THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not Reportable
Case No: PR163/21
In the matter between:
MONWABISI MICHAEL GUWA Applicant
and
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL (GPSSBC) First Respondent
MOPP, JR N.O. Second Respondent
DEPARTMENT OF HUMAN SETTLEMENT Third Respondent
Heard: 22 October 2025
Delivered: 24 October 2025
Summary: Review of jurisdictional ruling – test applicable to review of jurisdictional
ruling reiterated - Employee v independent contractor – test applicable to enquiry –
applicant earning more than the threshold determined by the Minister in terms of s 6(5)
of the BCEA – s 200A and s 83A not applicable - Court to respect wishes of the parties
– applicant failed to establish employment relationship – review application dismissed
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This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date of hand down is deemed to be 24 October
2025.
JUDGMENT
MAKHURA, J
[1] On 12 and 18 October 2011, the applicant and the Department of Human
Settlement: Eastern Cape (Department), respectively signed a Service Level
Agreement (SLA) in terms of which the applicant was appointed as a Technical
Coordinator for Emergency Housing Programs, for a period of two years from 1
August 2011 to 31 July 2013
1, at R795 000.00 per annum , excluding
disbursements. The applicant was contracted t o work Mondays to Fridays , and
each day was deemed eight hours , from 8h00 to 16h30. He w as entitled to
additional remuneration for work that fell outside the scope of the agreement.
[2] In terms of the SLA, the applicant , in his capacity as the Technical Coordinator,
was expected to provide professional services and expertise to the Department’s
emergency housing programs . The SLA incorporated a skills transfer plan. He
reported to the Director: Emergency Housing Program (Director) and was
required to comply with all reasonable instructions and directions issued by the
Director. The deliverables were defined in the SLA. The applicant was required to
submit a duly certi fied claim or fee invoice every month, for the services
performed during the month, and the Department committed to pay him within
the same month of submitting the invoice. He reported to the Director:
Emergency Housing Program and the Department provided him with a desktop
and office line, internet connection and cellphone allowance. In keeping with the
1 Although the SLA stipulates the period as 1 August 2011 to 31 July 2013, the letter of appoi ntment
issued on 28 August 2011 stated that his appointment takes effect from 1 October 2011 to 31 September
2013. The applicant was advised to contact the Supply Chain Management unit to sign the acceptance
and the SLA.
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agreement, the applicant submitted monthly invoices , which were checked,
verified and paid for by the Department . This SLA was renewed on several
occasions, and the last renewal expired on 30 June 2017.
[3] On 4 and 7 May 2018, the applicant and the Department respectively signed a
new SLA. This time, the applicant was appointed as a Community Support
Professional for a period of 36 months, starting from 1 May 2018 to 30 April
2021. The applicant was engaged as a service provider at R2 560.00 per day
and was required to provide the services for a maximum of 15 days per month.
The applicant was required to submit a payment claim or fee invoice monthly on
or before the seventh day of the month, reflecting the value of the portion of the
service rendered or performed. The D epartment committed to paying the invoice
within 30 days of receipt thereof. The applicant report ed to the Head of
Department (HoD) and was expected to c omply with all reasonable instructions
and directions from the HoD.
[4] On or about 4 March 2019, the applicant , represented by his attorneys of record,
completed a referral form to the f irst respondent (GPSSBC). The nature of the
dispute referred to the GPSSBC was “failure to re- instate in terms of an
agreement”. He stated in the referral form that he was appointed as a Technical
Coordinator on 1 September 2011 for a period of two years, and that:
‘The post was for service professional, not a company , envisaging that the
successful candidate would be a professional employee…
After the expiry of two years , a series of thirteen extensions for him to perform
same work with less benefits.
Mr Guwa has since continuously engaged with the senior officials regarding the
rolling over of his contracts.’
[5] As part of the special features of the dispute, the applicant stated that the matter
should be processed urgently because he was “ forced to retrench ” some of his
people that he contracted to assist him due to the “ unlawful reduction of his
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salary payout”. He stated further that he renewed his contract “on less favourable
terms” which affected his “subcontracted employees” . The outcome required
from the GPSSBC was:
‘Contract renewed to five (5) times
Salary not reduced at all and rolling over of continuous required.’
[6] In simple terms, the applicant wanted the SLA to be renewed for five years, from
1 May 2018 to 30 April 2023, on the same “salary” or payment and a guarantee
that the SLA would be continuously renewed. The Department raised a
jurisdictional point. It submitted that the applicant was not an employee.
