Court name
Supreme Court
Case name
Transnamib Holdings Ltd v Engelbrecht
Media neutral citation
[2005] NASC 1










CASE
NO. SA 7/2004





IN THE
SUPREME COURT OF NAMIBIA





In the matter
between:





TRANSNAMIB
HOLDINGS LTD APPELLANT





and





CAROLINE
ENGELBRECHT RESPONDENT








CORAM: Mtambanengwe,
A.C.J., O’Linn, A.J.A. et Chomba, A.J.A.


HEARD ON: 2004/10/15



DELIVERED ON: 2005/04/22










APPEAL JUDGMENT





O’LINN,
A.J.A.
:
The appellant Transnamib Holdings (Pty) Ltd, appeals
to this Court against a judgment given by the Labour Court in favour
of Caroline Engelbrecht, the respondent. Mr Corbett appeared before
us for the appellant and Mr Ueitele for the respondent herein.





I
will hereinafter for the sake of convenience refer to the appellant
as Transnamib and to the respondent as Engelbrecht.





Engelbrecht
was employed by Transnamib from 16 January 1998 until 5th
October 2000. From November 1999 to May 2000 Engelbrecht was
employed as a receptionist at an accommodation and training
establishment (Gammams) belonging to Transnamib.





On
9th May 2000 Engelbrecht handled payments from inter
alia
delegates from Botswana who attended a fair at Ongwediva,
Namibia. In the course of the payments handled by Engelbrecht, she
cancelled a copy of a receipt and a further book copy of the same
receipt without cancelling the original receipt, which was in the
possession of a certain Ms Chinyepi who handled the payments on
behalf of the Botswana delegation. The upshot of this was that
Engelbrecht was charged with theft of an amount of N$300 at a
disciplinary hearing conducted by Transnamib and discharged from
employment as from 5th October 2000.





Engelbrecht
appealed to the District Labour Court which found her conviction and
dismissal unfair and set aside her conviction for theft. The
District Labour Court reinstated her in her previous position as from
15th April 2002, but nevertheless found that she had
failed to follow company procedure and was given a final warning in
this regard. As a penalty the District Labour Court refused to order
Transnamib to pay Engelbrecht any back-pay from the date of dismissal
on 5th October 2000 to 15th April 2002.





Engelbrecht
remained unemployed during the whole period from 5th
October 2000 to 15th April 2002. Engelbrecht appealed to
the Labour Court against that part of the order finding that she was
negligent and refusing to order payment by Transnamib for loss of
income for the period of unemployment.






The Labour Court upheld
Engelbrecht’s appeal and substituted the following order for that
of the District Labour Court:







“It is ordered:







That the appeal is hereby
allowed. For the avoidance of doubt, the order of the District
Labour Court dated 15th April 2002 is varied to read:-








  1. That the respondent is hereby
    ordered to reinstate the appellant in the position in which she
    would have been has she not been so dismissed; i.e. retrospectively
    to the date of her dismissal which is the 5th October
    2000.









  1. That the respondent pay to the
    appellant back pay for eighteen (18) months nine (9) days/or/for the
    whole period of dismissal.













  1. That the substituted conviction
    of a failure to follow company procedure and the penalty thereof of
    a final warning are set aside.”







Transnamib now
applied for leave to appeal to the Supreme Court against “the whole
of the judgment” but then set out the following grounds:







1. The learned judge erred in
law in that he wrongly interpreted the word 'reinstate' as used in
Section 46 of the Labour Act, 1992, to have retrospective effect and
particularly because:







1.1 ‘reinstate’ as used in
Section 46 of the Labour Act concerns those circumstances where an
employee is reinstated to the same position in which he/she was
employed prior to his/her dismissal;







1.2 ‘re-employ’ as used in
Section 46 concerns those circumstances where an employer is ordered
to receive an employee back, on the same terms and conditions, but in
another post;







1.3 should the word ‘reinstate’
be interpreted in the manner as was done by the learned president,
then and in that event:







(a) the provisions of Section
46(1)(a)(iii) (with regard to reinstatement) become superfluous;







(b) such interpretation, ignores
the fundamental principle of Namibian law that an employee is obliged
to mitigate his/her losses.”










