THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: 2025-217783
In the matter between:
GHIEM MOSES AND 10 OTHERS Applicants
and
HEROTEL (PTY) LTD First Respondent
FRANCOIS WESSELS Second Respondent
Heard: 28 November 2025
Delivered: 20 January 2026
Summary: An urgent application to find the respondents in contempt of court
for refusing and/or failing to pay the backpay and benefits due to the
applicants following a reinstatement order and unsuccessful attempts to
appeal it. In the alternative, the applicants seek declaratory orders finding the
respondents liable for all backpay and benefits. The respondents require the
applicants to account for all income earned from alternative employment in the
intervening period.
JUDGMENT
GANDIDZE, J
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ 20/01/2026
Signature Date
2
Introduction
[1] On 6 February 2024, the eleven applicants successfully challenged their
dismissal by Herotel , the first respondent, and obtained from this court, per
Rabkin-Naicker J, a retrospective reinstatement order with effect from 1
November 2020. Herotel’s appeal to the Labour Appeal Court (LAC) was
dismissed, and the Constitutional Court (CC) refused leave to appeal on 27
October 2025. As the CC was the last stop, Herotel instructed the applicants
to report for duty on 3 November 2025, and they did. However, Herotel
refused to pay the applicants any arrear remuneration until they had
accounted for all income earned from alternative employment between 1
November 2020 and 2 November 2025. Nine of the eleven applicants
resigned on 4 November 2025.
[2] The applicants contend that Herotel and Francois Wessels (Wessels), the
second respondent, a director and the Chief Financial Officer of Herotel, are
in contempt of the Rabkin- Naicker J order, and seek an order directing the
respondents, within seven (7) days of this Court’s order, to calculate the
arrear remuneration and benefits owed to each applicant, and to pay them,
without deduction. Failing compliance, the applicants seek leave to approach
the Court on the same papers, duly supplemented, for the imposition of an
appropriate sanction.
[3] In the alternative, the applicants seek a declaratory order that they are entitled
to their full arrear remuneration and benefits (including increases, bonuses,
and other payments) for the period from 1 November 2020 to 2 November
2025, without any deduction or “accounting” for earnings from alternative
employment.
[4] The respondents oppose the application, arguing that the applicants must
account for all earnings from alternative employment. Once verified, the
respondents will deduct those earnings from the arrear remuneration owed.
Is the application defective, and is the matter urgent?
3
[5] The application was brought on an urgent basis, and the respondents
contested the urgency, arguing that the applicants’ claim is a money claim
that can be determined in due course. The applicants dispute this, submitting
that the relief sought is intended to enforce and vindicate an order of this
court, not merely to collect a debt, and is therefore urgent. They also advance
other reasons for urgency, which will be addressed below.
[6] The primary relief sought is that the respondents be held in contempt of c ourt
for failing to pay the applicants the arrear remuneration due to them following
the CC’s dismissal of the application for leave to appeal against Rabkin-
Naicker J’s judgment. Rule 58 of the Rules regulating the conduct of the
proceedings of the Labour Court, 2024 1, prescribes the procedure for
contempt of court applications. Such applications must be brought ex parte,
followed by an order directing the respondent to explain, on affidavit or on the
hearing date, why they should not be found guilty of contempt of court. In this
case, Rule 58 was not complied with, as the application was brought on notice
to the respondents, rather than ex parte, as required.
[7] The non- compliance with Rule 58 was raised in the respondents’ heads of
argument, not in its answering affidavit, which led to the filing of the
condonation application. The respondents did not oppose the condonation
but, in their heads of argument, submitted that Rule 58 was peremptory and
therefore the applicants’ application fell to be dismissed on that basis alone.
[8] In the condonation application, the legal representatives accepted full
responsibility for the non- compliance. They also tendered costs in respect of
the condonation application. It was submitted that the non- compliance did not
prejudice the respondents, as the rule nisi issued under Rule 58 warns a
respondent that they are at risk of being found in contempt of court and of a
respondent that they are at risk of being found in contempt of court and of a
sanction being imposed. In this case, the only order sought is that the
respondents are in contempt of court, and the sanction to be imposed is
reserved for later determination.
1 Government Notice 4775B of 2024.
4
[9] The Rules must be complied with, and an applicant who fails to comply risks
the application being struck from the roll or even dismissed for that reason.
However, dismissing this matter without considering the merits or striking it
from the roll would have been followed by a fresh application, this time ex
parte. T he court seized with that application would, in all likelihood, have
granted the rule nisi , setting a return date for the respondents to file an
answering affidavit and appear in court. Therefore, th e failure to bring the
application ex parte did not prejudice the respondents, who filed answering
papers, and the parties fully argued the matter on the hearing date.
[10] A further consideration is that, as an alternative to an order holding the
respondents in contempt of court, the applicants sought declaratory orders
confirming their entitlement to their arrears of remuneration . Rule 58 does not
apply to applications for declaratory relief.
[11] On the facts, the applicants’ failure to comply with Rule 58 in the contempt
proceedings is condoned. The competence of the contempt proceedings is
addressed later in the judgment.
[12] Returning to the urgency point, i n East Rock Trading 7 (Pty) Ltd v Eagle
Valley Granite (Pty) Ltd 2, the court stated that a party bringing an application
on an urgent basis must explain why the matter is urgent, why it cannot obtain
substantial redress in due course, and that the urgency must not be self -
created.
[13] With reference to Protea Holdings Ltd v Wriwt and Another
3, which was
followed in Victoria Park Ratepayers ’ Association v Grey venouw CC and
Others4, the applicants submitted that contempt applications are inherently
urgent given the public interest in the administration of justice and the
vindication of the Constitution. They also submitted that they would suffer
irreparable harm if the matter were not dealt with urgently, as the respondents
would drag it out , as they had done in the dismissal dispute. In further
would drag it out , as they had done in the dismissal dispute. In further
2 2011 JDR 1832 (GSJ).
3 1978 (3) SA 865 (W).
4 [2004] 3 All SA 623 (SE).
5
explaining the irreparable and ongoing harm, the court was informed of the
circumstances of two of the eleven applicants.
[14] The first is Jade Kruger (Kruger). She is one of the two applicants who were
still employed by Herotel when the application was launched. She was
pregnant when she was dismissed in 2020, and following her dismissal, her
family downgraded their accommodation to a two- bedroom flat. Her twelve-
year-old son had to move to Durban to live with his father, and she nearly lost
custody of him due to her financial situation. She is keen for him to return to
live with them. She also sold her vehicle and no longer has transport. She has
since been blacklisted and is unable to obtain credit. Her other son, in Grade
1, is at risk of not being allowed to continue to Grade 2, presumably due to
outstanding school fees.
[15] The other applicant , whose personal circumstances were placed before the
court, is Bernard Welff (Welff), whose daughter is a dietitian. Welff’s daughter
was informed in late November 2025 that she would be deployed to Boitumelo
Regional Hospital in Bloemfontein for community service in 2026. Bernard
requires the money Herotel owes him to cover his daughter’s expenses in
Bloemfontein.
[16] As for the remaining applicants, it was submitted that their credit scores
deteriorated after their dismissals and that they have exhausted all avenues to
obtain voluntary compliance from the respondents.
[17] Applications for contempt of court are intended to vindicate the court's honour
and dignity. For this reason, Rule 58 ensures that such matters are prioritised
on the court roll. However, by following the procedure they used rather than
the procedure prescribed by Rule 58, the applicants were assigned a priority
hearing date, effectively jumping the queue of all other contempt applications
that had not yet been allocated a hearing date. Be that as it may, it is trite that
this court has a wide discretion to determine the urgency with which
this court has a wide discretion to determine the urgency with which
applications should be treated.
[18] In respect of Kruger, I am persuaded that her financial situation is such that
the matter must be heard urgently . As one of the two applicants who
6
remained in the employment of Herotel when the application was brought, it
can be inferred 5 that she had no other job to return to, or that it was more
favourable for her to return to Herotel than to remain where she was
employed, if that was the case. Even if by the time the application was argued
she would have received her November 2025, that is a drop in the ocean,
considering the period between the date of dismissal and the date she was
reinstated. The same assumption could be made in respect of the Bronwen
De Pontes (De Pontes), the other applicant, who did not resign following her
reinstatement by Herotel. However, no facts were placed before the court
regarding her situation.
