THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR08/23
In the matter between:
PUBLIC SERVANTS’ASSOCIATION Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION First Respondent
COMMISSIONER TSHEPO MASHIGO N.O Second Respondent
MAXWELL TSHEKISO SEBATI Third Respondent
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the P arties / their
legal representatives by email. The date for hand- down is deemed to be 3 1
March 2026.
LEAVE TO APPEAL JUDGMENT
MOSIKILI, AJ
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Introduction
[1] The applicant, Public Servants Association of South Africa – PSA seeks leave
to appeal against my judgment and order in the above matter whereby I
dismissed their application to review, correct and/or set aside the award of the
Commission for Conciliation, Mediation & Arbitration “ CCMA” dated 19
December 2022 under case number GATW9753-22.
[2] It has been at times difficult to discern the basis on which leave to appeal has
been sought. This is so primary because the grounds of appeal and counsel’s
heads of argument on behalf of PSA appear to be directed at the
dissatisfaction with the outcome of the review application without pointing out
the errors of law and/ or errors of facts committed. If anything, the facts of the
case remain mainly uncontested, and my understanding of those admitted
facts is not seriously attacked by PSA.
[3] I have nevertheless done my best to distil what I believe are the three
principal submissions made on PSA’s behalf , and I shall deal with each of
them in turn.
Merits
[4] The first contention by PSA is that I committed an error of law by relying on
Steenkamp and Others v Edcon Ltd 1 in deciding this matter, as this judgment
is distinguishable. The contention is that because PSA failed to adhere to its
own internal recruitment policies and constitution in the appointment of Mr
Maxwell Thekiso S ebati (Mr Sebati), such appointment was ultra vires and
void ab initio, and as a result, PSA was entitled to summarily rescind Mr
Sebati’s appointment without following any process.
1 2016 (3) SA 251 (CC)
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[5] I disagree with the above proposition, because the Steenkamp judgment
remains good authority on the principle that even if an employer fails to
adhere to its own recruitment policies, an employment relationship may still be
recognised as valid under the law, provided that the statutory requirements for
such a relationship are met. The statutory framework, including the Labour
Relations Act 66 of 1995 (“LRA”)and other relevant legislation.
[6] PSA conflates the issue by formulating its ground of appeal as an obligation to
set aside the irregular appointment of Mr Sebati. The simple question is this: on
the uncontested facts, was PSA entitled to rescind Mr Sebati ’s appointment
without following due process because PSA held a view that the said
appointment was peppered with irregularities, inter alia , its constitution and
recruitment policies were not strictly adhered to.
[7] PSA places reliance on Baloyi v Tshifhesi at paragraph 15 of the applicant’s
heads of argument that “Where a trade union performs any act that deviates
from, or is contrary to its constitution, that act is ultra vires (beyond its powers)
and null and void”. Inexplicably, PSA comes to a conclusion that the above
passage is a justification for it to summarily terminate Mr Sebati’s contract of
employment as it did.
[8] The above proposition by PSA, is unsustainable in law. It is at variance with the
spirit of the Constitution in particular Section 1(c) of the Constitution read with
section 23, relating to the right to fair labour practice and section 185 of the
LRA.
[9] In fact, the proposition advanced by PSA only serves to underscore its poor
understanding of my judgment and, most importantly, what the law requires in
situations PSA found itself. PSA cannot mark its own homework. The legal
position is axiomatic, PSA, regardless of the circumstances , cannot summarily
terminate the employment contract because its constitution, read with its
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relevant policies, was not complied with. At least not on the admitted facts of
this case.
[10] I am not persuaded that a Court of Appeal would adopt a different approach
and grant PSA a license to summarily terminate/dismiss Mr Sebati simply
because PSA held a view that the appointment was “ void ab initio”. What
makes matter s worse is that no fault can be attributed to Mr S ebati for this
alleged “ultra vires” appointment. Adv Millard has failed to point me to any
authority in support of his suggestion that the PSA’s constitution r eigns
supreme over the South African Constitution, read together with the relevant
labour law tenets articulated above and in the Steenkamp judgment . No such
authority exists. Steepkamp remains the binding authority and finds relevance
in this matter. The rule of law reigns supreme. Accordingly, this ground of
appeal is unsustainable.
