A case note on Nkuna v Eskom Rotek Industries SOC Ltd (2024-022546) [2026] ZAGPJHC 634 (3 June 2026)
A disciplinary code is often treated as an internal housekeeping document, a set of procedures the employer writes, applies and, if it chooses, departs from. The Gauteng Division of the High Court (Johannesburg) has now given a pointed reminder that this assumption can be expensive. Once a disciplinary code is woven into the contract of employment, its terms bind the employer just as firmly as they bind the employee. Where that code declares an appeal outcome to be “final”, an employer cannot quietly set the outcome aside and substitute its own preferred result.
The decision is a useful illustration of a principle that practitioners sometimes lose sight of in the shadow of the Labour Relations Act 66 of 1995 (LRA): the employment relationship still rests on a contract, and the ordinary courts retain their jurisdiction to enforce that contract.
How the dispute arose
Ms Nkuna accepted an offer of employment from Eskom Rotek, with effect from January 2023. The relationship was unsettled almost from the outset. Rotek soon sought to withdraw the offer, pointing to her earlier service at Eskom, where she had reportedly been linked to procurement irregularities and was said to have resigned before a disciplinary matter could run its course. After she made representations, Rotek appeared to think better of the withdrawal and called her to report for duty, only to place her on precautionary suspension a few days later.
A disciplinary enquiry followed. In October 2023 the presiding chairperson found her guilty of misconduct and recommended that she be dismissed. Nkuna invoked the internal right of appeal contained in Rotek’s Disciplinary Code and Procedure. On 8 January 2024 the appeal chairperson reversed course entirely, setting aside both the guilty finding and the recommended sanction, and recording that the practical effect was that Nkuna had never been dismissed at all.
Rotek declined to give effect to that result. It took the view that the appeal decision was unfair and open to review, announced an intention to “review or amend” the outcome, and elected to keep the summary dismissal in place. When Nkuna challenged its authority to do so, Rotek held its position.
She did not litigate the dismissal as an unfair-dismissal dispute. Instead, she brought motion proceedings in the High Court founded squarely on contract, asking the court to declare that her employment subsisted, to order payment of her remuneration, and to direct that she be allowed back to work.
The questions for the court
Two issues had to be resolved. The first was jurisdictional: Rotek argued that, stripped of its packaging, the claim was really a dismissal dispute belonging in the labour forums, not the High Court. The second went to the merits: was the internal appeal outcome contractually binding on Rotek, and did its refusal to honour that outcome amount to a breach of contract?
A contractual claim belongs to the High Court
On jurisdiction, the court applied a settled but frequently under-appreciated proposition. The LRA built a statutory architecture for dismissals and unfair labour practices, but it did not sweep away the common-law contract of employment, nor did it oust the High Court’s authority over claims founded on that contract. What determines jurisdiction is the way a litigant frames the case, the pleadings and the cause of action, not the factual backdrop against which the dispute happens to play out.
Nkuna’s case was pleaded as a breach of contract. Her argument ran along a single contractual line: the contract incorporated the Code; the Code made the appeal chairperson’s decision final; and Rotek breached the contract by refusing to implement that decision. Framed that way, the dispute turned on interpreting and enforcing the contract, which placed it comfortably within the High Court’s competence. The court rejected Rotek’s attempt to re-characterise the matter as a labour dispute simply because it persisted in calling Nkuna dismissed.
What “final” means
The substantive question reduced to a short point of interpretation: what did the Code mean when it described the appeal chairperson’s decision as “final”?
Reading the provision in its text, context and purpose, the court concluded that “final” carries its natural meaning. It signals that the internal disciplinary process has reached its end point and leaves no further internal avenue open to the employer. Unless some other clause expressly reserved to Rotek a right to reopen, revisit or overturn an appeal outcome, and none did, the employer was bound by the result its own process had produced. An employer that genuinely believes an appeal decision is flawed is not without recourse, but its remedy lies in review proceedings, not in helping itself to a different answer.
Self-help, not a “second dismissal”
Against that interpretation, Rotek’s conduct could not stand. Its decision to “review or amend” the appeal outcome and to maintain the dismissal had no anchor in the contract. The court characterised what Rotek had done as self-help: a unilateral attempt to countermand a binding decision. Refusing Nkuna’s return, insisting she remained dismissed and withholding her salary were all consequences of that breach.
Rotek tried a further argument, that it had effected a fresh, lawful “second dismissal” which terminated the contract and so left Nkuna with no contractual claim to enforce. The court was unpersuaded. A purported dismissal that is itself inconsistent with the contract’s own disciplinary framework cannot lawfully bring the contract to an end. The supposed second dismissal was not a lawful termination at all; it was simply the breach repeated.
Importantly, none of this required the court to revisit the underlying allegations. Nkuna did not have to establish her innocence, and the court did not have to decide whether the original chairperson had been right. The only live question was whether Rotek was entitled to override the appeal outcome, a pure question of law on the terms of the contract and there was no genuine factual dispute standing in the way of final relief on motion.
The remedy: specific performance
Having chosen to enforce rather than to claim damages, Nkuna sought specific performance. The court accepted that specific performance is not automatic in employment matters and remains a discretionary remedy; in some circumstances ordering an employee back into a relationship that has collapsed will be inappropriate. But the party resisting the order bears the burden of showing why it should be refused, and Rotek had not done so. It led no evidence that Nkuna’s role or the trust relationship had deteriorated to a point where reinstatement would be inequitable. What did weigh heavily was Rotek’s resort to self-help in the first place.
The court accordingly declared the employment contract to be extant, ordered payment of the outstanding remuneration, directed Rotek to continue paying Nkuna’s remuneration for so long as the relationship subsists, and ordered that she be permitted to return to her duties.
Practical lessons
For employers, the message is direct. A disciplinary code that is incorporated into the contract is not a one-way instrument. If the code describes an appeal outcome as “final” or uses comparable language, the employer should expect to be held to that outcome, even one it strongly dislikes. Any power to reopen or revisit an internal decision must be expressly built into the code; it will not be implied, and it cannot be exercised by fiat. Where an employer is convinced an appeal decision is wrong, the lawful route is to take it on review, not to disregard it.
For employees, the decision confirms a valuable strategic option. An employee in Nkuna’s position is not confined to the unfair-dismissal remedies under the LRA. Where the facts support a contractual claim, the employee may elect to enforce the contract in the High Court and may pursue specific performance, with all the consequential relief that flows from a subsisting employment relationship.
More broadly, the judgment is a clean reaffirmation that the contract of employment retains independent force alongside the statutory regime. Labour legislation supplements the common law of contract; it does not displace it. Employers that draft, adopt and incorporate disciplinary codes would do well to read their own documents with the same care they expect a court to apply.
This note is provided for general information and does not constitute legal advice. For assistance with employment, disciplinary or contractual disputes in South Africa or Lesotho, please contact Mayet & Associates Inc.
