SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No: 2026-046067
In the matter between:
ETIENNE JORDAAN Applicant
and
RCL FOODS CONSUMER (PTY) LTD Respondent
Heard: 5 March 2026
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 judgment is deemed to be 10h00 on 13
March 2026.
______________________________________________________________________
JUDGMENT
2
DE KOCK, AJ
Introduction
[1] In this application, the Applicant seeks an order placing the judgment of Bosch
AJ, delivered on 29 September 2025 under case number 2025- 048772 (the
review judgment), into operation and execution notwithstanding the
Respondent’s pending Petition for Leave to Appeal to the Labour Appeal Court,
filed on 26 February 2026. The application is brought in terms of section 18(3) of
the Superior Courts Act 10 of 2013 (the Act).
1
[2] The Respondent is RCL Foods Consumer (Pty) Ltd (formerly Rainbow Farms
(Pty) Ltd), a company listed on the Johannesburg Stock Exchange. It opposes
the application.
[3] Reduced to its most elemental form, this application concerns whether the rule of
law permits a successful litigant, brought to the verge of financial ruin by thirteen
years of sustained litigation, to execute on a judgment that has survived
successive rounds of review and opposition, while awaiting the outcome of what
amounts to a fourth challenge by a wealthy corporate adversary. The answer to
that question is found in the proper application of section 18(3) of the Act.
[4] For the reasons that follow, the application succeeds.
Background
[5] The facts underlying this dispute are extensive and are set out fully in the papers.
For present purposes, the following salient chronology suffices.
1 Act 10 of 2013. Section 18(1) provides: “Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and execution of a decision which is the
subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the
application or appeal.”
3
[6] The Applicant was employed as a Maintenance Fitter at the Respondent’s (then
Rainbow Farms’) processing plant in Worcester. On 7 January 2013, he was
dismissed for dishonesty arising from alleged clocking offences.
[7] On 17 June 2013, a CCMA commissioner found the dismissal to be unfair and
ordered reinstatement with effect from the date of dismissal, together with
backpay calculated at the Applicant’s salary of R20,012.54 per month, amounting
to R120,075.24.
[8] The Applicant reported for duty on 8 July 2013. He was sent home. The
Respondent launched a review application in the Labour Court, Durban (case
C667/16), and obtained a stay of the writ of execution.
[9] On 5 December 2018, the Labour Court (Steenkamp J) dismissed the review
application. The Respondent applied for leave to appeal. That application was
subsequently abandoned. The Respondent then launched a declaratory
application seeking to set off against the outstanding backpay the approximate
sum of R2.96 million which the Applicant had earned in alternative employment
during the period of the Respondent’s non- compliance with the reinstatement
order.
[10] On 1 April 2020, more than seven years after the Applicant was first ordered to
be reinstated, the parties reached an agreement and the Applicant was
reinstated. The parties simultaneously agreed to refer the quantification of the
backpay entitlement for the period 7 January 2013 to 31 March 2020 to private
arbitration before Adv Watt -Pringle SC. The issues included the deduction of
outside earnings, the applicability of the in duplum rule, and whether the
reinstatement entitlement was limited to basic salary or extended to overtime,
nightshift and standby allowances.
[11] On 12 August 2023, the Applicant was suspended. On 18 December 2023, he
was dismissed for a second time, charged with gross misconduct arising from
alleged falsification of T -cards in relation to safety valve maintenance during
4
2023. The Applicant did not challenge the second dismissal. He subsequently
relocated to Ireland, where he presently resides.
[12] Arbitrator Watt- Pringle SC issued two awards in the Applicant’s favour on 29
March and 14 May 2024 respectively. The Respondent reviewed those awards.
By consent, the Watt -Pringle awards were remitted and a new arbitration was
held before Arbitrator Buirski from 1 September to 8 October 2024.
[13] On 27 February 2025, Arbitrator Buirski issued an award ordering the
Respondent to pay the Applicant R3,190,807.73 together with interest and costs.
On 31 March 2025, Buirski issued an explanatory and interpretive note, clarifying
that the original CCMA award’s calculation of backpay on basic salary did not
constrain the scope of the reinstatement entitlement as regards the overtime,
nightshift and standby allowances payable over the seven- year reinstatement
period.
