THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No: C268/2022
In the matter between:
UFF AGRI ASSET MANAGEMENT (PTY) LTD Applicant
and
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION (CCMA) First Respondent
COMMISSIONER H ADAMS N.O. Second Respondent
HANG-WAH MAN Third Respondent
Heard: 1 September 2025
This judgment was handed down electronically by circulation to the parties’
legal representatives by email, publication on the Labour Court website and
release to SAFLII. The date and time for handing down judgment is deemed to
be 10h00 on 29 January 2026.
JUDGMENT
MYBURGH, AJ
(1) Reportable: NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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Introduction
[1] This is an application brought in terms of s 145 of the Labour Relations Act 1
(LRA) to review and set aside the arbitration award of the second respondent
acting under the auspices of the first respondent under case number
WECT12675/20 dated 11 May 2022, finding that the dismissal of the third
respondent was substantively and procedurally unfair.
[2] The third respondent opposed the application.
Background facts
[3] The third respondent was employed on a fixed term contract in the position of
Corporate Development and Investment Manager , ending on 31 July 2016 by
the applicant.
[4] When the term of his contract expired, the third respondent entered into an
agreement with a third party, Crystal Tree (Pty) Ltd, which was at that time a
shelf company, along with van Wyk, Bouland and Vink, all shareholders in the
applicant, to launch a new financial advisory business which he would
become the Managing Director of in due course.
[5] There was a further agreement that the third respondent would acquire a 25
percent shareholding in Crystal Tree, with the remaining 75 percent equally
split between Bouland, Vink and van Wyk . The terms of this agreement were
recorded in an unsigned Draft Term Sheet and provided for inter alia (i) the
transfer of 25 percent of Crystal Tree shares by van Wyk to the other 3
parties; (ii) Bouland, Vink and van Wyk to arrange capital for the day -to-day
operation of Crystal Tree, (iii) the third respondent’s continued employment by
the applicant , forgoing his salary every fourth month in exchange for the
shares in Crystal Tree and (i v) the secondment of this employment to Crystal
Tree.
1 Act 66 of 1995, as amended.
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[6] The third respondent commenced working in Crystal Tree , with 10 percent of
his time reserved for the applicant. Despite many drafts, no shareholder s’
agreement was ever signed for the proposed shareholding in Crystal Tree.
[7] The applicant and Crystal Tree entered into a ‘Consult ing Agreement’
providing for the secondment of resources by the applicant to Crystal Tree to
perform certain services with effect from 1 September 2016. The ‘resource’ to
be so seconded was the third respondent. T he applicant continued paying the
salary of the third respondent for 3 months out of every 4, however it
recovered 90 percent thereof from Crystal Tree.
[8] On 24 March 2020, the third respondent put van Wyk, Bouland and Vink to
terms, giving them notice until 30 March 2020 to transfer the shares in Crystal
Tree to him.
[9] When this did not happen, the third respondent cancelled his agreement with
Crystal Tree and/or Bouland, Vink and van Wyk, demanding the repayment of
his salary sacrifices dating back to 2016.
[10] On 5 May 2020, the applicant addressed a notice proposing his dismissal for
operational reasons to the third respondent , and ultimately, he was dismissed
on 18 August 2020.
[11] The second respondent’s award ordered the applicant to pay compensation in
the amount of R660 000 to the third respondent as compensation for the
procedural and substantive unfairness of his dismissal. This is the award that
the applicant seeks to review.
Grounds for review
[12] The applicant raised 2 grounds for review: (i) lack of jurisdiction as the third
respondent was not an employee of the applicant; and (ii) the second
respondent’s failure to understand the issues and the true nature of the claim
before him, ignoring material evidence or not understanding the evidence
resulted in an award that was not one a reasonable arbitrator could have
arrived at.
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Test on review
[13] In Sidumo & another v Rustenburg Platinum Mines Ltd & others,2 the Court
held that “the reasonableness standard should now suffuse section 145 of the
LRA”, and that the threshold test for the reasonableness of an award was:
‘… Is the decision reached by the commissioner one that a reasonable
decision maker could not reach?...3.’
[14] In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
4 the Court applied this reasonableness consideration as follows:
‘… A result will only be unreasonable if it is one that a reasonable arbitrator
could not reach on all the material that was before the arbitrator. Material
errors of fact, as well as the weight and relevance to be attached to the
particular facts, are not in and of themselves sufficient for an award to be set
aside, but are only of consequence if their effect is to render the outcome
unreasonable.’
