THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 280/23
In the matter between:
GMP TRADING TRADING CC T/A TAXI RAND FOOD MARKET First Applicant
CERA AZUL TRADING (PTY) LTS T/A WALTLOO MEAT AND
CHICKEN MEGA NUMLOG TRADING CC
T/A WALTLOO MEAT AND CHICKEN MINI Second Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
TREVOR WILKES N.O Second Respondent
RHODA CHATIKOBO AND OTHERS Third Respondents
Heard: 9 September 2025
Delivered: 10 December 2025
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JUDGMENT
RAJAH, AJ
Introduction
[1] This is an application brought in terms of section 157(1) read with section 145
of the Labour Relations Act 1 (LRA). The applicant, GMP Trading (the
employer), seeks an order reviewing and setting aside an arbitration award
issued under the auspices of the Commission for Conciliation, Mediation and
Arbitration (CCMA) on 23 January 2023 under case number GAJB 21563-22.
[2] On the day of hearing, only the employer was represented. The employer was
represented by Mr Themba Manlhungu from Human Resources. The
employees, cited as Ms Rhoda Chatikobo and Others, were unrepresented.
[3] Given the seriousness of the matter, and the fact that it concerns close to 100
employees, it concerns threats of violence to both parties and affect s rights
beyond labour law, the Court adjourned the hearing for 30 minutes to consult
with colleagues before proceeding and it was satisfied that the matter should
be heard by default.
Relevant Material facts
[4] The factual matrix set out below is drawn from the documents before the
commissioner as well as the transcript. GMP is in the business of selling food
and other meat products in various places including Alexandra, where the
employees were employed in different capacities including cas hiers, cleaners,
and packers.
[5] It is common cause that their dismissals arose in the context of what has
become known as “ Operation Dudula”. The evidence demonstrates that the
operation consisted of groups of individuals who, acting outside the law,
forcefully removed employees from their workplace.
1 Act 66 of 1995, as amended.
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[6] Those employees were largely foreign nationals. The removal was neither
authorised by the employer nor sanctioned by law. It amounted to disruption
of the workplace through intimidation and coercion.
[7] This Court is mindful that South Africa is a constitutional democracy founded
on the rule of law. It is also mindful about certain civic groups who perpetuate
violence and intimidation sometimes with very serious consequences.
[8] However, t he Constitution of the Republic of South Africa, 1996 (the
Constitution), in its preamble and Bill of Rights, affirms that the country
belongs to all who live in it. Section 23 guarantees everyone the right to fair
labour practices. The unlawful conduct of private groups cannot be permitted
to override the constitutional and statutory rights of employees, whether
nationals or foreign nationals no matter the threats they make.
Submissions
[9] Mr Mahlangu along with the papers before this court, did not dispute that the
dismissals were unfair, but emphasised the danger to the business and its
premises if employees were reinstated. He argued that the payment of one
week’s severance pay should be regarded as an act of good faith and that the
company could not afford more.
[10] When pressed by the Court with hypothetical questions, for example, what if a
similar operation were to target older workers being South African nationals to
make way for younger ones as part of an ‘ operation tsamaea’, or even
threaten his own position Mr Mahlangu could only respond that the state
entities had failed to act and that reinstatement was therefore impossible.
Legal Principles
[11] This Court accepts that the employer faced operational challenges. However,
such challenges do not justify stripping employees of their constitutional and
statutory protections in such an abrupt manner. The rights of workers, whether
nationals or foreign nationals, are protected by the LRA and the Constitution.
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[12] The test for review is settled. In Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others 2, the Constitutional Court held that the question is
whether the decision reached by the commissioner is one that a reasonable
decision-maker could not reach on the material before them.
[13] Considering the totality of the evidence, the commissioner correctly found that
the dismissals were unfair. The commissioner’s award properly balanced the
substantial merits of the dispute, as required by section 138 of the LRA, and
falls within the bounds of reasonableness.
[14] The ground of review advanced before this Court is that the commissioner
failed to apply his mind to the fact that businesses were closing as a result of
Operation Dudula, and that both the employer and the employees’ lives were
in danger.
[15] This Court does not dismiss the seriousness of the threats posed by unlawful
operations of this nature. However, the Court is not convinced that such
considerations justify upholding the dismissals or overturning the award. The
commissioner was alive to the context in which the dismissals occurred,
namely that employees were forcefully removed from the workplace by third
parties. The commissioner correctly focused on whether the employer had a
fair and lawful basis to terminate their employment.
[16] The evidence demonstrates that the trigger for the dismissals was not
misconduct by the employees but rather the unlawful conduct of outside
groups. In fact, it is common cause and conceded in oral submissions that the
employees did nothing wrong.
[17] The employer’s reliance on danger and disruption, without taking steps to
restore or protect the employees’ positions, does not render the
commissioner’s award unreasonable.
[18] The proper test for review remains that set out in Sidumo : whether the
decision reached by the commissioner is one that a reasonable decision-
maker could not reach.
2 [2007] 12 BLLR 1097 (CC).
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[19] Moreover, as the Labour Appeal Court explained in Goldfields Mining South
Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others3, the Court must consider the totality of the evidence and avoid a
piecemeal approach.
[20] On a consideration of the totality of the evidence, this Court is satisfied that
the commissioner’s conclusion that the dismissals were substantively unfair is
one that a reasonable decision- maker could reach. The review application
must therefore fail.
[21] In the result, the following order is made:
Order
1. The arbitration award issued under the auspices of the Commission for
Conciliation, Mediation and Arbitration (CCMA) on 23 January 2023
under case number is upheld.
2. The employer is directed to pay to the employees, within 14 days of
this judgment:
2.1 compensation equivalent to 12 months’ remuneration calculated
at each employee’s rate of remuneration at the date of
termination; and
2.2 The amounts referred to above shall bear interest at the
prescribed rate with effect from the 15th day after the date of
this judgment to the date of payment.
3. There is no order as to costs.
3 [2014] 1 BLLR 20 (LAC).
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_______________________
S. Rajah
Acting Judge of the Labour Court of South Africa
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Appearances:
For the applicant: Themba Mahlangu of Watloo - Alex
For the respondent: No appearance