[19] In respect of Kruger, exceptional circumstances have been demonstrated,
warranting a departure from the rule set out in Hult zer v Standard Bank of SA
(Pty) Ltd 6, which held that financial hardship is generally not a ground for
urgency. I align myself with the decisions of this Court in Harley v Bacarac
Trading 39 (Pty) Ltd 7, as well as HOSPERSA & Another v MEC for Health,
Gauteng Provincial Government 8, where the c ourt entertained monetary
claims on an urgent basis because exceptional circumstances were
demonstrated.
[20] With respect to the remaining applicants, including Welff , I was not satisfied
that they could not obtain substantial redress in due course if their matters
were struck from the roll for lack of urgency. However, as Mr Oosthuizen
correctly pointed out in oral argument, there was a practical difficulty in
splitting the applicants' case into two groups. It made no sense to bring an
urgent application for some applicants and a separate application for the
remaining applicants. Splitting the cases was also undesirable, as the
applicants would likely have had to pool their resources to bring the current
application.
5 The respondents argued that it must be inferred from the resignation of the nine applicants that they
were gainfully employed elsewhere.
were gainfully employed elsewhere.
6 (1999) 20 ILJ 1806 (LC).
7 (2009) 30 ILJ 2085.
8 (2008) 29 ILJ 2769 (LC).
7
[21] Having heard arguments on the merits , it made no sense to dispose of the
case in respect of one applicant while striking the application from the roll in
respect of the remaining applicants. The struck application would have been
re-enrolled within weeks, with the risk of a different judge being called upon to
decide the merits of a matter already determined by another judge. It is so
that the ten applicants are piggybacking on Kruger’s circumstances, but t he
limited resources of this Court must be utilised effectively and efficiently by
hearing the case as an urgent matter for all the applicants.
[22] A further reason the Court exercised its discretion to hear the matter urgently
is that the respondents were accused of adopting the Stalingrad approach,
dragging out the dismissal dispute for years, and seeking to wear the
applicants down through protracted litigation. Having waited 4 years for a
resolution of the dismissal dispute and another year while the respondents
were appealing the Rabkin-Naicker J order, the dispute must now be resolved
urgently and expeditiously.
[23] The Constitutional Court dismissed the application for leave to appeal on 25
October 2025. Thereafter, correspondence was exchanged regarding the
return to work and the claim for arrear remuneration. This application was
launched on 13 November 2025, less than a week after the respondents
made it clear they would not pay back pay unless the applicants accounted for
earnings from alternative employment. Therefore, the applicants did not sit on
their hands after it became clear that the respondents would not pay the
arrear remuneration unless the court determined the dispute.
[24] For all the reasons stated above, I am persuaded that the matter must be
heard as urgent and disposed of on its merits, which I now address.
Parties' contentions on the claim for arrear remuneration
Applicant’s submissions
[25] The applicants provided the following background facts. On reporting for duty
[25] The applicants provided the following background facts. On reporting for duty
on 3 November 2025, a meeting was held with the respondent’s Human
Resources representatives. The issues raised included a lack of clarity about
8
the positions to which the applicants were being reinstated, undefined office
and remote working arrangements, no work tools being issued to them, and
no clarity about when the arrear remuneration would be paid. The applicants
allege that, due to the uncertainty, frustration and disillusionment created by
the respondents’ conduct in instructing them to report for duty without any
intention of complying with the reinstatement order, all the applicants except
Kruger and Bronwen De Pontes (De Pontes) tendered their resignations
between 4 and 6 November 2025. The resignations were accepted with
immediate effect.
[26] The applicants’ main contention is that, under the Labour Relations Act,9 they
are entitled to arrear remuneration for the entire period between the dismissal
date, which is also the retrospective reinstatement date of 1 November 2020,
and the date of their factual reinstatement , 3 November 2025, without taking
into account any remuneration earned from alternative employment . They
also contend that the resignation of nine of them , following their
reinstatement, and provoked by Herotel , does not affect their entitlement to
arrear remuneration.
[27] The applicants further contend that, following their dismissals, they had to find
alternative sources of income while awaiting the outcome of the litigation
against their employer. Such alternative income is a collateral benefit that is
not deducted from the arrear remuneration owed to them upon their
reinstatement. They rely on a decision of the Constitutional Court in Billiton
Aluminium SA Ltd t/ a Hillside Aluminium v Khanyile & others
10 (Billiton), in
which the Court held that dismissed employees have no duty to mitigate loss .
They submit that the respondents ’ purported reliance on the principle of
deduction or mitigation has no basis in law and that the respondents are
seeking to reopen the settled issue of their entitlement to arrear remuneration.
seeking to reopen the settled issue of their entitlement to arrear remuneration.
[28] The applicants also relied on the Constitutional Court decision in Mavundla v
Gotcha Security Services (Pty) Ltd 11 (Mavundla). They contend that, following
9 Act 66 of 1995.
10 2010 JDR 0106 (CC).
11 2025 (6) SA 25 (CC).
9
that decision, Herotel’s refusal to pay the applicants their full back pay
constitutes wilful and mala fide defiance of a binding court order , and,
therefore, amounts to contempt of court.
[29] In the event that the court is disinclined to find the respondents in contempt of
court, the applicants seek a declaratory order under section 158(1)(a)(iv) of
the LRA that they are entitled to their full remuneration and benefits for the
period from 1 November 2020 to 2 November 2025. They submit that a
declaratory order is required because the respondents are refusing to pay.
They also contend that they cannot issue a writ of execution for the amounts
without the respondents’ co- operation, and that the Sheriff attending at
Herotel’s premises will be informed that liability for the amounts claimed is
disputed.
Respondent’s contentions
[30] The respondents alleged practical difficulties in reinstating employees five
years later and in placing them in specific positions, given that they were
dismissed by an entity other than Herotel. Accordingly, the respondents deny
that the applicants were understandably frustrated or disillusioned, or
provoked into resigning.
[31] According to the respondents, the resignation of nine of the eleven applicants
immediately after their reinstatement indicates that they had no intention of
returning to Herotel to work, and that they took leave on 3 November 2025
and then returned to their jobs.
[32] The respondents’ case was that it complied with the order directing it to
reinstate the applicants, and that the issue of back pay is not explicitly
addressed in the Rabkin-Naicker J order. Therefore, the claim for back pay is
contractual rather than a judgment debt, and in the event of a dispute, the
applicants were required to institute proceedings to resolve it and determine
the extent of liability.
[33] The respondents further submitted that, in calculating the back pay due to the
applicants, any income earned by the applicants during the period of
10
dismissal and up to the date of reinstatement must be taken into account to
avoid unjust enrichment, double recovery or double- dipping. The applicants
were requested to furnish payslips, IRP5 forms, and affidavits confirming their
earnings or unemployment during the period in question, but they refused to
cooperate. Therefore, according to the respondents, there is a dispute over
liability for back pay, including the amount, if any, owed to the applicants.
[34] The respondents state that their position is based on legal advice. That advice
is said to be based on an unreported judgment of this Court in Samancor
Chrome t/ a Tubatse Ferrochrome v Dirk Willem Potgit ier
12 (Samancor LC).
Therefore, even if their position is legally incorrect, they cannot be found in
contempt of court, as wilfulness and mala fides will be absent.
[35] The respondents further submit that contempt of court proceedings are, in any
event, not competent in respect of backpay, and that the applicants were
required to issue a writ of execution.
[36] As regards declaratory relief, the respondents submit that the dispute
concerning the applicants’ entitlement to back pay is not amenable to a
declaration of rights, on the basis that the applicants contend the law is clear
on the issue.
[37] In addressing the parties' contentions, I will refer to the case authorities cited
by the parties, as well as other relevant authorities on the issues to be
decided.
Reinstatement orders and income earned in the intervening period
[38] In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
& Arbitration & others13 (Equity Aviation), the CC explained the implications of
a reinstatement order thus:
‘[36] The ordinary meaning of the word “reinstate” is to put the employee
back into the same job or position he or she occupied before the
dismissal, on the same terms and conditions… It is aimed at placing
12 JS532/18 (16 February 2021).
13 (2008) 29 ILJ 2507 (CC).
