IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JR 2479/23
In the matter between:
PASCALE MCKEEVER Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER LINDOKUHLE DLAMINI, N. O. Second Respondent
STANLIB ASSET MANAGEMENT (PTY) LTD Third Respondent
Heard: 26 July 2026
Delivered: 27 August 2026

JUDGMENT

LEKWAPE, AJ
(1) Reportable Yes
(2) Of interest to other Judges: Yes
(3) Revised

____________ 27 August 2026
Signature Date

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Introduction and the Nature of the Proceedings
[1] This is a section 145 review of the Commissioner’s jurisdictional ruling
issued on 13 November 2023 under the Commission for Conciliation,
Mediation and Arbitration (CCMA) case number GAJB 16588-23. The ruling
upheld a point in limine that the Applicant was not an employee of STANLIB
and that the CCMA therefore lacked jurisdiction to arbitrate her unfair
dismissal dispute.
[2] At the outset, it is necessary to define the nature of the enquiry before this
Court. This is not an appeal recast in the language of review. It is a review
under section 145 of the Labour Relations Act (the LRA)1, concerned not
with whether this Court would have reached the same conclusion as the
Commissioner, but with whether the jurisdictional ruling was reached through
a fair process and whether it is sustainable in law. The Court must exercise
restraint and should not interfere merely because another outcome may
have been possible. That restraint, however, is not indifference. Where a
commissioner determines a jurisdictional fact on an incomplete record and
does so after excluding evidence that may bear directly on that fact, the
integrity of the process is compromised. In such circumstances, judicial
restraint does not require deference to an unsafe ruling. It requires
correction.
[3] The review standard is now well settled. In Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others,2 Constitutional Court held that
the question on review is whether the decision reached by the commissioner
is one that a reasonable decision-maker could not reach. The Supreme
Court of Appeal in Herholdt v Nedbank Ltd (Congress of South African Trade
Unions as Amicus Curiae) 3, and the Labour Appeal Court in Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others4 made clear that
a review court must consider whether any irregularity was material and
whether it prevented a fair trial of the issues. The inquiry is therefore not

1 Act 66 of 1995.

1 Act 66 of 1995.
2 [2007] ZACC 22; 2008 (2) SA 24 (CC) at par110.
3 [2013] ZASCA 97; 2013 (6) SA 224 (SCA) at para 25.
4 [2013] ZALAC 28 at paras 14, 20-21.

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concerned with every error, but with errors that distort the process or render
the outcome unreasonable.
[4] The issue is narrow, but its consequences are not. For the Applicant, the
characterisation of the relationship determined whether she had access to
the statutory protections of the LRA and to the CCMA as the forum created
to vindicate those protections. For STANLIB, the issue was whether its
commercial arrangement with intermediaries placed the Applicant outside
the employment relationship altogether. The Commissioner held that the
CCMA lacked jurisdiction because the Applicant was not STANLIB’s
employee. The question for this Court is whether that conclusion can safely
stand where the enquiry into the true nature of the relationship was decided
without hearing evidence directed at how the relationship actually operated
in practice. In a matter of this kind, the law does not permit form to eclipse
substance, nor does fairness permit the decisive issue to be resolved while
the evidence capable of illuminating it remains unheard.
Chronology of Material Events
[5] The Applicant applied for and was interviewed for the Technology
Programme Manager position during 2022. Following the interview process,
correspondence was exchanged concerning the position, its requirements,
the working arrangements and the terms on which the Applicant would
render services.
[6] In January 2023, the Applicant commenced rendering services at STANLIB
in respect of an IT integration project. The formal commercial structure
involved a Service Request Agreement between STANLIB and Dimension
Data, with remuneration administered through Phoenix Business Consulting
(Pty) Ltd t/a Bobby Brokers.
[7] Between January and June 2023, the Applicant performed her work from
within STANLIB’s operational environment. She worked at STANLIB’s
premises, used STANLIB’s tools, accessed and operated within its systems
and processes, and discharged the functions of Technology Programme

and processes, and discharged the functions of Technology Programme
Manager as part of STANLIB’s organisational structure.

4

[8] On 14 June 2023, the Applicant’s services were terminated. She contends
that the termination was sudden and effected without notice, reason or
procedure. Internal communications were thereafter circulated regarding the
termination of her assignment within STANLIB’s organisation.
[9] On 20 September 2023, the arbitration proceedings commenced before the
CCMA. The Applicant initially sought to join Dimension Data and Bobby
Brokers as additional respondents but later abandoned that joinder
application and pursued STANLIB as the true employer.
[10] The arbitration proceedings were reconvened on 30 October 2023. The
Commissioner thereafter signed the jurisdictional ruling on
10 November 2023, and the CCMA issued the award on 13 November 2023,
finding that the Applicant was not an employee of STANLIB and that the
CCMA accordingly lacked jurisdiction.
[11] On 14 December 2023, the Applicant instituted these review proceedings.
Heads of argument were filed by both parties during June 2026, and the
matter was enrolled for hearing before this Court on 26 June 2026.
The Factual Matrix and the Arguments of the Parties
[12] The factual background reflects a recurring feature of contemporary labour
arrangements: while an engagement may be documented through
intermediaries, the practical reality of the work may point to a different legal
relationship. The Applicant rendered services through a triangular
arrangement involving STANLIB, Dimension Data (Pty) Ltd and Phoenix
Business Consulting (Pty) Ltd t/a Bobby Brokers. From January 2023 until
the termination of her services on 14 June 2023, she was placed at
STANLIB as a Technology Programme Manager on an IT integration project.
For purposes of jurisdiction, the enquiry could not stop at the entity that
generated the contractual documents or processed remuneration. The
substantive question was whether , in reality, the Applicant worked within
STANLIB’s undertaking, under its operational direction, and in furtherance of

STANLIB’s undertaking, under its operational direction, and in furtherance of
its business objectives.

