ISMAIL v C E VAN GEUNS AND ASSOCIATES AND OTHERS [2026] ZALCCT 68

Date of Judgment & Seat of Court: 14 April 2026; Labour Court of South Africa, Cape Town

Name of Judge(s): Mteto AJ

Summary of Factual Matrix: 

The applicant contended she was employed by the first respondent (an attorney) for approximately 10 years, rendering typing, appointment scheduling, Sheriff instruction follow-up, and reception services. 

The commissioner was required to render an advisory award on whether the applicant was an employee as defined in sections 213 and 200A of the LRA. It was common cause that the respondent provided tools of trade, but disputed whether the respondent exercised control over how the applicant performed her duties. 

The applicant submitted she was economically dependent on the respondent and rendered services exclusively to him.

Summary of Findings:

"[10] An advisory award, as the name suggests, is merely an advice given to the parties to the advisory arbitration. The parties are at liberty to either accept the advice or to reject it. This therefore means that the advisory award is not binding on the parties."

"[11] It is in the name of the process, which suggests that the parties are seeking advice, which advice has no legal consequence and is the advice given by the sitting commissioner in the said proceedings."

"[16] In determining the effect of an arbitration award, section 143(1) of the Act states: 'An arbitration award issued by a commissioner is final and binding and it may be enforced as it were an order of the Labour Court, unless it is an advisory arbitration award.'"

"[19] If an arbitrator has not yet rendered a 'final' decision on the specific issue, a party cannot bring a review application, as the court generally avoids intervening in incomplete processes."

"[20] The advisory award is generally not reviewable in the Labour Court, as it does not constitute a 'final' determination of rights that can be set aside under section 145 of the Act.

"[21] Advisory awards cannot, self-evidently be made orders of court and by its very nature, an advisory award cannot render a particular dispute res judicata."

Basis for Opinion: The Court held that advisory awards, by their nature, are not binding determinations of rights and do not constitute "final" decisions capable of review under section 145 of the LRA. Section 143(1) expressly excludes advisory arbitration awards from the category of awards that are final, binding, and enforceable as orders of the Labour Court. Consequently, the review application was incompetent and fell to be dismissed.

Order:

"1. The review application is dismissed; and 

 2. No order as to costs."