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[2026] ZALCCT 88
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Gambakwe v University of the Western Cape (2025/082158) [2026] ZALCCT 88 (8 June 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No: 2025-082158
(1)
Reportable: Yes
/No
(2)
Of interest to other Judges: Yes
/No
(3)
Revised
In the matter between:
PARDON
GAMBAKWE
Plaintiff/Applicant
and
UNIVERSITY OF THE
WESTERN CAPE
Defendant/Respondent
Heard: 18 February
2026
Delivered:
JUDGMENT
MACROBERT, AJ
Introduction
[
1]
This matter concerns an opposed special plea raised by the Defendant
challenging this Court’s jurisdiction to adjudicate
the dispute
on the following basis.
[
2]
The Plaintiff referred an unfair labour practice dispute to the
Commission for Conciliation, Mediation and Arbitration
(CCMA) per
form 7.11 in accordance with section 186 (2)(d) of the Labour
Relations Act
[1]
(LRA) alleging
that he had suffered an occupational detriment for having made a
protected disclosure in accordance with the Protected
Disclosures
Act
[2]
(PDA).
[3] This dispute
was referred before the Plaintiff was dismissed by the Defendant.
[4] The Plaintiff
was subsequently dismissed by the Defendant but did not refer another
dispute to the CCMA alleging an automatically
unfair dismissal in
terms of section 187(1)(h) of the LRA for having made a protected
disclosure as defined in the PDA.
[5] The unfair
labour practice dispute the Plaintiff referred to the CCMA was
conciliated by the CCMA after the Plaintiff
had been dismissed.
[6] The
conciliating Commissioner issued a certificate of non-resolution
describing that the dispute conciliated was an automatically
unfair
dismissal dispute in terms of section 187(1)(h) of the LRA,
whereafter the Plaintiff referred the dispute for adjudication
by
this Court.
[7] The Defendant
has taken issue with this and has raised a special plea contending
that no section 187(1)(h) automatically
unfair dispute had been
referred for conciliation to the CCMA which is an essential
pre-requisite for this Court to adjudicate
that dispute, and that
there had been no attempt to conciliate that dispute.
[8] The Plaintiff
opposes the special plea on the grounds set out below.
The factual backround
[9]
On
22 January 2025 the Defendant issued the Plaintiff with a notice to
attend a disciplinary inquiry in which he confronted charges
relating
inter alia
to
conduct detrimental to the maintenance of good order within the
Defendant’s workplace.
[10]
on 4 February 2025 the Plaintiff referred an unfair labour practice
dispute to the CCMA in terms of section 186 (2)(d)
of the LRA in
which he challenged the disciplinary action instituted against him as
an occupational detriment (other than a dismissal),
in contravention
of the PDA.
[11]
The Plaintiff’s disciplinary hearing took place over three
days, concluding on 18 February 2025. After having been
found guilty
of the allegations he was summarily dismissed on 4 March 2025. As
mentioned above, the Plaintiff did not refer a dispute
to the CCMA to
challenge the fairness of his dismissal.
[12]
The unfair labour practice dispute that the Plaintiff had referred to
the CCMA for conciliation took place on 6 March
2025, 2 days after
his dismissal. After unsuccessful conciliation, the Commissioner
issued a certificate of non-resolution on 6
March 2025.
[13]
The certificate of non-resolution by the Commissioner, described that
the dispute conciliated was an automatically unfair
dismissal dispute
in terms of section 187(1)(h) of the LRA, with which the Defendant
takes issue because no such dispute had been
referred for
conciliation by the Plaintiff, and it would have been impossible for
the Plaintiff to refer such dispute as he was
dismissed some 28 days
after his initial unfair labour practice referral.
[14]
After the Commissioner issued the certificate, the Plaintiff referred
an automatically unfair dismissal for adjudication
by this Court in
terms of section 187(1)(h) of the LRA.
[15]
Hence the raising by Defendant of the special plea as to whether this
Court has jurisdiction to adjudicate the automatically
unfair
dismissal dispute, given the facts set out above and below, and the
law applied to the facts which the Court deals with
below.