The
Court a quo granted Transnamib Holdings leave to appeal because the
Court was of the
opinion that “the issue raised is so important that the Supreme
Court should have the last say on the issue” even though the Court
felt “very strongly that the appellant’s case has no merits.”





It
should be noted that an appellant can only appeal from the Labour
Court in terms of Section 21 of the Labour Act to the Supreme Court
on points of law. The correctness or otherwise of issues of fact
regarding the alleged misdemeanour of an employee in a Labour matter
falls outside the jurisdiction of the Supreme Court. The finding by
the District Labour Court as well as the Labour Court setting aside
the conviction of alleged theft, has also not been raised as a ground
of appeal. Furthermore, the finding by the Labour Court, setting
aside the finding of the District Labour Court of Engelbrecht’s
negligent failure to comply with the regulations of Transnamib
Holdings, was also not placed in issue.





The
words in the first sentence of the notice of appeal, stating that the
appeal is “against the whole of the judgment” of the Learned
President of the Labour Court, does not only appear inappropriate,
but does not broaden the scope of this appeal.





The
appeal is also very academic, if not an exercise in futility, because
even if that Court interpreted the word ‘reinstate’ as proposed
by counsel for Transnamib, it still had a discretion in accordance
with Section 46 (1) of the Labour Act, of 1992, to make the order
which it did in fact make
, whether or not in the reasons for
its order
, it interpreted the word “reinstate” as
“reinstatement retrospectively to the date of dismissal or
suspension". This is so because once the Court finds that there
was an unfair dismissal, the Court must exercise a judicial
discretion as to the appropriate order, which can be either
reinstatement in terms of subsection (1)(a)(i), or re-employment in
terms of subsection (1)(a)(ii) and/or payment for losses suffered by
the employee, in terms of subsection (1)(a)(iii), further read with
subparagraph (c) of Section 46(1), subsections (2) and (4)(b) of
Section 46.





It
follows from the above that even if Transnamib succeeds on appeal to
obtain endorsement for its interpretation of the words “reinstate”,
and “re-employ” and subsection (1)(a)(iii) of Section 46
providing for payment of losses sustained, the specific order made by
the Labour Court can only be set aside to the extent that the order
for repayment was made without determining whether Engelbrecht had
suffered any financial loss as a result of her dismissal and
requiring her to prove that she had attempted to mitigate her loss.





It
is best to deal with the factual side of this last issue before
proceeding on the assumption that Transnamib Holdings and its counsel
are correct on the legal issue.





The
Court a quo misdirected itself in this regard where it found
that: “…and I agree that the appellant did not testify under
oath on the loss of income…”





The
fact was that Engelbrecht in fact testified under oath before the
District Labour Court in this regard and this evidence was not in any
respect contested on behalf of Transnamib and thus had to be accepted
for the purposes of this case. The said evidence read as follows:






Q: “Can you just tell this
Court after your dismissal have you ever tried to look for a job
somewhere else?”



A: “More than thirty times I
have applied in writing more than thirty times.”



Q: “You have done a lot of
applications?”



A: “That’s right.”



Q: “How many of them were
successful?”



A: “None.”



Q: “None and you still have
not been employed since then?”



A: “I was not employed.”






In the light of the above
uncontested evidence, there is no basis whatever for Transnamib to
rely at the appeal stage on the principle that the employee must
mitigate his or her loss.





I
however cannot agree with the Learned President of the Labour Court,
that this factual issue relating to the mitigation of loss, was
immaterial and irrelevant, because once a District Labour Court or
Labour Court decides to order “reinstatement”, then such Court,
without more and by operation of law, is taken to have ordered the
reinstatement to be retrospective to the date of
dismissal and with all the financial benefits, such as salary,
pensions and medical, payable as from that date.





