Zwide The Lawyer

08/08/2025

Did you get the notification informing you about a date to attend the con/arb at CCMA. We understand how stressful it could be to represent yourself while you only have basic knowledge of labour law. Con/arb means if a dispute is not resolved through conciliation, the parties have to proceed to arbitration on the same day. Although conciliation is quite general, arbitration is technical and may need legal knowledge. Understand your right to legal representation in the con/arb.

As a natural person, rule 25(1) of the CCMA Rules generally requires you to represent yourself in conciliation.

As a natural person, legal representation in arbitration is regulated in terms of Rule 25(1)(b), which states:
subject to sub-rule 1(c), in any arbitration proceedings a party to the dispute may appear in person or be represented only by
(i) a legal practitioner;
(ii) a candidate attorney; or
(iii) an individual entitled to represent the party at conciliation proceedings in terms of sub-rule (1)(a).
(c) If the dispute being arbitrated is referred in terms of section 69(5), 73 or 73A of the BCEA or is about the fairness of a
dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, a party is
not entitled to be represented by a legal practitioner or a candidate attorney in the proceedings unless:
(i) the commissioner and all the other parties consent;
(ii) the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal
representation, after considering -
(a) the nature of the questions of law raised by the dispute;
(b) the complexity of the dispute;
(c) the public interest; and
(d) the comparative ability of the opposing parties or their representatives to deal with the dispute.

Only a legal practitioner and a candidate attorney are permitted to charge a fee for representation at the CCMA.

16/07/2025

Many people still struggle to understand the difference between a contract and agreement as well as their respective legal implications.

Agreement: An agreement is a mutual understanding between two or more parties about their rights and responsibilities. It can be oral or written, and it doesn't always have legal force.
Contract: A contract is a legally binding agreement that is enforceable by law. For a contract to be legally binding, it must meet the requirements established in law. We will discuss such requirements in the future. Keep checking our page to learn more about the South Africa law.
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Which One Is Binding?
• A contract is binding.
• An agreement becomes binding only when it meets the legal requirements of a contract.
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Importance of Written Contracts
Written contracts are important because they:
• Provide clarity: Terms and conditions are clearly stated.
• Prevent disputes: Reduces misunderstandings.
• Serve as evidence: Useful in court if a dispute arises.
• Ensure enforceability: Easier to prove the existence and terms of the contract.
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Types of Contracts
• Lobola agreement
• Sale agreement / contract of sale
• Lease agreement (both residential and commercial)
• The right to use contract
• Employment contract
• Acknowledgement of Debt
Domestic Work agreement
• Motor Sale agreement
• Business Partnership Agreement

We can assist you with writing and interpretation of contracts – just contact us on 0822860246 or email: [email protected]

27/06/2025

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Did you know that you may lose your right to legal claim or right to sue in terms of the Prescription Act 68 of 1969 if you delay taking the right action within the prescribed timeline. The Labour Relations Act applies for unfair dismissal and unfair labour practice.
The Employment Equity Act applies for matters in relation to discrimination in the workplace arena.

Know your rights before it is too late

23/06/2025

LABOUR LAW UPDATE

Trending judgment - taking unlawful instructions from your supervisor and not reporting it to management.

Labour Court upholds dismissal of Standard Bank employee fired over dishonest balance sheet

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Labour Court Upholds Dismissal of Standard Bank Employee Over Dishonest Balance Sheet

The Labour Court in Johannesburg has upheld the dismissal of Banele Innocent Mbuyane, a former treasury custodian at Standard Bank, for dishonesty involving a falsified balance sheet.

In October 2019, Mbuyane discovered a coin shortfall during a delivery from SBV and, with his supervisor N Nkosi, agreed to return the incorrect bag later. However, Nkosi instructed that the system should still reflect the full amount, despite the discrepancy.
A surprise inspection by the bank’s risk team revealed three short coin bags, leading to an internal disciplinary hearing and the dismissal of both Mbuyane and Nkosi.

Mbuyane challenged the dismissal at the CCMA, which found it fair. He then appealed to the Labour Court, arguing he was following his supervisor’s orders and lacked proper training. However, the court found that Mbuyane knowingly participated in the misrepresentation and failed to report it, which constituted serious misconduct.

Judge Robert Lagrange agreed with the CCMA’s ruling, stating that while another arbitrator might have considered a lesser penalty, the dismissal was reasonable given the circumstances.
Mbuyane’s appeal was ultimately dismissed.

Contact our Labour Department team for concrete legal advice.

