THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR1115/22
In the matter between:
SAMWU obo NYATHI & OTHERS Applicant
and
CITY OF EKURHULENI First Respondent
MABUSELA, TL N.O. Second Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (SALGBC) Third Respondent
Heard: 19 March 2026
Delivered: 30 March 2026
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date of hand-down is 30 March 2026.
JUDGMENT
MAKHURA, J
Introduction
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
[1] This matter concerns an opposed review application brought in terms of section
145 of the Labour Relations Act 1 (LRA). The application seeks to challenge the
arbitration award issued by the second respondent ( commissioner) dated 4 May
2022 in terms of which the commissioner dismissed the applicant’s (employees’)
claim in terms of section 186(1)(b)(ii) of the LRA.
[2] Before the Court can consider the merits of the review application, two
preliminary issues must be addressed. The first is the employees’ application for
the reinstatement of the review application and condonation for the late filing of
the record. The second is whether the review application is opposed, specifically,
whether the answering affidavit and the condonation application for its late
delivery are properly before this Court.
Reinstatement and condonation for the late delivery of the record
[3] The employees seek an order reinstating the review application, which had been
deemed withdrawn, together with condonation for the late delivery of the record. 2
The reasons for the delay are fully set out in the supplementary affidavit. After
the employees discovered that the record was incomplete, they requested the
first respondent’s consent to extend the 60-day period. Despite several follow -up
communications, the first respondent did not respond.
[4] The delay arose primarily because the initial record filed by the South African
Local Government Bargaining Council (SALGBC) was incomplete. This
necessitated the employees seeking assistance from the SALGBC in filing the
full record, which assistance was not forthcoming. The employees then launched
an application compelling the SALGBC to file the complete record, which
ultimately led to a reconstruction process. A reconstruction meeting was held on
29 June 2023. On 10 July 2023, the SALGBC issued and served a reconstruction
ruling confirming that the record had been successfully reconstructed and would
1 Act 66 of 1995, as amended.
1 Act 66 of 1995, as amended.
2 See item 11.2.2 and 11.2.3 of the Practice Manual of the Labour Court of South Africa, 2 April 2013
(repealed with effect from 17 July 2024).
3
be filed. The record was indeed duly filed and uplifted by the employees for
transcription.
[5] On 6 September 2023, the transcriber forwarded the record to the parties. On 14
October 2023, the employees ’ attorneys notified the parties of their intention to
proceed with the review, and on 1 November 2023, the employees filed the rule
7A(8)3 together with a supplementary affidav it. In the circumstances, the
explanation for the delay is satisfactory, and the application for reinstatement and
condonation ought to be granted.
The answering affidavit and condonation application
[6] As indicated above, the notice in terms of rule 7A (8) was filed on 1 November
2023. This notice and the supplementary affidavit w ere served on the first
respondent on 31 October 2023. The first respondent was required to file its
answering affidavit within 10 days of receipt of the supplementary affidavit , by 14
November 2023.
[7] The answering affidavit was deposed on 21 November 2024, and the filing notice
signed on 26 November 2024. However, the first respondent’s answering
affidavit bears no Court stamp to prove that it was in fact filed, and the date when
it was filed.
[8] Similarly, the notice of motion and supporting affidavit in the first respondent’s
condonation application also do not bear any C ourt stamp. The notice of motion
is dated 6 October 2024, while the supporting affidavit is dated 6 November
2024, preceding the date of the answering affidavit.
[9] On 18 March 2026, the first respondent was directed to provide proof of filing of
the answering affidavit and application for condonation. In response, the first
respondent’s attorneys acknowledged that the documents were not filed in
November 2024. They stated that the documents were filed in January 2025.
3 Rules for the conduct of proceedings in the Labour Court , GG17495 of 14 October 1996, repealed with
effect from 17 July 2024.
4
However, the documents bear no Court stamp, and this allegation cannot be
correct. These documents were filed on the morning of 19 March 2026, before
the start of the proceedings, with no condonation application. Having considered
that the documents were filed for the first time on 19 March 2026 without a
condonation application, I rejected them and found that they are not properly
before Court and proceeded to deal with the matter on an unopposed basis.
The review application
Material facts
[10] The employees were employed on fixed term contracts from 1 December 2017 to
28 February 2018. On 25 January 2018, the first respondent issued an internal
memorandum recommending that the employees’ fixed -term contracts be
renewed on a month- to-month basis until 30 June 2018. The memorandum
recorded that the Waste Management Division was experiencing a high vacancy
rate and was unable to fill positions due to a moratorium on appointments. The
month-to-month renewals were therefore intended to ensure operational
continuity until the moratorium was lifted. The employees’ contracts were
ultimately extended for four months, ending on 30 June 2018.