[11] Secondly, PSA contends that the application of the dominant impression test is
not an appropriate standard on the facts of this case. PSA seems to contend
that the dominant impression test is confined to disputes on whether someone
is an employee or an independent contractor. In doing so, Adv. Millard refers to
me paragraph 29 of the Hydraulistic Repair Services v Ntshona (2007
ZALCJHB 22 (17 August 2009) penned by Molahlehi AJ as he then was. I have
considered said paragraph and the judgment in toto . The principles enunciated
in the said judgment do not support the contention proposed by PSA. Again,
PSA has not pointed me to any authority suggest ing that the dominant
impression test is an incorrect tool in determining the true relationship between
PSA and Mr Sebati , as I did in this matter. Similarly, I am disinclined to agree
that there are prospects that a Court of Appeal would adopt a different
approach in resolving this dispute.
[12] Lastly, PSA contends that I failed to interpret clause 8.14 of the PSA
recruitment correct ly; this ground is most difficult to discern. PSA seems to
recruitment correct ly; this ground is most difficult to discern. PSA seems to
suggest that , because clause 8.14 requires an employee from the human
resources section to be (or would be) involved in the interviews for all executive
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positions, failure to adhere to this clause renders the appointment void ab initio.
Consequently, PSA can and is authorised in those circumstances to summarily
terminate a contract of employment if this clause is not adhered to.
[13] I disagree with PSA on this proposition . My comprehensive reasons for
reaching this conclusion appear at paragraphs 33 – 38 of my main judgment. I
have nothing to add to them save to say this: clause 8.14 does not grant PSA
the authority to summarily rescind Mr Sebati’s appointment without any due
process that affords and protects Mr Sebati's constitutional rights.
[14] In any event, it is not suggested that I misunderstood the following undisputed
facts, which I found to be revealing of the true and real position /relation of the
parties, i.e.:
14.1 On 08 June 2022, Mr Sebati presented himself for work at PSA as the
newly appointed DGM. On the same day, he was provided with tools of
trade, which included, inter alia:
14.1.1 office space and was introduced to his personal assistant;
14.1.2 he signed various documents, including a personal
information form, a written acceptance and consent utilisation,
an acknowledgement of receipt of job description and the
PSA Private Policy and Confidentiality; and
14.1.3 he was provided with an access card to the workplace.
[15] It escapes PSA that the very facts they conceded denote that an employment
relationship was conceived inter partes. This concession can be gleaned on
PSA’s alleged “Rescission Letter” – it goes without saying that one can only
terminate/rescind what existed, in this case, the employment relationship, and
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our law demands that any termination of employment relationship must be
done in compliance inter alia section 1( c) of the Constitution read with section
23, relating to the right to fair labour practice and section 185 of the LRA
dealing with the right not to be unfairly dismissed. These rights are sacrosanct
and cannot succumb to any employer’s constitution nor policy.
[16] It would appear to me that issues arising in this case are far from novel. They
are, in fact, distressingly familiar. An employer cannot be the law unto itself -
irrespective of the alleged irregularities surrounding the alleged appointment ;
an employer is not entitled to simply rescind its offer of employment and
thereby terminate employment without affording an employee a fair hearing or
some due process. The judgment Denel (Pty) Ltd v Gerber (2005) 26 ILH
1256 (LAC) remains good authority on this issue.
Conclusion
[17] The test for leave to appeal is whether “the appeal would have reasonable
prospects of success” or whether “there is some compelling reason why the
appeal should be heard…” It is clear that PSA offered Mr Sebati an
employment contract and followed through with it by providing him with tools
of trade, thereby affirming an employment relationship. The only legitimate
way to terminate such an employment relationship is by following due
process; it matter s not on the facts of this case if the appointment was
peppered with irregularities which had nothing to do with Mr. Sebati . The
admitted facts are dispositive of the matter. As a result, I am of the view that
the appeal would have no prospects of success. I am of the view further that
there was no misdirection on either facts or law in granting the December
2025 order based on evidence before the court. The appeal would have no
prospects of success in that respect too.
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For all these reasons, I make the following order:
1. The application for leave to appeal is dismissed.
2. The applicant is to pay the costs of this application.
_______________________
T Mosikili
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv K Millard
Instructed by: Cheadle Thompson & Haysom Inc
For the Third Respondent: Adv K Nondwangu
Instructed by: Ngada Attorneys