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(1) Reportable: NO
(2) Of interest to other Judges : NO
Date
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JS62/2020
In the matter between:
NAKENE TLHAPA Plaintiff
and
COCA COLA BEVERAGES SA Defendant
Date: 2 - 4 February 2026
Delivery: Judgment handed down by emailing same to the parties, on 26 March 2026.
Summary: Alleged unfair retrenchment - evidence establishing that there was a valid
and fair operational reason - evidence showing that there were no viable alternatives
to retrenchment. Dismissal substantively fair.
JUDGMENT
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DANIELS J
Introduction
[1] In his amended statement of claim, the plaintiff alleged that his dismissal, by
the defendant, was substantively unfair because the position in which he was
employed was not redundant. The plaintiff alleged that he was no longer
engaged in the affected department (i.e. the "vending department'') which the
defendant closed. At trial, despite the absence of any allegation to this effect in
his pleadings, the plaintiff alleged that the defendant refused to place him into
an alternative position because of his ill health. Furthermore, despite the
absence of any pleading to that effect, the plaintiff alleged that the retrenchment
was procedurally unfair.
The Pleadings
[2] It is trite that the parties are bound by the pleadings, the pre-trial agreement, 1
and the issues agreed to in the pre-trial minute.2 The court cannot, and should
not, go beyond the issues it is required to determine in the pleadings.
[3] The purpose of the pre-trial minute is to narrow the issues in dispute, if possible.
In this matter, the pre-trial minute limits the issues to be determined to: (a)
whether the plaintiff at the time of the retrenchment was in the vending
department, and (b) whether the defendant had "substantive reasons to
terminate the plaintiffs employment based on its operational requirements".
Accordingly, the plaintiff's allegations that the defendant refused to place him
into an alternative position because of his ill health is not an issue before the
court and neither is the question of whether the retrenchment was procedurally
1 Chemical, Energy, Paper, Printing, Wood & Allied Workers Union and Others v CTP Ltd and another
[2013) 4 BLLR 378 (LC).
2 Professional Transport & Allied Workers Union on behalf of Khoza and Others v New Kleinfontein
Gold Mine (Pfy) Ltd (2016) 37 ILJ 1728 (LC); National Union of Metalworkers of SA and Others v
Drivefine Technologies (Pty) Ltd and another (2000) 21 ILJ 142 (LAC).
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fair. In any event, the evidence demonstrated that section 189A of the Labour
Relations Act No. 66 of 1995 (the "LRA") was applicable to the dispute and this
court presently cannot adjudicate the procedural fairness of a large-scale
retrenchment through trial proceedings. Such disputes must be determined by
application in terms of section 189A(13) of the LRA.
Evidence presented
(4] The defendant called two witnesses , whose evidence is summarized below:
4.1 The first witness, Mr Justice Phetla ("Mr Phetla") testified that he is
employed by the defendant as its Group Head for Employee Relations. Mr
Phetla testified that he drafted the section 189(3) notice and addressed it
to the two affected unions, FAWU3 and the NUFBWSAW4 on behalf of their
members. The notice5 set out the rationale6 for the proposed closure of the
vending department in the East Rand. A consultation process, facilitated by
the CCMA, was held, in terms of section 189A of the LRA. The plaintiff, as
a shop steward of NUFBWSAW, attended the consultations. In the
consultations, plaintiff never stated that he was not part of the vending
department. The plaintiff was part of the vending department, as reflected
by his payslip. Plaintiff, who was engaged as a driver in the vending
department, had been dismissed for incapacity during 2017, and reinstated
by the CCMA during 2018. The plaintiff was reinstated by the defendant
but, because he could no longer perform his duties, he was temporarily
assigned to the sales execution team, managed by Ms Renelle Venter.
There were no permane.nt filing positions, and there was no filing
department either. At all material times, until his retrenchment, the plaintiffs
position was that of driver in the vending department. When the defendant
3 The Food and Allied Workers Union (FAWU)
4 The National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW)
5 The notice also stated that 13 employees could be affected, the defendant had 7865 employees, and
it had retrenched 368 employees during the previous 12 months.
6 The rationale included declines in revenue, inefficiencies, poor productivity , and poor equipment.
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transfers an employee to a new position, this is confirmed in writing. A
transfer will impact on the employee's salary and terms of employment. The
plaintiff was not suitable for the alternative positions he applied for, namely
warehouse operator and production process controller. He could not
perform the work of warehouse operator because of his ill health, which
was confirmed by the report of the occupational health professional, Dr
Nelda Van Zyl, in September 2019.7 The plaintiff did not have the
qualifications (including knowledge of maths and science), skills or
experience to perform the function of production process controller, and to
train him to do the job could take more than six months. This was confirmed
in the letter sent to the plaintiff.8 The plaintiff was not dismissed because of
his ill health or disability.
4.2 Mr Kamlesh Lalla ("Mr Lala") testified next. Mr Lalla is engaged as the
defendant's manager in its sales and marketing department. Mr Lalla
explained the commercial rationale for the retrenchment and explained the
reasons why the vending department was no longer fit for purpose. This
evidence was unchallenged by the plaintiffs representative during cross
examination. Mr Lalla knows the plaintiff as a driver in the vending
department. After the plaintiff was reinstated by the CCMA during 2018, the
defendant reinstated the plaintiff but placed him elsewhere while it sought
a permanent alternative position for him. Mr Lalla confirmed that the
plaintiff's assignment to do filing was temporary, to accommodate his
medical difficulties, and there was no permanent filing position available.
