Jordaan v RCL Foods Consumer (Pty) Ltd

Citation: [2026] ZALCCT 45

Court: Labour Court of South Africa, Cape Town

A. Nature of Proceedings

This was an application brought in terms of section 18(3) of the Superior Courts Act 10 of 2013 ("the Act"), seeking an order placing the judgment of Bosch AJ, delivered on 29 September 2025 under case number 2025-048772, into operation and execution notwithstanding the Respondent's pending Petition for Leave to Appeal to the Labour Appeal Court.

B. Background Chronology

1. The Applicant was employed as a Maintenance Fitter at the Respondent's processing plant in Worcester. On 7 January 2013, he was dismissed for alleged dishonesty arising from clocking offences.

2. On 17 June 2013, a CCMA commissioner found the dismissal unfair and ordered reinstatement with effect from the date of dismissal, together with backpay of R120,075.24.

3. The Applicant reported for duty on 8 July 2013 but was sent home. The Respondent launched a review application and obtained a stay of execution.

4. On 5 December 2018, Steenkamp J dismissed the review. The Respondent applied for, then abandoned, leave to appeal, and launched a declaratory application seeking to set off approximately R2.96 million allegedly earned by the Applicant in alternative employment.

5. On 1 April 2020—more than seven years after the original reinstatement order—the parties reached agreement and the Applicant was reinstated. They simultaneously agreed to refer quantification of backpay for the period 7 January 2013 to 31 March 2020 to private arbitration before Adv Watt-Pringle SC.

6. Arbitrator Watt-Pringle SC issued two awards in the Applicant's favour on 29 March and 14 May 2024. The Respondent reviewed those awards. By consent, the awards were remitted and a new arbitration was held before Arbitrator Buirski from 1 September to 8 October 2024.

7. On 27 February 2025, Arbitrator Buirski awarded the Applicant R3,190,807.73 plus interest and costs. On 31 March 2025, Buirski clarified that the reinstatement entitlement extended to overtime, nightshift and standby allowances.

8. On 8 April 2025, the Respondent launched a review application. On 29 September 2025, Bosch AJ dismissed the review. On 6 February 2026, Bosch AJ refused leave to appeal.

9. On 26 February 2026, the Respondent filed a Petition for Leave to Appeal to the Labour Appeal Court, triggering automatic suspension of execution under section 18(1) of the Act.

10. The present application was launched promptly thereafter, with notice of motion served on 27 February 2026.

C. In Limine Point: Rule 63 Compliance

1. The Respondent contended the application was fatally defective because the Applicant's confirmatory affidavit was not commissioned before a notary public or South African diplomatic representative in Ireland, as required by Rule 63 of the Uniform Rules of Court, read with the Hague Convention.

2. The Court, citing its discretion under section 158(1)(a)(ii) of the LRA to condone procedural non-compliance where the interests of justice so require and no genuine prejudice results, dismissed the point for the following reasons (paragraph [23]):

   - (a) The authority of the Applicant's attorneys was not genuinely in dispute;

   - (b) The Respondent did not allege the affidavit was sworn by anyone other than the Applicant or that its contents were untrue;

   - (c) The Respondent's assertion that "there is no prejudice to Jordaan in waiting another few months" was inconsistent with claiming the affidavit irregularity was fatal;

   - (d) Upholding the point would allow avoidance of a merits hearing on a technical ground arising from the Applicant's geographical circumstances, which were themselves partly a consequence of the Respondent's conduct;

   - (e) The Court was satisfied the document was signed by the Applicant;

   - (f) The Applicant subsequently filed a properly commissioned confirmatory affidavit, which the Court accepted.

D. Urgency

1. The Respondent challenged urgency, invoking Jonker v Wireless Payments Systems CC [2009] ZALC 150 and Hultzer v Standard Bank of South Africa (Pty) Ltd [1999] ZALC 46, contending financial hardship alone does not constitute urgency and that a party cannot rely on self-created urgency.

2. The Court distinguished these authorities, holding at paragraph [27]:

"The urgency here was not created by any delay or mismanagement on the Applicant's part... It was the Respondent's own act of filing the Petition on 26 February 2026 that triggered the automatic suspension under section 18(1) and thereby created the need for this application. The Applicant moved promptly... This is the opposite of self-created urgency."

3. Furthermore, the Applicant's financial position was genuinely deteriorating, and further delay without court intervention would, on the evidence, leave him unable to protect his rights at all (paragraph [28]).

E. Legal Framework: Section 18 of the Superior Courts Act

1. Section 18(1) Provides that operation and execution of a decision subject to an application for leave to appeal or appeal is suspended pending the decision, "unless the court under exceptional circumstances orders otherwise".

2. Section 18(3) Permits departure from the default suspension only if the applicant proves on a balance of probabilities:

   - (i) that he or she will suffer irreparable harm if the judgment is not placed in operation; and

   - (ii) that the other party will not suffer irreparable harm if the judgment is placed in operation.

3. Exceptional Circumstances Threshold: As confirmed in Ntlemeza v Helen Suzman Foundation and Another [2017] ZASCA 93, the applicant must additionally demonstrate "exceptional circumstances" justifying departure from the statutory default.

4. Cumulative Requirements: As held in University of the Free State v Afriforum and Another [2016] ZASCA 165 at paragraph 13:

"what is sought under section 18(3) as 'an extraordinary deviation from the norm, which, in turn, requires the existence of truly exceptional circumstances to justify the deviation.'"