11
an employee in the position he or she would have been but for the
unfair dismissal. It safeguards workers’ employment by restoring the
employment contract… The fact that the dismissed employee has
been without income during the period since his or her dismissal must,
among other things, be taken into account in the exercise of the
discretion, given that the employee’s having been without income for
that period was a direct result of the employer’s conduct in dismissing
him or her unfairly.’
[39] Therefore, a court that issues a reinstatement order aims to place the
employee in the position they would have been in but for the dismissal. In
determining the reinstatement date, the court considers several factors,
including the fact that the dismissed employee was without income during the
period of dismissal. By parity of reasoning, where an employee is fortunate
enough to find other employment and earn an income, and this information is
brought to the court's attention, it must be taken into account when
determining the extent of the retrospectivity.
[40] That principle was clearly established by the CC in Maroveke v Talane NO &
Others14. A commissioner was presented with information that the dismissed
employee had found alternative work two months after the dismissal, yet still
ordered payment of 12 months' back pay to the employee. This court reduced
the back pay to two months, the period during which the employee was
without employment. The CC agreed that the back pay payable must be
limited to the two months during which the employee was without work, plus
the difference between what he would have earned but for the dismissal and
what he earned at the new employer, which was less.
[41] Thus, if a court is presented with information that an employee earned
remuneration during the intervening period, that fact will be taken into account
when determining the back pay payable to the reinstated employee.
when determining the back pay payable to the reinstated employee.
[42] For the position that remuneration earned in the intervening period is not
taken into account when calculating the arrear remuneration due to a
reinstated employee, the applicants relied on a decision of the CC in
14 (2021) 42 ILJ 1871 (LC).
12
Mavundla. Like the applicants, the employee, Mr Mavundla, successfully
challenged his dismissal and was reinstated in terms of an award. However,
the employer imposed conditions for reinstatement, which delayed his factual
reinstatement. Mavundla brought contempt proceedings, contending that the
employer had failed to reinstate him as ordered, and was successful. The
employer was ordered to reinstate him. Thereafter, he brought a claim for
arrear remuneration for the period during which he ought to have been
reinstated in terms of the arbitration award, and for the period when he was, in
fact, reinstated.
[43] This court found that the order of reinstatement applied from the later date set
in the contempt proceedings.
[44] The CC disagreed and interpreted Hendor as follows:
‘[30] This court was evenly split in Hendor on the characterisation of the
debt due to an employee upon reinstatement for purposes of
prescription. It was, however, unanimous in finding that, upon
restoration of the contract of employment by factual reinstatement, an
employee is entitled to the benefits (including remuneration) which
they would have been entitled to but for the dismissal, unless limited
by the terms of the reinstatement order ... In Hendor , because of
appellate proceedings, the employees were only factually reinstated
on 28 September 2009, but the court was unanimous that by not later
than 28 September 2009 the employees became entitled to their
arrear remuneration for the period from 23 April 2007 (when the
employer should factually have reinstated them) to 28 September
2009.’
[45] Therefore, Mavundla reiterates that a dismissed employee whose contract of
employment is restored by factual reinstatement is entitled to arrear
remuneration from the reinstatement date as ordered in an award, or by the
court, to the date of factual reinstatement.
[46] In the present matter, the issue is whether, when calculating the arrear
[46] In the present matter, the issue is whether, when calculating the arrear
remuneration due to a reinstated employee, that employee must account for
income earned elsewhere so that an employer can deduct those amounts
13
from the arrear remuneration. Mavundla is silent on this issue. In fact, in that
matter, there was no suggestion that Mr Mavundla had earned a salary
elsewhere that ought to be taken into account when calculating the back pay
due to him. I am therefore of the view that Mavundla does not advance the
parties’ debate.
[47] The applicants also placed great reliance on Billiton in support of their
position. Having considered the judgment, it is my view that it is not authority
for the proposition that income earned in the intervening period can never be
taken into account when calculating the arrear remuneration due to an
employee for the period between the reinstatement order date and the factual
re-instatement date.
[48] In that matter, the employer sought to have a reinstatement order replaced
with an order for compensation, based on information that was available but
not presented to the commissioner who arbitrated the matter, as well as
information that came to light after an award reinstating the employee was
issued. The new information indicated that the dismissed employee had
earned income during the intervening period. In resisting retrospective
reinstatement, and hence the claim for full arrear remuneration, the employer
argued that the dismissed employee bore the burden of mitigating his loss.
[49] The CC dismissed the appeal. It reasoned, inter alia, that the employer had
promised but failed to present evidence to the commissioner that
reinstatement was not an appropriate remedy. Regarding the new information
that came to light after the award was issued, the court held that the employer
could have applied to present it in the appeal to the LAC or the CC, but failed
to do so.
[50] More relevant for present purposes was the employer’s contention, relying on
Equity Aviation, that full retrospective reinstatement was inappropriate, based
on new information that emerged after judgment, because the employee had
on new information that emerged after judgment, because the employee had
an obligation to mitigate their loss after dismissal, and that failing to take that
information into account would lead to substantial unfairness between the
parties.
14
[51] The court held that Equity Aviation did not involve or address mitigation or a
burden to mitigate loss following dismissal, and stated the following:
‘[41] To talk in legal terms of a burden on an employee to mitigate loss in
the context of an unfair dismissal strikes one as decidedly odd, if not
somewhat perverse. In real life, dismissed employees will seek
alternative means of income in order to sustain their own survival and
that of their dependants. It requires little imagination to appreciate that
for many people in South Africa obtaining employment is, at best, a
very difficult task. Equitable considerations militate against
transforming this practical necessity of life into a legal burden on
employees to mitigate their loss in dismissal cases. To do so might
even serve to undermine their claim to the primary statutory remedy of
reinstatement available under the provisions of the LRA.’
[52] In my reading, the CC refused to lay down a principle that dismissed
employees have an obligation to mitigate their loss by earning income in the
intervening period. That is not the same as determining that remuneration
earned in the intervening period is not taken into account when calculating the
arrear remuneration due to an employee. The CC also held that the employer
could have utilised the existing rules to adduce further evidence, but that the
employer ignored or disregarded them . Therefore, employers are not
precluded from raising the defence that an employee is not entitled to full
arrear remuneration because they earned income from alternative
employment in the intervening period.
[53] Also important to note is that Billiton was decided before National Union of
Metalworkers of SA on behalf of Fohlisa & others v Hendor Mining Supplies
(A Division of Marschalk Beleggings (Pty) Ltd) 15(Hendor), discussed below,
and to the extent that Billiton might have been understood to mean that
income earned in the intervening period can never be taken into account,
income earned in the intervening period can never be taken into account,
Hendor clarified that, in respect of the period between the reinstatement date
and factual reinstatement, an employer is permitted to raise defences to a
claim for full arrear remuneration.
15 (2017) 38 ILJ 1560 (CC).
15
[54] In my view, some of the issues already dealt with above, and the remaining
issues regarding the applicants’ claim for full arrear remuneration can be
resolved by reference to the CC decision in Hendor.
The CC decision in Hendor
[55] On 16 April 2007, this court ordered the reinstatement of the dismissed
employees with effect from 1 January 2007 and directed them to report for
duty on 23 April 2007. The employer’s appeals failed , and on 29 September
2009, the employees were permitted to return to work. However, the employer
refused to pay remuneration for the period from 1 January 2007 (the
retrospective reinstatement date) to 29 September 2009 (the factual
reinstatement date). This is the same position Herotel has taken in this case.
[56] At the employees' instance, the Registrar of this court issued a writ of
execution in respect of the arrear remuneration. That writ of execution was set
aside by this court, which held that the order did not sound in money. The
employees then approached this c ourt, seeking a declaration that the
employer was liable for the arrear remuneration for the period from 1 January
2007 to 28 September 2009. They were successful.
[57] On appeal, the LAC held that the arrear remuneration for the period from 1
January 2007 (the reinstatement date) to 22 April 2022 (the day before the
date of reporting for duty) constituted a judgment debt and therefore
prescribed after 30 years, whereas the arrear remuneration for the period
from 23 April 2007 to 28 September 2009 arose from the employment
contract and prescribed after 3 years. In reaching that conclusion, t he LAC
relied on its earlier decision in Coca-Cola Sabco (Pty) Ltd v Van Wyk
16 (Coca
Cola).