[14] On 8 April 2025, the Respondent launched a review application in this Court
(case 2025-048772) seeking to set aside the Buirski awards. On 29 September
2025, Bosch AJ dismissed the review. The Respondent applied for leave to
appeal. On 6 February 2026, Bosch AJ refused leave to appeal, with no order as
to costs.
[15] On 13 February 2026, the Applicant’s attorney instructed the Sheriff to proceed
with a sale of execution against the Respondent’s immovable property. The
Respondent’s attorneys immediately wrote requesting an undertaking to halt
execution and warning that a section 18(3) application would be brought in the
event that execution proceeded. The Applicant’s attorney responded on 16
February 2026 confirming, correctly, that the judgment was automatically
suspended by operation of section 18(1) of the Act once the Petition was filed.
[16] On 26 February 2026, the Respondent filed its Petition for Leave to Appeal to the
Labour Appeal Court (LAC), thereby triggering the automatic suspension under
section 18(1) of the Act. The present application was launched promptly
5
thereafter, with the notice of motion served on 27 February 2026 and the matter
set down for hearing on 5 March 2026.
[17] By the time of the hearing on 5 March 2026, the Applicant had, on his
uncontradicted evidence, incurred approximately R2.5 million in legal related
costs, exhausted his pension fund, sold his vehicle, and had his wife surrender
her insurance policy. His Worcester property , ERF 1 […] Worcester (Breede
Valley Municipality), registered jointly in his name and that of his wife, Mrs
Hermie Jordaan, carries a Standard Bank bond (B […] ) with an outstanding
balance of R461,529.62. The judgment in his favour amounts to R3,190,807.73
plus interest.
[18] The central substantive question in the pending Petition is whether Arbitrator
Buirski was correct that the reinstatement order entitled the Applicant to
overtime, nightshift and standby allowances for the period January 2013 to
March 2020, notwithstanding that the original CCMA award calculated backpay
on what is alleged to be basic salary only.
[19] Following oral argument on 5 March 2026, the Court directed the Applicant’s
attorneys to obtain instructions as to whether a formal undertaking could be given
in relation to the Worcester property as a form of security pending the Petition.
The Applicant’s attorneys confirmed the undertaking by letter on 5 March 2026;
the Respondent’s attorneys responded on 6 March 2026; and the Applicant’s
attorneys replied on 8 March 2026. The treatment of that correspondence is
addressed below.
The In Limine Point
[20] The Respondent raised a preliminary point to the effect that the application is
fatally defective because the Applicant’s confirmatory affidavit was not
commissioned before a notary public or a South African diplomatic or consular
representative in Ireland, as required by Rule 63 of the Uniform Rules of Court,
read with the Hague Convention on the Abolition of the Requirement of
6
Legalisation for Foreign Public Documents. No Apostille Certificate is attached to
the confirmatory affidavit. The Respondent submits that the application is
therefore hearsay and that the Applicant’s attorney acts without authority.
2
[21] The Respondent’s point is not without technical foundation. Rule 63 compliance
is a formal requirement that exists to provide an evidentiary guarantee that an
affidavit was sworn under appropriate solemnities by the deponent identified in it.
[22] The Court has a discretion to condone non- compliance with procedural
requirements where the interests of justice so require and no genuine prejudice
results.
3
[23] Several considerations weigh heavily against upholding the in limine point in the
present matter:
23.1 The authority of Teresa Erasmus Attorneys to act on behalf of the
Applicant is not genuinely in dispute. They have represented the Applicant
throughout multiple rounds of proceedings in this Court, through two
private arbitrations, and before the CCMA over a period of years. The
suggestion that the Applicant’s instruction to his long-standing attorneys is
somehow unverified is wholly unpersuasive.
23.2 The Respondent has not alleged, and could not credibly allege, that the
confirmatory affidavit was sworn by anyone other than the Applicant or
that its contents are untrue. In the absence of such an allegation, there is
no genuine dispute about the authenticity of the document.
