THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JS106/24
In the matter between:
MULEYA MULALO ALBERT ALLEY Plaintiff
and
AFRICAN RAINBOW MINERALS LIMITED Defendant
Heard: 1 June 2026
Delivered: 20 August 2026
JUDGMENT
PHEHANE, J
Introduction
[1] The plaintiff (Mr. Muleya) launched this referral in terms of section 191(5)(b)(ii)
of the Labour Relations Act1 (LRA) claiming that his dismissal from the employ
of the defendant for operational requirements was both procedurally and
substantively unfair. He seeks reinstatement, alternatively, compensation.
1 Act 66 of 1995 (as amended).
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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[2] The defendant opposes this referral.
Relevant legal framework
[3] Section 189 of the LRA provides for the procedure that an employer must
follow when it contemplates dismissing one or more employees due to
operational requirements. The employer must consult the affected employee/s
on the issues set out in section 189(2) of the LRA.
Relevant facts
[4] Mr. Muleya was employed in the role of a reaction security officer from 1
November 2012 until his dismissal for operational requirements on 31 October
2023.
[5] In April 2021, Mr. Muleya was injured on duty. He sustained an injury to his
right thumb. He was subsequently placed on light duty on a temporary basis,
which entailed patrolling the defendant's premises.
[6] In June 2023, Mr. Muleya referred an unfair labour practice dispute to the
Commission for Conciliation Mediation , and Arbitration (CCMA) , in which he
alleged that the defendant refused to permanently place him on light duties.
The outcome of the dispute was a settlement agreement that was concluded
between the parties on 31 July 2023, t he salient terms of which read as
follows:
‘Both parties agrees [sic] that they will go back to the Company and discuss
the issues. The employer also agreed that they [sic] will place the applicant
on light duty until they find something suitable for him. If the company fail [sic]
to find something suitable for him they will then follow the process of
operational requirements.’2
[7] The two witnesses before this Court, Ms . Ronelle van Schalkwyk, the human
resources manager for the defendant and Mr . Muleya confirmed that the
settlement agreement was concluded between the parties and both of them
had signed the agreement.
2 A82, at para 7 of the settlement agreement.
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[8] It is common cause th at Mr . Muleya remained on light duty while the
defendant investigated the availability of a suitable alternative position for him.
[9] It is also common cause that on 29 September 2023, the defendant informed
Mr. Muleya that no suitable alternative position was available and therefore,
he would be retrenched on 31 October 2023. Mr . Muleya was offered and
received a severance package of R96 163.50; notice pay of R37 888.42, and
leave pay of R20 286,16, the total amount being R163 338.08.3
[10] Mr. Muleya subsequently referred an unfair dismissal dispute to the CCMA
alleging that his dismissal for operational requirements was procedurally and
substantively unfair. The CCMA issued a certificate recording that the dispute
remained unresolved. The dispute was referred to arbitration and the
commissioner ruled, for reasons unexplained, that the CCMA lacks jurisdiction
and directed Mr. Muleya to refer his dispute to this Court for adjudication. The
dispute was referred to this Court timeously.
Issues for determination and evaluation
[11] The statement of claim is not a model for clarity in respect of Mr. Muleya’s
claim. Mr. Muleya does no more than allege that his retrenchment is
substantively unfair because the defendant should have placed him in an
alternative role after he was injured on duty. In respect of procedural
unfairness, Mr . Muleya does no more than allege that his dismissal was
procedurally unfair.
[12] During the course of the trial, Mr . Mahome for t he plaintiff contended that Mr.
Muleya’s retrenchment was procedurally unfair because the settlement
agreement required the defendant, in the event of it being unable to place Mr .
Muleya in an alternative position, to issue a notice in terms of section 189(3)
of the LRA and thereafter, to consult with Mr. Muleya before retrenching him.
Such a case was, however, not pleaded by Mr . Muleya and is therefore not
properly before this Court.
properly before this Court.
