LATE JUDG
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
MENT
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C303/2023
In the matter between:
F[…] G[…] M[…] Applicant
and
THE SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL First Respondent
COMMISSIONER G EDWARDS N.O. Second Respondent
THE THEEWATERSKLOOF LOCAL MUNICIPALITY Third Respondent
Heard: 26 August 2026
Delivered: 27 August 2026
JUDGMENT
JACOBS AJ
Introduction
[1] This is an opposed review application.
[2] The Applicant seeks an order:
2.1 Reviewing and setting aside the arbitration award handed down by the
Second Respondent under the First Respondent’s case number
WCP012306 dated 4 May 2023 and substituting same with an award
that the Applicant was dismissed, that the dismissal was both
procedurally and substantively unfair and that the Applicant be
reinstated indefinitely;
2.2 Alternatively, remitting the matter to the First Respondent for a hearing
de novo before an arbitrator other than the Second Respondent;
2.3 Ordering any of the Respondents who oppose the application to pay
the cost incurred in such opposition, jointly and severally, the one
paying the other to be absolved; and
2.4 Granting the Applicant further and/or alternative relief.
[3] Some delays occasioned this matter, and required consideration . The record
was filed on 14 July 2023, and although the transcript was completed on 12
October 2023, Rule 7A(6) was only complied with on 8 December 2023.
Compliance with Rule 37(20)(b) only followed a further 8 months later, on 16
August 2024.
[4] The Third Respondent ’s answering affidavit was only filed on 20 October
2025. A condonation application was included with the answering affidavit . By
virtue of the provisions of Rule 36(2), condonation was not required in the
absence of an objection by the Applicant.
[5] The Third Respondent was willing to give belated consent for the late
compliance with Rule7A(6) and Rule 7A(8) to allow for the disposal of the
mater on the merits.
[6] Further delays will not be in the interest of justice and the lateness referred to
above is condoned to allow for the finalisation of the matter without the need
to expend further time and costs.
[7] Both the Applicant and Third Respondent agreed that this review deals with a
jurisdictional issue and that the correctness-test, and not the reasonable- test
postulated in Sidumo1 will be applicable.
Historical context
[8] The history of the matter is mostly common cause.
[9] On 28 June 2022 a meeting took place between the Applicant, Mr De Wee, an
official of the Society Development Trade Union (SDTU) , and four officials of
the Third Respondent. These included the Applicant’s husband (a councillor
of the Third Respondent), Council lor John Micheals (the Deputy Mayor), Mr
Solomons-Johannes (Director: Community Services ) and Mr Alfred Mhlotona
(Community Liaison Officer for the Third Respondent). All of the attendees
were members of the GOOD political party.
[10] At this meeting Mr Solomons -Johannes apparently advised that he would
appoint the Applicant as his office manager. The appointment would first be
for a fixed term starting on 4 July 2022, and would then be made permanent.
At the Arbitration hearing Mr Solomon- Johannes denied that he had made
any such promise to the Applicant.
[11] Upon the Applicant reporting for duty on 5 July 2022, some objections were
raised by other counsellors and officials, and on 6 July 2022 the Applicant
was requested to vacate the post . S he was required to first apply for a
position and to attend the requisite interview.
[12] A post was then caused to be advertised, and t he Applicant applied for the
advertised post of Temporary Administrator . A fter attending an interview on
14 July 2022, she was appointed on 18 July 2022.
1 Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC)
[13] The position the Applicant was appointed to , was a level T9- position and the
appointment purported to be an emergency appointment in terms of an
Expanded Public Works Programme (EPWP) project.
[14] Although the Applicant had signed the employment contract in which her
remuneration was indicated as R19 031.00/month, s he apparently onl y later
realised that the remuneration linked to the Temporary Administrator position
was less than the R38 757 she had apparently expected.
2 She declared an
unfair labour practice dispute concerning the title and remuneration. The
dispute was settled on 1 September 2022 when it was agreed that she would
be appointed as Office Manager at the higher rate of pay, backdated to 18
July 2022.
[15] The settlement agreement of 1 September 2022 expressly indicated that the
Applicant’s fixed term appointment would terminate on 31 December 2022.
[16] During August 2022 the Applicant levelled allegations of sexual harassment
against the deputy mayor . During the same period some dirty laundry was
being aired within the GOOD party with insulting a accusing messaged being
exchanged between party members . The Applicant was suspended for
misconduct, and she lodged a further complaint of discrimination and
victimisation in response to her suspension.
