THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR08/23
In the matter between:
PUBLIC SERVANTS’ASSOCIATION Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION First Respondent
COMMISSIONER TSHEPO MASHIGO N.O Second Respondent
MAXWELL TSHEKISO SEBATI Third Respondent
Heard: 24 June 2025
Delivered: 04 December 2025
Summary: The employer alleges no employment contract /relationship
existed. Employer claims that the appointment was irregular
because it failed to follow its own Recruitment Policies in
appointing the third respondent. Therefore, the employer self -
rescinded the alleged irregular appointment after the employee
reported for duty. The commissioner found dismissal was
substantially and procedurally unfair – reinstatement with five
months backpay. Review test restated – commissioner made a
reasonable decision - review application dismissed.
2
JUDGMENT
MOSIKILI, AJ
Introduction
[1] The applicant seeks, in terms of section 145 of the Labour Relations Act1 (“the
LRA”) to review, correct and/set aside the award of the Commission for
Conciliation, Mediation & Arbitration “ CCMA” (per Second Respondent) dated
19 December 2022 under case number GATW9753-22.
[2] The applicant, Public Servants ’ Association of South Africa – PSA, strongly
contends that the second respondent:
2.1 rendered an unreasonable arbitration award;
2.2 misapplied his mind to the relevant law and facts;
Background Facts
[3] The material facts appear from the award and do not warrant repet ition in this
judgment. Suffice to record that:
[4] In April 2022, PSA advertised a post of Deputy General Manager : Members
Affairs (“DGM”). The person responsible for the appointment of this position ,
in accordance with the PSA Recruitment and Selection Policy and the
Procurement Policy, was the General Manager (then Mr Marcus Ramakgale).
The third respondent, “ Mr Sebati ” applied for the aforementioned post of
DGM.
[5] On 19 May 2022, during a PSA Board meeting, the Board decided to call in
the General Manager to attend the same meeting “ to apprise” them on the
recruitment process he was embarking on to fill the position of the DGM. The
1 No. 66 of 1995, as amended
3
General Manager attended the said Board meeting and duly apprised the
Board on the recruitment process of the DGM.
[6] Mr Sebati, as part of the PSA B oard, was present at the said meeting.
However, because he had applied/ intended to apply for the post of DGM - he
together with other B oard members with a similar interest in applying/ who
applied for the post of DGM, recused themselves from the said meeting.
Whether Mr Sebati’s recusal at the meeting was timeous or not is of no
moment for the purpose of this judgment.
[7] Notably, at the said Board meeting, after hearing from the General Manager ,
the Board did not take any resolution regarding the post. I pause to state that,
had the Board held some reservations with regard to the process followed by
the General Manager in the recruitment process of the DGM post, this was an
opportune moment to intervene( to an extent that they had powers to do so).
[8] Furthermore, on 20 May 2022, through a round robin resolution, the B oard
decided to suspend the post of DGMA. This resolution, in the form of a letter ,
was directed to the General Manager to implement2.
[9] In response to the said Board “resolution”, the General Manager responded
in an email as follows:
“This mail is to inform you that the panel and service providers had on
18 May 2022 met and resolved to schedule the interview for the
position of the Deputy General Manager as follows:
Date: 31 May 2022.
Hope you find the above in order
…”
[10] In essence, notwithstanding the Board resolution, the General Manager
decided to continue with the recruitment process. Subsequently, Mr Sebati
attended the interview as scheduled and was ultimately informed to be a
2Record, “Annexure LM 8”, record, page 93
4
successful candidate. On 01 June 2022, Mr Sebati was presented with an
Appointment Letter: DGM, to which Mr Sebati accepted.
[11] On 08 June 2022, Mr Sebati presented himself for work at PSA as the newly
appointed DGM. On the same day, he was provided with tools of trade, which
included, inter alia:
11.1 an office space and was introduced to his personal assistant;
11.2 he signed various documents , including; personal information form , a
written acceptance and consent utilisation, an acknowledgement of
receipt of job description and the PSA Private Policy and Confidentiality ;
and
11.3 he was provided with an access card to the workplace;
[12] In a rather strange turn of events, on 08 June 2022, while Mr S ebati was still
in an induction process as the newly appointed DGM, the Vice President of
the PSA Board attended to the PSA offices and instructed Mr Sebati to leave
the premises, as he was not an employee of PSA.
[13] On 09 June 2022, PSA issued a letter to Mr Sebati titled “DGM:MA
APPOINTMENT RESCINDED”3; but the letter was received by Mr Sebati on
17 June 2022 whereby PSA ultimately stated that his appointment, albeit, for
different reasons, wa s “ …irregular and has to be put aside with immediate
effect…”.
