Reportable~O
Of interest to other Judges@o
Re ised _ A O -
D~
THE LABOUR COURT OF SOUTH AFRICA, CAPE TO
In the matter between:
SEPHIRI STOFFEL MAKHALE Applicant
and
THE EDUCATION LABOUR REL:
First Respondent
Second Respondent
GERT VAN DER BERG N.O Third Respondent
Heard: 17
Delivered:
Su Public service employment law - education labour relations council -
·urisdiction point in limine - raised by first respondent, that second
respondent lacked jurisdiction, applicant was dismissed by operation of
law, in terms of section 14 ( 1 ) (a) of the Employment of Educators Act
76 of 1998, a deemed discharged - No dismissal as per Labour
Relations Act 66 of 1995 (LRA) triggered. Purpose by applicant: to set
aside order by third respondent, that second respondent lacked
jurisdiction to determine the applicant's unfair dismissal dispute, no
dismissal per LRA but deemed discharge per EEA. Even then rationality
GURA, AJ
Introduction
2
of the first respondent would be challenged under section 158(1 )(h) of
LRA -powers to review decisions where State is employer.
JUDGMENT
[1] The First Respondent's point of departure in relation to this point in limine it has
raised, in a nutshell, is that the provisions of r Relations Act1 (LRA)
have not at all been triggered, as the Applican as not b n dismissed, but has
been deemed discharged. Thus, the Secon still awaits the
Applicant's address since 2021, under the auspices of the Employment of
Educators Act2 (EEA) particular:! section 14(2) provision, in 2025.
[2] Section 14(2) of the EEA
'If an educator who is dee~ to have been discharged under paragraph (a)
or (b) of subsection (1) at any time reports for duty, the employer may , on good
cause shown and notwithstanding anything to the contrary contained in this
Act, approve the reinstatement of the educator in the educator's former post or
y other post on such conditions relating to the period of the educator's
from duty or otherwise as the employer may determine . .'
[3] Thus, the irst Respondent's simple English and even during oral arguments
by Advocate Nhlapo-Merabe, who represented the State Attorney's Office in
" ~ oemfontein, on instructions by Mrs T. Moleko, confirmed same. That the
~ plicant never made any representations to the Head of Department, which is
the Applicant's remedy, on a deemed discharge and further argued that the
Applicant reported to a school of his preference and not where he was
appointed; he was notified of same , however, still absconded. The Applicant
1 A ct 66 of 1995, as amended.
2 Act 76 of 1998.
3
was represented by Advocate du Preez on the instructions of Kramer
Weihmann.
Background
[4] The Applicant placed on record that he was employed by the First Respondent
as a Post Level 1 Educator at Seemahale Secondary School from October
2015, Botshabelo, Motheo District, where he was employed as a senior school
[5]
mathematics teacher, teaching grades 8 to 10. In April 2019 ant was
transferred from Seemahale Secondary School to Senakan ary
School, where he worked from 12 June 2019 to 8 March 20
made to reduce the number of teaching staff at Sen
Mr Diphagoe, thus made a decision that the Applicant ad to report back to
Seemahale Secondary School, as that was the Applicant's school that he was
registered at. When the Applicant re oft~ back at Seemahale Secondary
School, the Principal at the time, Mr kokoto, • formed the Applicant that he
would be transferred to Amohelang P • ool. The Applicant's case is
that he was then unilaterally transferred from Seemahale Secondary School to
Amohelang Primary School. The First Respondent argued same as material
common cause and un , uted facts recorded these dates as 17 March 2021,
transferred to Amo lang, a continued to report there until 29 April 2022. 8
June 2022, as per the 'st.- spondent, the Applicant was instructed by senior
management to report to Amohelang Primary School the following day, but did
• structed. The Applicant thus continued to be away from work without
om e employer, for a continuous period in excess of 14 days.
~ Applicant argued that he was not allowed to sign a time register
sheet during this time. The Applicant reiterated that it has always been his case
at he tendered his services at Seemahale Secondary School, where he was
fficially appointed. The Applicant was refused entry to the Seemahale
Secondary School, and his various enquiries to the First Respondent remained
unanswered. The Third Respondent failed to take this into account,
misconceived the nature of the enquiry and failed to determine the factual
misconceived the nature of the enquiry and failed to determine the factual
question of whether the Applicant tendered his services during the period in
question. Thus, the Third Respondent's conclusion that the Second
4
Respondent lacks jurisdiction was wrong. The First Respondent's argument,
being that the Applicant was not transferred back to Seemahale Secondary
School, nor given permission to report back there. The Applicant has not made
representations that would show cause why the First Respondent ought to
reinstate him, as per the provisions of section 14 (2) of the EEA.