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[13] That question was sharpened by the manner in which the Applicant’s work
was allegedly performed in practice. She reported daily to STANLIB’s
premises, used STANLIB’s tools, and worked within its systems and
operational processes. The objective material, on the Applicant’s case,
indicated that STANLIB determined the work she performed, where she
performed it, and when it had to be completed. These were not peripheral
features of the arrangement; they went directly to the indicators of control,
supervision and integration.
[14] The same theme emerged from the material relied upon to show
organisational integration. The Applicant pointed to reporting lines to senior
STANLIB functionaries, including the Programme Director and the CIO, as
well as an organogram and related documents said to place her within
STANLIB’s operational hierarchy. She also contended that she managed or
coordinated work involving STANLIB personnel. If established, those matters
would bear directly on whether she operated as an external commercial
actor or had, in practical terms, become part of STANLIB’s undertaking.
[15] The Applicant’s reliance on the intensity and regularity of the work flowed
from that alleged integration. On her material, she worked approximately 827
hours over about five and a half months. That level of commitment is not
easily reconciled with the position of an independent contractor freely
operating a business in the market. It suggested, at least in the Applicant’s
case, that her working capacity was substantially absorbed by STANLIB. Her
fixed monthly remuneration of R213 300 and negotiated leave entitlement
reinforced the relevance of economic dependence to the enquiry.
[16] The payroll documents formed part of that broader picture but could not
decide the issue on their own. Although the payslips described the Applicant
as an independent contractor, they also reflected deductions which she said
were consistent with employment, including the skills development levy.

were consistent with employment, including the skills development levy.
Labels and deductions may inform the statutory enquiry, but they do not
replace it. Their significance lay in the need to weigh them with the evidence
on control, integration, economic dependence and the manner in which the
work was actually performed.

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[17] The termination correspondence raised a related question about how the
relationship was treated when it came to an end. The Applicant relied on
communications concerning the termination of her assignment and on
documents said to reflect the work she performed for STANLIB. If
STANLIB’s role was truly limited to receiving services through a third- party
provider, the manner in which the termination was communicated,
implemented and absorbed within STANLIB’s operations required scrutiny.
The commissioner could not properly stop at the contractual chain while
leaving unanswered whether STANLIB dealt with the Applicant as an
external supplier or as a person integrated into its working structures.
[18] Against that factual case, STANLIB anchored its answer in the formal
contractual structure through which the engagement was arranged. It relied
on the service request agreement concluded with Dimension Data (Pty) Ltd,
the absence of a direct written employment contract with the Applicant, the
role of Phoenix Business Consulting (Pty) Ltd t/a Bobby Brokers as the
payroll vehicle, and the Applicant’s abandonment of her joinder application
against Dimension Data and Bobby Brokers. Relying on National Union of
Metalworkers of South Africa v Intervalve (Pty) Ltd 5, STANLIB submitted that
it could not be drawn into an employment dispute where the commercial
documents pointed elsewhere. That submission had legal force, but it did not
dispose of the enquiry. The remaining question was whether the formal
arrangement reflected the true working relationship, or whether it obscured
the identity of the entity that, in substance, directed, received and benefited
from the Applicant’s labour.
[19] The Applicant’s answer was correspondingly directed at substance rather
than form. She contended that contractual nomenclature and payment
routing could not conclude the statutory enquiry where the practical incidents
of the relationship pointed in another direction. She relied on her alleged

of the relationship pointed in another direction. She relied on her alleged
integration into STANLIB’s operational structure, reporting lines to senior
STANLIB personnel, the management or coordination of work involving
STANLIB staff, fixed and demanding working hours, annual leave, fixed