[58] When Hendor further appealed to the CC, the main debate was whether the
employer’s obligation to pay arrear remuneration for the entire period from the
reinstatement date to the factual reinstatement date constituted a judgment
16 (2015) 36 ILJ 2013 (LAC).
16
debt that prescribed after 30 years, or whether it arose from the contract of
employment and therefore prescribed after 3 years.
[59] Madlanga J delivered one judgment, holding that while the entitlement to back
pay for the entire period arises from the reinstated contracts of employment,
the arrear remuneration constitutes a judgment debt, as it is a direct
consequence of the court order reinstating the employees. He further found
that the effect of a reinstatement order is two- pronged, requiring an employer
to allow the employee to return to work and to pay the employee's
concomitant arrear remuneration.
17
[60] Zondo J delivered the second judgment and held that arrear remuneration for
the entire period do not constitute a judgment debt. He identified two distinct
periods. The first runs from 1 January 2007 (the reinstatement date) to 15
April 2007 (the day preceding the judgment date), and the arrears for that
period constitute a judgment debt. Accordingly, he agreed with Madlanga J
that arrear remuneration for the period between the retrospective
reinstatement date and the date of judgment constitutes a judgment debt. The
consequences of this will be addressed later in the judgment.
[61] According to Zondo J, the second period is the period between 16 April 2007
(the judgment date) and 28 September 2009 (the day before the factual
reinstatement). He found that the arrear remuneration for that period w ere a
contractual claim.
[62] Both judgments upheld the employees' claim for arrear remuneration for the
entire period, but those who died before the reinstatement date of 1 January
2007 received nothing, and those who died between 1 January 2007 and 28
September 2009 received arrear remuneration capped at the date of death.
[63] Portions of the two judgments that are relevant to determining the issues in
dispute in the current matter will now be considered.
Arrear remuneration for 1 November 2020 to 6 February 2024
17 Ibid at para 36 and 38.
17
[64] Rabkin-Naicker J reinstated the applicants on 6 February 2024, with
retrospective effect from 1 November 2020. As I have already noted above, in
Hendor, the CC was unanimous that the arrear remuneration for this period
was a judgment debt.
[65] Madlanga J explained an employer’s obligation to pay arrear remuneration as
follows:
‘[13] ... Reinstatement may be, but is not always, retrospective. To state the
axiomatic, reinstatement means the resuscitation of the employment
agreement with all the attendant reciprocal rights and obligations.
Again, to state the obvious, the element of retrospectivity in the
reinstatement does not entail the rendering of services for the
backdated period of reinstatement. That is an impossibility. Perhaps
that makes the very notion of ‘retrospective reinstatement’ a bit of a
misnomer, if not a legal fiction. What then is the practical value of
retrospective reinstatement? It is the reinstatement of all the
employee’s benefits in terms of the contract of employment from the
date specified in the order so as to ‘plac[e] an employee in the position
he or she would have been but for the unfair dismissal.’
Obviously, if the employer may be able to demonstrate that — for one reason
or another — an employee would not have been able to render services, the
employee concerned would not be entitled to retrospective remuneration. That
much is illustrated by the total obliteration or reduction of benefits in respect of
employees who died either before 1 January 2007 or on or after that date but
before the date of reinstatement.
[66] From the above statement, it is evident that an employee's inability to render
services during the period for which arrear remuneration is claimed is relevant
to determining the extent of retrospectivity.
[67] In a separate judgment, Zondo J agreed with the principle. Relying on Equity
Aviation, he held that an order of reinstatement does not entail payment of
Aviation, he held that an order of reinstatement does not entail payment of
backpay, and that if any backpay is to be paid, the court must order that the
reinstatement operate with retrospective effect.
18 Because this court had
18 Ibid at para 98.
18
ordered reinstatement with retrospective effect, it follows that both the
obligation to reinstate and the obligation to pay backpay constituted a
judgment debt.
[68] In respect of arrear remuneration constituting a judgment debt, Zondo J held
that the consequences were:
‘[122] … This shows how big the difference is between the claim for wages
falling under the pre -judgment period and the claim falling under the
post-judgment period. In relation to the second and further applicants’
claim for wages for the pre -judgment period, Hendor would not be
entitled to raise the defence of exceptio non adimpleti contractus
because payment was ordered by the court already whereas in
relation to the claim for payment of wages for the post -judgment
period, Hendor would be entitled to raise that defence… ’
[69] Zondo J referred to the hypothetical example of Mr A, who was employed as a
driver, dismissed, and later disqualified from driving a motor vehicle before the
trial challenging his dismissal was finalised. Zondo J held that if Hendor had
been aware of this, it would have placed that information before the trial court,
which would have taken it into account in determining the extent of the
retrospectivity of the reinstatement date. Zondo J also referred to the example
of Ms B, who reached retirement age before the trial. The court found that an
employer could have led that evidence and argued that reinstatement was
inappropriate and that backpay could not be ordered beyond the retirement
date.
[70] Therefore, an employer who is aware of information that affects the extent of
the reinstatement's retrospective effect must present that information to the
trial court so it can be taken into account at that stage.
[71] Zondo J also went on to say:
‘[129] … In respect of the first period, the second and further applicants
would be entitled to payment of their arrear wages even if they
resigned a day after they had been reinstated… All that any one of the
resigned a day after they had been reinstated… All that any one of the
second and further applicants needs to show in order to qualify for
19
payment of remuneration in respect of the first period is that he or she
was one of the applicants referred to in the order.’
[72] Therefore, a reinstated employee is entitled to all arrear remuneration for the
period between the retrospective order date and the judgment date. This is
because the trial court sets the retrospective order date after considering all
the factors presented by the employer. Once the trial court has pronounced
on the issue, it is not open to an employer to reopen it when sued for such
arrear remuneration. The only possible exception, according to Billiton , is for
an employer to seek to introduce new evidence during the appeal process . If
Herotel had introduced any new evidence in the LAC or the CC, a decision
would have been made.
[73] It is common cause that nine of the eleven applicants resigned a day or two
after the factual reinstatement date. Zondo J stated that even if an employee
resigns a day after the ir reinstatement, they are still entitled to their full arrear
remuneration for the period between the retrospective reinstatement date and
the reinstatement order date.
19
[74] Consequently, Herotel cannot revisit the period between the date of dismissal
and the date of the reinstatement order in these proceedings , as the Rabkin-
Naicker J judgment pronounced on that issue. It follows that the applicants
are entitled to their full arrear remuneration and benefits for the period from 1
November 2020 to 6 February 2024.
Arrear remuneration for the period 7 February 2024 to 2 November 2025.
[75] Notwithstanding the finding that the arrear remuneration for the entire period
was a judgment debt, Madlanga J held that when an employer is sued for
arrear remuneration in respect of the period between the judgment date and
the factual reinstatement date, that employer is entitled to raise any defences
it may have to the claim. He stated this:
‘[40] If, on whatever basis, the employer was to be entitled — in terms of
‘[40] If, on whatever basis, the employer was to be entitled — in terms of
the contract — to take whatever action ( eg not paying remuneration)
19 Ibid at para 129.
20
against a particular employee in respect of the period under
discussion, nothing in the approach that I adopt prevents the employer
from taking that action. The second judgment suggests that this is not
competent on my approach. The reason given is that ‘an order would
already have been made that Hendor pay the [employees] their
remuneration for the second period without Hendor having been able
to defend itself against that claim’. The second judgment then says
Hendor would have no forum at which to raise its entitlement to take
the action. What this misses is that the effect of the order was to
reinstate the employees on the same terms and conditions.
Axiomatically, the terms and conditions of an employment contract are
binding on both employee and employer. If — for some reason —
those terms and conditions entitled Hendor to withhold payment of
remuneration, it would be open to it to do so. When sued for the
remuneration, it would be at liberty to raise as a defence the basis for
its action.
[41] I do not agree that there would have been no forum to do this. The
question whether Hendor was entitled — in accordance with the terms
and conditions of the employment contract — to withhold
remuneration would not be res judicata (literally, a matter judged).
Indeed, before the Labour Court these very proceedings would have
presented Hendor with a perfect opportunity to raise whatever defence
it considered available. This cuts across all the examples about a
retrenchment exercise, retirement age, Mr A and Ms B...’