[11] When the employees reported for duty on 2 July 2018, they were instructed to
return home as their fixed- term contracts had not been renewed or further
extended. They subsequently referred a dispute to the SALGBC in terms of
section 186(1)(b) (ii) of the LRA, alleging that they reasonably expected to be
retained in employment on a permanent or indefinite basis. The y sought to be
permanently appointed.
The employees’ claim
[12] The employees based their claim of a reasonable expectation of permanent
employment on several factors. First, although engaged as relief workers, they
continued performing duties alongside permanent employees even after the
December/January and Easter holiday periods. They argued that the work
5
remained ongoing, that their work was critical and budgeted for and that the first
respondent chose to utilise subcontractors rather than appoint them.
[13] Second, during their period of employment, several permanent posts became
vacant due to retirements, dismissals, deaths, and other causes. Third, the
employees were issued work uniforms shortly before their contracts expired and
were never asked to return them. Fourth, the extension of their contracts beyond
the initial three- month period reinforced their reasonable expectation that they
would be permanently absorbed. For this, they relied on the content of the first
respondent’s memorandum dated 25 January 2018.
[14] Fifth, they were not issued with notices of termination, despite their contracts
expressly providing for such notice. Finally, they relied on the alleged long-
standing practice of the first respondent first employing the workers on a fixed
term contract, extending the contracts and later absorbing the employees. They
referred to instances of permanent absorption in 2005/06, 2013/14, and 2016.
The first respondent’s opposition
[15] The first respondent disputed the employees’ claims. It maintained that the
employees were appointed strictly as relief workers and that the municipal
council had not approved any permanent appointments. It disputed that the 25
January 2018 memorandum could have created any reasonable expectation.
The first respondent also explained that subcontractors were used only on an ad
hoc basis and noted that it had advertised fewer than 100 posts, none of which
the employees applied for. With respect to uniforms, t he first respondent argued
that uniforms are replaced as needed, may be delivered late, and are not
returned at the end of employment for hygiene reasons. In addition to the fact
that the contracts had start and end dates, t he first respondent further relied on
an exit process conducted on 13 June 2018, evidenced by clearance certificates
an exit process conducted on 13 June 2018, evidenced by clearance certificates
issued to the employees, as notice that their contracts would end on 30 June
2018. It also emphasised that the 2016 absorption relied on by the employees
6
resulted from an arbitration award issued under section 198B of the LRA, not
from an internal practice or policy.
The commissioner’s award
[16] The commissioner found that the employees failed to prove that they had been
appointed to structured, permanent positions. Although they performed duties
associated with positions in the organisational structure, the first respondent
demonstrated, through position numbers, that the employees were appointed as
relief workers, not as general workers or drivers , as claimed. The position
numbers for relief workers differ from those of permanent posts, and the
employees were unable to dispute this evidence.
[17] The commissioner accepted the first respondent’s submission that performing
duties aligned to structured posts did not entitle the employees to permanent
appointment. The normal recruitment processes had to be followed, and after the
moratorium on appointments was lifted, the posts were advertised and filled
through that recruitment process. The employ ees elected not to apply for the
advertised positions, and since fewer than 100 posts were advertised out of more
than 500 fixed-term employees, their failure to apply could not be attributed to the
first respondent.
[18] The commissioner rejected the employees’ contention that they were not given
reasons for the non- renewal of their contracts. The appointment letters dated 27
February 2018, signed by the employees, expressly recorded that they were
appointed as relief workers to meet the increased operational demand during the
March/April Easter period. The commissioner was satisfied that the respondent
clearly set out the reasons for the fixed-term appointment and its extension.
[19] The employees had relied on an internal memorandum authored by the Waste
Management Head of Department recommending the ir appointment. The first
respondent adduced evidence that this was a confidential internal document that
the employees were not supposed to have access to. T he first respondent
7
explained that the memorandum constituted only a recommendation by the HOD,
which was any event not approved by the City Manager. The commissioner held
that the employees could not rely on this internal memorandum to establish a
reasonable expectation of permanent employment. It was neither addressed to
them nor communicated to them, and there was no evidence that it conveyed
any promise of appointment. The absence of approval by the City Manager,
concluded the commissioner, further undermined its relevance to their claim.
Grounds of review
[20] The employees contend that the commissioner committed gross irregularities
and failed to determine the true issue before him. They argue that the presence
of a non- renewal clause in their contracts did not preclude the creation of a
reasonable expectation of renewal, nor was it decisive in resolving the dispute.
