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[2019] ZALAC 69
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Commission for Conciliation, Mediation and Arbitration v Commission Staff Association and Another (JA110/2018) [2019] ZALAC 69; [2020] 1 BLLR 9 (LAC); (2020) 41 ILJ 145 (LAC) (16 October 2019)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA110/2018
In the
matter between:
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION

Appellant
And
COMMISSION
STAFF ASSOCIATION

First Respondent
M.P.
SHAI N.O.

Second

Respondent
Heard:          20
August 2019
Delivered:   16
October 2019
CORAM: DAVIS and
COPPIN JJA and MURPHY AJA
JUDGMENT
COPPIN
JA
[1]
Does section 198B (3), (4) and (5) of the Labour Relations Act
[1]
(“the LRA”), which came into operation on 1 January 2015,
apply to fixed-term employment contracts concluded/renewed
before
that date (“historical contracts”)?
[2]
Essentially section 198B, which was introduced into the LRA through
the Labour Relations
Amendment Act
[2]
(“the Amendment Act”), applies to workers falling under a
prescribed earnings threshold. Subsection (3) provides that
an
employer may not “employ” an employee on a fixed-term
basis in excess of three months, except in certain prescribed

circumstances. Subsections (3) and (4) list those circumstances.
Whereas the former subsection mentions the broad grounds of
justification,
the latter section lists specific examples of
justifications. Of particular significance to this matter, subsection
(5) provides
that a fixed-term contract concluded or renewed in
contravention of subsection (3) is deemed to be of an indefinite
duration.
[3]
This is an appeal against the judgment of the Labour Court (Patel AJ)
in terms of which
it reviewed and set aside an arbitration award of
the second respondent (“the commissioner”) in which he
found,
inter-alia
,
that those subsections did not apply to historical fixed term
contracts. In terms of its order, the Labour Court referred the

