815.64 together with interest at a
prescribed rate.
2. The respondent must pay the costs of the applicant.
_______________________
G. N. Moshoana
Judge of the Labour Court of South Africa.
11 See para 39 of Kubeka (Id fn 4).
8
Appearances:
For the Applicants: Ms N Masondo of Mafenya Attorneys, Johannesburg.
For the Respondent: Mr M De Villers of De Villers & Du Plessis Attorneys,
Silverton.