The Labour Court in Gqeberha has dismissed an application by an Eastern Cape farming company seeking to overturn a Commission for Conciliation, Mediation and Arbitration (CCMA) ruling that reinstated a long-serving farm worker who was dismissed for allowing unauthorised people onto the farm.
Judge Molatelo Makhura’s ruling found that the individuals concerned were legally entitled to be there under South Africa’s Extension of Security of Tenure Act (ESTA).
In his ruling, Makhura said that Madalas Rest (Pty) Ltd failed to establish any basis for reviewing an arbitration award that found the dismissal of employee Mzukisi Petrus Mkhavu to be substantively unfair. The court also upheld a finding that the company had committed an unfair labour practice.
Mkhavu had worked on Rhodene Farm in Kirkwood since 1984 and resided there as a lawful occupier under ESTA. He was accused of allowing three individuals—his son Andile Tambo, his nephew Devan Mkavu and Shaunton Gouws—to enter the property without authorisation and of failing to inform the farm owner about their presence.
The company initially suspended Mkhavu’s dismissal following disciplinary proceedings in November 2022 but later instituted a second disciplinary process based on similar allegations involving incidents between December 2022 and February 2023.
He was ultimately dismissed in April 2023 after being found guilty of failing to control access to the property and permitting allegedly unauthorised persons to enter.
Mkhavu challenged both the disciplinary sanction and his dismissal at the CCMA. The commissioner concluded that the dismissal was substantively unfair, ordered his retrospective reinstatement with eight months’ back pay and awarded him compensation equal to eight months’ remuneration for the unfair labour practice.
In seeking to have the award reviewed, the company argued that the commissioner had adopted an overly technical approach by refusing to consider incidents that were not specifically listed in the disciplinary charges. It further contended that the real issue was not whether the individuals had a right to be on the farm, but whether they had entered it in an impermissible manner by driving through the vehicle gate instead of using the pedestrian entrance.
Judge Makhura rejected those arguments.
The court noted that the disciplinary charges specifically alleged that Mkhavu had permitted “unauthorised persons” onto the farm. However, the evidence established that both Andile and Devan were recognised occupiers of the farm whose names appeared on the official list of occupiers provided to the new owner when it took over the farming operation.
The judgment pointed out that the farm owner himself acknowledged during arbitration that the two men were authorised to be on the property and that pedestrians were generally free to enter the farm. His objection centred on the fact that they drove through the vehicle gate using Mkhavu’s vehicle and keys while Mkhavu was not physically present.
Judge Makhura described the distinction between pedestrian and vehicle access as “illogical and unsustainable”, holding that individuals who lawfully reside on a farm cannot suddenly become unauthorised merely because they enter in a vehicle rather than on foot.
The court further found that Shaunton Gouws’ visit to his grandmother on the farm was also lawful. Mkhavu’s evidence that he had informed the farm owner of the planned visit was never challenged, and ESTA expressly gives occupiers the right to receive bona fide visitors at reasonable times unless reasonable conditions have been imposed by the landowner. No evidence showed that such conditions existed or had been communicated to residents.
Judge Makhura emphasised that the case raised an important question about the rights enjoyed by occupiers of agricultural land under ESTA, namely whether people who lawfully reside on a farm, or those visiting them in accordance with the law, can be regarded as unauthorised simply because they accessed the property in a manner the owner disliked.
The court concluded that the commissioner had correctly relied on ESTA only to determine whether the individuals had a legal right to be on the property and had not exceeded the CCMA’s jurisdiction.
The company also criticised the eight months’ compensation awarded for the unfair labour practice, arguing that it was excessive and punitive. The Labour Court declined to consider the argument because it had not been properly raised in the review papers, depriving Mkhavu of an opportunity to respond.
Finding that the arbitration award met the legal standard of reasonableness, Judge Makhura dismissed the review application and made no order as to costs.
