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[2026] ZALCCT 68
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Ismail v C E Van Geuns and Associates and Others (C416/2024) [2026] ZALCCT 68 (14 April 2026)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD IN CAPE TOWN
Case
No. C416/2024
(1)
Reportable: NO
(2)
Of interest to other Judges: Yes
14
April 2026
In the matter between:
JAMEEL
ISMAIL
Applicant
and
C
E VAN GEUNS & ASSOCIATES
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
JOSHUA
AUGUST
Third Respondent
Heard:
19 November 2025
Delivered:
14 April 2026
JUDGMENT
MTETO AJ
INTRODUCTION
[1]
The matter before me pertains to an
application in terms of
Section 145(1)
of the
Labour Relations Act
No. 66 of 1995
as amended from time to time (hereinafter referred to
as the “Act”).
[2]
It is an application in which the applicant
seeks this Court to review and set aside an Advisory Award rendered
by the third respondent
(“the Commissioner”)
under
the auspices of the second respondent (“the CCMA”) dated
23 September 2024 under case number WECT14033/2024.
[3]
For ease of reference, the applicant is referred to as “Ms
Ismail”.
[4]
The
pertinent order that the applicant
seeks to be set aside is the ruling that the applicant is not an
employee of the first respondent
as defined in
section 213
of the
Act.
FACTS OF THE CASE
[5]
The applicant contends that she is or was
an employee of the first respondent for a period of about 10 years.
She contends that
during that period she rendered typing services to
the first respondent who is an attorney. She states that amongst
other duties
she was performing on behalf of the first respondent
were to arrange for appointments and follow up on the instructions to
the
Sheriff for the service of various court processes and reception
services.
[6]
The commissioner when identifying issues to
be determined he stated that he is “required to render an
advisory award on whether
the applicant is an employee as defined in
section 213
and
200A
of the LRA.”
[7]
It is also common cause that the third
respondent provided Ms. Asmail with the tools of trade to perform her
functions amongst other
things. What is in dispute is whether the
respondent had control over Ms. Ismail and provided direction on how
she had to perform
her duties.
[8]
The third respondent during the arbitration
proceedings submitted that Ms. Ismail had control over her working
hours to the extent
that at some stage the reduction of the working
hours from 8 hours to 5 hours per day was implemented at her behest.
[9]
Ms. Ismail, submitted that she was
economically dependent on the third respondent and rendered her
services to the third respondent
only.
ANALYSIS OF THE
CASE
[10]
An advisory award, as the name suggests, is
merely an advice given to the parties to the advisory arbitration.
The parties are at
liberty to either accept the advice or to reject
it. This therefore means that the advisory award is not binding on
the parties.
[11]
It is in the name of the process, which
suggests that the parties are seeking advice, which advice has no
legal consequence and
is the advice given by the sitting commissioner
in the said proceedings.
[12]
Since the award can simply be ignored by
any of the parties, a review application is pointless.
[13]
The only exception to the above, is when
advisory arbitration is mandatory where the LRA prescribes for
advisory arbitration before
a certificate of outcome is issued in
disputes concerning an alleged refusal to bargain.
[14]
In this matter it is not necessary for me
to make a determination as to whether there were defects in the
“arbitration”
proceedings as required by
section 145
of
the Act due to the nature of the proceedings which presented before
the Commissioner.
LEGAL POSITION
[15]
Section 158
(1) (g) stipulates that “The Labour Court may
Despite
Section 145
, review the performance or purported performance
of any function provided for in this Act or any Act or omission of
any person
or body in terms of this Act on any grounds that are
permissible in law.”
[16]
In determining the effect of an arbitration award,
section
143(1)
of the Act states:
‘
An
arbitration award issued by a commissioner is final and binding and
it may
be enforced as it were an order of the Labour
Court, unless it is an advisory
arbitration
award.’
[17]
It appears that in this matter, Ms. Ismail, referred the matter to
the CCMA for an advisory award, which fact is common cause between
the parties.
[18]
It is also common cause that Ms. Ismail did not accept the findings
of the Commissioner.
CONCLUSION
[19]
If an arbitrator has not yet rendered a "final" decision on
the specific issue, a party cannot bring a review application,
as the
court generally avoids intervening in incomplete processes.
[20]
The
advisory award is generally
not
reviewable
in
the Labour Court
,
as it does not constitute a "final" determination of rights
that can be set aside under
section 145
of the Act.
[21]
Advisory
awards cannot, self-evidently be made orders of court and by its very
nature, an advisory award cannot render a particular
dispute
res
judicata
.
[1]
[22]
In conclusion, once the advisory award is received, the parties are
at liberty to either accept or reject the advisory award. The
advisory award will only be binding to the parties if they accept it.
[23]
In the circumstances the following order is made;
Order
1.
The review application is dismissed; and
2.
No order as to costs.
MTETO
AJ
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
In Person
For
the First Respondent:
CE
Van Geuns & Associates
[1]
Labour
Litigation and Dispute Resolution: J Grogan at page 256.