About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2017
>>
[2017] ZACC 9
|

|

National Union of Metalworkers of South Africa obo M Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (CCT04/16) [2017] ZACC 9; [2017] 6 BLLR 539 (CC); 2017 (7) BCLR 851 (CC); (2017) 38 ILJ 1560 (CC) (30 March 2017)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 04/16
In the matter
between:
NATIONAL UNION OF
METAL
First Applicant
WORKERS OF SOUTH
AFRICA
(on behalf of)
MOSES FOHLISA &
41 OTHERS
Second to Further Applicants
and
HENDOR MINING
SUPPLIES (A DIVISION
OF
Respondent
MARSCHALK BELEGGINGS
(PTY) LIMITED)
Neutral
citation:
National
Union of Metalworkers of South Africa obo M Fohlisa and 41 Others v
Hendor Mining Supplies (a division of Marschalk Beleggings
(Pty) Ltd)
[2017] ZACC 9
Coram:
Mogoeng CJ, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mbha AJ, Mhlantla J, and Zondo J
Judgments:
Madlanga J (first judgment): [1] to [58]
Zondo J (second judgment): [59] to [204]
Heard on:
8 September 2016
Decided on:
30 March 2017
Summary:
Prescription Act, 1969
— Labour Relation
Act, 1995 — dismissal dispute — judgment — section
193(1)(c) of the LRA
ORDER
On appeal from the Labour
Appeal Court (hearing an appeal from the Labour Court):
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the Labour Appeal Court and
Labour Court are set aside and that of the Labour Court is
substituted with the following:
“
(a)
The respondent is ordered to pay the employees, excluding the
deceased employees—
(i)
their weekly wages plus any other amount not forming part of the
wages to which each
employee would have been entitled for the period
1 January 2007 to 15 April 2007 together with interest thereon at
15.5% per annum
calculated from 16 April 2007 to date of payment; and
(ii)
their weekly wages plus any other amount not forming part of the
wages to which each employee
would have been entitled for the period
16 April 2007 to 28 September 2009 together with interest thereon at
15.5% per annum calculated
from the dates on which the weekly wages
and other amounts would have been due to date of payment.
(b)
The respondent is ordered to pay the estates of the deceased
employees against the production
of letters of executorship or
authority by the relevant executor or executrix—
(i)
the deceased employees’ weekly wages plus any other amount not
forming part
of the wages to which each deceased employee would have
been entitled for the period 1 January 2007 to the date of death
together
with interest thereon at 15.5% per annum calculated from 16
April 2007 to date of payment, in respect of employees who died on or

before 15 April 2007;
(ii)
the deceased employees’ weekly wages plus any other amount not
forming part of the
wages to which each deceased employee would have
been entitled for the period 1 January 2007 to 15 April 2007 together
with interest
thereon at 15.5% per annum calculated from 16 April
2007 to date of payment, in respect of employees who died after 15
April 2007;
and
(iii)
the deceased employees’ weekly wages plus any other amount not
forming part of the wages to
which each deceased employee would have
been entitled for the period 16 April 2007 to the date of death
together with interest
thereon at 15.5% per annum calculated from the
dates on which the weekly wages and other amounts would have been due
to date of
payment, in respect of employees who died during the
period 16 April 2007 to 28 September 2009, both dates inclusive.
(c)
Should the parties fail to reach agreement on any amount or amounts
contemplated in this
order, either party may seek relief from the
Labour Court.
(d)
The respondent is to pay the applicants’ costs, including the
costs of two counsel.”
4.
The respondent is to pay the applicants’ costs in this Court
and Labour
Appeal Court, including the costs of two counsel.
JUDGMENT
MADLANGA J
(Froneman J, Khampepe J and Mbha AJ concurring):
Introduction
[1]
This matter arises from an
employer’s failure to reinstate its employees and pay their
remuneration in the intervening period
before eventually reinstating
them.  The reinstatement took place in terms of an order made by
the Labour Court on 16 April 2007
(Cele AJ’s order).
The employees were to be reinstated with effect from 1 January 2007.
The Labour
Court also ordered the employees to report for duty on 23
April 2007.  On that day, the employees reported for duty but
the
employer did not take them back.  What it did instead was to
engage in attempts to have the order overturned through appeal

processes.  It was only after these attempts had failed that the
employees were able to return to work.  That was on
29 September
2009.  Payment of remuneration for the period 1 January 2007 to
28 September 2009 was not forthcoming.
Litigation ensued.
In the main,
[1]
at issue before us is whether the prescription period in respect of
the unpaid remuneration is three or 30 years.  The
answer
turns on whether the employees’ claim is a judgment debt.
Background
[2]
The respondent, Hendor Mining
Supplies (a division of Marschalk Beleggings (Pty) Limited) (Hendor)
dismissed 42 of its employees
for participating in a strike.
The National Union of Metalworkers of South Africa (NUMSA)
[2]
and the dismissed employees (employees)
[3]
challenged the fairness of the dismissals in the Labour Court.
[4]
Their success resulted in Cele AJ’s order.  The employees’
reinstatement was in terms of section 193(1)(a)
[5]
of the Labour Relations Act.
[6]
Hendor rejected the employees’ tender of services.
Instead it appealed, unsuccessfully, to the Labour Appeal

Court.  An application for leave to appeal to the Supreme Court
of Appeal suffered a similar fate on 15 September 2009.

Employees who could resumed duty on 29 September 2009.
[7]
[3]
Hendor ignored a letter from the
employees’ attorneys which demanded payment of remuneration for
the period 1 January 2007
to 28 September 2009.  At the instance
of the employees, the Registrar of the Labour Court issued a writ of
execution in respect
of this arrear remuneration.  Hendor
successfully urged the Labour Court to set aside the writ.
It held that Cele AJ’s
order did not sound in money.
All this happened from 4 February 2010 to 23 June 2011.
[4]
Three years four days from 15
September 2009
[8]
NUMSA and the employees sought a declarator from the Labour Court
that Hendor was liable to pay the employees’ remuneration
from
1 January 2007 to 28 September 2009.  Needless to say, those who
had died before the date of resumption of duty were
to be remunerated
up to the date of death.  In those proceedings the substitution
of the executrixes and executors of the
estates of the deceased
employees (estate representatives) was sought.  Hendor took a
point that in terms of
section 11(d)
of the
Prescription Act
[9
]
the claims had prescribed.
[10]
It also challenged the procedure followed in seeking the
substitution.  The Labour Court found for the employees both
on
substitution and the merits.  It ordered back pay up to 28
September 2009 or the date of death of each employee who died
before
resumption of duty.
[11]
It took this view on the basis that the back pay was a judgment debt
which – in terms of
section 11(a)(ii)
of the
Prescription
Act – prescribed
after 30 years.
[5]
The Labour Appeal Court reasoned in
its judgment that the claim for back pay for 1 January to 22 April
2007
[12]
was a judgment debt.
[13]
This reasoning notwithstanding, in its order the Labour Appeal Court
dismissed the declaratory order sought by NUMSA and
the employees in
its entirety.  That dismissal must be inclusive of back pay due
in respect of the period 1 January to 22
April 2007.  In its
reasoning, the Labour Appeal Court held that the prescription period
in respect of the claims for arrear
wages for the period 23 April
2007 to 28 September 2009
[14]
was three years.  As, from 15 September 2012,
[15]
that period had elapsed, these claims had prescribed.  It
reasoned that these claims did not arise from Cele AJ’s order,

but from the employment contract which had been reinstated.  In
view of its conclusion on prescription, it did not find it
necessary
to decide the question of substitution.
[6]
NUMSA and the employees have now
approached us for leave to appeal.  In argument, they support
the Labour Court’s holding
that the back pay arising from
reinstatement constitutes a judgment debt and will only prescribe
after 30 years in terms of
section 11(a)(ii)
of the
Prescription
Act.  In
the alternative, they argue that the earliest they
could reasonably have come to know that Hendor would not pay the
back-dated
remuneration was on 29 September 2009 when they reported
for duty.  Reckoned from 15 September 2009,
[16]
that was a period less than three years.  Understandably, Hendor
supports what the Labour Appeal Court held.
Issues
[7]
All this leads to the conclusion
that the issues are—
(a)
whether leave to appeal should be granted;
(b)
whether the obligation to pay arrear remuneration for the period
1 January 2007 to
28 September 2009 constitutes a judgment
debt;
(c)
if not, whether prescription only started running from
29 September 2009; and
(d)
a determination on the question of substitution of estate
representatives.
Leave to appeal
[8]
At the centre of this matter is
prescription.  A holding that a claim has prescribed implicates
the right of access to courts.
[17]
That is a quintessential constitutional issue.
[18]
This application also requires a determination of the effect of
retrospective reinstatement in terms of section 193(1)(a)
of the
Labour Relations Act and the resultant need to pay arrear
remuneration.  This too is a constitutional issue.
[19]
That is so because the Labour Relations Act was promulgated to give
effect to the constitutional right to fair labour practices.
So,
we have jurisdiction.  But that is not enough: do the interests
of justice dictate that leave be granted?
[20]
As I will demonstrate shortly, there are reasonable prospects of
success on both issues.  Both are of some import.
Leave to
appeal must be granted.
The obligation to pay
arrear remuneration
[9]
For this debate, it makes sense to
quote Cele AJ’s order.  This is it:
“
(a)
[Hendor] is ordered to reinstate the [employees] in the same or not
less favourable positions
as they had at the time of their dismissal.
(b)
The reinstatement is to be with effect from 1 January 2007.
Each [employee]
is to report on duty on 23 April 2007 at 08h00.”
[21]
[10]
Before taking another step forward,
let me first deal with the implications of a reinstatement order.
This is how Nkabinde
J explained them in
Equity
Aviation
:
“
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.  Reinstatement
is the primary statutory remedy in unfair dismissal
disputes.
It is aimed at placing 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.  Differently
put, if employees are reinstated
they resume employment on the same
terms and conditions that prevailed at the time of their dismissal.
As the language of
section 193(1)(a) indicates, the extent of
retrospectivity is dependent upon the exercise of a discretion by the
court or arbitrator.
The only limitation in this regard is that
the reinstatement cannot be fixed at a date earlier than the actual
date of the dismissal.
The court or arbitrator may thus decide
the date from which the reinstatement will run, but may not order
reinstatement from a
date earlier than the date of dismissal . . .
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.”
[22]
[11]
In its fullest, what is the import
of Cele AJ’s order?  It does not mention back pay.
In
Finishing Touch
Mhlantla JA held:
“
The
starting point is to determine the manifest purpose of the order.
In interpreting a judgment or order, the court’s
intention is
to be ascertained primarily from the language of the judgment or
order in accordance with the usual well-known rules
relating to the
interpretation of documents.  As in the case of a document, the
judgment or order and the court’s reasons
for giving it must be
read as a whole in order to ascertain its intention.”
[23]
[12]
In
Ex
parte Women’s Legal Centre,
this
Court held that the “[p]roper interpretation of an order of
court also entails determining the legal context within which
the
words in the order were used”.
[24]
[13]
What is that legal context in this
matter?  What
Equity Aviation
tells us is certainly central to that context.  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

back-dated 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”.
[25]
Obviously, if the employer may be able to demonstrate that –
for one reason or another
[26]
– 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
[27]
or on or after that date but before the date of reinstatement.
[28]
[14]
Of the employee benefits payable
retrospectively, the present proceedings concern remuneration.
When Cele AJ ordered retrospective
reinstatement, that required of
Hendor to pay the employees’ remuneration retrospectively from
1 January to 22 April
2007.  Though not explicit, that much
is implicit from a proper reading of the order.  That, of
course, was on the understanding
that the employees would resume
duties on 23 April 2007.
[15]
It seems there should be no question
that an obligation to pay emanating from a court order is a judgment
debt and should prescribe
only after 30 years.  Not according to
Hendor.  It argues that the obligation we are about here is not
a judgment debt.
That is because one cannot issue a writ for
its enforcement.  “It is not executable without more,”
says the contention.
And it is not immediately executable
because the amount to be paid is not quantified.
[29]
This misses the point.  The antecedent question is whether the
obligation to make a retrospective payment of remuneration
is a
judgment debt.  That must be answered by having recourse to what
“debt” means in terms of the
Prescription Act.
[16
]
This Act does not define the word.
Although this Court in
Makate
[30]
consciously eschewed delineating the exact meaning of “debt”,
it accepted the restrictive interpretation of that word
by the
Appellate Division in
Escom
.
[31]
Rejecting a wide interpretation by the Appellate Division in
Desai
,
[32]
Jafta J said:
“
In
Escom
the
Appellate Division said that the word ‘debt’ in the
Prescription Act should
be given the meaning ascribed to it in the
Shorter Oxford English Dictionary, namely:
‘
1. Something owed or due: something (as
money, goods or service) which one person is under an obligation to
pay or render to another.
2. A liability or obligation to pay
or render something; the condition of being so obligated.’”
[33]
[17]
The obligation to pay back-dated
remuneration fits both dictionary meanings in the quotation from the
Shorter Oxford English Dictionary
.
[34]
[18]
Also, there is nothing magical about
an order being executable.  The question should rather be
whether the order is enforceable,
thus giving rise to an obligation
of the nature envisaged in
Escom
.
[35]
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 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 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.  Just two examples.
Ordinarily when making a retrospective payment of remuneration, an
employer deducts from
it and transmits to the South African Revenue
Service income tax commonly known as Pay As You Earn (PAYE).
[36]
In terms of the Unemployment Insurance Contributions Act (UIC
Act)
[37]
an employer and employee
[38]
must, on a monthly basis, each contribute to the Unemployment
Insurance Fund (UIF) one per cent of the employee’s
remuneration
to the Unemployment Insurance Fund.
[39]
In practical terms the employer deducts the
employee’s one per cent contribution and remits it together
with the employer’s
contribution to the UIF.
[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.
[21]
Do the facts that Cele AJ’s
order specified that reinstatement was to be with effect from 1
January 2007 and that the resumption
of duty was to be on
23 April 2007 mean that only back pay for  the period
1 January to 22 April 2007 can properly
be regarded as constituting a
judgment debt?  I think not.  Viewed from 29 September
2009, back pay both before 23 April
2007 and from 23 April 2007 is a
direct consequence of Cele AJ’s order.  It is
artificial to draw a line and say
the one is a judgment debt and the
other not.  Let me make a short analysis of the order.
[22]
Cele AJ’s order did not itself
reinstate the employees.  Rather it ordered Hendor to do so.
Although a reinstatement
order places a primary obligation on
the employer to reinstate, it creates an obligation in terms of which
an employee must first
present her- or himself for resumption of
duties.  The employer must then accept her or him back in
employment.  These
are reciprocal obligations.  The
employee’s obligation to present her- or himself for work and
the corresponding obligation
to accept her or him back to work flow
from the court order.  On the authority of
Escom
,
[40]
which was accepted by this Court in
Makate
,
[41]
these obligations are each a judgment debt.  As in all cases
where a dispute is settled by adjudication, the judgment becomes
the
source of the debt, whether the judgment is viewed as strengthening
the original underlying debt or novating it.
[42]
It is, in the plainest of terms, a judgment debt.
[23]
If the employee presents her- or
himself for work, but the employer refuses to accept her or him back,
her or his remedy is not
contractual.  It is to bring the
employer before court for contempt of court.  What contempt?
For not complying
with the judgment debt embodied in the order to
accept her or him back into employment.  The order of
reinstatement cannot
be a contractual debt.  It is true that
once the employee has presented her- or himself for work and has been
accepted back,
prospectively from that date the reciprocal rights and
obligations of the employer and employee will be purely contractual.

And the employee cannot claim remuneration or other employment
benefits if she or he stops working.  But the fact that the

reciprocal rights and obligations are then governed by contractual
principles does not mean that the original obligation to comply
with
the reinstatement order has also somehow morphed into a contractual
debt.  For as long as that obligation is not complied
with it
continues to maintain its essential nature of being a judgment debt.
[24]
The mention of 23 April 2007
[43]
in paragraph (b) of the order does not alter the fact that it is
Hendor that was ordered to reinstate the employees.  All
that
this did was to indicate a date by which,
if
reinstated by Hendor
, the employees
were to resume duties.  To suggest otherwise would be to read
paragraph (b) without due regard to paragraph
(a) and not to see the
order as one composite whole.  Of course, as I have alluded to
this, the employees could only get to
know whether Hendor would
reinstate them upon first presenting themselves for work.
[25]
That being the case, here is
something crucial in the factual scenario.  Until after the
Supreme Court of Appeal had refused
leave on 15 September 2009,
Hendor never reinstated the employees.  It never complied with
Cele AJ’s order.  For
that entire period the contract was
thus never reinstated.  The employees were only reinstated
pursuant to the refusal of
leave to appeal by the Supreme Court
Appeal.  All this was as a result of Hendor’s efforts at
appealing Cele AJ’s
order.  According to the principle
articulated in
Bailey
the
coming into operation and execution of Cele AJ’s order was
suspended pending a final decision on appeal.
[44]
It was only when no further appeal process was being pursued that
this suspension came to end.  Then
ex tunc
(with effect from the beginning) Cele AJ’s order became fully
operational and executable.
[26]
But what exactly was the effect of
this?  It was not reinstatement of the employees by the order
itself.  It was still
Hendor that had an obligation to
reinstate.  Once the suspension of the operation of Cele AJ’s
order had disappeared,
this obligation existed
ex
tunc
and
endured until complied with
.  From
16 April 2007
[45]
until 28 September 2009
[46]
the order was never complied with.  When Hendor eventually
reinstated the employees with effect from 29 September 2009, that

could only have been in terms of the continuing obligation stemming
from Cele AJ’s order.  Throughout the period that
Hendor
resisted compliance with the order, the obligation arising from the
order to pay remuneration and other benefits did not
disappear.
Borrowing from the words of Goldstone JA in
Performing
Arts
, if anything, during that period
Hendor “knowingly r[an] the risk of any prejudice which [might]
be the consequence of delaying
the implementation of the order”.
[47]
The remuneration that would have been payable prospectively as a
contractual obligation became back pay as a result of Hendor’s

