Case  CCT 170/24
[2025] ZACC 11

Judgement Date: 18 June 2025

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 18 June 2025 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment of the Labour Court.

This matter arose from a dismissal dispute in which the applicant, Mr Mavundla, referred to the Commission for Conciliation, Mediation and Arbitration (the CCMA) Gotcha Security Services (Pty) Ltd (Gotcha Security). Gotcha Security had employed Mr Mavundla to provide VIP protection services and was dismissed on 6 March 2019. On 22 July 2019, the CCMA made an award reinstating Mr Mavundla with effect from 1 August 2019. It also ordered Gotcha Security to pay him an amount of R52 200 before 31 July 2019, as remuneration for the period from his dismissal to date of reinstatement.

On 1 August 2019, Mr Mavundla reported for duty at Gotcha Security’s place of business to resume his duties. Gotcha Security, however, refused to accept Mr Mavundla’s tender of employment services as it was considering bringing a review application to challenge the arbitration award. On 25 September 2020, Gotcha Security sent a letter to Mr Mavundla inviting him to resume his duties on condition that he first produce a valid firearm competency certificate and an industry recognised registration so that he could execute his duties as a VIP Protection Officer. He was given three days to comply with the conditions.

Mr Mavundla disputed the obligation to comply with these conditions. He instituted contempt proceedings in the Labour Court on the grounds that Gotcha Security had failed to reinstate him in accordance with the award. The contempt proceedings came before Moshoana J on 28 May 2021. On the same day, Moshoana J issued an order that Gotcha Security reinstate Mr Mavundla with effect from 1 June 2021 and that no further conditions be imposed on Mr Mavundla upon his return to work. The order stated that Mr Mavundla’s reinstatement was to be on the same terms and conditions that applied at the time of his dismissal. It also stipulated that Mr Mavundla was required to perform duties “as per his employment contract with the job title of a VIP Protection” and that he should “receive the keys to the vehicle and perform his normal VIP Driver duties.”

Mr Mavundla returned to work on 1 June 2021 and Gotcha Security complied with the order. Upon his return to work, however, he requested payment of his arrear salary for the period from 1 August 2019 to 31 May 2021. Gotcha Security refused to pay the remuneration he claimed to be due to him. Approximately two months after resuming his duties, Mr Mavundla was retrenched. He brought an application to the Labour Court claiming payment of the remuneration due to him for the period from 1 August 2019 to 31 May 2021. It was not in dispute that Mr Mavundla had been paid the amount of R52 200.00 which the CCMA had ordered be paid to him.

The Labour Court (Nkutha-Nkontwana J) dismissed Mr Mavundla’s claim. It held that, in light of Moshoana J’s order, Mr Mavundla’s date of reinstatement was 1 June 2021. The order had resolved the “impasse” between the parties, regarding the conditions of his reinstatement. The Labour Court further held that, by accepting the terms of the Moshoana J order, Mr Mavundla had abandoned his claim to be reinstated with effect from 1 August 2019. On this basis, it held that there was no contractual obligation upon Gotcha Security to pay Mr Mavundla his salary for the period between 1 August 2019 and 31 May 2021. The Labour Court as well as the Labour Appeal Court both dismissed Mr Mavundla’s application for leave to appeal. Mr Mavundla then brought an application for leave to appeal before this Court.

The Court decided to finalise the matter without a hearing.

In a unanimous judgment penned by Goosen AJ, the Court considered three main issues. First, whether to grant the applicant condonation for late filing of his application for leave to appeal. Second, whether the Court had jurisdiction to decide the matter, given the applicant claiming constitutional jurisdiction. Third, whether the Court should grant leave to appeal based on the interests of justice.

Regarding condonation, the Court held that while Mr Mavundla’s application was filed out of time, the delay was insubstantial and no real prejudice was experienced by Gotcha Security. Regarding jurisdiction, it held that dispute between the parties plainly implicates Mr Mavundla’s right to fair labour practices and that the matter therefore engaged this Court’s constitutional jurisdiction. On leave to appeal, the Court held that Mr Mavundla enjoyed significant prospects of success.

Accordingly, the interests of justice required that the matter be adjudicated. The Court found that Mr Mavundla’s claim was for payment of remuneration benefits due to him in terms of his contract of employment which had been restored pursuant to the order issued by Moshoana J. The Labour Court framed the question before it as being whether there was “a full restoration of [Mr Mavundla’s] contract of employment during this period”. In doing so, the Labour Court misconstrued the nature of the claim before it. The Labour Court relied upon Kubeka, where the Labour Appeal Court asserted, following this Court’s judgment in Hendor, that a reinstatement order does not restore the contract of employment. The contract of employment is restored when the employer accepts the employee’s tender of services pursuant to the order. However, despite this principle, the Labour Court went on to assert that the contract of employment was restored by Moshoana J’s order and not the arbitration award.

The Labour Court failed to appreciate that the contempt application before Moshoana J, were intended to compel Gotcha Security to comply with the order to reinstate the applicant on 1 August 2019. Those proceedings were initiated because Gotcha Security had sought to impose conditions, namely the provision of a firearm competency certificate and an industry recognised registration. That impasse was resolved when Moshoana J ordered reinstatement to occur without any conditions. Upon the tender of services on 1 June 2021 by the applicant, his tender was accepted unconditionally by Gotcha Security, in accordance with Moshoana J’s order. Mr Mavundla’s contract of employment was therefore restored from 1 August 2019, the date on which it was restored in terms of the arbitration award.

The Court further held that Hendor does not state that, upon “acceptance” of the new date of reinstatement, an employee is taken to have compromised a claim for payment of remuneration benefits which would have been due in terms of a contract of employment prior to its restoration by reinstatement. In the instance that it did say so, it would profoundly undermine an employee’s right to fair labour practices in the context of reinstatement. As such, the Labour Court’s judgment cannot stand, and that the appeal before this Court was upheld.

Thus, this Court held that leave to appeal is granted and that the appeal must be upheld, and the order of the Labour Court is set aside and replaced with the following: “The respondent is ordered to pay the applicant the remuneration due to him from the period 1 August 2019 to 31 May 2021.”

The Full judgment  here