NEHAWU obo Mudau and Others v Sambo [2026] ZALCJHB 31

Court: Labour Court of South Africa, Johannesburg

Judge: Viljoen AJ

Date of Delivery: 13 February 2026

Factual Matrix

The individual applicants, employed as Agricultural Advisors and Agricultural Training Officers by the Department of Agriculture, Land Reform and Rural Development, claimed entitlement to translation to the Occupational Specific Dispensation (OSD) for "Scientists" under GPSSBC Resolution 3 of 2009. They possessed science degrees and were registered with SACNASP. The Department refused translation, contending their posts were for extension services, not scientific research involving peer-reviewed publication. The arbitrator dismissed the claim. The applicants sought review.

Reasoning for the Finding

"[18] The factual evidence of what the Applicants actually do was not disputed in cross-examination...In terms of the rule in Browne v Dunn, that factual evidence must therefore be accepted." [para 18]

"[19] Having not disputed the description of the Applicants' functions, the Third Respondent's defence rested solely on Dr Mabelane's view that a 'scientist' for OSD purposes is someone who generates new knowledge published in peer-reviewed journals." [para 19]

"[23] The proper starting point is the definition of 'Scientist' as created by the OSD instruments themselves. Read together, Resolution 3 of 2009, Annexure B to Circular 5 of 2009, and the Natural Scientific Professions Act establish the operative definition for OSD purposes." [para 23]

"[24] Notably, none of these instruments requires the generation of peer reviewed publications or the creation of new scientific knowledge as a prerequisite for falling within the occupational category of 'Scientist'." [para 24]

"[27] It does not contain the words 'peer-reviewed publication', 'academic journals', or 'generation of new knowledge'. These requirements were introduced through the oral testimony of Dr Mabelane. By accepting this gloss, the Commissioner relied on a criterion not found in the governing instruments." [para 27]

"[30] This evidence was not challenged. The Commissioner's conclusion that the Applicants do not meet the definition of a scientist is therefore not one that a reasonable decision-maker could reach." [para 30]

"[38] The dispute turns on the interpretation of the OSD instruments, and the factual evidence is uncontested. In these circumstances, remittal would serve no purpose. This Court is in as good a position as the Commissioner to determine the matter, and substitution is appropriate." [para 38]

Finding/Order

1. Condonation was granted for late filing of the record, and the review application was reinstated.

2. The arbitration award was reviewed and set aside.

3. The award was substituted with an order:

o Declaring that applicants appointed on or before 1 October 2009 fall within the "Scientists" category under Resolution 3 of 2009.

o Declaring that applicants appointed after 1 October 2009 are not entitled to translation.

o Ordering the Third Respondent to translate eligible applicants to the OSD for Scientists with retrospective effect.

o Ordering payment of arrears with interest.

4. No order as to costs.

The Court held that the arbitrator committed a material error of law by importing a peer-reviewed publication requirement not found in the OSD instruments, and substituted its own order on the undisputed facts.