Moiloa v Cross Border Roads Transport Agency (CBRTA) & others [2026] ZALAC 45

Date of Judgment & Seat of Court: 16 October 2026, Labour Appeal Court

Case No: A2026/014274

Name of Judge(s): Moshoana AJA (Mahalelo ADJP concurring; Gqamana AJA concurring in a separate judgment)

Summary of Factual Matrix:

The appellant was appointed by the Cross-Border Road Transport Agency in 2010 and again in 2011 on the strength of a BCom degree conferred by UNISA in 2004, which UNISA withdrew in 2013 on account of irregular invigilation. He was later charged with misrepresenting his qualifications, but the chairperson of the disciplinary enquiry acquitted him on that charge and dismissed him instead for failing to declare an interest in a company. A CCMA commissioner found the dismissal unfair and ordered his reinstatement.

The Agency then approached the Labour Court for a declarator and a legality review under section 158(1)(h) of the LRA setting aside the appellant's appointments and employment contracts as void ab initio, together with a review of the chairperson's findings and of the arbitration award under section 145. The Labour Court declared the appointments unlawful and invalid, set aside the contracts, and treated the review of the award as moot. On appeal with leave, the issues were whether the Labour Court had jurisdiction to entertain the legality review, whether that review had merit, the effect of the extant award, and the Labour Court's failure to determine the section 145 review.

Summary of Findings:

[2] ‘A Court cannot choose what issues to resolve and what issues not to resolve[5]. Unless a party abandons the relief, a Court is duty bound to adjudicate upon the relief sought[6]. The jurisdiction of the Labour Court is sourced from section 157 of the Labour Relations Act (LRA). Where the LRA does not permit the Labour Court to determine a matter, the Labour Court lacks the necessary jurisdiction.[7] The power in section 158(1)(a)(iv) of the LRA cannot be exercised in an instance where the Labour Court lacks jurisdiction.’

[3] ‘The Labour Court lacks jurisdictional power to declare a decision to be irregular and or unlawful[8].’

[12] ‘Mr Moiloa was not a public servant and his appointment was not regulated by the principles set out in section 195 of the Constitution. His appointment was regulated by section 14(2) of the Cross-Border Road Transport Act (the Act).’

[13] ‘Most importantly, the contract of employment, which the CBRTA considered to have been void ab initio was terminated by it and was only revivable once it complies with the reinstatement award made by the commissioner[11]. In terms of contract law, a victim of misrepresentation cannot be permitted to rescind the contract unless he can show that s/he was induced by the misrepresentation to enter into the contract.[12] A post-contractual misrepresentation does not justify rescission.[13]’

[14] ‘The clear legal position was that the appointments were effectively reversed by the CBRTA’s own actions of dismissing Mr Moiloa. It was thus inappropriate to seek a declaratory relief contemplated in section 158(1)(a)(iv) in an instance where the legal position was clear. The contract of employment which the respondent was seeking to set aside was terminated by it when it dismissed Mr Moiloa in November 2022.’

[15] ‘The only available remedy in law was the one permitted in section 145(1)(a) of the LRA. Since there was no longer a concrete dispute over existing rights, the CBRTA was effectively seeking a legal opinion from the Court on an abstract issue. Accordingly, in my fervently held view, prayers 1, 2 and 3 of the notice of motion ought to have been rejected off hand. With respect, the Labour Court wasted judicial time and resources by giving those prayers deep consideration. As it shall be demonstrated later in this judgment, since the CBRTA was not a State, a review in section 158(1)(h) of the LRA was not available to it.’

[16] ‘It is indeed so that the CBRTA sought the only available remedy to it before the Labour Court. With considerable regret, the Labour Court failed to entertain the review application. The effect of this failure is that the arbitration award as an administrative action remains valid and enforceable in law. Although the CBRTA weirdly attempted to review the ruling and findings of Mr Ngeno, such was a futile exercise since the essence and the legal effect of those findings were overturned by the commissioner. In law, those findings no longer existed. In terms of section 145(7) of the LRA, the institution of review proceedings does not suspend the operation of an arbitration award. […] Howbeit, on the strength of the provisions of section 145(7), since the review was launched and not determined, the operation of the arbitration award remains unsuspended.’