4 It is trite that parties are bound by their pleadings.
3 A84 to 85.
4 Kgomotso v South African Police Service and Others [2026] 5 BLLR 438 (LAC) at para 49.
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[13] The pre-trial minute equally, is not a model for clarity. What emerges from the
pre-trial minute is that it is common cause that Mr . Muleya was dismissed for
operational requirements. Notably, the parties failed to comply with the former
Practice Manual of this Court ,5 which was operative at the time, and which
made provision for additional issues that the parties were required to set out
in their pre- trial minute pertaining to substantive and procedural issues
relating to their dispute. Had they done so, the issues before this Court would
have been better crystallized. I raised this with both parties and required
them to make submissions relating to standing the matter down to allow them
to draft a supplementary pre -trial minute in compliance with the provisions of
Rule 23(2) which mirror the aforesaid provisions of the repealed Practice
Manual. Mr. van As for the defendant, submitted that it would serve no
purpose drafting a supplementary pre-trial minute, as, following the conclusion
of the settlement agreement, the only issue that the parties agreed on in
resolving the retrenchment process was finding a sui table alternative role,
failing which, Mr. Muleya would be retrenched. Mr. Mahome did not disagree.
On that basis, the trial proceeded without a supplementary pre- trial minute.
Following the parties’ submissions, t he genesis of the dispute before this
Court is clause 7 of the settlement agreement.
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5 Practice Manual of the Labour Court of South Africa, repealed on 17 July 2024. Item 10.4.2.1 read:
‘Where the issue in dispute is that of an alleged unfair dismissal for operational requirements, the
following questions must be answered:
(a) The applicant(s) must indicate whether [they admit] that in general there was a need to
retrench;
(b) If the applicant(s) [do not] admit that there was a general need to retrench, the applicant(s)
must state the factual basis for the failure to admit this. The respondent must give a response thereto;
(c) If the applicant(s) contained there were alternatives to [their] retrenchment,[they] must state
what these alternatives were and the respondent must give a response thereto;
(d) If the fairness or otherwise of the selection criteria is in dispute, the applicant(s) must state the
basis for c ontending that such selection criteria was unfai r. The respondent must give a response
thereto;
(e) …
(f) The applicant(s) must s et out in sufficient particularity in what respect [they allege] that the
termination of [their] services was procedurally unfair and the Respondent must set out its response
thereto;
(g) Where meetings took place between the parties [they] must each s et out when these
meetings took place, w hether these meetings constituted consultations in the retrenchment process
and whether minutes exist for these meetings. If minutes exist, the parties must record the status of
such minutes. If the applicant (s)’ case is that the meetings as identified did not constitute
consultation(s ), [they] must indicate the basis of such allegation and the respondent must respond
thereto.’
6 Fn 2 supra.
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[14] It is not disputed that following the conclusion of the settlement agreement,
Mr. Muleya was consulted on the investigations by the defendant to find a
suitable alternative position for him . These consultations took place on 18
August 2023, 7 September 2023 and 20 September 2023 , were reduced to
writing and received by Mr. Muleya.7 It is common cause that after no suitable
role was found, Mr. Muleya was consulted about this, and the defendant
offered him a severance package, which he accepted. He was also informed
that the defendant was amenable to releasing him immediately and he would
be paid one month’s note payment for the month of October 2023. This
discussion was reduced to writing in a letter dated 29 September 2023. 8 The
letter records inter alia, that should Mr . Muleya not agree to the terms, then
the defendant would be amenable to holding further consultations during the
month of October 2023. It is common cause that this letter was presented to
Mr. Muleya to consider and he returned with the signed letter on 2 October
2023 agreeing with the terms, which signed letter , he presented to the
defendant. He thereafter received his severance package, leave, and notice
pay as mentioned above and immediately left the employ of the defendant on
the agreed terms.
[15] Mr. van As submitted that in view of Mr . Muleya’s acceptance of the
severance package, his case of unfair dismissal falls flat and ought to be
dismissed.