[76] Zondo J held that the arrear remuneration between the reinstatement order
date and the factual reinstatement date constitute a contractual claim, rather
than a judgment debt. He stated that this was a new dispute or cause of
action20, and that an employer sued for such arrear remuneration is at liberty
to raise contractual defences in a competent tribunal or court. He also stated
that such a claim may be pursued under section 77(3) of the Basic Conditions
that such a claim may be pursued under section 77(3) of the Basic Conditions
of Employment Act,21 (BCEA).
20 Ibid at para 155.
21 Act 75 of 1997.
21
[77] With reference to a decision of the then Natal Provincial Division of the then
Supreme Court of Appeal in National Union of Textile Workers and others v
Jaguar Shoes (Pty) Ltd22 (Jaguar Shoes), Zondo stated this:
‘[121] What the court said in the above passage in Jaguar Shoes is, quite
clearly, that, when an employer has been ordered to reinstate an
employee who had been dismissed, a contractual relationship is
reinstated. The court also said that ‘where an employee claims
payment of wages or, as in this case, a declaration that he is entitled
thereto’, which is what the second and further applicants also said in
their application for a declaratory order in the Labour Court in the
present case, ‘the employer is entitled to raise the ordinary defences
available to him in the law of contract’. …That is what I say is the
position here as well…
[122] In Jaguar Shoes the court went on to say that the defence of exceptio
non adimpleti contractus would also be available to such an employer.
This shows how big the difference is between the claim for wages
falling under the pre -judgment period and the claim falling under the
post-judgment period. In relation to the second and further applicants’
claim for wages for the pre -judgment period, Hendor would not be
entitled to raise the defence of exceptio non adimpleti contractus
because payment was ordered by the court already whereas in
relation to the claim for payment of wages for the post -judgment
period, Hendor would be entitled to raise that defence…
[123] … There is a distinction between the respective claims or debts for the
arrear wages for the two periods. In respect of the arrear wages for
the first period, there is an order of court for the payment to the
second and further applicants by Hendor of the arrear wages.
However, no court has made any order against Hendor to pay arrear
wages to the second and further applicants in respect of the second
period. That is why one can speak of a judgment debt in respect of the
period. That is why one can speak of a judgment debt in respect of the
first period , but cannot speak of a judgment debt in respect of the
second period.’
22 1987 (1) SA 39 (N).
22
[78] In criticising the approach of the first judgment, which held that arrears of
wages for the second period constituted a judgment debt, Zondo J stated this:
‘[148] The first judgment does not take issue with the proposition that, before
Cele AJ could make the order that he made, Hendor was not, and,
could not have been, afforded an opportunity to be heard on whether
an order should be made that it pay the second and further applicants
any wages for the period 23 April 2007 to 28 September 2009 ... It
could not make such an order without having heard Hendor at that
stage on whether it was liable.
[149] Not only does the first judgment not take issue with the proposition
that Cele AJ could not have afforded, or, did not afford, Hendor an
opportunity to be heard before he made the order that he made but it
actually says that Hendor would have been heard by the Labour Court
in other proceedings that it was not even contemplated at that stage
would be instituted. This appears to be an acceptance by the first
judgment that, insofar as Cele AJ’s order can be said to have required
Hendor to pay the second and further applicants their wages for the
second period, Cele AJ would have made that order without having
heard Hendor in regard to whether it was liable to pay those wages.
That is why the first judgment says that Hendor would have been
heard in other proceedings.
[150] The approach adopted by the first judgment in this regard is one that
contemplates that a court would first make an order adverse to a
litigant without hearing that litigant and then have the litigant heard
afterwards in other proceedings. The approach puts the proverbial cart
before the horse…’
[79] The judgment goes on to say:
‘[151] The first judgment further says that Hendor would have been entitled,
after 28 September 2009, to refuse to pay to any individual applicant
remuneration relating to the period after Cele AJ’s order if there was a
remuneration relating to the period after Cele AJ’s order if there was a
contractual basis which entitled it to refuse to pay that applicant.’
[80] Zondo J also said:
23
‘[172] Upon Hendor putting the second and further applicants back into the
positions they had occupied before they were dismissed on the same
terms and conditions of employment as they enjoyed at the time of
their dismissal, the contract of employment of each one of the second
and further applicants was restored. The contracts of employment
were then deemed to have been in operation for the whole time since
16 April 2007 when Cele AJ handed down his judgment. Since Hendor
did not accept the second and further applicants’ tender of their
services on 23 April 2007, Hendor would be contractually liable for the
payment of the remuneration of the second and further applicants for
the second period (23 April 2007 to 28 September 2009) insofar as
each applicant would have worked for the whole period had he or she
not been prevented by Hendor from performing his or her duties
pending the outcome of the application for leave to appeal.’
[81] Therefore, the employees’ claim for arrear remuneration for the period
between the reinstatement order date and the factual reinstatement date is
subject to the employer’s right to raise defences that the employees are not
entitled to the arrear remuneration for the reasons the employer gives. In
respect of this period, the applicants cannot rely on the Rabkin -Naicker J
judgment, as doing so would be to read the judgment as ordering
reinstatement for a future period without hearing Herotel . As Zondo puts it,
this amounts to putting the proverbial cart before the horse.
[82] Zondo J concluded that the arrear remuneration for the post -judgment period
had not prescribed, as the obligation to pay arose only on 29 September
2009, when Hendor reinstated the employees, and the employees brought
their application for a declaratory order on 19 September 2012, within the
three-year period.
[83] Therefore, although disagreeing on whether the arrear remuneration between
the reinstatement order date and the factual reinstatement date constitutes a
the reinstatement order date and the factual reinstatement date constitutes a
judgment debt or a contractual obligation, both judgments agreed that a
reinstatement order requires the employer to pay the employee the
remuneration they would have earned between the reinstatement order date
and the factual reinstatement date. Importantly, both judgments agreed that
24
an employer sought to be held liable for the arrears of wages between the
reinstatement order date and the factual reinstatement date is not precluded
from raising defences to such a claim, if it has such defences. If such an
employer demonstrates that the employee would not have rendered services
because the employee was employed elsewhere, that fact will be taken into
account in calculating the back pay due to the employee.
[84] Examples include an employee who would not have rendered services
because they became disqualified from performing the duties of the position
they previously held, an employee who reached retirement age, or an
employee who would have been terminated due to an employer’s operational
requirements. Another example is where an employee dies in the intervening
period.
[85] I see no reason why an employee who worked for another employer during
the intervening period, and therefore would not have worked, cannot be a
defence to a claim for full arrears of remuneration. This is the defence raised
by the respondents. The question that remains is whether the defence must
be upheld, an issue addressed later in the judgment.
[86] For completeness, I proceed to address the other cases relied on by the
parties.
Is Coca-Cola still good law?
[87] The respondents submit that the Samancor LC judgment, which relied on
Coca Cola Sabco (Pty) Ltd v Van Wyk 23 (Coca-Cola), remains good law, and
that the applicants are required to disclose income earned from alternative
employment during the intervening period, so that it can be taken into account
when calculating the arrear remuneration due to them.
[88] In Coca-Cola, an employee obtained an award that his dismissal was
substantively unfair and that he be reinstated. The employee was reinstated
only after attempts to review and appeal the award were unsuccessful. The
23 (2015) 36 ILJ 2013 (LAC).
25
question before the LAC was whether the employee was entitled to arrear
remuneration from the reinstatement order date to the factual reinstatement
date. The LAC determined that where an employer refuses to pay the
reinstated employee for the period between the reinstatement order date and
the factual reinstatement date, the employee must pursue a contractual claim
against the employer.
[89] In Hendor, Madlanga J had this to say about the decision of the LAC in Coca -
Cola:
‘[47] In Coca Cola the Labour Appeal Court first held:
‘The backpay ordered by [a] commissioner [when ordering that
an employee be reinstated] can … only refer to the period
between the date of dismissal and the date of the order and
does not entitle an employee, without more, to remuneration
between the date of the award and the actual date of
implementation. The Labour Relations Act does not cater for
such relief.’
