IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

CASE NO: JR 893/20

In the matter between:

LESLEY LESIBA MORABA First applicant

JOSLATE MOSIMA MAHOSI Second applicant

MACDONALD MONOGE Third applicant

MUSA MABUNDA Fourth applicant

THANDY MICHEL NKWINIKA Fifth applicant

DONALD MAKGARE Sixth applicant

MORUFE GIVEN MAROTA Seventh applicant

THABO SINA MOLEFE Eighth applicant

SHAPHU ANGELA MADISHA Ninth applicant

JOHANNES SHIBURI Tenth applicant

SEISHANE CORNEY MOKWANA Eleventh applicant

PUSELETSO EMMARENCIA LEBYANA Twelfth applicant

NAKEDI KOBE Thirteenth applicant

MOKGADI HENLY HLAKO Fourteenth applicant

CEDRICK KHOZA Fifteenth applicant

WENDY MQOBOLI Sixteenth applicant

BUSISIWE KHOZA Seventeenth applicant

NICO SEEMA Eighteenth applicant

and

DUMISANI NGWENYA N.O First Respondent

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION Second Respondent

PIONEER FOODS GROCERIES Third Respondent

APPLICANTS’ HEADS OF ARGUMENT

Introduction

1. This case concerns eighteen former employees of the Third Respondent

(“Pioneer”) the Applicants, who have been barred by a Ruling issued by the
First Respondent, (“the Commissioner”) from relying upon section 198B(5) of
the Labour Relations Act no 66 of 1995 (“the LRA”) in order to demonstrate
that they were dismissed by their erstwhile employer as part of an unfair
dismissal dispute.
2. The Applicants’ employment with Pioneer purportedly came to an end upon
the expiry of their fixed term contracts of employment1.

1
See paragraphs 10 and 11 of the Founding Affidavit.
 3. Ordinarily this would not amount to the Applicants’ dismissal as under these
circumstances their employment would not have been brought to an end by
their employer2.
4. In order to demonstrate that they were dismissed by Pioneer, in terms of the
meaning of dismissal outlined in section 189(1)(a) of the Act, the Applicants
need to rely upon section 198B(5) of the LRA.
5. It is the Applicants’ case that since the term of their employment had been
rendered indefinite through the operation of the aforementioned statutory
provision, their employment relationship with Pioneer did not simply come to
an end through the effluxion of time but was terminated by their employer.
6. Briefly stated, the context is this:
6.1 The Applicants referred two disputes to the CCMA: (i) the first, during their
employment with Pioneer, invoked sections 198D read with 198B(5) of the
LRA for an order to the effect that the deeming provision in section
198B(5) was triggered such as to render their employment indefinite and
to secure equal treatment with relevant comparators (“the deeming
provision dispute”); and (ii) an unfair dismissal dispute (“the dismissal
dispute”), referred after their employment was brought to an end, in which
their case is that given that the deeming provision rendered their
employment indefinite, their employment was terminated by the
respondent and that their dismissal was unfair.
6.2 Given that the dismissal dispute entailed a determination of whether the
deeming provision took effect (as a necessary element or component
thereof), to avoid having the same legal question determined twice, the
Applicants withdrew the deeming provision dispute and pursued the
dismissal dispute. This was recorded in a Pre-Arbitration Conference
Minute (“the Pre-Arbitration Minute”).

2
According to section 189(1) (a) of the LRA , “dismissal means that an employer has terminated employment
with or without notice”.
 6.3 Pioneer then raised a point in limine to the effect that the Applicants could
not, in the dismissal dispute, adduce evidence as to whether they were
deemed to be indefinitely employed by Pioneer. This culminated in the
ruling issued by the First Respondent (“the Commissioner”), which forms
the subject matter of this review application.

