IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case Number 68/2002

Reportable

In the matter between

CHEVRON ENGINEERING (PTY) LTD

Appellant

And

NKAMBULE, JOSEPH AND 23 OTHERS

Respondents

____________________________________________________

CORAM:
MPATI DP; ZULMAN JA, FARLAM JA, LEWIS JA AND MLAMBO
AJA

HEARD:
10 NOVEMBER 2003

DELIVERED:
2 DECEMBER 2003

SUMMARY:
Labour Relations Act 28 of 1956 – s 46(9)(c) read with s 49(3)(b) –
Industrial Court precluded from granting reinstatement order retrospective beyond six
months.

JUDGMENT

MLAMBO AJA

[1] This is an appeal against a judgment and order of the
Labour Appeal Court upholding an Industrial Court order which
reinstated the respondents in the appellant’s employment
retrospectively to the date of their dismissal.

[2] The appellant, a manufacturer of tubeless steel pipe fittings
and irrigation equipment, dismissed its entire production workforce
save for one employee, on 23 March 1995, for participation in an
illegal strike.  The strike was the culmination of a dispute between
the parties relating to their  religious practices.

[3] From January 1995 the employees of the appellant directed
numerous requests to the appellant’s owner and managing
director, Mr Edgar Rudge, for permission to bring an African
traditional healer to the appellant’s premises to cleanse it of some
‘muti’ which was allegedly causing illness amongst the employees.
Rudge considered these requests an affront to his deep Christian
faith, and told the employees as much.  Repeatedly he informed
the employees that he would only allow ‘a man of God’, as he put
it, to solve the problem.  The National Union of Metalworkers of

South Africa (NUMSA), which represented a majority  of the
appellant’s workforce, did not support the employees’ requests.

[4] With no breakthrough in the impasse all the 124 production
employees, both unionised and non-unionised, save for one,
embarked on a strike on 23 March 1995.  The appellant issued
three ultimata at 8h30, 10h30 and 15h30 calling on the employees
to return to work.  The third and final ultimatum concluded with the
following:
‘Take therefore notice that unless you resume your work by end of business
today, you will be dismissed.’

That ultimatum, like the two earlier ones, was not heeded by the
striking employees even after Rudge involved NUMSA, which did
not support the strike, as well as a call he made to the local branch
of the African National Congress.  When the employees failed to
heed the afternoon ultimatum the appellant dismissed them and
Rudge advised them of it the next morning when they returned to
the premises.

[5] After advising the employees of their dismissal Rudge also
advised them that the appellant would be closed for some time,
during which management would decide, after consulting its main

customers, how best to continue with business operations.  Rudge
also advised the dismissed employees that the appellant could re-
open on 3 April 1995 ‘to receive job applications for those jobs
which will still be available’.  He also informed them that the
appellant reserved the right to appoint ‘the best applicant for a
particular job, and therefore cannot guarantee re-employment to
any particular ex-employee’.

[6] On the morning of 3 April 1995 the dismissed employees
assembled outside the appellant’s premises.   In the course of the
morning Rudge put up two lists on a wooden pole: one was of the
100 employees offered re-employment, and the other list
comprised the names of the  24  employees who were not offered
re-employment.

[7] At about midday on the same day a certain Mr Maluleka,
whose assistance had been solicited by shopstewards, arrived at
the appellant’s premises.  He was presented to Rudge as a
Christian prophet who had agreed to cleanse the premises of the
‘muti’.  After satisfying himself that Maluleka was ‘a man of God’,
Rudge allowed him to do his ‘work’. Maluleka proceeded to
perform a ritual in the course of which he dug up a horn.  He

identified it as the ‘muti’ that was causing illness amongst the
workforce, burnt it to the apparent satisfaction of the employees,
and left.

[8] The 100 employees offered re-employment were re-
employed on 4 April 1995.  The respondents are some of the
employees not re-employed.  They contested the fairness of their
dismissal and instituted proceedings in terms of s 46(9) of the
now-repealed Labour Relations Act 28 of 1956 (the Act), in the
Industrial Court.

[9] During May to August 1997 the Industrial Court (per M D
Legodi) heard the matter and issued a determination on 21
November 1997 holding that the dismissal of the employees was
unfair and amounted to an unfair labour practice within the
meaning of the Act.  The appellant, not satisfied with the Industrial
Court determination, instituted review proceedings in the Pretoria
High Court on 25 March 1998.  On 16 March 1999 the High Court
reviewed and set aside the Industrial Court determination.

