The National Union of Metalworkers of South Africa (Numsa) and the SA Cabin Crew Association (Sacca) intend to make an urgent application to the Labour Court in Johannesburg on 28 January to have a deal regarding backpay of members of South African Airways (SAA) declared unlawful or unfair.

The unions want payment to their SAA members made within seven days, if their application is granted.

SAA, as well as the state-owned airline's joint-business rescue practitioners Les Matuson and Siviwe Dongwana, are named as the respondents in the case.

The rescue practitioners stopped paying SAA salaries in May when they effectively "mothballed" the airline, claiming there was no money left to keep it going.

The Department of Public Enterprises (DPE) has offered employees 3-months of the about 9 months of backpay that has since accumulated. The DPE says it did not anticipate the rescue process would drag on for so long and that there simply is no extra money to pay more in terms of backpay.

The two unions want the respondents refusal to pay NUMSA and SACCA members proper backpay as well as a lump sum in respect of a 5.9% increase backdated to April 2020 and their pro rata savings towards a 13th cheque "in circumstances where such payment is due and payable and where same was made to other employees", declared unlawful or unfair.

In an affidavit which forms part of the urgent application, Zazi Nsibanyoni-Mugambi, president of SACCA, she states that, given the national lockdown and the notion of intervening impossibility of performance, employees did not, other than Temporary Employer/Employee Relief Scheme (Ters) monies, receive payment of remuneration as from April 2020.

"Despite the fact that SAA was legally permitted to operate as from 1 June 2020 and that the defence of supervening impossibility of performance was no longer available, the respondents failed to pay employees remuneration - save for those who received payment in December 2020 and January 2021," she states.

In the view of the two unions, government has continuously expressed a commitment to making funding available.