It is Just and Equitable to Determine the Review Application Prior to the

Completion of the Arbitration Proceedings

7. This review application was instituted prior to the completion of the arbitration
proceedings before the Second Respondent (“the CCMA”).
8. Section 158(1B) of the LRA stipulates that this Honourable Court may not
review a ruling issued during the course of the arbitration of a dispute prior to
the final determination of the dispute in question unless it is of the opinion that
it would be just and equitable to do so3.
9. In its judgment in the case of State Information Technology Agency SOC Ltd v
Commission for Conciliation, Mediation & Arbitration & others4 this
Honourable Court effectively held that where an irregular ruling would
compromise the fairness of arbitration proceedings going forward, it would be
just and equitable to review and set aside such an irregular ruling5.
10. There is no proper basis for preventing the Applicants from presenting a
critical element of their case during the arbitration proceedings, and unless
the Ruling in question is set aside at this juncture, the Applicants will be
subjected to an unfair arbitration process6.

3
Section 158(1B) reads as follows “The Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining
council in terms of the provisions of this Act before the issue in dispute has been finally determined by the
Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is
just and equitable to review the decision or ruling made before the issue in dispute has been finally
determined.”
4
(2019) 40 ILJ 2859 (LC)
5
See paragraphs 17 and 18 of the State Information Technology Agency SOC Ltd v Commission for Conciliation,
Mediation & Arbitration & others judgement.
6
See paragraph 23 of the Founding Affidavit in this regard.
 11. It is submitted that in this instance it would be just and equitable for this
Honourable Court to exercise its supervisory authority over incomplete CCMA
proceedings in order to avoid a miscarriage of justice by overturning the
Ruling preventing the Applicants from leading evidence in the context of the
dismissal dispute.
12. Should this Honourable Court clarify the issue as to whether the Applicants
can invoke section 198 B(5) of the LRA at this stage in proceedings, prior to
either party having led any evidence in support of their respective cases
during the arbitration process, this could prevent a substantial waste of time
and costs during and after the arbitration of the unfair dismissal dispute.

The Ruling Under Review

13. In the Ruling under review, the Commissioner had reference to paragraphs 3,
4 and 16 of the pre-arbitration minute wherein the Applicants acknowledged
that they had withdrawn a dispute which they had referred to the CCMA
pertaining to section 198B of the LRA (i.e. the deeming provision dispute).7
14. The Commissioner referred to the principle that “where a party can be said to
have abandoned an issue or cause of action or where such a party can be
said to have agreed not to rely upon or raise such an issue”8 in a pre-
arbitration minute, that party is bound by the terms of that pre-arbitration
minute.
15. Proceeding from this premise, the Commissioner concluded that, since the
Applicants had abandoned a dispute pertaining to section 198B they were
“barred from leading evidence” regarding the operation of this provision during
the adjudication of the unfair dismissal matter.9

7
See paragraph 8 of the Ruling and paragraphs 20 and 31.3 of the Founding Affidavit in this matter.
8
See paragraph 13 of the Ruling which quotes paragraph 84 of the Labour Appeal Court’s judgment in
National Union of Metalworkers of SA & others v Driveline Technologies (Pty) Ltd & another (2000) 21 ILJ 142
(LAC) .
9
See paragraphs 13 and 14 of the Ruling.
The Issuing of the Ruling Amounts to a Gross Irregularity in the Conduct of the
Arbitration Proceedings and is Unreasonable

16. Section 145(1) read with 145(2)(a)(ii) of the LRA provides that where an
arbitration ruling is defective in that an arbitrator has committed a gross
irregularity in the conduct of the proceedings, the relevant ruling may be set
aside by this Honourable Court.
17. The long established standard of review with regards to the application of
section 145 of the LRA is reasonableness, specifically “ Is the decision
reached by the commissioner one that a reasonable decision-maker could not
reach.”10
18. In this matter, the Commissioner failed to distinguish between two ways in
which section 198B(5) of the LRA may be invoked by a party in a legal dispute
before the CCMA namely:
18.1 As the subject matter of the dispute whereby a right in terms of this
provision is asserted in itself (as was the position in the deeming provision
dispute); or
18.2 As an issue which is canvassed in furtherance of an unfair dismissal
claim (as was the position in the dismissal dispute).
19. This distinction between claims directly concerning the application of section
198 B (5) of the LRA and reliance upon this statutory provision as part of an
unfair dismissal case has been expressly drawn by this Honourable Court in
its judgment in the matter of Nama Khoi Local Municipality v SA Local
Government Bargaining Council & others11 (“Nama Khoi”).
20. The Commissioner’s failure to distinguish between these distinct forms of
reliance upon section 198B(5) of the LRA with respect to different legal
claims, led him to conflate the Applicants’ withdrawal of their dispute in terms
of section 198B(5) of the LRA (the deeming provision dispute) with the
abandonment of any invocation of this provision at all.

