In a recent unanimous decision of the Constitutional Court (“the Court”) in the case of Mavundla v Gotcha Security[1] the Court found in favour of an applicant, Mr Mavundla (“Mr Mavundla”) who had brought an application for leave to appeal against an order by the Labour Court, which limited the extent of backpay which he could claim from his employer, Gotcha Security Services (Pty) Ltd (“Gotcha Security”). Importantly for litigants , the Constitutional Court clarified the legal practical effect of its judgment in Hendor [2].

Mr Mavundla was employed by Gotcha Security as a VIP protector, he was dismissed by the security company during March 2019. Thereafter he referred the matter to the CCMA. The CCMA found in his favour and issued an order reinstating Mr Mavundla, with effect from 1 August 2019.

On 1 August 2019 , upon Mr Mavundla’s return to work , Gotcha Security refused to allow him to resume his work. During September 2020 , Gotcha Security notified Mr Mavundla that he may return to work provided that he could produce a firearm competency certificate and an industry recognised registration. This altered the conditions he was initially employed under. 

Mr Mavundla ultimately approached the Labour Court to hold Gotcha Security in contempt. The Labour Court did not find Gotcha Security in contempt, but ordered that Mr Mavundla be reinstated, without conditions, and such reinstatement must be on 1 June 2021. On June 2021 Mr Mavundla returned to work, he continued to demand back pay from 1 August 2019. Gotcha Security did not pay him, in fact, Mr Mavundla was later retrenched.

Mr Mavundla again approached the Labour Court claiming his back pay from 1 August 2019. The Labour Court and Labour Appeal Court dismissed the claim, on two scores, first its interpretation of the Constitutional Court judgement, of Hendor and second, that the contempt application was settled and the date for reinstatement was agreed to 1 June 2021.

The Labour Court interpreted Hendor to mean that the later reinstatement order replaces the one that was initially issued implying that no contractual obligation exists between the parties until the employer practically accepts the employees tender of service. Gotcha Security contended that it did not owe Mr Mavundla any monies, from 1 August 2019, as the effective date of his reinstatement was 1 June 2021. Mr Mavundla approached the Constitutional Court seeking to appeal the Labour Court’s order.

At the heart of the Constitutional Court’s enquiry was the finding that the Labour’s Court order in June 2021, was not a new reinstatement order but rather intended that the Arbitration Award , the original reinstatement order, be complied with in its entirety. The order did not substitute nor replace the Arbitration Award , but merely enforced it.

Further, the Constitutional Court reaffirmed that the Labour Court June 2021 order did not reset Mr Mavundla’s reinstatement date. The Constitutional Court affirmed that Mr Mavundla did not waive or abandon the Arbitration Award but sought to enforce it.

The Constitutional Court confirmed that in Hendor , that reinstatement means that the employee is placed back in their job as if they had never been dismissed and the employee will be entitled to all their benefits including back pay. In Mavundla, the Constitutional Court distinguishes the fact that a later reinstatement order does not replace the initial reinstatement order.

The effect of this judgment is that an employer may not frustrate an employee’s reinstatement and secondly, an employer’s delay in accepting the services tendered by the employee does not remove their duty to pay back pay to an employee. The Constitutional Court clarified that Hendor is not authority for the notion that an enforcement order sets aside the original order (Arbitration Award) and further emphasised that the contempt enforcement order was not an abandonment of the claim for remuneration.

The Constitutional Court held that Mr Mavundla was eligible for the backpay for the period 1 August 2019 to 31 May 2021 in spite of the fact that he returned to work on 1 June 2021. The employer has got to do right by an award issued in favour of an employee. The employer must do so in full and without modifying the obligations which arise from the award.

[1] Mavundla v Gotcha Security Services (Pty) Ltd [2025] ZACC 11

[2] National Union of Metalworkers of South Africa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings

(Pty) Ltd) [2017] ZACC 9

Read Judgment here