Molopa v Trans-Orange Conference Of Seventh Day Adventists and Others (01 March 2023) (J 327/2021) [2023] ZALCJHB 41 (1 March 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 327/2021

In the matter between:

MAMATSHEU BERNARD MOLOPA Applicant

and

TRANS-ORANGE CONFERENCE OF

SEVENTH DAY ADVENTISTS First

Respondent

PAUL SHONGWE

Second Respondent

SOUTHERN AFRICA UNION CONFERENCE OF

SEVENTH DAY ADVENTISTS CHURCH Third

Respondent

D SPENCER

Fourth Respondent

Heard: 22 February 2023

Delivered: 01 March 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 01 March 2023.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant was employed by the First Respondent (TCSDA or the church) as a pastor. During February 2013, the TCSDA held a meeting and adopted certain resolutions. At this meeting, it was decided to remove the existing executive committee and to appoint a new one. The result of this was that two executive committees existed within the

church and both committees claimed to be the legitimate executive committee of the TCSDA.

[2] The new executive committee held a disciplinary hearing for the Applicant and he was subsequently dismissed in December 2013.

[3] The Applicant and other members of the old executive committee approached the High Court under case number 6277/2014 for a declarator. They sought an order declaring the resolutions of February and October 2013 invalid and for the old executive committee to be the only legitimate committee.

[4] The High Court, Gauteng Local Division, Johannesburg, handed down judgment in case number 6277/2014 on 28 March 2018. The order granted inter alia set aside the resolutions taken whereby the existing executive committee was removed and a new executive committee was appointed and it had set aside all resolutions and steps taken in relation to the Applicant’s dismissal.

[5] The Applicant approached this Court for relief in 2021 on the ground that during the period 2013 until 2018, the Respondent failed to reimburse him for his ‘unpaid income namely salaries, allowances, bonuses and pension fund’.

This application

[6] The Applicant approached this Court for relief in terms of the provisions of section 77(3) of the Basic Conditions of Employment Act[1] (BCEA). He claims all outstanding monies (unpaid income) owed to him for the period 2013 until 2018.

[7] The Respondent raised a point of prescription, which would only become relevant if the Applicant is indeed able to show an entitlement to the outstanding remuneration he claims.

[8] It is common cause that the Applicant was dismissed in December 2013, that he and others approached the High Court for relief and that the High Court in March 2018 inter alia set aside all resolutions and steps taken in relation to the Applicant’s dismissal. Subsequent to the High Court’s order, the Applicant’s membership to the church was re-instated and he was re-employed with effect from May 2018 until his retirement in December 2019.

[9] This application, seeking payment in the sum of R 3 616 860 was filed on 23 June 2021.

[10] There are a number of difficulties with the Applicant’s case, which are all fatal to the relief he seeks.

Pleadings in a contractual claim

[11] Firstly, the Applicant elected to approach this Court in terms of the provisions of section 77(3) of the BCEA. This election requires of the Applicant to specifically plead the terms of the contract he seeks to rely on, to prove the breach of the contract and to quantify the damages he had suffered as a result of the breach.

[12] The Applicant further elected to approach this Court by way of application. Affidavits in motion proceedings serve two primary purposes: to define the issues between the parties and to place the essential averments and evidence before the other parties and the Court. As a general principle, the applicant must make out his or her case in the founding affidavit. Rule 7A(3) requires of an applicant to set out the material facts on which the application is based and to set out legal issues that arise from the material facts, upon which the applicant relies for the relief sought.

[13] In Toyota SA Motors (Pty) Ltd v Nzuza and another,[2] the Labour Appeal Court (LAC) held that:

‘Finally, I need to add that it appears to have become fashionable for dismissed employees to come to the Labour Court in terms of the BCEA and claim breach of contract seeking either specific performance or damages. I do not know the reason that has given rise to this, but the risk associated with claims made in terms of the BCEA, as in this matter before this court, is enormous. Firstly, unlike in the LRA the claimant must prove an unlawful breach and not unfairness for the termination of the employment; next in terms of the LRA reinstatement is generally compulsory where a dismissal is found to be substantively unfair, specific performance consequent upon a breach is not, and generally it is a discretionary relief. Furthermore, in terms of the LRA an employee whose dismissal is found to be unfair will receive compensation. In an action in terms of s 77, if the employee is able to prove a breach by the employer the only amount s/he will receive is the loss s/he has proved to have suffered as damages. Here s/he must also show that s/he has tried to mitigate the damages etc. There is no way s/he can receive damages equal to the amount they would have earned from the date of the breach to the date that they would eventually have retired! This absurd prayer which is so regular seems to take leave of the basic rule that one is awarded damages that are proved not what you would have been paid had you remained in your employ till retirement.’