5 [2014] ZACC 35; 2015 (2) BCLR 182 (CC) at paras 32–33, 40–43 and 47–50

7

monthly remuneration and payroll deductions. Those features, she
submitted, were inconsistent with an entrepreneur operating independently
in the market and were relevant to whether she was economically dependent
upon, and integrated into, STANLIB’s undertaking.
The Procedural Irregularity
[20] The Applicant’s complaint is not a technical objection to procedure. It
concerns the fairness of the jurisdictional enquiry itself. The commissioner
was required to decide whether the Applicant was, in substance, an
employee of STANLIB. That question could not fairly be answered without
hearing evidence capable of explaining how the relationship worked in
practice. On the Applicant’s version, the subpoenaed STANLIB witness was
able to speak directly to those practical realities. If that evidence was
excluded, the enquiry was deprived of material central to its proper
determination.
[21] That difficulty is important because employment status is rarely proved by
documents alone. This is especially so where the arrangement is layered
through more than one entity. The statutory enquiry is concerned with reality,
not paperwork in isolation. It asks who allocated the work, who supervised it,
who benefited from it, whether the worker was integrated into the enterprise,
and whether the worker retained the risks and freedoms of an independent
business. Those matters often require oral evidence. In this case, they made
such evidence necessary.
[22] The Court accepts the Applicant’s submission that, in the circumstances of
this matter, the commissioner’s decision to determine the jurisdictional point
on statements and documents alone constituted a material irregularity. I t is
trite that s ection 138 of the LRA permits commissioners to conduct
arbitration proceedings with minimal legal formality ; however, it does not
permit commissioners to sacrifice fairness.
[23] The issue before the commissioner was not confined to the interpretation of

[23] The issue before the commissioner was not confined to the interpretation of
a contract. It required a fact -sensitive enquiry into the true nature of the
working relationship. That enquiry required evidence on control, supervision,

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reporting lines, integration, economic dependence and the practical
operation of the triangular arrangement. By determining the jurisdictional
point on the papers, and by declining to receive evidence directed at those
matters, the commissioner denied himself the evidentiary material necessary
to determine jurisdiction objectively. He also curtailed the Applicant’s right to
a fair opportunity to place her case before the tribunal on the very issue that
determined jurisdiction.
[24] STANLIB submitted that the Applicant cannot complain about the procedure
because her representative offered, in the alternative, to take the
commissioner through the documents. That submission cannot be sustained
when the transcript is read fairly and as a whole. Mr Horn first placed on
record that the Applicant wished to make a statement and that a
subpoenaed witness, Mr De Lange, was available to clarify the relationship
between the Applicant and STANLIB. The offer to proceed on the documents
was made only after the commissioner indicated a preference for that
course. It was an accommodation of the commissioner’s approach, not an
unequivocal waiver of the right to lead evidence.
[25] Waiver is not lightly inferred and, in law, requires conduct that is clear,
unequivocal and inconsistent with the continued assertion of the right relied
upon. That threshold was not established on the transcript. The Applicant’s
representative identified the evidence to be led, explained its relevance to
the relationship between the Applicant and STANLIB, and thereafter
proceeded in the manner preferred by the commissioner. Properly
characterised, that course reflected compliance with the commissioner’s
procedural direction rather than consent to the exclusion of oral evidence. It
therefore could not justify deciding the jurisdictional issue without receiving
evidence that bore directly on it.
[26] The decisive point is that the commissioner bore an independent duty to

[26] The decisive point is that the commissioner bore an independent duty to
conduct a fair and proper jurisdictional enquiry, a duty owed not only to the
parties but also to the sound administration of justice. That duty was not
displaced because a representative, confronted with the commissioner’s
procedural preference, sought to proceed by reference to the documents.

9

Where the existence of an employment relationship in a triangular
arrangement was disputed, and where evidence was tendered on control,
integration and reporting lines, the commissioner was required to receive
and assess that evidence before determining jurisdiction. A tribunal charged
with deciding its own jurisdiction cannot narrow the process in a manner that
leaves the central facts untested, because to do so compromises both
procedural fairness and the reliability of the jurisdictional ruling.
[27] The duty of fairness is not satisfied by the mere fact that a tribunal reaches a
conclusion within its statutory powers. Justice must not only be done; but it
must be seen to be done. That principle applies with equal force to
commissioners exercising statutory adjudicative functions. A commissioner
presiding over a jurisdictional enquiry must therefore conduct the
proceedings in a manner that is both impartial in fact and reasonably
perceived as fair by the parties. Where a party identifies material evidence
on the decisive jurisdictional issue, and the commissioner elects not to hear
it, the concern is not simply one of procedure. It bears directly on confidence
in the fairness and integrity of the adjudicative process.
[28] The transcript of 30 October 2023 demonstrates why the procedural course
adopted by the commissioner materially affected the jurisdictional enquiry.
The Applicant sought to call a subpoenaed STANLIB witness to address the
substantive realities of the working relationship, including the relationship
between the Applicant and STANLIB. Her representative placed the
relevance of that evidence on record in the following terms:
Applicant’s representative: ‘Firstly, Commissioner, there are two parts of
our submission that we want to make. One is basically calling the Applicant to
make the statement. Secondly, we have the witnesses. Mr Jan De Lange that
we subpoenaed for today, that is available, that can also clarify the

we subpoenaed for today, that is available, that can also clarify the
relationship between her and STANLIB instead of Dimension Data or any
other party... however, if you prefer that we only state our case based on
what has been submitted, then I can take you through the documentation
itself.’
[29] The commissioner responded:

