THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2481/2022
In the matter between:
TRANSPORT AND RETAIL ALLIED WORKERS
UNION (‘TRAWU’) First Applicant
Obo THABANG PHOLOANA
AND 10 OTHERS Second to Further Applicants
and
GRINDING MEDIA SOUTH AFRICA (PTY) LTD First Respondent
METAL AND ENGINEERING INDUSTRIES
BARGAINING COUNCIL (‘MEIBC’) Second Respondent
COMMISSIONER MOHAMED RAJAH N.O Third Respondent
Heard: 7 November 2024
Delivered: 08 August 2025
JUDGMENT
2
ANESTIDIS, AJ
Introduction
[1] This matter concerns a review application to review and set aside an
arbitration award (Award) issued by the third respondent, acting under the auspices of
the second respondent, in terms of which it was found that the applicant s were not
dismissed, as their limited duration contracts simply came to an end.
[2] As per the applicants’ notice of motion, they seek to have this Court replace
the third respondent’s arbitration award with an award that the applicants were
dismissed unfairly, both procedurally and substantively. The applicants further seek
that this Court order that the applicants be reinstated to the fixed- term contracts they
had with the first respondent, ‘ until a proper procedure i s followed’ and, in the
alternative, the applicants seek just and equitable compensation. Finally, as further
alternative relief, the applicants seek that the dispute be remitted to the second
respondent for a hearing de novo before a different Commissioner.
[3] The review applicant is opposed.
[4] At the hearing of the review application, and after the Court sought
clarification from the applicants in relation to the primary relief sought by them, the
applicants abandoned the reinstatement relief and counsel for the applicants
confirmed that they only seek maximum compensation, alternatively, that the dispute
be remitted to the second respondent for a hearing de novo before a different
Commissioner.
Background facts
[5] There are 11 individual applicants:
3
5.1 Eight of the applicants 1 commenced employment with the first
respondent on 6 April 2021, in terms of fixed-term contracts for a period of two
months, which were due to end on 31 May 2021;
5.2 Two of the applicants 2 commenced employment with the first
respondent on 1 June 2021, in terms of fixed- term contracts for a period of 1
(one) month, which were due to end on 30 June 2021; and
5.3 One of the applicants 3 commenced employment with the first
respondent on 20 December 2021, in terms of a fixed -term contract ending on
7 January 2022.
[6] After the initial expiry of the applicants’ respective fixed- term contracts, their
employment was extended, on occasion for a two month period, but mostly on a
monthly basis (i.e. for a period of one month, until the end of May 2022.
[7] During early May 2022, all of the applicants were advised, in writing, by the
first respondent that their fixe d-term contracts will not be renewed any further, with
the result that the employment relationship between the parties would come to an
end, by the effluxion of time, on 31 May 2022.
Grounds of review
[8] Broadly speaking, the applicants contend that the third respondent
committed gross misconduct and failed in his duties as an arbitrator when he found
that the individual applicants were not dismissed. The applicants further contend that
the arbitrator misconstrued the nature of the enquiry before him which resulted in the
applicants not being afforded a fair trial of issues.
[9] The applicants contend that the third respondent was enjoined to conduct a
two-stage enquiry: firstly , to enquire as to whether the first respondent created an
expectation for the renewal of the fixed- term contracts; and secondly, if such an
expectation was created, whether it was reasonable.
1 Thabang Paul Pholoana; Daniel Lengoabala; Ben Letele; Tebelo Ramashoai; Bhekithemba Nene;
Sifiso Ngobese; Johannes Sesera; and Vusi Yaka.
2 Lunga Siyongwana; and Emmanuel Molefe.
3 Lehlohonolo Phaphu.
4
[10] The applicants further contend that, based on the facts, an expectation was
created by the first respondent that the applicants’ contracts of employment would be
renewed on a ‘ monthly basis ’ since it was common cause that certain of the
applicants’ contracts of employment were extended on 12 occasions. To this end,
the applicants contend that it was reasonable for them to expect their contracts to be
renewed because they could still perform the duties that they were performing before
the termination of their contracts, and such work was still available.