23.3 The Respondent’s answering affidavit, at paragraph 63, asserts that there
is “no prejudice to Jordaan in waiting another few months.” This posture is
entirely inconsistent with a genuine concern about the solemnities with
which the Applicant’s affidavit was commissioned. A respondent that
2 Rule 63 of the Uniform Rules of Court, as incorporated by Rule 11(2) of the Rules of the Labour Court,
2024.
3 Act 66 of 1995, section 158(1)(a)(ii).
7
contends there is no urgency because no harm will flow from further delay
cannot simultaneously claim that the affidavit irregularity is fatal to the
proceedings.
23.4 Upholding the point would allow the Respondent to avoid a hearing of the
merits of this application on a technical procedural ground arising from the
Applicant’s geographical circumstances , circumstances which are
themselves, in part, a consequence of the Respondent’s own conduct.
23.5 In any event, Rule 63(4) expressly empowers a court to accept a
document as sufficiently authenticated where it is satisfied that the
document was in fact signed by the person purporting to have signed it.
The Respondent does not allege that the confirmatory affidavit was not
signed by the Applicant, nor that its contents are untrue, nor that the
Applicant’s long- standing attorneys lack actual authority. In these
circumstances, the objection is purely technical, causes no prejudice, and
falls squarely within the Court’s discretion to condone.
23.6 The Applicant, in any event, uploaded and presented to this Court on 5
March 2026 with a proper confirmatory affidavit, which this Court accepts.
[24] The in limine point is dismissed. The non- compliance with Rule 63 is condoned
insofar as this may be required despite the filing of a further properly
commissioned confirmatory affidavit. The application is properly before this
Court.
Urgency
[25] The Respondent challenges the urgency of the application. It invokes the
established proposition that financial hardship, standing alone, does not
constitute sufficient grounds for urgency, and that a party that creates its own
urgency by delaying proceedings cannot rely on self -created urgency. It relies on
8
Jonker v Wireless Payments Systems CC4 (Jonker) and Hultzer v Standard Bank
of South Africa (Pty) Ltd5 (Hultzer) in support.
[26] These propositions, while correct as statements of general principle, do not
assist the Respondent on the facts of this case. The urgency here was not
created by any delay or mismanagement on the Applicant’s part.
[27] The Applicant instructed the Sheriff to proceed with execution as early as 13
February 2026. It was the Respondent’s own act of filing the Petition on 26
February 2026 that triggered the automatic suspension under section 18(1) and
thereby created the need for this application. The Applicant moved promptly: the
notice of motion was served on 27 February 2026, the day after the Petition was
filed. This is the opposite of self -created urgency. The Respondent’s reliance on
authority holding that financial hardship alone does not establish urgency is
misplaced: the urgency here flows from the procedural consequences of the
Respondent’s own step, not from the Applicant’s financial position.
[28] The financial position of the Applicant is further genuinely deteriorating. Further
delay without court intervention pending the outcome of a LAC petition, or any
subsequent appeal proceedings, would, on the evidence, leave the Applicant
unable to protect his rights at all. The Applicant cannot be afforded substantial
redress at a hearing in due course: by the time the Petition is finalised, or any
further subsequent appeal or petition to the Constitutional Court, his financial
position may have deteriorated beyond the point of recovery. Urgency is
established.
The Legal Framework: Section 18 of the Superior Courts Act
[29] Section 18(1) of the Act provides that the operation and execution of a decision
which is the subject of an application for leave to appeal or of an appeal is
suspended pending the decision of that application or appeal, unless the court
4 [2009] ZALC 150; (2010) 31 ILJ 381 (LC).
4 [2009] ZALC 150; (2010) 31 ILJ 381 (LC).
5 [1999] ZALC 46; [1999] 8 BLLR 809 (LC); (1999) 20 ILJ 1806 (LC).
9
under exceptional circumstances orders otherwise. The automatic suspension is
the statutory default: it operates by force of law upon the filing of the application
for leave to appeal and requires no court order.
[30] Section 18(3) creates a mechanism for departing from this default. The provision
requires the applicant for execution to prove, on a balance of probabilities: (i) that
it will suffer irreparable harm if the judgment is not placed in operation; and (ii)
that the other party will not suffer irreparable harm if the judgment is placed in
operation.
