THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR1352/21
In the matter between:
NEHAWU OBO MUDAU AND OTHERS First Applicant
PSA OBO NTLOANA AND OTHERS Second Applicant
and
COMMISSIONER MARTIN SAMBO First Respondent
THE GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL(FULL NAME) Second Respondent
DEPARTMENT OF AGRICULTURE,
RURAL DEVELOPMENT, LAND AND
ENVIRONMENTAL AFFAIRS Third Respondent
Heard: 4 February 2026
Delivered: 13 February 2026
JUDGMENT
H M VILJOEN, AJ
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] This is an application in terms of section 145 of the Labour Relations Act,1
(the LRA) to review and set aside an arbitration award issued by the First
Respondent (Commissioner) on 17 May 2021, under the auspices of the
General Public Service Sector Bargaining Council (the Second Respondent).
[2] The Individual Applicants are members of the National Education, Health and
Allied Workers Union (NEHAWU) and the Public Servants Association (PSA),
employed by the Department of Agriculture, Land Reform and Rural
Development (Third Respondent). They occupy the positions of Agricultural
Advisors and Agricultural Training Officers.
[3] The central controversy in this matter concerns the occupational
classification of the Applicants. They contend that, by virtue of their
academic qualifications, statutory registration, and the scientific nature of
their duties, they fall within the category of “Scientists” as envisaged by
GPSSBC Resolution 3 of 2009 (the Resolution) and the Occupational
Specific Dispensation (OSD) Determination. Consequently, they claim
entitlement to be translated to the OSD for Scientists.
[4] The Third Respondent disputes this classification. It maintains that whilst the
Applicants possess science degrees, their posts are designated for
extension services and training rather than scientific research involving peer -
reviewed publication. On this basis, the Department refused to translate the
Applicants to the OSD scales applicable to scientists.
[5] Aggrieved by this refusal, the Applicants referred an unfair labour practice
dispute to the Bargaining Council. In the impugned award, the Commissioner
dismissed the claim, finding that the Applicants did not meet the definition of a
scientist for the purposes of the OSD.
[6] The determination of this review does not turn solely on a factual enquiry into
the Applicants’ daily tasks. Rather, it turns on whether the Commissioner
1 Act 66 of 1995, as amended.
3
committed a material error of law by importing non-existent requirements into
the definition of a "Scientist."
Preliminary Issue: Condonation
[7] An interlocutory application for condonation for the late filing of the record
was filed. Although the issue was raised, neither party persisted with
argument on condonation at the hearing. In these circumstances, and
insofar as condonation is required, it is granted.
The Factual Matrix
[8] The Individual Applicants are employed by the Third Respondent as
Agricultural Advisors and Agricultural Training Officers, occupying various
grades and designations within the extension and advisory services. It is
common cause that they possess tertiary qualifications in agricultural
science, ranging from Bachelor of Science degrees to postgraduate
qualifications, and that they are now registered with the South African
Council for Natural Scientific Professions (SACNASP) , established by the
Natural Scientific Professions Act .
2 Although some Applicants obtained
statutory registration after the initial implementation of the OSD, the
instruments expressly provide for the translation of non- registered
incumbents, and the evidence shows that the duties performed by registered
and non -registered employees are substantively identical. The dispute
therefore turns not on their registration status, but on the nature of their
work.
[9] The Applicants led oral evidence over several sittings. During the
proceedings, and after several witnesses had testified, the parties reached a
procedural agreement that was placed on record on 3 March 2021. The
Applicants’ representative recorded that the evidence already led would
apply equally to all Applicants who had not testified, and that the Applicants
would close their case on that basis. The Respondent expressly confirmed
this arrangement, noting that the Applicants’ witnesses “say one and the
2 Act 27 of 2003.
4
same thing” and that it would “stand and fall by what the other witnesses
said”. No party suggested that further evidence was required. This
agreement forms part of the evidentiary record and defines the factual
foundation of the dispute.