matter back to the Commission for Conciliation Mediation and
Arbitration (“the CCMA”), which is also the appellant
in
this matter, to determine whether the members of the first respondent
(“the CSA”), were entitled to any further
relief under
subsections 198B (5) and (8) of the LRA. Leave to appeal to this
Court was granted by the Labour Court.
The background facts
[4]
Section 198B, which I reproduce here in full for purposes of
discussion, provides as follows:
‘
198B.
“
Fixed
term contracts with employees earning below earnings threshold.-
(1) For the purpose of
this section, a ‘fixed term contract’ means a contract of
employment that terminates on—
(a) the occurrence of a
specified event; (b) the completion of a specified task or project;
or (c) a fixed date, other than an
employee’s normal or agreed
retirement age, subject to subsection (3).
(2) This section does not
apply to— (a) employees earning in excess of the threshold
prescribed by the Minister in terms of
section 6(3) of the Basic
Conditions of Employment Act; (b) an employer that employs less than
10 employees, or that employs less
than 50 employees and whose
business has been in operation for less than two years, unless—
(i) the employer conducts more
than one business; or (ii) the
business was formed by the division or dissolution for any reason of
an existing business; and
(3) An employer may
employ an employee on a fixed term contract or successive fixed term
contracts for longer than three months
of employment only if—
(a) the nature of the work for which the employee is employed is of a
limited or definite duration;
or (b) the employer can demonstrate any
other justifiable reason for fixing the term of the contract.
(4) Without limiting the
generality of subsection (3), the conclusion of a fixed term contract
will be justified if the employee—
(a) is replacing another
employee who is temporarily absent from work; (b) is employed on
account of a temporary increase in the
volume of work which is not
expected to endure beyond 12 months; (c) is a student or recent
graduate who is employed for the purpose
of being trained or gaining
work experience in order to enter a job or profession; (d) is
employed to work exclusively on a specific
project that has a limited
or defined duration; (e) is a non-citizen who has been granted a work
permit for a defined period; (f)
is employed to perform seasonal
work; (g) is employed for the purpose of an official public works
scheme or similar public job
creation scheme; (h) is employed in a
position which is funded by an external source for a limited period;
or (i) has reached the
normal or agreed retirement age applicable in
the employer’s business.
(5) Employment in terms
of a fixed term contract concluded or renewed in contravention of
subsection (3) is deemed to be of indefinite
duration.
(6) An offer to employ an
employee on a fixed term contract or to renew or extend a fixed term
contract, must— (a) be in writing;
and (b) state the reasons
contemplated in subsection (3)(a) or (b).
(7) If it is relevant in
any proceedings, an employer must prove that there was a justifiable
reason for fixing the term of the
contract as contemplated in
subsection (3) and that the term was agreed.
(8)
(a) An employee employed in terms of a fixed term contract for longer
than three months must not be treated less favourably
than an
employee employed on a permanent basis performing the same or similar
work, unless there is a justifiable reason for different
treatment.
(b) Paragraph (a) applies, three months after the commencement of the
Labour Relations Amendment Act, 2014, to fixed
term contracts of
employment entered into before the commencement of the Labour
Relations Amendment Act, 2014.
(9)
As from the commencement of the Labour Relations Amendment Act, 2014,
an employer must provide an employee employed in terms
of a fixed
term contract and an employee employed on a permanent basis with
equal access to opportunities to apply for vacancies.
(10) (a) An employer who
employs an employee in terms of a fixed term contract for a reason
contemplated in subsection (4)(d) for
a period exceeding 24 months
must, subject to the terms of any applicable collective agreement,
pay the employee on expiry of the
contract one week’s
remuneration for each completed year of the contract calculated in
accordance with section 35 of the
Basic Conditions of Employment Act.
(b) An employee employed in terms of a fixed-term contract, as
contemplated in paragraph (a),
before the commencement of the Labour
Relations Amendment Act, 2014, is entitled to the remuneration
contemplated in paragraph
(a) in respect of any period worked after
the commencement of the said Act.
(11) An employee is not
entitled to payment in terms of subsection (10) if, prior to the
expiry of the fixed term contract, the
employer offers the employee
employment or procures employment for the employee with a different
employer, which commences at the
expiry of the contract and on the
same or similar terms”.
[5]
At the time section 198B came into operation on 1 January 2015, Mr
Tamboer and his
colleagues, now represented herein by the CSA, had
already been employed by the CCMA as interpreters on a part-time or
fixed-term
basis in excess of three months. They construed the
aforesaid subsections as applying to historical contracts and held
the view
that
,
by virtue of those provisions, read with
section 200 A of the LRA, they had become full-time (or permanent)
employees of the CCMA.
The latter contested those assertions and
maintained that they were independent contractors.
[6]
On 30 June 2015, Mr Tamboer and of his colleagues referred the
dispute to the CCMA.
They wanted to be declared permanent/full time
employees of the CCMA. The CSA also referred a similar dispute on
behalf of its
members seeking a similar outcome. These referrals were
consolidated to be conciliated together on 20 August 2015.
[7]
At the hearing, the CCMA raised certain points at the outset, one of
which was that
the CCMA lacked jurisdiction to entertain those
disputes, because (according to the CCMA) the interpreters were
independent contractors.
On 25 September 2015, the officer presiding
dismissed all the points raised by the CCMA and held that the CCMA
does have jurisdiction
to deal with the disputes which arose from the
interpretation of section 198B of the LRA.
[8]
The disputes were referred to arbitration at the request of the CSA,
now acting on
behalf of the affected employees. The commissioner was
to determine the following issues: (a) –
whether
the amendment to the LRA that came into operation on 1 January 2015
applied retrospectively,
i.e. to the historical contracts; (b)
whether there was an obligation on employers and employees to
regularise their historical
contracts so as to comply with section
198B(3) and (4); and (c) whether any of the employees (i.e. the
applicants) could claim
backpay relying on those historical
contracts.
[9]
Having discussed and referred to the principle of retrospectivity and
the case law
on the topic the commissioner, in essence, held that he
could find no indication in the entire section 198B that subsections
(3),
(4) and (5) applied retrospectively – as they appeared “to
apply to future events”. Instead, it appeared that
section 198B
(8)(a) and (b), which ought to be read together, applied
retrospectively, because,