The
Court apparently even assumed that where the District Labour Court,
as in this case, had ordered reinstatement only from the date of the
successful appeal and refused to order payment to the employee of the
loss of income, such order was in conflict with section 46(1)(a)(i)
of the Labour Act and was thus invalid for that reason alone.





There
is no justification for such a view, neither in Section 46 of the
Labour Act, nor in any of the many decisions referred to by both
counsel before us.





The
Labour Court, as well as counsel on both sides, also failed to refer
to and give any consideration and weight to paragraph (c) of Section
46 (1) and subsections (2) and (4)(b) of Section 46.





The
relevant parts of Section 46, for the purposes of this argument reads
as follows:






46(1). If, upon a complaint
lodged in accordance with the provisions of Part IV by an employee
who has been dismissed from his or her employment……a District
Labour Court is satisfied that such employee has been so dismissed
unfairly,…………the District Labour Court may –







(a) in the case of an employee
who has been so dismissed, issue an order in which such employer is
ordered -








  1. to reinstate such employee in
    the position in which he or she would have been, had he or she not
    been so dismissed;









  1. to reemploy such employee in
    work comparable to that to which he or she was engaged immediately
    before his or her dismissal from such date and on such conditions of
    employment as may be specified in such order;









  1. to pay, whether or not such
    employee is reinstated or reemployed, to such employee
    an amount equal to any losses suffered by such employee in
    consequence of such dismissal of such dismissal or an amount which
    would have been paid to him or her had he or she not been so
    dismissed;








…….








  1. make such order as the
    circumstances may require;








(2) An order referred to in
subparagraph (i) or (ii) of paragraph (a) of subsection (1) may be
made subject to such conditions as the district labour court may deem
just and equitable in the circumstances and may include a condition
providing for the imposition of an appropriate disciplinary penalty.







..







(4) In considering -



(a) ….



(b) the nature of an order to be
made in the event of the district labour court finding that the
employee concerned has been dismissed unfairly……, the district
labour court shall have regard –








  1. to the order prayed for in the
    relief sought by the employee;









  1. to the circumstances in which
    the employee concerned has been dismissed……including the extent
    to which such employee has contributed to or caused his or her
    dismissal……;









  1. to the practical enforceability
    of any such order.”






(The provisions above quoted
also refer to employees against whom disciplinary action has been
taken unfairly, but those parts of the provisions have been left out
to save space and because those parts are irrelevant to the present
argument).





The
door was thus open for the District Labour Court, if the facts
justified it, to incorporate in the order following on the finding
that the dismissal was unfair, a finding that the employee had
nevertheless negligently contravened the regulations of Transnamib
Holdings and is reprimanded in that regard.





In
the case of subsection (4)(b) the language is imperative and mandates
the District Labour Court to have regard to relevant circumstances,
including “the extent to which such employee has contributed to or
caused his or her dismissal or disciplinary action”, as well as to
the “practical enforceability of any such order.”





Once
again, this provision provides for an order as made by the District
Labour Court, provided of course that the facts justify such an
order.





It
must be kept in mind that the aforementioned disciplinary order was
set aside by the Labour Court on appeal and there is no appeal on
that finding to this Court.





It
is obvious to me that when Section 46 is interpreted in regard to the
orders that may be made once a Labour Court has found that an
employee has been unfairly dismissed, all the provisions of Section
46 above quoted bearing on the question, must be considered as a
statutory scheme and as a whole because the Legislature must have
intended all those provisions to be applied by a Court when
exercising its discretion.





