Kubeka and Others v Ni-Da Transport (Pty) Ltd (DA10/19) [2020] ZALAC 55; (2021) 42 ILJ 499 (LAC); [2021] 4 BLLR 352 (LAC) (24 November 2020)

Kubeka and Others v Ni-Da Transport (Pty) Ltd (DA10/19) [2020] ZALAC 55; (2021) 42 ILJ 499 (LAC); [2021] 4 BLLR 352 (LAC) (24 November 2020)

The Labour Appeal Court held that a reinstatement order does not itself restore the contract of employment. Restoration only occurs when the employee tenders their services after the order becomes enforceable and the employer accepts the tender. Without actual reinstatement, no contractual right to arrear wages arises. The claims of the appellants who did not tender their services after the appeals process was exhausted, or whose tender was not accepted, are not enforceable under section 77(3) of the BCEA. The claims of deceased estates also fail, as reinstatement became impracticable upon death and only compensation could be sought. However, the claims of the re-employed appellants,...

Citation
[2020] ZALAC 55
Parties
Appellant: Mhlupheki Willem Kubeka & Others; Respondent: Ni-Da Transport (Pty) Ltd
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
24 November 2020
Case Number
DA10/19
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Dated 31 January 2019
Outcome
Appeal upheld in respect of re-employed appellants; dismissed in respect of all other appellants.
Judges
Coppin, Murphy, Savage
Legal Topics
Arrear Wages, Reinstatement, Basic Conditions of Employment Act, Labour Relations Act, Prescription of Claims, Contempt Proceedings
Labour Law Arrear Wages Reinstatement Basic Conditions of Employment Act Labour Relations Act Prescription of Claims Contempt Proceedings

Case Brief

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Parties

Mhlupheki Willem Kubeka & Others

Appellant

Ni-Da Transport (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Dated 31 January 2019

Legal Issues

  1. 1 Whether a reinstatement order itself restores the contract of employment and entitles employees to arrear wages.
  2. 2 Whether employees must tender their services and have the employer accept the tender for the contract to be restored.
  3. 3 Whether the claims for arrear wages by the appellants are enforceable under section 77(3) of the BCEA.

Ratio Decidendi

The Labour Appeal Court held that a reinstatement order does not itself restore the contract of employment. Restoration only occurs when the employee tenders their services after the order becomes enforceable and the employer accepts the tender. Without actual reinstatement, no contractual right to arrear wages arises. The claims of the appellants who did not tender their services after the appeals process was exhausted, or whose tender was not accepted, are not enforceable under section 77(3) of the BCEA. The claims of deceased estates also fail, as reinstatement became impracticable upon death and only compensation could be sought. However, the claims of the re-employed appellants,...

Court Disposition

Appeal upheld in respect of re-employed appellants; dismissed in respect of all other appellants.

Orders

  • The appeals of the appellants listed as numbers 1–10, 14–15, 18, 22, 25–26, 32-33, 35-39, 42, 47, 51, 53, 55-57 and 59 in Annexure A to the statement of case are dismissed.
  • The appeals of the appellants listed as numbers 12, 16, 17, 19, 27, 28, 29, 31, 34, 37, 38, 44, 50, 52 and 54 (the re-employed appellants) are upheld and the order of the Labour Court in relation to these appellants is varied and substituted with an order directing the respondent to pay them back pay in the...