THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: A2025-132542
In the matter between:
PROSPER MAPHOSA & OTHERS Appellants
and
NEW MODEL PRIVATE COLLEGE First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
GLORIA NCALA N.O. Third Respondent
Heard: 7 May 2026
Delivered: 28 May 2026
Coram: Van Niekerk JA, Djaje AJA et Masipa AJA
JUDGMENT
VAN NIEKERK, JA
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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Introduction
[1] This is an appeal, with the leave of the Labour Court, against a judgment
delivered on 3 March 2025, in which the Court dismissed an application to review
and set aside an arbitration award issued by the third respondent (the
commissioner). In her award, the commissioner found that the appellants had
been unfairly suspended by the first respondent and awarded each of them
compensation equivalent to 12 months’ remuneration.
[2] Although the application for leave to appeal was opposed, the first respondent
had not filed any op posing papers in the appeal proceedings, nor did the first
respondent file any power of attorney, heads of argument or practice note as
required by the Rules . The first respondent did not appear at the hearing of the
appeal. This was despite the notice of set down of the hearing having been
communicated to the first respondent’s attorneys of record on 2 February 2026,
and an acknowledgment of receipt of the notice on the same date, and
confirmation that the link to the virtual hearing had been communicated to the
first respondent’s attorney. The hearing thus proceeded on an unopposed basis.
Factual background
[3] The appellants were employed by the first respondent as educators. The
educators had worked for the first respondent for a number of years under fixed-
term contracts that had been consistently renewed, in some instances for periods
of nine or ten years. In 2020, the respondent and each of the appellants entered
into a 12-month fixed-term contract for the calendar year.
[4] On 15 December 2020, the first respondent addressed letters to each of the
appellants, advising them that their contracts would terminate on 31 December
2020 and that they were free to apply for appointment for the 2021 academic
year, provided they did so in writing before that date. All the applicants applied
for appointment in 2021 but received no response.
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[5] In late December 2020, the principal of the junior school, Ms Mhlanga, sent
WhatsApp messages to staff, including the appellants, advising that the school
would open on 13 January 2021 and requesting that they collect payslips and
letters on 30 December 2020. On the same date, the first respondent addressed
letters to the appellants stating:
‘On the 2 nd December 2020, you participated in an unlawful and/or unprotected
strike, and you did so without notifying the School to enable the School to make
necessary arrangements to ensure that learners, staff, parents and visitors were
not compromised in view of the Covid-19 health risk…
Please note that your action constitute misconduct as defined in paragraph 3.13
of your contract of employment, entitling the School to institute disciplinary action
against you.
Kindly be advised that the School is taking legal advice on the matter and
reserves its right to institute disciplinary action against you.
[6] The appellants denied participating in any strike. On January 4, 2021, the
appellants were paid for December 2021 (the first respondent paid salaries on
the 4th of the following month) and issued payslips showing that the ‘next pay
day’ was February 4, 2021.
[7] On 10 January 2021, Mr. Mafu, the principal of the high school, sent a WhatsApp
message to six heads of department about a meeting scheduled for the next day.
The meeting was postponed and never took place. On 13 January 2021, the
school reopened without the appellants being reengaged.
[8] On date, the appellants referred a dispute to the Commission for Conciliation,
Mediation and Arbitration. The dispute, as described in the referral form,
concerns an alleged unfair suspension that arose on 31 December 2020.
[9] The arbitrator’s award confirms that the dispute to be determined is whether the
first respondent unfairly suspended the appellants, and if so, to determine an
appropriate remedy. The appellant’s case was that on 29 December 2020, they
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had been issued with letters notifying them of disciplinary proceedings, that they
had not been permitted to return to work nor had they been paid since that date
(but for the payment of salaries for December 2020) , and that their continued
suspension was unfair. The first respondent's case was that the appellants had
not been suspended but that their fixed- term contracts had expired on 31
December 2020.
