Mokoatsi v Vaal University of Technology & others [2026] ZALCJHB 366

Date of Judgment & Seat of Court: 28 September 2026, Labour Court, Johannesburg

Case No: JR2160/2022

Name of Judge(s): Prinsloo J

Summary of Factual Matrix:

Mr Mokoatsi worked for the Vaal University of Technology from May 2013 as an invigilator on a pay-by-claim contract. From April 2017 he worked full office hours, Monday to Friday, performing the duties of an administrative assistant and no invigilation, and he was paid overtime for Saturdays. In February 2021 he was given a three-month fixed-term contract as an administrative assistant, which expired on 30 April 2021; he was not shortlisted when the posts were advertised with a new M+3 requirement. The employer's witnesses did not dispute the nature of his duties and said that he had been allowed to work in the office on humanitarian grounds.

He referred a dispute under s 198B of the Labour Relations Act. On 17 August 2022 a CCMA commissioner found that he had not been dismissed, because his fixed-term contract had expired and, the initial invigilator engagement being seasonal, his employment was not deemed indefinite. Mr Mokoatsi sought to review that award on the ground that the commissioner had failed to apply his mind to the evidence.

Summary of Findings:

[22] ‘The purpose of the enactment of section 198B was to provide security of employment, except in circumstances where a fixed term contract is justified. The onus is on the employer to prove that there was a justifiable reason for fixing the term of the contract and that the term was agreed[3].’

[36] ‘In my view, the relevant period is April 2017 until April 2021. The arbitrator considered the question of whether the Applicant’s employment could have been deemed to be indefinite in terms of section 198B(3) with reference to the said period. The arbitrator found that, considering the provisions of section 198B(4) of the LRA, the FTCs issued to the Applicant were of a genuine fixed-term nature.’

[38] ‘It is accepted that it is justified to fix the term of an invigilator’s contract, because they work as and when required and the fixing of the term is justified due to the seasonal nature of the work.’

[39] ‘However, the undisputed evidence was that the Applicant did not perform any duties as an invigilator from April 2017 to April 2021, he worked normal office hours in the administrative office from Monday to Friday and was even paid overtime. The Applicant showed that since 2017 he did not retain any invigilation duties and worked full time in the office.’

[40] ‘In my view, there is merit in the Applicant’s grounds for review. The arbitrator throughout referred to the fact that the Applicant was ‘initially’ employed as an invigilator, that ‘invigilator’ was the core function for which the Applicant was ‘initially’ employed, and as invigilation is dependent on when examinations were written, ‘it is reasonable to assume that such work was seasonal.’ […]’

[41] ‘The issue before the arbitrator was not confined to interpreting a contract. It required a fact-sensitive inquiry into the true nature of the working relationship, which could not properly be confined to contractual labels or administrative form. It required an objective assessment of the relationship as a whole. It also required a careful assessment of the lived reality of the relationship, including the nature of the work and how it was actually performed. Considering only the terms of the last FTC and ignoring the reality of the work performed would allow drafting, rather than the real character of the working relationship, to defeat statutory protection.’

[42] ‘The arbitrator’s determination in the section 198B dispute cannot be surrendered to labels chosen by contracting parties. Labels may assist, but they cannot decide the matter. If so, statutory protection as envisaged in the LRA could be too easily avoided through careful drafting. The arbitrator must have examined the substance of the relationship, and not merely accepted the wording of a contract or that ‘humanitarian grounds’ would change the nature of the relationship or oust the operation of the deeming provisions of the LRA.’

[43] ‘The arbitrator failed to consider material evidence, he failed to consider or apply the relevant legal principles to determine whether section 198B(3) and (5) of the LRA applied and whether the Applicant was dismissed. The arbitrator treated the label of ‘invigilator’ as determinative of the dispute, and his conduct and findings constitute a reviewable irregularity. In fact, the arbitrator completely side-stepped the legal question he had to decide.’

[44] ‘I am of the view that it would be in the interest of justice to remit the matter for a hearing de novo.’

[45] ‘This Court has a wide discretion in respect of costs and in this is a matter where the interest of justice will be best served by making no order as to cost.’

Relief: The CCMA award of 17 August 2022 (GAVL901-22) was reviewed and set aside, and the dispute was remitted to the CCMA for a hearing de novo before a commissioner other than the third respondent. No order as to costs was made.

Judgment on SAFLII