[10] The unfair labour practice proceedings started afresh in the
Industrial Court on 19 May 1999, this time before M A E Bulbulia

SC.  At the commencement of those proceedings the respondents
formally amended their statement of case also to include the
selective re-employment of some dismissed employees as an
unfair labour practice.

[11] On 15 October 1999 the Industrial Court determined the
dispute in favour of the respondents, holding that their dismissal
and the selective re-employment of some employees was unfair
and amounted to an unfair labour practice.  The Industrial Court
ordered the appellant to reinstate the respondents retrospectively
to the date of their dismissal, ie 24 March 1995, a period of 4
years and 7 months.

[12] It is not apparent from the Industrial Court determination
whether consideration was given to the applicability of  ss 46(9)(c)
and 49(3)(b), nor on what basis the retrospective reinstatement
order was made.  Its justification, however, appears to emanate
from the Industrial Court’s reasoning that:
‘In my view all the dismissed strikers should, in the first instance, have been
re-employed after which the respondent could have implemented a fair
retrenchment procedure in the light of objective criteria so as to dispense with
the services of those employees who were no longer indispensable to the

company.  By not doing so, the respondent acted unfairly and in a manner
which was arbitrary and subjective.’

[13] On 1 December 1999 the appellant lodged an appeal to the
Labour Appeal Court (Court a quo) against the Industrial Court
determination and the reinstatement order.  The respondents filed
a conditional cross-appeal that, in the event of the appeal
succeeding, they be awarded compensation. However, they
abandoned their cross appeal.  In the course of arguing the appeal
in the court a quo counsel for the appellant conceded that the
selective re-employment was procedurally unfair and that
reinstatement was the appropriate remedy.  The appellant,
however, contended that the Industrial Court was precluded by s
46(9)(c) read with s 49(3)(b) of the Act, from granting a
reinstatement order retrospectively in excess of six months.

[14] The court a quo found that by selectively re-employing other
employees engaged in the same conduct as the respondents, the
appellant had treated the respondents in a ‘shameful manner’.
The court a quo went on to uphold the Industrial Court
determination that the selective re-employment of some dismissed
employees had been unfair and amounted to an unfair labour

practice.  The majority in that court (Zondo JP and Nicholson JA,
Nugent AJA dissenting) concluded that the Industrial Court was
not precluded by s 46(9)(c) read with s 49(3)(b) of the Act from
granting a reinstatement order  retrospective for longer than six
months and upheld the Industrial Court’s reinstatement order with
costs.  The court a quo expressed no opinion on that part of the
appeal dealing with the fairness of the dismissal of the
respondents.1

[15] The appellant now appeals to this Court against the whole
judgment of the court a quo, it having been held by this Court that
the appellant had a right of appeal to this Court without leave.2

[16] In this appeal the appellant takes issue only with the
reinstatement order of the Industrial Court.  In the first place the
appellant reiterates that the Industrial Court was precluded by s
46(9)(c) read with s 49(3)(b) of the Act from granting a
reinstatement order retrospective for longer than six months.
Secondly, the  appellant contends that on the facts of this case,
and having conceded that reinstatement was appropriate,
retrospectivity was inappropriate.   On the other hand counsel for

1 Chevron Engineering (Pty) Ltd v Nkambule and others (2001) 22 ILJ 627 (LAC)
2 Chevron Engineering (Pty)Ltd v Nkambule 2003(5) SA 206 (SCA)

the respondents submitted that the court a quo was correct in
upholding the Industrial Court’s reinstatement order.  Counsel for
the respondents submitted that the provisions of Section 49 were
not axiomatically applicable to Industrial Court determinations.  He
submitted, however, in the altenative, that should the appellant’s
submission on retrospectivity be upheld, this Court should award
the respondents reinstatement retrospective for six months, and
compensation.  I consider first the competence of the Industrial
Court to grant a reinstatement order retrospective for longer than
six months.

[17] Section 46(9)(c) provided:
‘The Industrial Court shall as soon as possible after receipt of the reference in
terms of paragraph (b), determine the dispute on such terms as it may deem
reasonable, including but not limited to the ordering of reinstatement or
compensation, and the provisions of sections 49 to 58, 62 and 71 shall
mutatis  mutandis apply in respect of any determination made in terms of this
subsection in so far as such provisions can be so applied: Provided that such
determination may include any alleged unfair labour practice which is
substantially contemplated by the referral to the industrial council or with the
terms of reference of the conciliation board, determined in terms of section
35(3)(b).’ (Emphasis added).