[11] The applicants contend that the first respondent’s version that the individual
applicants were specifically employed to replace or stand in for permanent
employees who were undergoing training, must be rejected since its witness
confirmed that the training ended in October 2021, however, the fixed- term contracts
were renewed thereafter, on a monthly basis, until May 2022.
[12] In their founding affidavit, the applicants reaffirm that their expectation was,
at all times, one of renewal, as opposed to being offered permanent employment. At
the conclusion of the applicant’s founding affidavit, it is alleged that a reasonable
arbitrator could have found that the individual applicants proved that the first
respondent created a reasonable expectation that their fixed-term contracts would be
renewed by the first respondent and order that the contracts ‘ should be so renewed
on month-to-month basis’.
[13] The applicants further contend that they were not informed (as alleged by
the first respondent) of the reason/s for the extensions of their fixed- term contracts,
at the time when the extensions were effected. They contend that there were no
discussions or explanations regarding the extensions.
First respondent’s submissions
[14] The first respondent contends that no material facts were ignored by the
third respondent which could have caused him to arrive at a different result, and that
third respondent which could have caused him to arrive at a different result, and that
the third respondent adequately addressed the questions raised for determination
during the proceedings and his ruling.
5
[15] Regarding the facts of the matter, the first respondent alleges that it was
necessary to employ the applicants on fixed- term contracts in order to man the arc
furnace in place (i.e. temporary substitution) of the first respondent’s permanent
employees. They contend that it was necessary to extend the fixed- term contracts
until such time as its permanent employees completed their induction training and
after the transition process from the arc furnace to the induction furnace was
concluded. According to the first respondent’s version, this process endured longer
than expected due to challenges including but not limited to the literacy levels of the
permanent employees and the availability of trainers.
[16] The first respondent contends that the applicants were aware of the fact that
their services were only needed until such time as the training and transition period
were finalised. They contend that the applicants were informed with every extension
of the reasons for the extension, which reasons remained the same throughout. The
first respondent contends further that there could not have been any reasonable
expectation that the fixed-term contracts would have been renewed ad infinitum.
[17] Accordingly, the first respondent argues that the applicants were not
dismissed, and their limited duration contracts merely came to an end.
Analysis
The applicable legal test
[18] At the outset, it is important to deal with the applicable legal test to this
review application. This is particularly necessary in light of the parties’ papers and
legal submissions (both written and verbal).
[19] In the matter of SA Rugby Players Association & others v SA Rugby (Pty)
Ltd & others
4 the Labour Appeal Court (LAC) held that:
‘[39] The issue that was before the commissioner was whether there had
been a dismissal or not. It is an issue that goes to the jurisdiction of the
4 ([2008] 9 BLLR 845 (LAC) at paras 39 – 41.
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CCMA. The significance of establishing whether there was a dismissal or not
is to determine whether the CCMA had jurisdiction to entertain the dispute. It
follows that if there was no dismissal, then the CCMA had no jurisdiction to
entertain the dispute in terms of section 191 of the Act.
[40] The CCMA is a creature of statute and is not a court of law. As a
general rule, it cannot decide its own jurisdiction. It can only make a ruling for
convenience. Whether it has jurisdiction or not in a particular matter is a
matter to be decided by the Labour Court…
[41] The question before the court a quo was whether on the facts of the
case a dismissal had taken place. The question was not whether the finding of
the commissioner that there had been a dismissal of the three players was
justifiable, rational or reasonable . The issue was simply whether objectively
speaking, the facts which would give the CCMA jurisdiction to entertain the
dispute existed. If such facts did not exist the CCMA had no jurisdiction
irrespective of its finding to the contrary.’ (own emphasis)
[20] In the matter of Enforce Security Group v Fikile & others ,
5 the LAC
considered the test to be used in circumstances where the issue to be determined
related to the existence of a dismissal. It held as follows:
‘The review test
The question whether there has been a dismissal goes to the jurisdiction of
the CCMA and the Labour Court to entertain the parties' dispute. A finding
that there was no dismissal means that the CCMA and subsequently the
Labour Court did not have jurisdiction to entertain the dispute. Such a finding,
as a matter of fact, has to be a correct finding. It cannot be a finding that falls
within a band of reasonable findings since there can only be one correct
finding. To the extent that the court a quo found that the award stands to be
reviewed and set aside as a decision which no reasonable decision maker
could have reached it misdirected itself because it applied a wrong test to
could have reached it misdirected itself because it applied a wrong test to
review the award of the commissioner.’ (own emphasis)
[21] Accordingly, the correctness test, and not the reasonableness test, is the
5 (2017) 38 ILJ 1041 (LAC) at para 16.