[21] They further argue that the commissioner ignored material evidence
demonstrating that they continued working alongside permanent employees after
the December and Easter periods, that they were issued new uniforms only days
before the expiry of their contracts, and that they reported for duty on 2 July 2018
and signed the attendance register before being turned away. The employees
submit that the commissioner failed to consider the cumulative effect of all
relevant factors - the continuous nature of their work, the critical importance of
their roles, the first respondent’s reliance on subcontractors despite the
availability of posts, and the absence of termination notices. They also assert that
inconsistencies in the first respondent’s evidence should have been treated as
indicative of a reasonable expectation of continued employment.
[22] The employees additionally allege that the commissioner committed misconduct
by failing to engage with applicable case law and the correct legal test. They
argue that the commissioner failed to consider the relevance of sections
argue that the commissioner failed to consider the relevance of sections
186(1)(b)(ii) and 198B of the LRA, and that he ought to have enquired into
whether the fixed- term contracts, as extended, contravened section 198B.
According to the employees, their primary claim concerned the non- renewal of
8
their fixed-term contracts, with permanent appointment raised only as alternative
relief where section 198B factors were present.
Analysis
[23] The employees review the award based on the reasonableness test .4 The
dispute before the commissioner was one of reasonable expectation in terms of
which the employees bear the onus of proving that they were dismissed despite
the expiry of their fixed term contract s. The commissioner found that they failed
to establish a reasonable expectation of permanent employment at the end of
their fixed term contract s. The effect of that finding is that the employees were
not dismissed within the meaning of section 186(1) and therefore the SALGBC
had no jurisdiction over the dispute.
[24] Because the commissioner’s ruling turns on whether a dismissal occurred, it
amounts to a jurisdictional decision. Such decisions are reviewed on the
correctness standard, or on objectively justifiable grounds , as set out in
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd & others .5 The
question is therefore not whether the decision was reasonable, but whether it
was correct when assessed objectively.
The consequence of pleading an incorrect test
[25] The issue that arises is whether the review application should be dismissed
solely because the employees pleaded the incorrect review test –
reasonableness - rather than correctness. This question must be considered in
circumstances where commissioners make jurisdictional rulings for convenience,
4 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; (2007) 28 ILJ 2405
(CC).
5 (2008) 29 ILJ 2218 (LAC); [2008] ZALAC 3 at paras 39 – 41; see also: Zeuna – Starker BOP (Pty) Ltd v
NUMSA [1998] 11 BLLR 1110 (LAC); (1999) 20 ILJ 108 (LAC) at para 6, where the LAC found that “[t]he
commissioner could not finally decide whether he had jurisdiction because if he made a wrong decision,
his decision could be reviewed by the Labour Court on objectively justifiable grounds ”; see further: De
Milander v MEC for the Department of Finance: Eastern Cape and Others [2012] ZALAC 37; (2013) 34
ILJ 1427 (LAC) at para 2; South African Municipal Workers Union obo Manentza v Ngwathe Local
Municipality and Others [2015] ZALAC 26; [2015] 9 BLLR 894 (LAC) at para 20; Ukweza Holdings (Pty)
Ltd v Nyondo NO & others (2020) 41 ILJ 1354 (LAC); [2020] ZALAC 7 at para 12.
9
and where such rulings may still be reviewed on objectively justifiable grounds.
This Court has delivered differing judgments on whether the use of the incorrect
test should automatically result in the dismissal of the application.
[26] In NUMSA obo Zahela and Others v Volkswagen SA (Pty) Ltd and Others
(Volkswagen),6 Johnson v Rajah NO and Others (Johnson) ,7 SA Post Office v
Commission for C onciliation, Mediation & Arbitration & others (SA Post Office) 8
and Motlaase v C ommission for C onciliation, Mediation and Arbitration and
Others (Motlaase),9 this Court adopted the view that where an applicant relies on
the reasonableness standard in circumstances where the correctness test
applies, the application must fail on that basis alone. The Court in Volkswagen
said the following:
‘It follows that in a matter such as the present, where the proper right of review is
one based on correctness, that is the case that must necessarily be pleaded. The
applicant, mistakenly, has pleaded on the basis of an attack on the
reasonableness of the arbitrator’s decision. Mr Niehaus, who appeared for the
applicant, did not dispute that the applicant sought intervention on a basis that
was incorrect. He requested the court to postpone the matter and grant the
applicant leave to file amended papers in order to address the error.’