actions.  And that back pay was payable in terms of Cele AJ’s
order.  Hendor’s actions made reinstatement
that would
have resulted in prospective payments impossible.
[27]
That leaves no room for carving up
the period during which there was non compliance with Cele AJ’s
order into separate
periods that give rise to different legal
consequences.  Hendor had initially suggested that only back pay
in respect of the
period 1 January
[48]
to 22 April 2007 constituted a judgment debt.  At the hearing,
however, it submitted that the employees’ claim was not
a
judgment debt.  It thus went back on its earlier suggestion.
It is now submitted that there was no distinction in
the juristic
nature, if not provenance, of the obligation in respect of the period
1 January to 22 April 2007 and the one
in respect of the period
23 April 2007 to 28 September 2009.  I agree.
This change of tack did not mean that
Hendor was conceding the case.
Rather it now contended that for the entire period the debt arose
from the reinstated contract,
was thus purely contractual and
prescribed after three years.  That I do not agree with.
[28]
It is inapt to disregard the fact
that for the entire period 1 January 2007 to 28 September 2009
the employees had, in fact,
not been reinstated.  To suggest,
without more, that for that period the obligation to pay remuneration
arose from contract
is to ignore reality.  That reality is that
the reinstatement that eventually took place on 29 September
2009 could only
have been in terms of one thing; and that is the
order of Cele AJ.  Needless to say, the back pay that then arose
was a judgment
debt.
[29]
I should not be misunderstood.
I do accept that the claims for back pay come about because of the
reinstated contracts of
employment.  Here, by reinstated
contracts I mean no more than what I have said above, which is that,
insofar as the employees’
obligations to render services are
concerned, that is an impossibility.  With this qualification in
mind, the entitlement
to back pay flows from the reinstated
contracts.
[49]
But it does not follow that the employer’s obligation in
respect of back pay is not a judgment debt.  The two
are not
mutually exclusive.  To suggest otherwise, as does Hendor, is
not apt.
[30]
The sameness of the nature of the
obligation to make a retrospective payment of remuneration in respect
of the so-called two periods
is best illustrated by changing the
facts slightly.  The employees were unsuccessful at first
instance.  They succeeded
on appeal on 1 December 2008.
The appellate court ordered resumption of duty on 2 January 2009,
with reinstatement
being retrospective to 1 January 2007.
Resumption of duty indeed took place on 2 January 2009.
Tweaking the facts
once more, the employees succeeded at first
instance.  The court of first instance then ordered
reinstatement with effect
from 1 January 2007, with resumption of
duty to take place on 23 April 2007.  On 1 December 2008 the
appellate court merely
dismissed an appeal against that order.
As a matter of practicality, the employees only resumed duty on 2
January 2009.
Is there a difference in substance between these
two scenarios?  I see none at all.
[31]
I have to deal very briefly with the
judgment by my colleague Zondo J (second judgment).  It
refers to two periods.
But these are different from the two
periods that Hendor initially placed reliance on.  The second
judgment carves out the
periods 1 January to 15 April 2007 and 16
April 2007 to 28 September 2009.  According to the second
judgment, back pay under
the first period is a judgment debt and
prescribes after 30 years.  And back pay for the other period is
not and prescribes
after three years.  However, on the facts,
the second judgment holds that the claim for back pay has not
prescribed.
As I have said, I disagree with the notion that
there are two periods.  All there is, is the period 1 January
2007 to 28 September
2009 during which Hendor had not reinstated the
employees in compliance with Cele AJ’s order.  The
injunction to reinstate
contained in that order continued to exist –
for that entire period – until complied with.
[32]
For the meaning attached to
“reinstate” in
Equity
Aviation
[50]
to become a reality, outstanding remuneration could not but
accumulate for as long as the order was not complied with.  For

the entire intervening period before reinstatement, the obligation to
reinstate and effect the concomitant payment could only have
been a
judgment debt.  To shed light on this, I need only emphasise a
point I made earlier.  That is: the order itself
did not
reinstate; it is Hendor that was supposed to.
[33]
On principle,
[51]
when reinstatement eventually took place with effect from 1 January
2007 as directed in Cele AJ’s order, the accumulated

remuneration was also reinstated.  The practical and, indeed,
legal reality dictated that it had to be paid as back pay.
On a
proper reading, that is the import of the
Equity
Aviation
principle.
[52]
In the context of this type of order, I do not see why 16 April 2007
should alter this position.  The relevance of this
date is
merely that it is the date of the order.  Nowhere does the order
say that the employees must be remunerated retrospectively
from
1 January 2007 to 15 April 2007.
[34]
Besides what I am going to say
later, an immediate problem evinced by the second judgment’s
choice of the date of the order
as the cut-off point is how that
judgment treats the short period from 16 to 22 April 2007.  And
I see no answer to this problem
in the second judgment.
According to it, this period falls within the “second period”
in respect of which unpaid
remuneration is not a judgment debt.
Here is the difficulty that I have.  If Hendor had allowed the
employees to resume
their duties on 23 April 2007,
[53]
surely remuneration for this short period would have been part of the
back pay ordered by Cele AJ and envisaged in that order.
How
else could it not be?  After all, reinstatement was
retrospective from 1 January 2007.  That entailed the
retrospective
payment of remuneration.  That must include back
pay for 16 to 22  April 2007.  Just how could it not,
if employees
were expected to return to work only on 23 April 2007?
Back pay for the period 16 to 22 April 2007 can only be a judgment

debt.  I fail to see how the second judgment distinguishes this
from its treatment of the period 1 January to 15 April 2007.
In
fact, the distinction is odd.  It demonstrates the
artificiality,
in an order of this
nature
,
[54]
of overemphasising the date on which the order was made.
[35]
If anything, quite plainly it was
not possible to implement the order instantaneously.  That
explains why – in terms
of the order – the employees were
to report back at work only on 23 April 2007.  Surely, the order
envisaged that –
upon reporting for duties on 23 April 2007 –
the employees would be entitled to back pay from 1 January to 22
April 2007.
[36]
To expose a basic mistake made by
the second judgment, let us look at this from a millisecond before
reinstatement actually took
place on 29 September 2009.  At that
point, did any contract of employment exist?  Of course not.
Still looking
at this from the same time, if no contract existed as
at that time, it follows that there was also no contractual
obligation.
The obligation that existed was to reinstate.
Equity Aviation
tells us that “‘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”.
[55]
Surely, that must mean the obligation to reinstate is not about only
allowing employees to return to work.  It is also
about paying
their remuneration.  This – rolled in one – is the
nature of the obligation.  The obligation
comprises two prongs
which are bound inextricably and are thus not mutually exclusive.
That is why, like the very obligation
to reinstate, the duty to
retrospectively fulfil contractual obligations (e.g. payment of
remuneration) flows directly from the
order and is a judgment debt.
Here the two-pronged duty remained unfulfilled as at a millisecond
before reinstatement on
29 September 2009.
[37]
The question then is: at that point,
i.e. just before reinstatement, could the second judgment
appropriately talk of remuneration
that was due in terms of the
employees’ contracts of employment?  Obviously not.
The reason is plain: no contracts
existed at that point.  All
that existed was an obligation to reinstate, with all that
reinstatement entails.  How and
when then could that prong of
this obligation, which required that remuneration be paid, mutate to
a contractual obligation?
It escapes me how.  And this
must put paid to the entire lengthy discourse in the second judgment.
[38]
Relatedly, the second judgment seems
to look at the problem from a time after reinstatement.  It
forgets the provenance of
the obligation to pay remuneration, which
is the order to reinstate.  Yes, once there has been
reinstatement, from that point
onwards obligations owed by each party
to the contract of employment are purely contractual.  But that
does not alter the
nature of the pre-existing obligation to
reinstate, including the concomitant obligation of paying
remuneration for the period
1 January 2007 to 28 September
2009.  If, for whatever reason, the employer fails to allow the
employees to return to
work, the obligation to allow them back
endures and so does the attendant need to remunerate for the entire
period the employees
are not accepted back at work.  So, for
each day that the employer refuses to reinstate, there is a
correlating increase in
the remuneration payable.  It would be
absurd for the obligation to reinstate to persist whilst the
corresponding obligation
to remunerate were frozen as at the date of
the court order.  Until satisfied, each is a judgment debt owed
to the employees.
[39]
I am not suggesting that, upon
reinstatement, payment of remuneration for this period is not in
accordance with the employment contract.
It is.  After
all, it is the employment relationship that retrospectively comes
back to life.  Therefore, everything
capable of retrospective
performance, like payment of remuneration, must be done in terms of
the contract.  But the obligation
to pay remuneration for this
period retains its essential character.
[40]
If, on whatever basis, the employer
were to be entitled – in terms of the contract – to take
whatever action (e.g. not
paying remuneration) 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”.
[56]
The second judgment then says Hendor would have no forum at
which to raise its entitlement to take the action.
[57]
What this misses is that the effect of the order was to reinstate the
employees
on the same terms and
conditions
.
[58]
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).
[59]
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.
The perceived difficulties associated with them contained in the
second judgment simply evaporate.
[42]
So much for the startling
proposition that my approach denies Hendor “an opportunity to
be heard in regard to the period after
Cele AJ’s order”
and infringes its right in terms of section 34 of the
Constitution.
[60]
[43]
Let me deal with the
Jaguar
Shoes
[61]
and
Coca Cola
[62]
cases on which the second judgment places strong reliance.
Jaguar Shoes
does not support the view that an obligation to pay remuneration in
respect of a period during which an employer resisted an order
to
reinstate employees is not a judgment debt.  In that case the
Industrial Court ordered the reinstatement of dismissed employees

(appellants) in terms of section 43(4) of the old Labour Relations
Act
[63]
(old LRA).  If not extended, that order was to be valid for 90
days.
[64]
The Industrial Court sent a notice to the appellants’ attorneys
advising the appellants of the order.  This was
very close to
the expiry of the 90-day period.  At that time the attorneys’
offices were closed for the December holidays.
Consequently,
the appellants did not tender their services within the 90-day
period.  And the order had not been extended
in terms of section
43(6) of the old LRA.  The appellants subsequently brought an
application before the Industrial Court
claiming payment of
remuneration from their respective dates of dismissal to a date 90
days after the date of the reinstatement
order.  The employer
resisted this on the basis that the appellants had not tendered their
services during the 90-day period,
thus rendering it impossible for
it to reinstate them.  The Industrial Court dismissed the
application on a technicality.
The appellants appealed to the
Natal Provincial Division of the then Supreme Court of South Africa
(High Court).
[44]
The High Court held that it was
incumbent upon employees “to take reasonable steps to ensure
that they should be in a position
to render or tender their services
as soon as is reasonably possible after a reinstatement order is
made”.
[65]
On the facts, it held that the appellants were “excused from
rendering or tendering their services during the whole
of the 90-day
period”.
[66]
This was,
inter alia
,
because they had not received timeous notice of the order of
reinstatement.
[67]
The High Court concluded that the appellants were entitled to
payment.
[45]
Describing “the effects . . .
of a reinstatement order following upon termination of
employment”,
[68]
this being what it considered to be the main question in the
appeal,
[69]
the Court had this to say:
“
Although
decreed by statute and ordered by a court, the relationship which the
employer
is to reinstate
is a contractual one; a contract of employment between himself and
the employee.  To order him to reinstate that relationship
seems
to me in effect to order him . . . to perform his obligations in
terms of the contract of employment which existed prior
to
termination . . .”. (Emphasis added)
[46]
Crucially, the Court was addressing
itself to the nature of the relationship that would come about
upon
reinstatement.
This is plain from
the reference to “the relationship which the employer is to
reinstate”.  That says nothing
about, and is a far cry
from, the nature of (a)
the obligation
to reinstate and (b) the associated
obligation
to pay remuneration
before actual
reinstatement
.  This precedes
actual reinstatement.  Yes, upon reinstatement the relationship
becomes contractual.  In fact, what
the High Court held is in
line with the
Equity Aviation
principle and what I say in this judgment in that regard.
[47]
In
Coca Cola
the Labour Appeal Court first held:
“
The
back pay 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.”
[70]
[48]
This is a narrow view of the power
to reinstate in section 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”.
[71]
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 payable.
On the Labour Appeal
Court’s approach, this must mean that 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.
[50]
The quote that I have just dealt
with seems to have set the scene for the Labour Appeal Court’s
later conclusion that—
“
if
the employee, after the reinstatement order and during the time that
the employer exercises its review and appeal remedies to
exhaustion,
tenders his/her labour he/she does so in terms of the employment
contract.  She/he is therefore entitled to payment
in terms of
the contract of employment.  The claim is therefore a
contractual one, wherein the employee would have to set
out
sufficient facts to justify the right or entitlement to judicial
redress.  The employee would
inter
alia
have to prove that the contract of employment is extant; that she/he
tendered his/her labour in terms thereof and that the employer

refuses or is unwilling to pay him/her in terms of that contract.
The employer on the other hand would have all the contractual

defences at her/his disposal.”
[72]
[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,
section
193(1)(a) says as much.  I must conclude that the Labour Appeal
Court’s view to the contrary was wrong.
[52]
Ultimately, I remain unswayed in my
view that the obligation to settle the outstanding debt for back pay
for the entire period 1
January 2007 to 28 September 2009 is a
judgment debt.  That debt prescribes after 30 years in terms of
section 11(a)(ii)
of the
Prescription Act.  It
follows that the
applicants were entitled to relief.
Prescription from 29
September 2009
[53]
The conclusion that the employees’
claims constitute judgment debts makes it unnecessary to deal with
the applicants’
alternative argument that prescription started
running on 29 September 2009.
Substitution
[54]
Above
[73]
I mentioned that some employees had since died and the substitution
of their estate representatives was sought when proceedings
were
launched for the declarator that Hendor was liable to pay the
employees’ remuneration from 1 January 2007
to 28
September 2009.  As indicated, the Labour Court allowed
substitution.  The Labour Appeal Court did not find it
necessary
to determine this issue.  This was because of its decision on
prescription.  Now that this decision has been
overturned, the
Labour Court’s decision stands.  Hendor has not appealed
against it.  There being no appeal, that
is the end of the
matter.
[55]
That said, a claim by each of the
estate representatives can only be up to the date of death of the
employee concerned or up to
28 September 2009.
[74]
The estates of employees who passed away before 1 January 2007 have
no claim.  The estates of Mr S Molefe,
[75]
Mr S M Dubazana
[76]
and Mr T J Khumalo
[77]
fall into this category.  The estates of Mr C S Godi,
[78]
Mr K S Thango,
[79]
Mr M J Rantho,
[80]
and Mr M M Vilakazi,
[81]
are entitled to claim back pay for the full period, i.e. 1 January
2007 to 28 September 2009.  The estates of Mr E T

Dlamini,
[82]
Mr M D Maloka,
[83]
Mr B J Sibuyi,
[84]
Mr S M Madlopha,
[85]
and Mr B D Mlangeni,
[86]
have claims from 1 January 2007 until the date of death of the
employee concerned.
Remedy
[56]
The appeal must succeed.  An
order with permutations dictated by the debate in the preceding
paragraph must be granted.
The back pay that the employees are
entitled to comprises weekly wages and other amounts like “leave
pay” and “leave
enhancement pay”.
[87]
Hendor is liable for interest at 15.5 % per annum in respect of
all that back pay.
Costs
[57]
Ordinarily where there is a
continuing employment relationship, the usual rule that costs must
follow the result does not apply.
[88]
That is so because a costs order might not be in the best interests
of the relationship.
[89]
In this matter Hendor did everything possible to frustrate the
employees.  Its conduct appears to have been calculated
to wear
them down.  This is a case that calls for a departure from the
rule just referred to.
Order
[58]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The orders of the Labour Appeal Court and
Labour Court are set aside and that of the Labour Court is
substituted with the following:
“
(a)
The respondent is ordered to pay the employees, excluding the
deceased employees—
(i)
their weekly wages plus any other amount not forming part of the
wages to which each
employee would have been entitled for the period
1 January 2007 to 15 April 2007 together with interest thereon at
15.5% per annum
calculated from 16 April 2007 to date of payment; and
(ii)
their weekly wages plus any other amount not forming part of the
wages to which each employee
would have been entitled for the period
16 April 2007 to 28 September 2009 together with interest thereon at
15.5% per annum calculated
from the dates on which the weekly wages
and other amounts would have been due to date of payment.
(b)
The respondent is ordered to pay the estates of the deceased
employees against the production
of letters of executorship or
authority by the relevant executor or executrix—
(i)
the deceased employees’ weekly wages plus any other amount not
forming part
of the wages to which each deceased employee would have
been entitled for the period 1 January 2007 to the date of death
together
with interest thereon at 15.5% per annum calculated from 16
April 2007 to date of payment, in respect of employees who died on or

before 15 April 2007;
(ii)
the deceased employees’ weekly wages plus any other amount not
forming part of the
wages to which each deceased employee would have
been entitled for the period 1 January 2007 to 15 April 2007 together
with interest
thereon at 15.5% per annum calculated from 16 April
2007 to date of payment, in respect of employees who died after 15
April 2007;
and
(iii)
the deceased employees’ weekly wages plus any other amount not
forming part of the wages to
which each deceased employee would have
been entitled for the period 16 April 2007 to the date of death
together with interest
thereon at 15.5% per annum calculated from the
dates on which the weekly wages and other amounts would have been due
to date of
payment, in respect of employees who died during the
period 16 April 2007 to 28 September 2009, both dates inclusive.
(c)
Should the parties fail to reach agreement on any amount or amounts
contemplated in this
order, either party may seek relief from the
Labour Court.
(d)
The respondent is to pay the applicants’ costs, including the
costs of two counsel.”
4.
The respondent is to pay the applicants’ costs in this Court
and Labour Appeal Court, including the costs of two counsel.
ZONDO J (Mogoeng
CJ, Jafta J and Mhlantla J concurring):
Introduction
[59]
The question for determination in
this matter, if we grant the applicants leave to appeal, is this:
where, after the Labour Court
has granted an order that an employer
“reinstate” a group of employees and the employer does
not allow the employees
to work pending its appeal or application for
leave to appeal against that order but reinstates them when its
appeal or application
for leave to appeal is dismissed, is the
employees’ subsequent claim for the payment of wages for the
period they did not
work while the employer was pursuing its appeal
or application for leave to appeal a judgment debt or a contractual
claim?
[60]
This question arises in the present
case because, after the Labour Court had granted an order on 16 April
2007 that the respondent
(Hendor) reinstate the second and further
applicants in the positions they had occupied before dismissal with
effect from 1 January
2007, Hendor did not allow the second and
further applicants to work pending the outcome of its intended appeal
against the order
of the Labour Court.  However, it reinstated
them on 29 September 2009 after the Supreme Court of Appeal
had dismissed
its application for leave to appeal to it against the
dismissal of its appeal by the Labour Appeal Court.
[61]
After the second and further
applicants had been reinstated, they demanded payment of their wages
for the period from 1 January
2007 to September 2009 but Hendor was
not prepared to pay them any wages for that period.  This
ultimately led to litigation
that has gone as far as this Court.
Hendor resisted the second and further applicants’ claim for
the payment of wages
for the period in question mainly on the basis
that the claim had prescribed.  Hendor contended that the claim
is a contractual
claim and the applicable prescription period of
three years had lapsed before the applicants instituted the relevant
legal proceedings.
The second and further applicants contend
that the claim is not a contractual claim but is a judgment debt.
If the claim
is a judgment debt, it has not prescribed because the
applicable prescription period will be 30 years.
[90]
If it was a contractual claim, then it may or may not have
prescribed.
[62]
I have read the judgment by my
Colleague, Madlanga J (first judgment).  It concludes that the
claim is a judgment debt and
has, therefore, not prescribed.  I
am unable to agree with the conclusion that the whole claim is a
judgment debt.  One
part of the claim, namely, the one for wages
for the period 1 January 2007 to 15 April 2007 is
a judgment debt
but the other part, namely, the one for wages for the
period 16 April 2007 to 28 September 2009 is a
contractual
debt and not a judgment debt.  However, I agree that
the claim has not prescribed.  In regard to the first part of
the
claim, it has not prescribed because, being a judgment debt, the
prescription period applicable to it is 30 years.  The second