[10] Pursuant to this agreement, evidence was led from six witnesses:
10.1. Mr Thinavhuyo Lesley Mudau,
10.2. Mr Rueben Mpono Maleka,
10.3. Mr Collen Ntlowana,
10.4. Ms Poppy Ramodibe,
10.5. Mr Maisela Jacob Madisha, and
10.6. Dr Windy Thamaga.
[11] Their evidence collectively provided a detailed account of the scientific
content of the Applicants’ daily functions.
[12] Mr Mudau testified that his duties include conducting literature reviews of
scientific journals and technical reports, designing and implementing
demonstration trials, interpreting laboratory analyses of soil, water and leaf
samples, and developing fertilisation and remediation plans. He described
preparing technical manuals, production guidelines and training materials
based on scientific principles, and conducting training sessions for farmers
and extension officers. He explained that these tasks require the application
of agronomic, soil science and crop science knowledge.
[13] Mr Maleka, a PSA negotiator and signatory to Resolution 3 of 2009, testified
regarding the intention of the OSD and the meaning of “Scientist” within the
Resolution. He confirmed that agricultural science is a recognised field of
natural science and that the OSD was intended to align with the statutory
framework established by the Natural Scientific Professions Act.
5
[14] Mr Ntlowana testified that he was appointed in 2010 as an Agricultural
Scientist (Crop Production) and later redesignated as an Agricultural Advisor
without any change to his duties. He described his functions in detail,
including cultivar selection, fertiliser calculations, pest and disease
identification, chemical recommendations, calibration of planting and
fertilisation equipment, and the design and execution of demonstration trials.
He testified that these duties require scientific expertise and that he
performs them independently.
[15] Ms Ramodibe and Mr Madisha gave similar evidence, describing their work
in crop production, soil analysis, pest management, technology transfer, and
the development of scientific advisory materials. They confirmed that their
duties have remained consistent since their appointment and that they apply
scientific principles in their daily work.
[16] Dr Thamaga, a Specialist Agricultural Advisor, testified that all members of
her section perform scientific functions and that their duties have remained
unchanged over time. She confirmed that the work involves scientific
analysis, interpretation of laboratory results, and the application of scientific
knowledge in advising farmers and developing technical materials.
[17] Importantly, the Respondent did not challenge the factual description of
these functions in cross -examination. Its witness, Dr Mabelane, did not
dispute that the Applicants performed the tasks described. She accepted
that agricultural science falls within the OSD and conceded that the
Applicants “could be scientists ”. Her evidence was confined to the legal
characterisation of the work, namely her view that a “scientist” for OSD
purposes is someone who generates new knowledge published in peer -
reviewed journ als. No factual challenge was put to any Applicant witness
regarding the scientific nature of their duties.
[18] The factual evidence of what the Applicants actually do was not disputed in
[18] The factual evidence of what the Applicants actually do was not disputed in
cross-examination. The Respondent did not challenge the factual description
of the tasks performed — including literature reviews, demonstration trials,
laboratory interpretation, and the development of technical manuals — but
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only the legal characterisation of those tasks. In terms of the rule in Browne
v Dunn , that factual evidence must therefore be accepted. See Browne v
Dunn,3 Small v Smith 4 and Berry & Donaldson (Pty) Ltd v C ommission for
Conciliation, Mediation and Arbitration and Others .5 A party is required to put
its opposing version to a witness. Where it fails to do so, it is generally
precluded from later disputing that evidence.
[19] Having not disputed the description of the Applicants’ functions, the Third
Respondent’s defence rested solely on Dr Mabelane’s view that a “scientist”
for OSD purposes is someone who generates new knowledge published in
peer-reviewed journals. Because the Applicants do not publish in such
journals, she argued that they fall outside the definition.
[20] The Commissioner accepted this reasoning, distinguishing between the “Job
Purpose” in Annexure B and what he considered the substantive definition of
a Scientist. He reasoned that duties such as “assessment” and “evaluation”
overlap with the role of an “Extension Officer ”, a term derived from the
Department’s internal distinction between “Research” (generating
knowledge) and “Extension” (conveying knowledge). By applying this
internal rubric, the Commissioner concluded that the Applicants are
Extension Officers by definition, regardless of the scientific complexity of
their work.