[48] This is a narrow view of the power to reinstate in s 193(1) (a) of the
Labour Relations Act. I cannot but repeat a refrain that I have asserted
ad nauseam now: when a court orders an employer to reinstate an
employee, it is ordering that the employee be put ‘back into the same
job or position he or she occupied before the dismissal, on the same
terms and conditions’ . This means the court is ordering that the
employee not only be taken back to her or his job, but that she or he
be afforded her or his benefits under the contract. The benefits include
payment of remuneration. Surely, that covers the period between the
date of the reinstatement order and the date on which reinstatement
actually takes place.
[49] In most cases, it will be impractical for employees to report for duty on
the same day as the reinstatement order. Thus, almost invariably,
there will be a lapse of time between the date of the order and
reinstatement. One thing is certain, and that is: once reinstatement
has taken place, remuneration in respect of the intervening period is
has taken place, remuneration in respect of the intervening period is
payable. On the Labour Appeal Court’s approach, this must mean that
26
it is the act of reinstatement that creates the entitlement to
retrospective payment for this period. It escapes me how, ‘without
more’, the resuscitated contract is legally capable of having this
retrospective effect. The Labour Appeal Court’s judgment does not
shed light on this. On the other hand, the obligation created by the
reinstatement order endures until there has been compliance. It
makes sense that, upon reinstatement, payment in respect of the
intervening period is due under the order. Yes, that payment has to be
in accordance with the terms of the employment contract.
…
[51] I do not understand how an employee would be entitled to payment of
remuneration in terms of an employment contract that is (a) still the
subject of debate in review or appeal processes and (b) yet to be
resuscitated. Until there has been reinstatement, there is no contract
of employment. Until that has been done, one cannot talk of an
‘extant’ contract of employment and payment of remuneration in terms
of it. What exists at that stage is the twin-obligation to (a) reinstate and
(b) pay remuneration in accordance with the employment contract.
But, needless to say, remuneration is payable only after
reinstatement. I repeat: the order does not reinstate; it orders the
employer to do so. Indeed, s193(1) (a) says as much. I must conclude
that the Labour Appeal Court’s view to the contrary was wrong.
[90] Madlanga J held that Coca-Cola was wrong to carve out two periods for the
purpose of determining whether the arrear remuneration constituted a
judgment debt. According to Madlanga J, all the arrear remuneration
constitutes a judgment debt.
[91] It will be recalled from the discussion of Hendor above that Zondo J, however,
agreed with Coca -Cola that the arrear remuneration for the period from the
reinstatement order date to the factual reinstatement date constitutes a
contractual claim, and that an employer is permitted to raise defences to it. He
contractual claim, and that an employer is permitted to raise defences to it. He
also held that this is the same principle laid down in Jaguar Shoes.
27
[92] Notwithstanding that in Hendor the CC split on whether the arrear
remuneration for the entire period constitute a judgment debt or a contractual
debt, Jaguar Shoes, Coca-Cola, and both Madlanga J and Zondo J in Hendor
agreed that when a dismissed employee seeks to recover arrears of
remuneration for the period between the reinstatement order date and the
factual reinstatement date, an employer is entitled to raise defences to that
claim.
[93] Therefore, Coca-Cola remains good law.
[94] The Samancor LC judgment followed Coca-Cola and Zondo J in Hendor .
Therefore, it is also good law.
[95] The submission that in Potgieter v Samancor Chrome Ltd t/a Tubatse
Ferrochrome24, (Samancor LAC), the LAC refined the analysis and narrowed
the ambit of the Samancor LC matter, must be mistake n, as it is a different
LAC decision involving the same parties . Samancor LAC deals with the issue
of prescription, whereas the Samancor LC judgment says nothing about
prescription. I could not locate a judgment dealing with an appeal against the
Samancor LC judgment.
[96] I now turn to whether the applicants brought the wrong proceedings to claim
the arrear remuneration.
Writ of execution or contempt proceedings?
[97] The respondents submitted, with reference to a decision of this court in
Wenum v Masquassi Hills Local Municipality & another 25 (Wenum), that
monetary claims must be enforced by way of a writ of execution and not
contempt proceedings.
[98] The respondents also contend that in Mashaba and Another v Telkom SOC
Ltd,26 (Mashaba), the LAC, referring to the Madlanga J judgment in Hendor ,
held that an order to reinstate is also an order ad factum praestandum (to do
24 (2025) 46 ILJ 1708 (LAC).
25 (2016) 37 ILJ 1488 (LC).
26 (2020) 41 ILJ 2437 (LAC).
28
something). They further submitted that “in short, a debt to which there are no
contractual defences”. Importantly, the respondents submitted that the court’s
statements in Mashaba are obiter. As I understand their position, they rely on
Wenum to argue that a writ of execution ought to have been issued. At the
same time, they point out that in Mashaba , the writ of execution was set
aside.
[99] The respondents’ position is difficult to follow. They argue that an order to
reinstate is an order to do something , while at the same time submitting that it
can be enforced by a writ of execution. Mashaba did not determine that an
order to reinstate retrospectively is a debt to which there are no contractual
defences. Nor did Madlanga J say that in Hendor . In Mashaba, the LAC set
aside a writ of execution issued in respect of interest on arrear remuneration,
yet the respondents contend that a writ of execution is the correct means to
enforce the applicants’ arrear remuneration claim.
[100] In Hendor, the employees initially obtained a writ of execution in respect of the
arrear remuneration, and this court set aside that writ on the ground that it
was not an order sounding in money, holding that a declaratory order was
required.
[101] When the matter came before the CC, Madlanga J recorded that the employer
argued that the obligation to pay arrear remuneration following a
reinstatement order could not be enforced by a writ of execution because the
amount due was not quantified. He commented on that proposition as follows:
‘[18] …The mode of enforcement depends on the nature of the order.
Payment in terms of some judgments may, because of their nature, be
enforced in ways other than the issuing of a writ of execution. The
implicit order to make a retrospective payment of remuneration
effectively says to the employer, ‘Pay the remuneration — whatever
the quantification — that is due from X date to Y date’. Although,
because of the requirement to pay money, one might be led to think
because of the requirement to pay money, one might be led to think
that this is an order ad pecuniam solvendam (to pay money), in
substance it is an order ad factum praestandum (to do something).
This is especially so in this context because the implicit requirement to
29
pay remuneration was inextricably bound with the express injunction
to reinstate. Orders ad factum praestandum are enforced by contempt
proceedings.
[19] Let me illustrate that, except perhaps in a broad generalised sense, an
order for the retrospective payment of remuneration is not simply a
matter of payment of money. Integral to the retrospective payment are
certain deductions and contributions by the employer…
[20] Thus, when a court orders retrospective payment of remuneration, it is
simultaneously directing that necessary deductions from an
employee’s remuneration, contributions by the employer and remittal
to relevant entities be made. That buttresses the view that the order is
one ad factum praestandum. And the deductions, employer
contributions and remittals to relevant entities are so closely linked to
the actual payment to an employee that all four are inseparable.’ (Own
emphasis)
[102] Therefore, per Madlanga J, an order for arrear remuneration is enforceable by
contempt of court proceedings, not by a writ of execution.
[103] When Zondo J weighed in on the issue, he stated the following:
‘[103] …We already know that in this case the applicants have accepted the
decision of the Labour Court that a writ of execution could not validly
be issued in respect of para (a) of Cele AJ’s order because para (a) is
not an order sounding in money. The applicants must be taken to
have accepted that decision of the Labour Court because they did not
challenge it on appeal. Indeed, they accepted the Labour Court’s
‘advice’ that they should institute an application for a declaratory order
and specify the grounds of liability and the amounts for which Hendor
was liable. So , the order relied upon by the applicants to found the
proposition that their claim for wages for the second period is a
judgment debt could not be executed by way of a writ ’. (Own
emphasis)
[104] As the applicants had not challenged the LC decision setting aside the writ of
[104] As the applicants had not challenged the LC decision setting aside the writ of
execution, Zondo J did not expressly address whether a writ of execution was,
30
in any event, an appropriate means of enforcing a claim for arrears of
remuneration. However, implicit in Zondo’s judgment is that a writ of execution
would be inappropriate in respect of a claim for arrear remuneration that an
employer is entitled to defend.