part of the claim has also not prescribed but my reasons for this
conclusion differ from those in the first judgment.  My
reasons
for the conclusion that the second part of the claim is a contractual
claim and that it has not prescribed are set out
below.
Background
[63]
The second and further applicants
were employed by Hendor.  Hendor dismissed them from its employ
on 18 August 2003 for participating
in an unprotected strike for
about seven weeks preceding 18 August 2003.  A dispute then
arose between them and the National
Union of Metal Workers of South
Africa (union), on the one hand and, on the other, Hendor about the
fairness or otherwise of the
dismissal and whether, if the dismissal
was unfair, they should be reinstated or granted some other remedy.
The second and
further applicants maintained that the dismissal was
unfair and Hendor should reinstate them whereas Hendor took the
position that
the dismissal was fair and the second and further
applicants were not entitled to any relief.
[64]
The dispute was initially referred
to the conciliation process in terms of section 191(1) of the
Labour Relations Act (LRA).
[91]
When that process failed to produce a settlement, the dispute was
referred to the Labour Court in terms of section 191(5)
of the
LRA for adjudication.  In terms of section 191(5)(b) a dispute
such as this dispute is referred to the Labour Court
“for
adjudication” if the employees allege that the reason for their
dismissal is their participation in a strike that
does not comply
with the provisions of Chapter IV of the LRA.
[65]
If, in adjudicating a dismissal
dispute pursuant to the provisions of section 191(5) of the LRA,
the Labour Court finds that
the dismissal was unfair, it may grant
any of the remedies provided for in section 193(1).  This is
subject to section 193(2)
and, where applicable, section 194.
Section 193(1) reads:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is
unfair, the Court or the arbitrator may—
(a)
order the employer to reinstate the
employee from any date not earlier than the date of dismissal;
(b)
order the employer to re-employ the
employee, either in the work in which the employee was employed
before the dismissal or in other
reasonably suitable work on any
terms and from any date not earlier than the date of dismissal; or
(c)
order the employer to pay compensation to
the employee.”
[66]
The Labour Court found the dismissal
of the second and further applicants substantively unfair.
Exercising its power in terms
of section 193(1)(a) of the LRA, the
Labour Court, through Cele AJ, granted the following order on 16
April 2007:
“
(a)
The respondent is ordered to reinstate the applicants in the same or
not less favourable positions
as they had at the time of their
dismissal.
(b)
The reinstatement is to be with effect from 1 January 2007.
Each applicant is
to report on duty on 23 April 2007 at 08h00.”
[92]
This order covers
three issues.  The issue under paragraph (a) is reinstatement.
Thereunder, Hendor was ordered to reinstate
the second and further
applicants.  That is the only thing that Hendor was ordered to
do under paragraph (a) of the order.
Paragraph (b) deals with
the date with effect from which the reinstatement order was to
operate retrospectively.  It was to
be with retrospective effect
from 1 January 2007.  The third is the date on which the Court
ordered the employees to report
for duty.  That was 23 April
2007.  That falls under paragraph (b) as well.
[67]
Between 16 and 23 April 2007 the
second and further applicants did not report for duty or tender their
services.  This may
have been because of the order Cele AJ
made that they should report for duty on 23 April 2007.  On 23
April 2007 the
second and further applicants reported for duty but
Hendor did not allow them to work.  Hendor was not prepared to
allow them
to work because it still wanted to appeal to the Labour
Appeal Court against Cele AJ’s order.  In effect, the
second
and further applicants were told to go back home and not
return to work pending the outcome of the appeal that Hendor intended
to pursue.
[68]
Hendor lodged an application in the
Labour Appeal Court for leave to appeal.  The appeal to the
Labour Appeal Court was heard
on 21 May 2009.  On 19 June 2009
the Labour Appeal Court handed down its judgment.  It dismissed
the appeal.
Hendor then applied to the Supreme Court of Appeal
for leave to appeal to that Court against the decision of the Labour
Appeal
Court.  On 15 September 2009 the Supreme Court of Appeal
dismissed Hendor’s application for leave to appeal.
[69]
The union and the second and further
applicants conceded that they learnt of the dismissal by the Supreme
Court of Appeal of Hendor’s
application for leave to appeal on
15 September 2009.  Between 15 and 28 September 2009 the second
and further applicants
did not report for duty or tender their
services.  They only did so on 29 September 2009.  Hendor
reinstated them on
that day.  However, it did not pay them any
remuneration for the period between 1 January 2007 and
28 September 2009.
The date of 1 January 2007
is the date with effect from which the Labour Court had ordered
Hendor to reinstate the second
and further applicants.
[70]
By way of a letter dated 4 February
2010, the second and further applicants’ attorney made a demand
to Hendor for the payment
of the second and further applicants’
remuneration for the period from 1 January 2007 to
28 September 2009.
Hendor did not comply with the
demand.  On 6 October 2010 the second and further applicants
issued a writ of execution out
of the Labour Court in an attempt to
get their arrear wages from Hendor.  On 23 June 2011 the Labour
Court set the writ aside
on Hendor’s application on the basis
that the claim did not sound in money.
[93]
It directed the second and further applicants to make an application
for a declaratory order and to set out
the
grounds of liability
and
specify
the amounts claimed
.
Labour Court
[71]
More than a year later – on 19
September 2012 – the applicants lodged an application in the
Labour Court for the payment
of the arrear wages for the second and
further applicants in respect of the period from 1 January 2007
to 28 September 2009.
Hendor opposed this application
and filed an answering affidavit.  The second and further
applicants filed a replying affidavit.
Through Gaibie AJ the
Labour Court found in favour of the second and further applicants.
It concluded that Hendor owed the
second and further applicants a
debt by way of remuneration for the period 1 January 2007
to 28 September 2009.
It held that this was a
judgment debt and, as such, the applicable prescription period was 30
years.  Accordingly, it rejected
Hendor’s contention that
the claim had prescribed.  The Court ordered Hendor to pay the
second and further applicants’
arrear wages and other benefits
sounding in money for the period 1 January 2007 to 28 September 2009.
Labour Appeal Court
[72]
Gaibie AJ dismissed Hendor’s
application for leave to appeal, but the Labour Appeal Court
subsequently granted the required
leave.  Hendor appealed to the
Labour Appeal Court.  In a judgment by Savage AJA
[94]
that Court overturned the decision of the Labour Court.  It held
that, except for the claim relating to the payment of wages
for the
period 1 January 2007 to 22 April 2007, the claim had
prescribed.  The Labour Appeal Court held that the
claim for the
arrear wages for the period 1 January 2007 to 22 April 2007
constituted a judgment debt and, therefore,
the applicable
prescription period was 30 years.  This meant that the claim for
wages for that period had not prescribed.
However, it held that
the debt relating to the remuneration for the period 23 April 2007 to
28 September 2012 was not
a judgment debt but a contractual
debt.  The Court held that the prescription period applicable to
the arrear wages for this
period was three years and that, therefore,
the claim had prescribed.  The Labour Appeal Court calculated
the three year prescription
period from 15 September 2009
when the Supreme Court of Appeal dismissed Hendor’s application
for leave to appeal.
In taking the view that it took, the
Labour Appeal Court relied upon its previous decision in
Coca
Cola
[95]
which is discussed later in this judgment.
In this Court
Jurisdiction
[73]
The applicants then applied to this
Court for leave to appeal against the decision of the Labour Appeal
Court.  This Court
has jurisdiction in respect of this matter on
the bases that it raises a constitutional issue as well as an
arguable point of law
of general public importance that deserves the
consideration of this Court.  The question raised by this
matter, as set out
above, involves the interpretation of the LRA and
an order of the Labour Court issued in terms of section 193 of the
LRA.
Leave to appeal
[74]
The issue that this matter raises is
an important constitutional issue that affects not only the parties
in this matter but also
the labour law community at large.  The
issues have not been considered by this Court before.  There are
conflicting
judgments of the Labour Court and Labour Appeal Court.
The appeal has reasonable prospects of success.  This Court
should
entertain this matter so that it may pronounce on these issues
and, thus, bring about certainty in the law.  It is in the
interests of justice that leave to appeal be granted.
The appeal
[75]
As a result of Hendor’s
concession
[96]
in regard to the claim relating to the period 1 January 2007
to 23 April 2007, the Labour Appeal Court focused only on
the claim
relating to the period 23 April 2007 to 18 September 2009 and decided
the claim relating to that period.  However,
quite strangely,
when the Labour Appeal Court made its order at the end of its
judgment, it made an order that did not reflect
the concession made
in regard to the claim for the period from 1 January 2007 to
23 April 2007.  It upheld the appeal
as a whole, set
aside the whole order of the Labour Court, replaced it with only an
order declaring that the claim for wages for
the period 23 April 2007
to 18 September 2009 had prescribed and an order dismissing the
present applicants’ application
with no order as to costs.
The result is that, although Hendor had made a concession which that
Court had accepted, the order
it made reflected a complete success
for Hendor.  This must have been oversight on the Labour Appeal
Court’s part.
[76]
During the hearing counsel for
Hendor sought to withdraw the concession that he had made in the
Labour Appeal Court in regard to
the claim for the period 1 January
2007 to 23 April 2007.  Since the concession is on a point of
law, counsel was free
to withdraw it.  Counsel was in part
mistaken to withdraw his earlier concession.  That concession
was well made in respect
of the period 1 January 2007 to
15 April 2007 (first period).  The claim for the
payment of wages relating to that
period is a judgment debt because
of paragraph (b) of Cele AJ’s order.  Therefore, it has
not prescribed because the
applicable prescription period is 30
years.
[77]
With regard to the period 16 to 22
April 2007 counsel erred in conceding that the claim for the payment
of wages for that period
was a judgment debt.  Cele AJ’s
order did not require Hendor to pay wages for any period from 16
April 2007 and beyond.
Paragraph (a) of Cele AJ’s order
required Hendor to reinstate the second and further applicants which,
by operation of law,
would automatically restore the contracts of
employment which had previously governed the relationship between
each employee applicant
and Hendor.  The claim for the period 16
April 2007 to 18 September 2009 – in fact up to 28
September 2009 –
is one period (second period).  As I have
now disposed of the appeal relating to the first period, in the rest
of this judgment
I propose to deal with the appeal concerning the
claim for wages relating to the second period.
[78]
In the concession that counsel for
Hendor made in the Labour Appeal Court he included the second and
further applicants’ claim
for wages in regard to the period
16 to 22 April 2007 as also being a judgment debt just like the
claim for wages for the
first period (i.e. 1 January 2007 to
15 April 2007).  This may have caused some confusion
because the Labour
Appeal Court regarded that claim as also being a
judgment debt.  This means that both counsel for Hendor and the
Labour Appeal
Court did not make a distinction between the claim for
the remuneration falling into the period before Cele AJ’s order
and
the claim for remuneration falling into the period after Cele
AJ’s order.  That means in effect that the applicants’

claims fell into a pre-judgment period and a post-judgment period.
The Labour Appeal Court should have divided the applicants’

claims in this way.  In failing to do so and including the
period 16 to 22 April 2007 in the pre-judgment period, it

erred.  I accept that it may have erred in this way as a result
of the concession made by counsel for Hendor.  Nevertheless,
I
think that the Court ought to have realised that the claim for the
period from 16 to 22 April 2007 falls into the post-judgment
period.
That error is perpetuated in the first judgment.  The period 16
to 22 April 2007 is part of the post judgment
period and the
claim relating to it is the same as the claim for the period 23 April
2007 to 28 September 2009 (the second
period).
[79]
The Labour Court also caused
unnecessary confusion by specifying a date when the second and
further applicants had to report for
duty.  Its duty was to
order Hendor to reinstate the second and further applicants.
Once it had made that order, it
was incumbent upon the second and
further applicants to report for duty as soon as reasonably possible.
If any one of the
second and further applicants unduly delayed
in reporting for duty that would be a matter between employer and
employee as Hendor
would also have rights as employer.  The
circumstances of employees differ from one employee to another and
how soon they
learn of an order of reinstatement also differs from
one employee to another.  This is especially so when, as was the
case
here, the litigation had been going on for many years since the
date of dismissal.  Some employees may be living close to the

employer’s premises whereas others may be living very far,
sometimes hundreds of kilometres away, from the employer’s

premises.  The question of when the employees report for duty is
a matter between themselves and their trade union, if there
is one,
on the one hand, and their employer, on the other.  The Labour
Court should have left that issue to the parties.
[80]
The question before us, therefore,
is whether the second and further applicants’ claim for the
period from 16 April 2007 to
28 September 2009 (i.e. the second
period) is a judgment debt or a contractual debt.  The main
contention advanced by both
the applicants’ counsel and the
first judgment in support of the proposition that the applicants’
claim for wages for
the period 16 April 2007 to 28 September 2009
is a judgment debt is that paragraph (a) of Cele AJ’s
order
was an order that Hendor reinstate the second and further
applicants and Hendor did not comply with that order until
29 September 2009.
Also, attention is drawn to the
fact that, when the second and further applicants tendered their
services on 23 April 2007,
Hendor rejected that tender on
the basis that it was going to appeal against Cele AJ’s order.
The result was that Hendor
did not allow the second and further
applicants to work until 29 September 2009 and, for that reason,
Hendor was obliged to
pay the second and further applicants their
wages for the second period.
[81]
In my view none of these factors
necessarily supports the proposition that the whole claim is a
judgment debt.  As I have said,
the only claim that is a
judgment debt is the one relating to the first period.  The
claim for the second period is a contractual
claim.  The factors
referred to in the preceding paragraph and relied upon by the first
judgment support the conclusion that
the claim for the second period
is a contractual claim.  When it is said that the claim is a
judgment debt and that proposition
is based on paragraph (a) of Cele
AJ’s order, it is necessarily implied that Cele AJ’s
judgment decided that Hendor
is liable to pay the second and further
applicants’ wages or remuneration for the period from 16 April
2007 to 28 September
2009 or that by way of paragraph (a) of his
order, Cele AJ ordered Hendor to pay the second and further
applicants their wages
for that period.  If Cele AJ’s
judgment neither declared nor found Hendor liable for the payment of
the wages for
that period nor ordered Hendor to pay those wages,
there can be no basis in law for the proposition that the claim for
that period
is a judgment debt.  Therefore, it is going to be
necessary to deal with the question whether Cele AJ’s judgment
held
Hendor to be liable for the payment of the wages for the second
period.
[82]
In what follows I set out my reasons
for the conclusion that the second and further applicants’
claim for the second period
is not a judgment debt but, to the extent
that it may be a debt, it is a contractual debt.  In doing so, I
shall consider
or deal with:
(a)
whether Cele AJ’s judgment held that
Hendor was liable for the wages for the second period;
(b)
the meaning of paragraph (a) of Cele AJ’s
order;
(c)
the meaning of paragraph (b) of Cele AJ’s
order;
(d)
different types of reinstatement orders;
(e)
the meaning of a “judgment debt”
or its features;
(f)
the pertinent cases of
Coca
Cola
and
Jaguar
Shoes
;
(g)
what if Hendor had not taken any appeal
steps;
(h)
whether any appeal step changed the
position that would have obtained;
(i)
avoiding inconsistency with the
Constitution; and
(j)
certain difficulties if the claim is a
judgment debt.
Did Cele AJ’s
judgment decide that Hendor was liable?
[83]
Cele AJ’s judgment did not
anywhere make a finding that Hendor was liable to pay the second and
further applicants’
wages for the second period.  This is
not surprising because whether or not Hendor was liable for the
payment of those wages
was not an issue before Cele AJ.  Cele
AJ, therefore, could not have made any finding on that issue.
From the fact that
Cele AJ did not make any finding that Hendor was
liable for the payment of the wages in issue, it would follow that he
could not,
therefore, have made an order that Hendor pay the second
and further applicants their wages for the second period.  It
would
have been a gross irregularity for the Labour Court to have
ordered Hendor to pay the second and further applicants’ wages

for that period without having first determined whether Hendor was
liable for such payment.  It had no jurisdiction to decide
a
dispute that had not even arisen.  Therefore, to read Cele AJ’s
order as being an order in terms of which Hendor was
required to pay
the wages in issue would be to read Cele AJ’s order as meaning
that the Labour Court made an order it had
no power to make.
That is not something that one does lightly.  Furthermore, how
could Cele AJ have made an order that
Hendor pay the second and
further applicants wages that were for a period in the future when he
did not even know which of the
second and further applicants would be
able to report for duty or tender their services and which ones would
not be able to?
Also, how could Cele AJ have ordered Hendor to
pay wages which were yet to fall due?  In this regard I point
out that the
first judgment accepts that the weekly wages or
remuneration for the period 16 April 2007 to
28 September 2009
only became due at the end of each week
during that period.  Therefore, those wages were not due when
Cele AJ granted
the order that he granted on 16 April 2007.
A court cannot make an order for the payment of wages that are not
due yet.
The meaning and effect
of paragraph (a) of Cele AJ’s order
[84]
It is fundamental to understand what
paragraphs (a) and (b) of Cele AJ’s order meant or what
obligations they placed upon
Hendor.  Ascertaining the meaning
of each one of these orders will reveal whether anyone of them placed
an obligation upon
Hendor to pay the second and further applicants
remuneration for any period after 16 April 2007.  If none
of the two
orders placed this obligation on Hendor, then whatever
debt Hendor may have later incurred towards the second and further
applicants
by way of remuneration for any period after 16 April 2007
cannot, in my view, constitute a judgment debt.
[85]
Determining what obligations a court
order placed upon the person to whom it was directed is a matter of
construction.  We
must, therefore, construe paragraphs (a) and
(b) of Cele AJ’s order.  In
Hyundai
this Court held that “. . . it is the duty of a judicial
officer to interpret legislation in conformity with the Constitution

so far as this is reasonably possible”.
[97]
I would extend this duty of a judicial officer or a court to a
situation where a judicial officer or a court has to interpret
an
order of court.  In my view, when a court has to ascertain the
meaning of a court order, it should give the court order
a meaning
that is in conformity with the Constitution than one that is
inconsistent with the Constitution if it is reasonably possible
to do
so or if that interpretation is not unduly strained.
[86]
What is the meaning of the order by
Cele AJ that Hendor reinstate the second and further applicants “in
the same positions
or not less favourable positions as they had at
the time of their dismissal”?  This hinges on the meaning
of the word
“reinstate”.  More than 30
years
ago the then Appellate Division of the Supreme Court (now the Supreme
Court of Appeal) had to consider the meaning of the
word “reinstate”
in section 43 of the Labour Relations Act
[98]
(1956 LRA) in
Consolidated Frame
Cotton.
[99]
After referring to
Hodge,
[100]
William Division,
[101]
Jacksons
[102]
and
Bramdaw,
[103]
the Court said:
“
It
was said in those cases that the natural and ordinary meaning of
‘reinstate’, as applied to a person who has been

dismissed, is to put him back into the same job or position which he
occupied before the dismissal on the same terms and conditions.”
[104]
[87]
In
Equity
Aviation
[105]
this Court, having taken note of the above meaning of “reinstate”,
said through Nkabinde J:
“
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 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.
Differently
put, if employees are reinstated they resume employment on the same
terms and conditions that prevailed at the time
of their
dismissal.”
[106]
Therefore, paragraph
(a) of Cele AJ’s order meant that Hendor had to put the second
and further applicants back into the same
positions which they
occupied at the time of their dismissal or in positions not less
favourable to them than those that they occupied
at the time of their
dismissal on the same terms and conditions of employment they enjoyed
at the time of dismissal.
[88]
If Hendor had put the second and
further applicants back into their former positions on the same terms
and conditions of employment
on 17 April 2007, it would have fully
complied with paragraph (a) of Cele AJ’s order without having
paid them any remuneration
whatsoever.  If I am correct that
this is what paragraph (a) of Cele AJ’s order meant, then
it cannot be said that
any debt in respect of the payment of
remuneration that could have been owed by Hendor to the second and
further applicants related
to any obligation placed on Hendor by
paragraph (a) of that order.  I say this because paragraph (a)
of Cele AJ’s order
could not have had one meaning on 16 or
17 April 2007 – which did not entail that Hendor
should pay the second
and further applicants any money – and
another meaning from 15 September 2012 onwards – which entailed
that Hendor
had to pay the second and further applicants money.
The meaning of paragraph (a) of the order could not change without
the
order having been amended.
[89]
If Hendor did not put the second and
further applicants back into the positions contemplated in paragraph
(a) of Cele AJ’s
order, the second and further applicants would
have been able to bring contempt of court proceedings against
Hendor.  If the
second and further applicants were asked which
order required Hendor to take them back into the positions concerned,
they would
have been able to point to paragraph (a) of Cele AJ’s
order.  If they were asked to point out the order that required

