IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 1744/20
In the matter between:
WATERBERG DISTRICT MUNICIPALITY Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL First Respondent
COMMISSIONER SILAS RAMUSHOWANA N.O. Second Respondent
NKASHANE MOLEBOGENG MARIRI Third Respondent
BRIDGET LEBESE Fourth Respondent
ALFRED SEBELEBELE Fifth Respondent
Heard: 22 May 2025
Delivered: 01 October 2025
The judgment was handed down electronically by emailing a copy to the
parties. The 01
st of October 2025 is deemed to be the date of delivery of this
judgment.
2
JUDGMENT
NAVSA, AJ
Introduction
[1] The applicant (the Municipality) seeks an order reviewing and setting aside an
arbitration award issued on 8 October 2020 wherein the second respondent
(the arbitrator) found that the third to fifth respondents were employed as
control room operators by the Municipality.
[2] The arbitrator also found that the third to fifth respondents dismissals were
procedurally and substantively unfair and ordered the Municipality to reinstate
them. The arbitrator further ordered the Municipality to c ompensate each of
them in the amount of R 13 200.00, being the equivalent of four months’
salary.
[3] The third to fifth respondents opposed the application.
[4] The Municipality brought a condonation application for the late filing of its
replying affidavit in the review application, which was opposed by the third to
fifth respondents. At the hearing of this matter, Mr Jan St emmett (Stemmett),
who appeared on their behalf , indicated that his clients no longer persisted
with their opposition to the condonation application. It is accordingly in the
interests of justice that such condonation be granted.
Background
[5] The third to fifth respondents were initially appointed by the Municipality as
fire service reservists in terms of the Municipality’s Reservist Policy.
[6] The third respondent (Mariri) was appointed in Lephalale on 5 October 2015,
whereas the fourth respondent ( Lebese) and fifth respondent ( Sebelebele)
3
were appointed in Modimolle from 11 February 2015 and 29 October 2013,
respectively.
[7] Lebese and Sebelebele were paid a stipend of R 90.00 per day as fire service
reservists on the days they worked for the Municipality in that capacity.
[8] At some point, the third to fifth respondents started to perform duties as relief
workers in the Municipality’s control rooms at Lephalale and Modimolle and
were paid a stipend of R 150.00 a day on the days they worked for the
Municipality.
[9] On 13 March 2020, the third to fifth respondents were given notice by the
Municipality of their termination as a reservist service for control room
operators at the Municipality.
[10] The third to fifth respondents referred an unfair dismissal dispute to the first
respondent (SALGBC) , in which they indicated that the reason for their
dismissal was unknown. They sought reinstatement on a permanent basis.
Parties respective positions at arbitration
[11] The third to fifth respondents alleged that there had been a dismissal in terms
of section 186(1)(b) of the Labour Relations Act
1 (the LRA) in that their
continued employment by the Municipality , over several years, meant that
they were employed as relief workers for an indefinite period.
[12] The third to fifth respondents also submitted that they enjoyed the protection
afforded by section 198B of the LRA.
[13] The Municipality, although not from the outset, ultimately through its evidence
disputed that the third to fifth respondents were employees of the Municipality.
The arbitrator’s findings
[14] In the arbitration award the arbitrator understood the issue as being whether
the third to fifth respondents dismissals were procedurally and substantively
fair, and to award appropriate relief.
1 No. 66 of 1995, as amended.
4
[15] The arbitrator, in his analysis of the evidence and argument , recorded that the
parties agreed that there was a termination, but were at odds over the nature
of the termination, and what precisely the arbitrator was called upon to
determine.
[16] The arbitrator was mindful that the Municipality did not initially raise that the
third to fifth respondents were not its employees, but that the Municipality’s
position only became clear through its evidence led at arbitration.
[17] The Municipality , on a proper understanding of its case, disputed the
existence of an employment relationship with the third to fifth respondents.
[18] The Municipality contended that no employment relationship existed as the
third to fifth respondents contracts were null and void, and their termination
was fair.
[19] The third to fifth respondents, conversely, asserted that there was an
employment relationship, and that they had been dismissed by the
Municipality in terms of section 186(1)(b) as read with section 198D of the
LRA.
[20] The arbitrator clearly appreciated that , in the circumstances, it was important
to firstly deal with and determine whether or not there was an employment
relationship.
[21] The arbitrator in proceeding to address this question relied on the definition of
an employee as provided for in section 213, as read together with section
200A of the LRA, on the presumption as to who is an employee. The
arbitrator found that all the factors listed in terms of section 200A of the LRA
were present , and that the Municipality failed to rebut the third to fifth
respondents version.
[22] The arbitrator further found that the third to fifth respondents were dismissed
and that their dismissals were procedurally and substantively unfair.