6
[31] The phrase “exceptional circumstances” as a threshold requirement flows from
section 18(1) itself. The Supreme Court of Appeal in Ntlemeza v Helen Suzman
Foundation and Another
7 (Ntlemeza) read section 18(1) and section 18(3)
together and confirmed that the applicant for execution must additionally
demonstrate exceptional circumstances justifying departure from the statutory
default.
[32] The three requirements , i.e., exceptional circumstances, irreparable harm to the
applicant for execution, and absence of irreparable harm to the opposing party ,
are cumulative. They are not to be treated as factors in a balancing exercise in
which strength in one may compensate for weakness in another. Failure to
establish any single requirement is fatal to the application.
[33] The threshold is deliberately high. The Supreme Court of Appeal in University of
the Free State v Afriforum and Another
8 (Afriforum) described what is sought
under section 18(3) as “an extraordinary deviation from the norm, which, in turn,
requires the existence of truly exceptional circumstances to justify the deviation.”
The onus rests squarely on the applicant for execution.
6 Section 18(3) provides: “A court may only order otherwise as contemplated in subsection (1) or (2), if
the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that
he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer
irreparable harm if the court so orders.”
7 [2017] ZASCA 93; [2017] 3 All SA 589 (SCA); 2017 (5) SA 402 (SCA).
8 [2016] ZASCA 165; [2017] 1 All SA 79 (SCA); 2018 (3) SA 428 (SCA) at para 13.
10
[34] In Incubeta Holdings and Another v Ellis and Another 9 (Incubeta), the Court
identified several factors relevant to the exceptional circumstances inquiry,
including the conduct of the litigant; the consequences of suspension; the nature
of the underlying right; the financial position of each party; the prospects of
success on the appeal; the potential for exploitation of the appeal process; and
the constitutional dimensions of the right in issue. These factors are not a closed
list and are not to be applied mechanically. They are aids in assessing whether
the overall constellation of circumstances is truly exceptional.
[35] As regards prospects of success on appeal: this is not a separate express
requirement of section 18(3). However, it is relevant to the assessment of
exceptional circumstances. A petition that merely repeats arguments already fully
considered and rejected at every level is less deserving of the protection of the
automatic suspension than a bona fide appeal raising a genuinely novel or
untested question of law.
[36] In Road Traffic Management Corporation v Tasima (Pty) Limited; Tasima (Pty)
Limited v Road Traffic Management Corporation
10 (Tasima), the Labour Appeal
Court recognised that the section 18(3) threshold in the employment context is
informed by the constitutional dimension of work and the particular quality of
harm suffered by a person deprived of the benefit of a favourable judgment
concerning employment rights.
[37] In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
11 (Equity Aviation), the Constitutional Court confirmed
that a reinstatement order is intended to place the employee in the position he or
she would have occupied had the dismissal not occurred. The remedy gives
direct effect to the right to fair labour practices enshrined in section 23(1) of the
9 [2013] ZAGPJHC 274; 2014 (3) SA 189 (GSJ).
10 [2019] ZALAC 33; (2019) 40 ILJ 1785 (LAC).
9 [2013] ZAGPJHC 274; 2014 (3) SA 189 (GSJ).
10 [2019] ZALAC 33; (2019) 40 ILJ 1785 (LAC).
11 [2008] ZACC 16; (2008) 12 BLLR 1129 (CC); 2009 (1) SA 390 (CC); (2008) 29 ILJ 2507 (CC); 2009 (2)
BCLR 111 (CC). See also section 23(1) of the Constitution, which guarantees every person the right to
fair labour practices; the reinstatement remedy gives direct effect to this right.
11
Constitution. It cannot be fully vindicated by the subsequent payment of money
alone: the deprivation of the benefit of the order during the suspension period is
itself a constitutional harm.
[38] Against that legal backdrop, this Court turn s to the application of section 18(3) to
the facts of this case.
Exceptional Circumstances
[39] The question is whether the circumstances of this case are “truly exceptional” in
the sense contemplated by the Act and the authorities. This requires an
assessment of the totality of the circumstances rather than a focus on any single
element.