[14] From the above facts , it can be gleaned that no other process nor procedure
was followed by PSA in rescinding Mr Sebati’s appointment. PSA acted in this
manner because it held a view that Mr S ebati’s appointment was irregular for
failure to comply with the PSA Statute and Policies, or so the argument went.
The Award
[15] Having considered, inter alia, the facts enlisted above and the parties'
argument, the second respondent approached the dispute as a matter of
3 Record, annexure LM 17, page 106
5
interpretation on whether, on all facts considered, Mr Sebati was an employee
of PSA – DGM. In doing so, he considered whether a valid contract of
employment /relationship existed between the parties. Even having accepted,
for a moment at least, at paragraph 46 of the award that:
[46] “Assuming that the process was wrong, which in my view was not,
there is nowhere the applicant was involved. He did all he was required
of him, and he was given an offer of employment, an offer which he
accepted. At that time the employment relationship between the parties
existed. A contract is said to be perfected (completed) when the
employer has made an offer and the employee has accepted the offer.
In Wyeth SA (PTY) Ltd v Maqhele and others [2005] 26 ILJ 749 (LAC),
it was held that the definition of Employee in section 213 of the LRA
can be read to include a person or persons who has /have concluded a
contract of employment of which the commencement of employment is
deferred to a future date. In the current case, there is no denying the
fact that the applicant and the respondent had concluded a contract of
employment and the applicant was to commence with his duties on 08
June 2022”.
[16] That being the case, the second respondent determined that Mr Sebati had
been an employee of PSA: DGM. Having done so, the next logical conclusion
was that the so -called “Rescission Letter” constituted a dismissal as
contemplated in section 186 of the LRA.
[17] From the admitted facts , the conclusion by the second respondent was that
since termination of the contract of employment was without notice, the
dismissal was both procedurally and substantially unfair.
Applicant’s Case
[18] I consider it apt to briefly set out the employer’s case before this court. PSA
bravely contends that Mr Sebati was not an employee of PSA because the
appointment was inconsistent with the procedures of the PSA Statute and the
Recruitment and Selection Policy , rendering the said appointment of Mr
6
Sebati as DGM irregular4. In particular, the appointment was inconsistent with
clause 8.14 of the Recruitment and Selection Policy in that an employee from
human resources section was not involved in the recruitment process.
Accordingly, Mr Sebati did not hold a valid contract of employment.
[19] Furthermore, PSA contends that the second respondent unreasonably upheld
the referral in favour of Mr Sebati and ordered reinstatement and backpay.
[20] In addition, PSA asserts that the decision by the second respondent to
reinstate Mr Sebati was unreasonable because he disregarded relevant
information and placed undue reliance on irrelevant consideration because
the appointment was made in total disregard of the Board’s “resolution” to
suspend the post. For all its trouble, the arbitration award handed down by the
second respondent stands to be reviewed and set aside.
Respondent’s Case.
[21] Mr Sebati contends that, regardless of the alleged non-compliance, which had
nothing to do with him, including the alleged B oard resolution, he received a
letter of appointment , which he accepted, he reported for duty and was
offered tools of trade, wherefore he was employed as the DGM of PSA.
[22] Mr. Sebati also adds that PSA’s Mariet Lange assisted him in completing
employment-related documents to set him up in the position of DGM. He also
points to a communique between himself and the Acting Human Resource
Manager, who facilitated his appointment.
The Law
[23] Our courts have consistently applied the "dominant impression" test to
determine whether an individual is an employee, moving away from rigid or
single-factor approaches such as the control test. This test involves evaluating
the totality of the relationship between the parties, considering factors like the
degree of control, integration into the organisation, economic dependence, the
intention of the parties, and so forth.
4 Record Founding Affidavit , para 19, page 11
7
[24] The Code of Good Practice 5: Who is the Employee is particularly influential in
guiding the courts and tribunals on this aspect . The Code also clarifies that
while all factors are relevant, they need not be given equal weight, and the
overall assessment should focus on the dominant impression formed from the
evidence presented.
[25] In Denel (Pty) Ltd v Gerber (2005) 26 ILH 1256 (LAC ), the Court held as
follows:
[19] “When a court or other tribunal is called upon to decide whether a
person is another’s employee or not, it is enjoined to determine the
true and real position. Accordingly, it ought not to decide such a
matter exclusively on the basis of what the parties have chosen to say
in their agreement for it might be convenient to both parties to leave
out of the agreement some important and material matter or not to
reflect the true position.