[18] In turn Section 49(3) provided:

‘The arbitrator, arbitrators, umpire or tribunal, as the case may be, shall fix the
date from which the award shall be binding, which date may be the date on
which the award is made or an earlier or later date, as to him, them or it may
seem equitable:  Provided that-
(a)
………..
(b)
no provision of an award shall be made binding from a date earlier
than six months prior to the date on which the award is made, or from a date
earlier than the date upon which in the opinion of the arbitrator, arbitrators,
umpire, or tribunal, as the case may be, the dispute came into existence,
whichever date is the later; and
(c)        an award may provide for the payment to employees of an amount in
lieu of any or all of the benefits to which such employees become entitled by
reason of the fact that any provision of the award is made binding in respect
of any period prior to the date on which such award is made.’

[19] The majority in the court a quo, in concluding that the
limitation found in s 49(3)(b) did not apply to Industrial Court
determinations,  reasoned thus:
‘(33) In this matter both counsel accepted that the six month limitation does
not apply to compensation ordered in terms of section 46(9).  I am of the
opinion that this is the correct legal position.  However Mr Pretorius persisted
in the submission that the limitation applies to reinstatement orders.
(34)
The question which arises is what purpose would the legislature have
sought to achieve by placing such a limitation on the extent of the
retrospectivity of reinstatement orders when it did not place any limitation on

the amount of compensation that could be awarded?  This question arises
because the effect of making a reinstatement order retrospective is that the
employee becomes entitled to back pay and other benefits.  It is also clear
that an order of compensation may include lost income.  The effect of this is
that an employee may secure payment of the remuneration he would have
been paid, had he not been dismissed, by seeking a retrospective
reinstatement order or by seeking compensation for loss of income.  If that is
permissible, and counsel did not contend otherwise, then I have grave
difficulties with the submission that the six month limitation applies to a
reinstatement order because then such a limitation would serve no purpose.
In my view a court should not lightly conclude that the legislature has enacted
a purposeless provision.’

[20]   The crucial section is 46(9)(c).  One must determine its
proper meaning read within the context of s 46 as a whole.  The
section is headed:  ‘Compulsory arbitration’ and deals almost
exclusively with the resolution of disputes, between employers and
employees engaged in essential services, through compulsory
arbitration.  In terms of s 17(11)(c)3 one of the functions of the
Industrial Court was to conduct arbitrations referred to it in terms
of s 46.

3 This section provided: ‘The function of the industrial court shall be –to conduct arbitrations referred
to it in terms of Section 45, 46 or 49.

[21] Section 46(9), however, was the exception to the
compulsory arbitration scheme of s 46.  This subsection dealt with
the function of the Industrial Court to make determinations (as
opposed to arbitrations).  This was specifically provided for in s
17(11)(F).4  In terms of s 46(9) the Industrial Court had the
function to determine disputes involving parties not engaged in
essential services.  The case before us is one such matter.

[22] In this appeal this Court is, therefore, essentially called upon
to determine the meaning of s 46(9)(c), in particular the phrases
‘shall mutatis mutandis apply’ and ‘in so far as such provisions can
be so applied …’.   The former phrase is the definitive one in the
sense that once its ordinary grammatical meaning is established
the latter phrase serves only to qualify the application of the
subsection.

[23] The phrase ‘mutatis mutandis’ has been authoritatively
interpreted to mean ‘with the necessary changes’.  See in this
regard Touriel v  Minister of Internal Affairs, Southern Rhodesia
1946 AD 535 at 544 – 545.

4  This section provided: ‘The functions of the industrial court shall be – to make determinations in
terms of section 46 (9),’

[24] Applying this interpretation to the clear language of s
46(9)(c)  the presence of the word ‘shall’ makes the provisions of
the sections listed peremptory, with  whatever changes are
necessary, unless there are factors rendering them not applicable.
In other words the provisions of s 49 in particular, are made
applicable to determinations in terms of s 46(9)(c) unless there are
factors which render them not applicable.