Analysis
The Legal Status of the OSD Instruments
[21] The OSD finds its origin in PSCBC Resolution 1 of 2007, the framework
agreement mandating the introduction of Occupational Specific
Dispensations across the public service. This framework was given specific
effect for the science sector by GPSSBC Resolution 3 of 2009. Both
instruments are binding collective agreements and confer substantive rights
3 (1893) 6 R 67 (HL) .
4 [1954] 3 All SA 62 (SWA) .
5 [2022] ZALCJHB 184 at para 18.
7
that cannot be unilaterally varied by an employer’s implementation directive,
such as Circular 5 of 2009.
[22] Resolution 3 governs several professional categories, including Scientists,
and requires registration with the relevant statutory council as a prerequisite
for translation. The Natural Scientific Professions Act, 6 establishes
SACNASP and defines the categories of persons eligible for registration as
natural scientists. By requiring statutory registration, the bargaining parties
aligned the OSD with the statutory definition of the profession. Annexure B,
as an administrative implementation directive, must therefore be read
consistently with the Act and the Resolution.
The Material Error of Law: Text vs. Gloss
[23] The proper starting point is the definition of “Scientist” as created by the OSD
instruments themselves. Read together, Resolution 3 of 2009, Annexure B to
Circular 5 of 2009, and the Natural Scientific Professions Act establish the
operative definition for OSD purposes.
23.1. Resolution 3 identifies “Scientists” as an occupational category
requiring statutory registration with SACNASP.
23.2. The Act recognises Agricultural Science as a field of natural scientific
practice and requires registration for persons who apply scientific
principles and methods within such a field.
23.3. Annexure B provides the functional content of the category: a Scientist
is an employee who performs work involving research, assessment,
evaluation, development, innovation or protection in order to ensure the
sustainable use of natural resources and to contribute to a knowledge
economy. This functional definition is elaborated through the Key
Performance Areas, which include conducting research, performing
assessments and evaluations, interpreting scientific data, developing
and implementing scientific solutions, and providing scientific and
technical advice.
6 Act 27 of 2003.
8
[24] Notably, none of these instruments requires the generation of peer ‑reviewed
publications or the creation of new scientific knowledge as a prerequisite for
falling within the occupational category of “Scientist”.
[25] The Commissioner’s rejection of the Applicants’ claim was based on his
finding that they did not meet the definition of a scientist in Annexure B to
Circular 5 of 2009. Even assuming that Annexure B is the controlling
document, the Commissioner’s application of it was flawed.
[26] The text of Annexure B defines the purpose of a Scientist as assisting in
“research, assessment, evaluation, development, innovation and protection”
to ensure the sustainability of resources and contribute to a knowledge
economy.
[27] It does not contain the words “peer -reviewed publication ”, “academic
journals”, or “generation of new knowledge” . These requirements were
introduced through the oral testimony of Dr Mabelane. By accepting this
gloss, the Commissioner relied on a criterion not found in the governing
instruments.
[28] Annexure B is an administrative directive. It cannot narrow the scope of the
OSD created by Resolution 3, nor can it override the statutory definition
embedded in the Act. To the extent that it is read as imposing a narrower
definition, such a reading must yield to the higher-order instruments.
[29] Had the Commissioner confined himself to the text, he would have found
that the Applicants’ duties correspond directly with the performance areas
listed in Annexure B. The evidence established that:
29.1. Agricultural Training Officers conduct literature reviews and develop
technical training manuals.
29.2. Agricultural Advisors conduct research on cultivars in collaboration
with industry bodies.
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29.3. Both categories of employees conduct assessments, interpret soil and
water samples, and design demonstration trials to test new
technologies.
[30] This evidence was not challenged. The Commissioner’s conclusion that the
Applicants do not meet the definition of a scientist is therefore not one that a
reasonable decision- maker could reach.
[31] A similar issue arose in Gala v Daniel Seopela N.O and Others (Gala),7 where
the Court held that an arbitrator commits a reviewable irregularity by failing to
interpret Resolution 3 of 2009 holistically and by relying on departmental
classifications rather than the OSD instruments themselves. In Gala , the
arbitrator ignored the job description of an Agricultural Advisor, the
Memorandum of Understanding describing scientific duties, and the
requirement in clause 13.1 that translation must follow the post occupied at
the time of implementation. The same error occurred in the present matter.