inter-alia
, they do not require the
contract to have been concluded in violation of the amendment –
and there could not have been a
violation of the amendment before its
commencement.
[10]
In conclusion, the commissioner ruled as follows: “63. I find
that section 198B (3), (4)
and (5) do not have retrospective
application and do not apply to contracts entered into before the
coming into effect of the new
amendments. 64. I further find that
there is no obligation on the employers and employees to regularise
the contracts entered into
prior to the coming into effect of the
amendments in compliance with section 198B (3), (4) and (5). 65. I
further find that the
applicants are not entitled to back pay arising
out of contracts entered into prior to the coming into effect of the
new amendments.
66. Matter to be rescheduled to deal with the
outstanding issues...”
[11]
The CSA brought an application in the Labour Court to review and set
aside the commissioner’s
award. The application was opposed by
the CCMA.
The Labour Court
[12]
The Labour Court reviewed and set aside the Commissioner’s
ruling and remitted the matter
back to the CCMA for determination by
a different commissioner of the question whether the employees were
entitled to relief in
terms of section 198B(5) and/or section
198B(8).
[13]
The Labour Court, essentially, applied an unreported judgement of
that court in the matter of
CCMA
v National Union of Metalworkers of South Africa (NUMSA) and
Others
[3]
(“NUMSA”)
,
having found that matter similar to the present. There, the Labour
Court dismissed an application to review and set aside an award
which
found that employees on historical fixed-term contracts were deemed
to be employed on an indefinite basis and ordered the
CCMA to pay the
employees backpay. There, the Labour Court also held that section
198B(8)(a) applied to historical contracts from
1 April 2015.
[14]
The Labour Court further reasoned as follows: in order to determine
whether subsections (3) and
(5) applied to the interpreters, one had
to take into account, firstly, the wording of those provisions,
secondly, that the retrospective
application of any law, in the
absence of any unambiguous provision, therefore “is a
pronouncement to be made based on the
principles of fairness”
and, thirdly, that an interpretation that section 198B applies
retrospectively “renders the
most equitable results” in
line with the LRA and the Constitutional right to fair labour
practices. The Labour Court thus
concluded that subsection 198B(5)
applied retrospectively and that the commissioner’s conclusion
to the contrary constituted
“a material error in law”,
which “a reasonable [c]ommissioner would not have come to”.
The Appeal
[15]
It appears common cause that a commissioner’s award can be
reviewed if it is found that
he or she committed a material error of
law, either because the interpretation was unreasonable, or was
wrong, and affected the
outcome. In any event, this is consistent
with what this Court has held.
[4]
[16]
It was submitted on behalf of the CCMA that the Labour Court was
wrong in its reasoning and conclusion.
The argument, in brief, is
that, correctly interpreted, subsections 198B(3), (4) and (5) do not
apply retrospectively, i.e. to
historical contracts, but only to
those concluded or renewed after 1 January 2015. The commissioner,
according to this argument,
was, therefore, correct considering the
language of those subsections and their context within section 198A
and 198B of the LRA,
the purpose of those provisions and the
background to their enactment.
[17]
In amplification, it was submitted, in essence, that various features
of the language of those
subsections indicate that they only apply to
contracts concluded after their commencement. Reference was made in
particular to
the use of the word “employ” in subsection
198B(3) – (It was argued that the term denoted active conduct)
–
and the phrase “the conclusion of the fixed term
contract will be justified if…” in subsection 198B(4),
which
refers to subsection 198B(3) – and the phrase “…
concluded or renewed in contravention of subsection (3)”
in
subsection (5). It was argued in that regard that the conclusion or
renewal of the contract could only have been a contravention
of
subsection (3) if that subsection was in existence and operational at
the time of the conclusion of the employment contract,
or its
renewal.
[18]
Turning to its statutory context, it was submitted on behalf of the
CCMA that the requirement
in subsection 198B(6)(b) that an offer to
an employee on a fixed-term contract (which has to be in writing)
must state the reasons
contemplated in subsections (3)(a) or (b), was
new and did not exist before the introduction of that subsection. And
that, significantly,
section 198B(6)(b) did not require the
revisiting, or amendment, of historical contracts to render them
compliant with section
198B(6)(b). The subsection, therefore, applies
prospectively – and can only meaningfully apply to fixed term
contracts concluded
after 1 January 2015. This, according to the
argument on behalf of the CCMA, supports the interpretation that
subsections 198B(3),
(4) and (5) do not apply to historical
contracts.
[19]
It was also argued on behalf of the CCMA that express retrospective
provisions in subsections
198B(8)(a) and (b) and subsection
198B(10)(b), and the absence of similar express retrospective
provisions in subsections 198B
(3), (4) and (5) further indicates
that the latter subsections do not apply retrospectively, i.e. to
historical contracts. This
conclusion, according to the argument on
behalf of the CCMA, is fortified by the fact that section 198A(9),
which was also introduced
into the LRA by the Amendment Act, and
which pertains to employees employed through temporary employment
services (“TES”),
contains an express provision that the
section applies to services procured for, or provided by, a TES
before the commencement
of the Amendment Act, whereas section 198B
had no corresponding provision.
[20]
Concerning the section’s purpose and background, it was
submitted on behalf of the CCMA
that the abuse of fixed-term
contracts and the need to protect employees that were subjected to
them motivated the introduction
of section 198B. These mischiefs, or
concerns, according to this argument, were addressed in the following
manner: the conclusion
and renewal of all fixed-term contracts
(including historical fixed-term contracts renewed after the
commencement of that section)
which are not justified as contemplated
in subsections (3) and (4) are proscribed under subsection 198B(3);
the deeming provision
in subsection (5) – which will also
applies to historical fixed term contracts renewed after the
commencement of section
198B; and the provisions of subsections (8)
and (10), which provides employees on all fixed term contracts with
protection. Viewed
in this light, according to this argument, the
present matter is really about “a very narrow category of
fixed-term contracts,
namely historical fixed term contracts that
endured beyond the introduction of the amendments and which have not
been subject to
renewal.” These contracts, it is submitted, are
bound to be phased out over time and will fall away as their expiry
dates
are reached. The protections thus afforded by subsections (3),
(4) and (5) will not be undermined if the CCMA’s interpretation