[16]
The key issue of this case is whether the Labour Court has the
jurisdiction to hear a case classified by the employee
as an unfair
labour practice but classified by the Commissioner as an
automatically unfair dismissal.
Analysis
[17]
The leading case on this issue was that of the Labour Appeal Court in
NUMSA
v Driveline Technologies (Pty) Ltd and another
[3]
.
This
was followed by the Constitutional Court decision in
NUMSA
V Intervalve (Pty) Ltd and others
[4]
although the facts in that matter are somewhat different to those
in
casu
,
involving a joinder application which the Court is of the view is not
applicable here.
[18]
Defendant’s attorney contended in argument that the principles
involved in the
Intervalve
decision as to referring disputes
for conciliation have force in this matter.
[19]
Aside from analysing the applicable sections in the LRA, particularly
section 191 thereof, Plaintiff’s counsel
relied in argument
primarily upon the Constitutional Court decision in
September
and others v CMI Business Enterprises CC
[5]
(not referred to by Defendant’s attorney in argument). In short
the Constitutional Court decision in
September
overturned the LAC decision in
Driveline
,
the facts of which are briefly set out below.
[20]
The
September
matter came before the Constitutional Court as an application for
leave to appeal against a judgment of the LAC. The dispute which
was
referred to the CCMA for conciliation was one of unfair
discrimination in terms of section 10 of the Employment Equity
Act
[6]
. After unsuccessful
conciliation, the Commissioner recorded the nature of the dispute
confirming it, as referred, as one of discrimination.
[21]
The affected employees alleged that the matter conciliated was in
fact one of unfair dismissal grounded upon a claim
of constructive
dismissal due to unfair discrimination. They referred the dispute to
the Labour Court for adjudication as an automatically
unfair
dismissal in terms of sections 187 and 191 of the LRA.
[22]
The Labour Court granted default judgment in their favour. The
employer applied for rescission of judgment which was
denied. The
employer appealed to the LAC. The LAC applied
Driveline
and
held that:
22.1
An unfair discrimination dispute and not an unfair dismissal dispute
was referred to the CCMA for conciliation;
22.2
It was not clear whether a dismissal had occurred as the employees
themselves did not believe that they were
constructively dismissed
when the referral was made;
22.3
The Labour Court had erred in finding that conciliation of an unfair
dismissal had taken place in terms of
section 191(4) of the LRA as no
admissible evidence supported this finding; and that the Labour Court
was not entitled to venture
beyond what the referral form and the
certificate of outcome stated to determine what had been canvassed at
the CCMA conciliation.
[23]
It will readily be seen how closely aligned the facts in the
September
matter are to the facts
in casu.
The
decision of the Constitutional Court in
September
[24]
The Constitutional Court referred to section 135 of the LRA read with
CCMA Rule 15, which states as follows:
“
A
certificate issued in terms of section 135(5) that the dispute has or
has not been resolved, must identify the nature of the dispute
and
the parties as described in the referral document
or
as identified by the commissioner during the conciliation
proceedings.”
(Emphasis
added).
[25]
The Constitutional Court held that the commissioner has a duty to
determine the true nature of the dispute. The Court,
per Theron J who
wrote the judgment for the majority held that:
“
The
Labour Appeal Court adopted an overly formalistic approach as it held
that to answer whether the real dispute had been conciliated
necessitates a very narrow factual enquiry which entails only looking
at two aspects, namely, “the characterisation on the
referral
form and the contents of the certificate of outcome.” The
Labour Appeal Court failed to take into account the purpose
and
context of the Labour Relations Act and the dispute resolution
mechanisms for which it provides. By relying only on the referral
form and the certificate of outcome the Labour Appeal Court
essentially held that no evidence from the conciliation proceedings
may be led as evidence in subsequent proceedings.”
[7]
[26]
At paragraph 52
[8]
, Theron J
writes;
“
It
would therefore be wrong to adopt the Labour Appeal Court’s
approach, which essentially precludes the courts from referring
to
evidence outside the certificate of outcome and referral form, to
determine the nature of the dispute conciliated. The general
rule is
that the referral form and certificate of outcome constitute prima
facie evidence of the nature of the dispute conciliated.