5
[23] The arbitrator then proceeded to examine section 192 of the LRA, which
concerns the onus in dismissal disputes , and other relevant provisions of the
LRA.
[24] The arbitrator found that it was common cause that the third to fifth
respondents were on fixed term contracts which had been extended a few
times. The renewal , according to the arbitrator, took place in the form of a
memo which was approved by the relevant manager.
[25] With reference to section 186(1)(b) of the LRA , the arbitrator examined and
assessed relevant case law and found that a reasonable expectation had
been created, as the third to fifth respondents had been kept by the
Municipality for a very long period of time.
The Municipality’s review grounds
[26] The Municipality seeks a review of the arbitration award dated 08 October
2020, in terms of section 145 of the LRA on the basis of the Sidumo and
another v Rustenburg Platinum Mines Ltd and others
2 test.
[27] The Municipality submits that the arbitrator was duty bound to consider
whether the third to fifth respondents were able to discharge the onus to prove
the existence of a legitimate expectation of renewal of their contracts of
employment.
[28] The Municipality’s submission is that the arbitrator, on the facts, misconstrued
the evidence and failed to attach sufficient weight to the Municipality’s
evidence that the third to fifth respondents appointments were of a temporary
nature.
[29] The Municipality further asserts that the sole factor taken into consideration by
the arbitrator, being the length of tim e, for concluding that an expectation was
created meant that he failed to consider the totality of the evidence before him
and reached a conclusion that no reasonable decision maker could arrive at.
2 (2008) 28 ILJ 2405 (CC) ; (2007) 28 ILJ 2405 (CC).
6
[30] In its supplementary affidavit to the review application, the Municipality raised
additional review grounds, including that the arbitrator conflated termination of
service with dismissal.
[31] A further additional review ground raised by the Municipality was that the
arbitrator was firstly required to determine the question of whether a dismissal
had taken place, and that he had failed to do so.
[32] The Municipality contends that the arbitrator in framing the issue to be
decided as he did, namely whether the dismissals were procedurally and
substantively fair and the appropriate relief to be awarded, clearly shows that
he failed to properly understand and appreciate the issues that he had to
determine.
[33] Lastly, the Municipality submits that the arbitrator in determining that an
expectation of renewal, alternatively permanent employment was created by
the Municipality, failed to consider undisputed facts.
[34] These undisputed facts included (amongst them) that Sebelebele enjoyed
permanent employment elsewhere, that the Municipality had no vacancies for
the positions that the third to fifth respondent provided relief services for , that
the very nature of relief work is temporary , and Sebelebele’s own evidence
was that he was never ensured permanent employment.
Relevant legal principles
[35] The Municipality , at arbitration, contended that the third to fifth respondents
were not its employees , and that the SALGBC did not have jurisdiction to
determine the fairness of their dismissals.
[36] The arbitrator appreciated and understood that he had to first deal and
engage with the question as to whether the third to fifth respondents were
employees of the Municipality.
[37] If the arbitrator’s finding that the third to fifth respondents were employed as
control room operators is reviewable then that brings the matter to an end ,
7
without this Court needing to engage with the arbitrator’s findings on the
fairness of their dismissals.
[38] The arbitrator’s finding that the third to fifth respondents were employed as
control room operators is a jurisdictional finding . The application for review is
not to be evaluated against the test set out in Sidumo , but whether on the
facts the third to fifth respondents were employees of the Municipality.
[39] The test in reviewing a jurisdictional finding is simply whether the arbitrator
was right or wrong, and not whether his or her conclusion was reasonable as
set out in Sidumo. There are as the Honourable Van Niekerk J (as he then
was) aptly puts it, ‘no shade of reasonableness that enter the equation’.
3
[40] A jurisdictional finding is thus subject to review by the Labour Court on
objectively justifiable grounds . The test is whether, objectively speaking, the
facts which would give the SALGBC jurisdiction to entertain the dispute
existed i.e. that established that the third to fifth respondents were employees
of the Municipality.
4
[41] The Labour Court has stated that the arbitrator’s decision is of no real
consequence, as the Labour Court must decide the jurisdictional issue de
novo based on the record filed in the review proceedings.
5
[42] If the third to fifth respondents were not employed as control room operators
by the Municipality, then the SALGBC , being a creature of statute, would not
have the requisite jurisdiction to determine whether they were unfairly
dismissed.
Evaluation
3 Department of Public Works & another v Vukela & others (2022) 43 ILJ 2319 (LC) at paragraph 31;
See also SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others (2008) 29 ILJ 2218
(LAC) at paragraph 40.
4 City of Cape Town v SA Municipal Workers Union on behalf of Jacobs & others (2009) 30 ILJ 1983
(LAC) at paragraphs 27 – 28.
5 Uber SA Technology Services (Pty) Ltd v National Union of Public Service & Allied Workers & others
(2018) 39 ILJ 903 (LC) at paragraphs 63 – 64.