[25] One of the reasons advanced by the court a quo that s
49(3)(b) is not applicable, is that s 46(9)(c) would serve no
purpose if employees would be able to secure payment in full of
remuneration they would have received, had they not been
dismissed, through a retrospective reinstatement order or through
compensation. This reasoning overlooks the plain language of s
49(3)(b) to the effect that no award shall be made binding ‘from a
date earlier than six months prior to the date on which the award is
made’ or from the date on which the dispute came into existence.
This wording is clearly directed at retrospectivity which only
applies to reinstatement as opposed to compensation orders.
Understood in this context there can therefore be no prospect of a
retrospective
reinstatement
order
being
equated
to
a
compensation order.  A compensation order is, by its nature, a

monetary award and can never be made retrospective, hence the
inapplicabililty of the six month limit to it.5

[26] In Trident steel (Pty) (Ltd) v John NO and others (1987) ILJ
27 (W) Ackermann J had occasion to consider the meaning of s
46(9)(c).  That matter was concerned with a review of an Industrial
Court determination in which the Industrial Court had, inter alia,
ordered the reinstatement of employees retrospectively for six
months.  The court held that the six month limit in s 49(3)(b) was
indeed applicable to reinstatement orders of the Industrial Court.
The Court stated at 37B-D:
‘Mr Brassey analysed the sections in the mutatis and mutandis provisions and
argued that they afforded an indication that “determine” had a wide meaning
and included consequential relief of the nature granted here.  I am unable to
agree with this approach which, in my view, is logically unsound.  The
sections in question are to be applied “mutatis mutandis” to the
‘determination’only ‘in so far as [they] can be so applied’.  It seems to me that
the starting point must necessarily be the nature and scope of the
determination.  Without first establishing this, it is not possible to say which of
the mutatis mutandis provisions “can be so applied”.    It is not logically
permissible, in my view, first to look at such provisions and then by a process

5 Amalgamated Beverage Industries (Pty)Ltd v Jonker (1994) 14 ILJ 1232 (LAC) at 1255 G, Nelspruit
Drycleaners (Pty)Ltd v SA Commercial Catering and Allied Workers Union and Others (1994) ILJ 15
283 (LAC) at 288 E-F.

of inductive reasoning from such provisions to try and establish what
“determine” means.’
The court continued (at 38J – 39A):
‘These observations must, in my view, be equally applicable to the
construction of s 46(9)(c) and would dispose of this aspect of Mr Doctor’s
argument.  It was also contended that it could not have been the legislature’s
intention to confer such extensive powers on the industrial court where no
limitation was placed thereon.  In the present case the order made concerning
the payment of wages and the according of other benefits was limited to a
period of six months from the date of dismissal of the employee respondents.
It could equally have been 60 months, so the argument ran.  This argument
loses sight in my view, of the provisions of s 49(3)(b) and (c) of the Act (which
is one of the sections which is made applicable mutatis mutandis to the
determination in terms of s 46(9)(c) which would limit the reinstatement or
amounts paid in lieu of the benefits accruing from reinstatement to a period of
or amount calculated over, a maximum of six months.’

This, in my view, is a correct interpretation of Section 46(9)(c).

[27] The reasoning of the court a quo that through the application
of s 43 an employer may pay more than six months remuneration
to employees in whose favour a s 43 (status quo) order is made, is
similarly without merit.  What must be understood is that a status
quo order was interim, whereas a reinstatement order in terms of s

46(9) was final.  It is correct, as stated by the court a quo, that
status quo orders could be made retrospective for ninety days and
be extended thereafter for periods of thirty days at a time.  It is,
however, debatable that the effect of a status quo order could, in
certain cases, lead to an employer paying more than six months
remuneration pending the final determination of the dispute in
terms of s 46(9).

[28] The court a quo does not mention, however, that the
extension of a status quo order was not automatic.  The Industrial
Court’s power to extend a status quo order was discretionary and
the court, of necessity, considered a number of factors such as
delays in the finalisation of the dispute in terms of s 46(9), efforts
by the parties to resolve the dispute, alternative employment
secured by the employees as well as efforts by the employees to
mitigate their losses through alternative employment.  The court a
quo also fails to mention that, though it was possible to obtain an
extension of a status quo order, it was almost impossible to
achieve extensions beyond six months.    In granting extensions
the Industrial Court always kept in mind that the employees could
also be granted retrospective reinstatement and compensation in
terms of section 46(9).  Furthermore, in considering whether to

grant retrospective reinstatement in terms of section 46(9), the
Industrial Court always took account of status quo relief granted to
the employees and in appropriate cases no retrospective
reinstatement relief was granted where that had already been
achieved through a status quo order.