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Commissioner: ‘I will prefer the latter part of your statement …’
[30] The Applicant’s representative then proceeded as follows:
Applicant’s representative: ‘What I am going to do then is to take you
through the documentation and go through all the documentation ... let me
take you to page 33 of the bundle.’
[31] That exchange is significant because it demonstrates that the Applicant
sought to lead evidence on the very issue that determined jurisdiction, and
that the commissioner elected instead to confine the enquiry to the
documents. The procedural consequence was material. The jurisdictional
fact was determined while evidence directed at its proper resolution
remained unheard, leaving the decisive issue to be decided on an
incomplete evidentiary foundation.
[32] While Section 138(1) of the LRA grants a commissioner broad discretion to
conduct arbitration proceedings in any manner they deem appropriate to
resolve the dispute fairly and quickly, with a minimum of legal formalities,
and Section 138(2) preserves a party’s right to give oral evidence and call
witnesses, this procedural flexibility is not boundless. Jurisdictional issues
must be treated as a strict exception to the general flexibility permitted under
Section 138. Because such a ruling determines whether the CCMA has the
power to entertain the dispute at all, the commissioner was required to
ensure that the evidentiary foundation was sufficient and that the parties had
a fair opportunity to present and test material evidence.
[33] Therefore, a commissioner cannot rely on the broad discretionary powers
under section 138(1) to bypass oral testimony and substitute it with a
preference for documentary material where the existence of an employment
relationship is squarely contested. Section 138 is a tool for accessible
justice; it is not a licence to decide a disputed jurisdictional fact on an
evidentiary record from which material oral evidence has been excluded.

evidentiary record from which material oral evidence has been excluded.
[34] A jurisdictional ruling reached on that basis cannot withstand review,
because the irregularity was neither formal nor peripheral. It went to the

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commissioner’s capacity to determine the real issue before him on a fair and
reliable evidentiary foundation. The authorities in Herholdt and Gold Fields
require a reviewing court to consider whether the irregularity prevented a fair
trial of the issues or caused the commissioner to misconceive the nature of
the enquiry. On the facts of this matter, the refusal to hear material evidence
on the jurisdictional fact had both consequences.
The Law
[35] Section 213 of the LRA defines an employee as any person, excluding an
independent contractor, who works for another person and receives
remuneration, or who assists in carrying on or conducting the business of an
employer.
[36] Where a ruling concerns the existence of the CCMA’s jurisdiction, the
question for this Court is a precise one: was the CCMA correct to conclude
that it lacked jurisdiction? The issue is not whether the commissioner’s view
was merely reasonable, but whether the jurisdictional fact on which the ruling
depended was objectively established. In South African Rugby Players
Association and Others v SA Rugby (Pty) Ltd and Others
6, the Labour
Appeal Court held that where jurisdiction depends on the existence of an
employment relationship, the reviewing court must determine that
jurisdictional fact objectively. The enquiry is therefore whether, on the proven
facts, the Applicant was an employee for purposes of section 213 of the
LRA.78
[37] The determination of employment status cannot be surrendered to labels
chosen by contracting parties, nor to the convenience of contractual
intermediaries. Labels may assist, but they cannot decide the matter. If that
were so, the statutory definition of employee could too easily be avoided by
careful drafting. The Court must examine the substance of the relationship
and the practical incidents of the work performed, because labour legislation

6 2008) 29 ILJ 2218 (LAC) at para 39 – 40.
7 See Sanlam Life Insurance Ltd v CCMA (2009) 30 ILJ 2903 (LAC).

7 See Sanlam Life Insurance Ltd v CCMA (2009) 30 ILJ 2903 (LAC).
8 See Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC) at para
6, 27 – 34.

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protects real working relationships, not merely the language used to describe
them.
[38] The starting point for identifying the relevant indicia of employment remains
with the older authorities. In SABC v McKenzie
9, the Court distinguished a
contract of service from a contract for services by considering, among other
indicators, control, the obligation to render personal service and
organisational integration. Those factors remain useful, but they must not be
applied mechanically. In light of the protective purpose of labour legislation,
the enquiry must look beyond commercial form and contractual description
to the substance of the relationship. The adjudicator must evaluate the
totality of the circumstances and determine the objective reality of how the
work was performed, regulated and integrated into the alleged employer’s
undertaking.
[39] In the leading authority of State Information Technology Agency (Pty) Ltd v
CCMA and Others,
10 the Labour Appeal Court identified three primary
considerations (SITA factors) relevant to the reality of an employment
relationship as follows:
(i) the employer’s right of supervision and control.
(ii) whether the person forms an integral part of the organisation.
(iii) the extent of economic dependence.
[40] Having regard to those considerations, the Applicant’s case could not
properly be dismissed by reference to the contractual chain alone. On the
material before the commissioner, there were indicators that STANLIB
exercised practical control over the work, that the Applicant performed her
functions within STANLIB’s operational and reporting structures, and that the
intensity of the engagement, fixed remuneration and asserted leave
arrangements raised a real question of economic dependence. Those facts
did not finally determine the issue without being tested, but they were plainly

9 (1999) 20 ILJ 585 (LAC) at para 9.
10 State Information Technology Agency (Pty) Ltd v CCMA and Others [2008] ZALAC 1; (2008) 29 ILJ

2234 (LAC) at para 11 – 12.