[6] The Applicant's case further being that upon his arrival at Amohelan
School, he became aware of a 'cross transfer' between the two
involving him and another staff member , Mr Ntsane. Argued further that ttiis
cross-transfer was done without his prior knowledge or co ent. Argued further
that Applicant attended at the Free State Department o
Department to enquire about the cross-transfer and
were no records of any transfer and that, according
establishment system, the Applicant was registered at Seemahale Secondary
School. The Applicant placed on recor t at e, on 28 April 2022 , wrote a letter
to the principal at Amohelang , Mr Khal< au, sta i g that he was going to report
was registered. A decision which the Principal, Mr Khakhau, announced to all
the staff members duri a meeting and the Applicant thus accordingly started
to report back to S emahal Secondary School. It is the Applicant's further case
that he then, acco!'l i gly, 1 3 May 2022, reported back to Seemahale
Secondary School, wherei~rie spoke to the new Principal, Ms Lekata, the latter
inform d the Applicant that she had spoken to his former principal, Mr Nkokoto,
tat her that the Applicant had to report to Amohelang Primary School.
on re rd that Mr Nkokoto informed the security guards to deny the
Applican opportunity to sign the time register when reporting for duty, and
also the Applicant was refused entry to the premises.
he Applicant's case is that he then, on 6 May 2022, reported the matter to the
Free State Department of Education's HR Department in person and
telephonically to SADTU during May 2022 , with no success. The Applicant also
telephonically to SADTU during May 2022 , with no success. The Applicant also
referred the matter to the Free State Department of Education's Labour
Relations Department, where he was advised to refer the matter to the District
Director, Mr D .S. Moloi. It is the Applicant's case that he sent an email to Mr
5
Moloi, but no response was received. The Applicant thereafter received a letter
of Termination of Service from the Department of Education. The same was
dated 11 November 2022 but was received by the Applicant only on 7
December 2022.
Point in limine raised by the First Respondent
[8] The First Respondent, as a point of departure, placed on record that the issues
to be determined by this court herein fall within the provi i ns of section 14( 1)
of the EEA. Thus, the provisions of the LRA are not there was no
dismissal of the Applicant, which may fall within its am • that even the
referral of an alleged unfair dismissal was premature ,rnt,~ni•t the Applicant
having exhausted the provisions of section 14(2)3 of the EEA . The First
Respondent argued further that the T id Respondent does not generally have
jurisdiction to entertain matters that f e ambit of section 144 of the
EEA. That the deemed discharge and an ................. , ant decision taken by the First
Respondent would have been a consideration that is within the jurisdiction of
the Labour Court, und Ji section 158(h)5 , read together with section 1 of the
Constitution6. T
jurisdiction to entertain
espondent submitted thus correct that the
ird Respondent that they lacked the requisite
Parties' submissions
[9] What is central to the issue concerns, as argued by the First Respondent, is the
apP,; ica ion of subsection (1) of section 14 of the EEA, which reads as follows :
'(1) An educator appointed in a permanent capacity who-
(a)
(b)
is absent from work for a period exceeding 14 consecutive days
without permission of the employer;
3 Abscondment that exceeds 14 consecutive days.
4 Head of Department.
5 Power of the Labour Court to review where the state is the employer.
6 Values of the Constitution.
(c)
(d)
6
Shall, unless the employer directs otherwise, be deemed to have been
discharged from service on account of misconduct, in the circumst nces
where-
(i) paragraph (a) or (b) is applicable, with effect from tl:l
day following immediately after the last day on which the
educator was present at work ... '
Applicant's submissions
[1 O] The Applicant's argument is that the Third R sponden
factual enquiry to determine whether the juris 1 ·onal quirements of section
14(1)(a) and (2) of the EEA were met. That Third Respondent never required
any of the parties to lead evidence under oath, or in any other manner, which
would have enabled the T Jr :e pendent to determine the factual questions
relevant to the matter.