[29] One must conclude, therefore, that in terms of s 46(9)(c),
read with s 49(3)(b), the Industrial Court was precluded from
granting a reinstatement order retrospective beyond six months
from the date of the order.  It follows that in this case the Industrial
Court lacked such power and the court a quo was clearly wrong in
confirming the Industrial Court’s reinstatement order.

[30] Having found that the Industrial Court did not have the power
to order reinstatement retrospectively for a period longer than six
months, this Court must consider what appropriate relief to grant
to the respondents.  The power to grant relief in unfair labour
practice disputes is discretionary and must be fair to the employer
and employees.  It is permissible to order reinstatement and
compensation in the same case as long as it is deemed
reasonable and fair to both parties.6

6 National Union of Metalworkers of SA v Henred Freuhauf Trailers 1995(4) SA 456 (AD) at 462 G-
H.

[31] In considering the amount of compensation payable a
number of factors are taken into account, such as the reason for
the dismissal, the conduct of the parties during the currency of the
dispute, evidence of any loss occasioned to the employees due to
the dismissal, as well as evidence of the likely impact of a
compensation order on the employer.  The approach to the grant
of relief either by way of reinstatement and/or compensation was
aptly spelt out by Nugent AJ in Camdons Realty (Pty) Ltd and
another v Hart (1993) 14 ILJ 1008 (LAC) at 1018D–1019B, where
he stated, with reference to s 46(9) determinations:
‘The Section confers a discretion on the Industrial Court.  It has a discretion
to determine whether compensation should be awarded at all, and if so, to
determine what amount is reasonable. .…
It must be borne in mind that discretion is not the equivalent of caprice.  The
Industrial Court is bound to exercise a discretion, and to do so within the limits
imposed on it by the Act.
If it chooses to award compensation, what it awards must be compensation
properly so called.  Compensation is not synonymous with a gratuity.  In its
ordinary meaning the term envisages an amount to make amends for a wrong
which has been inflicted.
…
The primary enquiry must accordingly be to determine what that loss is,
taking into account that an unfair dismissal can take various forms, and that
the loss must be causally related to the particular act which has been found to

be unfair.  The loss resulting from an unfair dismissal may itself take various
forms.  Quite obviously the employee may sustain direct loss of remuneration
until he finds or may reasonably be expected to find alternative employment,
but in my view it need not necessarily be confined to this.  The dismissal may
result in other, less obvious harm, as for example a blemish on the
employees’ employment record.  If the Industrial Court is satisfied that such a
loss has occurred, and it is able on the evidence before it to place a value on
that loss, in my view it is entitled to take it into account in its assessment.  An
assessment of the loss which has been sustained does not, however,
conclude the enquiry.  The court may determine the dispute only on terms
which it considers reasonable.  This in itself contemplates that a claimant will
not necessarily recover the full amount of his loss, but only such an amount
thereof as may be considered to be reasonable.  While there may be
circumstances in which it would be reasonable to compensate the employee
to the full extent of his loss, this will not inevitably be so.  In considering what
is reasonable, not only the interests of the employee, but also the interest of
the employer must be taken into account (see Alert Employment Personnel v
Leech).’

[32] Evidence of loss as stated in Camdons (supra) as well as
attempts to mitigate such loss has been regarded as crucial in a

number of Labour Appeal Court cases).7 In Performing Arts
Council v Paper Printing Wood and Allied Workers 1994 (2) SA
204 AD Goldstone JA stated (at 219 A – C)

‘In every case the industrial court must make a reasonable determination.  In
some cases fairness and justice may dictate that reinstatement is the proper
relief.  In others compensation or some other form of relief may be more
appropriate.  Each case must depend on its own facts.  A rule of thumb, even
if applied on a prima facie basis, will tend to fetter the wide discretion of the
industrial court (or the Labour Appeal Court).  That result is one to be
avoided.  In my opinion the correct approach is to give due consideration to
the relevant conduct of the parties and, in the light thereof, to decide upon the
appropriate relief.’

[33] Counsel for the appellant submitted that retrospectivity was
inappropriate in this case in view of the illegality of the strike and
lack of functionality thereof.  Counsel also submitted that
compensation was inappropriate for the same reason.  This
submission loses sight of the fact that it was not the appellant’s
case that it did not re-employ the respondents because they
embarked on an illegal strike.  Its case was that its selective re-
employment was based on its operational requirements.