of section 198B is upheld.
[21]
Lastly, it was submitted on behalf of the CCMA that its
interpretation is consistent with the
presumption against
retrospectivity, which is premised on the unwillingness of courts to
interfere with vested rights. Counsel
referred in this regard to
Curtis
v Johannesburg Municipality
[5]
(“
Curtis
”),
National
Iranian Tanker Co v MV Pericles GC
[6]
,
and
S
v Mhlungu and Others
[7]
(“
Mlungu
”).
The argument proceeded from the premise that the presumption
propounded in those authorities had to be applied. Counsel
for the
CCMA was critical of the fact that the Labour Court did not apply the
presumption and, instead, considered the investigation
into
retrospectivity as entailing “a pronouncement to be made on the
basis of the principles of fairness.”
[22]
On the other hand, it was argued on behalf of the CSA that section
198B was enacted to regulate
all fixed term contracts, including
historical fixed term contracts that were effective at the time of
the commencement of section
198B, and had as its purpose the
protection of all employees employed in terms of such contracts.
Secondly, it was submitted that
subsection 198B(2) stipulates what
section 198B does not apply to and that it is significant that the
section does not mention
historical fixed term contracts. The
implication being that the section does indeed apply to those
contracts.
[23]
According to this argument it was clear from a “plain reading”
of section 198B that
the section applied to all existing contracts of
employment as provided for in subsection 198B(8)(b); further, that
section 39(2)
of the Constitution of the Republic of South Africa,
1996 (Constitution) and section 3 of the LRA mandate an
interpretation which
better gives effect to fundamental rights. Thus,
an interpretation which affords protection to vulnerable employees
better promotes
section 23 (the right to fair labour practices) and
section 9 (the right to equality) of the Constitution.
[24]
The CSA contends that even if all its arguments were invalid, section
198B, nevertheless, applies
retrospectively. The test for determining
whether the section applies retrospectively is fairness, and fairness
dictates that the
section was enacted to provide protection to the
most vulnerable employees.  The interpretation proffered by the
CCMA, according
to the CSA, would lead to an unfair and unjust result
and should not be accepted, because: (a) it is not premised on a
reliance
of section 23 of the Constitution, or the principles
contained in section 3 of the LRA; and (b) it results in the unequal
treatment
of those employed on fixed-term contracts, depending on
when they concluded those contracts, and this was “offensive”

