THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C472/23
In the matter between:
SOLIDARITY First Applicant
DE VILLIERS B Second Applicant
SAMUELS W Third Applicant
THEUNISSEN E Fourth Applicant
and
TSEBO FACILITIES SOLUTIONS (PTY) LTD First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
COMMISSIONER REZA SLAMANG N.O. Third Respondent
Heard: In chambers
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This ruling is handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing down this ruling is deemed to be 10h00 on 5
May 2026.
JUDGMENT – LEAVE TO APPEAL
DE KOCK, AJ
Introduction
[1] The first respondent, Tsebo Facilities Solutions (Pty) Ltd (“Tsebo”), applies for
leave to appeal against the whole of the judgment and order of this Court
handed down on 23 March 2026. In that judgment, this Court set aside the
arbitration award of Commissioner Reza Slamang, issued on 8 August 2023
under Case No WECT8983-20, and substituted an order directing Tsebo to pay
severance pay to each of the individual applicants. The application for leave to
appeal is opposed by the applicants.
[2] The judgment arose from a review under section 145 of the Labour Relations
Act 66 of 1995. The commissioner had found that section 41(4) of the Basic
Conditions of Employment Act 75 of 1997 (“the BCEA”) applied to disentitle the
individual applicants to severance pay on the basis that Tsebo had played an
instrumental role in securing their employment with CBRE Excellerate (Pty) Ltd
(“CBRE”). This Court found that the commissioner’s conclusion was not
rationally connected to the factual findings he had made and set the award
aside.
Applicable Legal Test
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[3] Section 17(1)(a) of the Superior Courts Act1 provides that leave to appeal may
only be granted where the judge is of the opinion that the appeal would have a
reasonable prospect of success, or there is some other compelling reason why
the appeal should be heard.
[4] The wording is deliberate. The legislature moved away from the earlier, more
permissive formulation that focused on whether another court may come to a
different conclusion. The current test requires that the judge be satisfied that the
appeal would have a reasonable prospect of success, a higher threshold than
mere arguability.
2
[5] In Martin and East (Pty) Ltd v National Union of Mineworkers and Others,3 the
Labour Appeal Court underscored the gate-keeping function of the Labour
Court. It cautioned that disputes that raise no novel point of law and involve no
misinterpretation of existing law should ordinarily end in the Labour Court and
not be allowed to reappear continuously in courts on appeal after appeal,
subverting a key purpose of the Act, namely the expeditious resolution of labour
disputes.
Merits of the Application for Leave to Appeal
General observations
[6] Tsebo advances seven grounds of appeal. The grounds are: (a) the Court erred
in its assessment of the facts and failed to apply the correct review test; (b) the
Court erred in finding that the commissioner misconceived the causation inquiry
and applied an incorrect legal test; (c) the Court applied an appeal test as
opposed to the review test; (d) the Court failed to properly consider the totality
of evidence; (e) the Court failed to consider whether the totality of evidence
1 Act 10 of 2013.
2 Smith v S (475/10) [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) at para 7.
3 Martin and East (Pty) Ltd v National Union of Mineworkers and Others (CA23/2012); [2013] ZALAC 35;
(2014) 35 ILJ 2399 (LAC).
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justified the conclusions reached; (f) the Court erred in applying an incorrect
legal test on causation; and (g) the Court erred in substituting its own order.
This Court addresses each in turn.
The causation standard (Grounds 1, 2 and 6)
[7] Tsebo contends that this Court formulated the causation standard under section
41(4) as requiring the employer to have “initiated and driven” the process of
securing alternative employment, a standard said to be materially narrower than
the test established in Irvin & Johnson at paragraph [42]: “through the efforts of
his employer.”
4 Tsebo submits that the departure from Irvin & Johnson
constitutes an error of law.
[8] The contention does not withstand scrutiny. This Court’s judgment did not hinge
on the verbal formulation of the causation standard. The judgment identified a
rational disconnection between the commissioner’s own factual findings and his
conclusion. Whatever verbal label is applied to the causation test, whether
“through the efforts of” or “initiated and driven”, the analysis is the same: the
commissioner’s factual narrative was irreconcilable with the conclusion he
reached.
[9] The undisputed chronology is decisive. De Villiers and Samuels received formal
written employment offers from CBRE on 28 February 2020, more than two
months before the Alternative Employment Agreement (“AEA”) was signed on 3
May 2020 and before the section 189(3) notice was issued on 1 May 2020.
Theunissen responded to a CBRE Notice of Hiring published in March 2020 and
was interviewed on 29 April 2020, the same day the AEA was agreed in
principle. The employment outcomes preceded the formal arrangement that
Tsebo relies upon as constituting its instrumental role. No reformulation of the
causation standard alters this factual reality.
4 Irvin & Johnson Ltd v Commission for Conciliation, Mediation and Arbitration (2006) 27 ILJ 935 (LAC);
[2006] 7 BLLR 613 (LAC).