7 Foodpiper cc t/a Kentucky Fried Chicken v Shezi (1993) ILJ 126 (LAC) at 136 A-E, Ferodo (Pty) Ltd
v De Ruiter (1993) 14 ILJ (LAC) at 981C-G.

Furthermore this selective re-employment was not preceded by
any consultation, hence the concession by appellant’s counsel that
it acted unfairly.  In fact, uncontested evidence by the
respondent’s witnesses was that the appellant selected ‘good
tomatoes’ for re-employment and chose not to re-employ ‘bad
tomatoes’.

[34] However, when the matter came before the court a quo
there was, it appears, no evidence that would have justified a
finding that the respondents were entitled to compensation over
and above reinstatement. Equally, there was no evidence as to the
effect that reinstatement or compensation covering a period longer
than six months would have had on the appellant’s business.

[35] Counsel for the respondents submitted, both in the heads of
argument and at the hearing before this Court, that there had been
affidavits from the respondents, other than those who gave oral
evidence, before the Industrial Court that dealt with the questions
of re-employment, unemployment and mitigation of loss. Those
affidavits had not formed part of the record before the court a quo.
They are also not before this Court. In view of the fact that the
respondents have not cross-appealed to this Court against the

decision not to award compensation, it is not necessary to deal
with the reason for the omission of the affidavits from the appeal
record. It is significant, however, that the respondents had cross-
appealed, conditionally, to the court a quo in the event that the
order for retrospective reinstatement was not confirmed. No
explanation was tendered to this Court for the respondents’ failure
to persist with the conditional cross-appeal in this Court.

[36] Because there was insufficient evidence as to the financial
position of the appellant, and in particular the effect on it of the
retrospective reinstatement order before the court of first instance,
Nugent AJA, in his dissenting judgment in the court below, found
that the four year and seven month retrospective reinstatement
order made by the Industrial Court was unwarranted. He said
(para 56):
‘It is by no means clear that the respondents were not in employment for the
period from dismissal until the order was made. In my view that was the least
that ought to have been ascertained before ordering reinstatement with full
retrospective effect. Even then, however, it does not follow that the
respondents were entitled to be reimbursed for the full amount of any loss
they might have sustained (Camdon’s Realty (Pty) Ltd v Hart (1993) 14 ILJ
1008 (LAC). The interests of the employer need also to be taken into account
in determining what is reasonable. The evidence does not establish precisely

what effect the present order will have on the financial viability of the
appellant, but on the face of it, an order which effectively requires the
appellant, which is a relatively small enterprise, to pay arrear wages to 18
employees for a period of four years and seven months is likely to be
crippling. I do not think that such an order ought to have been made without
first knowing that it would not have that effect.’
The learned judge concluded (para 60):
‘In argument, the appellant’s counsel submitted that an order which has the
effect of reimbursing the respondents for a period of six months would have
been reasonable in the circumstances. Bearing in mind the paucity of
evidence relating to the impact of a compensatory or retrospective order upon
the respondents and the appellant respectively, in my view that cannot be
said to be unreasonable.’

[37] The question has been raised as to whether it would be
possible to refer the matter to an appropriate tribunal (in terms of
the transitional provisions of the Labour Relations Act No 66 of
1995) for the purpose of eliciting the evidence required to make a
proper order in respect of compensation. But in my view this is not
a case where such a referral to evidence is possible or
appropriate.  First, quite apart from the time that has already been
spent on this litigation (nine years), there is no reason for such a
referral. I consider that an order for reinstatement, retrospective for
a period of six months, as suggested in his dissenting judgment by

Nugent AJA, is the proper order in the circumstances. It should be
borne in mind that it was open to the first court, and indeed the
court below, to order simple reinstatement without retrospective
effect. Retrospectivity for six months – the maximum possible –
ensures that the respondents will receive  even further redress for
the wrongful conduct of the appellant.

[38] Secondly, as I have already indicated, there is nothing
before this Court that signifies even prima facie that compensation
over and above six months’ retrospective reinstatement is
warranted. It was the responsibility of the respondents to place
whatever evidence there was supporting such a conclusion before
the court a quo in the event of the award by the Industrial Court
having been changed, and before this Court once the appellant
lodged its further appeal. If there was evidence available then the
respondents, knowing that there was a prospect of success on
appeal, should have cross-appealed, and asked for leave to place
before this Court whatever relevant evidence there had been
before the court of first instance.