13

sufficient to require a full enquiry into the reality of the relationship. The
commissioner was therefore required to assess the SITA factors against the
evidence of how the work was actually performed, rather than treating the
commercial form of the arrangement as conclusive.
[41] The Labour Appeal Court in Denel (Pty) Ltd v Gerber
11 similarly emphasised
that substance must prevail over terminology. This principle has particular
force in mediated or triangular work arrangements. Without it, the protective
reach of the LRA could be defeated by inserting intermediaries between the
worker and the entity that actually directs , benefits from and controls the
work.
[42] Furthermore, the Labour Court in Goliath v SA Broadcasting Corporation
SOC Ltd12 emphasised that a genuine independent contractor retains
entrepreneurial capacity and freedom to contract with others. Economic
independence relates to the entrepreneurial position of the person in the
marketplace.
[43] The Constitutional Court’s reasoning in Assign Services (Pty) Ltd v National
Union of Metalworkers of South Africa and Others
13 reinforces that triangular
labour arrangements must be approached with proper regard to the purpose
of the LRA. Although that case concerned section 198A, its broader lesson is
apposite, courts should be astute not to allow commercial form to obscure
the identity of the party that, in substance, receives and controls the labour.
[44] This approach aligns with international labour standards, specifically the ILO
Employment Relationship Recommendation, 2006 (No. 198) 14, which adopts
the principle of the primacy of facts which states that employment status
must be determined by the facts relating to the performance of work,
regardless of how the relationship is characterised in an opposing
commercial arrangement.

11 (2005) 26 ILJ 1256 (LAC) at para 22.
12 [2022] ZALCCT 10; (2023) 44 ILJ 185 (LC) at paras 20–23 and 69–70.

12 [2022] ZALCCT 10; (2023) 44 ILJ 185 (LC) at paras 20–23 and 69–70.
13 Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others [2018]
ZACC 22; [2018] 9 BLLR 837 (CC); (2018) 39 ILJ 1911 (CC); 2018 (5) SA 323 (CC); 2018 (11) BCLR
1309 (CC).
14 ILO Employment Relationship Recommendation, 2006 (No. 198) at para 9.

14

[45] Applying the SITA criteria, the cumulative indicators point persuasively
towards an employment relationship with STANLIB. The Applicant did not
merely deliver an external product to STANLIB from the outside. On the
available material, she worked within STANLIB’s operational structures,
under its reporting lines, for its project objectives, and as part of its
organisational machinery. The interposition of Dimension Data and Bobby
Brokers does not answer those indicators; it merely explains the route
through which the arrangement was documented and paid.
[46] On the control criterion, the evidence is compelling. The Applicant did not
decide independently what project work to perform, where to perform it, or
how to place it within STANLIB’s delivery priorities. She worked on
STANLIB’s premises, used STANLIB’s tools, and performed within
STANLIB’s systems. Those are practical signs of subordination to
STANLIB’s operational authority.
[47] On integration, the evidence points in the same direction. The question is not
whether the Applicant appeared on a formal STANLIB human- resources
organogram, but whether the work she performed placed her functionally
within STANLIB’s organisational structure. The record indicates that she
reported to senior STANLIB functionaries, worked within STANLIB’s
systems, coordinated or managed work involving STANLIB personnel, and
performed project functions directed at STANLIB’s operational objectives.
Viewed throu gh the SITA criterion of integration, those facts support the
conclusion that she was not operating as an external supplier delivering an
independent product from outside the enterprise. She was, in practical
terms, working from within STANLIB’s organisational machinery.
[48] The allocation of a STANLIB email address is not, in itself, conclusive of
employment status. It is, however, not an irrelevant fact. In a jurisdictional
enquiry concerned with the substance of the relationship, it is a practical

enquiry concerned with the substance of the relationship, it is a practical
indicator of the extent to which the Applicant was enabled to function within
STANLIB’s internal working environment. A person provided with an email
address on the alleged employer’s domain is, at least outwardly and
operationally, placed within that organisation’s communicative infrastructure.

15

That fact assumes greater significance when considered together with the
evidence that the Applicant worked on STANLIB’s premises, used
STANLIB’s tools and systems, reported to STANLIB personnel, and
performed project functions directed at STANLIB’s business objectives.
[49] The Applicant also produced an organogram as part of the evidence relied
upon to demonstrate her alleged integration into STANLIB’s operational
structure. That evidence reinforces, rather than independently establishes,
the conclusion on integration. The Applicant relied on the organogram at
arbitration to illustrate the reporting lines she said operated in practice and
the structure within which she performed her work at STANLIB. It was not
tendered, and is not treated, as a formal STANLIB -authored corporate
document. Its evidentiary value lies instead in its capacity to explain the
Applicant’s version of her operational placement within STANLIB’s hierarchy.
[50] Mr Moolla’s objection that the organogram was not prepared by STANLIB
therefore went to the weight to be attached to the document, not to its
relevance to the jurisdictional enquiry.
[51] It is significant that while counsel for the Third Respondent did not admit the
organogram's accuracy, no positive case was advanced to demonstrate that
it was factually flawed. Crucially, Mr Moolla fairly conceded that the Applicant
might have authored the document to reflect her day -to-day experience of
the reporting lines at STANLIB. In those circumstances, the document was
capable of serving as demonstrative evidence of the Applicant’s alleged
reporting lines. If its accuracy was disputed, the appropriate course was to
permit oral evidence and cross -examination on the reporting structure. The
Commissioner instead concluded that the Applicant did not form part of
STANLIB’s organisational structure without properly testing or engaging with
the very evidence tendered on integration. That failure materially weakened
the jurisdictional ruling.