10
See paragraph 110 of the judgment in the matter of Sidumo and Another v Rustenburg Platinum Mines Ltd
and Others (2007) 28 ILJ (CC).
11
(2019) 40 ILJ 2092 (LC)
 21. This mistake amounts to both a material error of law and a misinterpretation of
the Pre-Arbitration Minute between the Applicants and Pioneer12.
22. The prohibition on presenting evidence regarding the applicability of the
statutory provision in question to the Applicants’ employment unjustifiably
deprives the Applicants of an opportunity to fully ventilate their case and
thereby has compromised their right to a fair hearing of the issues13.
23. The dismissal dispute cannot be properly ventilated, as it is necessarily
premised on the Applicants having been indefinitely employed by Pioneer
beyond the lapsing of their fixed-term contracts, and on the termination of
such employment (i.e. their dismissal) which they contend was unfair.
24. The net effect of this is that while the withdrawal of the deeming provision
dispute was aimed at having the legal issue relating to section 198B(5)
determined once in the dismissal dispute rather than in each dispute, the
ruling precludes it from being determined at all.
25. The Ruling that the Applicants cannot lead any evidence pertaining to section
198B(5) of the LRA is therefore unreasonable and amounts to a gross
irregularity in the conduct of the arbitration proceedings.14

Misinterpretation of the Pre-Arbitration Minute

26. To the extent that the Commissioner purported to hold the Applicants to the
terms of the Pre-Arbitration Minute in barring them from leading evidence
related to section 198 B of the LRA, he misconstrued the effect of the minute.

12
These contentions are propounded at paragraphs 30.1 through 30.6 and paragraphs 31.1 to 31.4 of the
Founding Affidavit.
13
At paragraphs 266 and 267 of its judgment in Sidumo and Another v Rustenburg Platinum Mines Ltd and
Others (2007) 28 ILJ (CC) the Constitutional Court affirmed that “The right to a fair hearing before a tribunal
lies at the heart of the rule of law..A tribunal like the CCMA is required to ensure that proceedings before it are
always fair.” and “The parties to a CCMA arbitration must be afforded a fair trial”.
14
As per paragraph 25 of Herholdt v Nedbank Ltd v Nedbank (2013) 34 2795 (SCA) which, in relevant part,
reads as follows “the position regarding the review of CCMA awards is this: A review of a CCMA award is
permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a
defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii),
the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result
will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was
before the arbitrator.”
 27. The Ruling refers to those paragraphs of the Pre-Arbitration Minute which
allude to the withdrawal of the deeming provision dispute by the Applicants15.
28. When these clauses are read “in the light of the document as a whole”16 it is
apparent that the withdrawal of the deeming provision dispute did not indicate
that the Applicants had renounced all reliance upon section 198 B(5) as a
component of their case in the unfair dismissal dispute17.
29. Paragraph 17 of the minute records the following as common cause facts:
29.1 Throughout their employment the Applicants “earned below the Basic
Conditions of Employment Act earnings threshold”; and
29.2 Prior to the loss of their jobs, the Applicants had been employed on
successive fixed term contracts for longer than three months.
30. A fact in dispute between the parties as per paragraph 19 of the minute is
identified as: “Whether the nature of the work for which the Applicants were
employed was of limited or definite duration or whether there was any other
justifiable reason for fixing the Applicants‟ contracts”.
31. The factors alluded to in paragraphs 17 and 19 are necessary preconditions
for the conversion of fixed term employment to employment which is of
indefinite duration in terms of section 198B(5) of the LRA.
32. A further fact in dispute as per paragraph 21 of the minute is whether “the
Applicants were dismissed in terms of section 186 (1) (a) of the LRA”.
33. The Pre-Arbitration Minute also reflects, at paragraphs 12 and 13 thereof, that
all of the Applicants were employed on fixed term contracts which were set to
expire either on 15 February 2019 or on 28 February 2019, the dates on
which the Applicants lost their jobs as per the Founding Affidavit18.