to the intention behind section 198B and sections 9 and 23 of the
Constitution.
[25]
According to the CSA, its interpretation is supported, firstly, by
the Constitutional Court’s
decision
Assign
Services (Pty) Ltd v National Union of Metalworkers of South Africa
and Others
[8]
(“
Assign
Services
”),
(which dealt with section 198A of the LRA, which is also introduced
by the Amendment Act, and where, according to this
argument, the
Constitutional Court commenced its interpretation by identifying the
purpose of section 198A as giving “security
to marginalised
workers”); secondly, by this Court’s decision in
Piet
West Civils CC and Another v Association of Mineworkers and
Construction Union (AMCU) and Others
[9]
(“
Piet
West
”)
( where it held,
inter-alia
,
that the purpose of section 198B was to provide security of
employment, except in circumstances where a fixed-term on a limited

duration contract was clearly justified); and, thirdly, by the
memorandum accompanying the amendment (i.e. the Amendment Bill)
which
described the purpose of the amendments as introducing “key
additional protections for more vulnerable workers.”
[26]
CSA submits, finally, that the difficulty with the interpretation of
the CCMA was that it allows
the mischief, that section 198B was
intended to prevent, to continue with impunity. In respect of the
issue of retrospectivity,
it was submitted that the correct test is
to be derived from the majority judgment in
Mhlungu.
[10]
Thus, even if there is an express indication against retrospectivity
in the provisions under consideration, those will be trumped
in
favour of retrospectivity if fairness requires it. Therefore, the
presumption against retrospectivity had “scant application”

when you were dealing with a possible invasion of rights and an
exclusion of benefits. Accordingly, so it was argued, the approach

adopted by the Labour Court was reflected in the approach of the
majority judgment in
Mhlungu
.
Evaluation
[27]
There are explicit indications in the language and context of
subsections (3), (4) and (5) that
they do not apply retrospectively,
i.e. to historical contracts. It is indeed so that the language of
those subsections is in the
present tense. A prominent word in
subsection (3) is the verb “employ”. It means “to
engage”, “to
recruit”, “to take on” or
“to take into employment”
[11]
.
Read in its context it literally refers to the conclusion (or
renewal) of the employment contract. That it is so, is confirmed
by
the wording of subsections (4) and (5). The former uses the phrase
“…conclusion of a fixed term contract…”,