[15] In Securitas Specialised Services (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others 5, the Labour Appeal Court restated the
review test as follows:
‘The test for review is this: “Is the decision reached by the arbitrator one that a
reasonable decision maker could not reach?” To maintain the distinction
between review and appeal, an award of an arbitrator will only be set aside if
both the reasons and the result are unreasonable. In determining whether the
result of an arbitrator’s award is unreasonable, the Labour Court must broadly
evaluate the merits of the dispute and consider whether, if the arbitrator’s
reasoning is found to be unreasonable, the result is, nevertheless, capable of
justifications for reasons other than those given by the arbitrator. The result
2 (2007) 28 ILJ 2405 (CC).
3 Id at para 110.
4 (2013) 34 ILJ 2795 (SCA) at para 25.
5 [2021] 5 BLLR 475 (LAC) at para 19.
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will be unreasonable if it is entirely disconnected with the evidence,
unsupported by any evidence and involves speculation by the arbitrator.’
[16] Before this two-stage test can be applied on the facts in casu, the jurisdiction
of the CCMA must first be established.
[17] Where the jurisdiction of the CCMA is challenged, it is for this court to
determine whether or not the CCMA had the requisite jurisdiction to arbitrate
the dispute. The Labour Appeal Court in SA Rugby Players Association &
others v SA Rugby (Pty) Ltd & others (SAPRA)6 set out the position a s
follows:
‘The CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only make a ruling for
convenience. Whether it has jurisdiction or not in a particular matter is a
matter to be decided by the Labour Court.’
[18] The decision whether or not the CCMA had jurisdiction to arbitrate the dispute
is a factual inquiry . Before the merits of the review application can be
considered, this court has to determine the issue of jurisdiction.
Jurisdiction
[19] The applicant contends that the second respondent did not have the requisite
jurisdiction to arbitrate the dispute, as the third respondent was not employed
by the applicant, nor was he dismissed by it.
[20] The CCMA is a creature of statute with jurisdiction conferred on it to arbitrate
only disputes as listed in the LRA. If the third respondent was not employed
by the applicant, the CCMA had no jurisdiction to arbitrate the dispute.
[21] CCMA commissioners are required to determine if they have the necessary
jurisdiction to arbitrate a dispute if this issue is raised by one of the parties,
and even when it is not raised.
6 (2008) 29 ILJ 2218 (LAC).
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[22] The Award under review did not address the jurisdiction of the CCMA at all,
despite the requirement that the arbitrator had to determine who the true
employer of the applicant was.
[23] This is a factual determination, based on the de facto position between the
parties at the time of termination of employment.
[24] It is common cause that the applicant invited the third respondent to consult
on his redundancy and, in fact, dismissed him for operational reasons.
[25] The applicant argued that the consultation and dismissal were not necessary,
as it was not the employer of the third respondent , but embarked on the
consultation process out of an abundance of caution.
[26] There was a consulting agreement between the applicant and Crystal Tree,
which provided for the applicant to provide services to Crystal Tree for a fee.
[27] In accordance with this agreement, the third respondent remained an
employee of the applicant, was paid by the applicant , and received pay slips
showing that he was an employee of the applicant. It was, however, common
cause between the parties that the third respondent rendered services to
Crystal Tree, with 10 percent of his time being reserved for the applicant.
[28] Mr Stelzner conceded that the applicant remained the employer of the third
respondent in respect of 10 percent of his time.
[29] There is no indication that the employment of the third respondent ever
transferred from the applicant to Crystal Tree. The opposite is true. The third
respondent remained an employee of the applicant at all times, with his
services seconded to Crystal Tree.
[30] Consequently, the CCMA did have jurisdiction to arbitrate the dispute.
Fairness of the dismissal
[31] The third respondent cancelled his agreement with Vink, Boula nd and van
Wyk on 3 April 2020.
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[32] This resulted in Crystal Tree indicating to the applicant that it no longer
required the service provided for in the consulting agreement between the two
entities.
[33] The effect of this cancellation was that the third respondent’s services
reverted to the applicant.
[34] Pursuant to this, the applicant initiated consultations with the third respondent
in terms of s189 of the LRA on 5 May 2020, correctly so, as it remained the
employer of the third respondent.
[35] The reason for the proposed retrenchment of the third respondent was the
cancellation of the agreement between the applicant and Crystal Tree,
resulting in the position of the third respondent becoming redundant.
[36] The Commissioner, in his award, conflated the applicant and Crystal Tree, in
his erroneous belief that the two companies shared the same shareholders ,
resulting in a blurring of the business of the 2 companies . While there were
some shared shareholders, the applicant had shareholders who were not also
shareholders of Crystal Tree.
[37] What the Commissioner ignored was that it is the directors of a company, and
not the shareholders, who manage the day -to-day business and operations of
that company. The only shareholders of the applicant who were also directors
of the applicant were van Wyk and Bouland. There were at least 2 other
directors managing the applicant ’s business operations and consequently,
business decisions for the applicant could not be made by van Wyk, Bouland
and Vink.