[11] The Applicant argued that an ar ation award or jurisdictional ruling issued in
[12]
the absence f idence being presented or the parties agreeing to a stated
llity. The Applicant proceeded to cite Kgoale v Thaba
Cheu Loe and Others7:
'In the absence of facts, in the form of evidence, being presented, what is there
to evaluate? Nothing.'
App icant quoted further the case of SA Social Security Agency v National
cation Health & Allied Workers Union on behalf of Punzi & Others8 , wherein
the Labour Court held that :
'[5] I fail to comprehend how a dispute which hinges on the fairness of the
conduct of an employer can be decided (in the absence of a stated
case) without parties giving oral evidence. A decision made in such a
7 (2021] JOL 53305 (LC) at para 18.
8 (2015) 36 ILJ 2345 (LC).
7
way means that the Labour Court must answer all the following
questions in the negative ... '
[13] The Applicant quoted the Labour Appeal Court in Arends & others v SA Local
Government Bargaining Council & others9 where it said the following:
[11] The decision of the representatives of the parties to limit themselves to
providing the arbitrator with a verbal account of the bac
to the conclusion of the collective agreement, as a
arguing the matter without leading oral testimony, .
[15] The appellants are to some extent t e autho of their own misfortune.
[14] The Applic
They placed the matter before the if there was a simple,
single issue capable of resolution with t e;barest minimum of factual
matter. Their approach was neither prudent nor correct. When parties
desire to proceed 'ithout oral evidence in the form of a special case, it
is imperative uld be a written statement of the facts agreed
by the partie ding. Otherwise, the presiding officer may
answer the legal question put to him ... The stated
case must set out agreed facts, not assumptions.'
uoted Solidarity and Another v Public Health and Welfare
Sectoral Ba,:g ining uncil and Others10, a matter which involves section 17
of the Public Service Act11. The Supreme Court of Appeal held that the
bargaining council did have jurisdiction to determine a matter in which the
to er was not able to establish that the jurisdictional requirements of the
[15] The court held that:
'[15] It must follow that the Commissioner's conclusion and also the
conclusions by the LC and LAC that the Council lacked jurisdiction
cannot be sustained. Accordingly, the appeal must succeed. Counsel
for the appellants urged upon us that in that event, given the time that
9 [2015] 1 BLLR 23 (LAC ).
10 2014 (5) SA 59 (SCA).
11 Proclamation 103 of 1994, as amended .
8
has elapsed, we should order the employee's reinstatement. I do not
believe that we can accede to counsel's request. The effect of the
Council's order was to dismiss the employee's claim (that he had been
unfairly dismissed) for want of jurisdiction. Having taken the view that it
lacked jurisdiction - erroneously as it now turns out - the council did
not enter into the merits. Nor could it. (See Makhanya v University of
Zululand 2010 (1) SA 62 (SCA) ([2009] 4 All SA 146; [2009] 8 BLLR
721 ).) That it must now do. The matter must thus be e
[16] The Applicant quoted from Nkabinde v Public Health Soci'a
Sectoral Bargaining Council & others12 wherein the Court held tha :
'[23] Where, on the other hand, th regards
employment as having been termi s of s 17(3)(a)(i) when
the jurisdictional requirements ha met, the employment
relationship obviously does not terminate ex lege. Instead, it is
effectively terminated (brought to an end) by the employer's refusal to
is was articulated as follows by Murphy AJA in his
• Solidarity, which carried the day in the SCA :
y,_ terminating the payment of remuneration to the
second appellant, albeit on the incorrect categorization of his
~ nduct as a deemed discharge, the third respondent refused
t implicit tender of his available services and terminated the
First Respondent's submissions
[17] The First Respondent argued that the facts in Mogola and Another v Head of
Department: Department of Education NO 13 (Mogola) are similar to this case,
• ere in Mogola, the Labour Court emphasised that:
' ... it is now trite that termination of employment in terms of section (14)(1) of the
EEA does not amount to a dismissal as envisaged under section 186 read with
section 191 of the Labour Relations Act (the "LRA ").'
12 (2025) 46 ILJ 173 (LC ).
13 [2012] 6 BLLR 584 {LC ) at para 28.