and the latter subsection uses the phrase “…a fixed term
contract concluded or renewed…”.
[28]
In terms of subsection (5) “[a] fixed term contract concluded
or renewed in contravention
of subsection (3) is deemed to be of
indefinite duration.” A fixed-term contract concluded before
the commencement of subsections
(3), (4) and (5), i.e. before 1
January 2015, cannot (ordinarily) be in contravention of subsection
(3) because the subsection
was not in existence or operative at the
time of the conclusion of that contract. Further, the requirement in
subsection (6) that
a fixed-term contract (or its renewal or
extension) must be in writing and state the reasons contemplated in
subsection (3)(a)
or (b) could also not reasonably be expected to be
complied with before the enactment or operation of subsections (3)
(a) or (b)
and (6).
[29]
Other indicators that subsections (3), (4) and (5) apply only to
contracts concluded, renewed
or extended after 1 January 2015, is the
structure of section 198B. There is no express provision in those
subsections, similar
to that found in, for example, subsections (8)
and (10), and making them applicable to historical contracts.
[30]
Subsection (8)(a) provides: “An employee employed in terms of a
fixed term contract for
longer than three months must not be treated
less favourably than an employee employed on a permanent basis
performing the same
or similar work, unless there is a justifiable
reason for different treatment.” This provision’s
application to historical
contracts is expressly provided for in
subsection (8)(b), which provides: “Paragraph (a) applies three
months after the commencement
of the Labour Relations Amendment Act,
2014…”. This provision is clearly not only aimed at
contracts concluded after
1 January 2015 but at all fixed-term
contracts, including the historical ones. The mischief subsection
(8)(a) is aimed at concerns
the differential treatment meted out to
persons employed on a fixed-term basis in comparison to permanent
employees doing the same
or similar work, thus giving rise to the
need for a provision such as subsection (8)(a). The argument of CSA
that this section
only applies to permissible fixed-term contracts
loses sight of the fact that there would otherwise be no provision
placing a specific
obligation on employers in such contracts to treat
the employees that are subjected to such contracts, even if deemed
permanent,
the same as its ordinary permanent employees doing the
same or similar work.
[31]
In subsection (10), a clear distinction is drawn between contracts
concluded before the commencement
of the Amendment Act (i.e. before 1
January 2015) and those concluded or renewed after that date.
Subsection (10)(a) applies to
the latter, while subsection 10(b)
applies to the former. Subsection 10(a) provides: “An employer
who employs an employee
in terms of a fixed-term contract for a
reason contemplated in subsection (4)(d) for a period exceeding 24
months must, subject
to the terms of any applicable collective
agreement, pay the employee on expiry of the contract one week’s
remuneration for
each completed year of the contract calculated in
accordance with section 35 of the Basic Conditions of Employment
Act’.
[32]
On the other hand, subsection (10)(b) provides: “An employee
employed in terms of a fixed-term
contract, as contemplated in
paragraph (a),
before commencement of the Labour Relations
Amendment Act, 2014
, is entitled to the remuneration contemplated
in paragraph (a) in respect of any period worked after the
commencement of the said
Act”. (Emphasis added). It is also
significant that in terms of subsection 10(b) the employer in the
historical contract
is only obliged to pay the employee under the
contract the remuneration contemplated in paragraph (a) for the
period worked after
the commencement of the Amendment Act, i.e. after
1 January 2015 – and not for the period worked before that
date.
[33]
The wording of subsection (9) also indicates that it is applicable to
all fixed-term contracts,
including historical ones that persisted
beyond the commencement date of the Amendment Act. It provides: “As
from the commencement
of the Labour Relations Amendment Act, 2014, an
employer must provide an employee employed in terms of the fixed term
contract
and an employee employed on a permanent basis with equal
access to opportunities to apply for vacancies”.
[34]
What is therefore clear from the structure of section 198B is that
certain of its provisions
apply retrospectively, i.e. to all fixed
term contracts, including historical contracts, while other of its
provisions evidently
do not. The principal difficulty with the CSA’s
main argument is that it does not acknowledge this apparent diversity
within
the structure of section 198B.
[35]
In light of those clear indications
,
there is no need to invoke the presumption against retrospectivity,
which, like other presumptions of statutory interpretation,
serves
merely as a guide or aid in establishing the position in case of
ambiguity
[12]
. In terms of the
presumption, statutes regulate future conduct, and unless there is a
clear indication that it applies retrospectively,
the provision under
consideration is construed as applying only to matters, or facts,
that came into existence after its commencement
[13]
.
Unless the provision deals purely with procedural matters where there
are no vested rights, it would
prima
facie
be applicable to matters pending and to future matters, unless there
are clear indications to the contrary
[14]
.
[36]
Subsections 198B (3) and (4) are evidently not procedural provisions.
The conclusion of the employment
contract,
per
se,
is
not a procedural matter, and the justifications contemplated in
subsections (3) and (4), as well as the deeming provision in

subsection (5), at best, relate to the issue of onus and the burden
of proof, which are all substantive matters. The true test,
however,
that has been accepted by South African courts
[15]
,
is not to enquire whether a provision is procedural or substantive,
but to determine if it would impair or affect existing rights
and
obligations
[16]
. If the
provision does, a court is more likely to presume that it did not
operate retrospectively, unless there is a clear indication
to the
contrary. The rationale behind the presumption against
retrospectivity is the fear of injustice to those whom the provision

will affect
[17]
. Therefore, a
provision is taken not to have been intended to interfere with vested
rights or to impair existing contracts. Nevertheless,
if this
principle, or presumption, is invoked in aide of the construction of
subsections (3), (4) and (5), the conclusion can only
be that they do
not apply retrospectively, i.e. to historical contracts, and there
are no clear indications to the contrary.
[37]
The CSA’s reliance on
Assign
Services
is misplaced. The facts in that case are clearly distinguishable from
the present. There the Constitutional Court dealt with the

interpretation of s198A(3)(b) of the LRA. It did not deal with s
198B, or with the issue of retrospectivity. A dictum in
Piet
West,
which
might have given the impression that this court had already decided
on the general retrospectivity of section 198B, or specifically
of
section 198B (3), (4) and (5), requires comment. The following is
stated there: “In
Enforce
Security Group v Fikile and others
(
Enforce
),
this court had regard to fixed term employment contracts which had
been entered into prior to section 198B having been brought
into
operation on one January 2015. In the current matter section 198B
finds application.”
[18]
[38]
Firstly, in stating there that this Court had regard to contracts
concluded before the commencement
of section 198B does not mean that
this court held that the section (including subsections (3), (4) and
(5) apply retrospectively,
i.e. to historical contracts. In any
event, it is clear from the judgment in
Enforce
[19]
that
this court never applied section 198B in that matter
.
In
fact, in
Enforce
this Court eschewed dealing with the issue of the indefinite or
permanent employment of the employees there, because the employees