[105] In Hendor, the court granted the sought declaratory orders . Zondo J stated
the following:
‘[194] Given the above admissions by Hendor, there was enough evidence
for the Labour Court to issue a declaratory order that Hendor was
liable for the payment of the wages of the second and further
applicants for the period 23 April 2007 to 28 September 2009 save to
the extent that this includes, in respect of any applicant, a period after
the death of the particular employee. It was, therefore, in the
proceedings concerning the application for a declaratory order that a
judgment could have been given finding that Hendor was liable for the
payment of the second and further applicants for any period after 16
April 2007.’
[106] It follows that claims for arrear remuneration can be pursued either through
contempt of court proceedings or by seeking declaratory orders , but not by a
writ of execution. The applicants in this matter sought the primary relief of
contempt of court, and, in the alternative, declaratory orders. That approach is
supported by Hendor.
[107] In the Wenum judgment relied upon by the respondents, in December 2015 ,
the court ordered the employer to continue paying the employee’s salary until
judgment was handed down. In January 20 16, the employee was informed
that he would not be remunerated on the applicable pay date. On 1 February
2016, the employee launched an urgent contempt of court application, which
the court dismissed. The reasoning for the Court was as follows:
‘[12] During argument I confirmed with Mr Scholtz that there is a court order
that orders the payment of the applicant's salary until judgment is
handed down, that judgment was not yet handed down and therefore
handed down, that judgment was not yet handed down and therefore
his client's claim was one sounding in money. Mr Scholtz was unable
to explain why he has approached this court, and that on an urgent
31
basis, for the payment of arrear remuneration and contempt when his
client has a claim sounding in money.’
[108] The Court went further and stated the following:
‘[16] If the judgment is one ad pecuniam solvendam, namely one in which
C the court orders the debtor to pay a sum of money, it is appropriate
to seek its enforcement by means of a writ of execution. When the
judgment is one ad factum praestandum, namely an order to perform
some act for example to pass transfer or vacate premises, the
judgment creditor cannot seek its enforcement by the levying of a writ
and his or her remedy lies in contempt proceedings. These are
principles practitioners in this court should know and consider before
applications are filed.’
[109] It is evident from the above that the claim was for the employee’s January
2016 salary; therefore, it was a claim sounding in money. All that was required
of the employer was to pay the employee’s salary, and there was no further
legal issue to be resolved for the court order to be implemented. The
employer was not required to perform any act. This is very different from the
facts of the present matter, where there is a dispute over the respondent's
liability for the arrear remuneration.
[110] In Mashaba, after quoting what Madlanga J stated in Hendor, the court stated
this:
‘[21] Thus, the Constitutional Court has pronounced authoritatively that a
retrospective reinstatement order is not an order for the payment of
money simpliciter. It is rather an order to perform certain acts. As
stated, when a judgment or order is one ad factum praestandum, the
judgment creditor cannot seek its enforcement by the levying of a writ.
The remedy for non-compliance with such an order is to apply for the
committal of the judgment debtor (the employer) for contempt of court,
normally by way of an urgent application for the issue of a rule nisi
simultaneously affording the employer an opportunity to purge the
contempt by making payment …This judgment nonetheless provides
contempt by making payment …This judgment nonetheless provides
an opportunity to offer litigants a salutary reminder of the execution
procedure applicable to orders of retrospective reinstatement.’
32
[111] Mashaba followed Hendor, as per Madlanga J , that contempt of court
proceedings are competent where reinstatement orders are not complied with.
The submission that the majority in Hendor did not accept Madlanga J’s
findings on this issue is not supported by the findings of the ‘majority’ that are
relied upon. In any event, there was no majority in Hendor, as the court split.
[112] In addition, it is trite that a writ of execution is not competent where a lis has
not been judicially resolved.
27
[113] In the absence of agreement, t he arrear remuneration payable to the
applicants still need ed to be determined, taking into account any defences
Herotel raised.
[114] In Hendor, the defences were raised when the employees sought a
declaratory order that they were entitled to the arrear remuneration they
claimed. The applicants were correct to proceed either by way of contempt
proceedings or alternatively by seeking declaratory relief.
[115] We also know that, as per Zondo J in Hendor , reinstated employees seeking
their arrear remuneration may institute proceedings under section 77(3) of the
BCEA.
Are the respondents in contempt of court?
[116] For a respondent to be found in contempt of court, it must be established that
there is a court order, that the respondent was served with or has knowledge
of the order, and has not complied with it . Once these requirements are
proved, wilfulness and mala fides will be presumed unless the respondent
establishes reasonable doubt that the non-compliance was not deliberate or in
bad faith. A respondent who fails to establish reasonable doubt will be guilty
of contempt.28
[117] In my judgment, whether the respondents are in contempt must be
determined by separating the arrear remuneration into two periods. The first
27 De Crespigny v De Crespigny 1959 (1) SA 149 (N).
28 Secretary, Judicial Commission of Inquiry Into Allegations of State Capture v Zuma 2021 (5) SA 1
(CC) at para 37.
33
period is between the reinstatement date and the judgment date. The second
period is between the judgment debt and the factual reinstatement date.
[118] In respect of the first period, the first two requirements for contempt of court
have been met. There is the Rabkin- Naicker J order, issued on 6 February
2024, directing the respondents to retrospectively reinstate the applicants
from 1 November 2020. The respondents are aware of the order.
[119] The next question is whether the respondents have complied with the order.
The judgment required the respondents to pay the applicants their arrear
remuneration for the period in question, and the respondents have failed to do
so. Therefore, the respondents have not complied with the order.
[120] The respondents’ submission that the Rabkin- Naicker J order is not explicit
about the payment of back pay is without merit. That judgment specifically
addresses arrear wages for the period from 1 November 2020 to 6 February
2024.
[121] Since the first three requirements have been met, wilfulness and mala fides
are presumed unless the respondents raise reasonable doubt a bout whether
the non-compliance is wilful and mala fide. The respondents’ sole defence is
that they have not paid any of the backpay on the basis of legal advice.
[122] Reliance on good- faith legal advice can be a defence to a contempt
application, as it may negate the inference of mala fides, as per Moyo v Old
Mutual.
29 However, the legal advice must be reasonable, otherwise , a
respondent cannot demonstrate a reasonable doubt as to wilfulness and mala
fides.
[123] Legal advice not to pay back pay for the first period, as ordered by Rabkin-
Naicker J , was not reasonable. The respondents had an opportunity before
Rabkin-Naicker J, to present a case for limited retrospective pay. They failed
29 2022 JDR 1248. See also Samancor Chrome Ltd v Bila Civil Contractors (Pty) Ltd 2022 JDR 3569
(SCA).
34
to present such a case, and Rabkin- Naicker J ordered full retrospective pay.
That issue cannot be revisited in these proceedings.30
[124] The Samancor LC judgment, on which the respondents relied to resist the
claim for arrear remuneration for the first period, makes the same point that
an employer is liable for arrear remuneration for the period between the
reinstatement date and the reinstatement order date, limited only by the
extent of the retrospectivity. Yet the respondents persist in refusing to pay the
applicants the full arrear remuneration for this period. Therefore, in respect of
that first period, I find that the respondents’ non- compliance was wilful and
mala fide. They are in contempt of court.
[125] However, in respect of the second period, I have already held that , where the
arrear remuneration claim is disputed, the applicants must bring legal action,
and the respondent may then raise any defences it wishes . Therefore, in
respect of this period, the respondents cannot be found in contempt of court,
as there was a genuine dispute about the applicant's entitlement to full
remuneration. This judgment resolves that dispute between the parties.
[126] For completeness, I address the allegation that upon reinstatement, Herotel
failed to reinstate De Pontes on the same or similar terms that applied prior to
her dismissal, and that De Pontes was demoted. The details of the respects in
which Herotel is alleged to have acted are set out in the replying affidavit, and
Herotel did not respond thereto. The law is clear on what is required of
Herotel in this regard, otherwise, it is in contempt of the court.
Declaratory relief
[127] The primary relief sought by the applicants was contempt of court, or, in the
alternative, a declaratory order. I have found that contempt proceedings were
competent in respect of the arrear wages for the period from 1 November
2020 to 6 February 2024, as this was a judgment debt based on the Rabkin-
2020 to 6 February 2024, as this was a judgment debt based on the Rabkin-
Naicker J judgment, which pronounced on Herotel’s liability for those arrear
30 See Equity Aviation.
35
wages. This is why I found Herotel in contempt of court for failing to pay the
arrear wages for this period, as the legal advice not to pay was unreasonable.
