THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No.: JR 267/20
In the matter between:
STATE INFORMATION TECHNOLOGY AGENCY SOC LTD Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION (CCMA) First Respondent
DIALE NTSOANE N.O Second Respondent
ALEXANDER MACASKILL Third Respondent
Heard: 20 May 2025
Delivered: 23 June 2025
(This judgment was handed down electronically by emailing a copy to the
parties. The 23rd of June 2025 is deemed to be the date of delivery of this
judgment).
J U D G M E N T
MATYOLO, AJ
2
Introduction
[1] The applicant seeks an order reviewing and setting aside the arbitration
award that was issued by the second respondent under case number GATW:
14368-2018 on 22 November 2019. The applicant seeks that the arbitration
award be substituted with an order that the non- renewal of the third
respondent’s contract of employment did not constitute an unfair labour
practice and other ancillary relief.
[2] The matter which is opposed by the third Respondent, has a long and
protracted history none of which matters before this Court as all the issues
were resolved in the decisions of Moshoana J and Mokoena AJ.
[3] A brief overview of this matter reveals that the third respondent was employed
on a fixed term contract from 30 June 2009 in the capacity of Senior
Specialist: Architecture Professional. The applicant worked on IT projects at
Government departments. His fixed term contract of employment was
renewed several times until 31 March 2017 when the contract was not
renewed.
[4] The renewals were ordinarily preceded by a process wherein the third
respondent’s line manager would identify the need for further employment and
would write a motivation for the extension of the contract. That motivation
would be sent to the finance department for approval and once it was
approved by finance, it would be sent to the human resources department for
their approval. Ultimately, the motivation would be presented to the staffing
panel who had the final say of whether the contract would be renewed or not.
[5] The case of the third respondent was that he expected his contract to be
extended as he had been brought into big project s two months before his
contract was not renewed. The project he was brought into was a three- year
project.
[6] In his evidence during the arbitration proceedings, the third respondent stated
that during the period he waited for the renewal of the contract (which is
3
subject of this dispute), he checked with his line manager, Ms Jenny Naidoo,
on a weekly basis and Ms Naidoo was confident that the third respondent’s
contract would be renewed because she submitted a business case indicating
that there was a lot of work to be done in terms of IFAS.
[7] It is not disputed between the parties that t he recommendation for renewal
was signed by Ms Naidoo who was the third respondent’s line manager as
well as Ms Mariette Van Wyk, the Head of Department. The recommendation
was submitted to Mashudu Ramabao, from finance and Rambao also
recommended that the fixed term contract be extended or renewed.
[8] However, Ms Agnes Mamaregane from Human Capital Management
indicated that she was not recommending the extension stating that the third
respondent was misplaced in IFAS in view of the m acrostructure and that, the
third respondent in fact needed to be transferred to another department.
[9] The applicant took a decision to the effect that if the costs of employing the
applicant were not recoverable, the contract should not be extended.
Ultimately the third respondent’s fixed-term contract was not extended.
The arbitration proceedings
[10] The parties indicated to the commissioner that most issues including the fixed
term contracts and the antecedent renewals were common cause. They
indicated that the only issue for the commissioner to decide was whether
there was in fact a reasonable expectation of the extension of the contract.
[11] The evidence of the applicant was that he expected his contract to be
renewed and had been assured, by her line manager Ms Jenny Naidoo that it
would be renewed. The recommendation for renewal of the contract was also
signed by Ms Mariette Van Wyk, the Head of Department and Mr Mashudu
Ramabao, from the finance department.
[12] The of the respondent was that the previous extensions were based on
incorrect information being given to the panel . The motivations reflected that
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the costs of employing the third respondent were recoverable when in fact,
what was recovered was about seventeen percent of the costs of third
respondent’s employment.
[13] Furthermore, t he evidence was that the line managers submitted false
representations when they motivated for the extension of the third
respondent’s fixed term contracts. In fact, the motivation for the extension that
was rejected indicated that the third respondent worked on projects he never
really worked on and under cross -examination the third respondent confirmed
that he was allocated to some project, but the project never picked up. [W
[14] In the end the applicant (respondent in the arbitration) stated that the line
function submitted a business case and misled the staffing panel to believe
that the third respondent was being placed in external project s and that the
applicant would be able to recover the costs of employing him . This, so it as
stated, is what led to the extension of the third respondent’s contract until the
end of March 2013.
[15] In another instance when a business case that was submitted for the
extension of the third respondent’s contract was rejected, the third
respondent’s line manager submitted a second business case indicat ing that
the costs of employing the third respondent would be recovered.
[16] The third respondent confirmed that the project from which it was said his
costs were to be recovered from, ( SLIMS project), did not even get off the
blocks and that he never worked on Military Ombudsman which is one of the
projects his line management had indicated he was to recover from when
motivating for the extension.
[17] It was the evidence of the applicant that the finance department supported the
motivation for the extension on the basis that the costs of employing the third
respondent would be recovered. The line manager ’s motivation was that the
third respondent was so brilliant that he was going to generate about 74
third respondent was so brilliant that he was going to generate about 74
percent and that is the reason the finance people supported the extension.
5
The arbitration award
[18] The commissioner found that there was no doubt that the applicant expected
his contract to be to be renewed and stated that the expectation was of
course, reasonable. The commissioner also found that the respondent
(applicant herein) did not deny the fact that the line Manager created the
expectation of renewal when she had consult ed with the applicant about his
renewal and when she submitted the motivation for renewal.
[19] The Commissioner found further that the question of whether the money will
be recovered or not was not raised in the previous contract and it cannot be
entertained when the contract was up for renewal. In this regard, the
commissioner concluded that the argument that the position was not
generating income or the money spent was not recoverable cannot be a fair
reason for not renewing the contract because there is no evidence that the
applicant was engaged to generate money.