Hendor to pay them their remuneration in respect of the first period,
they would also have been able to point it out, namely, paragraph
(b)
of Cele AJ’s order.  However, if they were asked to point
out the order which required Hendor to pay them their
remuneration
for the second period, they would not have been able to point it
out.  This shows that the debt relating to the
first period is a
judgment debt whereas the debt relating to the second period is not a
judgment debt.
The meaning of paragraph
(b) of Cele AJ’s order
[90]
Paragraph (b) of Cele AJ’s
order meant that Hendor should pay the second and further applicants
their remuneration for the
period 1 January 2007 to 15 April
2007 (i.e. the first period).  There is no dispute that this is
what paragraph (b)
of Cele AJ’s order meant.  This Court
accepted in
Equity Aviation
that, when an order of reinstatement operates with retrospective
effect from a date earlier than the date when the reinstatement
order
was granted, the retrospective part of the order means that the
employer must pay backpay to the employee for the period
between such
earlier date and the date of the order of reinstatement.
[107]
Therefore, if, on 17 April 2007, Hendor had paid the second and
further applicants their remuneration in respect of the first
period,
it would have fully complied with paragraph (b) of Cele AJ’s
order.  It would not have continued to owe any
remuneration to
the second and further applicants under paragraph (b) of Cele AJ’s
order.  Paragraph (b) did not relate
to any remuneration for any
period after 16 April 2007.
Different types of
reinstatement orders
[91]
The proposition that the second and
further applicants’ claim for remuneration for the second
period is a judgment debt appears
to be based upon the notion that
paragraph (a) of Cele AJ’s order was a prospective
reinstatement order.  Paragraph
(a) of Cele AJ’s order was
not a prospective reinstatement order.  It is, therefore,
necessary to explain the different
types of reinstatement orders.
[92]
Under the 1956 LRA we had three
types of reinstatement orders.  The one was an ordinary
reinstatement order.  The Industrial
Court had power to make
this type of reinstatement order under section 46(9)(c) of the 1956
LRA.  Then there was a retrospective
order of reinstatement.
The Industrial Court had power to grant this type of reinstatement
order together with an ordinary
reinstatement order under
section 46(9)(c) of the 1956 LRA.  The Industrial Court had
power to grant this type of reinstatement
order together with an
ordinary reinstatement order which the Industrial Court had power to
grant under section 43 of the 1956
LRA.  Under section 43
the Industrial Court could grant an order of reinstatement that was
both retrospective and prospective
but it would not grant an ordinary
reinstatement under this section.  Under section 46(9)(c) it
could grant an order of ordinary
reinstatement together with an order
of retrospective reinstatement but not prospective reinstatement.
[93]
In my view the difference between an
ordinary reinstatement order and a prospective reinstatement order
under sections 46(9)(c)
and 43 of the 1956 LRA, respectively, was
this: a prospective reinstatement order did not only order the
employer to in effect
take the employee back into his or her old
position on the same terms and conditions (i.e. the meaning of
“reinstatement”),
but it in effect also required the
employer to keep the employee in its employ or to keep the reinstated
employee in its employ
for a certain specified period in the future,
e.g. 90 or 30 days.  An ordinary reinstatement order does not
require the employer
to keep the employee in its employ for any
period in the future.
[94]
In terms of an ordinary
reinstatement order what happens to the employee after the employer
has taken him or her back into his or
her old position on the same
terms and conditions as before is governed by the contract of
employment and relevant legislation.
Where an employer has
taken an employee back and given him his old position on the same
terms and conditions – which means
the employer has complied
with the order of reinstatement – and the employer dismisses
the employee two weeks or three weeks
after reinstatement, the
employer is not in breach of the ordinary reinstatement order
previously granted in favour of the employee.
The employee’s
remedy lies in the LRA and the contract of employment and not in the
enforcement or execution of the reinstatement
order.
[95]
Under section 43 of the 1956 LRA,
where a prospective reinstatement order had been granted in favour of
an employee, the employer
was obliged to keep the employee in its
employ for the life of that prospective reinstatement order.  In
my view, if the employer
had reason to terminate the contract of
employment for a new reason acceptable in law, it was obliged to
approach the Industrial
Court to seek a withdrawal or variation of
the prospective reinstatement order.  If an employer, without
any reason whatsoever,
terminated the contract of employment of the
employee during the life of a prospective reinstatement order, its
conduct could constitute
contempt of court whereas contempt of court
would not arise in the case of an employee who got dismissed after
the employer had
complied with an ordinary reinstatement order in so
far as there was a new reason for dismissal.  The new dismissal
would
simply be in breach of the LRA – not of a court order –
and, may be also in breach of the contract of employment.
[96]
Provisions that would have ensured
that the Labour Court or another tribunal could grant the equivalent
of a section 43 order and,
therefore, a prospective reinstatement
order, were not retained in the current LRA.  The result is that
the current LRA contemplates
only an ordinary reinstatement order
which may be granted with or without retrospective reinstatement.
The reinstatement
order that the Labour Court and arbitrators have
power to grant under the current LRA is the type of reinstatement
order that the
Industrial Court had power to grant under section
46(9)(c) of the 1956 LRA.  If the drafters of the LRA had
intended to give
the Labour Court and other tribunals that deal with
unfair dismissal disputes under the LRA the power to grant a
prospective order
of reinstatement just like the power that the
Industrial Court had under section 43 of the 1956 LRA, that power
would probably
have been included in section 193 of the LRA but it
was not included.  Therefore, in my view, under the current LRA
there
is no provision for a prospective reinstatement order and
paragraph (a) of Cele AJ’s order is not a prospective
reinstatement
order.
[97]
Another point that supports the
proposition that paragraph (a) of Cele AJ’s order is not a
prospective reinstatement order
is this.  Outside of the LRA, if
a court were to make an order that someone be reinstated in a certain
position from which
he or she had been unlawfully removed, that order
would mean both that that person should be put back into the position
he or she
occupied before his or her removal, and, that he or she
should be paid whatever money or financial benefit he or she would
have
been entitled to during the intervening period had he or she not
been removed from the position.  This would be the meaning
and
effect of that reinstatement order without the court having to
include a separate order to the effect that the order will operate

with retrospective effect as is required in the case of an order of
reinstatement under section 193 if the Labour Court or
another
appropriate tribunal wants to ensure that an employee does not, or
employees do not, lose out on backpay or other benefits
to which they
would have been entitled in the intervening period had they not been
dismissed.
[98]
An order of ordinary reinstatement
under section 193 does not entail payment of backpay.  If the
court wants such an order
to include payment of backpay, it has to
make the order operate with retrospective effect.  If the
drafters of the LRA had
intended that the Labour Court should have
the power to order prospective reinstatement in the same way that the
Industrial Court
could do under section 43 of the 1956 LRA, it would
have been a simple thing to include appropriate provisions in section
193.
They did not.  Therefore, under the LRA there is no
provision for prospective reinstatement such as was to be found in

section 43 of the 1956 LRA.  Accordingly, paragraph (a) of Cele
AJ’s order was not a prospective order of reinstatement.
Meaning of judgment debt
or its features
[99]
The next issue that arises is: what
is a judgment debt and what are its features?  In my view, for a
debt to constitute a judgment
debt, the obligation that constitutes
the debt must be based on the terms of a judgment or order of court.
If there is no
judgment or order of court whose terms either
expressly or by necessary implication say that a particular person
must pay a certain
amount or that obliges the debtor to pay or to do
something, there can be no judgment debt.
[100]
In
Kilroe-Daley
[108]
the Appellate Division of the Supreme Court considered the meaning of
the term “judgment debt” within the context of
section
11(a)(ii) of the Prescription Act, 1943 the predecessor to the
current Prescription Act.  There, Galgut AJA,
writing for a
unanimous court, said:
“
Section
11(a)(ii) merely provides that the ‘period of prescription of
debts’ shall be ‘thirty years in respect
of any judgment
debt’.
Having
regard to the 1943 provisions it must be accepted that the words
‘judgment debt’ do not mean only a money debt.
They
would include judgments, eg, for the delivery of property or for
specific performance.  This also is the view of the
learned
authors (De Wet and Yeats) of
Kontraktereg en Handelsreg
4th
ed at 261 where in a footnote they say:
‘
Artikel
11(a)(ii).  Ook hierdie bepaling bring niks nuuts nie.  ‘n
Vonnisskuld hoef natuurlik nie ‘n geldskuld
te wees nie.’
That
means that
judgment debt
in
s 11(a)(ii) refers, in the case of
money,
to the
amount
in respect of which execution can be levied by the judgment creditor
;
that in the case of
any other debt steps
can be taken by the judgment creditor
to
exact performance of the debt, ie
delivery of the property or performance of the obligation.
A
further feature of a judgment debt
is
that the
judgment
is
appealable.
”
[109]
[101]
Galgut AJA went on to say:
“
A
judgment debt is the amount or subject-matter of the award in the
judgment.  Execution can be levied to recover the judgment
debt.
As will be seen later it cannot be suggested that the words in
s 408, (the Master’s) ‘confirmation shall
have the effect
of a final judgment’, enable a creditor whose claim has been
proved and accepted, to levy execution for the
amount of his proved
claim or even for the dividend awarded to him in the confirmed
account.  In the present case the Bank
could not have proceeded
to execution for payment of the sum of R210 299 (less of course the
dividend) nor could it so proceed
in the future.  I have not
overlooked the fact that, if in terms of an account a creditor is
liable to contribute and fails
to pay the amount of his liability,
the liquidator is empowered to issue a writ of execution.  This
is only so because
s 118
(1) of the
Insolvency Act 24 of 1936
specially provides that this can be done.  (It will be
remembered that s 339 of the Companies Act provides that, in a
winding
up of a company unable to pay its debts, the provisions of
the
Insolvency Act shall
apply
mutatis
mutandis
.)  The very fact that
there is such a provision indicates that without it execution could
not have been levied.”
[110]
[102]
I would highlight the following
features of a judgment debt as gathered from the
Kilroe-Daley
decision:
(a)
in the case of money, the term “judgment
debt” refers to the amount in respect of which execution may be
levied by the
judgment creditor;
(b)
in the case of any other debts, the term
“judgment debt” refers to debt in respect of which steps
can be taken by the
judgment creditor to exact performance of the
obligation;
(c)
a further feature of a judgment debt is
that the judgment is appealable; and
(d)
a judgment debt is the amount or
subject-matter of the award in a judgment.
On the case argued by
the applicants and advanced by the first judgment, the present case
concerns a judgment debt that involves
money.  Therefore, on the
applicants’ case, the present case falls under paragraph (a)
above.
[103]
To the extent that execution may be
said not to be confined to an order in respect of which a writ may be
issued and to the extent
that execution may be said to include
contempt of court proceedings in respect of an order that requires
someone to perform a certain
act, then the meaning of paragraph (a)
of Cele AJ’s order becomes important.  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 paragraph
(a) of Cele AJ’s order because paragraph
(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.
[104]
The next question regarding
execution is: could paragraph (a) of Cele AJ’s order be
executed by way of contempt of court
proceedings after
29 September 2009?  The significance of the date of 29
September 2009 in this question lies in
the fact that that day was
the day on which Hendor put the second and further applicants into
the positions they had occupied in
its employ before they were
dismissed and did so on the same terms and conditions of employment
as those they had enjoyed before
their dismissal.  Whether or
not the applicants could, after that date, execute paragraph (a)
of Cele AJ’s order
by way of contempt of court proceedings
depends upon whether what Hendor did on 29
September 2009 as described in the
preceding sentence constituted reinstating the second and further
applicants.
[105]
If what Hendor did on 29 September
2009 constituted the reinstatement of the second and further
applicants, then the applicants
could not execute paragraph (a)
of Cele AJ’s order because it would mean that Hendor had
already complied with paragraph
(a) of Cele AJ’s order.
If what Hendor did on 29 September 2009 did not constitute
reinstating the second
and further applicants, the next question
would be whether paragraph (a) of Cele AJ’s order meant that
Hendor had to pay
the second and further applicants their wages for
the second period.  If paragraph (a) of that order did not mean
that, then
the applicants could not bring contempt of court
proceedings against Hendor for failing to comply with paragraph (a)
by way of
paying the second and further applicants their wages for
the period in question.
[106]
If paragraph (a) meant that Hendor
had to pay the second and further applicants’ wages for the
period in question, then the
applicants would have been able to bring
contempt of court proceedings against Hendor.  However, the fact
of the matter is
that this Court has already authoritatively
pronounced that an order that an employer reinstate an employee means
that the employer
must put that employee back in the position she or
he had occupied before dismissal and on the same terms and conditions
of employment
as those she or he enjoyed before dismissal.
Therefore, the suggestion implied in the approach of the first
judgment that
paragraph (a) of Cele AJ’s order meant that
Hendor had to pay the second and further applicants wages for the
second
period goes against the meaning of the word “reinstate”
as given to that word by this Court in
Equity
Aviation
.  So, the requirement in
Kilroe Daley
that, in the case of money, the term “judgment debt”
refers “to the amount in respect of which execution may
be
levied by the judgment creditor” is absent in the present case
as the second and further applicants’ claim or debt
could
neither be executed by way of a writ nor by way of contempt of court
proceedings.
[107]
An important feature of a judgment
debt, according to
Kilroe-Daley
,
is that the judgment relating to the amount in issue must be
appealable.
[111]
In this case let us say we take the second applicant.  Let us
further say that Hendor does not believe that the second
applicant is
entitled to be paid remuneration for the 12 months preceding the
Supreme Court of Appeal’s order dismissing
Hendor’s
application for leave to appeal.  To which court would Hendor be
able to appeal the issue of the quantum of
remuneration payable to
the second applicant in respect of that period?  The appeal to
the Labour Appeal Court and the application
for leave to appeal to
the Supreme Court of Appeal that Hendor pursued could not have dealt
with such quantum because they related
to whether Cele AJ’s
order was correct and the remuneration for that period had not arisen
as yet.  The requirement
that the judgment must be appealable,
which, in my view, includes an appeal in respect of the amount, is
absent.  Therefore,
there is no judgment debt.
[108]
As I see it, the question whether or
not such debt as Hendor may owe the workers by way of remuneration
for the period 17 April
2007 to 28 September 2009 is a judgment debt
requires us to establish whether there is a judgment or order of
court whose terms
include that Hendor should pay the workers
remuneration for the period 17 April 2007 to 28 September 2009.
If there is a
judgment or order that includes such terms, then we can
say that those claims are the subject of a judgment debt.  If
there
is no judgment or order that includes such terms, the claims
are not the subject of a judgment debt.  In this case nobody has

pointed out what judgment or order includes such terms.  That is
not surprising because there is no such judgment or order.
Cele
AJ’s judgment or order cannot be said to include such terms.
The Supreme Court of Appeal’s order dismissing
Hendor’s
application for leave to appeal also does not contain any such terms.
[109]
If one says Hendor is obliged to pay
the workers remuneration for the period 17 April 2007 to 15
September 2009 because of
what the effect is of noting an appeal,
then the obligation to pay the remuneration is not placed on Hendor
by Cele AJ’s
order but it is placed upon Hendor by its conduct
in noting an appeal and, thus, preventing the workers from working.
That
does not mean that those claims are the subject of a judgment
debt.  There would still be no judgment or order which includes

terms that Hendor must pay remuneration for the period in question.
It would simply mean that Hendor is contractually obliged
to pay the
remuneration on normal principles of contract since it prevented the
workers from performing their contractual obligations.
Coca Cola
[110]
Earlier on I said that in holding
that the second and further applicants’ claim is a contractual
claim, the Labour Appeal
Court was following its decision in
Coca Cola
.
It is now appropriate to say more about that case.  In that case
a commissioner of the Commission for Conciliation
Mediation and
Arbitration (CCMA) found that the dismissal of the employee had been
procedurally fair but substantively unfair.
On 5 August
2004 he made a number of orders in an arbitration award.  One of
those orders was an order that the employer
“reinstate [the]
applicant retrospectively without any loss of benefits to his former
position and on terms that are no less
favourable than prior to the
dismissal”.
[111]
The employer launched a review
application to have the arbitration award reviewed and set aside.
That review application failed
as did subsequent appeals or attempts
to appeal.  The employee was eventually reinstated on 2 March
2009.  The main
issue before the Labour Appeal Court was whether
the reinstatement order made by the commissioner “required the
payment for
the full period up to and including the date of
compliance” with the order.  In a judgment by Musi JA
[112]
the Court put the issues before it thus:
“
The
issues which we are called upon to decide are, firstly, whether an
award of reinstatement automatically entitles an employee
in whose
favour such award was made to amounts post the date of the award
until the implementation date of the award or whether
the claim in
respect of the amounts subsequent to the date of the award should be
claimed separately and secondly, whether such
amounts can be claimed
by way of issuing a writ of execution accompanied by an affidavit
setting out the amount of the claim.”
[113]
The first part of
this passage reveals that the first issue that the Labour Appeal
Court was called upon to decide was in principle,
similar to the
question that we are called upon to decide in this matter.
[112]
In
Coca
Cola
the Labour Appeal Court
articulated the first issue for determination as—
“
whether
an [arbitration] award of reinstatement automatically entitles an
employee in whose favour such award was made to amounts
post the date
of the award until the implementation date [of the award] or whether
the claim in respect of the amounts subsequent
to the date of the
award should be claimed separately. . . .”
[114]
In the present case
the first judgment appears to take the view that, once the Labour
Court had made the order of reinstatement
reflected in paragraph (a)
of Cele AJ’s order and Hendor had failed to reinstate the
second and further applicants because
it was pursuing appeals against
the order, the second and further applicants automatically became
entitled to payment of the wages
for the entire period without there
having had to be a process and a forum where the dispute between the
parties about liability
or quantum could be ventilated if there was a
dispute.
[113]
After referring to the meaning of
the word “reinstate” as given by this Court in
Equity
Aviation
, the Labour Appeal Court said
in
Coca Cola
:
“
The
effect of a reinstatement order, therefore, is to revive the contract
of employment which was terminated by a dismissal.”
[115]
Later, the Court
added:
“
The
reinstatement order – as stated above – only serves to
revive the contract of employment.  The rights and obligations