7
‘correct’ test to apply in this review application.
[22] Against the above, what then should this Court make of the fact that the
applicants have not clearly relied upon and/or applied the correctness test to their
review application, with reference to their founding affidavit and heads of argument?
[23] In the past, the Courts have penali sed applicants who referenced and/or
applied the incorrect legal test on review. However, it appears that this issue has
now been settled in terms of the recent judgment of Cape Peninsula University of
Technology v Kabengele & others
6 wherein the LAC held as follows:
‘[9] CPUT takes issue in this appeal, in the first instance, with Mr
Kabengele’s failure to plead that the arbitration award fell to be reviewed on
the grounds of correctness, pleading rather that the reasonableness test
applied. Mr Kabengele disputes this on the basis that, properly considered,
his pleadings can be read to include a review on the basis of correctness…
[10] The Constitutional Court in Booi v Amathole District Municipality and
others ("Booi") emphasised that labour litigation, as envisaged by the LRA, is
distinct from any other civil litigation, with the preamble of the LRA making it
clear that the Act seeks "to provide simple procedures for the resolution of
labour disputes . . ." The Court stressed that labour disputes must therefore
"not be perceived as ordinary civil disputes by the courts that adjudicate them.
Our law is clear: labour dispute resolution must be expedient, simple,
accessible and cost effective".
[11] In Union for Police Security and Corrections Organisation v South
African Custodial Management (Pty) Limited and others, the Constitutional
Court stated that, from a holistic reading of the LRA, it is apparent that its
dispute resolution mechanisms are intended to be "simple and accessible, so
that those to whom the labour rights enshrined in our Constitution are
that those to whom the labour rights enshrined in our Constitution are
conferred can vindicate those rights speedily and cost -effectively". The Court
cautioned, in the context of an award of legal costs, against shutting the doors
on litigants unduly and encouraged that an appropriate balance be struck in
labour matters between keeping the doors of dispute resolution "wide open for
6 (2024) 45 ILJ 1973 (LAC).
8
litigants to air their grievances" to allow those who seek to vindicate their
constitutionally entrenched labour rights in the specialist institutions created
by the LRA to do so.
[12] Despite the recognised distinctions which exist between labour and
other civil litigation, many of the same rules apply equally to both. A court is
bound to determine the pleaded case before it and a review court is not
permitted, as a general rule, to stray into the determination of issues which
have not been pleaded by the parties. It is only where the parties have
proceeded on an incorrect perception of the law that a court is obliged mero
motu to raise as much as it may where it is necessary to raise an issue to
dispose of the matter and it is in the interests of justice to do so.
[13] In NUMSA, the Labour Court refused a postponement and dismissed a
review application on the basis that the applicant was bound by its pleaded
case on review. The Court found that to allow the introduction of a new cause
of action after an extensive period had elapsed since the employees' claim
had arisen would defeat the purpose of expeditious dispute resolution. In SA
Post Office v Commission for Conciliation, Mediation and Arbitration and
others16 ("SA Post Office"), the Labour Court dismissed a review application
on a similar basis. Yet, in PSA obo Mackay and others v Department of the
Premier Western Cape and others17 ("PSA"), the Labour Court found that to
non-suit an applicant who had pleaded the wrong review test amounted to an
overly technical approach, out of kilter with the primary objects of the LRA,
when, in instituting the review application, the applicant had made it clear that
it considered the award to be wrong. The Court stated that implicit in the
allegation of unreasonableness was the fact that the applicant considered the
award to be wrong, given that unreasonableness amounted to a more
stringent threshold since an unreasonable award could not be correct. This
stringent threshold since an unreasonable award could not be correct. This
Court similarly, in Enforce Security and Jonsson Uniform Solutions,
determined an appeal on the basis of correctness, despite the fact that the
review had been pleaded on the basis of reasonableness.