[14] In Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana,[3] the LAC confirmed that an employee proceeding in terms of the BCEA must prove the damages she has suffered to obtain monetary relief and held that:

‘… With regard to damages, as I said earlier, there was a duty upon the respondent to prove the quantum of her damages — to simply

demand damages in the amount that she would earn until her retirement is totally misconceived. Damages in a breach of contract needs to be proved, she failed to prove any, nor does she allege that she has been out of work from the date of her employment being terminated. In the circumstances, had the respondent proved a breach, she would not in law be entitled to any relief.’

[15] In Kwazulu-Natal Tourism Authority & others v Wasa,[4] the LAC held that:

‘[32] … The employee did not seek compensation based on her dismissal being unfair in terms of the Labour Relations Act (LRA), she sought damages in terms of the BCEA consequent upon a breach of contract. She instituted a civil claim for damages. Two issues arise in this respect. Firstly, she had to prove that she suffered damages as a consequence of the breach, that there is a link between the damages she suffered and the breach; and, secondly, the quantum of damages she actually suffered.

[33] The employee failed to provide any evidence whatsoever as to the loss she suffered as a result of her dismissal and, as such, even if she had proved that the employer had breached the employment contract, she would not succeed in obtaining any award. Insofar as the Labour Court sought support for its decision to grant the relief sought on the basis of the dictum in the Billiton matter which stated that there was no need to prove damages to obtain compensatory relief in an unfair dismissal dispute, it erred. The Billiton case dealt with a claim under the LRA and not one under the BCEA. It is correct that no damages need to be proved when seeking compensatory relief under the LRA because s 194 of the LRA provides that where a dismissal is found to be unfair on substantive or procedural grounds, the commissioner or the Labour Court may grant compensation to the employee within certain limitations. The amount awarded there to a dismissed employee is not damages as understood within a civil claim context but a statutory relief, hence there is no need to prove any loss.’

[16] In his founding affidavit, where the case is to be made out, the Applicant did not properly plead the terms of the contract of employment. He did no more than to state that he was employed by the Respondents as a pastor from 1983 until 31 December 2019 and that:

‘Briefly for background to the matter, my initial remuneration was agreed as follows:

1. My salary would increase with 10% annually;

2. I am entitled to 25% of my basic salary as an education allowance for my children;

3. I am entitled to a once off R 4000 book and equipment allowance annually, and which escalated yearly;

4. I have a degree so I am entitled to receive a graduate benefit monthly which escalates with 10% annually, recently this amount was R 500.’

[17] It is evident from what is set out in the Applicant’s founding affidavit that he has not pleaded the terms of his contract. No mention whatsoever is made of the amount to be paid to him or when it would be due and payable. To support his averments, the Applicant attached a copy of his 2011 payslip, which is of no assistance as it does not disclose the terms of the contract and it is in respect of a period that predates his claim.

[18] As to the breach, the Applicant simply alleged that the Respondents failed to reimburse him for his ‘unpaid income namely salaries, allowances, bonuses and pension fund’ for the period 2013 until 2018. The Applicant failed to establish any basis upon which he was entitled to the payments he claims, nor did he establish a basis upon which the Respondents were obliged to make the payments he seeks.

[19] As the LAC has confirmed, there is a duty upon the Applicant to prove the quantum of his damages. This means that the Applicant should have set out, in detail, how he calculated his damages by showing what amount he had used as well as the period for which he claims, to make the calculation, how the calculation was made and taking into consideration other income he had earned during the period of his claim. The Applicant did none of that.

[20] The Applicant attached a payslip for October 2013, which indicates that his total earnings per month was R 27 329,66. He was dismissed in December 2013 and re-employed in May 2018, which indicates that the Applicant does in any event not have a claim for the entire period of 2013 until 2018. How the Applicant arrived at a claim of R 3 616 860, in respect of the applicable period under circumstances where he had earned a monthly salary in the region of R 27 000, is not disclosed and is certainly not apparent from the papers.

[21] In summary: the Applicant failed to plead the terms of his contract, he failed to prove a breach and he failed to prove the quantum of his damages. As a result, the Applicant failed to plead a proper contractual claim and on the papers as they are, no case is made out for the relief sought.