[7] The applicant bore the onus of proof. He testified that when he was appointed,
he was required to submit his curriculum vitae, that the only distinction between
him and the employees of the Department is that he was paid through a system
named B asic Accounting System (BAS) and that he signed the SLAs for the
purpose of having his money released for the work he had performed. He further
relied on an internal legal opinion that effectively recommended, based on the
number of times his SLA was renewed, that his contract be for a period of five
years.
[8] The Department argued that based on the terms of the SLA, the services
rendered, the payment method and the budget which did not come from salaries ,
the allocation of tools of trade and remedy for resolving any disputes emanating
from the contractual relationship, the applicant is not an employee.
[9] The commissioner considered that the applicant was engaged in terms of a SLA
and not a contract of employment, that he was remunerated via a BAS payment
system and did not have a PERSAL number, he was paid based on the invoices
he submitted monthly and had no payslip, that he was not subjected to
performance agreement and his appointment was not in terms of the recruitment
and interview process. The commissioner concluded that the law of contract
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applies to the relationship between the applicant and the Department , that the
applicant was not an employee, and his remedies may lie in the High Court.
[10] Aggrieved, the applicant approached this Court to review and set aside the
ruling. He also seeks costs. He raised two grounds of review. First, he submits
that the commissioner misapplied the law and second, that he failed to properly
analyse the facts and apply the correct legal principles. The complaint amounts
to the commissioner’s failure to apply the correct legal principles to the facts of
the case and the failure to properly analyse the facts. These grounds are
intertwined and dealt with below.
[11] Before dealing with the review application, the applicant applied for reinstatement
of the review application. The reinstatement application is unopposed. I have
considered the application for reinstatement and decided, in the interest of
justice, to grant . Although the Department did not appear on the date of the
hearing nor file heads of argument , it had filed an answering affidavit opposing
the review application. Accordingly, the review application is determined on the
opposed basis.
[12] The applicant complains that although the commissioner referred to the correct
applicable test of the dominant impression, he misapplied it to the facts. Further,
the commissioner is accused of failing to consider the requirements in section
200A of the Labour Relations Act
2 (LRA) and section 83A of the Basic Conditions
of Employment Act3 (BCEA).
[13] The review test applicable to the present matter is that set out in SA Rugby
Players Association & others v SA Rugby (Pty) Ltd & others 4. The jurisdictional
ruling may be reviewed on objectively justifiable grounds , and the question is
whether there are facts that give the GPSSBC the jurisdiction to entertain and
2 Act 66 of 1995, as amended.
3 Act 75 of 1997.
4 (2008) 29 ILJ 2218 (LAC); [2008] ZALAC 3 at paras 39 – 41.
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arbitrate the dispute .5 Absence these facts, the GPSSBC would lack the
jurisdiction to entertain the dispute. This Court is therefore not concerned with the
reasonableness of the award.
[14] The nature of the dispute, which the applicant indicated is a failure to reinstate in
terms of any agreement, is regulated in terms of section 186(2)(c) of the LRA.
This section defines unfair labour practice to mean any unfair act or omission that
arises between the employer and the employee involving “a failure or refusal by
an employer to reinstate or re- employ a former employee in terms of any
agreement”. To enjoy these LRA benefits and protections , the applicant had to
establish that he was an employee. The commissioner found that he was not. He
must now persuade this Court on review that the commissioner ’s decision was
wrong. He relies on the presumption in section 200A of the LRA and section 83A
of the BCEA, the commissioner’s alleged failure to apply the presumption and the
commissioner’s failure to analyse the facts and correctly apply the dominant
impression test to the facts.
[15] Section 200A deals with the presumption as to who is an employee, and
subsection (1) set out the presumptions.
6 However, subsection (2) states that the
presumption does not apply to any person who earns in excess of the amount
5 Ibid; see also Zeuna – Starker BOP (Pty) Ltd v NUMSA [1998] 11 BLLR 1110 (LAC); (1999) 20 ILJ 108
(LAC) at para 6; De Milander v MEC for the Department Finance: Eastern Cape and Others [2012]
ZALAC 37; (2013) 34 ILJ 1427 (LAC) at paras 2 and 23; South African Municipal Workers Union obo
Manentza v Ngwathe Local Municipality and Others [2015] ZALAC 26; [2015] 9 BLLR 894 (LAC) at para
20; Ukweza Holdings (Pty) Ltd v Nyondo NO & others (2020) 41 ILJ 1354 (LAC); [2020] ZALAC 7 at para
12.
6 Section 200A provides that:
‘(1) Until the contrary is proved, for the purposes of this Act, any employment law and section 98A
of the Insolvency Act, 1936 (Act No. 24 of 1936), 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; or
(g) the person only works for or renders services to one person.’
