South African Commercial, Catering and Allied Workers Union & Others v Massmart Holdings Limited and Another

In 2009 and June 2010, prior to a proposed merger, Massmart retrenched 503 employees for operational reasons. In 2011–2012 the Competition Tribunal and, on appeal, the Competition Appeal Court (CAC) considered the merger between Wal-Mart Stores Inc and Massmart Holdings Ltd. On 9 March 2012, the CAC approved the merger subject to conditions, one of which required the merged entity to reinstate the 503 retrenched employees and to take account of their years of service. Massmart reinstated employees but did not pay back pay. SACCAWU later brought an application seeking an interpretation or variation of the 2012 order, contending that reinstatement was implicitly retrospective and entitled employees to back pay from the dates of retrenchment. Massmart opposed this, arguing that the order was not retrospective and that the court was functus officio.

The application seeking retrospective interpretation of the reinstatement order and payment of back pay was dismissed with costs, including the costs of two counsel.

The case clarifies the meaning of reinstatement imposed as a condition of merger approval under the Competition Act and confirms that such reinstatement does not automatically imply retrospectivity or entitlement to back pay. It reinforces the functus officio principle and limits the circumstances in which competition authorities and courts may revisit merger conditions. The judgment also affirms the relevance of labour-law principles, particularly Equity Aviation, when interpreting employment-related merger conditions.