Restoration of the Applicant’s contract of employment

[22] However, there is a far more pressing issue that calls for consideration and that is the question whether the Applicant’s contract of employment was restored pursuant to his dismissal in December 2013. The High Court has set aside all resolutions and steps taken in relation to the Applicant’s dismissal, but it did not order his reinstatement. It is common cause that subsequent to the High Court judgment, the Applicant was re-employed with effect from May 2018.

[23] There is a material difference between reinstatement and re-employment. In Mashaba v Citibank NA SA Branch and others,[5] the Court defined re-employment as follows:

‘Re-employment does not require the restoration of the status quo ante as if a dismissal has not happened. Re-employment is relief that in effect affords the employer greater flexibility where it comes to taking the employee back to work. Examples of where re-employment, as opposed to reinstatement, would be competent are:

25.1 Where there had been operational changes to the employee’s position in the interim, or a change in conditions of employment, which do not go so far as to render taking the employee back into employment impracticable, but which make a complete restoration of the status quo ante as required by reinstatement impossible, re-employment would be appropriate. In simple terms, the employee is returned to work in an alternative position. The court or the arbitrator however still retains the discretion to decide the retrospectivity of such an award of re-employment, so it does not follow that all re-employment awards necessarily mean that it must be new employment with no retrospectivity.

25.2 Also, re-employment, as opposed to reinstatement, can have conditions and/or terms attached to taking the employee back to work, not contemplated by the employee’s original employment and/or employment terms. For example, it may be ordered that an employee is re-employed on a different medical aid…

25.3 Re-employment would also occur where it is decided to regard the previous employment relationship as terminated and the replacement thereof with new employment which may or may not be on different terms…’ [Footnotes omitted].

[24] In Tshongweni v Ekurhuleni Metropolitan Municipality,[6] the LAC defined re-employment as:

‘…Re-employment implies termination of a previously existing employment relationship and the creation of a new employment relationship, possibly on different terms both as to period and the content of the obligations undertaken.’

[25] In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[7] (Equity Aviation), the Constitutional Court specifically dealt with the meaning of ‘reinstatement’ and held that:[8]

‘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. As the language of s 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.’ [Footnotes omitted]

[26] The ratio in Equity Aviation is clear. Reinstatement means the restoration of the status quo ante. It is as if the employee was never dismissed. Where reinstatement is awarded, an employer will be in compliance with such an award if the employer, on (or as from) the date of the award having been made, takes the employee back into its service on the same terms and conditions of employment of the employee as it existed at the time of the dismissal of the employee. Also, and as a necessary consequence, the original starting date of employment of the employee will remain the same and applicable, if such reinstatement is awarded.

[27] In short, reinstatement means taking the employee back on the same terms and conditions of employment as if the dismissal of the employee never occurred, which would apply as from the date of award of reinstatement and with the continuity of employment intact.

[28] In Nel v Oudtshoorn Municipality and another,[9] the Supreme Court of Appeal referred with approval to the following:

‘… In Jackson v Fisher's Foils Ltd [1944] 1 All ER 421 Humpreys J quoted with approval the following dictum in Dixon (William) Ltd v Patterson 1943 SC (J) 78 as to the meaning of 'reinstatement':

“The natural and primary meaning of "to reinstate" as applied to a man who has been dismissed (ex hypothesi without justification) is to replace him in the position from which he was dismissed, and so to restore the status quo ante the dismissal.”’

The Court concluded:[10]

‘From the provisions of the LRA and the cases I have cited it is clear that by reinstating a dismissed employee the employer does not purport to conclude a fresh contract of employment. The employer merely restores the position to what it was before the dismissal...’

[29] In Myers v National Commissioner of the SA Police Service and another,[11] the Court held:

‘The Constitutional Court in Equity Aviation interpreted the word 'reinstate' to mean that the employee must be put back into the same job or position that he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is aimed at placing the employee in the position he or she would have been, but for the unfair dismissal.’

[30] The obvious question in casu is whether the Applicant was indeed reinstated, as reinstatement is a fact that must be established to succeed with his claim for the payment of outstanding remuneration for the period 2013 until April 2018.