[40] The Respondent argues that financial hardship does not constitute exceptional
circumstances, and that a party in financial difficulty pending an appeal routinely
encounters such a position. It relies on Jonker and Hultzer in support of the
proposition that financial necessity, standing alone, is insufficient.
[41] These propositions are correct as statements of general principle. However, they
fundamentally mischaracterise the Applicant’s case. The Applicant is not a party
who has experienced financial hardship while awaiting the outcome of a first
appeal by a party that has previously succeeded. The Applicant’s case is
categorically different, and the difference lies in the conduct of the Respondent
itself over a period of thirteen years.
[42] The Respondent’s conduct at each stage of these proceedings is material. A
summary follows:
42.1 In June 2013, the CCMA ordered reinstatement with backpay. The
Respondent refused to reinstate and launched a review application.
42.2 That review was dismissed in December 2018, five years later. The
Respondent applied for leave to appeal and then abandoned that
application. It then launched a declaratory application.
12
42.3 Reinstatement was eventually agreed in April 2020, seven years after the
original order.
42.4 Private arbitration proceeded before Watt -Pringle SC, who issued two
awards in the Applicant’s favour. The Respondent reviewed those awards.
42.5 By consent, the Watt -Pringle awards were remitted. Arbitration before
Buirski followed, who also found in the Applicant’s favour. The
Respondent reviewed those awards.
42.6 Bosch AJ dismissed the review on 29 September 2025. The Respondent
sought leave to appeal.
42.7 Bosch AJ refused leave to appeal on 6 February 2026. The Respondent
filed a Petition to the LAC.
42.8 When viewed cumulatively, the Respondent’s conduct over thirteen years,
including its refusal to reinstate the Applicant for seven years after a
binding CCMA award, its serial and consistently unsuccessful challenges
before every forum, its belated raising of new points not pleaded or argued
at the appropriate stages, and its pattern of procedural opportunism ,
constitutes a constellation of circumstances that is, by any measure, truly
exceptional. The statutory default of suspension cannot be used as a
shield by a litigant whose own conduct has created the very conditions
that now threaten to extinguish the successful party’s rights.
[43] Every single adjudicative process in which this dispute has been determined has
produced a finding adverse to the Respondent. The Respondent has not
succeeded at any level, before any decision- maker, at any stage of the thirteen-
year history of this matter. The Respondent’s own answering affidavit confirms
the extraordinary nature of the delay, even as it denies responsibility for it.
[44] The Respondent’s answering affidavit, at paragraph 63, asserts that there is “no
prejudice to Jordaan in waiting another few months.” This submission is not only
13
factually incorrect as the evidence of the Applicant’s financial collapse
demonstrates; it is also inconsistent with the Respondent’s simultaneous reliance
on the Applicant’s peregrinus status and alleged inability to make repayment , a
contradiction that the Respondent’s papers do not attempt to resolve.
[45] The cumulative effect of the Respondent’s conduct is that what began as a
straightforward reinstatement order for a maintenance fitter earning
approximately R20,000 per month has become a thirteen- year legal odyssey
resulting in an award of R3,190,807.73 and legal related costs to the Applicant of
approximately R2.5 million. The financial ruin that the Applicant faces is not the
product of his own mismanagement or improvidence. It is the direct and
foreseeable consequence of the Respondent’s conduct in purs uing every
available procedural avenue.
[46] A party that, through its own sustained non- compliance with court orders and
persistent exploitation of available legal mechanisms, reduces its opponent to
financial ruin cannot then invoke the protection of the automatic suspension as
though the resulting predicament is merely incidental. That is not the purpose of
the automatic suspension. The suspension exists to protect the integrity of the
appeal process and to preserve the rights of a litigant who has an arguable case
on appeal. It is not designed to provide a corporate respondent with a further
instrument of delay against an individual whom it has already spent thirteen
years delaying.