15
See paragraph 8 of the Ruling.

16
As required by the approach to the interpretation of documents expounded by the Supreme Court of Appeal
at paragraph 18 of its judgment in Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA
262 (SCA).

17
See paragraphs 31.3 and 31.4 of the founding affidavit in this regard.
18
See paragraphs 10 and 11 of the Founding Affidavit.
 34. In order to prove that they were dismissed by Pioneer as contemplated by
section 186(1)(a) the Applicants would have to establish that their employer
had terminated their employment which in turn would require that they
demonstrate that their employment had been rendered indefinite by operation
of law prior to their work coming to an end.
35. All of the prerequisites for the operation of section 198B(5), which would have
rendered the Applicants indefinite employees of Pioneer and would mean that
they were dismissed in terms of section 186(1)(a) of the LRA, were expressly
canvassed in the Pre-Arbitration Minute.
36. The interpretation of the Pre-Arbitration Minute in the Ruling, as conveying
that the Applicants had abandoned their right to raise or rely upon section
198B(5) in support of their unfair dismissal claim, is therefore an
unreasonable interpretation of the document.
37. The Labour Appeal Court has addressed the issue of the misinterpretation of
legal instruments during arbitration proceedings in its judgment in the case of
MacDonald's Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union (AMCU) and Others 19 in the following manner:
“there is much to be said for the proposition that an arbitrator in the CCMA or
in a Bargaining Council Forum who wrongly interprets an instrument commits
a reviewable irregularity as envisaged by Section 145 of the LRA; ie, a
reasonable arbitrator does not get a legal point wrong. If so, the
reasonableness test is appropriate to both value judgments and legal
interpretations. If not, „correctness‟ as a distinct test is necessary to address
such matters. However, on either basis, the ruling in this case must be set
aside.“20

19
(2016) 37 (ILJ) 2593 (LAC)
20
See paragraph 30 of the judgment Macdonald’s Transport Upington (Pty) Ltd v Association of the
Mineworkers and Construction Union (AMCU) and Others (2016) 37 (ILJ) 2593 (LAC).
 38. It is trite that this and indeed every Pre-Arbitration Minute is a legal
instrument.
39. The determination that the Applicants should be precluded from leading
evidence regarding section 198B is predicated upon a misinterpretation of the
Pre-Arbitration Minute and therefore stands to be reviewed and set aside.

Material Error of Law

40. In Nama Khoi, the court accepted that the assertion of a right in terms of
section 198B(5) of the LRA may be vindicated whilst an employment
relationship is ongoing, in that employees may obtain declaratory relief to the
effect that their employment has been rendered indefinite “as a result of the
application” of the relevant provision of the LRA.21
41. According to the court “a dispute concerning the operation of section 198B
(5)”22 of the LRA is fundamentally different from an unfair dismissal claim in
that:
41.1 This type of dispute would not concern a dismissal which has already
occurred and therefore would not require that the employee party proves
that they have been dismissed23;
41.2 It would not be competent for a tribunal to award either compensation
or reinstatement as relief in respect of a claim in terms of section 198 B
(5)24;
41.3 The entitlement to declaratory relief that an employment relationship
has been deemed to be of indefinite duration can only be efficaciously
awarded “during the currency” of said relationship25.