9
[18] The First Respondent argued that Mogola was also discharged from service in
terms of section 14(1 )(a); however, he had made representation in terms of
section 14(2). The bargaining council, in a ruling dated 6 July 2010, found that
it did not have the jurisdiction to entertain the dispute as a termination was by
operation of law.14 The Court therein further reasoned that the jurisdiction of the
court in matters involving section 14 of the EEA is founded in the provisions of
section 158 (1 )(h) of the LRA , read together with section 1 oft e
on the principles of legality.15
[19] The First Respondent argued, and same is common cause, th
Respondent, in paragraph 14 of the arbitration ruling, observes the above
principle in his analysis by stating that :
'14. As the information was gi n ..-n,.,_ ,., __ -~ s a preliminary issue, I
was not able to make an e d therefore, I will make
a jurisdictional ruling in w • i g. I mw t therefore decide whether the
ELRC has jurisdiction to deal it his dispute during arbitration. I must
first decide whether the applicant's dismissal is a deemed dismissal or
a dismiss as envisioned by section 186 ( 1 ) of the Labour Relations
Act ccording to the Education Labour Relations Council
date and part C about Dispute Resolution Procedures in
clause ates: 'If at any stage during arbitration proceedings it
becomes apparent that there is a jurisdictional issue that had not been
determine, the panelist must require the referring party to prove that the
ouncil has the necessary jurisdiction to resolve the dispute through
rbitration.'
[20] Paragraphs 15 and 16 of the award, the First Respondent argued, are evidence
that the Third Respondent proceeded to embark on this exercise and correctly
etermined that all the jurisdictional requirements of section 14(1) have been
met, and what was referred to the Second Respondent was in actual fact a
deemed discharge and not a dismissal under the LRA . That the statute does
deemed discharge and not a dismissal under the LRA . That the statute does
not afford the Second Respondent any jurisdiction to entertain matters of
deemed discharge by operation of law, based on the principle of legality. Even
14 Ibid at para 20.
15 Ibid at para 33.
10
if the Third Respondent had embarked on an exercise complained of by the
Applicant, it lacks jurisdiction to entertain any matter under the EEA .
[21] The First Respondent argued in their heads of argument that it is undisputed
that the Applicant was transferred to Amohelang Primary School. I proceed to
[22]
quote Third Respondent's arbitration award, which reads:
6. The principal of Amohelang Primary School sent a letter unde
heading 'abscondment ' to the applicant on 20 July 2022 stating to tHe
applicant that:" It has come to my attention tha ou have not reported
for duty since our meeting with the District Officials on the 07 June 2022
as you were instructed to report to the sc I the fo wing day. You
have now exceeded fourteen ( 14 ) days wI out eporting. This is
regarded as abscondment according to the Employment Educators Act
1998 ( Act 76 of 1998 ). If any report, I am left with no option
7.
but to recommend abscon
did not report until he rece
dismissed.
applicant received the letter and
tion of service was signed on 07 November 2022 but he
only accordin o him received it on 07 December 2022. He responded
inw
of sec
cember 2022. His services were terminated in terms
) ( a ) of the Employment of Educators Act 1998 ( No
76 of 1998 ) ... He was further notified that he has the right to refer the
matter within 30 days from receipt of this letter to the D irector: ER & PM
i Bloemfontein.'
inisterof Education & others16, Mpati DP (as he then was), faced
with a more similar situation, held that:
V
'The upshot of all this, in my view, is that it may still be open to the appellant to
attempt reinstatement by showing good cause why she should be reinstated in
terms of s14(2).'
16 (2006) 27 ILJ 477 (SCA) at para 29.
11
[23] The Supreme Court of Appeal in Minister of Defence and Military Veterans and
Another v Mamasedi 17 reiterated that:
'It has been held by this court, dealing with similar provisions in other
employment-related legislation, that dismissal follows absence in excess of the
prescribed period by operation of law, consequently no decision is taken to
dismiss the employee that is susceptible to review, but that {, ere fter a
decision may be taken to reverse a dismissal if good cause for doing so is
shown .'
[24] The First Respondent placed on record that, till this day, the
[26]
A
trigger the provisions of section 14(2) of the EEA, w ·ch ma complete his
cause of action in challenging any decision that is to oe ma e by the First
Respondent. There is thus no dismissal to invoke the jurisdiction of any Court.