[20] Lastly, the commissioner found that the non- renewal of the applicant’s
contract on the basis of the reasons advanced by the respondent, that the
money spent on the applicant was not recoverable, constituted an unfair
labour practice as defined in section 186(1)(b) of the Labour Relations Act
1
(LRA). On that basis, the commissioner ordered that the applicant should pay
the third respondent compensation equal to four months’ salary.
Evaluation
[21] As a point of departure, section 186(1)(b) of the LRA defines dismissal as
meaning that:
“An employee employed in terms of a fixed term contract of employment
reasonably expected the employer (i) to renew a fixed term contract of
employment on the same or similar terms … or did not renew it.”
1 Act 66 of 1995, as amended.
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[22] The commissioner referring to the decision in University of Cape Town v Auf
der Heyde 2 stated that the test for reasonable expectation is two- fold; firstly,
the question is whether the employee actually expected the contract to be
renewed and secondly, whether the expectation was reasonable.
[23] Despite finding that the enquiry ought to be two- fold, the commissioner
without providing any basis, stated that, “In casu there is no doubt that the
applicant (third respondent herein) expected his contract to be renewed, and
the expectation was of cause, reasonable”.
[24] The commissioner stated further that, the respondent did not deny that the
line Manager, Jenny Naidoo, created an expectation of renewal when she had
the consultation with the applicant about his renewal and when she submitted
motivation for renewal. This finding by the commissioner ignores the fact that,
the third respondent knew that his line manager could only motivate for the
extension and the extension could only be approved by the staffing panel.
[25] The third respondent confirm ed that before any extension, his line manager
would identify a need for extending the fixed term contract for a certain period.
On this basis alone, the extension was depended on an identification of a
need. Secondly, the third respondent confirmed his knowledge that his line
manager could not be the repository of a legitimate promise and could only
motivate for an extension. This was made clear by the third respondent
himself when he testified that during the period in which he waited for the
outcome of the motivation he contacted the line manager on a weekly basis.
[26] The commissioner found further that the recoverability of money was not
raised in previous contracts, and it could not be entertained when the contract
was up for renewal. This finding is not in line with the evidence that was led
during the arbitration proceedings. The evidence was that the recoverability of
during the arbitration proceedings. The evidence was that the recoverability of
the money spent on the third respondent was always an issue. The applicant
confirmed that when one motivation failed, her line manager put another
motivation which indicated that his costs would be recovered. I t was precisely
2 [2001] 12 BLLR 1316 (LAC).
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because of this recoverability that the line manager had to make a second
motivation in which she indicated that the employment costs of the third
respondent would be recoverable. In fact, on this very point, the commissioner
acknowledged that the applicant was leading evidence to show that that the
earlier extensions ought not to have been granted because of the non-
recovery.
[27] Under cross -examination, the third respondent confirmed that the applicant
was supposed to recover his placement at IFMS. The third respondent also
confirmed that he was allocated to the project SLIMS, but the project never
picked up.
[28] I find that the findings of the commissioner are not supported by the evidence
and are unreasonable. It is not clear why the applicant ought to have
continued to renew the third respondent’s contract in circumstances where the
costs of the third respondent’s employment could not be recovered. T he
evidence was that the earlier renewals on which the third respondent sought
to rely were in fact improperly obtained because of misrepresentation on the
motivations and on the basis that the costs were recoverable.
[29] In SA Rugby (Pty) Ltd v CCMA and others
3 this Court held inter alia that for
the employee’s expectation to be reasonable there must be an objective basis
for the creation of his expectation, apart from the subjective say so or
perception. In this matter, without any evidence and without providing any
analysis to justify such a finding the commissioner found that, “ of cause the
expectation was reasonable”.
[30] The renewed contracts that the third respondent seeks to rely on contained
terms that were emphatic in discouraging the third respondent from believing
that the contract would be renewed. In Jones v Commission for Conciliation
Mediation and Arbitration and Others
4 this Court held inter alia that:
3 [2006] 1 BLLR 27 (LC).
4 (C709/2018) [2021] ZALCCT 10 (6 January 2021) at para 20.
8
‘Where the terms of the contract are so emphatic in discouraging an
employee to hope for a renewal, the employee must adduce cogent evidence
to show that, notwithstanding such bleak terminology, the expectation of a
renewal when the contract ended was both subjectively held and objectively
justifiable”.
[31] Before this Court, not only were the terms of the contract determinative but
the previous extensions/ renewals were based on misrepresentation.
[32] In considering all the above, I find that the evidence of the third respondent
does not establish a proper basis on a balance of probabilities that his
expectation of the renewal of his contract was reasonable, even if it be correct
that subjectively he had such an expectation.
[33] In this regard, on the evidence before the commissioner, the third respondent,
failed to discharge the onus that he was dismissed within the meaning of
section 186(1)(b) of the LRA.
Costs
[34] Whilst, the third respondent must have known that the renewals were based
on the motivations, there was no evidence of his involvement in the
preparations of the motivations that misrepresented the true facts about the
true value of his employment to the applicant. On that basis, I am of the view
that the interest of justice will be better served if no costs order is made.
[35] Accordingly, the following order is made:
Order
1. The application is granted.
2. The arbitration award is substituted with an order that the third
respondent was not dismissed.
3. The non-renewal of the third respondent’s contract did not constitute an
Unfair Labour Practice
9
4. There is no order as to costs
_______________________
X. Matyolo AJ
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicants : Adv Lebogang Sifudi
Instructed by : Mampeule Attorneys
For the Respondents : Adv Dirk Groenewald
Instructed by : Serfontein, Viljoen& Swart Attorneys