Mhlupheki Willem Kubeka & Others v Ni-Da Transport (PTY) LTD (D 726-18;J 5386-17) [2019] ZALCD 1

/ / 2019, Labour Law, News


The applicants instituted a claim for arrear wages in terms of section 77(3) of the Basic Conditions of Employment Act. The application was based on a judgment from the Labour Court, that the applicants be reinstated, retrospectively to the date of their unfair dismissals, and that the applicants report for duty within 14 days of the order. The respondent unsuccessfully approached every higher court for a reversal of this decision, meaning that the respondent’s obligation to reinstate the applicants upon their tender of services, was revived.

At the time of the application the applicants had not been reinstated and subsequently, the respondent argued that the applicants should have brought contempt of court proceedings for an order compelling the respondent to reinstate them. It is trite that the entitlement for backpay is contingent on the reinstatement of the applicants, while a prerequisite to reinstatement is a tender of services by the applicants.

On 29 July 2013 (five days after the Labour Court order) a number of the applicants, accompanied by a SATAWU official, attended to the respondent’s premises, tendering their services in accordance with the order of the Labour Court. The tender was refused, on the ground that the respondent did not have knowledge of the court order. Following the dismissal of the respondent’s various appeals of the order, there was no new tender of work made by the applicants.


In determining whether the applicants followed the correct legal process, the court considered the Constitutional Court’s decision in the case of National Union of Metalworkers of SA obo Fohlisa and Others v Hendor Minin Supplies. It was held in Hendor that a reinstatement order is an order to do something as opposed to an order to pay something, and consequently may only be enforced through contempt proceedings. The Labour Court thus (reluctantly) held that the applicants had used the wrong process to obtain the relief they sought, and thus the application was dismissed on this basis.


In spite of its decision, the Labour Court considered the question of whether the applicants tendered their services in accordance with the order and whether a re-tender of services after the dismissal of the respondent’s appeals was necessary. The court held that the attendance by a SATAWU official, and various workers at the respondent’s premises constituted a tender of work by all of the applicants. It was further held that the applicants could not have been expected to re-tender their services, following the dismissal of the respondent’s appeals, and that the obligation rested upon the respondent to contact the union inviting the applicants back into its employ. The applicants would be entitled to backpay upon reinstatement, however, the correct process would have been to compel the respondent to reinstate by means of contempt proceedings.


This case outlined the legal process that should be followed by unfairly dismissed employees in respect of reinstatement and backpay. An employee does not have an entitlement to arear wages without the reinstatement of the employee’s contract. Consequently, an employee who has not been duly reinstated following the tender of services must bring contempt proceedings to compel the employer to reinstate the employee and upon reinstatement will become entitled to backpay.

Written by Wesley Pons and  Charlotte Clarke

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