His evidence corroborated that of Mr Phetla.
[5] Mr Nakene Tlhapa ("Mr Tlhapa") testified on his own behalf and called no
further witnesses. Mr Tlhapa was employed by the defendant since 1997. From
2010, he was employed as a driver in the vending department. He was injured
during 2013, and thereafter experienced back problems. He was placed on
7 Bundle C, p51
8 Bundle B, p32
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temporary disability until he returned to work. During 2017, he was dismissed
for incapacity. He challenged the fairness of his dismissal and was reinstated ,
by the CCMA, in 2018. After his return, the defendant attempted to place him
in its special events department, but Mr Tlhapa rejected this. He was then
instructed to report to Ms Venter to do filing for the sales execution team. The
plaintiff believed Ms Venter intended to accommodate him on a permanent
basis, but she required the cooperation of human resources. Ms Venter sent an
email to human resources but received no response.9 Mr Tlhapa testified that
he informed Mr Phetla, during the consultations, that he was not part of the
vending department, but Mr Phetla insisted that he was. Mr Tlhapa testified that
he was qualified for the position of production process controller because he
was shortlisted, and he had done work in production when he was first engaged
by the defendant about twenty-two years earlier. Mr Tlhapa testified that the
defendant did not tell him that knowledge of science and mathematics was
required for the position of production process controller. He was willing to take
a salary cut, and the defendant should have searched harder for an alternative
position. Under cross examination, after being confronted with various
documents, 10 Mr Tlhapa conceded that he was permanently employed in the
vending department and had not been transferred. Mr Tlhapa testified that the
defendant used the retrenchment process to get rid of employees with medical
issues because it only found alternative employment for those employees had
no medical issues. A further indication of this, says Mr Tlhapa, is the notice of
termination of employment where the defendant stated that his ill health made
it difficult to place him into another role.
9 Bundle 8, p20. The email itself describes the work being performed by the plaintiff and states " ... as
discussed, later when filing and storage areas are up to date, I would like to start training Nakene on
SAP how to capture DOC 's and scanning of documentation. " The email does not suggest that the filing
work was of a permanent nature.
10 His payslips from April, May and June 2019 indicated that he was employed as a driver in the vending
department. Mr Tlhapa signed a petition identifying himself as an employee in the vending department
(Bundle C, p61). On 21 January 2019, Mr Tlhapa sent an email to human resources stating "I'm currently
being temporarily accommodated in filing at Bdf due to medical conditions" (Bundle B, p25).
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Assessment of the evidence
[6] Recently, in Workforce Staffing (Ply) Ltd v Mjoli and Another11 Van Niekerk JA
repeated the principles to be applied when a court is faced with irreconcilable
disputes of fact. The proper approach is to first consider whether the disputes
can be resolved on the probabilities. If this fails to reveal where the truth lies,
then recourse may be had to the credibility of the witnesses. It is important to
remember that the estimate of the credibility. of a witness is inextricably bound
up with a consideration of the probabilities of the case.
[7] In this matter, there are few material disputes of fact. The plaintiff did not
challenge the rationale for the retrenchment, apart from alleging that the
defendant targeted certain employees for retrenchment because of their ill
health. However, plaintiff presented no cogent evidence of this alleged
victimization. In any event, the allegation was not pleaded.
(8] The main dispute related to whether the plaintiff was engaged in the vending
department at the time of his retrenchment. However, ultimately, the plaintiff
conceded that he was still engaged in the vending department. That concession
was properly made. The probabilities overwhelmingly indicate that the plaintiff
was engaged in the vending department at the time of his dismissal. On his
own version, he was working in another department on a temporary basis, for
medical reasons. Human resources never confirmed the transfer, and it never
assigned new conditions of employment to him.
[9] At trial, the plaintiff alleged that he was qualified for the position of production
process controller. This too was not pleaded. In any event, the probabilities
weighed strongly against the plaintiffs version. He could not explain what the
position entailed, his previous experience, for several years, was that of driving_
11 [2024] 7 BLLR 734 (LAC); (2024) 45 ILJ 1627 (LAC) at para [24)
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He last worked in production more than two decades earlier and he had never
held that position previously.
Legal Principles and analysis
[1 OJ In a retrenchment dispute, where substantive fairness is in issue, the court must
consider whether the employer has proven that the retrenchment was based
on some economic, technological, or similar need. While employers have the
prerogative to restructure, the courts do not accept the proffered rationale at
face value, nor do they defer to the employer. The court will consider whether
the decision to retrench was fair to the employees and it fell within the range of
reasonable options available in the circumstances. However, in this matter, the
plaintiff did not challenge substantive fairness except in an extremely narrow
manner. He alleged that he was not engaged in the affected department - an
issue he conceded. The further allegations are dealt with in paras [7] and [9]
and, in any event, were not properly pleaded. In the circumstances, the
defendant discharged the onus.
[11] Neither party actively pursued costs. There is no reason to depart from the
usual rule that costs do not follow the result.
Conclusion
[12) In the result, the plaintiff's case falls to be dismissed. There is no oder as to
costs.
Judge of the Labour Court f South Africa
Appearances :
For the Plaintiff
Adv Morapedi
Instructed by Nkosi Tshaba lala Inc
For the Defendant
Adv V Mndebele and J Mabuza
Moeletsi Attorneys
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