OR Tambo District Municipality and Another v Mbewu

The respondent, Phendule Mbewu, had been dismissed by the OR Tambo District Municipality. An arbitration award issued on 20 August 2022 by a bargaining council arbitrator purported to revive or restore his contract of employment. Relying on that revival, the respondent approached the High Court on an urgent basis to enforce the terms of his employment contract, including payment of salary and access to an office. On 22 August 2024, the High Court granted judgment in favour of the respondent, including salary payment and related relief, with a punitive costs order against the Municipality. The Municipality then applied for leave to appeal the whole judgment, contending inter alia that the arbitration award was a nullity, that the Labour Court had exclusive jurisdiction, that the ‘no work no pay’ principle was misapplied, that the matter was not urgent, and that the court incorrectly applied the Ouderkraal principle to arbitration awards.

Leave to appeal was granted to the Full Court of the Eastern Cape Division, Mthatha. The costs of the application for leave to appeal were ordered to be costs in the appeal.

The judgment is significant for clarifying that, at least for purposes of leave to appeal, there is an arguable and potentially decisive link between the validity of an arbitration award and the enforceability of contractual employment rights allegedly revived by that award. It highlights the importance of jurisdictional validity in labour arbitration and signals that High Court enforcement of employment-related relief may be vulnerable where the foundational arbitration award is alleged to be a nullity.