The Commissioner relied on the Department’s internal “extension versus
research” distinction and imported a requirement of peer‑reviewed publication
that appears nowhere in the OSD. As in Gala , this constituted a material error
of law that rendered the outcome unreasonable.
The Application of the Resolution to Late Qualifiers
[32] The OSD instruments draw a clear distinction between three categories of
employees:
(a) Employees in service on 30 June 2009
[33] Clause 13.2.3 of Resolution 3 of 2009 expressly provides that employees who
were permanently appointed and performing the duties of the post
satisfactorily as of 30 June 2009 must be translated to the OSD as a once- off
measure, even if they were not registered with SACNASP at the time. Their
lack of registration does not disqualify them from translation.
7 [2022] ZALCJHB 26.
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(b) Employees appointed between 1 July and 1 October 2009
[34] Circular 5 of 2009, clause 3(a)(x), extends this once- off translation
dispensation to employees appointed during this transitional window. These
employees, too, may be translated despite not being registered at the time of
appointment.
(c) Employees appointed after 1 October 2009
[35] This group stands differently. They fall outside both the once- off translation
provision in clause 13.2.3 and the transitional dispensation in clause 3(a)(x).
For them, the OSD operates purely as an appointment regime, not a
translation regime. To qualify for placement into an OSD post, they must meet
the full appointment requirements, including statutory registration with
SACNASP, at the time of appointment.
[36] None of the Applicants appointed after 1 October 2009 were registered
scientists when appointed, nor were they appointed into OSD posts. Their
claim to translation cannot succeed.
Conclusion
[37] The Commissioner misconceived the nature of the enquiry by testing the
Applicants’ duties against a witness’s subjective opinion rather than the text
of the OSD instruments. On the undisputed facts, the Applicants perform
scientific work as defined in the relevant instruments.
[38] The dispute turns on the interpretation of the OSD instruments, and the
factual evidence is uncontested. In these circumstances, remittal would
serve no purpose. This Court is in as good a position as the Commissioner
to determine the matter, and substitution is appropriate.
[39] In the premises, the following order is made:
Order
1. Condonation is granted for the late filing of the record, and the review
application is reinstated.
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2. The arbitration award issued by the First Respondent under case
number GPBC 2177/2018 dated 17 May 2021 is reviewed and set
aside.
3. The award is substituted with the following order:
3.1 It is declared that the Applicants, employed as Agricultural
Advisors and Agricultural Training Officers and appointed on or
before 1 October 2009, fall within the occupational category of
"Scientists" as defined in GPSSBC Resolution 3 of 2009.
3.2 It is declared that the Applicants appointed after 1 October 2009
are not entitled to translation under Resolution 3 of 2009.
3.3 The Third Respondent is ordered to translate the Applicants
referred to in paragraph 3.1 above, to the Occupational Specific
Dispensation (OSD) for Scientists in accordance with the
translation keys and salary scales contained in Clause 13 of
Resolution 3 of 2009.
3.4 The translation shall be effective retrospectively from:
3.4.1 1 July 2009 for those Applicants who were in the employ
of the Third Respondent on 30 June 2009; or
3.4.2 The date of appointment, for those Applicants employed
between 1 July 2009 and 1 October 2009 (both days
inclusive).
3.5 The Third Respondent is ordered to calculate and pay to each
Applicant mentioned in paragraph 3.1 above, the difference
between the remuneration they actually received and the
remuneration they would have received had they been correctly
translated or placed.
4 The payment referred to in paragraph 3.5 shall:
4.1 Be effected within 90 (ninety) days of the date of this order; and
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4.2 Carry interest at the prescribed legal rate from time to time ,
calculated from 17 May 2021 to the date of final payment.
5 There is no order as to costs.
_______________________
H.M. Viljoen
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv. Ngutshana
Instructed by: Mudau and Netshipise Attorneys
For the Respondent: Adv. Vukeya
Instructed by: Lamula KB Attorneys