of the parties would therefore, as in the beginning, again be
governed by the contract of employment.”
[116]
[114]
The Labour Appeal Court also held:
“
Therefore,
if the employee, after the reinstatement order and during the time
that the employer exercises its review and appeal
remedies to
exhaustion, tenders his/her labour he/she does so in terms of the
employment contract.  She/he [is] therefore
entitled to payment
in terms of the contract of employment.  The claim is therefore
a contractual one, wherein the employee
would have to set out
sufficient facts to justify the right or entitlement to judicial
redress.”
[117]
The Labour Appeal
Court went on to say:
“
When
there is a delay in the implementation of the reinstatement award and
the employer refuses to pay an employee money that may
be due between
the period of the award and the implementation thereof, the dispute
between them has not been judicially resolved.
It
is only after a contractual claim in the civil courts or under
section 77 of the Basic Conditions of Employment Act has been

instituted and pronounced upon that it can be said that the employer
is a judgment debtor against whom a writ may be issued
.”
[118]
Jaguar Shoes
[115]
The Labour Appeal Court may not have
been aware of an important decision handed down by the Natal
Provincial Division of the then
Supreme Court more than 30 years ago
in an issue similar to the one it had to deal with in
Coca
Cola
and similar to the issue we have
to deal with in this matter.  Nevertheless, there is much in
common in its decision and reasoning
in
Coca
Cola
and the decision and reasoning of
the Natal Provincial Division in
Jaguar
Shoes
.
[119]
[116]
Jaguar Shoes
supports
the proposition that an employee’s claim for the payment of
wages relating to the period after the grant of a reinstatement
order
is a contractual claim.
Jaguar
Shoes
was decided under the 1956 LRA.
Three of the individual applicants in
Jaguar
Shoes
had been dismissed on
24 September 1984 while another had been dismissed on 25
September 1984.  They brought an
application in the Industrial
Court for an interim order of reinstatement in terms of section 43 of
the 1956 LRA.  On 17 December
1984 the Industrial Court made an
order in terms of which Jaguar Shoes was “required . . . to
reinstate” the individual
applicants.  I pause here to
draw attention to the fact that in essence paragraph (a) of Cele AJ’s
order also effectively
required Hendor to “reinstate” the
second and further applicants.  Three of the individual
applicants were reinstated
retrospectively to 24 September 1984
and one of them from 25 September 1984.  The order of
reinstatement
was both retrospective and prospective.  It was
also prospective in that, in addition to being retrospective as
indicated,
it also endured up to 23 December 1984.  It
did not endure beyond this latter date.  For it to endure beyond

that date, it would have had to be extended by the Industrial Court
beyond that date in terms of section 43(6) of the 1956 LRA.

That was not done.
[117]
A dispute arose between Jaguar Shoes
and the applicants in that case about the meaning and effect of a
reinstatement order following
upon termination of employment.
The individual applicants in that case contended that, following upon
the grant of the reinstatement
order, Jaguar Shoes became obliged to
pay them wages for the period September 1984 to 23 December 1984.
Jaguar Shoes argued
that it was not obliged to pay them any wages
because they had not performed their duties or tendered their
services.  In
response to this dispute, the National Union of
Transport Workers and the individual applicants brought an
application in the Industrial
Court under section 17(11)(a) of the
1956 LRA for an order
inter alia
“[d]eclaring that, in consequence of the grant of” the
order of interim reinstatement by the Industrial Court, the

individual applicants had, with effect from their respective dates of
dismissal, become “entitled to be paid such wages and
be
accorded such other benefits as they were entitled to prior to their
dismissal on the dates aforesaid”.
[118]
There are certain common features
between
Jaguar Shoes
and the present case.  In both cases the employees had been
dismissed.  In both cases, the courts found the dismissals
to
have been unfair and the courts made reinstatement orders.  In
both cases, the employees did not perform their duties during
the
period for which they claimed wages.  In both cases, when there
was a dispute on whether the employer was obliged to pay
them their
wages for the time they had not worked, they brought applications to
court for an order declaring that they were entitled
to payment of
those wages.
[119]
The Industrial Court dismissed that
application on the basis that it did not have jurisdiction.  The
matter was taken on appeal
to the Natal Provincial Division of the
Supreme Court.  That Court saw the issue before it in this way:
“
The
main question raised by this appeal is what the effects are of a
reinstatement order following upon termination of the employment.

What are the rights and duties of employer and employee after such an
order?”
[120]
[120]
The Court had this to say about the
effect of an order of reinstatement under section 43(4)(b)(i) of the
1956 LRA:
“
In
terms of s 43(4)(b)(i), an employer is ordered to reinstate the
person in question in his ‘employ’.”
[121]
In
the next paragraph, the Court said:
“
Although
decreed by statute and ordered by a court, the relationship which the
employer is to reinstate is a contractual one; a
contract of
employment between himself and the employee.”
[122]
It continued later in
the same paragraph:
“
It
follows that, where an employee claims payment of wages or, as in
this case, a declaration that he is entitled thereto, the employer
is
entitled to raise the ordinary defences available to him in the law
of contract save, of course, that the contract has been
lawfully
terminated.”
[123]
[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”,
[124]
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 . . .”.
[125]
Of course, the Court would not have said that the employer was
entitled to raise the ordinary defences available to him in
the law
of contract if the employee’s claim for the payment of wages in
that case was not a contractual claim.  The
fact that the Court
said that the employer is entitled to raise defences that are
available in the law of contract means that the
Court saw the claim
for wages as a contractual claim.  That is what I say is the
position here as well.  One would have
thought that the
proposition that an employee’s claim for payment of wages for
the period coming after the grant of an order
of reinstatement is a
judgment debt would have better prospects where that period is
covered by an order of prospective reinstatement
as the period 17 to
23 December 1984 was in
Jaguar
Shoes
.  However, we see that even
in that situation the Court in that case held that the claim was a
contractual claim.  The
proposition that the claim for wages for
the second period is a judgment debt is even weaker in the present
case, where the order
of reinstatement involved is an order for
ordinary reinstatement and not prospective reinstatement.
[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.  The first judgment says that there is no
distinction between the two periods.
[123]
The first judgment concludes that
there is no difference between the debt or claim for the arrear wages
for the first period and
the claim for arrear wages for the second
period and that they all constitute a judgment debt.  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 first period but cannot speak of a judgment debt in respect of
the
second period.
What would have happened
if Hendor had not appealed?
[124]
I have said that as at 16 or 17
April 2007 neither paragraph (a) nor (b) of Cele AJ’s
order can be said to have required
Hendor to pay the second and
further applicants any remuneration for any period between 17 April
2007 and 28 September 2009.
Given this position, the
most natural question to ask is: did this change at some stage?
If so, when and what brought about
the change?  Was it the
launching or service by Hendor of any application for leave to appeal
to the Labour Appeal Court?
Was it the noting of the appeal to
the Labour Appeal Court or the Supreme Court of Appeal?  Before
considering whether any
of these appeal steps caused any change, it
is necessary to consider what the position would have been if Hendor
had not taken
any appeal steps.
[125]
Under this heading I deal with this
matter on the basis of what the position would have been if Hendor
had not appealed Cele AJ’s
order.  It is important to
remember at this stage that in terms of that order the second and
further applicants were reinstated
“with effect from 1 January
2007” and “[e]ach applicant [was] to report for duty on
23 April 2007 at 08h00”.
I have stated what paragraphs
(a) and (b) of Cele AJ’s order meant on the day they were
granted.  Let us assume
that Cele AJ had not in his order
included an order that the second and further applicants report for
duty on 23 April 2007
and that Hendor did not pursue
appeals to the Labour Appeal Court and Supreme Court of Appeal.
In other words, let us assume
that Cele AJ had granted the same
order that he granted but less the reporting order and Hendor did not
appeal.  Let
us also assume that the second and further
applicants did not report for duty or tender their services for three
months after the
grant of the order and then one day they reported
for duty.
[126]
Would the second and further
applicants have been entitled, by virtue of paragraph (a) of Cele
AJ’s order, to payment of any
remuneration for the three months
after Cele AJ’s order?  Quite obviously, the answer would
be: No.  They would
not have been entitled to remuneration for
that period.  Part of the reason for that is that paragraph (a)
of Cele AJ’s
order did not say anything about payment of any
remuneration.  It did not say that Hendor had to pay the second
and further
applicants on condition they reported for duty nor did it
say that they had to be paid any money whatsoever.  It only
ordered
Hendor to put the second and further applicants into the
positions they had occupied at the time of dismissal and on the same
terms
and conditions of employment.  The reason why it said
nothing about payment of remuneration for any period after 23 April
2007 is that the statute is based on an appreciation that, what would
happen after the reinstatement order had been made would be
governed
by the contract of employment because, once the employer had
reinstated the employee, the contract would be restored.
[127]
Another question is: would the
second and further applicants have been entitled to payment of their
remuneration for the first period
if they had not reported for duty
or tendered their services for any period, for example three months,
after Cele AJ had made his
order on 16 April 2007?  The answer
is: Yes, they would have been entitled.  This would be so
despite the fact that,
for three months after the Labour Court would
have granted the order, they would not have reported for duty or
tendered their services.
[128]
The next obvious question is: why is
the answer to the first question in the negative but the one to the
second question in the
affirmative?  The two different answers
to this question reveal that, indeed, there is a big difference
between the first
period and the second period.  The answer to
this question is this: in regard to the first period, there is an
order of court
and, in respect of the second period, there is no
order of court.  The second and further applicants’
entitlement to
payment of their remuneration for the first period is
not dependent upon or subject to them reporting for duty.  The
reason
why the failure of the second and further applicants to report
for duty after Cele AJ’s order had been made would disentitle

them from payment of remuneration for that period is this.
During that period the employment relationship is meant to be

governed by the contracts of employment after the restoration thereof
upon the reinstatement of the employees and in terms of the
basic
principles of contract.
[129]
If an employee does not report for
duty or does not tender his or services, he or she is not entitled to
payment of wages.
No work, no pay.
[126]
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 whereas they would not
be paid anything under paragraph (a) of Cele AJ’s
order in
respect of the second period if they did not want to go back to
Hendor’s employ and, therefore, rejected reinstatement.

All that any one of the second and further applicants needs to show
in order to qualify for payment of remuneration in respect
of the
first period is that he or she was one of the applicants referred to
in the order.  However, when it comes to the second
period,
different considerations apply.
[130]
In regard to the second period, if
Hendor did not pursue appeals, the second and further applicants
could only have been entitled
to remuneration for any day or any part
of the second period if they either worked for that day or for that
period or if at least
they tendered their services for that day or
for that period or if Hendor did not accept their tender or if Hendor
prevented them
from performing their duties or made it impossible for
them to perform their duties.  This is a basic principle of the
law
of contract, including the contract of employment.  If one
accepts that this principle would have been applicable in regard
to
the second period if there had been no appeal in this matter, one
must also accept that, in such a case, the second and further

applicants’ entitlement to remuneration for any day or number
of days during the second period depended upon performance
by them of
their contractual obligations or upon the tender of their services.
[131]
If the second and further applicants
kept their part of the bargain, they would be entitled to
remuneration.  If they did not
keep their part of the bargain,
they would not be entitled to remuneration.  Therefore, if there
was a dispute on whether
they were entitled to remuneration for any
day or number of days during the second period, that would be a
contractual dispute.
Their claim would be a contractual claim.
The debt that they would be seeking to enforce would be a contractual
debt –
and not a judgment debt whereas in regard to the first
period it was simply a case of seeking to enforce an existing court
order.
The question that arises then is whether, if this is the
position for the period after an order of reinstatement has been made
when there is no appeal, the lodgement of an application for leave to
appeal or the noting of an appeal or the dismissal of an application

for leave to appeal or the dismissal of an appeal by a higher court
changes this position.
Did any appeal steps
change the position that would have been obtained if Hendor had not
pursued appeals?
[132]
If one says that, once the employer
has taken certain appeal steps, this changes the position and the
reinstatement order entitles
the workers to payment of their
remuneration for the period when the employer is pursuing its appeal,
then one would have to say
that it is the conduct of the employer in
taking certain appellate steps to pursue an appeal that entitles the
workers to payment
of their remuneration for the period after the
reinstatement order to the date of their actual reinstatement.
That has to
be so because the first judgment does not say that the
second and further applicants would have been entitled to payment of
their
remuneration for the period in question if there was no appeal
by Hendor and the second and further applicants did not report for

duty days or weeks or months after the handing down of Cele AJ’s
judgment.  The launching or service of an application
for leave
to appeal or the noting of an appeal against a decision of the Labour
Court – as is the case with a decision of
any court –
only has the effect of suspending the operation of the order sought
to be appealed against.  It does not
in any way have the effect
of amending the terms of that order.
[133]
If the launch or service of an
application for leave to appeal or the noting of an appeal does not
have the effect of amending the
order sought to be appealed against,
then the only other “appeal step” that must be considered
is the decision of the
appellate court dismissing the application for
leave to appeal or the appeal.  A consideration of that question
requires us
to consider what an appeal court may or may not do in
dealing with an application for leave to appeal or an appeal from a
decision
of the Labour Court to the Labour Appeal Court or an appeal
from a decision of the Labour Appeal Court, previously, to the
Supreme
Court of Appeal or to this Court.  That depends, to a
large extent, on what the nature is of that appeal.  In the case

of an appeal against a decision of the Labour Court to the Labour
Appeal Court or from a decision of the Labour Appeal Court,
previously, to the Supreme Court of Appeal or to this Court, it will
depend upon what type of an appeal is envisaged when the Labour

Appeal Court or the Supreme Court of Appeal or this Court decides
that appeal.
[134]
In
Tikly
[127]
it was said that there were three types of appeals.  Trollip J
said:
“
The
word ‘appeal’ can have different connotations.  In
so far as is relevant to these proceedings it may mean:
(i)
an appeal in the wide sense, that is,
a
complete re-hearing of, and fresh determination on the merits of the
matter with or without additional evidence or information
(
Golden Arrow Bus Services v Central
Road Transportation Board,
1948 (3) SA
918
(AD) at p. 924;
S.A. Broadcasting
Corporation v Transvaal Townships Board and Others
;
1953 (4) SA 169
(T) at pp. 175-6;
Goldfields
Investment Ltd v Johannesburg City Council
,
1938 T.P.D 551
at p. 554);
(ii)
an appeal in the ordinary strict sense,
that is,
a re-hearing on the merits but
limited to the evidence or information on which the decision under
appeal was given, and in which
the only determination is whether that
decision was right or wrong
(e.g.
Commercial Staffs (Cape) v Minister of
Labour and Another,
1946 CPD 632
at pp.
638-641);
(iii)
a review, that is,
a
limited re-hearing with or without additional evidence or information
to determine, not whether or the decision under appeal was
correct or
not, but whether the arbiters had exercised their powers and
discretion honestly and properly
(e.g.
R v Keeves
,
1926 AD 410
at pp. 416-7;
Shenker v The
Master
,
1936 AD 136
at pp.
146-7).”
[128]
These three types of
appeals have been affirmed in many cases.
[129]
[135]
From the above, it can be seen that
the three types of appeals that may fall under the word “appeal”
are an appeal in
the wide sense, an appeal in the ordinary strict
sense and a review.  An appeal in the wide sense involves the
appellate body
or court having a complete re-hearing and making a
fresh determination on the merits with or without additional evidence
or information.
Another type of appeal is an appeal in the
ordinary strict sense.  This type of appeal is a re-hearing on
the merits but limited
to the evidence or information on which the
decision under appeal was given and in which the only determination
is whether the
decision was right or wrong.  The third type of
appeal is a review which is limited to a re-hearing with or without
additional
evidence or information to determine, not whether or not
the decision under appeal was correct but whether the arbiters had
exercised
their powers and discretion honestly and properly.
The questions that arise are: which type of appeal is an appeal from
a
decision of the Labour Court to the Labour Appeal Court?
Which type of appeal was an appeal from the Labour Appeal Court to

the Supreme Court of Appeal?
[136]
An appeal to the Labour Appeal Court
against a decision of the Labour Court and an appeal from a decision
of the Labour Appeal Court
to this Court or, previously to the
Supreme Court of Appeal, is not an appeal in the sense of a review.
It is also
not an appeal in the wide sense in which an appellate
court determines the merits of the dispute afresh with or without
additional
information.  An appeal to the Labour Appeal Court
against a decision of the Labour Court is an appeal in the ordinary
strict
sense in which the appellate court is, generally, limited to
the evidence on which the decision appealed against was based and in

which the only question is whether the decision of the Labour Court
was right or wrong.
[137]
That an appeal to the Labour Appeal
Court against a decision of the Labour Court is an appeal in the
ordinary strict sense –
the second category of appeal mentioned
in
Tikly’s
case – is supported by this Court’s decision in
Equity
Aviation
.  In that case a
commissioner of the CCMA had issued an arbitration award.  An
application was brought in the Labour
Court to have the arbitration
award reviewed and set aside.  The Labour Court had made its
decision in the review application.
There was then an appeal to
the Labour Appeal Court against the decision of the Labour Court.
From the Labour Appeal Court
there was an application to this Court
for leave to appeal against the decision of the Labour Appeal Court.
[138]
In
Equity
Aviation,
this Court said that “[t]he
Labour Appeal Court was required to determine whether the decision of
the Labour Court in reviewing
the award was correct.  The appeal
was thus limited to the evidence on which the decision of the Labour
Court was granted”.
[130]
A footnote linked to this sentence then reads:
“
This
view is consistent with the remarks by the minority judgment in
Kroukam
at para 113 that generally, on appeal, the Labour Appeal Court makes
such a decision as it thinks the Labour Court should have
made on the
evidence before it at the time it made its decision.”
[131]
Referring to the
Labour Appeal Court, this Court went on to say in
Equity
Aviation
:
“
That
Court decides appeals on the evidence placed before the Labour Court
and may substitute the decision of the Labour Court.”
[132]
[139]
In
Billiton
Aluminium
[133]
this Court had the following to say:
“
In
general a court of appeal when deciding whether the judgment appealed
from is right or wrong, will do so according to the facts
in
existence at the time it was given and not according to new
circumstances which came into existence afterwards.  This is
not
an inflexible rule and after-the-fact evidence may be admitted in
cases affecting children and in ‘exceptional cases
that cry out
for the reception of post-judgment facts’.”
[134]
[140]
In my view the above statements by
this Court in
Equity Aviation
and
Billiton Aluminium
support the proposition that an appeal in the Labour Appeal Court
against a decision of the Labour Court is an appeal in the ordinary