had abandoned it and did not pursue it in the Labour Court
[20]
.
So there is no precedent set in that regard by this Court in
Enforce
that bound it in
Piet
West
.
Secondly, it is not clear at all why, in those circumstances, this
Court would have held in
Piet
West
that section 198B was applicable to the fixed term contracts dealt
with there. It might well be because they were concluded after
the
commencement of section 198B (i.e. after 1 January 2015). The date(s)
of the conclusion of those contacts is not apparent from
the judgment
in
Piet
West
.
Thirdly, in
Piet
West
the issue of the retrospective application of subsections (3), (4)
and (5) was not raised specifically by the parties; hence the
absence
of reasoning, and the mere assumption by the court of the position on
the point. Lastly, and in any event, if the conclusion
in
Piet
West
was
that those subsections applied to historical contracts (which I do
not find), then it was, with respect, unreasoned and clearly
wrong.
[39]
Similarly, the CSA’s reliance on the majority judgment in
Mhlungu
appears to be based on a misconception of what was held in that
matter. The facts there are also clearly distinguishable from the

present. The majority of the Constitutional Court did not purport to
lay down a general principle of interpretation as postulated
by the
CSA. But even if it did, at best it supported a construction that was
“most beneficial to the widest amplitude”,
i.e. a broad,
and more generous construction, where that was possible
[21]
.
This is generally what a purposive approach to the interpretation of
a right in the Bill of Rights calls for. But it is also acknowledged

that this may not always be possible, because the context may
indicate that in order to give effect to the purpose of a particular