As
was said in S v Weinberg,






If possible, a statutory
provision must be construed in such a way that effect is given to
every word and phrase in it; or putting the principle negatively……






a statute ought to be so
construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void or insignificant…’ The reason is of
course, that the lawgiver, it must be supposed, will choose its words
carefully in order to express its intention correctly, and it will
therefore not use words that are superfluous, meaningless and
otherwise otiose.’"
1









The Labour Court, in
interpreting the word “reinstate”, compared the word “reinstate”
in subsection (1)(a)(i) of Section 46 with the word “reemploy” in
subsection (1)(a)(ii), but for the rest gave no attention or weight
to subsection (1)(a)(iii), providing for an order on the employer to
compensate the employee for losses suffered as a result of his/her
unfair dismissal and furthermore did not consider subsection (1)(c),
(2) and/or (4)(b) of Section 46. Section (4)(b)(ii) and (4)(b)(iii)
in particular, require the Court to have regard to wider and
important considerations, over and above a mere comparison with
subsection (1)(a)(ii) of Section 46.





Subsection
(1)(a)(iii) provides not only the mechanism for payment by the
employer to an employee for losses suffered, where there has been an
order for “reinstatement”, but also where there was an order for
“reemployment”. It also entrenches the common law principle of
reasonable steps for the mitigation of loss for an unfair dismissal,
to be taken by the employee, which the Legislature obviously intended
to retain and incorporate in Section 46 of the Namibian Labour Act.
2





The
interpretation accepted by the Labour Court, leaves no room for the
application of the principle of mitigation of loss and of subsection
(1)(a)(iii), of Section 46. That alone is a strong indication that
the Court's interpretation, of Section 46 cannot be correct.





The
strongest contention by the Court was that the peculiar wording of
subsection (1)(a)(i) in the Namibian Labour Act, signifies an
intention by the Legislature to make the “reinstatement”
retrospective to the date of dismissal and with all the financial
benefits, including salary, payable from that date. The wording
relied on is – “to reinstate such employee in the position in
which he would have been had he or she not been so dismissed
;”
(My emphasis added).





The
wording is clearly ambiguous and the meaning attached by the Court is
obviously one of at least two possible meanings. The meaning
contended for by Mr Corbett, on behalf of Transnamib is that the word
“reinstatement” “refers to putting the employee back into
his/her former position at work, and nothing more. Then the Court
has a further discretion in terms of Section 46 (1)(a)(iii) to award
back pay to the dismissed employee to a date as far back as the date
of dismissal.”





I
agree with Mr. Corbett's argument in this regard. I do not agree
with the Labour Court and Mr Ueitele, who supported the Labour
Court's argument at least in part.





I
do not think that the mere use of the words – “…in the position
which he or she would have been had he or she not been so dismissed,”
necessarily take the meaning beyond the “position”, which means
the job description of the job the employee had occupied, with all
the financial benefits thereof, as at the date of his dismissal. It
does not necessarily mean that the reinstatement in that “position”
runs from the date of dismissal.





Subsection
(1)(a)(iii) is expressly applied by the Legislature also to orders
for “reinstatement”. If the Court's interpretation is accepted,
it could mean that the aforesaid subsection (iii) cannot be applied
to “reinstatement” cases and this important part of subsection
(iii) would thus be frustrated. To ignore such a clear provision, is
not compatible with principles of interpretation laid down over
decades in South African and Namibian law.
3





The
lower court's interpretation is also inconsistent with the law in the
United Kingdom, Zimbabwe and South Africa as laid down by most of the
authoritative decisions of the Courts of those countries.
4





Mr
Ueitele also referred the Court to the book – “Work Place Law”
by John Grogan at p120 where the author argues that:






In its ordinary meaning,
reinstatement suggests that the period of service between
dismissal and resumption of service is deemed unbroken:
re-employment that the employment contract ended at the date
of dismissal and resumed at the date of re-employment…”









I
do not agree with the author. After all there is no logical reason
why both “reinstatement” and “reemployment” can not run from
the same date – such as e.g. from the date of dismissal, or from
any subsequent date, such as e.g. the date of reinstatement or
reemployment. The essential difference between the two concepts is
not the time from which it will run, but that “reinstatement”
will relate to the identical job, whereas “reemployment” relates
to a similar job, merely comparable to what the employee had prior to
the dismissal.