strict sense as reflected in the second category of appeals in
Tikly
.
The same is true of an appeal from a decision of any court to the
Supreme Court of Appeal and to this Court.
[141]
In
Billiton
Aluminium
this Court referred to the
provisions of sections 167(1) and 174 of the LRA which set out the
powers of the Labour Appeal Court
on appeal and the circumstances
under which that court may receive new evidence.  Froneman J,
who wrote for a unanimous Court,
said:
“
The
provisions of section 174 of the LRA are not unique or exceptional in
our law.  Similar provisions exist in relation to
ordinary civil
appeals, appeals to this Court and applications for leave to appeal
in criminal cases.”
[135]
[142]
In the next paragraph the Court
approached the matter on the basis that “[i]n general a court
of appeal, when deciding whether
the judgment appealed from is right
or wrong, will do so according to the facts in existence at the time
it was given and not according
to new circumstances which came into
existence afterwards”.
[136]
Accordingly, the decision of the Supreme Court of Appeal of 15
September 2009 dismissing Hendor’s application for leave
to
appeal meant nothing more than simply that the orders of the Labour
Court and of the Labour Appeal Court were correct.
It,
therefore, did not, and could not, have amended the terms of the
order of Cele AJ of 16 April 2007.  None of the appeal
steps
taken could conceivably alter or amend the terms and conditions of
the order of the court of first instance.
[143]
If the decision of the Supreme Court
of Appeal did not and could not have altered or amended the terms of
the order of the Labour
Court, then we are forced to go back to
paragraph (a) of Cele AJ’s order and ask whether, after the
order of the Supreme
Court of Appeal, paragraph (a) still meant the
same thing as it did when it was granted or which it would have meant
if there had
been no appeal.  The answer is that paragraph (a)
of Cele AJ’s order was not amended or altered.  Therefore,
after
the decision of the Supreme Court of Appeal, paragraph (a)
still meant that Hendor should put the second and further applicants

back into the positions they had occupied in its employ before
dismissal and on the same terms and conditions or, as Cele AJ’s

order put it, in “not less favourable positions”.
[144]
The position is that, after the
dismissal of Hendor’s application for leave to appeal by the
Supreme Court of Appeal on 15 September 2009,
the meaning
of paragraphs (a) and (b) of Cele AJ’s order was still the same
as before.  It was still that Hendor had
to put the second and
further applicants in their former positions in its employ on the
same terms and conditions of employment.
It did not require
Hendor to pay any money to the second and further applicants.
Paragraph (b) of the order still meant that
Hendor should pay the
second and further applicants their wages for the first period.
Paragraph (b) was the only part of
Cele AJ’s order that
entailed that Hendor would pay money.  It entailed payment of
money to the second and further applicants
in respect of the first
period and not the second period.
Avoiding a meaning
inconsistent with the Constitution
[145]
As already indicated, an order of
court should not be given a meaning that is inconsistent with the
Constitution if there is one
that is consistent with the Constitution
that may be given without straining the language of the order.
The proposition that
paragraph (a) of Cele AJ’s order required
Hendor to pay the second and further applicants remuneration for the
second period
attaches to Cele AJ’s order a meaning that is
inconsistent with the Constitution.  This is so because the
meaning it
attaches to the order is that Hendor is required to pay
the second and further applicants remuneration in respect of the
second
period without having been given an opportunity to be heard in
regard to the period after Cele AJ’s order.  No court

could ever do that.
[146]
If, as the first judgment says,
paragraph (a) of Cele AJ’s order meant that Hendor had to pay
the second and further applicants
for the second period, then the
Labour Court made that order without giving Hendor an opportunity to
be heard on that issue and
that conduct by the Labour Court would
have been an infringement of Hendor’s right “to have a
dispute that can be resolved
by the application of law decided in a
fair public hearing before a Court” entrenched in section 34 of
the Constitution.
[137]
Indeed, in
Mohamed NO
Ackermann J said that the observance of the
audi
alteram
partem
rule is “one of the main pillars of the section 34 fair hearing
right”.
[138]
[147]
The Labour Court could not have
ordered Hendor to pay the second and further applicants remuneration
for the second period because
a dispute about such payment was not
part of the dispute referred to the conciliation process and,
therefore, to it.  It was
a new dispute or cause of action.
The dispute was not part of the trial before Cele AJ since the
remuneration we are
talking about in respect of the second period was
remuneration for a period in the future.  At the time of the
trial and oral
argument before Cele AJ, the question of what would
happen after Cele AJ had handed down his judgment was not before the
Court
and could not have been before the Court.  Therefore, the
Labour Court could not have dealt with remuneration for that time.
[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.  This is
remarkable because,
if Cele AJ’s order was to the effect that
Hendor was required to pay the second and further applicants’
wages for the
period in question, which, according to the first
judgment, is the effect of paragraph (a) of Cele AJ’s
order, then
before the court could make such an order, it would have
had to first determine whether Hendor was liable for those wages.

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, in so
far 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.  As a general rule, our legal system works on the basis
that the court will first
hear all parties before making an order and
not on the basis that the court makes an adverse order against a
party first and then
that party gets heard later.  I am of the
view that the horse must be placed before the cart.  How could a
party against
whom an order to pay has already been made be heard
after that order had been made instead of being heard before that
order was
made?  The approach adopted by the first judgment is
one that is based upon an infringement of Hendor’s right to a
fair
hearing entrenched in section 34 of the Constitution.
[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 contractual
basis which entitled
it to refuse to pay that applicant.  This
reasoning is difficult to follow because a court only makes an order
against a litigant
after it has satisfied itself that that litigant
has no defence to the claim.  It does not make an order against
you first
and you are then free to refuse to comply with the order
on, for example, contractual grounds.  Once a court has made an
order,
the party or person against whom the order has been made is
bound by the order and is required to comply with it.  Section

165(5) of the Constitution makes this clear:  “An order or
decision issued by a court binds all persons to whom and
organs of
states to which it applies”.  Once a court has made an
order against you, the time for putting up a defence
against the
claim is past.
Certain difficulties if
the claim is a judgment debt
[152]
The position in the first judgment
that paragraph (a) of Cele AJ’s order meant that Hendor had to
pay the second and further
applicants remuneration for the second
period gives rise to various difficulties.  In this part of the
judgment, I refer to
a few.  Let us say that Mr A, one of the
second and further applicants, had been employed as a driver at the
time of his dismissal
and still had a valid driver’s licence at
the time Cele AJ granted the order of reinstatement.  Further,
let us say
that, three months after Cele AJ’s order, Mr A
caused a terrible road accident while driving, was subsequently
convicted
and, as part of his sentence, his driver’s licence
was cancelled.  The result would have been that from then
onwards
Mr A could not have lawfully driven a motor vehicle.
Imagine also that this was still Mr A’s position at the time of

the order of the Supreme Court of Appeal on 15 September 2012 and on
28 September 2012.
[153]
Let us say that Hendor became aware
that, after Cele AJ’s order, Mr A became disqualified to drive
a motor vehicle.
Then, when, in September 2012 and later the
second and further applicants demanded that Hendor pay them,
including Mr A, their
remuneration for the whole second period,
Hendor would have been entitled to raise the defence that Mr A would
only be entitled
to remuneration for the period of three months after
Cele AJ’s order and would not be entitled to any remuneration
for any
period thereafter.  Hendor could say that Mr A would
have worked for it only up to the end of the three months after Cele
AJ’s order because, thereafter, he would not have been able to
continue in Hendor’s employ as a driver as he no longer
had a
valid driver’s licence.  Therefore, he could not have
continued to earn any remuneration from Hendor for the balance
of the
second period and can, therefore, not be entitled to remuneration for
any period during which he would not have been able
to perform his
job as a driver.
[154]
If it is said that there is a
judgment debt relating to the second period, that would mean that
Hendor has no forum in which to
present its defence in regard to
Mr A’s claim.  This would be so because an order
would already have been made
that Hendor pay the second and further
applicants, including Mr A, their remuneration for the second period
without Hendor having
been able to defend itself against that claim.
Mr A’s case is a good example that reveals that the
construction
of paragraph (a) of Cele AJ’s order that the
first judgment adopts is inconsistent with the Constitution.
[155]
This is so because the
interpretation inevitably means that the Labour Court made an order
adverse to Hendor without having afforded
Hendor the opportunity to
lead evidence and to present argument as to why it might not have
been liable at all or not liable for
part of the period or not liable
in respect of certain individual applicants in respect of part of the
period.  However, if
one adopts the approach that Hendor’s
debt for the remuneration of the second and further applicants is not
a judgment debt
but a contractual debt, that means this is a new
dispute or cause of action.  It also means that, if Hendor
disputes liability
for the payment of the second and further
applicants’ remuneration or some of them, it will have an
opportunity to contest
the claim in a competent tribunal or court.
Its right to have a dispute that can be decided by the application of
law decided
in a fair public hearing before a court which is
entrenched in section 34 of the Constitution will be observed.
That dispute
or cause of action must be resolved by the application
of law in an appropriate court or tribunal where Hendor and the
relevant
applicants can put their respective cases before the court
or tribunal.
[156]
The LRA does not provide for a
dispute resolution procedure in regard to a dispute about arrear
wages where such a dispute is not
part of a dismissal dispute.
That means that under the LRA neither the Labour Court nor the CCMA
has jurisdiction in respect
of such dispute.  However, the
normal civil courts may deal with such disputes or causes of action.
Under section 77(3)
of the Basic Conditions of Employment Act
[139]
(BCEA) the Labour Court may also deal with such claims.  Under
that provision the Labour Court exercises its civil jurisdiction
in
respect of matters under the BCEA.
[157]
If Mr A had become disqualified from
driving a motor vehicle prior to the trial in the Labour Court and
Hendor had become aware
of this, Hendor would have been able to place
that evidence before the Labour Court.  Consequently, the Labour
Court would
have had regard to Hendor’s evidence or contentions
in regard to Mr A before deciding whether Mr A should get backpay
and,
if so, for what period.  If the Labour Court decided that
Mr A should get backpay for the whole of the first period including

the period after he would have become disqualified from working for
Hendor as a driver, at least that decision would have been
made after
Hendor had been heard.  If it was said that Hendor’s debt
in regard to the second period is a judgment debt
and it includes a
debt to Mr A in regard to the whole second period, the order that
made such debt a judgment debt would have been
made without Hendor
having been given an opportunity to present its case in regard to Mr
A’s disqualification from continuing
to work for it as a
driver.
[158]
Another example would be one where,
three months after Cele AJ’s order had been handed down, Hendor
had a retrenchment exercise
in terms of which some of the second and
further applicants would have been retrenched on the basis that they
had short service
periods and did not have special skills.  When
it is said that Hendor owes the second and further applicants
remuneration
for the whole of the second period by way of a judgment
debt, Hendor would have had no forum in which it could have contended
that
the particular employees would not have worked for Hendor for
the whole of the second period because they would have stopped
working
for Hendor three months after Cele AJ’s order.  If
the same retrenchment exercise had occurred before the trial in the

Labour Court, or, in any event, before the judgment of the Labour
Court was handed down, Hendor would have been able to lead evidence

on the issue and present arguments before Cele AJ so that whatever
order for the payment of backpay Cele AJ made would have been
made
after Hendor had been heard.
[159]
A final example in support of the
same principle is one involving retirement.  Section 187(2)(a)
of the LRA provides that,
despite section 187(1)(f) “a
dismissal based on age is fair if the employee has reached the normal
or agreed retirement age
for persons employed in that capacity”.
This means that, if an employee has reached either a normal or an
agreed retirement
age, the employer may dismiss that employee on the
basis of age and the dismissal would be fair.  If Ms B were one
of the
second and further applicants and had reached her agreed
retirement age before the trial in the Labour Court, Hendor would
have
been able to lead evidence to this effect and to argue not only
that it would not be competent for the Labour Court to order her

reinstatement but also that the Labour Court could not order that she
be paid any backpay beyond the date when she would have retired.

If, however, Ms B reached her agreed retirement age three months
after Cele AJ’s order and yet it was said that Hendor owed
the
second and further applicants (including Ms B) remuneration for
the whole of the second period by way of a judgment debt,
this would
mean that such an order would have been made without Hendor having
had a forum in which to put up its defence.
[160]
If, however, the view taken was that
the debt arising from Cele AJ’s order was not a judgment debt
but a contractual debt
and Hendor disputed liability to pay Ms B for
any period during which she would have been on retirement and Ms B
insisted that
she was entitled to be paid backpay for that period, a
dispute would have arisen between the two which could be decided by a
court
of law after hearing both parties.  That court would then
make an order or give a judgment.
[161]
If such an order or judgment was to
the effect that Hendor pay Ms B remuneration for either part of the
second period or for the
whole of the second period, that debt would
then be a judgment debt.  Before there is such a judgment or
order, any debt that
Hendor may owe the second and further applicants
including Ms B for the period 23 April 2007 to 15 September 2009
cannot be
a judgment debt but is a contractual debt.
[162]
The only basis upon which it could
be said that Hendor owed the second and further applicants
remuneration for the second period
by way of a judgment debt would
be, if an appeal from the Labour Court to the Labour Appeal Court or
an appeal from the Labour
Appeal Court to the Supreme Court of Appeal
was an appeal in the wide sense or the first category of an appeal
mentioned in the
Tikly
case.
That is an appeal which is a fresh hearing in which the Supreme Court
of Appeal would have given a fresh determination
on the merits of the
dispute.
[140]
[163]
If it was an appeal in the wide
sense and the Supreme Court of Appeal had issued a fresh
determination on the merits of the case
on 15 September 2009 in the
form of a reinstatement order with retrospective effect from 1
January 2007, that order of reinstatement
would have meant that the
second and further applicants were entitled to payment of their
remuneration for the period 1 January
2007 to 28 September 2009 on
the basis of a judgment debt.  Not the order granted by Cele AJ
on 16 April 2007.  However,
that would not happen with an appeal
in the ordinary strict sense.
[164]
An order granted by an appellate
court dealing with an appeal in the ordinary strict sense or granted
by a court dealing with an
appeal in the form of a review operates
from the date when the court of first instance made its order or
handed down its judgment.
It does not operate from the date
that the appellate court or review court hands down its judgment.
That this is the position
is supported by what this Court said in
Equity Aviation
.
There this Court said: “The ordinary meaning of the word
‘reinstate’ means that the reinstatement will
not run
from a date after the arbitration award”.
[141]
In a case where there has been an arbitration, the arbitral body is
in the position of a court of first instance.  Reinstatement

will therefore run from but not after the date of the order of the
court of first instance or from the date of the arbitration
award.
[165]
The view expressed in the first
judgment that, if the Labour Court had dismissed the second and
further applicants’ claim
for reinstatement and, in a
subsequent appeal, the Supreme Court of Appeal had upheld the appeal
and ordered reinstatement, that
order of reinstatement would have
meant that Hendor owed the second and further applicants remuneration
for the second period on
the basis of a judgment debt is mistaken.
[166]
The view is based on the proposition
that a reinstatement order made by the Supreme Court of Appeal in
such a case would operate
from the date on which it was issued or
handed down by the Supreme Court of Appeal.  That is not so when
the appeal before
an appellate court is an appeal in the ordinary
strict sense.  That would only happen if the appeal before an
appellate court
is an appeal in the wide sense.  When an
appellate court is dealing with an appeal in the ordinary strict
sense, its function
is, as Trollip J said in
Tikly,
to decide whether the decision of the court of first instance or
lower court was right or wrong.
[142]
[167]
In
Performing
Arts Council
[143]
the Appellate Division of the Supreme Court, now the Supreme Court of
Appeal, said through Goldstone JA:
“
Whether
or not reinstatement is the appropriate relief, in my opinion, must
be judged as at the time the matter came before the
Industrial Court.
If at that time it was appropriate it would be unjust and
illogical to allow delays caused by unsuccessful
appeals to the
Labour Appeal Court and to this Court to render reinstatement
inappropriate.  Where an order for reinstatement
has been
granted by the industrial court an employer who appeals from such an
order knowingly runs the risk of any prejudice which
may be the
consequence of delaying the implementation of the order.
”
[144]
What did Goldstone
JA’s statement in this passage that “an employer who
appeals from [an order of reinstatement] knowingly
runs the risk of
any prejudice which may be the consequence of delaying the
implementation of the order” relate to?
It related to the
prejudice that the employer’s operations may suffer as a result
of the fact that the employer may have
to reinstate workers after a
long time since the dismissal.  It also relates to the fact
that, if, ultimately, the employer
has to reinstate the workers, it
would be contractually liable for the remuneration that the workers
would have earned had the
employer complied with the reinstatement
order and not pursued appeals.  These statements by the
Appellate Division are also
consistent with an appeal from a decision
of the old Labour Appeal Court to the Appellate Division having been
an appeal in the
ordinary strict sense.
[168]
In
Performing
Arts Council
, the Industrial Court had
granted the workers reinstatement.  On appeal by the employer to
the Appellate Division, that Court
took the view that the appropriate
relief that should have been granted by the Industrial Court on
16 September 1991
was reinstatement.  Goldstone JA
said:
“
In
my judgment the appropriate relief which should have been granted to
the employees by the Industrial Court was, as it correctly
held, one
of reinstatement.”
[145]
Later, he said:
“
It
is now a little more than three years since the dismissal of the
employees.  The effective date of their reinstatement is
16
September 1991, viz the date of the determination of the Industrial
Court.”
[146]
These statements,
too, are consistent with an appeal from a decision of the Labour
Appeal Court to the Supreme Court of Appeal having
been an appeal in
the ordinary strict sense.
[169]
If an appellate court dealing with
an appeal in the ordinary strict sense decides that the decision of
the lower court was wrong,
it sets that decision aside and replaces
it with a decision that, in its view, the lower court should have
made.  The new
decision or order is then deemed to have been
made by that lower court on the date that the lower court made its
decision that
has been set aside.  The new decision does not
operate from the date on which the appellate court handed down its
judgment.
It operates from the date when the lower court made
its decision that will have been set aside.
[170]
I am not sure on what date Hendor
launched and served its application for leave to appeal to the Labour
Appeal Court.  That
date is significant because that is the date
with effect from which Hendor’s obligation to reinstate the
second and further
applicants in terms of paragraph (a) of Cele AJ’s
order and to pay them backpay for the period 1 January 2007 to 16
April
2007 in terms of paragraph (b) of Cele AJ’s order was
suspended.  However, it appears that that date was after 23
April
2007 when the second and further applicants reported for duty
and were turned away.  For six days from 16 to 23 April 2007

Hendor had carried the obligation to reinstate the second and further
applicants and to pay them the backpay for 1 January 2007
to 16 April
2007.  During that period of six days, that obligation was not
suspended and was fully effective and operational.
[171]
When Hendor launched and served its
application for leave to appeal to the Labour Appeal Court, its
obligations arising out of Cele
AJ’s order were suspended.
When the Labour Appeal Court dismissed the appeal, the suspension was
lifted and Hendor’s
obligation to reinstate the second and
further applicants and to pay them their backpay for 1 January 2007
to 16 April 2007 was
revived and became effective and operational
again.  When Hendor launched and served an application for leave
to appeal to
the Supreme Court of Appeal, Hendor’s obligation
to reinstate the second and further applicants was again suspended.

