National Union of Metalworkers of South Africa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Limited)

Hendor Mining Supplies dismissed 42 employees for participating in an unprotected strike on 18 August 2003. The employees challenged the fairness of the dismissals in the Labour Court. On 16 April 2007, Cele AJ ordered Hendor to reinstate the employees retrospectively from 1 January 2007, with employees to report for duty on 23 April 2007. The employees reported on 23 April 2007 but Hendor rejected their tender of services and pursued appeals. Hendor's appeals to the Labour Appeal Court and application for leave to appeal to the Supreme Court of Appeal failed. The Supreme Court of Appeal dismissed the application on 15 September 2009. Employees resumed duty on 29 September 2009. Hendor refused to pay remuneration for the period 1 January 2007 to 28 September 2009. The employees launched proceedings on 19 September 2012 seeking a declaratory order that Hendor was liable for back pay. Hendor raised prescription, arguing the claim was contractual and prescribed after three years. The Labour Court found the claim was a judgment debt prescribing after 30 years. The Labour Appeal Court distinguished between the periods before and after Cele AJ's order, finding part of the claim had prescribed.

• Whether the obligation to pay arrear remuneration for the period 1 January 2007 to 28 September 2009 constitutes a judgment debt or a contractual debt
• Whether the claim for back pay had prescribed
• The meaning and effect of a retrospective reinstatement order under section 193(1)(a) of the Labour Relations Act
• When prescription begins to run in respect of claims for remuneration arising after a reinstatement order
• The distinction between different periods covered by the claim for back pay

The appeal was upheld. The orders of the Labour Appeal Court and Labour Court were set aside. Hendor was ordered to pay: (1) employees (excluding deceased) their weekly wages and other amounts for 1 January 2007 to 15 April 2007 with interest at 15.5% per annum from 16 April 2007; (2) employees (excluding deceased) their weekly wages and other amounts for 16 April 2007 to 28 September 2009 with interest at 15.5% per annum from the dates amounts became due; (3) estates of deceased employees their wages for applicable periods with interest. If parties failed to agree on amounts, either could seek relief from the Labour Court. Hendor was ordered to pay the applicants' costs in all courts, including costs of two counsel.

Madlanga J's ratio: A reinstatement order under section 193(1)(a) of the LRA that operates with retrospective effect creates an obligation to pay remuneration for the entire period from the retrospective date until actual reinstatement occurs. This obligation is a judgment debt that prescribes after 30 years. The obligation to reinstate and pay remuneration endures until complied with, regardless of appeal processes. Back pay arising from delayed compliance with a reinstatement order is a judgment debt, not a contractual debt. Zondo J's ratio: A reinstatement order creates a judgment debt only for remuneration relating to the period before the order was made. Remuneration for periods after the order is a contractual debt arising from the restored employment contract. However, prescription for such contractual claims only begins when the employment contracts are actually restored upon reinstatement. Where an employer rejects an employee's tender of services following a reinstatement order, the employer becomes contractually liable for remuneration when the contract is eventually restored.

Madlanga J observed that ordinarily where there is a continuing employment relationship, costs do not follow the result, but Hendor's conduct in frustrating the employees justified a departure from this rule. Zondo J noted that under the current LRA there is no provision for prospective reinstatement orders (unlike under the 1956 LRA), only ordinary reinstatement orders which may be retrospective. He also observed that appeals from the Labour Court to the Labour Appeal Court are appeals in the ordinary strict sense, not appeals in the wide sense or reviews. Zondo J commented that courts should interpret orders consistently with the Constitution where reasonably possible. He noted that the Labour Court should not specify when employees must report for duty in reinstatement orders, as this is a matter between parties. Both judgments discuss the nature of "judgment debts" under the Prescription Act and the features that characterize such debts.

This case provides important guidance on the interpretation of retrospective reinstatement orders under section 193(1)(a) of the LRA and their consequences. It clarifies the distinction between judgment debts and contractual debts in the context of unfair dismissal remedies. The case addresses prescription in labour disputes and when prescription begins to run in respect of claims arising from reinstatement orders where the employer delays compliance. It demonstrates the Constitutional Court's approach to protecting workers' rights to fair labour practices while recognizing employers' rights to procedural fairness. The case also illustrates different interpretive approaches to court orders and their implications for employment relationships. The judgment confirms that employers who delay compliance with reinstatement orders bear the financial consequences, including accumulated remuneration. The case reinforces that reinstatement aims to place employees in the position they would have been but for unfair dismissal.