Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd) v Numsa (JA 55/2014) [2015] ZALAC 49 (26 November 2015) per Savage AJA [Tlaletsi DJP and CJ Musi JA concurring]

The Labour Appeal Court allowed the appeal and set aside the order of Gaibie AJ in the Labour Court – Numsa obo Fohlisa v Hendor Mining Supplies [2014] 2 BLLR 185; (2014) 35 ILJ 1347 (LC) cited at page 528 in Du Toit et al Labour Relations Law: A Comprehensive Guide 6th ed (LexisNexis, 2015).

LAC summary:

Dismissal of respondents found substantively unfair by Labour Court (Cele AJ) and reinstatement ordered.  Following unsuccessful appeal by appellant, writ of execution issued to execute payment of wages from date on which reinstatement ordered until date of actual reinstatement.  Writ set aside by Labour Court in that not founded on order sounding in money.  Respondents sought declaration from Labour Court that appellant liable to pay arrear wages.   Gaibie AJ ordered appellant to pay back pay to respondents from date of reinstatement order to date of actual reinstatement.  On appeal judgment debt distinguished from contractual claim for wages in terms of employment contract.  Claim for arrear wages as claim in contract subject to 3-year prescription period in terms of s 11(d) of the Prescription Act.  By the date of application to Labour Court such claim had prescribed.

Excerpt [footnotes omitted]

“[7]     The Labour Court (Gaibie AJ) rejected the appellant’s reliance on prescription as “incongruous, if not illogical” and found that the appellant bore “the risk of additional financial obligations which become fully executable at the date of the order of the highest court that pronounces on it, as a judgment debt rather than a contractual claim”.

With reference to

  • Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile (Billiton) and
  • Equity Aviation Services (Pty) Ltd v CCMA and Others (Equity Aviation),

the Court a quo rejected as “not only odd but perverse” the appellant’s contention that the claim for unpaid wages from 23 April 2007 was one in contract in that the employees were entitled to back pay until 28 September 2009.

Consequently, the respondents’ claims were found not to have prescribed and the appellant was ordered to pay back pay for the period 1 January 2007 to 28 September 2009 with interest at the prescribed rate with costs.   Although the Labour Court did not expressly order a substitution under Rule 22(5), payment to those executors who had applied to be substituted on production of letters of executorship was ordered.”