When the Supreme Court of Appeal dismissed Hendor’s application
for leave to appeal on 15 September 2009, the operation of
Hendor’s
obligation to reinstate the second and further applicants and to pay
them their backpay for the first period (1
January 2007 to 16 April
2007) was revived.  It is important to remember that Hendor’s
obligation to reinstate the second
and further applicants was an
obligation to put them back into their former positions in its employ
on the same terms and conditions
that governed their employment at
the time of their dismissal.  Hendor’s obligations flowing
from paragraph (b) of Cele
AJ’s order was simply to pay the
second and further applicants remuneration for the first period.
[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) in so far 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.
[173]
What I have said in the preceding
paragraph is that, when Hendor put the second and further applicants
back into its employ in the
positions which they had occupied before
their dismissal and did so on the same terms and conditions of
employment as those they
had enjoyed before their dismissal, the
contracts of employment which had existed between each one of the
second and further applicants
and Hendor before dismissal was
restored.  This means that the second and further applicants’
contracts of employment
were restored on 29 September 2009 and not on
15 September 2009 when the Supreme Court of Appeal issued its order
dismissing Hendor’s
application for leave to appeal.
[174]
When the Supreme Court of Appeal
dismissed Hendor’s application for leave to appeal, that did
not necessarily restore the
contracts of employment of the second and
further applicants.  The restoration of their contracts of
employment was to occur
by operation of law when the second and
further applicants were actually reinstated.  When the Supreme
Court of Appeal dismissed
Hendor’s application for leave to
appeal, the suspension of Cele AJ’s order was, by operation of
law, lifted.
The lifting of that suspension revived Cele AJ’s
order and, thus, Hendor’s obligations in terms of that order.
[175]
This meant that in terms of
paragraph (a) of Cele AJ’s order, Hendor was again obliged to
put the second and further applicants
back into their former
positions of its employ on the same terms and conditions of
employment as they had before dismissal.
In other words, the
obligation to reinstate them.  It was only upon complying with
paragraph (a) of Cele AJ’s order
– that is taking them
back and putting them into their old positions on the same terms and
conditions of employment as before
– that the contracts of
employment were restored or reinstated and they were deemed to have
been in place from the date of
Cele AJ’s order.
[176]
Between 15 and 28 September 2009
Hendor did not have an obligation to pay the second and further
applicants any remuneration for
the period after Cele AJ’s
order.  It had an obligation to reinstate them but, upon
reinstating them, their contracts
of employment would be restored and
Hendor would then be obliged to pay the second and further applicants
for the first period.
The obligation to pay the second and
further applicants their remuneration for any period after Cele AJ’s
order only arose
once the contracts of employment which had existed
between each employee and Hendor prior to dismissal were restored or
reinstated.
[177]
This means that, in so far as the
second and further applicants’ claims for remuneration for the
second period were debts
under the Prescription Act, they only became
due when the contracts of employment on which they were based were
restored.
As Nkabinde J said in
Equity
Aviation
: “[the reinstatement of
the workers] safeguards workers’ employment by restoring the
employment contract”.
[147]
So, as I have already said, the contracts of employment are restored
when the workers get reinstated.  In the present
case, the
second and further applicants were reinstated on 29 September 2009.
Therefore, that is also the day on
which the contracts of employment
of the second and further applicants were restored.
[178]
To the extent that the second and
further applicants’ claims for remuneration for the second
period may be said to have been
debts as contemplated in Chapter III
of the Prescription Act, they could not have been due before the
contracts of employment from
which they arose were restored.
Therefore, prescription could not have started running before the
date of the restoration
of the contracts.  Could the second and
further applicants have instituted legal proceedings against Hendor
before 28 September
2009 for the payment of their remuneration
for the second period?  No.  They could not have done so
because their claims
are contractual claims and the contracts on
which they are based had not been restored as yet.  They could
not institute legal
proceedings to enforce contracts that were not in
place yet as the order of reinstatement in terms of which the second
and further
applicants were required to be reinstated was suspended
during the period when Hendor was pursuing appeals.
[179]
Could the second and further
applicants have instituted legal proceedings for the payment of their
remuneration for the second period
between 15 and 28 September 2009?
No, they could not have done so because the Supreme Court of Appeal’s
dismissal
of Hendor’s application for leave to appeal did not
have the effect of restoring the contracts of employment of the
second
and further applicants.  It only had the effect of
lifting the suspension of the operation of Cele AJ’s order.

The result hereof was that Cele AJ’s order was operational or
effective again.  This meant that Hendor’s obligation
to
reinstate the second and further applicants in its employ was
revived.  It was only upon the reinstatement of the second
and
further applicants and, therefore, the restoration of their contracts
of employment that they could institute the legal proceedings.

This, therefore, means that, to the extent that the Prescription Act
was applicable to the second and further applicants’
claims,
prescription only started running from 29 September 2009 and not from
15 September 2009.
[180]
The result is that, when the
applicants instituted their application for a declaratory order on 19
September 2012, the prescription
period of three years had not
expired and the claims had not prescribed.  I, therefore, hold
that the Labour Appeal Court
erred in dealing with the matter on the
basis that the debts in relation to the period 23 April 2007 to 15
September 2009 became
due on 15 September 2009 and had, therefore,
prescribed by 19 September 2012 when the applicants instituted the
relevant proceedings.
It should have dealt with the matter on
the basis that they became due on 29 September 2009.
Remedy
[181]
What is to be done now?  Upon
the restoration of the contracts of employment when workers get
reinstated, the contracts of
employment are deemed to have been in
place for the whole period when appeals were being pursued or when
applications for leave
to appeal were pending.  Once it is
accepted that the contracts of employment of the second and further
applicants are deemed
to have been in place throughout the period
when Hendor had told the second and further applicants not to report
for duty and when
Hendor was pursuing its appeals in the Labour
Appeal Court and the Supreme Court of Appeal, then another question
arises.
That is, since we know that the second and further
applicants were prevented by Hendor from performing their obligations
in terms
of their contracts of employment, and, therefore, Hendor
cannot complain about them not having performed their duties, what
about
Hendor’s obligations towards the second and further
applicants in terms of their contracts of employment in respect of
the
same period?
[182]
To find the answer to this question
there are two important things to remember.  The one is that a
contract of employment is
one of those contracts that provide for
reciprocal obligations between the parties.  The employee
provides his or her labour
to the employer and, in return, the
employer provides wages to the employee.  As a general rule the
employee must first work
before the employer will be obliged to pay
him or her wages.  The other is that one of the basic principles
applicable to
such contracts is that, where party A is obliged to
perform his or her obligation towards party B in return for which
party B is
required to perform his or her obligation to party A,
party B will be obliged to perform his or her obligation to party A
even though party A did not perform his or her prior obligation to
party B if party A tendered to perform his or her obligation
but
party B did not accept the tender.
[183]
The same principle applies if party
A was prevented by party B from performing his or her prior
obligation.  In the context
of a contract of employment this
principle simply means that employees need not have actually
performed their duties in terms of
their contracts of employment
before the employer will be obliged to pay their wages as long as the
employees tendered their services
and the employer did not accept the
tender or where the employer prevented them from performing their
duties.
[184]
Subject to certain exceptions, in
the present case the second and further applicants will be entitled
to payment of their remuneration
for the whole of the second period
even though they did not work during that time.  This is because
they tendered their services
but Hendor rejected their tender for the
period during which it was pursuing its appeal or because Hendor
prevented the second
and further applicants from performing their
duties in terms of their contracts of employment during that time.
It must be
remembered that the second and further applicants would
have performed their duties had Hendor not rejected their tender or
pursued
its appeal.
[185]
One of the exceptions is that Hendor
would not be liable for payment of remuneration to an applicant for a
period when that applicant
would no longer have been in Hendor’s
employment anyway by reason of, for example, the employee having died
by that time.
Another exception would be in respect of a period
when the employee would no longer have been in Hendor’s
employment because
he or she would have retired by then or would have
had his or her employment contract terminated fairly for the
operational requirements
of Hendor or would no longer have been able
to perform his or her duties for one or other reason.  The
second and further
applicants’ entitlement to payment of their
remuneration is based on their contracts of employment and the above
principle
and not on a judgment debt because Cele AJ’s judgment
did not pronounce on whether or not the second and further applicants

were entitled to remuneration for the period that was yet to come as
at the time of the handing down of that judgment.
[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.
It is not the kind of application which a person would institute if
there
was already a judgment in that person’s favour on
liability – hence a judgment debt.  After all, there is,
as
a matter of fact, no existing judgment that has found that Hendor
is liable for the payment of each one of the second and further

applicants’ remuneration for the second period.
[187]
In terms of their notice of motion
in that application the applicants sought an order:
“
1.
Declaring that the respondent is liable to pay the individual
applicants amounts set out
in Schedule ‘A’ attached
hereto.
2.
Payment of interest thereon at the rate of 15.5% per annum from 1
January 2007
as set out in Schedule ‘B’ hereto.”
If there was already
an order obliging Hendor to pay the applicants their remuneration in
respect of the period 23 April 2007 to
28 September 2009, why would
the applicants have asked the Labour Court to grant a declaratory
order that Hendor “is liable
to pay them” that
remuneration for that period?  The answer is: there would have
been no reason because the issue of
whether Hendor is liable for the
payment of their remuneration for that period would have been
determined already.
[188]
Furthermore, in the founding
affidavit filed in support of the application for a declaratory
order, the deponent, Mr Moses Fohlisa,
who is the second applicant,
articulated the purpose of the application in these terms:
“
The
purpose of this application is to seek a declaratory order that the
respondent is liable to pay the individual applicants amounts

appearing in Schedule ‘A’ attached to the Notice of
Motion with interest in respect of each claim as set out in Schedule

‘B’ to the Notice of Motion.”
Again, I cannot see
how else one would have described the purpose of an application for
an order that would resolve the issue of
liability for the payment of
the second and further applicants’ remuneration if one would
not describe that purpose in the
terms in which Mr Fohlisa described
the purpose of the second and further applicants’ application
in the Labour Court.
[189]
The averments that Mr Fohlisa made
in the founding affidavit are the type of averments a claimant would
make in proceedings where
the court is asked to resolve the issue of
liability and relief.  He said that they were applicants in the
dismissal matter,
they had obtained a judgment handed down by Cele AJ
on 16 April 2007 ordering Hendor to reinstate them, they
tendered
their services on 23 April 2007 but Hendor rejected
their tender, that Hendor unsuccessfully appealed against Cele AJ’s

order and that Hendor ultimately reinstated the second and further
applicants.
[190]
That is enough to entitle the
applicants to an order that Hendor is liable for the remuneration of
the second and further applicants
for the second period.  Hendor
wanted the second and further applicants to prove the contracts of
employment.  However,
all parties know that they had contracts
of employment before the dismissal.  It is those contracts of
employment that were
reinstated on 29 September 2009.  In
my view the appeal must succeed and no order as to costs must be
made.
[191]
I have said above that Hendor would
not be liable for the payment of wages to an applicant for a period
that that applicant would
no longer have been in its employ by reason
of, for example, death, the fact that the particular applicant would
have reached retirement
age before that period or would have been
fairly dismissed for Hendor’s operational requirements or would
have become disqualified
from performing the duties he or she was
obliged to perform in terms of this or her contract of employment
with Hendor.  It
is common cause that there are applicants who
died on different dates between the date when Cele AJ’s
judgment was handed
down i.e. 16 April 2007 and
29 September 2009 and between the latter date and
19 September 2012 when the
application for a declaratory
order was instituted in the Labour Court.
[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.
[193]
Special attention needs to be drawn
to the following admissions made by Hendor in the papers, namely
that:
(a)
in terms of Cele AJ’s order of 16
April 2007 it ( ie Hendor ) was ordered to reinstate the second and
further applicants;
(b)
the second and further applicants tendered
their services on 23 April 2007;
(c)
Hendor rejected the second and further
applicants’ services and informed them not to report of duty
pending the outcome of
its intended appeal;
(d)
its appeal to the Labour Appeal Court and
its application to the Supreme Court of Appeal for leave to appeal
failed; and
(e)
it, thereafter, reinstated the second and
further applicants in its employ on 29 September 2009.
These admissions mean
that Hendor has admitted all that needed to be established to justify
the conclusion that it is liable for
the payment of the second and
further applicants’ wages for the period 23 April 2007 to 28
September 2009.
[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.
Prior
to those proceedings, such an order could not have and, was
not, made.  It will, therefore, be appropriate to make such a
declaratory order in this judgment.  The next question for
consideration is what the amounts are that Hendor should pay to
each
individual applicant.
Amounts (quantum)
[195]
It was averred in the applicants’
founding affidavit that Hendor owed the second and further applicants
the amounts that appeared
in Schedule A and in respect of each amount
for each applicant, interest reflected in Schedule B to that
affidavit.  A perusal
of schedule A gives one the impression
that the amounts have been carefully and properly calculated.
The applicants said
in their founding affidavit that a Chartered
Account, Mr David Douglas, calculated the amounts and interest for
them.  The
amounts in Schedule A are calculated in respect of
the weekly wages, “leave enhancement pay” and “leave
pay”
for each individual applicant on the basis of the periods
1 January 2007 to 31 December 2007, 1 January 2008 to 31 December
2008
and 1 January 2009 to 28 September 2009 and giving in respect of
each individual applicant the amount due to him for that period
on
the basis of the rate of pay that was applicable to that period.
[196]
Hendor’s answering affidavit
was deposed to by its attorney, Mr Johan Victor Dua.  He said
that he was deposing to Hendor’s
affidavit “on behalf of
[Hendor] as the averments are not factual unless they are within my
knowledge, and the primary basis
of the opposition is on various
legal issues”.  What Mr Dua was saying in this sentence
was that Hendor’s opposition
was not based on facts but on
legal issues.  It is, therefore, no wonder that, when Mr Dua
responded to an averment in the
applicants’ founding affidavit
that the amounts due to the second and further applicants appeared in
Schedule A under their
respective names plus interest reflected in
Schedule B, Mr Dua was content to only make a bare denial.  All
he said was: “The
Schedules as annexed to the affidavit are
disputed and I repeat what has been stated previously herein”.
That affidavit
did not contain anything that disclosed the basis upon
which Hendor could say that the amounts or calculations were wrong
even
if Hendor was liable for the payment of some amounts.
[197]
Hendor had employed the second and
further applicants before they were dismissed.  It had also
taken them back into its employ
on 29 September 2009.
Therefore, it knew what each one’s rate of pay was before
dismissal and what his or her rate
of pay would have been for each
year if he or she had remained in its employ in 2007, 2008 and up to
September 2009.  If Hendor
intended to place the amounts in
schedule A or the basis upon which they were calculated in serious
dispute , it would have put
up the amounts that it believed were
correct.  It did not do so.  For that reason, with regard
to the amounts the matter
must be decided on the applicants’
version of what those amounts are.  Hendor’s bare denial
of the correctness
of those amounts does not raise a genuine dispute
of fact.  Next to consider is the issue of interest on the
amounts.
Interest
[198]
The judgment of Cele AJ did not
order payment of interest on the backpay that Hendor was ordered to
pay to the second and further
applicants in respect of the first
period.  The judgment of the Labour Court (ie Gaibie AJ’s
judgment) ordered that
interest (at the prescribed rate) should run
from 16 April 2007 in respect of the amounts due to the second and
further applicants.
That is interest on amounts appearing in
Schedule A to the applicants’ founding affidavit in the Labour
Court.  Schedule
A included both the amounts for the first and
second periods.  The Labour Court was correct in ordering
interest to run from
16 April 2007 in respect of the amount
for the first period.  However, it was wrong in doing so in
respect of the
amounts for the second period. This is so because
interest cannot be calculated, or,  cannot run,from a date
earlier than
the date when the amount became due.  The amounts
for the second period were not due, and, could not have been due, to
the
second and further applicants by 16 April 2007.
They only became due and owing by Hendor to the second and further

applicants on different dates between 16 April 2007 and 29 September
2009.  This means that some of the amounts became due
and owing
to the second and further applicants later in 2007, 2008 and 2009.
How could interest in the amounts which became
due only in 2008 and
2009 run from 16 April 2007?  That cannot be correct.
Interest in respect of
wages for 1 January 2007 to 15 April 2007
[199]
I have already said above that in
respect of the wages for the first period Gaibie AJ was correct
in ordering that interest
should run from 16 April 2007 to
date of payment.  Unlike the amounts relating to the second
period, which became
due at the end of each week when the second and
further applicants were entitled to be paid their weekly wages, the
amounts for
the first period did not become due before Cele AJ’s
order.  This is because payment of that backpay was ordered
by
Cele AJ in the exercise of his discretion and not because the
second and further applicants were entitled to that backpay
by reason
of any contracts of employment.  Accordingly, the backpay
ordered by Cele AJ for the first period became due
on the date
of the order, namely, 16 April 2007.  That is why,
therefore, interest relating to the amounts relating
to that period
must run from 16 April 2007 to the date of payment.
Interest in respect of
wages for 16 April 2007 to 28 September 2009
[200]
Since the second and further
applicants were paid weekly, their wages became due at the end of
each week.  It seems to me that
each one of the second and
further applicants is entitled to insist that in respect of each
weekly wage interest should be calculated
from when his or her wage
became due to date of payment.  That is a calculation that the
applicants did not place before the
Court.  That calculation
will be a rather cumbersome exercise.  This Court will not
undertake it.  If the second
and further applicants want
interest calculated on that basis, they will have to calculate it
themselves or get a professional
such as an accountant to calculate
it for them so as to produce the total amount due to each individual
applicant.  However,
it is up to the applicants and Hendor to
agree upon a different, and, less cumbersome, basis of calculating
interest if they so
wish.  In my view, it will be enough for us
to simply order that each one of the second and further applicants be
paid his
or her weekly wages for the second period plus interest
calculated at the applicable rate from the date each weekly wage
became
due to date of payment.
[201]
Should the applicants and Hendor
fail to reach agreement on the amounts to be paid to each one of the
second and further applicants
(when interest is added), they should
consider agreeing on the identity of a third party in whom they all
have confidence who can
calculate the amounts and his or her decision
can be accepted by all concerned as final.  If, however, they do
not go that
route either party may refer the issue of amounts to the
Labour Court which should then decide the issue.
Costs
[202]
Ordinarily, no costs order is made
in labour matters.  However, this is a case in which an order of
costs should be made against
Hendor.  With effect from
16 September 2009 (i.e. the day after the Supreme Court of
Appeal had issued its order)
Hendor was obliged by an order of Cele
AJ to pay the second and further applicants their wages for the first
period. With effect
from 29 September 2009 Hendor was
contractually obliged to pay the second and further applicants their
wages for the
second period.  It knew its obligations in respect
of the amounts relating to these two periods.
[203]
As at 29 September 2009 all
these amounts were due and Hendor had no defence or justification for
not paying those amounts
then.  It knew that an order of
reinstatement had been made by Cele AJ in favour of the second and
further applicants and
that they had tendered their services and it
had rejected that tender.  It knew that, had it not rejected
that tender of services,
the second and further applicants would have
worked and earned their wages for the second period .  At that
time it was not,
and, it could not have been, Hendor’s case
that the claims had prescribed.  I do not lose sight of the fact
that the
applicants or their lawyers themselves took very long to
institute the correct proceedings.  Nevertheless, this does not
detract
from the fact that Hendor had no acceptable reason for not
paying the second and further applicants all the wages for the
relevant
periods on 29 September 2009 or within a few days
thereafter.  Therefore, it is fair that Hendor be ordered to pay