[17] ‘It is factually correct that the appointment happened in 2011 and its impugn was only in 2023. This is over ten years later. The delay is extremely excessive and the explanation was poor. Thus, the Labour Court erred in overlooking this delay. In exercising its discretion, the Labour Court applied wrong legal principles and misdirected itself. […] In the circumstances of this case, Mr Moiloa was dismissed already and a decision to appoint him had already vacated. Applying vigilance and propriety would have driven the Labour Court to a conclusion that the delay should not be condoned.’

[19] ‘As indicated elsewhere in this judgment, the appointments and the subsequent contract of employment could not be declared invalid. The Board of the CBRTA acted within its statutory powers. Absent declaration of invalidity as contemplated in section 172(1)(a) of the Constitution, a court cannot fashion a just and equitable remedy contemplated in section 172(1)(b). To this, counsel conceded that such was the correct legal position. Might I add, after performing statutory powers to appoint, the relationship between Moiloa and the CBRTA is thereafter governed by an employment contract and the provisions of the LRA and no longer the provisions of the Act.’

[20] ‘The order of the Labour Court is lucid and clear; it did not review and set aside the arbitration award. An appeal lies against an order and not the reasons for the order. As adumbrated below, this Court’s appeal powers have not been engaged.’

[22] ‘On the issue of the delay, the CBRTA departs from a wrong premise that the delay must be reckoned from the date of the installation of the new board and upon departure of the former CEO. There is no merit in this premise. The time period has to be reckoned from the time the alleged invalid decision is made.’

[26] ‘Secondly, the extant arbitration award was rendered moot by the Labour Court. In law, a case becomes moot if a party seeks to obtain judgment on a pretended controversy, when in reality there is none, or a decision in advance before it has actually been asserted and contested, or a judgment upon some matter which when rendered, for any reason cannot have any practical effect upon an existing controversy. Ironically, what became moot in my view was the quest to declare as invalid appointments and a contract of employment that vacated due to an act of dismissal.’

[27] ‘The arbitration award of the commissioner was extant, valid, and unsuspended. The respondent sought to have it reviewed and set aside. How then does an impugned arbitration award magically morph into something abstract? It still bewilders this Court as to how does a live review application, which in of itself presents a live dispute, become moot. With due respect to the Labour Court, rendering a live dispute moot is oxymoronic.’

[28] ‘It is truly a travesty of justice for the Labour Court not to have determined a review application that was timeously brought. […] To put it mildly, the Labour Court abdicated its constitutional obligations when it failed to entertain a section 145(1) review application that was before it. Such conduct cannot be countenanced by this Court.’

[29] ‘With considerable melancholy, the parties, particularly the CBRTA got the short end of the stick. This failure of justice is inconsistent with the primary purpose of the LRA, being the effective resolution of labour disputes. It is no answer to argue that because the Labour Court express an opinion that the appointments and the contracts of employment are void from the start, then by so expressing it granted the review application. The Labour Court neither granted nor refused it. The Labour Court simply avoided the determination of the review application.’

[30] ‘I have already pointed out that adjudicating the declarator and the legality review was, with respect a futile exercise. The appointments and the contract of employments’ lifespan were ended by the CBRTA in November 2022, when it dismissed Mr Moiloa. There was no more a decision capable of being judicially reviewed.’

[31] ‘In this appeal, I take a view that absent the appointments and the contracts of employment, a legality review was stillborn. Even if I am wrong on this point, for reasons to be outlined shortly, the Labour Court lacked the requisite jurisdictional power to entertain the so-called first review (legality review).’

[32] ‘In terms of the Act, the CBRTA is a juristic person. As defined in Keevy, a State is not a juristic person. As the Act provides in sections 1 and 4, the CBRTA is an agency. As pointed out, the jurisdiction of the Labour Court is sourced from section 157 and not from section 158 which deals with powers. Nowhere in the LRA, is the Labour Court empowered to set aside an appointment and a contract of employment.’

[33] ‘I wish to add in this judgment that the provisions of section 158(1)(h) must be read conjunctively with section 157(2)(b) of the LRA. Section 157(2)(b) speaks of constitutionality of any executive or administrative act or conduct by the State in its capacity as an employer. The emphasis being the ‘State’ in the capacity of an employer. Once it is demonstrated that the CBRTA is not a State, then it is not contemplated jurisdictionally and power wise. I must quickly dispel the myth that an ‘organ of state’ is a State. It is not.’