[47] This Court is mindful that this finding does not depend on a finding of bad faith in
each of the Respondent’s individual legal challenges. The point is structural and
cumulative: when the aggregate effect of successive challenges by a wealthy
corporate respondent is to reduce the successful individual litigant to financial
ruin, the circumstances of that predicament are, by any measure, truly
exceptional. The Respondent’s conduct approaches the borderline of an abuse
exceptional. The Respondent’s conduct approaches the borderline of an abuse
of process, albeit I make no formal finding to that effect.
14
[48] The circumstances are further rendered exceptional by the nature of the
underlying right. This is not a commercial dispute between two business entities
of comparable resources. The Applicant is a former employee who was
unlawfully denied reinstatement for seven years and who is now entitled,
following two sets of awards that survived two rounds of review, to payment of
the economic value of that reinstatement. The harm he faces encompasses not
only financial loss but the comprehensive frustration of his constitutional right not
to have been unfairly dismissed and his right of access to courts and speedy
dispute resolution.
[49] As regards prospects of success on the Petition, the following observations are
made. The “basic salary only” argument now advanced in the Petition was not
pleaded as a ground of review. It did not form part of the arbitration mandate
agreed between the parties. It was raised for the first time in supplementary
heads of argument before Arbitrator Buirski after the close of evidence. It does
not form part of the review grounds in this Court. A point raised for the first time
in supplementary argument, not pleaded, not part of the arbitration mandate, and
not forming part of the review grounds, cannot constitute a reasonable prospect
of success on appeal. The Petition merely repeats arguments already considered
and rejected by two arbitrators and by this Court in two separate rulings. Bosch
AJ refused leave to appeal ; the judge who heard the review and had the full
benefit of the parties’ argument did not regard the matter as raising a reasonable
prospect of success. The prospects are, at best, slender.
[50] Exceptional circumstances are established. They are established not by any
single factor but by the convergence of: a thirteen- year pattern of sustained and
consistently unsuccessful litigation by a JSE-listed company against an individual
employee; the direct causal link between the Respondent’s own conduct and the
employee; the direct causal link between the Respondent’s own conduct and the
Applicant’s financial ruin; the constitutional dimension of the underlying right; the
weak and repetitive nature of the pending Petition; and the further delay that
continued suspension would impose.
15
[51] Exceptional circumstances arise where the cumulative effect of a litigant’s
conduct, the nature of the underlying right, and the consequences of continued
suspension combine to produce a situation fundamentally at odds with the
purpose of section 18(1). This is such a case.
Irreparable Harm: The Applicant
[52] The Applicant must prove on a balance of probabilities that he will suffer
irreparable harm if the judgment is not placed in operation. “Irreparable harm” for
this purpose does not require absolute inability to remedy the harm in any future
scenario; it means harm of such nature and degree that it cannot adequately be
remedied by the eventual outcome of the Petition, whether by subsequent
payment, restitution, or otherwise.
[53] The evidence on this point is largely unchallenged. The Applicant has, by the
time of this hearing, incurred approximately R2.5 million in legal related costs.
His pension fund has been exhausted. He has sold his vehicle. His wife’s
insurance policy has been surrendered. He resides in Ireland, to which he
relocated following his second dismissal in December 2023. His Worcester
property carries an outstanding mortgage bond of R461,529.62.
[54] The Respondent’s answering affidavit does not meaningfully engage with this
evidence. At paragraph 63, it submits that “there is no prejudice to Jordaan in
waiting another few months.” This submission is factually unsound and
disregards the cumulative harm caused by thirteen years of delay.
[55] The Applicant’s evidence of financial collapse is uncontradicted. Interest accruing
on the judgment amount does not compensate for insolvency, for the erosion of
the Applicant’s ability to manage his affairs in South Africa, for his inability to fund
litigation, or for the loss of the constitutional benefit of reinstatement. The
Respondent pays interest on the judgment amount regardless of whether the
judgment is executed now or in two years’ time. But interest does not
judgment is executed now or in two years’ time. But interest does not
compensate for the Applicant’s exhausted pension, for the depletion of his wife’s
16
policy, for his forced relocation to Ireland, or for the real risk that further delay will
result in his insolvency and the permanent loss of the very right he has spent
thirteen years pursuing. In this respect, the reasoning of the Constitutional Court
in Equity Aviation is directly applicable: the reinstatement remedy gives effect to
the right to fair labour practices entrenched in section 23(1) of the Constitution,
and its deprivation during a prolonged suspension is itself a constitutional harm
that cannot be remedied by money alone.
