Empact Group (Pty) Ltd v Malope and Others (JR1063/21) [2025] ZALCJHB 5 (17 January 2025)

Empact Group (Pty) Ltd v Malope and Others (JR1063/21) [2025] ZALCJHB 5 (17 January 2025)

The court held that the Commissioner misconstrued the provisions of section 37 and 38(1) of the BCEA. Section 37 does not create a statutory right to be paid during a notice period; payment is determined by normal contractual principles. Where an employee tenders services during the notice period, payment is due unless the employer has a contractual defence such as supervening impossibility of performance. In this case, Empact gave notice to the employees, and the cancellation of the service contract by Anglo resulted in supervening impossibility of performance, excusing Empact from the obligation to pay notice pay. The Commissioner’s finding that statutory law trumps the common law...

Citation
[2025] ZALCJHB 5
Parties
Applicant: Empact Group (Pty) Ltd; Respondent: Malope, L N.O. (As Commissioner); Respondent: The Commission for Conciliation Mediation and Arbitration; Respondent: NUMSA obo Danile Malatjie and 70 Others
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
17 January 2025
Case Number
JR1063/21
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside; the claim for payment by the applicant is dismissed.
Judges
C Orr
Legal Topics
Notice Pay, Supervening Impossibility, Force Majeure, Section 37 Bcea, Section 38 Bcea, Review of Arbitration Award
Labour Law Civil Procedure Notice Pay Supervening Impossibility Force Majeure Section 37 Bcea Section 38 Bcea Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Empact Group (Pty) Ltd

Applicant

Malope, L N.O. (As Commissioner)

Respondent

The Commission for Conciliation Mediation and Arbitration

Respondent

NUMSA obo Danile Malatjie and 70 Others

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether Empact was obliged to pay employees notice pay during a period of supervening impossibility of performance.
  2. 2 Whether the provisions of section 37 and 38(1) of the BCEA override the common law defence of impossibility of performance.
  3. 3 Whether the Commissioner misconstrued the statutory provisions regarding notice and payment.

Ratio Decidendi

The court held that the Commissioner misconstrued the provisions of section 37 and 38(1) of the BCEA. Section 37 does not create a statutory right to be paid during a notice period; payment is determined by normal contractual principles. Where an employee tenders services during the notice period, payment is due unless the employer has a contractual defence such as supervening impossibility of performance. In this case, Empact gave notice to the employees, and the cancellation of the service contract by Anglo resulted in supervening impossibility of performance, excusing Empact from the obligation to pay notice pay. The Commissioner’s finding that statutory law trumps the common law...

Court Disposition

The arbitration award is reviewed and set aside; the claim for payment by the applicant is dismissed.

Orders

  • The arbitration award issued by the first respondent under the auspices of the second respondent under Case Number GAJB2012-21 is reviewed and set aside and substituted with: The claim for payment by the applicant is dismissed.
  • There is no order as to costs.