[10] The arbitrator came to the following conclusion:
’63. I had two destructive versions before me, the applicants testified that they
were still employees of the respondent and were unfairly suspended.
Whilst it is the respondent’s contentions that the applicants were never
suspended but their contracts came to an end thus, they were no longer
employees of the respondent…
74. In this case the’ rolling over’ of the contract for a period of nine, in some
cases 10 years, had also established a reasonable expectation that the
contracts will be renewed and the reapplying for the positions was merely
an exercise to confirm staff complement for the following year.
Furthermore, the school still required educators and had funds to pay the
educated as proven by the fact that new recruits were found to fill the
applicants positions and funds are available to pay the new teachers. The
insured, the work was available for the educators, and it had been
established that the applicants were capable to do the work as proven by
the fact that their contract continued for years.
75. In light of the above I find that the applicants are still employees of the
respondent. The evidence they submitted supported their version of
events and they were credible witnesses. It is therefore my view that they
discharge the onus of proving their relationship with the respondent.
76. Having accepted the applicants v ersion comma I find the suspension was
without just caus e. Procedure was not followed. Having taken the
applicants version as probable, I find that the respondent's action was
applicants version as probable, I find that the respondent's action was
unjust in that no explanation was given to the applicants to be at home for
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over six months now and as to why the services were being suspended
for such a long time. Based on the evidence before me I find that the
respondent’s conduct amounts to unfair labour practice.’
The commissioner issued an award ordering the respondent to pay those
appellants who had submitted their payslips an amount equal to their annual
remuneration and ordered the remaining applicants to submit their payslips for
the determination of the amount of compensation. On 13 July 2021, the
commissioner issued a variation award that recorded the additional appellants'
names and the amounts payable to them.
[11] The first respondent filed an application to review and set aside the arbitration
award. In its judgment, the Labour Court noted that had the commissioner
presided over an unfair dismissal dispute, she may well have found that the
appellants had a reasonable expectation that their fixed- term contracts would be
renewed and that the respondent’s failure to renew the contracts constituted a
‘dismissal’ for the purposes of section 186 (1) of the LRA. The Court concluded:
‘[31] However, the commissioner did not preside over an unfair dismissal
dispute arising from a dismissal in terms of section 186(1)(b), but rather
over an unfair suspension dispute, which was premised on a contract of
employment actually being in existence on the date of the educators’
suspension. In my view, the fact that the LRA, in effect, deems the failure
to renew a fixed term contract where a reasonable expectation of renewal
exists as a ‘dismissal’, does not mean that – in law- the failure to renew a
fixed term contract in such circumstances per se gives rise to the actual
existence of such a contract (capable of being suspended).
[32] In my view, the commissioner thus committed a material error of law in
finding that, because the educators had a reasonable expectation of
renewal of their fixed-term contracts, they were still ‘employees of the
School' and thus capable of being suspended.
’
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[12] The appellants seek leave to appeal on the basis that the Labour Court
proceedings be declared a nullity on the basis that the respondent’s legal
representatives were not authorised to represent it at the hearing of the review
application; alternatively, that the Labour Court erred in failing to adjudicate the
unfair suspension dispute and failed to have regard to the provisions of section
198 of the LRA (in particular, section 198A(3)(b) and 198B (5) to establish
whether at the time of their suspension, the appellants were deemed permanent
employees of the respondent. Put another way , the appellants submit that , ex
lege, they were deemed to be permanent employees of the respondent,
employed for an indefinite period after the lapse of three months of employment
under their fixed-term contracts. Although the notice of appeal suggests that this
Court should find that the appellants had been unfairly dismissed and that they
should be reinstated, at the hearing of the appeal, counsel submitted that the
commissioner’s award s hould stand, i.e., that the appellants were unfairly
suspended and that they should be paid compensation in terms of the award.
