Mokgwankgwa v Commission For Conciliation, Mediation and Arbitration and Others (JR374/24) [2025] ZALCJHB 484 (14 October 2025)

Case Note

Mokgwankgwa v Commission for Conciliation, Mediation and Arbitration and Others
( Labour Court, Johannesburg ) Case No JR374/24, judgment delivered 14 October 2025

Reportability

This judgment is reportable because it settles an important and recurring jurisdictional controversy that has confronted commissioners of the Commission for Conciliation, Mediation and Arbitration. The court clarifies the effect of the 2013 amendments to the Co-operatives Act on the definition of “employee” in section 213 of the Labour Relations Act, 1995, and it confirms that members of worker co-operatives are not, by that fact alone, excluded from labour-legislation protection. By restating the constitutional imperative that a material error of law constitutes an autonomous ground of review under section 145 of the Labour Relations Act, the judgment also contributes significantly to the growing jurisprudence on bifurcated review standards and the reach of the principle of lawfulness in administrative-law review of CCMA awards. Because the ruling directly affects thousands of worker-co-operative arrangements, it has obvious practical significance beyond the immediate litigants.

Cases Cited

South African Rugby Players’ Association and Others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v South African Rugby Players’ Union and Another (2008) 29 ILJ 2218 (LAC)
Jonsson Uniform Solutions (Pty) Ltd v Brown and Others [2014] ZALAC 79; (2014) 35 ILJ 123 (LAC)
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC)
MacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union and Others (2016) 37 ILJ 1819 (LAC)
National Bargaining Council for the Road Freight and Logistics Industry v Deysel NO and Others (Case DA 19/2023, LAC, 7 April 2025, unreported)
Long v South African Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC)
Zungu v Premier of the Province of KwaZulu-Natal and Others (2018) 39 ILJ 523 (CC)

Legislation Cited

Labour Relations Act 66 of 1995, notably sections 145, 158(1)(g) and 213
Co-operatives Act 14 of 2005 (as amended)
Co-operatives Amendment Act 6 of 2013
Justices of the Peace and Commissioners of Oaths Act 16 of 1963, and its Regulations
Promotion of Administrative Justice Act 3 of 2000 (referenced for comparative purposes)
Constitution of the Republic of South Africa, 1996, section 33

Rules of Court Cited

Rule 6(5)(d)(iii) of the Uniform Rules of Court
Rule 31(1)(b) of the CCMA Rules

HEADNOTE

Summary

The applicant, a security guard who had become a member of Ubuntu Services Worker Co-operative, referred an unfair-dismissal dispute to the CCMA. The third and fourth respondents objected, contending that because the applicant was a co-operative member he was not an “employee” and that section 6(1) of the (now repealed) 2005 Co-operatives Act excluded the CCMA’s jurisdiction. The CCMA commissioner upheld the point in limine and issued a jurisdictional ruling dismissing the referral.

On review, the Labour Court was invited to set aside that ruling in terms of sections 145 and 158(1)(g) of the Labour Relations Act. The court had first to dispose of a preliminary attack on the validity of the founding affidavit, which it rejected after finding substantial compliance with the commissioning regulations. Thereafter the court addressed the merits of the jurisdictional ruling on the basis of the correctness standard, holding that the commissioner had committed a material error of law by relying on legislation that had been repealed six years earlier. Because the 2013 amendments expressly recognise members of worker co-operatives as potential employees under the Labour Relations Act, the CCMA had jurisdiction. The ruling was therefore reviewed and set aside, and the dispute was remitted for arbitration de novo before a different commissioner.

Key Issues

Whether the CCMA lacked jurisdiction because the applicant was a member of a worker co-operative
Whether section 6(1) of the Co-operatives Act 14 of 2005 still excluded such members from the definition of “employee”
Whether the commissioner’s reliance on repealed statutory provisions amounted to a material error of law reviewable under section 145 of the Labour Relations Act
The appropriate review standard—correctness versus reasonableness—in jurisdictional determinations

Held

1. The 2005 version of section 6(1) of the Co-operatives Act had been repealed by the Co-operatives Amendment Act 6 of 2013; the commissioner misdirected himself in law by applying repealed provisions.
2. Under the amended legislation a member of a worker co-operative who otherwise satisfies the Labour Relations Act definition is an employee; therefore the CCMA has jurisdiction.
3. A material error of law is an independent ground of review under section 145; the commissioner’s ruling was objectively wrong and must be set aside.
4. The dispute is remitted to the CCMA for arbitration de novo before a different commissioner; no order as to costs.