The
point is further that those two categories are clearly
distinguishable as such in specific statutory provisions but joined
together by the provision made in subsection (1)(a)(iii), for orders
regarding payment by the employer to the employee of losses
suffered as a result of the unfair dismissal.





According
to the quotation, Grogan further argues:






The term reinstatement also
suggest that an order of reinstatement may not be conditional or
coupled with any qualification, other than something less than full
retrospectivity.”









It may be that one use of the
term “reinstatement”, “suggests” what the author says.
However, the author was not commenting on Section 46 of the Namibian
Labour Act and its interconnected subsections (1)(a)(i), (1)(a)(ii)
and (1)(a)(iii) of Section 46.





Mr
Ueitele also referred to a quotation from the book “Unfair
Dismissal” by Andre van Niekerk where the author opines that
“reinstatement implies that the period of service between the date
of dismissal and the reinstatement order remains unbroken and in
spite of dismissal employment is regarded as continuous….. A
reinstatement order effectively requires the employer to place that
employee in the position in which the employee would have been, but
for the dismissal. The employee is entitled to be paid for any
retrospective period of reinstatement and to the benefits that
accrued to the employee during the period.”





Again,
the author relied on was not in a position to and did not comment on
the Namibian Act and could not deal with its Section 46 as a whole
and in context. Again this author did not and could not deal with
the built-in principle that the employee must take reasonable steps
to mitigate his or her loss.





Mr
Ueitele admitted the applicability of this principle. If this
principle is applicable, then how can the principle fall away,
whenever an order for "reinstatement" is made.





In
my respectful view, subsection (1)(a)(iii) was enacted precisely for
the purpose of arming the Court with a mechanism to adjudicate fairly
between the conflicting claims of employer and employee. To do
otherwise would allow the employee to profit unfairly and financially
from the “unfair dismissal” by e.g. receiving full pay and
benefits from the employer for a period when the employee received an
income from other employment engaged in during the same period, made
possible by the employee's dismissal.





Mr
Corbett, for Transnamib, also drew attention to the dictionary
meaning as contained in The Oxford Dictionary and Thesaurus, Oxford
University Press (1997) where the following meaning is given:






1. Replace in a former
position.



2. Restore (a person etc) to
former privileges."





This
definition falls short of the extended meaning adopted by the Labour
Court.





In
my respectful view, the Labour Court erred in its interpretation of
Section 46 of the Labour Act in those respects discussed above.
However, that does not mean that the appeal against its order can
succeed.





As
indicated above, the orders made stand on their own feet and could be
arrived at by the Court a quo, even if it adopted the correct
interpretation of Section 46 of the





Labour
Act. If I had to reconsider the orders made, applying the restricted
meaning of the term "reinstatement", I would have made the
same orders as that made by the Learned President of the Labour
Court, as he said, “for the avoidance of doubt”.





In
the result:





1. The
appeal is dismissed.


2. The
appellant shall pay the costs of the appeal.














________________________


O’LINN,
A.J.A.











I
agree














_________________________


MTAMBANENGWE,
A.C.J.














I
agree

















________________________


CHOMBA,
A.J.A.








COUNSEL
ON BEHALF OF THE APPELLANT Mr A W Corbett


Instructed
by: Kauta, Basson & Kamuhanga Inc.





COUNSEL
ON BEHALF OF THE 1ST RESPONDENT Mr S F I Ueitele


Instructed
by: Ueitele Legal Practitioners





















































CASE
NO.: SA 07/2004






IN THE SUPREME
COURT OF NAMIBIA








In
the matter between:









TRANSNAMIB HOLDINGS
LTD APPELLANT











and












CAROLINE
ENGELBRECHT RESPONDENT









CORAM: Mtambanengwe,
A. C. J, O’Linn A.J.A et Chomba, AJA





Heard
on: 2004/10/15





Delivered
on: 2005/04/22












APPEAL
JUDGMENT










JUDGMENT





MTAMBANENGWE, A.C.J.: I have read
the judgment of my brother O’ Linn A.J.A and agree with the
conclusion that he reached namely, that the appeal be dismissed. I,
however, am unable to agree with the “restricted meaning” he
assigns to the term “reinstatement.” I therefore take the
opportunity to express briefly the reasons for so disagreeing.