[56] The Respondent’s reliance on the Applicant’s peregrinus status as a reason to
deny execution is addressed in the following section. For present purposes, it is
noted that the peregrinus concern does not bear on the question of whether the
Applicant will suffer irreparable harm from continued suspension; it bears on
whether the Respondent will suffer irreparable harm from execution. Those are
separate enquiries.
[57] I am satisfied that the Applicant will suffer irreparable harm if the judgment is not
placed in operation.
Irreparable Harm: The Respondent and the Peregrinus Point
[58] The third requirement presents the most analytically demanding issue in this
application. The Applicant must prove on a balance of probabilities that the
Respondent will not suffer irreparable harm if the judgment is placed in operation.
The Respondent submits that it will suffer such harm, primarily because the
Applicant is a peregrinus and recovery of any overpayment , if the Petition
ultimately succeeds, would be extremely difficult.
[59] The peregrinus concern is a legally recognised one and is not to be dismissed. A
person resident outside the Republic against whom a South African judgment is
not easily enforceable in the foreign country of residence, and who has no readily
attachable assets in the Republic, presents a genuine risk of non- recovery in the
event that payment is subsequently shown to have been made in error.
17
[60] However, the peregrinus concern does not operate in a vacuum and does not
automatically entail irreparable harm within the meaning of section 18(3). The
following considerations are material.
60.1 The Respondent is a JSE -listed company with substantial financial
resources. The risk it faces from execution, namely, the possibility of
having to absorb the financial consequences if the R3,190,807.73 is paid
and the Petition subsequently succeeds , is, for an entity of this size and
character, a bounded commercial risk and not an existential one. A JSE -
listed company that may face the commercial inconvenience of having to
pursue a restitution claim, or of having temporarily paid a sum which it
recovers with interest, has not suffered irreparable harm in this sense.
60.2 The Applicant retains immovable property in the Republic in the form of
ERF 1[…] Worcester (Breede Valley Municipality), registered in the joint
names of himself and his wife, Mrs Hermie Jordaan. The post -hearing
correspondence confirmed that both the Applicant and Mrs Jordaan
formally undertake not to alienate the property nor to register any further
mortgage bonds over it pending the finalisation of the Petition or any
subsequent appeal. That undertaking, incorporated in the order of this
Court, operates as a judicially enforceable restraint on disposition of the
Applicant’s primary South African asset.
60.3 The documentary evidence relating to the property’s value, including the
annexures placed before the Court in the founding affidavit, was not
disputed in the Respondent’s answering affidavit. The Respondent did not
allege the existence of competing creditors in its answering affidavit. The
Respondent’s assertion that the value of the property is “unknown” is
contradicted by the documentary evidence placed before the Court, which
the Respondent did not dispute.
60.4 The Respondent’s own papers do not dispute the existence, value, or
60.4 The Respondent’s own papers do not dispute the existence, value, or
attachability of the Worcester property, nor do they allege that execution
18
against it would be insufficient to meet a restitution claim should the
Petition succeed.
60.5 The Respondent’s invocation of its potential recovery difficulties must be
assessed in light of the fact that it was the Respondent itself, through its
own persistent litigation over thirteen years, that reduced the Applicant to
the financial position that now makes him a peregrinus with limited South
African assets. The Respondent cannot create the conditions that result in
the Applicant’s impoverishment and then invoke the product of those very
conditions as a reason to deny execution.
[61] The question under section 18(3) is not whether the Respondent faces any risk
from execution; it is whether the Respondent will suffer irreparable harm. On the
facts of this case, a JSE -listed company paying a judgment debt of
R3,190,807.73 plus interests to an individual, with the benefit of a court -
incorporated undertaking restricting the disposal of that individual’s South African
immovable property, does not suffer irreparable harm. The risk of non-recovery, if
the Petition were to succeed, is a commerc ial risk of a kind that the Respondent ,
by reason of its own conduct in prolonging this litigation, has in large measure
created for itself.