8
[43] The arbitrator , in the arbitration award, characterised the third to fifth
respondents case as an alleged unfair dismissal dispute in terms of section
186(1)(b) as read with section 198D of the LRA.
[44] The third to fifth respondents alleged that there had been a dismissal in terms
of section 186(1)(b) of the LRA in that their continued employment by the
Municipality, over several years, meant that they were employed as relief
workers for an indefinite period.
[45] From a reading of the record in the review application, t he third to fifth
respondents clearly disputed that they were employed in terms of fixed term
contracts. They submitted that if they were found to be employed in terms of
fixed term contracts (which they disputed) that they nonetheless enjoyed the
protections afforded by section 198B of the LRA.
[46] This is seemingly at odds with the arbitrator’s finding that it was common
cause between the parties that the third to fifth respondents were on fixed
term contracts that had been extended a few times.
[47] In Stellenbosch Municipality v SA local Government Bargaining Council v SA
Local Government Bargaining Council & others
6, the Labour Court
acknowledged that there had been acceptance by the Court that where a
dismissal dispute under section 186(1)( b)(ii) is linked to an employee’s status
as an indefinite employee under section 198B of the LRA, that it is proper to
take into account section 198B of the LRA.
[48] The Labour Court in Stellenbosch Municipality also noted that determining an
employee’s status under section 198B of the LRA is not a pre requisite for
determining the existence of a dismissal under section 186(1)(b)(ii) of the
LRA.
6 Stellenbosch Municipality v SA Local Government Bargaining Council & others (2023) 44 ILJ 388
(LC) at paragraph 19; See also Bata SA (Pty) Ltd & another v SA Clothing Textile Workers Union &
others (2024) 45 ILJ 1541 (LAC).
9
[49] The third to fifth respondents alleged that they were employed by the
Municipality as control room operators which the Municipality denied. The
onus was therefore on the third to fifth respondents to prove that they were
indeed employees of the Municipality as envisaged in the LRA.
[50] An employee is defined in section 213 of the LRA , and in terms of the LRA
definition an ‘employee’ means –
‘(a) any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled
to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or
conducting the business of an employer’.
[51] Section 200A of the LRA creates a rebuttable presumption in relation to who
an employee is, as defined in the LRA. Subsections (1) and (2) of section
200A read as follows:
‘(1) Until the contrary is proved, a person who works for, or renders
services to , any other person is presumed, regardless of the form of
the contract, to be an employee, if any one or more of the following
factors are present:
(a) the manner in which the person works is subject to the control or
direction of another person;
(b) the person’s hours of work are subject to the control or direction of
another person;
(c) in the case of a person who works for an organisation, the person
forms part of that organisation;
(d) the person has worked for that other person for an average of at
least 40 hours per month over the last three months;
(e) the person is economically dependent on the other person for
whom he or she works or renders services;
(f) the person is provided with tools of trade or work equipment by the
other person;
(g) or the person only works for or renders services to one person
10
(2) Subsection (1) does not apply to any person who earns in
excess of the amount determined by the Minister in terms of section
6(3) of the Basic Conditions of Employment Act.’
[52] The Code of Good Practice: Who is an Employee (The Code of Good
Practice) sets out some guidelines on the application of section 200A of the
LRA. To the extent relevant the Code of Good Practice provides the
following:
‘13 A person is presumed to be an employee if they are able to
establish that one of the seven listed factors is present in their
relationship with a person for whom they work or to whom they
render services…
16 The presumption applies regardless of the form of the contract .
Accordingly, a person applying the presumption must evaluate
evidence concerning the actual nature of the employment
relationship. The issue of the applicant’s employment status
cannot be determined merely by either the applicant’s
obligations as stipulated in the contract or a “label” attached to
the relationship in a contract. Therefore a statement in a
contract that the applicant is not an employee or is an
independent contractor must not be taken as conclusive proof of
the status of the applicant.
17 The fact that an applicant satisfies the requirements of the
presumption by establishing that one of the listed factors is
present in the relationship does not establish that the applicant
is an employee. However, the onus then falls on the “employer”
to lead evidence to prove that the applicant is not an employee
and that the relationship is in fact one of independent
contracting. If the respondent fails to lead satisfactory evidence,
the applicant must be held to be an employee.’
[53] The arbitrator found that all of the seven listed factors under section 200A of
the LRA were present between the Municipality and the third to fifth
respondents, and that the Municipality failed to rebut the third to fifth
respondents version.
respondents version.
[54] The arbitrator also found that the third to fifth respondents were on fixed term
contracts that had been extended a few times, and that these contracts were
11
being renewed in the form of a memo which was approved by the relevant
manager.