His Lordship state at page 13 of the judgment:





“The lower court’s
interpretation is also inconsistent with the law in the United
Kingdom, Zimbabwe and South Africa laid down by most of the
authoritative decisions of the Courts of those countries.”





And refers in the foot notes to Powell Duffry
Ltd v Rhodes
[1946] ALL ER 666 KBD at 667; Consolidated Frame
Colham Corporation Ltd v The President, Industrial Court and Others

(1986) 7 LLJ 489 D-E and Legute Municipality v Manyora (1997)
18 ILJ 323 (ZSC) at 324 G – 326 A and 326 D – 327 C.)





The interpretation concerned related to section
46(1)(a)(i) of the Labour Act 1992 which spells out one of the orders
the District Labour Court may make where an employee has been
dismissed unfairly.





It provides:


“(a) in
the case of an employee who has been so dismissed, issue an order in
which such employer is ordered;





(i) to
reinstate such employee in the position he or she would have been,
had he or she not been so dismissed.”





In S v Winberg 1979 (3) SA 89 (A) Trollip, J.
Asaid at 98 E-F:





“I think that the
starting point in considering this argument is to emphasize the
general well-known principle that, if possible, a statutory provision
must be construed in such a way that effect is given every word or
phrase in it: or putting the same principle negatively, which is more
appropriate here:


“a statute ought to
be so construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void or insignificant…”


per COCKBURN CJ in The
Queen v Bishop of Oxford
[1879] a QB 245 at 261. This dictum was
adopted by Kotze JA in Attorney-General, Transvaal v Additional
Magistrate for Johannesburg
1942 AD 421 at 436. The reason is, of
course, that the lawgiver, it must be supposed, will choose its words
carefully in order to express its intention correctly, and it will
therefore not use any words that are superfluous, meaningless, or
otherwise otiose. ( see Steyn Die Uitleg van Wette 3rd
ed at 16.)”





The difficulty I have with the restricted
interpretation of the above provision is that it ignores the plain
meaning of the phrase ‘position he or she would have been’ and
makes those words meaningless. A comparison of the statutory
provisions concerned in the cases my brother O’Linn AJA rely on
shows the phrase used in the statute involved in, for example the
English case is different from the phrase in s46 of our Labour Act.
The following passage (at 667 E-G) from Powell Duffryn Ltd v
Rhodes
illustrates the point that the Ordinance there involved
provided differently and cannot be relied on to interpret
‘reinstatement’ in this case:





“LORD GODDARD, L.C.J:
This case raises a very short point under the Essential Work
(Coalmining Industry) Order, 1943. Powell Duffryn, Co,. Ltd. Being
ordered by a national service officer to reinstate a collier whom
they had dismissed for serious misconduct (the local appeal board
having come to the conclusion that he had not been guilty of serious
misconduct) offered him employment at the same wages in the same
grade at another pit, and the man said that he would not work at the
other pit. He claimed that he was entitled to be reinstated in his
employment, and that that claim to reinstate meant being put back
into the same position as that in which he was when he was dismissed.
I think that “position” means, not only the grade in which he was
working, but the place at which he was working.


I do not think that it
is the law that, if an employer engages a man to work for him at
place. A, he can at his own will and pleasure order the man to work
at place B. The man may agree to work at place B, but if his
employment is to work for a master at a particular place, it is
breach of contract on the part of the of master if he orders the man
to work at another place, and if the man refused to go to the other
place and he was dismissed on that ground, it would be a wrongful
dismissal of the man. In those circumstances, it seems to me that the
word “reinstatement” must mean that, if the employers are ordered
to reinstate the man, they must put him back at the same place as
that in which he was working before. I think that the justices came
to a right decision, and the appeal fails.”