costs in all the courts.
[204]
I agree with the order in the first
judgment.  That order accords with the approach taken in this
judgment that there is a
distinction between the claim for the period
1 January 2007 to 15 April 2007 and the claim for
the period 16 April 2007
to 28 September 2009.
The order contemplates that, in respect of the remuneration for the
period 1 January 2007
to 15 April 2007, interest is to be
calculated from one date, namely, 16 April 2007 (i.e. the
date of Cele AJ’s
order), whereas, in respect of the
remuneration for the period 16 April 2007 to
28 September 2009, interest
is to be calculated from
different dates.
For the
Applicants:
G Malindi SC and B Lekokotla instructed by Ruth
Edmonds Attorneys
For the Respondent:
C E Watt-Pringle SC and K S Mclean instructed by Fairbridges
Wertheim
Becker
[1]
There is also a question of substitution of
executrixes and executors of estates of deceased employees.  I
deal with that
issue later.
[2]
The first applicant.
[3]
The further applicants totalling 42.
[4]
Collectively NUMSA and the employees are the
applicants.
[5]
Section 193(1)(a) provides:
“
If
the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the arbitrator
may—
(a)
order the employer to reinstate the employee from any date not
earlier than the date of dismissal.”
[6]
66 of 1995.
[7]
Some employees could not as they had since passed
away.
[8]
On 19 September 2012.
[9]
68 of 1969.
[10]
Section 11 of the Prescription Act provides:
“
The
periods of prescription of debts shall be the following:
(a)
thirty years in respect of—
(i)
any debt secured by mortgage bond;
(ii)
any judgment debt;
(iii)
any debt in respect of any taxation imposed or levied by or under

any law;
(iv)
any debt owed to the State in respect of any share of the profits,

royalties or any similar consideration payable in respect of the
right to mine minerals or other substances;
(b)
fifteen years in respect of any debt owed to the State and arising

out of an advance or loan of money or a sale or lease of land by the
State to the debtor, unless a longer period applies in respect
of
the debt in question in terms of paragraph (a);
(c)
six years in respect of a debt arising from a bill of exchange or

other negotiable instrument or from a notarial contract, unless a
longer period applies in respect of the debt in question in
terms of
paragraph (a) or (b);
(d)
save where an Act of Parliament provides otherwise, three years
in
respect of any other debt.”
[11]
The order reads:
“
a)
The respondent is ordered to pay the employees, excluding the
deceased
employees—
·
back pay for the period 1 January
2007 to 28 September 2009, as indicated in the first part of the
schedule attached hereto;
·
interest thereon at the prescribed
rate from 16 April 2007.
b)
The respondent is ordered to pay the estates of the deceased

employees – upon production of letters from the administrator
or the Master of the High Court and provided that they were
party to
the Labour Court proceedings—
·
back pay for the period 1 January
2007 to 28 September 2009, in the case of employees who were
deceased after this date, as indicated
in the first part of the
schedule attached hereto;
·
back pay for the period 1 January
2007 to the date of their deaths, in the case of employees who were
deceased prior to 28 September
2009, calculated on the basis of the
information provided by the applicants (in annexure A to the
founding papers), in relation
to those employees who are indicated
in the second part of the schedule attached hereto;
·
interest thereon at the prescribed
rate from 16 April 2007.
c)
The respondent to pay the costs of this application,
including the
cost of counsel.”
[12]
The first date being the retrospective date of
reinstatement, and the second being the day before the date on which
– in
terms of Cele AJ’s order – the employees were
to have resumed their duties.
[13]
Hendor Mining Supplies (A Division of
Marschalk Beleggings (Pty) Ltd) v National Union of Metalworkers of
South Africa
[2015] ZALAC 49
; (2016)
37
ILJ
394
(LAC) at para 11.
[14]
The day before actual reinstatement.
[15]
The three year period is reckoned from 15
September 2009, the date of the Supreme Court of Appeal’s
order.
[16]
That is the date on which the Supreme Court of
Appeal dismissed the application for leave to appeal against the
Labour Appeal
Court’s dismissal of the appeal against Cele
AJ’s order.
[17]
Section 34 of the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[18]
See
Road Accident
Fund v Mdeyide
[2010] ZACC 18
;
2011
(2) SA 26
(CC);
2011 (1) BCLR 1
(CC) at para 6;
Links
v Department of Health, Northern Cape Province
[2016] ZACC 10
;
2016 (4) SA 414
(CC);
2016 (5) BCLR 656
(CC) at para
22; and
Makate v Vodacom Ltd
[2016]
ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at paras 90-1.
[19]
Transport and Allied Workers Union of South
Africa v PUTCO Ltd
[2016] ZACC 7
;
2016
(4) SA 39
(CC);
2016 (7) BCLR 858
(CC) at para 28; and
City
Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd
[2015] ZACC 8
;  (2015) 36
ILJ
1423 (CC);
2015 (6) BCLR 660
(CC) at
para 14.
[20]
See
S v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC);
2004 (6) BCLR 620
(CC) at para 17.
[21]
National Union of Metal Workers v Hendor
Mining Supplies( a Division of Marschalk Beleggings (Pty) Ltd
)
[2007] ZALC 26
at para 40.
[22]
Equity Aviation Services (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration
[2008]
ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC) (
Equity
Aviation
) at para 36.
[23]
Finishing Touch 163 (Pty) Ltd v BHP Billiton
Energy Coal South Africa Ltd
[2012]
ZASCA 49
;
2013 (2) SA 204
(SCA) (
Finishing
Touch
) at para 13.  See also
Firestone South Africa (Pty) Ltd v
Genticuro AG
1977 (4) SA 298
(A);
[1977] 4 All SA 600
(A), which was quoted with approval by this
Court in
Eke v Parsons
[2015] ZACC 30
;
2016 (3) SA 37
(CC);
2015 (11) BCLR 1319
(CC) at
para 29.
[24]
Ex parte Women’s Legal Centre: In re
Moise v Greater Germiston Transitional Local Council
[2001] ZACC 2
[2001] ZACC 21
; ;
2001 (4) SA 1288
(CC);
2001 (8) BCLR 765
(CC) at
para 11.
[25]
Equity Aviation
above n 22.
[26]
One example is death.
[27]
The date from which reinstatement was
retrospectively to have taken place.
[28]
This I deal with later.
[29]
In its written submissions Hendor conceded that
the obligation to pay remuneration in respect of the period
1 January to
22 April 2007 was a judgment debt.  In oral
argument it withdrew this concession.
[30]
Makate
above n
18 at para 92.
[31]
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A) (
Escom
)
at 344E G.
[32]
Desai NO v Desai
[1995]
ZASCA 113; 1996 (1) SA 141 (A).
[33]
Makate
above n
18 at para 85.
[34]
Escom
above n
31.
[35]
Id.
[36]
This obligation arises from the Fourth Schedule
of the Income Tax Act 58 of 1962.  In terms of this schedule an
employer
is obliged to deduct PAYE from all amounts of remuneration
paid to an employee.  This is done in accordance with a table
created in terms of section 5 of the Income Tax Act.  The
currently applicable table is:
Taxable income (R)
Rates of tax (R)
0 – 189 880

18% of taxable income
189 881 – 296 540
34 178 + 26% of taxable
income above 189 880
296 541 – 410 460
61 910 + 31% of taxable
income above 296 540
410 461 – 555 600
97 225 + 36% of taxable
income above 410 460
555 601 – 708 310
149 475 + 39% of taxable
income above 555 600
708 311 – 1 500 000
209 032 + 41% of taxable income above 708 310
1 500 001 and above
533 625 + 45% of taxable income above 1 500 000
[37]
4 of 2002.
[38]
In terms of section 4 of the UIC Act, that Act
does not apply to (a) employees working less than 24 hours a month
for an employer;
(b) learners; (c) public servants; (d) foreigners
working on contract; (e) workers who get a monthly State (old age)
pension;
and (f) workers who only earn commission.
[39]
Section 6 of the UIC Act.
[40]
Above n 31.
[41]
Above n 18.
[42]
Compare
Swadif (Pty)
Ltd v Dyke NO
1978] 2 All SA 121
(A);
1978 (1) SA 928
(A) at 940F-944H.
[43]
“
Each [employee] is to report on duty on 23
April 2007 at 08h00.”
[44]
General
Accident Versekeringsmaatskappy Suid-Afrika Bpk v
Bailey
[1988] ZASCA 73
;
[1988] 4 All SA 614
(AD).
[45]
When the order was made.
[46]
The day before the employees were reinstated.
[47]
Performing
Arts Council of the Transvaal v Paper Printing Wood and Allied
Workers Union
[1993] ZASCA 201
;
1994
(2) SA 204
(A).  Of course, the words were expressed in a
different context.  They were quoted with approval in
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile
[2010]
ZACC 3
; (2010) 31
ILJ
273 (CC);
2010 (5) BCLR 422
(CC) at para 50.
[48]
This is the retrospective date of reinstatement
stipulated by Cele AJ.
[49]
See
Equity Aviation
above n 22 at para 36.
[50]
Equity Aviation
above n 22 at para 36.
[51]
Id.
[52]
Id.
[53]
This is the date by which, according to Cele AJ’s
order, they should have returned to work.
[54]
I touch on the nature of the order shortly.
[55]
Equity Aviation
above n 22 at para 36.
[56]
Second judgment [153].
[57]
Id.
[58]
Equity Aviation
above n 22 at para 36.
[59]
The principle is that generally parties may not
again litigate on the same matter once it has been determined on the
merits.
Molaudzi v S
[2015] ZACC 20
;
2015 (2) SACR 341
(CC);
2015 (8)
BCLR 904
(CC) at para 14.
[60]
Second judgment [145]-[146].
[61]
National Union of Textile Workers v Jaguar
Shoes (Pty) Ltd
1987 (1) SA 39
(N)
(
Jaguar Shoes
).
[62]
Coca Cola Sabco (Pty) Limited v Van Wyk
[2015] ZALAC 15
; (2015) 36
ILJ
2013;
[2015] 8 BLLR 774
(LAC) (
Coca Cola
).
[63]
28 of 1956.
[64]
Section 43 provided:
“
(2)
Any party to a dispute [concerning an alleged unfair labour
practice] who—
refers
the said dispute to an industrial council having jurisdiction in
respect of the dispute; . . .
. . .
may
within 10 days of the date of such reference or application apply by
means of an affidavit to the industrial court for an
order under
subsection (4).
(4)(a)
Unless the industrial court on good cause shown decides otherwise,
no order may be made under
this subsection if the relevant
application under subsection (2) was not made within 30 days of the
date on which notice was
given of the alleged unfair labour
practice, or if no such notice was given, of the date on which the
alleged unfair labour practice
was introduced.
(b)
After considering—
(i)
whether the applicant has complied with the relevant
provisions of
this section;
(ii)
the facts set out in the application and the affidavits as

contemplated in subsection (3) (b);
(iii)
any oral representations or evidence allowed by the industrial

court;
(iv)
whether the applicant has in good faith endeavoured to settle the
dispute
by agreement or otherwise; and
(v)
whether it is expedient to grant an order in terms of this section,
the
industrial court may make such order as it deems reasonable in the
circumstances: Provided that no party may be ordered to
pay damages
of whatever nature and the court may at any time, on the application
of any party to the dispute, in respect of which
application the
provisions of subsection (3) shall apply, withdraw or vary any such
order.”
[65]
Jaguar Shoes
above n 61 at 46F-G.
[66]
Id at 46H-I.
[67]
Id.
[68]
Id at 44B-D.
[69]
Id.
[70]
Coca Cola
above n 62 at para 17.
[71]
Equity Aviation
above n 22 at para 36.
[72]
Coca Cola
above n 62 at para 24.
[73]
Above [4] read with n 7.
[74]
29 September 2009 is the date on which –
after the appeal processes – the employees resumed duty.
[75]
He died on 29 June 2004.
[76]
He died on 5 February 2005.
[77]
He died on 2 February 2006.
[78]
He died on 23 October 2009.
[79]
He died on 27 December 2010.
[80]
He died on 18 March 2012.
[81]
He died on 14 June 2012.
[82]
He died on 13 February 2007.
[83]
He died on 24 February 2007.
[84]
He died on 21 February 2009.
[85]
He died on 4 May 2009.
[86]
He died on 21 August 2009.
[87]
The “leave pay” and “leave
enhancement pay” appear from calculations provided by the
employees and Hendor.
[88]
South African Commercial Catering and Allied
Workers Union v Irvin & Johnson Ltd (Seafoods Division Fish
Processing)
[2000] ZACC 10
;
2000 (3)
SA 705
(CC);
2000 (8) BCLR 886
(CC) at para 52.
[89]
Id.
[90]
Section 11(a)(ii)
of the
Prescription Act 68 of
1969
.
[91]
66 of 1995.
[92]
I have quoted only the parts of Cele AJ’s
order that are relevant to the present matter.  Although Cele
AJ’s
actual order is numbered 1 to 3, I have numbered the
relevant
parts I
have quoted as (a) and (b) for convenience.
[93]
It is noted that the Labour Appeal Court records
that the writ was set aside on 23 July 2011.  It was mistaken,
the writ
was set aside on 23 June 2011.
[94]
Hendor Mining Supplies (A Division of
Marschalk Beleggings (Pty) Ltd) v National Union of Metalworkers of
South Africa
[2015] ZALAC 49
; (2016)
37
ILJ
386 (LAC) (LAC judgment).  Tlaletsi DJP and Musi JA concurred
in Savage AJA’s judgment.
[95]
Coca Cola Sabco (Pty) Limited v Van Wyk
[2015] ZALAC 15
; (2015) 36
ILJ
2013 (LAC) (
Coca Cola
).
[96]
See the LAC judgment above n 94 at para 5 where
Savage AJA states that the applicant “conceded that the arrear
wages due
for the period from 1 January 2007 until 23 April 2007
amounted to a judgment debt and that a claim for payment of such
wages
had not prescribed”.
[97]
Investigating Directorate: Serious Economic
Offences v Hyundai Motor Distributors (Pty) Ltd In re: Hyundai Motor
Distributors
(Pty) Ltd v Smit NO
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai)
at para 24.
[98]
28 of 1956,
as amended.
[99]
Consolidated Frame Cotton Corporation v
President of the Industrial Court
[1986] ZASCA 65
;
1986 (3) SA 786
(A) (
Consolidated
Frame Cotton
).
[100]
Hodge v Ultra Electric Ltd
1943
KB 462
at 465 and 466.
[101]
William Division Ltd v Patterson
1943 SC 78
at 85, 92 and 95.
[102]
Jacksons v Fisher’s Foils
Ltd
[1944] 1 All ER 421 (KB).
[103]
Bramdaw v Union Government
1931
NPD 57
at 78.
[104]
Consolidated Frame Cotton
above
n 99 at 786B-D.
[105]
Equity Aviation Services (Pty) Ltd v
Commission for Conciliation Mediation and Arbitration
[2008]
ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC) (
Equity
Aviation
).
[106]
Id at para 36.
[107]
Id at paras 41 and 42.
[108]
Kilroe-Daley v Barclays National Bank Ltd
[1984] ZASCA 90
;
1984 (4) SA 609
(A).
[109]
Id at 624C-E.
[110]
Id at 626C.
[111]
See
Kilroe-Daley
above n 108.
[112]
With Murphy and Kathree-Setiloane AJJA
concurring.
[113]
Coca Cola
above
n 95 at para 14.
[114]
Id.
[115]
Id at para 16.
[116]
Id at para 22.
[117]
Id at para 24.
[118]
Id at para 28.
[119]
National Union of Textile Workers & others
v Jaguar Shoes (Pty) Ltd
1987(1) SA 39
(N) (
Jaguar Shoes
),
a judgment of Booysen J in which Kriek J concurred.
[120]
Id at 44B-C.
[121]
Id at 44E-F.
[122]
Id at 44F-G.
[123]
Id at 44G-H.
[124]
Id.
[125]
Id
at 44H.
[126]
Jaguar Shoes
above n 119.
[127]
Tikly v Johannes NO
1963 (2) SA 588 (T).
[128]
Id at 590G-H.
[129]
See, for example,
Kham
v Electoral Commission
[2015] ZACC 37
;
2016 (2) SA 338
(CC);
2016 (2) BCLR 157
(CC) at para 41;
MM
v MN
[2013] ZACC 14
;
2013 (4) SA 415
(CC) at para 114;
Maphango v
Aengus Lifestyle Properties (Pty) Ltd
[2012]
ZACC 2
;
2012 (3) SA 531
(CC);
2012 (5) BCLR 449
(CC) at para 135;
Registrar of Pension Funds v Howie NO
[2015] ZASCA 203
;
[2016] 1 All SA 694
(SCA) at para 6.
[130]
See
Equity Aviation
above n 105 at para 48.
[131]
Id at footnote 63.
[132]
Id at para 50.
[133]
Billiton Aluminium SA Ltd t/a Hillside
Aluminium v Khanyile
[2010] ZACC 3
;
(2010) 31
ILJ
273
(CC);
2010 (5) BCLR 422
(CC) (
Billiton
Aluminium
).
[134]
Id
at para 35.
[135]
Id at para 34.
[136]
Id at para 35.
[137]
Section 34 of the Constitution provides that:
“
Everyone has
the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[138]
National Director of Public Prosecutions v
Mohamed NO
[2003] ZACC 4
;
2003 (4) SA
1
(CC);
2003 (5) BCLR 476
(CC) (
Mohamed
NO
) at para 36.
[139]
75 of 1997.
[140]
See
Tikly
above
n 127 at 590G-H.
[141]
See
Equity Aviation
above n 105 at para 36.
[142]
See
Tikly
above
n 127 at 590G-H.
[143]
Performing Arts Council of the Transvaal v
Paper Printing Wood and Allied Workers Union
[1993]
ZASCA 201
(A);
1994 (2) SA 204
(A) (
Performing
Arts Council
).
[144]
Id at 213H-I.
[145]
Id at 220D-E.
[146]
Id at 220H-I.
[147]
See
Equity Aviation
above n 105 at para 36.