Hudson v South African Airways Soc Ltd (JA84/2014) [2015] ZALAC 28; [2015] 9 BLLR 879; (2015) 36 ILJ 2574 (LAC) (24 June 2015) per Davis JA [Ndlovu JA and Mngqibisa-Thusi AJA concurring]

The Labour Appeal Court disallowed the appeal and upheld the judgment of the Labour Court, but for different reasons.  Two employees were employed on fixed-term contracts both having been signed by Mr Kona on behalf of the employer. The employer later argued that the contracts were ultra vires and violated due process and a moratorium placed on appointments. The Labour Court decided the two employees ought to have known that the recruitment process fell within a particular legislative framework, that these legislative requirements were peremptory and that they were parties to appointments that they ought to have been aware were unlawful, impermissible and void ab initio.  In application proceedings the employer testified to a series of averments that raised real, genuine and bona fide disputes.  The employees were faced with answering affidavits containing a detailed case and  must have known that the matter could not be resolved on the papers. They ran the risk that there would be insufficient evidence to justify the relief they sought.  The well-known principles of Plascon-Evans required that the application be refused and it was unnecessary to go any further in dealing with the relevant disputes. The appellants chose an ill-considered form of motion proceedings and bore the risk and were unable to overcome the problem.