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determined by the Minister in terms of section 6(3) of the BCEA. At the time the
dispute arose, which the applicant alleged was on 7 November 2018, the Minister
had determined that section 200A did not apply to a person who works for or
renders services for another earning in excess of R205 433.30 per annum.
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Section 83A of the BCEA sets out the same requirements for the presumption.
These two provisions do not apply because the applicant earned in excess of the
amount determined by the Minister.
[16] Section 213 defines an employee to mean:
‘(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.’
[17] Whether or not the person who works for another is an employee or an
independent contractor is to be determined primarily on the terms of the contract
concluded between the parties. 8 The Labour Appeal Court (LAC) in SA
Broadcasting Corporation v McKenzie (McKenzie) held that the Court must focus
on the substance of the relationship, the “realities of the relationship” and not the
form or what the parties opted to label their relationship.9
[18] In Vermooten v Department of Public Enterprises and others10 (Vermooten), the
LAC commented as follows regarding the legal position, the nature of
employment in the public sector and the legal obligation on the state departments
as contracting parties:
7 GN 531 of 1 July 2014: Determination: Earnings Threshold (Government Gazette No. 37795).
8 Niselow v Liberty Life Insurance Association of Africa Ltd (1998) 19 ILJ 752 (SCA) at 754C; Denel (Pty)
Ltd v Gerber (2005) 26 ILJ 1256 (LAC) ; [2005] 9 BLLR 849 (LAC) at para 93; SA Broadcasting
Corporation v McKenzie [1998] ZALAC 13; (1999) 20 ILJ 585 (LAC) ; at para 10; State Information
Technology Agency (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others [2008]
ZALAC 1; (2008) 29 ILJ 2234 (LAC) at para 10.
9 Ibid, fn 7 above.
10 [2017] 6 BLLR 606 (LAC); (2017) 38 ILJ 607 (LAC).
8
‘Mr Gerber referred to the various tests, which had been adopted by the courts of
law in order to determine whether a person is an employee, including the
dominant impression test, the organisational test and the economic dependency
test as outlined in the Denel decision. The Denel judgment was in turn, adopted
by this court in State Information Technology Agency (Pty) Ltd v C CMA and
others. The weakness in the economic dependency test, which describes itself
as a reality test, is that it does not pay attention to all the facts including the
contractual relationship between the parties. But this test needs not be applied
where the person in question is , in reality, an independent contractor, then he or
she is not an employee as defined by the LRA.
In Chirwa v Transnet Ltd and others, Ngcobo J (as he then was) quoted the
Explanatory Memorandum to the LRA that:
“The political dimension of the state as employer, more particularly the
fact that its revenue is sourced from taxation and that it is accountable to
the Legislature, gives rise to unique and distinctive characteristics of state
employment. For example, the state can invoke legislation to achieve its
purposes as employer and its levels of staffing, remuneration and other
matters are often the product of political and not commercial
considerations. This uniqueness does not, however, justify a separate
legal framework.”
Unlike the private sector, a State department such as the DPE may not
remunerate employees as it sees fit. The doctrine of legality and legislation
dictate that only the remuneration that is prescribed, from time to time, may be
paid. The PERSAL used by the civil service is based on and reflects the
authorised remuneration payable to a civil servant on a specific rank.
Remuneration bands are linked to the ranks within a State department. A civil
servant may only be remunerated through the PERSAL system. PERSAL also
functions as a means of ensuring that State departments abide by the law as
functions as a means of ensuring that State departments abide by the law as
regard remuneration of their officials.’
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11 Ibid, at paras 18 – 20.
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[19] Vermooten had opted for a consultancy agreement, which offered him higher
remuneration compared to an option to be an employee. The Department of
Public Enterprises (DPE) was desirous to engage him because of his specialised
knowledge and expertise. It accepted his suggestion and appointed him as a
consultant. The LAC dealt with the motive for the consultancy agreement , which
it found to be valid. It found that although the agreement was entered into to
avoid the limitations of the remuneration prescribed for the post, this was not an
“illegal purpose”.12
[20] In response to Vermooten’s argument that his employment need not be linked to
the organisational structure and that he could simply be declared an employee,
the LAC held that whilst that approach may apply in different circumstances, the
state department may not have a floating employee without a rank and a
prescribed remuneration level. 13 The LAC concluded that Vermooten made a
conscious and deliberate election to structure his relationship with the DPE as
one of consultancy, and that:
14
‘… in the absence of any overriding policy considerations, neither a tribunal nor a
court may ignore its terms. Where the parties are in a relatively equal bargaining
position and consciously elect one contract or relationship over another, the legal
effect should be given to their choice. To allow one of these parties to change or
contend that the legal relationship between them is something else holds
important implications for the integrity of the legal framework of departments of
State.’