[13] The appellants seek to admit further evidence on appeal. Specifically, t hey seek
to admit evidence regarding the status of the firm of attorneys that represented
the respondents at the time the review was argued. The review application was
argued on 3 September 2024. Judgment was delivered on 3 March 2025. On 28
March 2025, while engaged in the filing of process relevant to an application for
leave to appeal, the appellants discovered that the attorneys repre senting the
respondent in the review application had ‘closed their doors’ with effect from 6
January 2024. This contention is confirmed by correspondence from the Legal
Practice Council, which confirms that Koena Herbert Mpshe was admitted as an
attorney of the High Court on 8 August 2017 and converted to an advocate
without a trust account on 3 April 2024.
without a trust account on 3 April 2024.
[14] The LPC further confirmed that the firm Mps he Koena Attorneys Inc closed on 6
January 2024. The correspondence between the appellant’s attorney and the
LPC forms the basis of the application to admit further evidence on appeal. The
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threshold to be applied when an appellant seeks to lead further evidence on
appeal is well-established.1
[15] An appellant seeking to have further evidence admitted on appeal must establish
that there is a sufficiently reasonable explanation why the new evidence was not
led in the court a quo, there should be a prima facie likelihood of the truth of the
new evidence, and the evidence should be materially relevant to the outcome of
the case. In the present instance, the evidence of Mpshe Koena’s closure came
to light only after the appellants’ new attorneys of record attempted service of
process post the delivery of the judgment under appeal. The attorneys obtained
evidence regarding the closure of Koena Mpshe from the LPC , the custodian of
records concerning the status of legal practitioners. Finally, the appellants submit
that the evidence of representation by an unauthorized legal representative
rendered the review proceedings a nullity.
[16] The notice of motion in the review application, which was filed on 17 August 2021
by Koena Mpheshe Attorneys. The answering affidavit was filed on 5 May 2022,
the replying affidavit on 18 May 2022. All processes were thus filed during the
period in which Koena Mpheshe Attorneys existed. The review application was
opposed. The judgment indicates that the respondent w as represented by Adv M
Mafu, instructed by Koena Mphese Attorneys.
[17] When pressed dur ing the appeal hearing, counsel for the appellants conceded
that the evidence sought to be introduced did not establish more than that the
firm of attorneys on record at the time the review application was argued had
closed its doors. This is an insufficient basis to conclude that the appellants were
represented at the hearing without the necessary authority; in particular, the
appellants have failed to establish that Adv Mafu was not properly briefed to
argue the review. It does not necessarily follow from Koena Mpshe's cessation of
argue the review. It does not necessarily follow from Koena Mpshe's cessation of
practice in January 2024 that the review proceedings are a nullity . The evidence
1 S v De Jager 1965 (2) SA 612 (S) ; Moor and Another v Tongaat -Hulett Pension Fund and Others 2019
(3) SA 456 (SCA) at paras 35 and 36; Rail Commuters Action Group & Others v Transnet Limited t/a
Metrorail and Others 2005 (2) SA 359 (CC).
8
proffered by the appellant is not such, as stated by the Constitutional Court in
Rail Commuters Action Group and Others v Transnet Limited t/a Metrorail and
Others2 that if adduced ‘would be practically conclusive, for if not, it would leave
the issue in doubt, and the matter would still lack finality ’. There is thus no merit
in the application to adduce further evidence on appeal.
[18] Turning then to the merits of the appeal, i t is not in dispute that on 31 December
2020, the appellant’s 12-month fixed-term contracts expired by effluxion of time.
The commissioner’s award was based on her reading of King Sabata Dalindyebo
Municipality v Commission for Conciliation, Mediation and Arbitration and
Others.
3 That judgment dealt with section 186(1)(b)(i) of the LRA and defined a
‘dismissal’ as a failure by an employer to renew a fixed-term contract in the face
of a reasonable expectation of renewal on the same or similar terms, or a
renewal of a contract in those circumstances on less favourable terms. In
essence, the commissioner found that the appellants had established a
reasonable expectation of renewal of their contracts and concluded that they had
thereby established their continued employment relationship with the first
respondent. On this basis, the commissioner found that the appellants had been
suspended and that, in the absence of a cogent reason for the suspension, it was
unfair.
