Article 5/2025

Practitioners find it difficult to appreciate the fact that a reinstatement order does not, in itself, reinstate an employee.

What are some of the considerations underpinning the said approach?

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With reference to Kubeka v Ni-Da Transport (2021) 32 SALLR 14 (LAC), the constitutional court, in NUM obo Fohlisa v Hendor (2017) 28 SALLR 2 (CC), adopted the following approach when dealing with the consequences of a reinstatement order :

  • a reinstatement order does not restore the employment contract
  • a reinstatement order directs the employee to tender services and directs the employer to accept such tender – it is thus the employer that reinstatements the employee and not the CCMA or the labour court
  • if the employee tenders services and the employer refuses to accept such tender, there is no restoration of the employment contract – in order to ensure compliance with the reinstatement order, the employee is required to institute contempt proceedings (an order ad factum praestandum)
  • on the other hand, if the employee fails to tender his/her services, the employment contract is not restored – in such circumstances, the employee is not able to claim relief in terms of the reinstatement order
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?