[17] A notice of a disciplinary hearing was issued and then withdrawn, and on 6
December 2022, the Applicant was reminded that her fixed term contract
would terminate on 31 December 2022 and that it would not be renewed.
[18] The Applicant referred an unfair dismissal dispute which was conciliated on
17 February 2023. The matter later served before the Arbitrator on 4 April
2023 and an award was issued on 3 May 2023.
The award
[19] The Arbitrator (and the parties) debated the matter with reference to sec
186(1)(b)(i) LRA. Amendments to the LRA in 2015 included sec 186(1)(b)(ii)
2 See: settlement agreement dated 1 September 2022.
to deal with an expectation of permanent employment after expiry of a fixed
term contract. The discussion and evaluation of the relevant principles and the
application thereof to this matter are however still relevant.
[20] The Arbitrator’s findings are briefly that:
20.1 All attendees of the meeting on 28 June 2022 were Good party
members and that Applicant, and possibly also Mr De Wee, were not
employed by the Third Respondent.
20.2 In ensuring the Applicant’s appointment, the role- players had to treat
the appointment as an emergency appointment , justified by special
circumstances.
20.3 The Arbitrator states that the group of GOOD party members had
“hatched a plan” to secure permanent employment for the Applicant.3
20.4 The Arbitrator concluded that the version of events on 28 June 2022,
as testified to by Mr Solomons -Johannes was unlikely. The Arbitrator,
correctly so, still properly evaluated the Applicant’s version of events
to determine if a legitimate expectation of permanent employment
could have been created, as she claimed.
20.5 The conclusion reached by the Arbitrator was that Mr Solomons -
Johannes did not have the authority to give the undertakings he had
given on behalf of the municipality.
20.6 The Arbitrator rejected the Applicant’s contention that the signing of a
form by the Municipal Manager to approve an emergency
appointment ratified the agreement regarding her appointment.
20.7 The Arbitrator f ound that, in the circumstances of the matter, no
reasonable expectation could have vested in the employee because
the party making the promise had no authority , and because the
appointment was not made in accordance with applicable policy.
20.8 The Arbitrator found that, even if the Applicant had developed an
expectation after the meeting of 28 June 2022, any expectations
3 Par 5.10 of the award.
should have been derailed in light of later events, such as the
opposition from other counsellors and the fact that the settlement
agreement of 1 September 2022 expressly limited the employment
term and also did not make any reference to eventual permanent
employment.
20.9 The Arbitrator found the contention of a reasonable expectation of
permanent employment to be disingenuous.
20.10 The Applicant was found not to have been dismissed.
Grounds for review
[21] The Applicant contends that the Arbitrator erred and that he inc orrectly
assumed that Mr Solomons -Johannes did not have the authority to make the
promise of eventual permanent employment.
[22] The Applicant argued that the Arbitrator found the Applicant version of what
transpired at the meeting of 28 June 2022 preferable to that of Solomon-
Johannes, and that this should have been sufficient to rule in her favour.
[23] The s ubjective component of the inquiry into the existence of a reasonable
expectation of permanent employment is emphasised by the Applicant. It is
suggested that this element strongly favours the Applicant’s version.
[24] It was also argued by the Applicant , that the Arbitrator s hould have inquired
whether the objective facts supported her subjective expectations. It is
suggested that the Arbitrator failed to do so.
[25] In the papers, the Applicant submitted that sexual harassment and disciplinary
steps showed sinister intent by the Third Respondent , and that the failure to
appoint her in a permanent capacity can be ascribed to these incidents.
[26] In explaining the obvious failure to follow policy relating to appointments, the
Applicant suggested that the GOOD party regularly makes appointments in
this manner and that it was reasonable to expect an appointment despite non-
compliance with policy.
[27] In the heads of argument submitted on behalf of the Applicant it is argued that
the Arbitrator had failed to evaluate all of the surrounding circumstances.
Evaluation
[28] The Applicant’s case was repeatedly confirmed to be that a reasonable
expectation for permanent employment was created on 28 June 2022 when
Mr Solomons -Johannes offered to facilitate this appointment by first
employing her on a fixed term contract , and to then make her appointment
permanent.
[29] Central to this enquiry is the question whether Mr Solomon- Johannes had the
authority to make the promise of eventual permanent employment.