Security and Others 18, in the context of jurisdiction being challenged,
Justice van der Westhuizen, who wrote the unanimous judgment of the Court,
found as follows :
' ... [T]he app j gs are the determining factor. They contain the legal
basis of the c hich the applicant has chosen to invoke the court's
competence.'
[27] The Applicant, in his referral, being an alleged unfair dismissal as per the First
Respondent, seeks the relief of reinstatement and compensation.
[28] This Court thus examines the Applicant's referral for arbitration, at which, in
paragraph 3, the Applicant ticks the block for 'Alleged Unfair Dismissal'.
[29] Given the importance of the referral with respect to the question of jurisdiction,
it is necessary to reproduce it herein:
17 2018 (2) SA 305 (SCA) at para 3.
18 (2010) 31 ILJ 296 (CC) at para 75.
12
3(c) Reason for dismissal unknown -spoke to Director Labour Relations 11
Jan 2023, said will revert, no feedback
6. RELIEF SOUGHT: Reinstatement plus compensation.
7. SPECIAL FEATURES /ADDITIONAL INFORMATION
(b) Special Features
Briefly outline any special features that t
: No feedback from Director Labour Relations on 11 Jan 2023,
no reason for dismis
PARTS
2
Please give date of your dismissal : 11/1/2023
HEARING : NO REASON FOR DISMISSAL:
FAIRNESS /UNFAIRNESS OF DISMISSAL
(a) Procedural Fairness=No Procedures
(b) Substantive Issues =No Reason.'
[30] Attached to the Applicant's referral form , I see two certificates of indisposition.
One is from Motheo Pharmacy from 24 May 2021 to 25 May 2021. The second
certificate is from Dr L E Kodisang, consultation having taken place on 25
August 2021, in terms of which the Applicant was booked off until 31 August
13
2021. Mr Khakhau confirms receipt of Abscondment Letter and that same has
been referred to the HOD Office, as per Human Resource Molehe MB .
[31] Of utmost importance is page 36 of the award, containing the Applicant's
response to the termination of services:
'... I have never been appointed at Amohelang Primary School by the
Department of Education
I have raised and discussed my decision to stop reporti
Primary School with the SMT of the school before leaving t
I have been denied to report on duty at Seemahale School from
where I am still appointed by the Department.of.-f ucation
helang
I have also brought this matter to the Mot
and I have noticed that my demand will n
REPORT AT Amohelang Primary School.
irector for intervention
et if I CONTINUE TO
[32] Page 35 of the award referra to m attachment is a termination of service in
terms of section 14 (1) (a of the document, which provides that' ... If you
are not satisfied, you have o refer the matter to the Director Labour
Relations . . . WITHIN 30 DA S ROM THE RECEIPT OF THIS LETTER.
Signed by A rv, Ma/akoane SG EDUCATION , on 7 November 2022.'
[33] This letter ecember 2022, and was received by the Applicant on
day period expired on 7 January 2023.
[34] Thus, the First Respondent's Counsel's argument that, to date, the Director still
:>t e Applicant to come and make representations is thus unfounded. The
Respondent acknowledged during argument that yes, indeed, the
A licant did report for duty, but at a school of his own choice. The Applicant's
argument being that he reported and or wanted to report to the school he was
appointed at and registered at, being Seemahale Secondary School and not
Amohelang , which, as per the Applicant's argument, he was unlawfully and
unilaterally moved to.
14
[35] The Pre-Arbitration Minute confirm, as per the Applicant, that:
'8 EVIDENCE ON AFFIDAVIT
The law
[36] In SA Bro
Arbitration
8.1 None. Page 24 of the Paginated Bundle evidences Personnel
Administrative Measures (PAM), 2016 -Annexure A2), that
indeed Applicant was appointed for SEEMAHALE
SECONDARY SCHOOL , SUPERVISOR BEING MS MBOTHO.