the jurisdictional ruling.
[52] On economic dependence, the Applicant’s recorded hours, fixed
remuneration and practical inability to offer her services freely to other clients
are significant. The evidence of approximately 827 hours over five and a half

16

months is difficult to reconcile with the picture of an entrepreneur carrying on
business on her own account. It points instead to a person whose labour
capacity was substantially absorbed by STANLIB.
[53] The material relating to working hours, project commitments and reporting
structures was particularly significant. A person who is required, in practical
terms, to devote their working capacity to a single enterprise and to perform
that work within that enterprise’s operational and reporting structures may
not readily be characterised as an independent businessperson. Economic
dependence is not assessed only by identifying the source through which
remuneration is paid. It also requires consideration of whether the person
retained any real entrepreneurial freedom to offer their labour or services in
the market independently of the alleged employer.
[54] STANLIB’s reliance on National Union of Metalworkers of South Africa v
Intervalve (Pty) Ltd and Another15 does not dispose of the issue in this
matter. Intervalve concerned the referral of a dismissal dispute against
separate corporate entities and the jurisdictional consequences of failing to
refer the dispute against the employer concerned. It did not decide that a
commissioner must accept a contractual chain at face value where the issue
is whether the cited respondent was, in substance, the employer in the
actual working relationship. The present enquiry is therefore not whether
referral requirements may be disregarded. It is whether, on a proper
consideration of the evidence, STANLIB was the employer for purposes of
section 213 of the LRA. That question required a full evaluation of the
practical incidents of the relationship, including control, integration,
supervision and economic dependence.
[55] The Applicant’s case was that her daily work was performed within
STANLIB’s environment, she worked at STANLIB’s premises, used
STANLIB’s systems and tools, reported through STANLIB’s structures, and

STANLIB’s systems and tools, reported through STANLIB’s structures, and
performed work directed at STANLIB’s project objectives. If those facts are
established, the involvement of Dimension Data and Bobby Brokers would
explain how the arrangement was administered commercially and how

15 [2014] ZACC 35; 2015 (2) BCLR 182 (CC); [2015] 3 BLLR 205 (CC); (2015) 36 ILJ 363 (CC).

17

payment was processed. It would not, without more, answer the statutory
question whether the Applicant was in substance working as part of
STANLIB’s undertaking. The distinction is important. Intervalve is concerned
with the legal consequences of referral against the correct employer. This
matter concerns the prior factual and legal question of who the employer
was, having regard to the reality of the working relationship. That is the
enquiry required by section 213 of the LRA.
[56] Having regard to the definition of employee in section 213, the commissioner
was required to assess the relationship as it operated in practice, rather than
to decide the matter by reference to its contractual description. The ruling
does not reflect that assessment. By giving undue weight to the Applicant’s
description as an independent contractor, without properly evaluating the
evidence on control, supervision, integration and economic dependence, the
commissioner approached the jurisdictional enquiry on an unduly formal
footing.
[57] Properly interpreted, section 213 requires a substantive enquiry into the real
working relationship. The statutory distinction is drawn not by the parties’
description of the arrangement, but by whether, viewed objectively, the
person’s labour was integrated into and deployed for another’s undertaking,
or whether she was genuinely conducting an independent business on her
own account. That interpretation gives effect to the protective purpose of the
LRA and provided the lens through which the commissioner was required to
assess the evidence.
[58] Put differently, the enquiry required the commissioner to look past the outer
shell of the arrangement and to identify its true substance. The fact that the
work was channelled through intermediaries, described as independent
contracting, or paid through a third-party mechanism did not, without more,
remove the Applicant from the protection of the LRA. If her labour was in

remove the Applicant from the protection of the LRA. If her labour was in
reality deployed within STANLIB’s undertaking, subject to its operational
direction, integrated into its structures and dependent upon it for
remuneration, those facts had to be confronted directly and could not be

18

answered by the vocabulary of the contract or by the administrative route
through which payment was made.
[59] It follows that the statutory enquiry could not properly be confined to
contractual labels or administrative form. It required an objective assessment
of the relationship as a whole, directed at whether the Applicant was carrying
on an independent enterprise of her own, with the attendant entrepreneurial
risk and market freedom, or whether her labour was in substance absorbed
into STANLIB’s undertaking and performed under its operational authority.
[60] Such question cannot be answered by invoking the language of independent
contracting, payroll descriptions, or the presence of intermediaries. It
required a careful assessment of the lived reality of the relationship,
including control, supervision, integration, economic dependence, reporting
lines and the manner in which the work was actually performed. To hold
otherwise would permit statutory protection to be defeated by drafting,
routing or commercial form, rather than by the real character of the working
relationship.
[61] In Smith v Mouille Grange Body Corporate and Others ,16 the Court stated
that:
[30] Where an employee earns above the threshold, as is the case here,
the Code of Good Practice: Who is an Employee, as contemplated in terms of
subsection (4) of section 200A of the LRA, sets out the guidelines for
determining whether that person is, in any event, an employee. The Code of
Good Practice sets out six distinguishing factors between an employee and
an independent contractor as follows:
30.1 An employee renders personal service, whereas an independent
contractor performs specified work and produces a specified result;
30.2 While an employee performs the service personally, an
independent
contractor may perform the service through others;

16 [2024] ZALCCT 55 at para 30.