Read another version of the article on the below link.
Ref: Sinenhlanhla Masilela (2025)

A former Standard Bank employee's appeal against dismissal for dishonesty, after submitting a false balance sheet, has been rejected by the Labour Court, highlighting the serious consequences of financial misconduct.

16/06/2025

Life in South Africa, always ask for a written contract and if something is not understandable, ask for a help from a lawyer. Always ask for the copy of your contract.

implied terms of contract are challenging to enforce.

14/06/2025

What are the primary remedies for unfair dismissal.

First, dismissal needs to be substantively unfair or procedurally unfair or both.

The Labour Relations Act requires the employer to prove that the dismissal was fair. However, it is important for the dismissed employer to demonstrate to the CCMA Commissioner or Commissioner at the Bargaining Council that the dismissal was unfair.

Should the Commissioner make a ruling that the dismissal was unfair, these are the primary remedies to grant:
(a) Reinstatement or
(b) Re-employment

What happens when the employee does not want to go back to the same employer or it is no longer possible to grant either of the above mentioned remedies? The Commissioner in this situation can grant payment of salaries not exceeding 12 months salary in favour of the unfairly dismissed employee.

For quick advise - contact or text 0822860246

13/06/2025

PERFECT DEMONSTRATION WHY DRAFTING CONTRACT IS ESSENTIAL

Drafted contracts are essential in business and commercial dealings for several reasons, particularly in South Africa where legal precedent and statutory requirements shape the enforceability of agreements.
Understand the below reasons why it is important to have drafted contracts:
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1. Legal Certainty and Enforceability
Having a written contract ensures that all parties are clear on their rights and obligations. This reduces ambiguity and provides a legal basis for enforcement. In court cases emphasised the importance of written agreements in establishing the terms of engagement and avoiding disputes over verbal promises. A well-drafted contract can be presented in court as evidence, making it easier to resolve conflicts and enforce terms.
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2. Risk Management and Dispute Resolution
Contracts help manage risks by outlining procedures for dispute resolution, breach consequences, and indemnities. In Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC) the Constitutional Court ruled in favour of the claimant based on the existence of a contractual terms, even though it was not formally documented. This case highlighted the importance of clarity in agreements and the potential risks of informal arrangements. Drafted contracts reduce the likelihood of litigation and provide mechanisms for resolving issues efficiently.
Here is the summary of the case:
The applicant, Mr Kenneth Nkosana Makate, was employed by the respondent, Vodacom (Pty) Limited (Vodacom), as a trainee accountant. In November 2000 he conceived the Please Call Me idea which he intended to sell to a willing buyer. After seeking advice from within Vodacom, he approached Mr Geissler, who at the time was Vodacom’s Director and Head of Product Development. They reached an oral agreement that Vodacom would experiment with the idea and, if it proved commercially viable, Mr Makate would be paid a share of proceeds from the product subject to terms to be negotiated between him and Mr Geissler. Vodacom implemented the idea in March 2001. After Mr Makate’s demands on Vodacom to honour the oral agreement were unsuccessful, he instituted a claim against Vodacom in July 2008 in the then South Gauteng High Court (High Court).
The High Court found that Mr Makate had proved that he had entered into an agreement with Mr Geissler. However, it dismissed the claim on the basis that Mr Makate did not plead the ostensible authority (the seeming or apparent authority) of Mr Geissler to contract on behalf of Vodacom, and further had failed to demonstrate that Mr Geissler had such authority. Additionally, it found that Mr Makate’s claim against Vodacom had prescribed. The Supreme Court of Appeal dismissed Mr Makate’s application for leave to appeal for lack of reasonable prospects of success.
In the majority judgment, written by Jafta J (Mogoeng CJ, Moseneke DCJ, Khampepe J, Matojane AJ, Nkabinde J and Zondo J concurring), this Court upheld the High Court’s finding that Mr Makate had entered into an agreement with Mr Geissler. The Court identified two main issues for determination: whether ostensible authority had been properly pleaded and established by Mr Makate; and whether his claim had prescribed. This majority judgment held that the High Court adopted an incorrect approach to the pleadings. By holding that ostensible authority had not been pleaded, the High Court had conflated ostensible authority with estoppel. On application of the elements of ostensible authority to the facts, the majority judgment found that ostensible authority had been established. Given Mr Geissler’s position at Vodacom; the organisational structure within which he exercised his power; and his role in the process which had to be followed before a new product could be introduced at Vodacom, the judgment held that Mr Geissler had ostensible authority to bind Vodacom.
Would you imagine if Mr Geissler denied entering into verbal agreement with Mr. Makate. It would be extremely difficult to prove the case for Mr. Makate. This case should be used as a lesson that written contracts are important in the commercial dealings.
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3. Regulatory Compliance and Business Integrity
Contracts also ensure compliance with statutory requirements, such as those under the Companies Act and the Consumer Protection Act. In Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd (CCT 105/10) [2011] ZACC 30, the Constitutional Court emphasized the role of good faith in contractual dealings and the importance of honouring renewal clauses. Contracts are important to safeguard against lack of business integrity and protect parties from arbitrary decisions, especially in salas of electronics and motor vehicles where latent defects are common.
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Types of Contracts in Business
Businesses can enter into various types of contracts, including:
• Sale of Goods Agreements
• Service Level Agreements (SLAs)
• Lease Agreements
• Employment Contracts
• Non-Disclosure Agreements (NDAs)
• Partnership or Joint Venture Agreements
• Loan and Credit Agreements