THE FACTS

The applicant, Mr Sello Stevens Mokgwankgwa, rendered security services under a contractual arrangement that morphed into membership of the Ubuntu Services Worker Co-operative. In March 2023 the third respondent, Thompson Security Group, required him to sign a document acknowledging that he was “not an employee but a member of the co-operative.” Several months later Thompson Security terminated his engagement. Believing that the termination constituted a dismissal, the applicant referred an unfair-dismissal dispute to the CCMA.

At the CCMA hearing on 7 February 2024 the third and fourth respondents objected to jurisdiction. They relied on the signed document and on section 6(1) of the Co-operatives Act 14 of 2005, arguing that the section expressly excluded worker-co-operative members from the statutory definition of “employee.” By agreement the parties filed written submissions under rule 31(1)(b); due to an administrative mishap the commissioner never received the applicant’s opposing affidavit.

On 19 February 2024 the commissioner delivered a jurisdictional ruling accepting the respondents’ argument and dismissing the referral. The applicant launched the present review, contending that the commissioner had committed misconduct, acted irrationally and exceeded his powers. Thompson Security and Ubuntu Services opposed but confined themselves to a technical objection that the founding affidavit had not been properly commissioned.

THE ISSUES

The Labour Court had to determine, first, whether the founding affidavit was valid notwithstanding the alleged commissioning defects. If satisfied on that score, it then had to decide whether the commissioner’s jurisdictional ruling was reviewable and whether the correct review standard was that of correctness or reasonableness.

Central to that enquiry was the legal status of section 6 of the Co-operatives Act after the 2013 amendments and, consequently, whether membership in a worker co-operative automatically removes a person from the protection afforded by the Labour Relations Act. The court also had to decide whether a material error of law constitutes an autonomous ground for review under section 145.

ANALYSIS

The court dealt first with the preliminary point. Scrutinising the original founding affidavit produced in court, SASS AJ found that both the deponent and the commissioner of oaths had signed, that the oath had been administered in each other’s presence, and that the failure to initial cross-signed pages was a minor irregularity. Consistent with the principle of substantial compliance laid down in numerous authorities, the court dismissed the point of law and proceeded to the merits.

In approaching the review the court adopted the bifurcated standard developed by the Labour Appeal Court. Because the commissioner’s determination concerned the CCMA’s jurisdiction, the appropriate standard was correctness rather than reasonableness. Citing South African Rugby Players’ Association, Jonsson Uniform Solutions and subsequent authorities, the court reiterated that where only one legally correct answer exists the reviewing court must itself decide the question.

Turning to the statutory framework, the court traced the legislative history of section 6. It noted that the Co-operatives Amendment Act 6 of 2013, which came into force on 1 April 2019, had repealed the 2005 provision on which the commissioner had relied. The amended section not only re-enacts but also strengthens the employee status of worker-co-operative members, subject to a narrow exemption procedure that was neither pleaded nor proved in this case. Accordingly, the commissioner’s ruling was predicated on an obsolete legislative text, constituting a material error of law. Drawing on MacDonald’s Transport and the recent unreported decision in Deysel, the court held that such an error suffices, without more, to vitiate the ruling.

Because the error went to the heart of jurisdiction, the ruling could not stand. The court therefore set it aside and remitted the dispute for arbitration de novo before a different commissioner so as to preserve the integrity of the process. In keeping with the principle of fairness articulated in Long v South African Breweries, it declined to award costs.

REMEDY

The jurisdictional ruling of 19 February 2024 was reviewed and set aside. The unfair-dismissal dispute was remitted to the CCMA to be arbitrated anew by a commissioner other than the second respondent. The CCMA was directed to enrol the matter expeditiously, and no order as to costs was made.

LEGAL PRINCIPLES

A commissioner’s misinterpretation of a statutory provision that has been repealed constitutes a material error of law and is reviewable under section 145 of the Labour Relations Act without the need to show unreasonableness.

Jurisdictional findings by the CCMA are assessed on a correctness standard, and the Labour Court is empowered—and obliged—to substitute its own interpretation where only one correct legal answer is possible.

The Co-operatives Amendment Act 6 of 2013 now expressly provides that members of worker co-operatives are employees for purposes of the Labour Relations Act unless a lawful exemption has been granted by a bargaining council or the Minister of Labour.

Substantial compliance with the Regulations under the Justices of the Peace and Commissioners of Oaths Act is sufficient to uphold the validity of an affidavit; minor commissioning defects will not derail proceedings where the oath was in fact properly administered.

Costs in labour-court proceedings remain subject to the overarching principle of fairness; absent egregious conduct by any party, the default position is that each party bears its own costs.