Nowhere in these proceedings has the First
the sitting of Second and Third Respon
Mbotho nor her input. On Page 36 of tl:i Applicant's
RESPONSE TO THE TERMINATION he writes:' ... k ave never
Department of Education . d my decision to stop
reporting at Amohelang P I with my SMT of the
School before leaving the Schoo . J:have been denied to report
on duty at Seemahale School from 3 May 2022 where I am still
appointed y he Department of Education ... I have also brought
e Motheo District Director for intervention and I
demand will never be met If I continue to
elang Primary School".'
orporation v Commission for Conciliation, Mediation &
, the Labour Court held that desertion ( or absconding )
constitutes a breach of employment contract by repudiation of the contract.
udiation does not bring about the termination of the contract .It simply
e innocent party ( the employer in this instance ) to acknowledge the
re udiation and then to accept it. By electing to accept the repudiation , the
contract terminates , but this is a juridical act of the employer. When the
employer terminates the contract in this way , the termination amounts to a
dismissal . and section 188 applies. The dismissal must therefore comply with
the requirements of substantive and procedural fairness ( par 492-493 of the
judgment).
19 (2001) 22 ILJ 487 (LC).
15
[37] In the Labour Court judgment of SAMWU v Dyasi 20 ,the court held that the
dismissal of a deserting employee was procedurally unfair , because the
employee was not afforded a disciplinary inquiry prior to the dismissal.In this
case the whereabouts of the employee were known to the
employer.Concerning a deserting employee who cannot be traced, the Labour
Court ( albeit in obiter) opined as follows :
'When the employee deserts and cannot be traced, th
practical choice other than to accept the repudiation. Wher
choice, it can probably be argued that the employer did not t
contract.'
[38] Since the termination of employment is not basecf on:ffie employer's decision,
there is no dismissal and the employee is thus not entitled to a disciplinary
since no discretion is ex
interpret the phrase "u
loyment is also not subject to judicial review,
, Y. a public authority. However, if one is to
---employer directs otherwise" in section 14( 1) to
mean that a discr ·on is int odu~d. then the judicial review process ought to
be open for the em loyee n all other circumstances, the termination of
employment takes place a tomatically, by the operation of law.21
[39] It is an o ·ective question whether the requirements of the statutory provision
b ed. I a factual dispute arises in relation to the objective jurisdictional
t:1ch a dispute is justiciable by a court of law. In HOSPERSA and
Another v MEG for Health22, the Labour Court expressed concern about these
provisions, and the court referred to the 'draconian procedure'23. It was the
ourt's view that reliance on the applicable disciplinary code was a less
restrictive method of achieving the same objective of enquiring into and
remedying an employee's absence from work, and that the sections must be
invoked sparingly, and particularly where the employer has no other alternative.
20 2001 7 BLLR 731 LAC 735
21 See : Mahlangu v Minister of Sport and Recreation (2010) 5 BLLR 551 (LC) at para 14.
22 [2003) 12 BLLR 1242 (LC).
23 Ibid at 1249E .
16
For example, where the Respondent was unaware of the whereabouts of the
employee, or could not contact her or him.24 These were obiter remarks, and
the South African courts continue to give effect to these provisions.25
[40] The jurisprudence above is to the effect that the Third Respondent was to have
heard evidence to make a determination if the jurisdictional requirements for
the deeming provision existed and if the Applicant was , in fact, dismissed by
operation of law. Moreover , the Respondents knew of the Applicant's
whereabouts .Respondents argued that Applicant did report or duty, however
, at a school of his own choice. The common cause being that Applicant
reported at the school he was appointed at , albeit o h re .sed to sign a
register .Representations had been made by the Applicant to the First
Respondent's representatives , who a
ultimate relevant HOD : Free State D
day period long lapsed. Thereby, th
have escalated the same , to the
Education. Moreover, the 30
espondent's point in limine is
dismissed. Applicant's case is not at all premature before this Court.
[41] In the premises, the foM wing order is made :
1. The First Respondent's po'nt in limine is dismissed with costs.
L Gura
Acting Judge of the Labour Court of South Africa
24 Ibid at 1249 F-G.
25
A van de~ Walt, D . A_brahams & T. Q otoyi, "R egulating the Termination of Employment of Absconding
Employees m the Publtc Sector and Public Education in South Africa: A Preliminary View", Obiter 37(1)
(2016) 140-146, '
Appearances:
For the applicant: T. Du Preez
Instructed by: Kramer Weihmann Attorneys
For the first respondent: Adv. K Nhlapo-Merabe
Instructed by: State Attorney -Bloemfontein
17