Legal Articles

The sine qua non principle in legal discourse, is used to describe an event that is indispensably responsible for a certain result. To put it in other words, it denotes ‘had it not been for the event,’ a certain result would not have been achieved. What this principle seeks to explain, is what was central in the case of Maroveke v Talane N.O And Others 2021 (10) BCLR 1120 (CC) (6 July 2021), although no special reference to the principle was made.

 The applicant received a signal to attend to a fault at a mine and whilst driving there in the company vehicle, it got stuck in a muddy area. The vehicle was then taken to a workshop and a conclusion was made that the applicant will be held responsible for the damage, at a cost of R100 000. The applicant was thereafter asked to sign a loan form but he declined to do so, arguing that the engine of the vehicle must be inspected first. Owing to the refusal (to sign), he was charged for misconduct and a hearing was held. Within the hearing an expert report was presented to determine the appropriate sanction, but this report was never availed to the applicant. The applicant was then dismissed from work. He however, secured employment two months later.

The applicant referred an unfair dismissal dispute to the CCMA, which concluded that because the expert report had not been furnished to the applicant during the disciplinary hearing, the dismissal was unfair and therefore the applicant must be reinstated. The employer appealed to the Labour Court (LC), which held that the dismissal was fair. The applicant appealed to the Labour Appeal Court (LAC), which held that the record of the disciplinary hearing was deplorable, not all relevant evidence was available before the LC, and there were material contradictions in the evidence of the witnesses. The LAC ordered that the matter be heard afresh at the CCMA.

The CCMA held that the dismissal had been unfair, and that the applicant had acted reasonably while driving the company vehicle. It also made a finding that the employer must pay the applicant 12 months’ backpay, added to reinstatement. The applicant then applied for a variation of the award, citing the award must take into account the annual salary increment. The employer appealed to the LC, which held that the CCMA had erred to give an award for 12 months backpay, whereas it should have awarded backpay only for the time that the applicant was not employed. In other words, the applicant was entitled to be restored to the position he would have been ‘had it not been’ for the dismissal. The LC then ordered reinstatement with effect from the date of arbitration as well as backpay for 2 months. The LAC dismissed an application for leave to appeal.

Before the Constitutional Court (CC) the applicant sought to appeal the decision of the Labour Court, arguing the backpay award must be from the time of the dismissal until the award of the reinstatement, and not the time he secured employment. Further, the applicant argued that he earned less at the new employer as compared to what he earned at the third respondent before the dismissal. The third respondent argued that the applicant had no prospects of success and that it had tendered backpay for 2 months, at the correct salary level. The CC held that the applicant had no prospects of success on the matter with regard to reinstatement, as it was unreasonable to award 12 months backpay whilst the applicant had secured employment only after 2 months. This is because there is an established legal principle that reinstatement should not impoverish nor enrich the employee, but restore them to the position they would have been ‘but for the dismissal.’ The CC further held that the LC had erred with regards to quantification, although it was correct to reduce backpay to two months. Consequently, the applicant was awarded two months backpay, plus an amount representing the difference between what he could have earned at his previous employed compared to what he currently earned, for 10 months.

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