Peremption in labour law: When conduct speaks louder than words

The doctrine of peremption prevents a party from taking contradictory positions in legal proceedings. It essentially means that if a party has clearly and unequivocally demonstrated an intention to abide by a judgment or award, they cannot later challenge it or appeal it. This doctrine is designed to ensure fairness, consistency, and finality in legal processes by preventing litigants from “blowing hot and cold”.

 

What is peremption?

Peremption occurs when a party, through their conduct, unequivocally accepts a judgment or award, thereby losing the right to challenge it.

The test is objective: it is not what the party intended internally, but how their conduct is perceived externally. The onus lies on the party alleging peremption to prove that the other party’s conduct amounts to acquiescence.

 

Relevant case law

Dabner v South African Railways and Harbours (1920 AD 583)

• This foundational case established that peremption arises when a party’s conduct clearly indicates acceptance of a judgment.
• The conduct must be overt and inconsistent with an intention to challenge the decision.
• The Court held that conduct must be “unequivocal and inconsistent with an intention to appeal.”

NUMSA & Others v Fast Freeze (1992) 13 ILJ 963 (LAC)

• The Court stated “if a party to a judgment acquiesces therein, either expressly or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be perempted, i.e. he cannot thereafter change his mind and note an appeal. Per-emption is an example of the well known principle that one may not approbate and reprobate, or, to use colloquial expressions, blow hot or cold, or have one’s cake and eat it”.
• Voluntary payment or acceptance of payment in terms of a judgment will usually be sufficient to satisfy a court that the party has acquiesced in the judgment.

Venture Otto SA v MEIBC (2005) 26 ILJ 349 (LC)

• The employer’s compliance with the arbitration award and the conclusion of a written agreement with the employee were deemed unequivocal acceptance, triggering peremption.

Jusayo v Mudau NO and Others [2008] 7 BLLR 668 (LC).

• Even though an employer mentions that it might challenge the compensation award, but goes ahead and pays the full amount into the employee’s bank account, this demonstrates clearly that the employer accepted the award and intended to follow through with it. In plain terms, this action is not a negotiation or a settlement offer, it was the employer admitting it owed the money and promising to pay it.

Balasana v Motor Bargaining Council and Others (2011) 32 ILJ 297 (LC)

• This case confirmed that peremption applies to review applications, not just appeals. The court held that acceptance of an arbitration award must be express or implied through unequivocal conduct.

Ellerines Furnishers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others (2015) 36 ILJ 215 (LC)

• The Court held that “once it can be said that a right of review exists, such right cannot be circumscribed by the peremption of a portion of that right or that only certain grounds of review may be raised but not others… what this essentially means is that once the variation ruling was issued it became open to Ellerines to challenge the entire arbitration award… on any of the recognised grounds of review, despite an earlier possible peremption of such right of review on the part of the affected party”.

NUMSA v Fry’s Metals (2015) 36 ILJ 232 (LC)

• The Court summarised the principles of peremption, emphasising that a party cannot “blow hot and cold.” If a party acts in a way that suggests acceptance of a judgment, they cannot later seek to overturn it.

Doorgesh v Commission for Conciliation, Mediation and Arbitration and Others (CA4/2014;C965/2011) [2015] ZALAC 44

• The Court found that it was enjoined to look at all the facts and circumstances to make a determination based on the facts of the particular case. Peremption is therefore fact specific.
• The Court held that accepting payment alone does not necessarily amount to peremption, especially if the employee continues to challenge the award. The Court found that the employee’s conduct did not clearly and unequivocally indicate acceptance of the award, and therefore, peremption did not apply.

Venmpo 275 (Pty) Ltd v Cleverland Projects (2016) 1 SA 78 (GJ)

• The court extended the doctrine of peremption to reviews and rescission applications, reinforcing its broad applicability in administrative and labour law.

Merafong City Municipality v SAMWU obo Speek [2025] JR599-21 (LC)

• The Court confirmed that the specific facts must be objectively assessed to ascertain if a party unequivocally acquiesced to the judgment, award or ruling issued against it.

 

Key principles of peremption

Contradictory actions

• If someone acts in a way that shows they accept a decision (like a judgment or award), they cannot later try to challenge it. Their actions must match their intentions.

Giving up the right to challenge

• When a person behaves as if they agree with the outcome, the law may treat it as if they’ve given up their right to appeal or review the decision.

Who must prove it?

• The person claiming that the other side has accepted the decision must prove it. They must show that the other party’s actions were clear and left no doubt that they accepted the outcome.

Each case is unique

• Whether peremption applies depends on the facts of each case. Courts look closely at what happened in that specific situation.

It’s not easy to prove

• The standard for proving peremption is high. The actions must be very clear and leave no room for guessing about the person’s intentions.

 

Legal implications

Peremption requires clear and unequivocal conduct

• Employers must avoid actions that could be interpreted as acceptance of an award if they intend to challenge it.

Authority matters

• Only authorised officials can bind an employer to compliance with an award. Actions by unauthorised individuals do not trigger peremption.

Timely legal action is essential:

• Seeking legal advice and initiating review proceedings promptly can help rebut claims of peremption.

Objective conduct is key

• Courts assess outward conduct, not internal intentions. Employers must ensure their actions clearly reflect their legal stance.

 

Consequences of peremption

When a court finds that a party has perempted their right to appeal or review a judgment or arbitration award, it means that the party has, through their conduct, effectively accepted the outcome. This has serious legal consequences.

Loss of right to challenge

• The party is legally barred from pursuing any further challenge to the decision. This includes appeals, reviews, or any other legal remedy that would ordinarily be available. The court treats the matter as final and closed.

Finality of the original decision

• The original judgment or award remains in force and is upheld by the court. Even if the party had strong legal grounds or good prospects of success on appeal, those arguments will not be considered because the right to challenge has been forfeited.

Legal certainty and efficiency

• Peremption promotes finality and certainty in legal proceedings. It prevents parties from delaying justice by accepting a decision in practice and then later attempting to reverse it. Courts are reluctant to entertain challenges from parties who have already acted in a way that shows acceptance.

No room for reversal based on merits

• Importantly, peremption is not about whether the original decision was right or wrong. It is about the conduct of the party after the decision was made. Once peremption is established, the merits of the case become irrelevant—the court will not revisit the substance of the dispute.

Binding effect on all parties

• Once peremption is found, it applies fully and finally. The party cannot later argue that they did not intend to accept the decision or that they were unaware of the consequences of their actions. The law looks at what they did, not what they meant.

 

Final Thoughts

The doctrine of peremption serves as a safeguard against inconsistent litigation conduct. In employment disputes, where reinstatement and compensation are at stake, clarity and authority are paramount. Peremption is a fact-specific enquiry and must be proven with precision. It also reminds all parties that procedural rigour and timely action are essential in labour litigation.

For advice or more information, contact Riona Kalua, head of our Labour and Employment team.