[19] The Labour Court cannot be faulted for finding, on the material and submissions
before it, that the commissioner had committed an error in law by conflating the
inquiry into the existence of a dismissal (a necessary point of departure in any
claim of unfair dismissal) with an inquiry into the existence of an employment
relationship for the purposes of determining the fairness of any suspension from
employment. Put another way, the Labour Court, on the evidence before it,
assessed the matter through the prism of the fixed- term contract concluded for
assessed the matter through the prism of the fixed- term contract concluded for
the calendar year 2020 and concluded that the commissioner had erred because
the award conflated the definition of a ‘dismissal’ (which includes a failure to
2 2005 (2) SA 359 (CC) at para 41.
3 (2005) 26 ILJ 474 (LC).
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renew a fixed- term contract in the face of a reasonable expectation of renewal)
with the actual existence of such a contract. For this reason, the Labour Court
held that the commissioner’s award should be set aside and substituted with an
order that the first respondent had not unfairly suspended the appellants.
[20] In its ruling on the application for leave to appeal, the Labour Court noted that the
thrust of the application was a submission that by operation of section 198B (5),
read with section 198 B (3), the appellants were deemed, at all material times, to
be employed indefinitely. On this basis, the Court granted leave to appeal,
noting that the point raised in the application involves a question of law.
[21] As the Labour Court noted, the appellants’ reliance on section 198B was not
foreshadowed by the referral to conciliation and arbitration, nor was a case made
out for its application on review. The thrust of the appellants’ submissions on
appeal is that, by virtue of section 198B (5), the appellants' contracts were
deemed in law to be of indefinite duration, and that, at the time of their
suspension, their employment with the first respondent was continuous. It follows
that the termination, by effluxion of t ime, of the fixed -term contracts they had
concluded for the calendar year 2020 was not a bar to their claim that they had
been unfairly suspended from their employment.
[22] Section 198B provides as follows:
‘198B. Fixed-term contracts with employees earning below earnings threshold.
(1) For the purpose of this section, a ‘fixed-term contract’ means a contract of
employment that terminates on—
(a) the occurrence of a specified event;
(b) the completion of a specified task or project; or
(c) a fixed date, other than an employee’s normal or agreed
retirement age, subject to subsection (3).
(2) This section does not apply to—
(a) employees earning in excess of the threshold prescribed by the
Minister in terms of section 6(3) of the Basic Conditions of
Minister in terms of section 6(3) of the Basic Conditions of
Employment Act;
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(b) an employer that employs less than 10 employees, or that
employs less than 50 employees and whose business has been in
operation for less than two years, unless—
(i) the employer conducts more than one business; or
(ii) the business was formed by the division or dissolution for
any reason of an existing business; and
(c) an employee employed in terms of a fixed term contract which is
permitted by any statute, sectoral determination or collective
agreement.
(3) An employer may employ an employee on a fixed term contract or
successive fixed term contracts for longer than three months of
employment only if—
(a) the nature of the work for which the employee is employed is of a
limited or definite duration; or
(b) the employer can demonstrate any other justifiable reason for
fixing the term of the contract.
(4) Without limiting the generality of subsection (3), the conclusion of a fixed
term contract will be justified if the employee—
(a) is replacing another employee who is temporarily absent from
work;
(b) is employed on account of a temporary increase in the volume of
work which is not expected to endure beyond 12 months;
(c) is a student or recent graduate who is employed for the purpose of
being trained or gaining work experience in order to enter a job or
profession;
(d) is employed to work exclusively on a specific project that has a
limited or defined duration;
(e) is a non-citizen who has been granted a work permit for a defined
period;
(f) is employed to perform seasonal work;
(g) is employed for the purpose of an official public works scheme or
similar public job creation scheme;
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(h) is employed in a position which is funded by an external source for
a limited period; or
(i) has reached the normal or agreed retirement age applicable in the
employer’s business.
