Senyamishi A. Mojalefa, Rosalia J. Mphephethe, Dumisane L. Mbatsane, Chuene J. Thantsha, Patronilla Z. Ncovoti, and Thaloki J. Malema v Right To Care NPC [2026] ZALCJHB 108

Seat of Court: The Labour Court of South Africa, Johannesburg

Date Delivered: 1 April 2026

Factual Summary: 

The Plaintiffs, six permanent employees of the Defendant (a non-profit healthcare organisation), were retrenched following a section 189 process initiated on the basis of alleged operational requirements, specifically a reduction in donor funding from USAID for the APACE programme. On 22 July 2022, the Defendant issued a section 189(3) notice indicating that 101 employees might be retrenched. The Defendant proposed a "re-competition" process as the selection criterion, requiring affected employees to apply and compete for reduced positions. The Plaintiffs contended that the dismissals were substantively unfair because: (i) the Defendant failed to establish a fair and rational basis for retrenchment; (ii) it did not genuinely consult on alternatives to avoid retrenchment; (iii) it failed to properly consider or offer reasonable alternatives; and (iv) it applied unfair selection criteria. The Defendant maintained that the reduction in funding necessitated the retrenchments, that alternatives were considered, and that the re-competition criterion was fair given its performance-driven operational model.

Legal Questions Considered:

1. Whether the Defendant established a fair and rational basis for retrenchment:

"In assessing whether an employer has established a valid rationale for retrenchment, the Court should not accept, at face value, the reason stated by the employer." [para 44] "The defendant's case rests on an artificial distinction drawn between the employer as a single legal entity and the various programmes or funding streams under which it operates. By treating employees as though they were employed by discrete programmes, such as APACE, the defendant sought to justify retrenchments arising from reduced funding under one programme notwithstanding the existence of other programmes with staffing needs. This distinction is wrong in law." [para 47]

2. Whether the Defendant complied with its obligations to meaningfully consult on alternatives to dismissal:

"Section 189(2)(a)(i) of the LRA requires the employer and affected employees to engage in a meaningful, joint consensus seeking process and to attempt to reach agreement on measures to avoid dismissal." [para 54] "Requiring affected employees to apply for their own positions, or for other suitable positions within the organisation, does not amount to a genuine consideration of alternatives to dismissal. Rather, it constitutes the initiation of a fresh recruitment process at the expense of existing employees facing retrenchment." [para 58]

3. Whether the selection criteria applied were fair and objective:

"Where all reasonable measures to avoid dismissal have been exhausted, section 189(2)(b) of the LRA requires the parties to engage meaningfully and, where possible, reach agreement on the criteria to be applied in selecting employees for retrenchment. In the absence of agreement, the employer must apply selection criteria that are fair and objective." [para 60] "Requiring affected employees to apply for their own positions, or for positions for which they met the minimum requirements, does not constitute a selection criterion, nor does it amount to the offer of alternative employment, as envisaged by section 189." [para 63]

Order:

1. The dismissal of the plaintiffs is declared to have been substantively unfair.

2. The defendant is ordered to pay each of the plaintiffs compensation equivalent to six months' remuneration, calculated at the rate applicable at the time of their dismissal.

3. The compensation referred to above must be paid within 15 court days of receipt of this judgment.

4. There is no order as to costs