Hala us at 0822860246 for legal advice

12/06/2025

IS APPLICATION TO DECLARE A PERSON OR COMPANY INSOLVENT A DEBT RECOVERY MECHANISM?

Let us simplify answer it for you using a recent case law (judicial precedent)

The South African courts have for decades acknowledged that our law has recognised two forms of insolvency: factual insolvency (where a company’s liabilities exceed its assets) and commercial insolvency (a position in which a company is in such a state of illiquidity that it is unable to pay its debts, even though its assets may exceed its liabilities).

The question still persisted on the misuse of insolvency law as debt recovery mechanisms. The court in Direro v Van Bruggen and Another in 2023 [para 37] stated that an application for sequestration is not a procedure for the recovery of a debt, it is aimed at bringing a convergence of the claims in an insolvent estate to ensure that it is would up in an orderly fashion.

The court in Direro case referred to the ratio decidendi in the case of Investec Bank and another v Mutemeri and another (2010), where it held that: “its purpose and effect are merely to bring about a convergence of the claims in an insolvent estate to ensure that it is wound up in an orderly fashion and that creditors are treated equally. An applicant for sequestration must have a liquidated claim against the respondent, not because the application is one for the enforcement of the claim, but merely to ensure that applications for sequestration are only brought by creditors with a sufficient interest in the sequestration. Once the sequestration order is granted, the enforcement of the sequestrating creditor's claim is governed by the same rules that apply to the claims of all the other creditors in the estate. The order for the sequestration of the debtor's estate is thus not an order for the enforcement of the sequestrating creditor's claim.”

Send a simple text for chat about the proper ways for debt recovery
(+27) 82 286 0246

Reference
Legislation
Insolvency Act 24 of 1936.

Case law
Direro v Van Bruggen and Another (18882/2022) [2023] ZAGPPHC 1935 (10 November 2023).
Investec Bank and another v Mutemeri and another 2010 (1) SA 265 (GSJ) at 274-275

12/06/2025

WHY IS IT IMPORTANT TO UNDERSTAND THE DIFFERENCE BETWEEN UNFAIR LABOUR PRACTICE AND UNFAIR DISMISSAL IN SOUTH AFRICA?

Know your rights better.
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1. Unfair Labour Practice

Definition
An unfair labour practice is defined in section 186(2) of the Labour Relations Act 66 of 1995 (LRA) as: “any unfair act or omission that arises between an employer and an employee involving— (a) unfair conduct relating to the promotion, demotion, probation (excluding dismissals), training or benefits of an employee; (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; or (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act.”

Examples
• Denying a promotion unfairly.
• Withholding discretionary bonuses without proper justification.
• Unfair suspension or disciplinary action.
• Retaliation for whistleblowing (Protected Disclosures Act 26 of 2000).

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2. Unfair Dismissal

Definition
An unfair dismissal is defined in section 186(1) of the LRA as: “a dismissal that is not automatically unfair, but where the employer fails to prove that the dismissal was for a fair reason and followed a fair procedure.”

Dismissals are considered automatically unfair under section 187 if they are based on:
• Union membership or participation in union activities.
• Pregnancy or intended maternity leave.
• Discrimination (race, gender, religion, etc.).
• Refusal to do the work of a striking worker.
• Exercising rights under the LRA.

Types of Dismissal
• Misconduct
• Incapacity (poor performance or ill health)
• Operational requirements (retrenchments)
• Constructive dismissal (employee resigns due to intolerable conditions)
• Automatically unfair dismissal (e.g., for whistleblowing or discrimination)

For quick advice - drop a chat on +27 82 286 0246