[21] In his referral form to the GPSSBC, the applicant stated that he holds the position
of director. However, he reported to the Director , which becomes an anomaly if it
is to be accepted that he was employed a s a director. It was not the applicant’s
case that the position of Technical Coor dinator on the Department’s structure.
For the Technical Coordinator contract, the payment was at the level of a
For the Technical Coordinator contract, the payment was at the level of a
director. However, the dispute, which according to the applicant arose on 7
12 Ibid, at para 23.
13 Ibid, at para 24.
14 Ibid, at paras 25 – 26.
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November 2018, arose during the period he was appointed as a Community
Support Professional. Having agreed to provide services as a Community
Support Professional for 15 hours per month, he now claims that he is employed
as a director in terms of the consultancy agreement which commenced on 1
August 2011, and that the Department had committed an unfair labour practice
by reducing his “salary” and he seeks reinstatement of his contract as a
Technical Coordinator.
[22] On the record before this Court, t he Technical Coordinator consultancy
agreement lapsed at the end of June 2017. To the extent that he seeks to be
declared an employee in that position, that contract had lapsed more than a year
before the date of the alleged dispute. He cannot claim that he continued to work
in that position beyond 30 June 2017. His appointment as a Community Service
Professional from May 2018 was not a renewal and/or extension of the contract
that lapsed over 10 months ago in June 2017. That should mark the end of the
enquiry.
[23] Regardless, for nine years, the applicant was satisfied with the arrangement.
There is no evidence of any complaint against the arrangement. He did not work
for the period July 2017 to the end of April 2018. He was then appointed as a
Community Support Professional in May 2018. Almost a year later , on 4 March
2019, he referred this dispute, claiming to be employed in terms of the
consultancy agreement that lapsed 21 months prior.
[24] Although he was engaged to work Mondays to Fridays and a day was presumed
to be eight hours, nothing barred him from gaining employment elsewhere or
providing his professional services to other entities or departments . Therefore,
whether he worked exclusively for the Department and may have been
economically dependent on the Department , which was not his argument
anyway, is of no significance because he was not prohibited from undertaking
work or activities that could generate other income. He had no obligation to
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inform the Department about his services should he be engaged by another
client.
[25] In his own version, the applicant had “ subcontracted” part of his work, or he had
employed certain individuals to assist him in carrying out the service he was
contracted for by the Department and was allegedly forced to retrench them due
to the reduced contract price. Unlike consultants, employees , particularly at the
director level, sign performance agreements . That the applicant could
subcontract the work without the discussion and permission of the Department is
a clear indication of the relationship being of a consultancy or an independent
contractor.
[26] The applicant reported to and was expected to com ply with the reasonable
instructions and directions from the Director . This is a feature that is common in
both employment and consultancy contracts. I cannot imagine a contract where a
service provider is not expected to report to the client, nor can I imagine a
contract where the service provider is not expected to comply with the client’s
reasonable instructions and directions . The significance of this factor is
diminished in this matter. Indeed, the applicant did not seriously rely on it.
[27] The applicant was paid upon submission of the invoice. The invoice had to be
certified by the Department. In other words, the Department had to check and
verify that the applicant had performed the work. The invoice would be processed
like all other service providers before payment is effected. He did not contribute
to the Unemployment Insurance Fund, nor did he pay Pay -As-You-Earn to the
South African Revenue Ser vices. He was not a member of any medical aid
scheme or provident fund. He was not subject to the policies of the Department ,
including the leave poli cy and the disciplinary code. The SLA embodied its own
dispute resolution procedure, which had nothing to do with the labour laws.
[28] Having considered the terms of the SLA and the relationship between the parties,
[28] Having considered the terms of the SLA and the relationship between the parties,
I am unable to find any single and unique feature in the relationship between the
parties that is exclusively found in an employer and employee relationship. Their
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agreement was a commercial transaction, and this Court should not disrespect
the parties’ wishes, particularly in circumstances where they were in a relatively
balanced bargaining power. This Court should be slow to interfere in the decision
of the parties and change the nature of their chosen legal relationship. The
commissioner’s ruling is correct. The review application stands to be dismiss ed,
with no order as to costs.
[29] In the premises, the following order is made:
Order
1. The late deliver y of the record is condoned, and the review application is
reinstated.
2. The review application is dismissed with no order as to costs.
____________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr X. Mvuthuza
Instructed by: Madokwe Incorporated
For the Third Respondent: No Appearance