[14] In the current matter, from a reading of the founding affidavit in the
review application it is apparent that although reasonableness was expressly
pleaded, Mr Kabengele also took issue with the correctness of the award. He
expressly challenged the commissioner's failure to appreciate and draw
9
conclusions from particular facts, detailing a number of instances in respect of
which the commissioner had erred.
[15] Although imprecisely pleaded, the Labour Court was therefore correct
in refusing to non- suit Mr Kabengele on the basis that he had not expressly
pleaded that the review of the award was sought on the basis of correctness.
This is so in that it was patently clear from the pleadings that Mr Kabengele
considered the award to be wrong and, unlike in NUMSA, he did not seek to
raise a new review ground which had not been pleaded for the first time at the
hearing of the review application. In suggesting that Mr Kabengele should be
non-suited on this basis, CPUT sought to raise what amounted to an
unmeritorious technical defence. Within the context of labour litigation, such
defences are to be viewed with caution by our courts and are not to be quickly
accepted given the constitutional right to fair labour practices, the nature of
labour disputes and the approach of the LRA to the resolution of such
disputes.’ (own emphasis)
[24] On the basis of the above authority, I find that similarly the benefit of the
doubt should be given to the applicants, in terms of which their pleadings may be
generously interpreted as contending that the third respondent’s Award was wrong.
In any event, even if this were not the case, in light of the constitutional right to fair
labour practices, the nature of labour disputes and the approach of the LRA to the
resolution of such disputes, in my view the review application should not be
dismissed on this r ather technical basis, with the result that the full merits of the
application must be considered.
Reasonable expectation
[25] Central to this review application is whether it can be said that the applicants
formed a reasonable expectation that t heir fixed -term contracts with the first
respondent would be renewed. As correctly pointed out by the applicants’
respondent would be renewed. As correctly pointed out by the applicants’
representative, this 'expectation' must be assessed as reasonable both subjectively
and objectively.
[26] It is trite that the previous renewals of a fixed-term contract do not, alone,
10
cause a reasonable expectation that such a contract will be renewed by the
employer. Indeed, something else and something more would be required for such
an expectation to be formed. Furthermore, where a fixed- term contract contains a
clause to the effect that the employee can have no expectation that the contract
would be renewed (as was the case in casu) the employee will be required to
provide more compelling proof than would otherwise be the case that the expectation
of renewal was reasonable.
[27] In this regard, clause one of the applicants’ fixed-term contracts all stated as
follows under the heading ‘Period of employment’:
‘… Should the company require your services further than the termination
date mentioned afore, a notice of not less than 10 days will be given.’
[28] As per the case of SA Rugby (Pty) Ltd v CCMA & others ,
7 the test for an
employee to rely successfully on section 186(1)(b) of the LRA, is as follows:
28.1 he must establish that , subjectively, he had an expectation of
continued employment (either in terms of another fixed term contract or
indefinitely);
28.2 that the expectation was objectively reasonable; and
28.3 that the employer did not renew the contract or renewed it on less
favourable terms.
[29] The first requirement in determining whether this form of dismissal has
occurred is whether the employee subjectively expected: the contract to be renewed.
If there is no such subjective expectation, the employee cannot claim to have been
dismissed in this sense, even if the circumstances were such that the expectation
could be judged reasonable.
[30] In the case of Member of the Executive Council for the Department of
Finance, Eastern Cape v De Milander,
8 the key issue was whether the employee had
in fact acquired a reasonable expectation. This called for two inquiries:
30.1 whether she had actually expected her contract to be renewed; and
7 [2006] 1 BLLR 27 (LC) at para 9.
8 (2011) 32 ILJ (LC).at para 29.
11
30.2 if so, whether that subjective expectation was reasonable.
[31] On appeal,9 the LAC held as follows:
‘[31] … In the circumstances, the letter of 30 September 2008 could not
have led the appellant, on any plausible basis to expect that her contract
would, upon its expiration, be renewed, upon its expiration, be renewed. Even
if it did, her expectation could not, given the correspondence, have been
genuinely or honestly held.
