(1) Reportable: NO
(2) Of interest to other Judges: Yes/No
(3) Revised
Signature Date
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 2208/19
In the matter between:
THABO MOTONGOE Applicant
and
COLAS SOUTH AFRICA (PTY) LTD First Respondent
RONEL DE WET N.O. Second Respondent
NATIONAL BARGAINING COUNCIL FOR
THE CIVIL ENGINEERING INDUSTRY Third Respondent
Heard: 26 February 2026
Delivered: 30 March 2026
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NAIDOO, AJ
Introduction
[1] The applicant, Mr Thabo Motingoe (Motingoe), seeks to review and set aside
an award dated 16 August 2019, wherein the second respondent (arbitrator)
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found that Motingoe failed to establish a reasonable expectation that his fixed-
term contract would be renewed and therefore failed to establish a dismissal.
[2] The first respondent, Colas South Africa (P ty) Ltd (Colas), filed an answering
affidavit, however Motingoe’s attorney at the time objected to the late filing of
Colas’ answering affidavit . This called on Colas to file a condonation
application in this regard.
[3] Colas has not filed a condonation application, nor were they represented at
the hearing despite their attorney receiving the notice of set down on 12 June
2025.
[4] The review application continued in default. Motingoe was not represented at
the hearing and advised the Court that he was not in a position to continue
funding his erstwhile attorney. Fortunately, for both Motingoe and the Court,
his attorney did file heads of argument.
Background
[5] In 2017, Colas retrenched Motingoe together with other employees. However,
a Mr F. van Wyk informed Motingoe that his retrenchment was in error and
requested that Motingoe continue to perform his normal duties.
[6] Van Wyk further advised Motingoe that he would be placed on a fixed- term
contract until the error was corrected, after which he would continue as a
permanent employee.
[7] From that day and for the reason mentioned, Motingoe entered into various
fixed-term contracts with Colas. From 1 September 2018 to 28 February
2019, Motingoe continued to render services but refused to sign any further
fixed-term contracts for that period, whereafter he was informed that his fixed-
term contract had ended.
[8] At proceedings before the arbitrator, Colas did not materially dispute these
facts, save for the allegation made by Mr Lucas (Lucas) at arbitration that
Motingoe was working under a fixed- term contract until his last contract came
to an end. In this regard, Lucas testified that while Motingoe initially refused to
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sign a further fixed- term contract, he was given the choice of either signing
the same or leaving Colas’s employ. According to Lucas, Motingoe chose to
continue working for Colas.
[9] Lucas further testified that the department Motingoe worked in had no work ,
and that was the reason Colas did not renew Motingoe’s contract.
[10] In rejecting Motingoe’s argument that Colas breached s198B(6)(a) and (b) of
the LRA, in that they neither renewed Motingoe’s contract in writing nor did
they included a written reason why he was placed on a fixed- term contract, as
contemplated in s198B(3), the arbitrator found that the relief Motingoe sought
could not obtained in a s198B claim read together with s198D.
[11] Turning to whether Motingoe established a reasonable expectation that his
contract would be renewed or that he would be offered permanent
employment, the arbitrator accepted the fact that Motingoe’s fixed- term
contract had been renewed on various occasions between November 2017
and February 2019, and, absent any material dispute from Colas, further
accepted that Motingoe was promised permanent employment by van Wyk.
[12] Somewhat confusingly, the arbitrator thereafter finds that Motingoe’s
subjective expectation to enter into a new fixed- term contract or be offered
permanent employment did not meet an objective threshold. The arbitrator
found that Lucas’ evidence in relation to the option he gave Motingoe, namely
either signing a further fixed- term contract or leaving, was left unchallenged
and was ‘fatal’ to Motingoe’s claim.
Review
[13] Much of Motingoe’s review application focused on why the arbitrator erred in
her finding relating to s198B.
[14] Motingoe’s last ground on review was that it was common cause that
Motingoe established a reasonable expectation as required in terms of
s186(1)(b)(i) or (ii), and hence the arbitrator erred in this regard.
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Analysis
[15] I find it difficult to comprehend the circumstances in which an employee claims
to be a permanent employee in terms of s198B(5) of the LRA and at the same
time, claims to have a reasonable expectation that their contract would be
renewed or offered permanent employment. The two claims appear mutually
exclusive.
[16] The arbitrator cannot be faulted for adopting the position she did.
[17] It is trite that assessing whether an employee was dismissed in terms of
s186(1)(b) goes to the jurisdiction of the third respondent and that a challenge
on an arbitrator’s finding on this score attracts the correctness -based test on
review and not the reasonable decision maker test.
[18] On a generous reading of his affidavit, Motingoe has established that he had a
reasonable expectation that either his contract would be renewed on the
same or similar conditions, alternatively , that he would be offered permanent
employment. This expectation was premised on the fact that his contract had
been renewed on various occasions prior, and/or on the utterances of van
Wyk advising him he would be made permanent after the error of being
retrenched had been addressed.
[19] Without being in a position to consider Colas’ answering affidavit for reasons
mentioned, together with the fact that there appears to be conflicting reasons
in the award why Colas terminated Motingoe’s employment (either because
there was no work for him or for reasons relating to misconduct in that he
refused to sign a further fixed- term contract), this Court in not in a position to
determine whether Motingoe’s dismissal was f air or not. That issue will best
be ventilated at arbitration.
Order
1. The second respondent’s award is set aside and replaced with a
finding that the applicant was dismissed in terms of s186(1)(b) of the
LRA.
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2. The issue of whether the applicant’s dismissal was fair or not is
remitted to the third respondent to be heard de novo before a
commissioner other than the second respondent.
3. There is no order as to costs.
___________________
M Naidoo
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: In person.
For the Respondent: No appearance.