[20] If a court or other tribunal were to be precluded from looking at
matters outside of the parties’ agreement, there would be a serious
danger that it could be precluded from determining the true position or
the true relationship between the parties and end up making a finding
that the parties wish it to make as to the position when in fact the true
position is different
6”.
[26] The contract will obviously be accorded weight depending on the extent to
which its provisions describe in concrete terms rights and obligations of the
parties, which are more or less characteristic of the true relationship between
the parties.
[27] Mamabolo v South African National Blood Service 7 addressed the
situation where a contract of employment was concluded, but performance
has not yet commenced. The C ourt, relying on Wyeth SA (Pty) Ltd v Manqele
5 Code of Good Practice: Who is an Employee, GenN 1774 of 2006
6 See also Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC) at
para [27]
7 2020 JDR 0082 (LP)
8
and Others , found that an individual may be considered an employee upon
acceptance of an offer and resignation from previous employment, even
before starting work, thus enjoying protection under the LRA.
[28] It is accepted that in our law , the validity of an employment relationship does
not automatically depend on strict compliance with an employer’s internal
recruitment policies, as the statutory framework governing employment
relationships is broader than the contractual or procedural aspects alone.
However, where legislation expressly requires compliance with specific
recruitment procedures for certain positions, such as municipal managers
under the Local Government: Municipal Systems Act, non- compliance can
invalidate the appointment. The jurisprudence below buttresses this view.
[29] The Apex Court in Steenkamp and Others v Edcon Ltd,
8 emphasised that
the statutory concept of an employment relationship is broader than the
contractual notion of employment. The Court noted that statutory definitions
and protections apply to employment relationships, even where the strict
requirements of contract law or internal employer policies have not been met.
[30] The upshot of the Steenkamp judgment is that generally, even if an
employer fails to adhere to its own recruitment policies, an employment
relationship may still be recogni sed as valid under the law, provided that the
statutory requirements for such a relationship are met. The statutory
framework, including the LRA and other relevant legislation.
[31] The reasoning in Steekamp further supports a view that employment
relationships are governed by statutory law, which may recogni se the
existence of such relationships even where contractual or procedural
requirements have not been strictly observed. The Court also said that the
statutory concept of dismissal, for example, is broader than the contractual
notion of lawful cancellation of an employment contract. This indicates that
notion of lawful cancellation of an employment contract. This indicates that
statutory law is the primary source for determining the validity and existence
of employment relationships.
8 2016 (3) SA 251 (CC)
9
[32] The LRA’s definition of dismissal provides , amongst others that an employer
has terminated employment with or without notice. In Steenkamp 9, the Court
reasoned that “ the word terminated must be given its ordinary meaning. This
is “bring to an end” – regardless of whether the action is lawful, fair or
otherwise. A termination by an employer without giving proper or valid notice
still constitutes a “dismissal” under the LRA. The statute provides remedies to
address any wrongfulness or unfairness. But this does not alter the factual
consequence of the termination. The employee is dismissed, fairly or unfairly,
lawfully or unlawfully”.
Evaluation and analysis
[33] I n terms of section 78(6) of the PSA Statute, the General Manager , (then Mr
Marcus Ramakgale)’s duties include d the appointment and dismissal of
officials of the PSA in terms of the applicable C odes and Policies. Meaning
that the General Manager would have been responsible for the appointment
of the DGM in casu.
[34] In terms of the Clause 8:14 of the Recruitment Policy, the selection panel will
be no less than two persons who interview and select the applicants for a
position. An employee from the human resources section will be involved in all
executed positions.
[35] Much of the PSA’s case is mounted on a contention that clause 8:14 above
was not complied with because while Mr Sebati was interviewed by more than
two people, however, none of them was from the human resource section
(“the HR person”). Instead the General manger invited an external consultant
to assist with the recruitment process for “confidentiality ” purposes - Lesele
Consulting. Put differently, according to PSA, absence of the human resource
person from the interview panel vitiates the contract of employment that might
have emanated from such an interview. This argument by PSA, I must sa y, is
difficult to discern. This is so because:
9 at paragraphs 11 - 13,
10
[36] The language of clause 8:14 suggests interview attendance by more than two
people. Then the clause says an employee from the HR section will be
“involved” in all e xecutive positions. Nowhere is there a suggestion from
clause 8:14 that involvement is strictly confined to the “HR person” being part
of the interview panel. An overview of the evidence tendered by Mr Thabo
Mpeila Mathibe of Lesele Consulting, it is apparent that the HR person (one
Ms Vermaak – then head of HR) was involved in the recruitment process ,
albeit not part of the interview panel, until the letter of appointment was
issued. Mr Sebati also produced evidence of his interaction with the acting HR
person who facilitated his appointment.