The ‘position a dismissed employee would have
been”
imports all the benefits, including promotion increment
in salary etc that would have normally accrued to him in the course
of his employment had he not been dismissed. If it meant merely the
position he was employed, in the legislative would have said
‘reinstate such employee in the position he or she was before he or
she was so dismissed.’





Obviously sub section 1(a)(i) must be read with
subsection 1(a)(iii) which reads:





“(iii) to pay,
whether or not such employee is reinstated or re-employed, to such
employee an amount equal to any losses suffered by such employee in
consequence of such dismissed or amount which would have been paid to
him or her had he or she not been so dismissed.”





In my opinion subsection 1(a)(iii) envisages a
situation where the relationship between the parties (employer and
employee) have soured so much or broken down so irretrievably that to
order reinstatement or re-employment is not a viable option. The fact
that paragraph (a)(iii) goes on to spell out what an employer may be
ordered to pay a dismissed employee, even if reinstated, does not, in
my opinion, render that paragraph superfluous simply because it would
be a repetition of what paragraph (a)(i) entails. On the other hand
to restrict the meaning of the wording ‘the position he or she
would have been’ to mean ‘in the position (job) he or she was
employed before he or she was so dismissed,’ does not answer the
question: what position would he or she been had he or she no been so
dismissed.





Finally if one uses, inter alia, Manyora’s
case, supra as fortifying the restricted interpretation of the word
reinstate, one must remember that the word ‘reinstate’ appeared
in that case in an agreement between an employer and an employee, and
it was in that context that McNally JA interpreted it.





In the Manyora’s case McNally, JA
referred to the South African Labour Relations Act 28 of 1956, where
the word reinstatement ways used. He remarked:





“The significance of
that wording is that the South Africa legislative interpreted
‘reinstatement’ as having no inherent retrospective commotation.
That is why specific provisions made to allow retrospective
reinstatement. The decision of Nicholas AJA (as he then was) goes on
to consider, at 798B-D the meaning of ‘reinstate’. But perhaps
because the point was obvious, he did not consider whether
‘reinstatement’ necessarily meant ‘reinstatement with effect
from the date of dismissal’. No doubt this was because the
legislation with which he was dealing clearly did not use the word in
that sense.”





I do not see anything clearly ambiguous, as my
brother O’Linn AJA said at page 12 of his judgment, in the wording
to reinstate in the position in which he or she would have been
had he or she not been so dismissed.
I agree with Grogan when he
states in his book “Work Place Law” at page 120:


“In its ordinary
meaning reinstatement suggests that the period of service
between dismissal and resumption of service is deemed unbroken:
re-employment that the employment contract is ended at the
date of dismissal and resumed at the date of re-employment…”





The wording ‘reinstate…in the position he
or she would have been reinforces
that interpretation. If
reinstate has no retrospective commotation the legislature might well
have used the wording “to employ such employee in the position
in which he or she was before he or she was so dismissed.
” The
words ‘reinstate …in the position he or she would have
been’, must be given a meaning by interpreting them as Gragan
suggest in “Work Place Law”.














_________________________


MTAMBANENGWE, A.J.A






1
1979 (3) SA 89 (A)




2
Holmdene Brickworks (Pty) Ltd, v Roberts Construction (Pty) Ltd,
1977 (3) SA 670


Ferado v de
Ruiter
, (1993)


Myers v
Abrahamson
, 1952 (3) SA 121 (CPD at 127 D-E.




3
Venter v Rex, 1907 TS 910 at 913.


Keyter v
Minister of Agriculture
, 1908 NLR 522.


S v Weinberg
1979 (3) SA 89 (A)




4
Powell Duffryn Ltd v Rhodes, [1946] 1 All ER 666 KBD at 667.


Consolidated
Frame Cotton Corporation Ltd v The President, Industrial Court and
Others
, (1986) 7 ILJ 489 D-E


Chegutu
Municipality v Manyora
, (1997) 18 ILJ 323 (ZSC) at 324G-326A and
326D-327C.