10
[27] Following the same approach above, the Court in Johnson11 dismissed the
review application after finding that the grounds relied upon were formulated on
the reasonableness test rather than the correctness test. This line of authority
confirms that an applicant who pleads the wrong test effectively fails to sustain a
proper case for review.
[28] In SA Post Office, the Court concluded:
6 [2016] ZALCPE 26.
7 [2017] ZALCJHB 25.
8 (2018) 39 ILJ 1350 (LC).
9 [2020] ZALCJHB 186.
10 Volkswagen at para 7.
11 Johnson at paras 15 – 19.
10
‘I reiterate: reasonableness has no place in a review such as this one and the
grounds for review relating to reasonableness cannot be considered. The
applicant has failed to make allegations to sustain its application as it clearly
approached this court on the basis of the incorrect test. This is fatal to the
applicant’s case and cannot be cured with submissions from the bar, introducing
a case that was not pleaded. On this ground alone the application should be
dismissed.’12 (Own emphasis)
[29] In Motlaase, delivered on 18 June 2020, the Court endorsed the same approach,
holding that a review application pleaded on the wrong test must fail on that basis
alone. However, shortly thereafter, in Gold One Ltd v Madalani & others13 (Gold
One), handed down on 9 September 2020, the Court adopted a different stance.
While acknowledging that the correctness standard governs reviews of
jurisdictional rulings, the Court declined to dismiss the application solely because
the founding papers relied on the reasonableness test.
[30] The Court in Gold One emphasised that questions of jurisdiction must be
determined de novo by the Labour Court, irrespective of how the review grounds
were framed. On that basis, the Court proceeded to consider the merits,
ultimately reviewing and setting aside the ruling, and substituting it with a finding
that the employee had failed to prove a dismissal.
[31] If the approach in Volkswagen, SA Post Office , Johnson, and Motlaase were to
be followed, the review application would have to be dismissed solely because
the employees pleaded their case on the incorrect test . However, it is trite that
the CCMA and bargaining councils cannot determine their own jurisdiction and
that any jurisdictional ruling issued by these bodies is merely for convenience.
The rulings are revi ewable, in de novo proceedings before this Court, on
objectively justifiable grounds.
14 This Court therefore determines, based on the
objectively justifiable grounds.
14 This Court therefore determines, based on the
facts, whether a dismissal occurred and whether the SALGBC had jurisdiction,
12 SA Post Office at para 31; See also Motlaase at para 63.
13 (2020) 41 ILJ 2832 (LC); [2021] 2 BLLR 198 (LC).
14 SA Rugby Players Association (fn 5 above); HC Heat Exchangers (Pty) Ltd v Araujo and Others [2019]
ZALCJHB 275; [2020] 3 BLLR 280 (LC).
11
irrespective of how the employees said the applicable test is . This principle was
in my view properly recognised and applied in Gold One. This Court must resolve
the jurisdictional question afresh and on its own accord and is not confined to the
applicant’s formulation of the legal test. Accordingly, I am not persuaded that a
mis-pleaded legal test is fatal to the application.
[32] Although Gold One expressed the view that an applicant should ordinarily be
afforded an opportunity to amend its papers, the Court nevertheless decided the
matter on the review grounds as they were pleaded, without requiring an
amendment. I have difficulty agreeing that the applicant must be provided an
opportunity to amend the papers. In my view, i t would not be appropriate,
particularly in motion proceedings, to require amendments where the rules do not
expressly provide for such a process, nor do they contemplate a second
supplementary affidavit. More importantly, given the de novo nature of a
jurisdictional inquiry, it is neither necessary nor useful to insist on amended
papers merely because the incorrect review test was invoked. The Court may ,
and must , determine the issue on the facts, regardless of how the applicant
framed the test.
[33] For the above reasons, I proceed to deal with the grounds for review.
The merits of the application
[34] Mr Naudé, who appeared for the employees, submitted that four considerations,
viewed cumulatively, gave rise to a reasonable expectation of permanent
employment. These were the internal memorandum dated 25 January 2018, the
issuing of new uniforms shortly before the expiry of the fixed- term contracts, the
absence of notices of termination, and the fact that the employees presented
themselves for work on 2 July 2018.