[16] In this regard, the defendant relies on the recent Labour Appeal Court (LAC)
decision of WBHO Construction v Masenya NO. and Others
9 where the Court
considered a mutual separation agreement that was concluded freely and
voluntarily between the parties following informal discussions on a proposed
dismissal for operational requirements. The LAC found that the agreement
was valid and held that nothing prevented the parties from concluding
separation agreements during retrenchment processes, and therefore, the
separation agreements during retrenchment processes, and therefore, the
Court found that no dismissal had occurred.
7 See: Pleadings, statement of claim at para 18 on p 7. The letter s dated 18 August 2023 , 7
September 2023 and 20 September 2023 appear at B1 to 3; B4 and B5 respectively.
8 fn 3 supra.
9 [2026] 5 BLLR 486 (LAC).
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[17] In the present case, both witnesses confirmed that following the conclusion of
the settlement agreement, Mr . Muleya remained on light duty while the
defendant investigated the availability of a suitable alternative role for him. He
was consulted on the investigations and was handed letters on the date of
each consultation. When the investigations had been exhausted, he was
consulted and was offered a severance package, which he accepted. On Mr .
Muleya’s own version during his oral evidence, he consulted legal wise over
the weekend following the consultation meeting on 29 September 2023 with
the letter on hand. He received advice to sign the letter and accept the
severance package. During cross-examination, Mr. Muleya stated that he had
discussions about a position at the Sundowns Football Club (Sundowns) as
he intended to go and work at Sundowns. However, that opportunity fell
through as he did not hear from Sundowns. He also confirmed that he
understood that his role at the defendant was redundant ; further, that he did
not ask the defendant for further consultations following the meeting of 29
September 2023 and he had not proposed any alternative roles to the
defendant at that meeting.
[18] Mr. Muleya received the severance package and further notice payments as
recorded in the letter of 29 September 2023 with the subject: “REDUNDANCY
PAYMENT”. In terms of this letter, Mr. Muleya accepted the payment and
waived further consultations. There is no evidence before this Court that the
amount he received was repaid to the defendant.
[19] In view of the afore- going, I find that the defendant proved that the dismissal
of Mr. Muleya was both procedurally and substantively fair.
19.1 The settlement agreement truncated the issues for consultation
concerning the possible retrenchment of Mr. Muleya.10 These truncated
issues were the availability of suitable alternative positions , the
proposed severance pay, and the timing of the retrenchment.
proposed severance pay, and the timing of the retrenchment.
19.2 The defendant advised Mr . Muleya during the consultations held, that
there were no suitable alternative positions available.
10 Fletcher v Elna Sewing Machine Centres (Pty) Ltd [2000] 3 BLLR 280 (LC) at paras 38-40.
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19.3 The defendant offered to hold further consultations about the
availability of suitable available positions.
19.4 Mr. Muleya did not take up this invitation to consult and instead
accepted the severance package proposed by the defendant as well as
the month’s pay in lieu of notice.
19.5 There were therefore fair and adequate consultations about the agreed
truncated issues.
19.6 There were no suitable alternative positions.
19.7 There was no need to consult further after Mr. Muleya accepted the
severance package and one month’s payment in lieu of notice.
Costs
[20] In this Court, the general rule is that costs do not follow the result. 11 I
accordingly make no order as to the payment of costs.
[21] In the premises, the following order is made:
Order:
1. The plaintiff’s referral is dismissed with no order as to costs.
___________________
M. T. M. Phehane
Judge of the Labour Court of South Africa
11 Union for Police Security and Corrections Organization v South African Custodial Management
(Pty) Ltd and others (2021) 42 ILJ 2371 (CC).
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Appearances:
For the plaintiff: Adv F Mahome
Instructed by: Khomola Attorneys
For the defendant: Adv van As
Instructed by: Cliffe Dekker Hofmeyr