[31] In casu, it is common cause that subsequent to the High Court judgment, the Applicant was re-employed with effect from May 2018. There was no order by any Court of law which re-instated the Applicant, there was no arbitration award issued to that effect and there was no agreement between the parties that the Applicant would be re-instated. On the Applicant’s own version, he was not remunerated in accordance with the agreement that previously regulated the employment relationship. In fact, it is common cause that the Applicant was re-employed in May 2018.

[32] In Kubeka and others v Ni-Da Transport (Pty) Ltd[12] (Kubeka), the LAC considered a claim for arrear wages or backpay, consequent upon an order for reinstatement. The LAC held that the key issue to be decided was whether the employees’ claim for backpay depended on the restoration of the contracts of employment and when the contracts of employment were restored, if at all.

[33] The same question arises in casu.

[34] The LAC restated the reasoning of the Constitutional Court in National Union of Metalworkers of SA on behalf of Fohlisa and others v Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd)[13] (Hendor) about the governing principle that the contracts of employment of unfairly dismissed employees are terminated by dismissal and revive only when they tender their services pursuant to a reinstatement order and the tender is accepted by the employer. The reinstatement

order does not in and of itself reinstate the contract of employment, it is rather directing the employees to tender their services and for the employer to accept those services.

[35] There can be no legal basis for any contractual claim for arrear wages until such time as the contract is restored and rights to backpay flowing from the reinstatement order can only arise once the contract is restored. Prior to the employer agreeing to restore the contract pursuant to an order to do so, there is no contract in existence and thus no juridical basis for a claim for arrear wages.

[36] Prior to the actual reinstatement of an employee, no contract of employment exists and thus also no contractual obligation. An employee is not entitled to the payment of remuneration in terms of a contract of employment that is not resuscitated. It is clear from the applicable authorities that arrear wages are only due and payable on reinstatement.

[37] In casu, it is common cause that the Applicant was instead offered a different position, with effect from a different date and that the offer was one of re-employment, which the Applicant accepted. As a result, reinstatement never took place. The effect of that is that no contract of employment existed between the Applicant’s dismissal in December 2013 and his re-employment in May 2018, there was no subsequent restoration of the contract that existed prior to his dismissal and therefore there is no contractual obligation to remunerate him during the said period.

[38] If the contract was not revived through an act of reinstatement, there exists no claim for backpay. As such, the Applicant is not entitled to the payment of remuneration for the period 2013 to 2018 on account of an employment contract that was never resuscitated.

[39] To make matters worse, the Applicant accepted an offer for re-employment in May 2018, which completely extinguished his claim for outstanding remuneration in terms of a contract that was never revived and which claim he clearly abandoned when he accepted an offer for employment on different terms.

[40] In view of the findings that the Applicant is not entitled to the remuneration he claims, it is not necessary to consider the special plea of prescription.

Costs

[41] The last issue to be decided is the issue of costs.

[42] In so far as costs are concerned, this Court has a broad discretion in terms of the provisions of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness.

[43] Mr van Aswegen for the Respondents submitted that there is no reason as to why a cost order in favour of the Respondents should not be made, more so as the Respondent is a church that had to spend money to defend a meritless claim.

[44] The Respondent’s submissions in respect of the issue of cost are not without merit. However, I am alive to the fact that the Applicant is an individual, who has represented himself and that he is an unemployed pensioner who will not have the money to pay a cost order. A cost order against the Applicant will not only be one that will be difficult to execute, but will also cause too much harm to the Applicant.

[45] In my view, the interest of justice and fairness would be best served by making no order as to costs.

[46] In the premises, I make the following order:

Order

1. The application is dismissed;

2. There is no order as to cost.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr Molopa in person

For the Respondents:

Advocate W A van Aswegen

Instructed by:

Hendrè Conradie Inc Attorneys

[1] Act 75 of 1997, as amended.

[2] (2020) 41 ILJ 908 (LAC) at para 10.

[3] (2019) 40 ILJ 2723 (LAC) at para 32.

[4] (2016) 37 ILJ 2581 (LAC) at para 32 – 33.

[5] (2019) 40 ILJ 2762 (LC) at para 25.

[6] (2012) 33 ILJ 2847 (LAC) at para 37.

[7] (2008) 29 ILJ 2507 (CC).

[8] Id at para 36.

[9] (2013) 34 ILJ 1737 (SCA) at para 8.

[10] Id at para 10.

[11] (2014) 35 ILJ 1340 (LC) at para 14.

[12] (2021) 42 ILJ 499 (LAC).

[13] (2017) 38 ILJ 1560 (CC).