[39] Thirdly, it is not open to this Court, having found that a party
has not adduced sufficient evidence to establish a right to

compensation, or to establish the extent of that compensation, to
order what is in effect a retrial. The respondents were represented
throughout this litigation. They have not ever suggested that they
were deprived of the opportunity to present their claims as best
they could. There is no reason at all to give them the opportunity
to start afresh, some nine years after the dismissal by the
appellant which gave rise to their claims. A reference to evidence
by this Court is of course possible (s 22 of the Supreme Court Act
59 of 1959), but only in exceptional circumstances. One of the
requirements for a referral to evidence  is that there should be a
‘reasonably sufficient explanation, based on allegations which may
be true, why the evidence which it is sought to lead was not led at
the trial’ (S v De Jager 1965 (2) SA 612 (A) at 613C-D, Loomcraft
Fabrics CC v Nedbank Ltd 1996 (1) SA 812 (A) at 824H-825B; see
also Staatspresident v Lefuo 1990 (2) SA 679 (A) at 692B).

[40]  In the fourth place, litigation must reach an end at some
point. In this matter there have been two hearings before the
Industrial Court, one before the Labour Appeal Court, an
application for leave to appeal against the decision of the majority
of the Labour Appeal Court, a hearing in this Court in respect of
the right to appeal further, and now this appeal.  A referral to

evidence cannot possibly serve the interests of any of the parties.
If there were affidavits as to the losses suffered by the
respondents before the Industrial Court, it appears that they no
longer exist. Counsel for the respondents was not able to tell this
Court what had become of those affidavits. Counsel for the
appellant knew nothing of them. There is no reference to them in
the award made by the Industrial Court. In the circumstances, in
the event of a referral to another tribunal, evidence would have to
be reconstructed. That is inherently undesirable. The balance of
convenience dictates that the litigation should end in this Court
(see Simaan v South African Pharmacy Board  1982 (4) SA 62 (A)
at 81A-B.)

[41] Of course the respondents are entitled to redress for their
wrongful dismissal and the selective reinstatement. In my view,
that redress is to be found in an order that the respondents be
reinstated with retrospective effect for a period of six months.

[42] Although the appellant succeeds on appeal, when deciding
the question of costs a discretion must be exercised  after taking
into account the requirements of law and fairness. Section 17C(2)
specifically enjoins this Court to decide the question of costs

‘according to the requirements of law and fairness’.  The
guidelines as to fairness are set out in NUM v East Rand Gold and
Uranium Ltd 1992 (1) SA 700 (A) at 738F-739G. (See also
Performing Arts Council of the Transvaal v Paper Printing Wood
and Allied Workers Union 1994 (2) SA 204 (A) at 221A-C).  The
proper approach is to take account of the conduct of the parties
during the dispute and in the conduct of the litigation.  The general
approach developed by courts acting in terms of this Act is that
costs do not automatically follow the result, unless there are
special or exceptional circumstances justifying a costs order. Mala
fides, unreasonableness  and frivolousness have been found to be
factors justifying the imposition of a costs order.  (See SA
Chemical workers Union v Sasol Industries (Pty) Ltd and another
(2) (1989) 10 ILJ 1031 (IC) at 1060A-H; Director-General of the
Cape Provincial Administration V National Education Health and
Allied Workers Union and others (1995) 16 ILJ 233 (IC) at 235 I-
236D.)   In the case before us it is clear that both parties were
bona fide in their respective stances.  There can also be no
suggestion of unreasonableness or frivolousness by either party.
The considerations that weigh particularly in favour of the
respondents in this case are the length of time it has taken this
matter to reach finality; the fact that the awards made in their

favour are likely to be entirely, or at least largely, used up by a
costs award against them; and that their conduct in embarking on
the strike cannot be said to have been reprehensible. The
respondents considered that they had a legitimate grievance
which was not accommodated by the appellant. In the
circumstances I consider that no costs award should be made
against the respondents despite the appellant’s success, as well
as in the court a quo.

[43] 1
The appeal is upheld.
2  The order of the Labour Appeal Court is set aside and
replaced with the following:
‘The appeal succeeds.
The reinstatement order of the Industrial Court is set aside
and replaced with the following:
“The applicants are reinstated in the employment of the
Respondent retrospective for a period of six months from the
date of this order”.’

D MLAMBO
Acting Judge of Appeal
Concur:
Mpati DP
Zulman JA
Farlam JA
Lewis JA