[35] The memorandum of 25 January 2018 motivated for the extension of the
employees’ fixed term contracts for a further four months. It expressly recorded
that a moratorium on appointments prevented the filling of permanent positions
12
and recommended month- to-month extensions only until the moratorium was
lifted at the end of June 2018. It is difficult to understand how this memorandum
could reasonably be interpreted as creating an expectation of employment
beyond the four -month extension it proposed. It is common cause that once the
moratorium was lifted, fewer than 100 positions were advertised and that the
employees did not apply for these posts, believing instead that they were entitled
to appointment outside the ordinary recruitment process. The first respondent
denied that it outsourced the employees’ work to subcontractors and explained
that subcontractors were engaged only on an ad hoc basis. The commissioner
correctly rejected this factor as giving rise to any reasonable expectation of
permanent employment.
[36] With regard to the issuing of uniforms, the employees failed to establish how this
factor could support their claim. They did not indicate how many of them were
issued with new uniforms, nor did they place evidence before the commissioner
demonstrating that the issuing of such uniforms was linked to any expectation of
the continued and permanent employment. The first respondent’s explanation
was that uniforms are issued as and when required, including where existing
uniforms are no longer usable, and that delays in procurement may result in
uniforms being issued late in the contract period. In the absence of evidence
demonstrating that uniforms were issued as part of, or in anticipation of,
permanent appointment, this factor could not reasonably sustain an expectation
of continued or permanent employment.
[37] As to the alleged absence of notices of termination, the employees were at all
material times aware of the commencement and expiry dates of their fixed term
contracts. The contracts, as extended, clearly stipulated their termination dates.
In circumstances where the parties had agreed to a fixed duration, the first
In circumstances where the parties had agreed to a fixed duration, the first
respondent was under no obligation to issue a notice of termination or any
reminder of the expiry date of the contract. There was no contractual or statutory
requirement to do so. The reliance placed on section 37 of the Basic Conditions
13
of Employment Act 15 (BCEA) is misplaced, as that provision governs notice in
respect of contracts of indefinite duration and does not apply where the
termination date is determined in advance by agreement.
[38] The employees’ contention that their attendance at work on 2 July 2018 gave rise
to a reasonable expectation of permanent employment is wholly untenable. They
were aware that their contracts had expired on 30 June 2018 and were not
instructed or authorised to report for duty thereafter. The employees’ own version
was that those who reported for duty on 2 July 2018 were informed that their
contracts had expired and were instructed to return home. Their unilateral
decision to attend at the workplace after the lapse of their contracts could not, in
itself, found any expectation of any form of continued employment.
[39] The employees had also sought to rely on another consideration, which Mr
Naudé did not pursue nor abandon during the hearing, which is the first
respondent’s alleged policy or practice of absorbing fixed term contract
employees. The employees had criticised the commissioner for placing more
weight on the non- renewal clause contained in the contracts. Further, the y
argued in their papers that the commissioner failed to engage the case law and
the correct legal test.
[40] Whilst the commissioner consider ed a non-renewal clause in the employees’
fixed term contracts, this was in no way decisive of the dispute. It is evident from
the award that the commissioner applied himself to all the factors raised by the
employees and correctly rejected them.
[41] In relation to the alleged practice of absorbing employees initially engaged on
fixed term contracts, the first respondent explained that the employees who were
absorbed in 2016 were appointed pursuant to an arbitration award issued under
section 198B of the LRA, and not as a result of any internal policy or practice.
The dispute before the commissioner was confined to section 186(1)(b)(ii) of the
The dispute before the commissioner was confined to section 186(1)(b)(ii) of the
15 Act 75 of 1997.
14
LRA, not section 198B . These are distinct causes of action, involving different
factual and legal enquiries.
[42] The employees’ submission that the commissioner failed to consider the
relevance of sections 186(1)(b)(ii) and 198B of the LRA, and that permanent
appointment was merely alternative relief, is inconsistent with the case they
advanced before the commissioner. Their claim was unequivocally grounded in
section 186(1)(b) (ii). The commissioner was therefore correct to confine the
enquiry to that issue and not to embark on an investigation into section 198B,
which was not an issue before him.
[43] In conclusion, none of the factors relied upon by the employees, whether
considered individually or cumulatively, w ere capable of establishing a
reasonable expectation of permanent employment. The commissioner’s
conclusion that no dismissal occurred was correct. Accordingly, the employees
have failed to make out a case for the review and setting aside of the a ward.
Their review application stands to be dismissed.
[44] In the premises, the following order is made:
Order
1. The review application is reinstated, and the late delivery of the record is
condoned.
2. The first respondent’s filing of an answering affidavit on 19 March 2026 is
rejected, and the review application is determined on an unopposed basis.
3. The review application is dismissed.
____________________
M. Makhura
Judge of the Labour Court of South Africa
15
Appearances:
For the Applicants: Mr C.P. Naudé
Instructed by: Isaac Teke Mothibe Attorneys