…
[35] I disagree with the appellant. The question whether the employer's
failure to renew the fixed-term contract of employment constitutes a dismissal
within the meaning of section 186(1)(b) is a legal one. In other words the
Commissioner hearing the matter is called upon to determine the conclusion
of law. It is therefore incumbent upon an employee who brings an unfair
dismissal dispute in terms of section 186(1)(b) to set out the material facts
upon which he relies for the conclusion of law he wishes the Commissioner to
draw from those facts and it will not be sufficient, therefore to plead a
conclusion of law without pleading the material facts giving rise to it. The mere
ipse dixit of an employee, without further evidence, is not sufficient. The
setting of this standard will prevent the opening of the floodgates for large
numbers of other cases involving claims based on section 186(1)(b).’
[32] The second requirement in determining whether this form of dismissal has
occurred is whether the employee’s claim that he/she expected: the contract to be
renewed or to be retained permanently, was reasonable in the objective sense, i .e.
whether the circumstances were such that any reasonable employee would, in the
circumstances, have expected the contract to be renewed on the same or similar
terms or to be retained permanently.
[33] In the case of SA Rugby Players’ Association & others v SA Rugby (Pty) Ltd
& others,
10 the LAC held as follows:
‘[51] Furthermore, Heymans acknowledged that the contracts would be
‘[51] Furthermore, Heymans acknowledged that the contracts would be
9 De Milander v Member of the Executive Council for the Department of Finance, Eastern Cape and
others (2013) 34 ILJ 1427 (LAC).
10 (2008) 29 ILJ 2218 (LAC) at para 51 and 52.
12
coming to an end by mutual agreement and proposed that the players should
remain on those contracts until such time that SA Rugby had communicated
with the players. This proposal was in my view a request for an extension of
the contracts that would expire and cannot be basis for a reasonable
expectation of renewal. Lastly, on this aspect, Heymans expressed the view
that players needed to know their future prospects in relation to their national
contracts. This was, as contended on behalf of respondent, evidence of
uncertainty and not of an expectation of renewal”
[52] In my view, a statement by the then national coach- Straueli that the
players were part of his plans for 2004 is not sufficient to form a basis for a
reasonable expectation…’ (own emphasis)
[34] In the case of Dierks v University of South Africa ,
11 this Court summarised
some of the factors which must be taken into consideration when determining
whether or not an employee has been dismissed in terms of section 186(1)(b) of the
LRA. The Court held as follows:
‘[132] In my view, it can be deduced from the aforegoing and the use of the
word "reasonable" that the Applicant as employee must prove that he had an
expectation of renewal and that that expectation was reasonable in that apart
from subjective say -so or perception there is an objective basis for the
creation of his expectation”.
[133] A number of criteria have been identified as considerations which have
influenced the findings of past judgments of the Industrial and Labour Appeal
Courts. These include an approach involving the evaluation of all the
surrounding circumstances, the significance or otherwise of the contractual
stipulation, agreements, undertakings by the employer, or practice or custom
in regard to renewal or reemployment, the availability of the post, the purpose
of or reason for concluding the fixed term contract, inconsistent conduct,
failure to give reasonable notice, and nature of the employer's business. (See
failure to give reasonable notice, and nature of the employer's business. (See
Olivier: supra at 1030).
[134] These factors are not a numerus clausus. Indeed, in my view, the
identified approach of an evaluation of all the surrounding circumstances
11 (1999) 20 ILJ 1227 (LC) at paras 132 to 134.
13
entails an analysis of the facts in any given situation for the purpose of
establishing whether a reasonable expectation has come into existence on an
objective basis.’’
[35] Against the above principles and authority, I now turn to the facts of this
case.
[36] It is not the applicants’ case that they expected to be employed on a
permanent basis, nor is it their case that they were offered positions on less
favourable terms. Their case turns on whether they held a reasonable expectation
that their contracts would be renewed.