The Post-Hearing Correspondence
[62] The practice of continuing to address submissions to the presiding judge by
correspondence after argument has closed should, as a general rule, be avoided.
The Court considers the letters of 5, 6 and 8 March 2026 only because the issue
of the property undertaking was raised by the Court itself during argument. In
those circumstances it was appropriate for the Applicant’s attorneys to confirm
the undertaking and for both sides to briefly address its adequacy.
[63] The Respondent’s letter of 6 March 2026 raised, for the first time, concerns
regarding joint ownership of the property, alleged uncertainty about the property’s
value, and the possible existence of other creditors. These matters were not
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pleaded in the answering affidavit, were not raised in oral argument, and are
contradicted by the Applicant’s documentary evidence, which the Respondent did
not dispute. The Respondent cannot, at this stage, introduce new factual
disputes or objections not contained in its answering affidavit.
[64] The Applicant’s attorneys responded on 8 March 2026 confirming that both
registered owners of the property have given the undertaking, noting that the
Respondent had not disputed the property’s valuation or alleged competing
creditors in its answering affidavit, and correctly observing that new issues
cannot be raised for the first time in post-argument correspondence.
[65] The adequacy of the undertaking must be assessed on the evidence properly
before the Court. On that basis, the undertaking is sufficient. Both registered
owners are bound by it. Its incorporation in the order of this Court creates an
enforceable restraint on alienation and further encumbrance.
[66] The Respondent’s post-hearing correspondence does not alter the analysis. It
merely repeats assertions unsupported by evidence in the papers properly before
the Court. Its attempt to raise new issues after argument is noted but cannot be
entertained.
Proportionality
[67] Although section 18(3) does not expressly require a finding of proportionality, it is
appropriate to note that the relief granted is narrowly tailored. It preserves the
Respondent’s restitutionary interests through the court -incorporated undertaking
relating to the Worcester property, while preventing the extinguishing of the
Applicant’s rights through further delay. The balance of convenience
overwhelmingly favours execution: the Respondent faces a temporary and
bounded commercial risk, whereas the Applicant faces the permanent loss of the
very remedy he has pursued for thirteen years. The order demonstrates judicial
restraint: it grants execution but couples it with a judicially enforceable protection
for the Respondent.
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[68] This Court is satisfied that all three requirements of section 18(3) are satisfied.
The application succeeds.
Costs
[69] The Applicant seeks costs. The Respondent’s opposition was not, in all respects,
unreasonable. The peregrinus concern is a legitimate legal issue, and the
Respondent was entitled to raise and probe the adequacy of the property
undertaking. However, the overall posture adopted in the answering affidavit, and
in particular the assertion that the Applicant faces no prejudice from a further
“few months” of delay , reflects a degree of indifference to the human
consequences of this litigation that is difficult to reconcile with the obligation of
candour a litigant owes to the Court.
[70] In all the circumstances, in accordance with law and fairness, costs should follow
the result. There is no basis for a punitive order. The order will be on the party -
and-party scale.
Order
[71] The following order is made:
1. The judgment and order of Bosch AJ, delivered on 29 September 2025
under case number 2025- 048772 in the Labour Court of South Africa, is
placed in operation and execution notwithstanding the Respondent’s
pending Petition for Leave to Appeal to the Labour Appeal Court.
2. Pending the finalisation of the Respondent’s Petition for Leave to Appeal
or any subsequent appeal, the Applicant, Mr Etienne Jordaan, and his
wife, Mrs Hermie Jordaan, are ordered not to alienate ERF 1[ …]
Worcester (Breede Valley Municipality) and not to register any further
mortgage bond over the said property in addition to the existing bond
registered in favour of Standard Bank under reference number B […] . The
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said undertaking, already given by both registered owners in the
correspondence of 5 and 8 March 2026, is hereby incorporated in and
forms part of this order.
3. The Respondent is ordered to pay the costs of this application on the
party-and-party scale.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv AC Oosthuizen SC
Instructed by: Teresa Erasmus Attorneys
For the Respondent: Mr Elco Geldenhuys
Instructed by: MacGregor Erasmus Attorneys