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[10] Tsebo places reliance on Khanya Cleaning Group (Pty) Ltd v SA Transport and
Allied Workers Union and Others5 for the proposition that a less granular
approach to chronology should be adopted. The reliance is misplaced. In
Khanya, the employer’s facilitation and the employees’ receipt of offers were
temporally proximate, the employer arranged a boardroom for interviews,
distributed application forms, and collected them during company time. There
was no temporal disjuncture between the employer’s conduct and the
employment outcomes. Here, by contrast, two of the three individual applicants
had secured binding employment offers months before the arrangement Tsebo
relies upon came into existence. Khanya is distinguishable on its facts.
[11] Tsebo further relies on Vergenoeg vir Seniors v Stone and Others
6 for the
proposition that an incoming employer’s exercise of independent selection
discretion does not break the causal chain. The principle in Vergenoeg is not in
dispute. But Vergenoeg concerned a situation where the outgoing employer’s
arrangement was antecedent to the employment outcome. Here, the
employment outcomes antedated the arrangement. The principle that
independent selection does not break the chain presupposes the existence of a
chain to break. On the commissioner’s own chronology, no such chain existed
at the time the offers were made.
[12] Tsebo further contends that this Court’s formulation of the statutory purpose of
section 41(2), compensating employees for the extinguishing of accrued
service, was incomplete because it failed to account for the incentive rationale
recognised in Irvin & Johnson at paragraph [46]. This Court accepts that Irvin &
Johnson recognises both the compensatory and incentive dimensions of section
41. However, the incentive rationale explains why the legislature created the
forfeiture in section 41(4); it does not lower the threshold for establishing the
causal link. On the undisputed facts, Tsebo’s efforts did not cause these
causal link. On the undisputed facts, Tsebo’s efforts did not cause these
5 Khanya Cleaning Group (Pty) Ltd v SA Transport and Allied Workers Union and Others (PR32/2023)
[2024] ZALCPE 39; (2025) 46 ILJ 363 (LC).
6 Vergenoeg vir Seniors v Stone and Others (JA 45/08) [2010] ZALAC 35 (4 June 2010).
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particular applicants’ CBRE employment. The incentive purpose is not
advanced by attributing employment outcomes to employer efforts that were not
operative in bringing them about.
[13] There is no reasonable prospect that another court would find that the verbal
formulation of the causation standard, rather than the underlying factual
analysis, was determinative of the outcome. This judgment does not hold that
parallel independent recruitment by an incoming employer invariably defeats the
section 41(4) defence; it holds that on these facts, where the employment offers
antedated the arrangement, the causal connection was not established.
Review versus appeal (Ground 3)
[14] Tsebo contends that this Court conducted appellate re-evaluation in breach of
the Sidumo standard.7 Specifically, Tsebo submits that the commissioner
expressly addressed CBRE’s parallel recruitment at paragraph 55 of the award
and nonetheless found an instrumental role, such that the Court’s disagreement
with that finding constituted impermissible substitution of judgment.
[15] This ground misconceives the nature of the Court’s finding. The judgment did
not merely disagree with the weight the commissioner assigned to the evidence.
It identified an internal contradiction between the commissioner’s factual
findings and his conclusion. Where a decision-maker’s own factual narrative is
irreconcilable with the conclusion drawn from it, the conclusion is not rationally
connected to the evidence and falls outside the range of outcomes a
reasonable decision-maker could reach. This is a review, not an appeal. It is
squarely within the Sidumo framework, as elaborated in Herholdt.
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[16] The commissioner’s acknowledgment of CBRE’s parallel recruitment does not
cure the irrationality. Acknowledging a fact and properly reckoning with its
7 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2008] (2) SA 24 (CC); (2007) 28 ILJ
2405 (CC).
2405 (CC).
8 Herholdt v Nedbank Ltd (Congress of South African Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795
(SCA); [2013] 11 BLLR 1074 (SCA) at para 25.
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implications are different things. The commissioner noted the parallel
recruitment but drew a conclusion that could not be reconciled with it. That is
the hallmark of a finding to which the decision-maker was not reasonably
entitled.
Totality of the evidence (Ground 4)
[17] Tsebo submits that the Court adopted a fragmented approach to the evidence
and elevated the timing of employment offers as decisive, ignoring the broader
evidentiary matrix, including the sustained bilateral engagement, the in-principle
HR understanding, the operating model, and the AEA.
[18] The submission inverts the analytical sequence. It is not the Court that elevated
timing; it is the facts that did so. When the employment outcomes precede the
alleged arrangement, no amount of subsequent engagement can
retrospectively cause those outcomes. Tsebo’s sustained engagement with
CBRE, however commendable as an exercise in responsible transition
management, was not operative in producing the employment offers that De
Villiers, Samuels, and Theunissen had already received or were in the process
of receiving through CBRE’s independent recruitment.