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30.3 The employer chooses when to make use of the services of an
employee, whereas an independent contractor performs work or produces a
result within the period fixed by the contract;
30.4 An employee must obey the lawful instructions from the employer,
whereas an independent contractor is subservient to the contract but is not
under the supervision or control of the employer;
30.5 The contract with an employee terminates on such employee’s death
whereas the death of an independent contractor does not necessarily
terminate the contract; and
30.6 An employee’s contract terminates on the expiry of the period of
service, whereas an independent contractor's contract terminates upon
completion of work or production of the specified result.
[31] Various tests have been formulated to determine whether a person is
an employee, and even though it has received heavy criticism, the dominant
impression test has generally been followed. In terms of this test, the realities
of the relationship are ascertained irrespective of how parties have described
or termed their relationship. Substance prevails over form.
[62] The significance of that authority lies in its confirmation that, even where the
statutory presumption in section 200A does not apply because the person
earns above the threshold, the enquiry does not revert to contractual
formalism. The Code continues to provide a structured and practical guide to
the distinguishing features of employment and independent contracting. Its
factors point the decision- maker away from nomenclature and towards the
real incidents of the relationship: whether the work was rendered personally,
whether the worker was subject to supervision and lawful instruction,
whether she was integrated into the employer’s business, whether the
engagement was for ongoing service rather than the production of a discrete
result, and whether she retained the freedom to deploy others or conduct an
independent enterprise.

independent enterprise.
[63] Read with the dominant -impression test, the Code required the
commissioner to evaluate the cumulative weight of all relevant indicators and

20

to determine the objective reality of the relationship. That is precisely where
the jurisdictional enquiry miscarried. On the Applicant’s version, the decisive
indicators could not properly be assessed without evidence on her reporting
lines, supervision, integration into STANLIB’s operational structure,
economic dependence and the practical manner in which her work was
performed. By deciding the point without receiving and testing that evidence,
the commissioner did not merely omit a procedural step; he failed to
undertake the very enquiry which the Code and the authorities required.
[64] It therefore follows that the commissioner was not entitled to determine the
jurisdictional question by placing decisive reliance on the formal contractual
structure or on the description of the Applicant as an independent contractor.
The authority requires a broader evaluative enquiry directed at the dominant
impression created by the relationship as a whole. In the present matter, that
enquiry required the commissioner to test, and not merely note, the evidence
bearing upon personal service, supervision, control, integration into
STANLIB’s business, economic dependence, and whether the Applicant was
engaged to produce an independent contractual result or to render ongoing
service within STANLIB’s operational framework. Absent that assessment,
the conclusion that she fell outside the protection of section 213 of the LRA
was reached prematurely and on an inadequate foundation.
[65] The Third Respondent’s reliance on the payroll documentation must be
considered, but it cannot carry the weight assigned to it. It submitted that the
payslip did not reflect PAYE in the ordinary sense, but a voluntary tax
deduction; that the Applicant was described in the documentation as an
independent contractor; and that payment was processed through the
Dimension Data cost centre. These matters are plainly relevant to the
evidentiary matrix, but they are not determinative of the statutory enquiry.

evidentiary matrix, but they are not determinative of the statutory enquiry.
Section 213 of the LRA does not make employment status dependent on
payroll descriptions, payment routing or the nomenclature selected by the
parties.
[66] The Court must still determine, objectively and upon the totality of the
relationship, whether the practical incidents of control, integration and

21

economic dependence disclose employment. On that enquiry, the manner in
which remuneration was administered may inform the analysis, but it cannot
displace the substance of the working relationship.
[67] It follows that the payroll treatment of the Applicant is an evidentiary
consideration and not a statutory shortcut to a finding of employment. The
enquiry remains one of substance and must be determined by reference to
the totality of the relationship. Properly understood, the payroll evidence
therefore neither conclusively establishes nor conclusively excludes
employment. It is one indicator to be weighed together with the other
evidence bearing upon control, integration, economic dependence and the
practical manner in which the work was performed.
Appropriate Remedy: Substitution or Remittal
[68] The remaining issue is the appropriate remedy. Section 145(4)(a) of the LRA
empowers this Court, after reviewing and setting aside an award, to
determine the dispute in the manner it considers appropriate. That remedial
discretion includes, in a proper case, the power to substitute the
commissioner’s decision with the decision that ought to have been made.
Substitution, however, is not the automatic consequence of a successful
review, even where the ruling under review concerns jurisdiction. The Court
must determine whether the record is sufficiently complete, whether the
material facts have been properly ventilated, and whether the interests of
justice favour final determination by this Court rather than remittal to the
CCMA.
[69] The Applicant sought, in the alternative, that the jurisdictional ruling be
replaced with an appropriate order and, if substitution is not competent or
appropriate, that the matter be remitted to the CCMA for determination
before a commissioner other than the second respondent. The relief sought
therefore requires this Court to consider whether the interests of justice are
better served by substitution or by remittal.