[36] ‘Section 158(1)(h) employed the word State as opposed to organ of state. It must be assumed that the legislature knew what an organ of state is as defined in the Constitution and deliberately chose not to employ it. Thus, on application of the maxim inclusio unius est exclusion alterius (the inclusion of one is the exclusion of the other), an organ of state is excluded.’

[37] ‘Constitutionally, State, which means government, is constituted by national, provincial, and local spheres of government and not its organs. Within the three spheres of government or State, there will be departments or administrations and those are separate beings and are called organs of state constitutionally.’

[38] ‘It may well be so that the CBRTA as an agency is an organ of State because in certain times, it exercises a public power or perform public function in terms of the Act, but certainly not a State. Certainly, in concluding a contract of employment, the Board of the CBRTA is not exercising public power nor perform a public function in terms of any legislation. It is only when it exercises or performs public function or power does the CBRTA become an organ of state, otherwise in any other function it remains a mere juristic person. […] Accordingly, in my view, the Labour Court lacked the power to entertain the legality review under section 158(1)(h) of the LRA. Even under section 157(2) of the LRA, the Labour Court still lacked jurisdiction to entertain the so-called first review application.’

[39] ‘Jurisdiction is a question of law. […] Where a Court entertains a matter without the necessary jurisdictional powers, its decision is a nullity in law. Therefore, the Labour Court ought to have not exercised power and jurisdiction over the legality review application. Having done so notwithstanding, its decision is a brutum fulmen (a nullity in law).[27]’

[41] ‘These findings do not directly answer the question: is an organ of state a State or not. To that end, the decision of Mampane is not an authority for the proposition that an organ of state is a State.’

[42] ‘For this possible implication, I take a view that section 158(1)(h) is not a jurisdiction conferring section. Only section 157 confers jurisdiction upon the Labour Court. Section 158(1)(h) simply confers reviewing powers to the Labour Court, if it has a State in its capacity as an employer before it.’

[45] ‘Even if I am wrong on the jurisdiction issue, the legality review lacked merits. It is only section 172 of the Constitution that empowers a court dealing with a constitutional matter within its power to declare that any law or conduct is invalid. A conduct is invalid if it is at odds with the rule of law, as in unlawful and inconsistent with the Constitution. Under the legality review pathway, a decision is reviewable if it is (a) unlawful and or (b) irrational/arbitrary. Section 14(2) of the Act empowers the Board of CBRTA to appoint staff of the agency. In appointing Mr Moiloa, the Board of the CBRTA did not act unlawfully nor did it act irrationally. Notably, section 14(2) of the Act does not prescribe as to how the appointment of other staff must be conducted by the Board. […] Put at its lowest ebb, the issue of misrepresentation of qualifications remains a far cry to satisfy an inch of the minimum threshold of rationality test.’

[46] ‘When Mr Moiloa was appointed, the withdrawal of the qualification had not happened. […] As confirmed in Keevy, the Labour Court is not empowered under section 172 of the Constitution nor section 158(1)(h) of the LRA to invalidate any appointment or concomitant contract of employment[32]. As indicated earlier, the principles encapsulated in section 195 of the Constitution finds no application since Mr Moiloa was not in public administration[33]. The national legislation contemplated in section 195(3) does not apply to the CBRTA and its staff.’

[47] ‘Therefore, the principles enshrined in that legislation do not find application. Even if for any reason the principles apply, when in 2011, Mr Moiloa stated as a fact that he possessed a BCom qualification, he did not misrepresent facts. That was a true state of affairs in 2011. The fact that in 2013 the degree was withdrawn does not morph the true state of affairs into untrue state of affairs retrospectively as argued by Mr Skosana. The withdrawal of the degree does not create a misrepresentation of a fact. It remained a true fact that in 2004 a BCom degree was conferred on Mr Moiloa. The fact that later on, for reasons that are unsound, at least to this Court, UNISA withdrew the degree cannot convert the true state of affairs that obtained. It would be a misrepresentation if Mr Moiloa would have after 2013 represented to anyone that he is a holder of a BCom degree. By then, whether for a bad or good reason, it was withdrawn. Mr Ngeno was pitch-perfectly correct in his findings that Moiloa is not guilty of the alleged misconduct of misrepresentation, which the CBTRA conveniently and for obvious reasons, might I add, pitched to the level of fraud.’