However, if
it is alleged that the nature of the dispute is in fact different
from that reflected in such documents, the parties
may adduce
evidence as to the nature of the dispute.”
[27]
And at paragraph 54, the learned Judge held that even if the
certificate of outcome does not correctly reference the
dispute that
was canvassed at conciliation, it would be formalism of the highest
degree to ignore substance.
[28]
Accordingly the Court held in paragraph 56, that the purpose of
conciliation is to attempt to resolve the dispute prior
to
litigation, and thus, even though a party refers a dispute other than
the dispute that was conciliated, in this instance, the
real dispute
was identified and an attempt was made to resolve the dispute through
conciliation. Thus, the requirement of conciliation
in terms of
section 191(4) of the LRA was satisfied, and the Labour Court had
jurisdiction to grant default judgment.
Conclusion
[29]
It is clear to this Court that the principles and
ratio decidendi
espoused by the LAC in
Driveline
have been overturned by
the Constitutional Court in
September
,
which this Court
is duty bound to follow and apply in this instance.
[30]
The respective facts and matrixes thereof are on par in the
respective matters.
[31]
The CCMA Commissioner’s certificate of outcome in this matter
characterises the dispute as referred by the Plaintiff
to the CCMA as
a section 187(1)(h) dispute, issued after the conciliation, which
took place after the dismissal of the Plaintiff
by the Defendant.
[32]
It is more than highly probable that the dispute referred to the CCMA
by the Plaintiff was conciliated as a section 187(1)(h)
automatically
unfair dismissal dispute, of which the conciliating Commissioner
would have been aware as the dispute was conciliated
after the
plaintiff’s dismissal,
albeit
but two days thereafter.
[33]
it is clear that the Plaintiff was dismissed by the Defendant upon
the same factual matrix as existed at the time that
he referred his
unfair labour practice dispute, and constituted an alleged
occupational detriment as described in the PDA and section
187(1)(h)
of the LRA.
[34]
The certificate of outcome of the conciliation, which took place
after the Plaintiff’s dismissal
indicates that the
conciliating CCMA Commissioner identified the true nature of the
dispute that was actually conciliated (as per
September
above), as also per the facts set out above.
[35]
Accordingly, and in line with the Constitutional Court’s
reasoning in
September
, and the other cross-references made by
it to sections of the LRA as set out in its judgment, including
section 191, and section
191(4), have been complied with in this
matter. To hold otherwise, as per the Constitutional Court in
September
, would be to ignore the substance of the dispute
referred and would be overly formalistic.
[36]
Accordingly, and for the reasons given above, this Court finds that
it has jurisdiction to adjudicate the referral of
an automatically
unfair dismissal in terms of section 187(1)(h) of the LRA.
[37]
Given the somewhat unique circumstances and nature of this matter,
and in the interests of fairness and justice, it would
be best to
make no order as to costs.
[38]
Accordingly, and in the premises, the Court makes the following
order:
Order:
1.
The
Defendant’s special plea is dismissed;
2.
This Court has
jurisdiction to adjudicate Plaintiff’s referral as an
automatically unfair dismissal in terms of section 187(1)(h)
of the
LRA;
3.
There is no
order at to costs.
J.M.J
MacRobert
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Plaintiff:
Zola Mcasiso of Bowman Gilfillan
Inc
For
the Defendant:
Adv G. Viljoen
Instructed
by:
Attorney M.
Scott
[1]
Act 66 of 1995, as amended.
[2]
Act
26 of 2000.
[3]
(J324/97)
[1999] ZALC 157
(11 October 1999) (
Driveline
).
[4]
2015
(2) BCLR 182
(CC) (
Intervalve
).
[5]
[2018]
BLLR 431
(CC) (
September
).
[6]
Act 55 of 1998.
[7]
Id fn 5 at para 44.
[8]
September
(
Id
fn 5).