[37] Apropos, I cannot agree with PSA that on purpose reading of clause 8.14, is
mandatory that the HR person must be part of the interview panel per se. For
this reason, I must reject PSA’s invitation to find that the absence of an HR
person in the interview of Mr Sebati invalidated the employment contract , or
that no valid employment relationship could have emanated from such
circumstances. But even if I am wrong, this case does not turn on that.
[38] Steenkamp supra is authoritative, I find that even if I accept for a moment that
there was non-compliance with the PSA Statute and Recruitment and
Selection Policy and the Procurement Policy as alleged by PSA - the law is
explicit, judging from the common facts, i.e. Mr Sebati responded to a job
advertisement, attended an interview, was subsequently offered employment,
which he accepted, he reported for duty and was provided with tools of trade
– the dominant impression is that indeed he was employed by PSA as DGM.
[39] The Constitutional Court in Khumalo & other v MEC For Education 10:
KwaZulu Natal, with reference to Njongi endorsed the principle “…(that while
it is always open to a government official to admit, without qualification, that
it is always open to a government official to admit, without qualification, that
an administrative decision was wrongly taken) must apply to unlawful acts
committed deliberately, negligently or even in good faith. The Labour Appeal
Court agreed that the MEC was not only entitled but also duty -bound to
10 [2013] ZACC 49 at paragraph 33
11
approach a court to set aside her irregular administrative act ” [Emphasis
Added].
[40] While the Khumalo judgment dealt with public -sector employees, I find that
the principle echoed there applies with equal vigour in this matter . To argue
otherwise would be lax ( more so that PSA itself operates in the same public -
sector environment). In case of a suspected irregular appointment, the
employer is duty-bound to follow due legal process to “rescind” the impugned
appointment.
[41] Evidently, even if the recruitment process was somehow botched ( including
non-compliance with PSA Statute) and/ or non- compliance with the Board’s
resolution, PSA was duty-bound to follow due process in dealing/correcting
the alleged irregularities ; it was n ever open for PSA to unilateral ly “rescind”
the appointment as it attempted to do.
[42] To reiterate the uncontroversial fact: no notice nor process was followed
when Mr Sebati ’s appointment was apparently rescinded on the strength of
the letter titled: DGM: MA APPOINTMENT RESCINDED received on 17 June
2022.
[43] The inescapable conclusion under any construction of the fact s above, the
dominant impression is that Mr Sebati was an employee of PSA as DGM who
was dismissed without due process.
The Test on Review
[44] The threshold in a review application is deliberately stringent for an applicant
to surmount; this is consistent with the limited scope of judicial intervention.
This is so because a review is not an appeal in disguise.
[45] In Zono v Minister of Justice and Correctional Services: In re: Minister of
Justice and Correctional Services v Zono and Others
11, it was held that:
11 [2020] 11BLLR (LC)
12
“This court is empowered to intervene if and only if the decision to
which the arbitrator came is so unreasonable that no reasonable
decision-maker could come to that decision on available evidence. As
the Labour Appeal Court has often observed, given the threshold that
applies, it is not often that applicants will succeed in a review. In the
present instance, the primary attack on the award is one that goes to
the assessment of evidence. Where review is sought on these
grounds, the court must particularly cautious not to blur the line
between a review and an appeal. Arbitrators are allowed to be wrong,
and a fragmented, piecemeal analysis of the award should be
awarded”.
[46] Appositely, the question ultimately to be answered is whether the second
respondent’s award is so disconnected from the evidence that it can be said
that the award falls outside a band of decisions to which a reasonable
decision-maker could reach.
[47] In my view, the second respondent’s decision is not an unreasonable one. Au
contraire to what is contended by PSA, the second respondent, as adequately
demonstrated above, did not misapply his mind to the evidence and question
of law, nor did he reach an illogical conclusion. His conclusion, based on the
evidence before him, on the dominant impression test, was that indeed Mr
Sebati was PSA’s employee (as DGM). On that conclusion, it became a
foregone conclusion that the dismissal was both procedurally and
substantially unfair.
[48] For these reasons, I find that the second respondent’s award squarely falls
within a band of decisions that a reasonable decision- maker could reach, and
I see no basis for me to interfere with same.
[49] Would it be feasible to reinstate Mr Sebati as per award? Perhaps its prudent
for me to pause at this juncture as Mr Sebati had not asked me to make the
award an order of Court, that question lives to be answered by another court.
13
[50] In the circumstances, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
T Mosikili
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv K Millard
Instructed by: Cheadle Thompson & Haysom Inc
For the Third Respondent: Adv K Nondwangu
Instructed by: Ngada Attorneys