5. Relevant Factors Citing Incubeta Holdings and Another v Ellis and Another [2013] ZAGPJHC 274, the Court identified factors including: conduct of the litigant; consequences of suspension; nature of the underlying right; financial position of each party; prospects of success on appeal; potential for exploitation of the appeal process; and constitutional dimensions of the right in issue.

6. Employment Context As recognised in Road Traffic Management Corporation v Tasima (Pty) Limited [2019] ZALAC 33 and confirmed by the Constitutional Court in Equity Aviation Services (Pty) Ltd v CCMA and Others [2008] ZACC 16:

"a reinstatement order is intended to place the employee in the position he or she would have occupied had the dismissal not occurred. The remedy gives direct effect to the right to fair labour practices enshrined in section 23(1) of the Constitution. It cannot be fully vindicated by the subsequent payment of money alone: the deprivation of the benefit of the order during the suspension period is itself a constitutional harm."

F. Application of Section 18(3) to the Facts

1. Exceptional Circumstances

The Court found exceptional circumstances established by the convergence of:

- A thirteen-year pattern of sustained and consistently unsuccessful litigation by a JSE-listed company against an individual employee;

- The direct causal link between the Respondent's conduct and the Applicant's financial ruin;

- The constitutional dimension of the underlying right;

- The weak and repetitive nature of the pending Petition;

- The further delay that continued suspension would impose.

At paragraph [42], the Court summarised the Respondent's conduct:

"when viewed cumulatively, the Respondent's conduct over thirteen years, including its refusal to reinstate the Applicant for seven years after a binding CCMA award, its serial and consistently unsuccessful challenges before every forum, its belated raising of new points not pleaded or argued at the appropriate stages, and its pattern of procedural opportunism, constitutes a constellation of circumstances that is, by any measure, truly exceptional."

Regarding prospects of success on the Petition, the Court observed at paragraph [49]:

"The 'basic salary only' argument now advanced in the Petition was not pleaded as a ground of review. It did not form part of the arbitration mandate agreed between the parties. It was raised for the first time in supplementary heads of argument before Arbitrator Buirski after the close of evidence... A point raised for the first time in supplementary argument, not pleaded, not part of the arbitration mandate, and not forming part of the review grounds, cannot constitute a reasonable prospect of success on appeal."

2. Irreparable Harm: The Applicant

The Court was satisfied the Applicant would suffer irreparable harm if the judgment were not placed in operation, noting:

- Approximately R2.5 million in legal-related costs incurred;

- Exhaustion of pension fund;

- Sale of vehicle;

- Surrender of wife's insurance policy;

- Relocation to Ireland;

- Outstanding mortgage bond of R461,529.62 on Worcester property.

At paragraph [55], the Court held:

"Interest accruing on the judgment amount does not compensate for insolvency, for the erosion of the Applicant's ability to manage his affairs in South Africa, for his inability to fund litigation, or for the loss of the constitutional benefit of reinstatement... the reinstatement remedy gives effect to the right to fair labour practices entrenched in section 23(1) of the Constitution, and its deprivation during a prolonged suspension is itself a constitutional harm that cannot be remedied by money alone."

3. Irreparable Harm: The Respondent and the Peregrinus Point

The Respondent contended it would suffer irreparable harm because the Applicant, being resident in Ireland (*peregrinus*), presented a genuine risk of non-recovery should the Petition succeed.

The Court acknowledged the peregrinus concern as legally recognised but held it did not automatically entail irreparable harm within the meaning of section 18(3), for the following reasons (paragraph [60]):

- The Respondent is a JSE-listed company with substantial resources; the risk was a bounded commercial risk, not existential;

- The Applicant retained immovable property in the Republic (ERF 1[...] Worcester), registered jointly with his wife, over which both owners undertook not to alienate or register further bonds pending finalisation of the Petition;

- The Respondent did not dispute the existence, value, or attachability of the Worcester property in its answering affidavit;

- The Respondent could not create the conditions resulting in the Applicant's impoverishment and then invoke those conditions as a reason to deny execution.

G. Post-Hearing Correspondence

The Court addressed correspondence exchanged after argument regarding the property undertaking. It held that the Respondent could not, at that stage, introduce new factual disputes not contained in its answering affidavit, and that the undertaking—incorporated in the Court's order—was sufficient to protect the Respondent's restitutionary interests.

H. Proportionality and Costs

The Court noted the relief granted was narrowly tailored, preserving the Respondent's restitutionary interests through the court-incorporated undertaking while preventing extinguishment of the Applicant's rights through further delay.

Regarding costs, whilst the Respondent's opposition was not in all respects unreasonable, the Court held that "costs should follow the result" and ordered payment on the party-and-party scale.

I. Order

1. The judgment and order of Bosch AJ, delivered on 29 September 2025 under case number 2025-048772, is placed in operation and execution notwithstanding the Respondent's pending Petition for Leave to Appeal to the Labour Appeal Court;

2. Pending finalisation of the Petition or any subsequent appeal, the Applicant and his wife are ordered not to alienate ERF 1[...] Worcester nor to register any further mortgage bond over the said property, with the undertaking given in correspondence of 5 and 8 March 2026 incorporated into the order;

3. The Respondent is ordered to pay the costs of the application on the party-and-party scale.