[55] The arbitrator appeared to assume that because he had found that the section
200A factors were present in the third to fifth respondents relationship with the
Municipality that section 200A and its presumption therefore automatically
applied.
[56] In Universal Church of the Kingdom of God v Myeni & Others 7, the Labour
Appeal Court found it necessary to first undertake a proper interpretation of
section 200A, and, second to determine whether on the facts of the case the
section applies. The Labour Appeal Court importantly held as follows:
‘To my mind, a proper interpretation of the words ‘regardless of the
form of contract’ in s 200A informs me that the existence of an
employment contract or any other contractual arrangement between
the disputing parties (regardless of the form thereof) is prerequisite for
s 200A to apply. Indeed, the portions of item 16 of the code of good
practice (which I have emphasised above ) appears to confirm this
view. In other words , some form of contract must be evident, which
need not be formal or in writing.’
[57] What the Labour Appeal Court stressed was that a proper interpretation of
section 200A of the LRA required, as a prerequisite for its application, some
form of contract to be evident
[58] In Universal Church of the Kingdom of God
8, the Labour Appeal Court
importantly emphasised that a proper construction of section 200A requires,
‘that there must be a legally enforceable agreement or some contractual
working arrangement in place between the parties for s 200A to apply.’
[59] The memo upon which the arbitrator placed reliance as indicating that the
third to fifth respondents were on fixed term contracts and that these contracts
were being renewed appears to be, from the record of the review application,
no more than a memo to appoint or deploy relief workers at the control room,
no more than a memo to appoint or deploy relief workers at the control room,
as and when the need arose to assist in that capacity on some shifts.
7 Universal Church of the Kingdom of God v Myeni & Others (2015) 36 ILJ 2832 (LAC) at paragraph
36.
8 Universal Church of the Kingdom of God v Myeni & Others (2015) 36 ILJ 2832 (LAC) at paragraph
40.
12
[60] The memo’s purpose, as is also evident from the record of the review
application, and, in particular, the transcript of the arbitration proceedings,
was to seek for relief workers to assist in the Municipality’s control rooms ,
when one of the permanent staff members in the control rooms were either on
annual leave, sick leave, maternity leave, family responsibility leave etc.
[61] The third to fifth respondents would then provide relief services only during
that short period of time, if they were available to do so, when permanent staff
members needed to be relieved.
[62] The memo was approved for a period of a year from July to June, for the
Municipality to be able to engage relief workers in the control room s as and
when the need arose for such assistance. They were only paid for the days
on which they actually worked as relief workers in the form of a stipend in the
amount of R 150.00.
[63] There is no supporting documentation in the form of letter s of appointment for
the third to fifth respondents or indeed of a fixed term contract that any of
them entered into with the Municipality. There is very little that the third to fifth
respondents are able to rely on, even from their own evidence at arbitration,
apart from the s 200A presumption.
[64] There simply does not appear from the evidence a legally enforceable
contractual transaction between the third to fifth respondents and the
Municipality, aimed at regulating their relationship.
[65] The objective facts in this case clearly show that neither the Municipality nor
the third to fifth respondents ever intended to enter into any legally binding
agreement with the other.
[66] In finding that there is an absence of an employment contract or contractual
arrangement between the Municipality and the third to fifth respondents it then
follows that section 200A of the LRA does not apply.
13
[67] On the facts of this case, I am satisfied that the relationship between the
Municipality and the third to fifth respondents was that of relief workers in the
Municipality’s control rooms only as and when the need arose.
[68] Neither the Municipality nor the third to fifth respondents intended that such a
relationship would constitute an employment relationship between them,
producing legally enforceable rights and obligations under the LRA.
[69] I hold, in this judgment, that the third to fifth respondents failed to make out a
case that they were employees of the Municipality as defined in section 213,
as read with section 200A of the LRA , at the time that their relief services with
the Municipality were terminated.
[70] On that basis the SALGBC did not possess the requisite jurisdiction to
entertain the dispute between the third to fifth respondents and the
Municipality.
Costs
[71] With reference to the issue of costs, this Court has a broad discretion to make
costs orders in accordance with the requirements of law and fairness.
[72] In my view, the interests of justice will best be served by making no order as
to costs.
[73] In the result, the following order is made:
Order
1. The late filing of the applicant’s replying affidavit in the review
application is condoned.
2. The arbitration award issued by the second respondent under case
number LPD 032009 dated 08 October 2020 is reviewed and set aside,
and is substiuted with an order in the following terms:
14
‘The SALGBC does not have the requisite jurisdiction to entertain this
dispute, by virtue of the absence of an employer and employee
relationship between the parties’
3. There is no order as to costs.
_______________________
ZM Navsa
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate R C Mathevula
Instructed by: Mohale Incorporated
For the Third to Fifth Respondents: Mr Jan Stemmett of Stemmett & Osman Inc