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Article 74/2022

How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC); [2021] 4 BLLR 652 (LAC), interpret the first judgment of Madlanga J and the second judgment of Zondo J in National Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (2017) 28 SALLR 2 (CC); (2017) 38 ILJ 1560 (CC), so dealing, inter alia, with the implementation of an award or order?

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The first judgment of Madlanga J, in Hendor Mining Supplies, entailed the following:

  • there is no distinction to be made from date of the award/order to the date of implementation – the entire period is covered by the award/order
  • if reinstatement is ordered, the employer is ordered to put the employee back into same job or position he occupied prior to dismissal, on the same terms (and covers the period from the date of reinstatement to the date of the reinstatement order actually taking place)
  • the consequences of the resurrection of the employment relationship are the following reciprocal duties:
  • the employer must permit the employee to work and pay accordingly; and
  • the employee must report for duty
  • the effect of an appeal/review is that it suspends the reciprocal duties as set out above
  • the outcome of the appeal or review is that ex tunc (from the beginning) duties become fully operational and executable and the award/order of reinstatement covers the entire period
  • each of the above reciprocal duties constitute separate judgment debts
  • in terms of s11(a)(ii) of the Prescription Act 68 of 1969, each duty expires after 30 years
  • the order is enforceable as an order ad factum praestandum (to do something) by means of contempt proceedings

The second judgment of Zondo J, in Hendor Mining Supplies, entailed the following:

  • the first period runs from the date of dismissal to the date of the award/order ordering reinstatement and entails the following:
  • it is a judgment debt
  • enforcement is achieved in that the employer is ordered to reinstate employees in the same or not less favourable positions as occupied prior to their dismissal
  • contempt of court proceedings are to be utilised for non-compliance
  • a writ of execution is to be ordered and payment is not dependent on the employee tendering work
  • in terms of s11(a)(ii) of the Prescription Act, it constitutes a debt and expires after 30 years;
  • the second period runs from the date of the labour court order until the date that the employer reinstates the employees, and the following principles govern such period:
  • Coca-Cola Sabco (Pty) Ltd v Van Wyk (2015) 36 ILJ 213 (LAC); (2014) 25 SALLR 103 (LAC) is correctly decided – entailing that the LRA does not cater for a remedy in this regard and it is a contractual claim
  • enforcement is to take place by means of the civil courts or the labour court in terms of s77(3) of the BCEA
  • the employees so dismissed are required to tender their services
  • s11(d) of the Prescription Act applies – entailing that the order expires after three years (however, prescription runs not from the outcome of the appeal proceedings, etc, but from the period when reinstatement takes place

Apart from the above disagreement, the judges were in agreement about the following:

  • the contracts of employment of unfairly dismissed employees are terminated by dismissal
  • they are only revived when the employees tender services pursuant to a reinstatement order
  • their tender is to be accepted by the employer
  • the reinstatement order is an order ad factum praestandum (an order to do something) as opposed to an order ad pecuniam solvendam (order to pay something) enforced through contempt proceedings
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?