better served by substitution or by remittal.
[70] Ordinarily, substitution may be appropriate where the record is complete, the
material facts are not in dispute, the outcome is a foregone conclusion, and

22

remittal would serve no practical purpose. Those requirements are not
satisfied in this matter. The very basis upon which the ruling falls is that the
commissioner determined the jurisdictional issue on a materially incomplete
evidentiary foundation.
[71] The Applicant’s complaint, as advanced in these proceedings, is that she
was not permitted to testify or to call a subpoenaed witness on the factual
incidents of the relationship, including control, supervision, reporting lines,
integration, economic dependence and the practical operation of the
triangular arrangement. Those matters were not peripheral; they went
directly to the question whether the Applicant was an employee as
contemplated in section 213 of the LRA. In consequence, the procedural
defect engaged the audi alteram partem principle in its most practical form, a
party whose rights depend on a disputed jurisdictional fact must be afforded
a fair opportunity to place material evidence before the decision- maker. The
exclusion of that evidence meant that the Applicant was not heard on the
very issue that determined whether the CCMA could entertain her dismissal
dispute.
[72] It would be inconsistent with that conclusion for this Court to determine the
jurisdictional fact finally on a record in which the material issues were not
fully ventilated. Although the documentary material raises substantial
questions about the correctness of the commissioner’s conclusion, the
excluded evidence is said to bear directly on the very issue that this Court
would be required to decide. The outcome cannot therefore be treated as
inevitable in the absence of a complete ventilation and proper tes ting of the
evidence relevant to the true nature of the relationship.
[73] In these circumstances, the appropriate remedy is to review and set aside
the commissioner’s ruling and to remit the jurisdictional issue to the CCMA to
be heard de novo before a commissioner other than the second respondent.

be heard de novo before a commissioner other than the second respondent.
The parties must be afforded a fair opportunity to lead oral and documentary
evidence relevant to whether the Applicant was an employee of STANLIB as
contemplated in section 213 of the LRA.

23

Conclusion
[74] The commissioner was required to determine a jurisdictional fact of
consequence, whether the Applicant was an employee of STANLIB for
purposes of section 213 of the LRA. That enquiry could not properly be
resolved by treating the service request agreement, payroll routing, or
contractual labels as decisive. The law required the commissioner to
examine the real relationship as it operated in practice.
[75] The documentary material before the commissioner raised substantial
questions about the correctness of the conclusion reached. It included
material bearing on the Applicant’s alleged integration into STANLIB’s
operational structure, the nature of her duties, the reporting arrangements,
the manner in which the work was performed, remuneration, and the
practical operation of the triangular arrangement. Those matters were
relevant to the jurisdictional enquiry and required proper evaluation.
[76] The commissioner failed to appreciate that the broad discretion conferred by
section 138 of the LRA could not displace the fundamental requirement of a
fair evidentiary enquiry. Although section 138 permits commissioners to
conduct proceedings with minimal legal formality, that flexibility is
constrained where a jurisdictional fact is squarely disputed , and material oral
evidence has been tendered. Because such a finding determines whether
the CCMA may exercise power over the dispute at all, the commissioner was
required to ensure that the parties had a fair opportunity to present and test
evidence bearing on the existence of the employment relationship.
[77] The commissioner’s failure was therefore twofold. First, he curtailed the
evidentiary enquiry by refusing to hear potentially material oral evidence on
the very issue that determined jurisdiction. Secondly, he gave decisive
weight to the formal commercial structure without adequately confronting the
substance of the relationship. Both errors affected the fairness and reliability
of the ruling.

of the ruling.
[78] This Court is not concerned, at this stage, with whether the Applicant’s
dismissal was substantively or procedurally fair. That issue remains for

24

arbitration if jurisdiction is established. Nor is it appropriate for this Court to
determine finally whether the Applicant was an employee of STANLIB where
the material issues bearing on that question were not fully ventilated, and the
relevant evidence was not properly tested. The excluded evidence is said to
bear directly on the very question this Court would otherwise be required to
decide.
[79] Accordingly, remittal is the appropriate remedy. The jurisdictional ruling must
be reviewed and set aside, and the jurisdictional issue must be determined
afresh by the CCMA after the parties have been afforded a fair opportunity to
lead oral and documentary evidence on the true nature of the relationship.
[80] In the result, the following order is made:

Order
1. The jurisdictional ruling issued by the second respondent on
13 November 2023, under CCMA case number GAJB 16588- 23, is
reviewed and set aside.
2. The jurisdictional issue is remitted to the first respondent, the
Commission for Conciliation, Mediation and Arbitration, to be heard de
novo.
3. The de novo jurisdictional hearing must be conducted by a
commissioner other than the second respondent.
4. At that hearing, the parties must be afforded a fair opportunity to lead
oral and documentary evidence relevant to whether the Applicant was
an employee as contemplated in section 213 of the Labour Relations
Act 66 of 1995.
5. There is no order as to costs.

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____________________
M.J. Lekwape
Acting Judge of the Labour Court of South Africa

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APPEARANCES:
For the Applicant: H. Horn, i nstructed by Makayla Pillay Attorneys ,
Sandton.
For the Respondent: M. Moolla, i nstructed by Salijee Govender Van der
Merwe, Parktown.