21
See paragraphs 34 and 35 of the judgment.
22
See paragraph 34 of the judgment.
23
See paragraphs 40 and 41 of the judgment.
24
See paragraph 35 of the judgment.
25
See paragraphs 35 and 43 of the judgment.
 42. While the court adopted the position that a dispute concerning the operation
of section 198B(5) of the LRA may be rendered moot “if the employment
relationship has ended by the time it falls to be decided”, 26 it nevertheless
recognised that section 198B(5) could find application where employees have
been dismissed as “an element of an unfair dismissal dispute, when deciding
whether a dismissal exists”27.
43. In its judgment the court affirmed that section 198B(5) of the LRA could be
invoked in support of an unfair dismissal claim to demonstrate that a period of
employment did not simply come to an end due to the expiration of a fixed
term contract but that the term of employment was terminated by the
employer28.
44. A dispute concerning the operation of section 198B(5) of the LRA and the
invocation of section 198B(5) as an aspect of an unfair dismissal dispute are
not equivalent and therefore the withdrawal of a section 198B dispute is not
synonymous with the abandonment of any reliance upon this statutory
provision in order to demonstrate that a dismissal has occurred.
45. The Commissioner erred in treating these two different forms of invocation of
section 198B(5) of the LRA as being identical to each other and in conflating
them.
46. As previously mentioned, while still employed by Pioneer, the Applicants had
referred the deeming provision dispute to the CCMA.
47. Shortly thereafter they were informed that Pioneer no longer required their
services.
48. The declaratory relief which could be awarded in the deeming provision
dispute had lost any practical significance as the Applicants were no longer
employed by Pioneer.

26
Paragraph 35 of the judgment.
27
See paragraph 38 of the judgment.
28
See paragraph 29 of the Nama Khoi judgment.In the case of National Union of Public Service and Allied
Workers (NUPSAW) v Mfingwana and Others (2020) 41 ILJ 2190 (LC) at paragraph 17 of the judgment, the
Labour Court found that since Mr Mfingwana had been deemed to have been a “permanent” employee of
NUPSAW in terms of section 198 B (5) his “temporary” employment contract did not come to an end rather he
was dismissed by the trade union.
 49. Following the termination of their employment, the Applicants referred the
dismissal dispute to the CCMA and subsequently withdrew the deeming
provision dispute.
50. The Ruling precludes them from effectively pursuing the dismissal dispute
(which, in itself, turns on whether their employment was rendered indefinite
through section 198A(5)).
51. This deviation from the approach adopted by the court in Nama Khoi amounts
to the commission of a material error of law on the part of the Commissioner.
52. But for this error of law, the Commissioner would have allowed the
presentation of evidence concerning whether the Applicants were indefinitely
employed when they lost their jobs.
53. As per the Labour Appeal Court’s judgment in the case of NUMSA v Assign
Services & others29 a material error of law will result in “both an incorrect and
an unreasonable” ruling which should be set aside30.
54. The Ruling is therefore reviewable and stands to be set aside since it is
predicated upon the misinterpretation of a legal instrument and upon a
material error of law.

Conclusion

55. In order to ensure that the Applicants are not subjected to an unfair arbitration
process, and in order to allow for the Applicants’ case to be heard and
ventilated in accordance with the audi alteram partem principle, it is just and
equitable for this Honourable Court to review the Ruling in question prior to
the final determination of the dismissal dispute.
56. Since good grounds for preventing the Applicants from presenting a core
aspect of their unfair dismissal case do not exist, the Ruling which prevents
them from doing so infringes upon their entitlement to a fair hearing, amounts
to a gross irregularity in the conduct of the arbitration proceedings and is a
determination which a reasonable commissioner could not arrive at and
therefore stands to be reviewed and set aside.

29
(2017) 38 ILJ 1978 (LAC)
30
See paragraph 32 of the judgment.
Casual Workers Advice Office (Law Centre)

Applicants’ Representatives

12 July 2021
 List of Authorities

1. Herholdt v Nedbank Ltd v Nedbank (2013) 34 2795 (SCA)

2. Nama Khoi Local Municipality v SA Local Government Bargaining Council &
others (2019) 40 ILJ 2092 (LC)
3. Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA
262 (SCA)
4. National Union of Metalworkers of SA & others v Driveline Technologies (Pty)
Ltd & another (2000) 21 ILJ 142 (LAC)
5. National Union of Public Service and Allied Workers Workers (NUPSAW) v
Mfingwana and Others (2020) 41 ILJ 2190 (LC)
6. NUMSA v Assign Services & others (2017) 38 ILJ 1978 (LAC)
7. MacDonald's Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union (AMCU) and Others (2016) 37 (ILJ) 2593 (LAC)
8. State Information Technology Agency SOC Ltd v Commission for Conciliation,
Mediation & Arbitration & others (2019) 40 ILJ 2859 (LC)
9. Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28
ILJ (CC)