[30] The Applicant argued that the Arbitrator found the Applicant version of what
transpired at the meeting of 28 June 2022 preferable to that of Solomon-
Johannes, and that this should have been sufficient to rule in her favour.
Evidence, supported by legislative provisions, however , shows that Mr
Solomon-Johannes did not have the authority to make the offer or promise of
employment to the Applicant. Despite accepting the Applicant’s version of
how the meeting of 28 June 2022 was conducted, Mr Solomon-Johannes
simply did not have the authority to appoint the Applicant or to make promises
to her in that regard.
[31] All of the attendees of the 28 June 2022 meeting were members of the GOOD
political party. The Applicant and Mr De Wee, were not employees of the
Third Respondent. This was not a formal municipal meeting clothed in
authority to decide anything on behalf of the Third Respondent. As Mr De
Wee conceded in his evidence, the meeting was merely a GOOD party
caucus.
[32] Legislative provisions such as sec tions 56 and 57 of the Municipal Systems
Act,
4 legislation referred to during arbitration proceedings, militate against the
possibility that Mr Solomons -Johannes or Mr Michels had the required
4 Act 32 of 2000
authority to offer or make an appointment. Appointments must be made by the
municipal manager, or in some instances, the municipal council.
[33] On behalf of the Applicant, it was submitted that the Municipal Manager had
ratified the promised appointment by signing relevant documentation. A
document headed “Feedback on interviews that were held on the 14
th of July
2022”,5 bearing a signature purporting to be that of the municipal manager ,
was referred to in this regard. This document relates to the advertised post of
Temporary Administrator, and not the post of Office Manager which the
Applicant believes she was promised.
[34] The absence of the required authority to appoint the Applicant was evident
from the common evidence of objections raised by other councillors on 5 July
2022, and from policy and legislative considerations.
[35] The s ettlement agreement concluded on 1 Sep tember 2023 may have
allowed for a different title and significantly better remuneration, but it also
emphasised the fixed term nature of the appointment.
[36] The initial appointment was made possible by abusing the opportunities
created by the EPWP.
6 No evidence showed that any urgency capable of
justifying an emergency appointment existed. There was clearly also no public
job creation scheme involved as was indicated in the documentation
accompanying the employment contract.
[37] The express wording of the contract signed by the Applicant and the
settlement agreement emphasised the fixed term nature of her appointment.
[38] In explaining the obvious failure to follow policy relating to appointments, the
Applicant suggested that the GOOD party regularly makes appointments in
this manner and that it was reasonable to expect an appointment despite non-
compliance with policy. This is a disturbing argument. If the GOOD party
regularly makes appointments without following prescribed policy, it is not an
excuse to be relied on, it is a serious indictment against the party.
5 P 006-33 of the record.
5 P 006-33 of the record.
6 See bundle pages 003-30 & 006-34
[39] The Arbitrator correctly concluded that Mr Solomon- Johannes did not have
the authority to make the promise relied on by the Applicant.
[40] The subjective component of the inquiry into the existence of a reasonable
expectation of permanent employment , is of little aid to the Applicant. She
could not reasonably have believed that she would be appointed permanently.
She was aware of the objections from other councillors and officials against
her appointment the first day she reported for duty. She would have known or
would early on have realised, that Mr Solomon- Johannes did not have the
authority to appoint her or to make promises of employment to her. She also
negotiated and signed the settlement agreement which clearly emphasises
the fixed term nature of her employment.
[41] The Applicant was appointed on a fixed term contract in dubious
circumstances by individuals without the requisite authority. Her services
terminated when the term for this contract expired. Considering the
circumstances, there could not have been any reasonable expectation to be
appointed permanently based on a promise made at the GOOD caucus of 28
June 2022.
[42] The sexual harassment, victimisation and discrimination allegation received
very little focus during arbitration proceedings apart from the Applicant’s
submission that her contract was not made permanent because she had
lodged these complaints.
[43] The Arbitrator’s finding that the Applicant was not dismissed, was correct.
[44] In the result, the following order is made:
Order
1. The application is dismissed.
2. There is no order of costs.
_______________________
W Jacobs
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: - Mr C.J. May
Instructed by: - BDP Attorneys
For the Third Respondent: - Adv R Potgieter
Instructed by: - Enderstein Malumbete Inc