[128] However, in respect of the period between 7 February 2024 and 3 November
2025, there was a dispute between the parties regarding Herotel’s liability and
the extent of that liability. That issue needed to be resolved by this court, after
affording Herotel an opportunity to raise any defences it had to the claim. A
declaratory order was required. In Hendor, Zondo J stated this:
‘[186] In my view, the application that the applicants instituted in the Labour
Court for a declaratory order was essentially an application for an
order to resolve the issue of liability between the parties with regard to
the remuneration for, in part, the period 23 April 2007 to 28 September
2009 and the amounts.’
[129] As the respondents correctly pointed out, relying on Proxi Smart Services
(Pty) Ltd v Law Society of South Africa 31, the two -fold requirements for
declaratory relief are (a) an applicant has an interest in an existing, future or
contingent right or obligation and (b) if the first requirement is met, whether
declaratory relief must be granted.
[130] There is no question that the first requirement is satisfied. The applicants
claim a right to the arrears of remuneration for the entire period, from the date
of dismissal to the date of factual reinstatement. Part of that claim has already
been determined above. Therefore, the applicants have an interest in the
remaining claim and, accordingly, an existing right.
[131] The next issue to be determined is whether Herotel is also liable for the full
arrear remuneration for the period from 6 February 2024 to 2 November 2025.
Have the respondents put up a defence to the applicants’ claim for arrear wages?
[132] In Hendor, the CC held that the employees were entitled to their full
remuneration for the entire period, except for the applicants who had died
remuneration for the entire period, except for the applicants who had died
31 [2018] 3 All SA 367 (GP) at paras 69-70.
36
during the intervening period. The reasoning was that these employees would
not have been able to render services during that period.
[133] Madlanga J held that this was so because it was a judgment debt (although
finding that the employer could have challenged the arrear remuneration claim
for what Zondo referred to as the second period). Zondo J held that the
employees were entitled to their full arrear remuneration for the second
period, even though they did not work, because they tendered their services,
which Hendor rejected. He also added that “ it must be remembered that the
second and further applicants would have performed their duties had Hendor
not rejected their tender or pursued the appeal”.
[134] Therefore, where an employee would not have performed their duties
because they were employed elsewhere, that fact should be taken into
account when calculating the arrear remuneration due to them. However,
where no such case is made, and it is common cause that there is an order
for reinstatement, and the employees tender ed services, and the employer
rejected that tender pending the outcome of appeal proceedings , and then
reinstates the employees after unsuccessful attempts to appeal, according to
Hendor, that employer “has admitted all that is needed to be established to
justify the conclusion that it is liable ” for the payment of the arrear
remuneration for the period between the reinstatement order date and the
factual reinstatement date.
[135] The defence to the applicants’ claim for full arrear remuneration and benefits
was set out as follows:
‘26. In the present case the respondents defence raised to the claim for
backpay is that some of or all of the individual applicants were
employed by another employer during the period between the court
order and reinstatement. The respondent is accordingly entitled to
deduct from whatever amount is claimed in backpay, the income
received by the employee from another employer . The LAC, while
received by the employee from another employer . The LAC, while
finding that the employer could not rely upon a defence of prescription,
had no difficulty with the employer’s approach.’
37
27. In light of this, the employer has a defence to the employees’ backpay
claims. The quantum of any backpay to be paid cannot be determined
at this stage - at least until the correct amount that is owing has been
determined.’
[136] In Hendor, Zondo J stated this:
‘[192] In opposing the applicants’ application for a declaratory order in the
Labour Court, Hendor did not, in its answering affidavit, identify any
applicants that it said would no longer have been in its employ from a
certain date or certain dates to 29 September 2009 when
reinstatement was effected. In other words, Hendor did not take the
point that there were individual applicants for whose remuneration for
certain periods between 16 April 2007 and 29 September 2009 it was
not liable because they would not have remained in its employ beyond
a certain date or certain dates. Obviously, Hendor cannot be liable for
the payment of wages in respect of a period falling after the date of
death of any applicant.’
[137] Herotel has taken the point that some, if not all, of the applicants must have
earned income between the reinstatement order date and the factual
reinstatement date. The applicants have not denied earning income but
contend that such income need not be taken into account when calculating
the remuneration due to them. I have already determined that they are wrong
on this issue.
[138] Since it is undisputed that some or all of the applicants earned income from
alternative employment , it follows that Herotel’s contention that the arrear
remuneration due to the applicants for the period between the reinstatement
order date and the factual reinstatement date can be calculated only once the
applicants have disclosed the income earned from employment during this
period must be upheld.
Relief
[139] The applicants sought an order that the respondents make suitable
arrangements within seven days of the court order to calculate what is owed
38
to them and to pay those amounts to their attorneys, failing which the
applicants may approach the Court, on the same papers and supplemented
as necessary, for an order that the respondents are in contempt of court. That
relief is competent in respect of arrear remuneration and benefits for the
period between the dismissal date and the Rabkin-Naicker J order.
[140] That a detailed Excel spreadsheet reflecting the applicants’ remuneration and
benefits was submitted to Herotel was not disputed. Herotel should work from
that spreadsheet. Seven (7) days are sufficient to complete the calculations
for the arrear remuneration and benefits for this period.
[141] Interest on arrear remuneration and benefits for that period should be
calculated from 6 February 2024 to the date of payment.
[142] Regarding arrear remuneration and benefits for the period from 7 February
2024 until 2 November 2025, the respondents are directed to calculate the
arrear remuneration due to the applicants within fourteen days of receipt of
information from the applicants or their attorneys regarding what the
applicants earned, if anything, from alternative employment for that period.
[143] Interest on the arrear remuneration and benefits for the period from 7
February 2024 to 2 November 2025 must be calculated from the date each
monthly wage became due until the date of payment.
[144] In the event that the parties cannot agree on the calculations, either party may
refer the issue to this Labour Court for a decision. The approach to the Labour
Court can be made on an expedited basis to achieve finality in this dispute,
which has been ongoing since early 2020.
Costs
[145] The parties sought costs against each other, with the applicants seeking costs
on the attorney-client scale.
[146] Both parties have been partially successful with their contentions. A costs
order in accordance with the requirements of law and fairness is that each
party pays its own costs.
39
[147] In the result, I make the following order:
Order
1. The matter is heard as one of urgency.
2. The applicants’ failure to comply with Rule 58 of the Rules of this Court
is condoned.
3. The respondents are liable for the applicants’ full arrear remuneration
and benefits for the period from 1 November 2020 to 6 February 2024,
pursuant to the Rabkin-Naicker J order dated 6 February 2024, in case
number C135/2021.
4. Interest on the full arrear remuneration, in terms of paragraph 3 above,
is to be calculated from 6 February 2024 to the date of payment.
5. The respondents are in contempt of the Rabkin-Naicker J ’s order in
case number C135/2021, dated 6 February 2024, for failing to pay the
applicants their full arrear remuneration in respect of the period 1
November 2020 to 6 February 2024.
6. The respondents are ordered to calculate and pay to the applicants’
attorneys the arrear remuneration due to the applicants for the period
from 1 November 2020 to 6 February 2024 within seven days of this
order, failing which the applicants may, on the same papers and
supplemented as necessary, seek an order imposing a sanction on the
respondents for contempt of court.
7. The respondents are ordered to calculate and pay to the applicants'
attorneys the arrear remuneration due to the applicants for the period
from 7 February 2024 to 2 November 2025, within fourteen days of the
applicants’ providing information about income earned from alternative
employment, where applicable.
40
8. Interest on the full arrear remuneration, in terms of paragraph 7 above,
is to be calculated from the date each monthly wage became payable
to the date of payment.
9. If the parties cannot agree on the calculations, either party may
approach this Court for a final determination, on an expedited basis.
10. Each party must bear its own costs.
_______________________
T Gandidze
Judge of the Labour Court of South Africa
41
Appearances:
For the Applicant: Advocate Oosthuizen SC
Instructed by: Mcaciso Stansfield Attorneys
For the Respondent: Advocate Redding SC
Instructed by: Solomon Holmes Attorneys