[37] According to the applicants, their expectation was based, in the main, on the
following:
37.1 the large number of previous renewals of their contracts;
37.2 the manner in which their contracts were renewed, whereby they
would be requested to sign new fixed- term contracts (or extensions thereof) a
few days after the expiry of their existing or prior contracts;
37.3 the fact that the non-renewal of the applicants’ fixed- term contracts
was inconsistent and/or contradictory to the handling of other fixed- term
contracts of other employees (such as a Mr Smears, for example);
37.4 the work which the applicants were employed to perform is still
available and can still be performed. The Arc furnace was still running at the
time of their termination and it appeared would still run for some time, thereby
creating a need for their services. In addition, the applicants claimed that they
performed work on both the Arc furnace and Induction furnace; and
37.5 the training of the first respondent’s permanent employees (whom
the applicants supposedly replaced on a temporary basis) ended in October
2021, yet the applicants were retained until May 2022, in the form of repeated
renewals of their fixed term contracts.
[38] However, the above is countered by the following:
38.1 as dealt with supra, clause one of the applicants’ fixed- term
contracts provided a positive obligation on the first respondent to provide the
14
applicants with, at least, ten days’ notice ‘should the company require [their]
services further than the termination date mentioned afore’ . Accordingly, it
follows that the common cause failure on the part of the first respondent to
rigidly adhere to and follow this clause, would only detract from any
expectation, reasonable or otherwise;
38.2 evidence was led by the first respondent’s witness regarding a
document addressed to the NUMSA shop stewards, dated 1 April 2021,
wherein the names of the majority of the applicants is recorded together with
the following explanations:
‘Please note that the company has decided to acquire the services of former
employees on a temporary basis as contract workers.
The reason for this temporary arrangement is so that the contractors are able
to assist with the work on the Arc Furnace while our current employees are
undergoing training of the Induction Furnace.’
38.3 the applicants themselves provided the following telling evidence
during the arbitration, which speaks directly to their expectations as well as
the purported reasonableness thereof, or lack thereof:
‘MR NGXOLWANA: Is it then your expectation to go back to the fixed
term, to the terms and conditions of the fixed term contract, yes or not?
MR LENGOABALA: Yes.
MR NGXOLWANA: And if that is the case for how long?
MR LENGOABALA: I would not really much say for how long.
“MR NGXOLWANA: Now I am asking you, under those circumstances would
you be comfortable entering or be reinstated on a fixed term contract
indefinitely?
MR LENGOABALA: No that I will engage the company when I am inside. ’
(own emphasis)
38.4 it is common cause that the applicants’ t wo-month fixed-term
contracts and renewals reduced to one- month fixed-term contracts and
renewals; and
38.5 it must be said that one -month fixed-term contracts do not, by any
stretch of the imagination, provide any semblance of comfort or confidence in
a long- term employment relationship. Therefore, the short duration of the
a long- term employment relationship. Therefore, the short duration of the
fixed-term contracts in and of themselves significantly detract from any
15
reasonable expectations in casu.
[39] Ultimately, it is difficult to escape the evidence of the applicants themselves,
which speak to their subjective expectation as well as the reasonableness thereof.
[40] While it is certainly problematic that the training of the first respondent’s
permanent employees ended in Octob er 2021, coupled with the fact that the
applicants’ fixed- term contracts were repeatedly renewed (many times) until May
2022, this is, in my view, insufficient to render the third respondent’s award wrong.
[41] Finally, during argument, Mr Ngako (appearing for the applicants) sought to
alter the applicants’ relief from reinstatement to maximum compensation for their
alleged unfair dismissals. However, this is misplaced and puts the proverbial cart
before the horse. Although the original relief sought by the applicants – to be
reinstated to the terms and conditions of employment they enjoyed when allegedly
dismissed (i.e. back to a one- month fixed-term contract) – was impractical, altering
the relief does not cure the patent difficulties with the applicants’ case, more
specifically their expectations, which is more fully dealt with above.
[42] In conclusion, and for all the reasons provided above, I find that the third
respondent’s award was correct and it, therefore, is not susceptible to any successful
review or challenge.
Costs
[43] In relation to costs, the C ourt has a broad discretion in terms of section 162
of the LRA to make orders for costs according to the requirements of the law and
fairness. In my view, those requirements are best satisfied by each party bearing
their own costs.
[44] I make the following order:
Order
1. The applicants’ review application is dismissed;
16
2. No order as to costs.
A Anestidis
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicants: X Ngako
Instructed by: Ngako Attorneys
For the first respondent: J Stroebel
Instructed by: Wolmarans & Susan Inc