provision a narrower or specific meaning should be given to it
[22]
.
[40]
Adopting a purposive approach to the interpretation of section 198B
of the LRA, certainly does
not mean that one must ignore the specific
language, structure and content of that provision. It is also
necessary to bear in mind
the following: Section 198B does not outlaw
fixed-term contracts, or seek to replace them entirely with contracts
of indefinite
duration. Instead it acknowledges the need for such
contracts and seeks to regulate them and   to protect
vulnerable
employees that are often exploited through the means of
such contracts, in a manner that is fair.
[41]
It appears manifestly unfair to find fixed-term contracts concluded
before the promulgation or
commencement of subsections (3), (4) and
(5) to be in contravention of subsection (3), and to proceed without
respite, or repose,
to impose the onerous obligation of permanent
employment on an employer because of such contravention. And, while
not as serious,
this may be comparable to inflicting punishment on
individuals for contraventions of a particular rule or crime created
by a law
that was not in force at the time of the alleged
contravention. If we were dealing with a criminal law provision, the
construction
advocated  by the CSA would be in conflict with the
principle that there can be no crime and no punishment without law
(
nullem
crimen, nulla poena sine lege
),
which is an important aspect of the principle of legality that is an
integral part of our Constitution
[23]
.
One of the attributes of the principle of legality or the rule
of law is said to be “non-retroactivity”, i.e.
“laws
must govern behaviour that takes place after their creation rather
than past events”.
[24]
[42]
In construing section 198B of the LRA we ought to promote the spirit,
purport and objects of
the Bill of Rights as contemplated in section
39(2) of the Constitution; and are to give effect to the primary
objects of the LRA
(as amended), in compliance with the Constitution,
and in compliance with the public international obligations of the
Republic,
as we are required to do by section 3 of the LRA. The
purpose of the LRA is certainly not to bring about injustice and
unfairness.
On the contrary, it seeks to promote fairness and all the
other constitutional values in the workplace and the employment
relationship.
[43]
A construction that subsections (3), (4) and (5) do not apply to
historical contracts i.e. retrospectively,
does not offend the
intention behind section 198B or any provision of the Constitution.
Considered in the proper context the construction
is reasonable and
fair. This section appropriately addresses the abuses (or
“mischiefs”) that were wrought through
fixed term
contracts. Employees would effectively be denied permanent full-time
employment unjustifiably through the successive
renewal, or
extension, of such contracts; and not be treated the same as
permanent employees of the employer; they would also not
be given the
same access, as those employees, to opportunities to apply for
vacancies; and there was no obligation to pay such
employees any
amount similar to a severance at the end of the contract’s
term. Each of those aspects is now addressed by
section 198B in
specific subsections, in a manner that is fair.
[44]
The commissioner’s conclusion that subsections (3), (4) and (5)
do not apply to historical
contracts, but prospectively, was
therefore reasonable and correct. There is no reason to interfere
with the award. The Labour
Court’s conclusion to the contrary,
is wrong. Therefore, the appeal ought to succeed. However, taking
into account all the
circumstances, including the law in fairness, it
is not appropriate to make a costs order in this matter.
[45]
In the result, the following order is made:
1.
The
appeal is upheld.
2.
The
order of the Labour Court is set aside and replaced with the
following order: “The application is dismissed”.
3.
No
order is made in respect of the costs of the appeal.
___________________________
P
Coppin
Judge
of the Labour Appeal Court
Davis
JA and Murphy AJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT:
Mr Anton Myburgh SC
(with
him) Mr Riaz Itzkin
Instructed by Poswa Inc.
Attorneys
FOR THE
RESPONDENT:
I de Vos
Instructed
by Ruth Edmonds Inc.  Attorneys
[1]
Act
66 of 1995.
[2]
Act
6 of 2014.
[3]
Case
no JR1624/16 (delivered on 23 June 2017).
[4]
See,
inter
alia
,
Macdonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union (AMCU) and Others
[2017]
2 BLLR 105
(LAC) para 30;
National
Union of Metalworkers of South Africa v Assign Services and Others
[2017] 38 ILJ 1978 (LAC) para 32;
SBV
Services (Pty) Ltd v National Bargaining Council for the Road
Freight & Logistics Industry and Others
(2018)
39 ILJ 1290 (LAC) para 26.
[5]
1906
TS 308.
[6]
1995
(1) SA 475
(A) at 483H-484B.
[7]
[1995] ZACC 4
;
1995
(3) SA 867
(CC) para 65.
[8]
[2018]
9 BLLR 837
(2018) 39 ILJ
1911; 2018 (5) SA 323
(CC).
[9]
[2018]
12 BLLR 1164
; (2019) 40 ILJ 130 (LAC) para 28.
[10]
See
above.
[11]
See:
New Oxford Thesaurus of English (Oxford University Press, 2000) 303.
[12]
See
inter
alia
:
Abbot
v Commissioner for Inland Revenue
1963
(4) SA 552
(C) at 556E-F.
[13]
See,
inter
alia
:
Adampol
(Pty) Ltd v Administrator, Transvaal
1989 (3) SA 800
(A) at 805F-808D; EA Kellaway
Principles
of Legal Interpretation
(Lexis Nexis;1995) 319-320.
[14]
See,
inter
alia
,
Curtis
v Johannesburg Municipality
(above) at 312: and
Pericles
(above)
at 483H-484B.
[15]
See:
EA Kellaway (above) at 327, 329; and,
inter
alia
,
Euromarine
International of Mauren v The Ship “Berg
”
1984 (4) SA 647
(N) 661C-662A; (confirmed on appeal)
1986 (2) SA 700
(A) at 710E-711C.
[16]
See:
EA Kellaway (above) and
inter
alia
,
Adampol
(above).
[17]
See:
R
v Margolis
1936 OPD 143
at 144.
[18]
See
Piet
West
(above) para 22.
[19]
See
Enforce
Security Group v Fikile and Others
(2017)38
ILJ 1041 (LAC):
[2017] 8 BLLR 745
(LAC) (
Enforce
).
[20]
See
Enforce
(above) para 14.
[21]
See:
S
v Mhlungu
(above) para 9.
[22]
See:
Soobramoney
v Minister of Health (KwaZulu- Natal)
[1997] ZACC 17
;
1998 (1) SA 765
(CC) para 17.
[23]
See
Jonathan Burchell and John Milton
Principles
of Criminal Law
(Juta: 1991) pp 54-62.
[24]
Francois
du Bois et al
Wille’s
Principles of South African Law
(Juta;
9ed) p18, (referring to Lon L Fuller
Morality
of the Law
(1968) Chapter 2 and David Dyzenhaus (1994) 7
Ratio
Juris
80 at 92).