[19] As to clause 4.10 of the AEA: this Court’s reliance on that provision was not, as
Tsebo contends, to establish a contractual enforceability point. The provision
was relevant because it confirmed that CBRE retained full discretion over
individual appointments. The AEA did not guarantee employment for any
named individual. The 27 employees who were retrenched demonstrated that
the AEA was not an undertaking to employ all affected staff. Tsebo cannot
characterise the AEA as the vehicle through which it “arranged” individual
employment when the agreement, on its own terms, created no enforceable
right to employment and when a substantial cohort of covered employees was
not employed.
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[20] Tsebo submits that the individual applicants engaged in “secretive and
opportunistic conduct” by accepting CBRE employment without disclosing it to
Tsebo. Even accepting this characterisation, it is irrelevant to the statutory
inquiry. Section 41(4) asks whether the employer arranged or caused the
alternative employment through its own efforts. The employees’ subjective
motivation in accepting independently obtained employment does not transmute
that employment into employment arranged by the employer through their own
efforts. The section contains no motive-based exception.
The section 41(2) threshold (Ground 5)
[21] Tsebo contends that this Court's analysis of the section 41(2) threshold at
paragraph [30] of the judgment was inadequate and that the language of the
termination notices does not establish a dismissal for reasons based on
operational requirements. Tsebo submits that the notices, properly read, tether
the termination to the employees’ acceptance of alternative employment rather
than to the loss of the Sanlam SLA, and that the word “therefore” in the notice is
causally determinative.
[22] This Court addressed the section 41(2) question at paragraph [30] of the
judgment. The finding was that Tsebo issued notices of termination on 27 May
2020 and that the applicants were retrenched by Tsebo in terms of those
notices. The fact that they had separately accepted CBRE offers does not
convert Tsebo’s retrenchment into a termination at the instance of the
employees.
[23] Tsebo’s textual argument does not improve its position. The termination notices
themselves referenced the section 189(3) notice, as recorded at paragraph [4]
of the judgment. A notice that is issued pursuant to a statutory retrenchment
process, references a section 189(3) notice, and terminates employment on the
date of the SLA expiry is, on any objective reading, a notice of dismissal for
operational requirements. The internal language characterising the reason for
operational requirements. The internal language characterising the reason for
termination cannot override the statutory framework within which the notice was
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issued. Tsebo conducted a section 189 consultation, issued section 189(3)
notices, and terminated employment by notice. Having completed a statutory
retrenchment process, it cannot recharacterise the dismissals as something
other than retrenchments by selective quotation from its own termination
notices.
[24] There is no reasonable prospect that another court would find this Court’s
analysis of the section 41(2) threshold to be inadequate or incorrect.
Substitution (Ground 7)
[25] Tsebo contends that the conditions for substitution under Herholdt were not met
and that the matter should have been remitted to a different commissioner.
[26] This Court found that only one outcome was reasonably available on the
undisputed facts. Given the temporal sequence, i.e., employment offers
antedating the AEA, CBRE’s written confirmation of independent appointment,
and the 27 employees who were retrenched, no reasonable decision-maker,
properly directing himself on the law and the facts, could conclude that Tsebo
arranged or caused, through their efforts, the individual applicants’ employment
with CBRE. Remittal would accordingly have been futile.
[27] The point is parasitic on the substantive grounds. If the substantive grounds fail,
as this Court has found they do, the substitution ground falls with them.
Public interest and compelling reason
[28] Tsebo submits that approximately 35 further arbitration proceedings involving
materially similar facts have been stayed pending the outcome of this matter. It
contends that the appeal raises important questions of law warranting
determination by the Labour Appeal Court.
[29] The existence of related proceedings does not, of itself, establish a reasonable
prospect of success or a compelling reason for leave to appeal. The stayed
proceedings may justify leave in a borderline case, but this matter is not
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borderline on the facts. The temporal sequence that is fatal to the
commissioner’s causation finding is undisputed. The legal principles applicable
to section 41(4) are settled in Irvin & Johnson and Vergenoeg. The dispute is
not whether the legal test is correct but whether the commissioner’s application
of that test to these facts was rational. That is a fact-bound inquiry that does not
give rise to a novel legal question of the kind contemplated by section
17(1)(a)(ii) of the Superior Courts Act.
Overall Assessment
[30] Tsebo has failed to demonstrate a realistic, reasonable prospect that another
court would arrive at a different conclusion in respect of any of the grounds
advanced. The temporal causation problem, employment offers antedating the
alleged arrangement, is fatal to each substantive ground, whether the causation
standard is formulated as “through the efforts of” or “initiated and driven.” The
commissioner’s finding was not one a reasonable decision-maker could reach
on his own factual findings, and this Court’s identification of that rational
disconnection was a proper exercise of review, not appellate re-evaluation. This
is precisely the type of fact-bound review dispute that the Labour Appeal Court
in Martin and East held should ordinarily end in the Labour Court.
[31] The application discloses no compelling reason for the appeal to be heard. The
application for leave to appeal must accordingly be dismissed.
Costs
[32] The applicants do not seek a costs order against Tsebo and no order is made
as to costs.
Order
[33] In the premises, the following order is made:
1. The application for leave to appeal is dismissed.
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2. There is no order as to costs.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa