OR Tambo District Municipality and Another v Mbewu

The respondent, Phendule Mbewu, was an employee of OR Tambo District Municipality whose employment was terminated. On 20 August 2022, an arbitrator (Malusi Mbuli) issued an award/ruling in the bargaining council that sought to revive the respondent's contract of employment. The Municipality did not comply with the arbitration award. On 22 August 2024, the High Court delivered judgment against the Municipality, ordering it to pay the respondent's salary for July 2024, allow him access to office F-02, and enforce the terms of his employment contract. The Municipality sought leave to appeal this judgment on 27 August 2024. The application was originally set for hearing on 30 September 2024 but was postponed and ultimately heard on 14 February 2025.

• Whether the court erred in ordering payment of salary for the entire month of July 2024 when the respondent only tendered services for a few days (no work no pay principle)
• Whether the court erred in reserving a specific office (F-02) for the respondent in perpetuity
• Whether the Ouderkraal principle applies to arbitration awards
• Whether section 158(1)(c) of the LRA requires an arbitration award to be made an order of court before it can be enforced
• Whether the arbitration award was a nullity for want of jurisdiction
• Whether the Labour Court has exclusive jurisdiction over enforcement of arbitration awards under the LRA
• Whether the matter was urgent when the respondent waited almost two years before approaching court
• Whether the costs order was appropriately punitive
• Whether a point of law regarding nullity of an award must be pertinently pleaded in papers

Leave to appeal granted to the Full Court of the Eastern Cape Division, Mthatha. Costs of the application for leave to appeal are costs in the appeal.

Leave to appeal will be granted where there is a reasonable prospect that an appeal court could arrive at a different conclusion based on the facts and law. A sound, rational basis must exist for concluding there are realistic prospects of success - more than a mere possibility or arguable case. Where the validity of an employment contract depends on the legal existence of an arbitration award that sought to revive it, and there are genuine questions about whether that arbitration award is a nullity for want of jurisdiction (because the arbitrator allegedly failed to decide the issue placed before him and decided a different matter), there are reasonable prospects that an appeal court might conclude differently on the enforceability of the contract and the award.

The court observed that the issue of nullity of the arbitration award was not sharply or pertinently raised in the answering affidavit in the court of first instance, and was not argued in the first instance. The argument only developed during the leave to appeal hearing into the contention that if the arbitration award is a nullity, so is the contract it sought to revive. The court noted the applicant's submission that points of law regarding nullity do not necessarily have to be pertinently pleaded in papers, while acknowledging the importance of pleadings. The court also noted that an arbitral award can be challenged and set aside in review proceedings, citing Cusa v Tao Ying Metal Industries, but that a nullity produces nothing and cannot bring anything into legal existence.

This case illustrates the interplay between labour law remedies (arbitration awards) and civil enforcement proceedings. It raises important questions about: (1) the enforceability of arbitration awards that allegedly exceed jurisdiction; (2) whether such awards are nullities that produce no legal consequences; (3) the application of the Ouderkraal principle (which requires setting aside of unlawful administrative decisions) to labour arbitration awards; (4) the division of jurisdiction between the High Court and Labour Court regarding enforcement of arbitration awards; and (5) whether new legal arguments about nullity can be raised on appeal even if not pertinently pleaded in original papers. The case demonstrates the tension between contractual enforcement remedies and labour law-specific remedies.