[38] It was not for the shareholders of the applicant to decide what business the
applicant would pursue. T he directors of the applicant made a decision that
the applicant would not engage in special projects. It was for this reason that
van Wyk, Vink and Bouland decided to pursue special projects in Crystal Tree
and offered the position of Managing Director and shareholder to the third
respondent.
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[39] When the third respondent cancelled his agreement with van Wyk, Vink and
Bouland, there was in fact no longer any work for the third respondent in the
applicant, other than the 10 percent of his time allocated to the applicant.
[40] A consultation process followed. The third respondent contended that the
cancellation of the agreement with Vink, Bouland and van Wyk was their fault
as the shares were not issued to him as agreed. He did not address the
failure to conclude a shareholders’ agreement.
[41] The third respondent also contended that he was unaware of the consulting
agreement between the applicant and Crystal Tree, and that the special
project he was working on was for the benefit of the applicant.
[42] The third respondent proposed that van Wyk should be retrenched, rather
than himself. This was addressed by the applicant , and the third respondent
was advised of his retrenchment on 18 August 2020.
[43] At the same time as referring the dispute to the CCMA, the third respondent
also instituted action proceedings in this court against the applicant, van Wyk,
Vink, Bouland and Crystal Tree, claiming unpaid salary. In his amended
statement of claim, the third respondent pleaded that “ he would manage the
business of Crystal Tree with a view to raising and managing an investment
fund for Tsing Capital of China”.
[44] It is clear from this that the third respondent understood that the work he
would be doing post the agreement in 2016 was for Cr ystal Tree, and not for
the applicant.
[45] This confirms the stance taken by the applicant during its consultations with
the third respondent that his service was for Crystal Tree and not for the
applicant and that the sole reason for his employment by the applicant was to
accommodate his FAIS registration and retain his VISA so that he could
tender his services to Crystal Tree.
[46] When the Crystal Tree agreement was cancelled, and the applicant was no
[46] When the Crystal Tree agreement was cancelled, and the applicant was no
longer required to second the third respondent to Crystal Tree, the reason for
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the third respondent’s employment fell away. This is where the Commissioner
lost sight of the evidence before him. His determination that an event in
Crystal Tree was not capable of triggering a retrenchment by the applicant
was a failure to understand or consider the evidence tendered.
[47] Had he properly understood the evidence, he would have realised that the
only reason for the continued employment of the third respondent by the
applicant was his secondment to Crystal Tree in terms of the consulting
agreement and when the need for the third respondent’s service to Crystal
Tree fell away, so did the reasons for his continued employment.
[48] This failure resulted in an outcome that was disconnected from the evidence
and consequently one that another reasonable Commissioner could not have
arrived at.
Procedural fairness
[49] The Commissioner’s finding of procedural unfairness is premised on his
misconception of the evidence. He only found that there was procedural
unfairness because the outcome was a foregone conclusion.
[50] In casu this was not the case, as is evidenced from the copious
correspondence between the attorneys for the applicant and those for the
third respondent. The process spanned nearly four months and included both
‘numerous’ meetings, according to the third respondent’s email dated 6
August 2020, and correspondence between the attorneys for both parties.
[51] There was a clear and extensive ventilation of the i ssues that the parties were
obliged to consult on, as well as a reference to some meetings between them.
[52] There was no evidence from the third respondent that the process was unfair.
His only claim was that the consultations were not conducted in good faith.
[53] Having regard to the volume of correspondence between the parties,
numerous meetings and the consideration of the third respondent’s request
that the applicant consider bumping van Wyk, I can find no indication that the
outcome of the consultation was pre-determined.
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[54] The finding of the Commissioner in his award that this was the case is not
connected to any of the evidence that was before him, and consequently not
an outcome that another arbitrator could have arrived at.
[55] Based on the volume and content of the consultation between the parties, I
find that the procedure followed by the applicant was fair.
Costs
[56] Costs do not automatically follow the outcome in this court , but are instead
made in accordance with the requirements of the law and fairness.
[57] The applicant was successful only in respect of the fairness of the dismissal,
and not on its jurisdictional claim.
[58] The Constitutional Court in Zungu v Premier of the Province of KwaZulu- Natal
& others7 held that costs orders should not be made unless the requirements
in s162 of the LRA are met.
[59] None of those conditions are present in this case and a cost order is not
justified.
Conclusion
[60] For all the reasons set out above, I am satisfied that interference in the award
is justified.
[61] In the results, the following order is made:
Order
1. The award issued by the second respondent under case number
WECT12675-20 is reviewed and set aside and replaced with an order
that the dismissal of the third respondent was substantively and
procedurally fair.
7 (2018) 39 ILJ 523 (CC).
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2. No order is made as to costs.
_______________________
L Myburgh
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv RGL Stelzner SC
Instructed by: Smith Tabata Buchanan Boys
For the Respondent: Adv F Rautenbach
Instructed by: Carelse Khan Attorneys