[48] ‘The existence of the arbitration award presented a bulwark against the applicant’s quest to obtain a declarator and a legality review. This Court says so for the following reasons. In the first instance, when the respondent effected a dismissal within the meaning of section 186(1) of the LRA, it on its own nullified the impugned appointments. The decision to appoint is incapable of remaining extant once an employee is dismissed. Equally, a contract of employment terminates when an employee is dismissed. It bears emphasising that a declarator and a review cannot be issued against a non-existent decision.’

[49] ‘The only time when an appointment and or contract of employment may be brought back from the ashes is when a reinstatement order contemplated in section 193(1) of the LRA is made. The reinstatement contemplated in section 193(1) has been ordered, but due to the conduct of the respondent in not complying with the award, the appointment and the contract of employment is incapable of being revived. […] A dismissed employee is without appointment and or work. A dismissed employee is without a valid employment contract. That being the case, what is there to declare invalid and or to set aside.’

[50] ‘As already indicated, the only available remedy for the CBRTA was to seek a review, as it did, but failed by the Labour Court, of the arbitration award. Without setting aside the arbitration award the reinstatement order will remain to be either implemented and or still be resisted. If implemented, the appointment which clearly goes in tandem with the contract of employment shall be revived. It is only then that there is a decision capable of being impugned by way of judicial review. Until then, no decision capable of being impugned exists.’

[51] ‘This remains an abstract question since the Labour Court had abdicated its duties. This abdication constitutes a failure of justice and or a failure of proper consideration of issues within the contemplation of the Vodacom (Pty) Ltd v Makate and Another (Makate)[34] decision, as recently approved by the Constitutional Court in the matter of Mokasule N.O. and Others v Botha N.O. and Another (Mokasule).[35] Even if this Court were to find that the arbitration award was not reviewable in law, such a finding shall be academic. There is no final decision of the Labour Court on it. A view expressed that the appointments were void ab initio do not constitute an appealable order, it is part of the reasons for the ultimate order. In terms of section 166(1) of the LRA, an appeal lies against a final order of the Labour Court. There is no final order made by the Labour Court against the arbitration award. Accordingly, this Court is unable to exercise its powers in terms of section 174 of the LRA.’

[52] ‘This Court could assume that the Labour Court has refused to grant a review as against the arbitration award. However, absent a clear and final order, this Court cannot determine whether the arbitration award is reviewable in terms of section 145 of the LRA. Given the order this Court makes, it is unwise for this Court to express any view on the merits of the review application.’

[53] ‘In summary, the powers in section 158(1)(h) of the LRA could not be invoked since the CBRTA is not a State within the contemplation of the section. As held in Keevy the CBRTA is a juristic person and cannot review its decisions under section 158(1)(h). Since the legal position was clear with regard to the appointment powers of the Board of the CBRTA, the declaratory powers set out in section 158(1)(a)(iv) of the LRA could not be exercised by the Labour Court. The appointments and the contract of employment could not be declared invalid within the contemplation of section 172(1)(a) of the Constitution. Thus, the issue of just and equitable remedy contemplated in subsection (1)(b) does not feature.’

[54] ‘The arbitration award issued by the commissioner has not been reviewed and set aside by the Labour Court. The appellate jurisdiction of this Court regarding the arbitration award has not been engaged within the contemplation of section 166 of the LRA. Accordingly, the order of the Labour Court relating to the legality review and declaratory relief cannot be permitted to stand and it is susceptible to being set aside by this Court.’

[56] ‘It is common cause that, at the time the respondent, CBRTA, instituted proceedings in the Labour Court, the employment relationship between it and the appellant had already terminated. In the circumstances, there were no extant decisions arising from that employment relationship that could properly be subjected to judicial review.’

[62] ‘It follows, therefore, that the source and nature of the CBRTA’s power to make appointments is statutory and public, notwithstanding that the employment relationship arising from the exercise of that power is contractual.’

[72] ‘Based on the above authorities, the interpretation of section 158(1)(h) by my colleague is incorrect. Therefore, section 158(1)(h) was an available legal mechanism to the CBRTA, in its capacity as an employer and an organ of state, to seek an order to review and set aside the impugned decisions. Accordingly, the word ‘State’ in the context and purpose of section 158(1)(h) includes the organs of state.’

Relief: The appeal was upheld and the Labour Court's order was set aside in its entirety and replaced with an order dismissing the legality and declaratory applications, with no order as to costs. The Agency's application to review the arbitration award was remitted to the Labour Court for determination by another judge. There was no order as to costs on appeal.

Judgment on SAFLII