(5) Employment in terms of a fixed-term contract concluded or renewed in
contravention of subsection (3) is deemed to be of indefinite duration
(own emphasis).
(6) An offer to employ an employee on a fixed-term contract or to renew or
extend a fixed-term contract, must—
(a) be in writing; and
(b) state the reasons contemplated in subsection (3)(a) or (b).
(7) If it is relevant in any proceedings, an employer must prove that there was
a justifiable reason for fixing the term of the contract as contemplated in
subsection (3) and that the term was agreed.
(8) (a) An employee employed in terms of a fixed-term contract for longer
than three months must not be treated less favourably than an employee
employed on a permanent basis performing the same or similar work,
unless there is a justifiable reason for different treatment…’
[22] On 1 March 2021, the earnings threshold referred to in section 198 was
R211 596.30. It is common cause, from the terms of the main award and the
variation issued by the commissioner, that the appellants' earnings were below
that threshold. It was also common cause that the appellants had been engaged
on fixed-term contracts for a protracted period, each concluded for a year at a
time. There was no evidence adduced at the arbitration hearing to establish any
justifiable reason for employing the appellants on fixed-term contracts limited to a
period of 12 months at a time.
[23] In Assign Services (Pty) Ltd v National Union of Metalworkers of SA and Others
(Casual Workers Advice Office as Amicus Curiae) ,
4 the Constitutional Court held
that, in relation to the application of section 198A of the LRA and the triangular
relationship between the temporary employment service, the client, and the
4 (2018) 39 ILJ 1911 (CC).
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employee, the deeming provision in that section provides that placed employees
are fully integrated into the workplace after a three- month period, and that the
contractual relationship between the client and the placed employee does not
arise from a negotiated agreement or the client's normal recruitment processes.
Rather, the employee automatically becomes employed on the same terms and
conditions as similar employees, with the same employment benefits, the same
prospects of internal growth, and the same j ob security. The same principle
applies in respect of the deeming provision contained in section 198B(5).
[24] There is nothing on record to suggest that section 198B was not applicable to the
appellants, or that , in terms of section 198B(5) , their fixed-term employment
contracts were concluded or renewed in circumstances where they were
employed by the first respondent for a period of longer than the permissible three
months for any justifiable reason reflected by section 198B (3).
[25] It follows that, by December 2020, even if one were to account only for the last
fixed-term contract on which the appellants were engaged, the appellants were
deemed to be employed by the first respondent on an indefinite basis and
automatically became so employed. The first respondent’s defence to the claim
of unfair suspension, namely the alleged expiry of their fixed- term contracts on
31 December 2020, had no basis in law. It also follows that the Labou r Court’s
finding that the appellants’ employment contracts were not in existence at the
time the first respondent purported to suspend them cannot stand. Although the
commissioner’s reasoning can be called into question, her conclusion that the
appellants had in fact been suspended and that their suspensi ons were unfair
must stand. Regarding the remedy granted, nothing was pleaded before the
Labour Court to suggest that the remedy of compensation was so unreasonable
Labour Court to suggest that the remedy of compensation was so unreasonable
that interference was warranted. There is similarly nothing before us to suggest
otherwise.
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[26] In these circumstances, the Labou r Court’s order stands to be set aside and
replaced with an order dismissing the application to review and set aside the
commissioner’s award.
Order
1. The appeal is upheld.
2. The order of the Labour Court is set aside and substituted by the
following:
‘The application to review and set aside the respondent’s award is
dismissed.’
3. There is no order as to costs.
______________________
A van Niekerk
Judge of the Labour Appeal Court of South Africa
Djaje AJA and Masipa AJA concur.
APPEARANCES:
For the Appellants : Adv H Legoabe
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Instructed by: Ditabe and Wagner Attorneys
For the First Respondent : No appearance