THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 1747/16
In the matter between:
THATO GLADWIN MAJAKI Applicant
and
GENERAL PUBLIC SERVICES SECTORAL
BARGINING COUNCIL First Respondent
ANNELIE BEVAN N.O. Second Respondent
DEPARTMENT OF LOCAL GOVERNMENT
AND HUMAN SETTLEMENT Third Respondent
Heard: 26 February 2026
Delivered: 30 March 2026
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JUDGMENT
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NAIDOO, AJ
Introduction
[1] The applicant , Mr Thato Gladwin Mojaki (Mojaki), seeks to review and set
aside an award dated 5 May 2016, wherein the second respondent (arbitrator)
(1) Reportable: NO
(2) Of interest to other Judges: Yes/No
(3) Revised
___________ ___________
Signature Date
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found that the non- renewal of his fixed-term contract did not constitute a
dismissal for purposes of s186(1)(b) of the Labour Relations Act1 (LRA).
[2] Mojaki’s review application was filed 70 days late. Explaining this delay,
Mojaki submits that he was a member of Scorpion Legal Protection (Scorpion
Legal) and, due to their internal measures, had to wait until Scorpion Legal
first conducted an assessment on the merits of his review application before
assigning him an attorney to pursue his review application.
[3] Mojaki has offered a reasonable explanation for the full period of his delay,
and although lengthy, it is in the interest of justice to grant condonation, as will
become apparent when addressing the merits of his review application.
Background
[4] Mojaki and the third respondent, the Department of Human Settlement: North
West Province (the Department), entered into a 6- month fixed-term contract
commencing 1 July 2014, in terms of which Mojaki was appointed as a driver
reporting to the Department’s Accounting Officer.
[5] At the time, the Department placed a moratorium on filling vacant posts;
however, because Mojaki’s position was considered a ‘critical post’, his
recruitment and subsequent appointment had been approved, independent of
the Department’s recruitment policy.
[6] The Department renewed Mojaki’s contract for a further 6 months from 1
January 2015 to 30 June 2015.
[7] Sometime in May 2015, and as a result of the Department’s operational
needs, M ojaki was transferred to the Department's Supply Chain
Management Centre, where he continued to tender his services as a driver .
Mojaki’s contract was not renewed after the expiry of his second fixed- term
contract.
[8] Mojaki referred a dismissal dispute to the first respondent, claiming he had a
1 Act 66 of 1995, as amended.
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reasonable expectation that he would be offered a permanent position.
[9] At arbitration, the arbitrator accepted an agreement reached between Mojaki,
who represented himself, and the Department’s Labour Relations Official, that
the parties would dispense with a hearing and instead submit written
representations after which the arbitrator would deliver her award.
[10] Having conducted the process in this manner, the arbitrator found that Mojaki
has failed to establish a reasonable expectation for a permanent post.
Grounds on Review
[11] Mojaki submits that the arbitrator committed gross misconduct by allowing the
parties to dispen se with a hearing and instead file written submissions. In
doing so, and according to Mojaki, the arbitrator breached the audi alteram
partem principle.
[12] The second ground on review is that the arbitrator failed to have regard to
clause 9 of his fixed- term contract, which made it mandatory for disputes
between the parties to be referred to private arbitration. Continuing the attack
on the first respondent’s jurisdiction, Mojaki further submits that because he
was employed outside the prescripts of the Department’s recruitment policy, it
was the CCMA, and not the first respondent, who had jurisdiction to entertain
his dispute.
Analysis
[13] There is merit to Mojaki’s first ground on review.
[14] In SA Social Security Agency v National Education Health & Allied Workers
Union on behalf of Punzi & Others2, addressing the very same argument, the
Court held;
‘In the absence of such a stated case, oral evidence should be led on the
material facts in dispute at arbitrations in terms of the LRA. Commissioners
and arbitrators should not condone an agreement between parties that no
2 (2015) 36 ILJ 2345 (LC) at para 8.
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oral evidence be led unless such a stated case has been agreed, and on
which they may draw legal conclusions. Although parties may regard
submitting documents and argument as a fast way of resolving a dispute on
the day of arbitration, it in fact renders the award issued susceptible to review.
In the result, the principle of speedy resolution of disputes is ultimately
sacrificed.’
[15] Confirming this stand point, the LAC in Arends & others v SA Local
Government Bargaining Council & others3:
‘When parties desire to proceed without oral evidence in the form of a special
case, it is imperative that there should be a written statement of the facts
agreed by the parties, akin to a pleading. Otherwise, the presiding officer may
not be in a position to answer the legal question put to him. Alternatively,
without such a statement, the question put is in danger of being abstract or
academic. Courts of law and arbitration tribunals dealing with disputes of right
exist for the settlement of concrete controversies and not to pronounce upon
abstract questions or to give advice upon differing contentions about the
meaning of an agreement. Where a question of legal interpretation is
submitted to an arbitrator, the parties must set out in the stated case a factual
substratum which shows what has arisen and how it has arisen. The stated
case must set out agreed facts, not assumptions. The purpose of the rule is to
enable a case to be determined without the necessity of hearing the
evidence.’
[16] It is common cause that the arbitrator in casu determined the dispute on the
written submissions only and in the absence of a stated case. The parties did
not place before the arbitrator a signed pre- trial minute , which could have
served the purpose of a stated case. From her award, it is clear that the
arbitrator had regard to documents included in the Department’s bundle as
well as documents Mojaki attached to his written submission, without first
well as documents Mojaki attached to his written submission, without first
questioning the status of the parties' respective documents. Were the
documents admitted into evidence, or were they in dispute? These are
questions the arbitrator ought to have asked the parties.
[17] The facts herein materially differ from the facts in Mashigo v Safety and
3 (2015) 36 ILJ 1200 (LAC) at para 15.
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Security Sectoral Bargaining Council and Others4, for the above reasons.
[18] I am therefore persuaded that Mojaki’s right to a fair hearing had been
breached. The arbitrator ought not to have allowed the parties to conduct the
arbitration in the manner agreed upon.
[19] Whether the first respondent had jurisdiction to hear Mojaki’s dispute is a
question best left for an arbitrator appointed by the first respondent to
address. Although both parties took opposing views on this issue , neither
party placed nor referred the Court to the first respondent’s main collective
agreement in support of their respective stance.
[20] Similarly, concerning the private arbitration clause, this Court is in the dark
when assessing whether the private arbitration clause is less favourable or as
favourable as the dispute resolution recorded in the first respondent’s main
agreement (assuming it applies), to Mojaki.
5 As such, this question ought
likewise to be addressed by an arbitrator.
Order
1. The late filing of the applicant’s review application is condoned.
2. The second respondent’s award is set aside, and the dispute is
remitted to the first respondent to be heard de novo by an arbitrator
other than the second respondent.
3. There is no order as to costs.
______________________
M Naidoo
Acting Judge of the Labour Court of South Africa
4(JR 269/2020) [2022] ZALCJHB 141; (2022) 43 ILJ 2042 (LC) (1 June 2022).
5See Carlbank Mining Contracts (Pty) Ltd v National Bargaining Council for the Road Freight Industry
and Others (JR1592/07) [2010] ZALCJHB 5 (21 July 2010) at paras 16 to 17.
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Appearances
For the Applicant: Mr C.G. Grove, per CGG INC Attorneys
For the Third Respondent: Ms M. Majoko
Instructed by: Leepile Attorneys Inc.