South Africa: Expectations Of Permanent Employment

The use of fixed-term employment contracts has been the subject of contention for many years. Opponents to their use have argued that because these contracts terminate automatically after the period of time for which they have been entered into, they can be used to avoid liability for unfair dismissal. Added to this is the argument that it is not unknown for employees to have their fixed-term contracts renewed on several occasions, which leads to the situation where these employees are used in the same way as permanent employees, but often with lesser terms and conditions of employment.

The legislature has responded to these concerns in two ways. The first is found in section 186(1)(b) of the Labour Relations Act, 1995 ("LRA"). This section provides that if an employee who is employed on a fixed-term contract has a reasonable expectation that his or her contract will be renewed on the same or similar terms and the employer fails to renew it, or offers to renew it on less favourable terms, this constitutes a dismissal. It also provides that if an employee employed on a fixed-term contract has a reasonable expectation that he or she will be retained in employment on an indefinite basis on terms and conditions of employment that he or she currently enjoys, but the employer offers to retain the employee on less favourable terms, or does not offer to do so, this will also constitute a dismissal.

The second response is found in section 198B of the LRA, which provides that an employee who earns less than the threshold amount published by the Minister of Labour in the Government Gazette may not be employed in terms of such a contract for a period of longer than three months unless the fixed-term contract has been entered into for purposes specified in the section. If such a purpose does not exist, the employee will be regarded as being employed on an indefinite basis. In addition, such an employee must not be treated less favourably than employees employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for doing so.

The applicants in the recent decision in Nowalaza and Others v The Office of the Chief Justice and Others were judges' secretaries (usually referred to as judges' clerks or judges' associates) employed by the Office of the Chief Justice ("OCJ") and working in the Labour Court and the Labour Appeal Court. For a number of years, the practice had been that the applicants had been employed by the Department of Justice, and later by the OCJ, in terms of yearly fixed-term contracts that expired at the end of March of each year. These contracts had been renewed on an automatic basis. The number of automatic renewals of these fixed-term contracts of employment ranged between one and eight years.

After it took over responsibilities for employees employed in the courts, the OCJ commenced an investigation into the possibility of appointing all employees who were employed on fixed-term contracts of employment for a period exceeding three months into permanent positions. During 2016, the applicants were required to inform the court manager of the Labour Court whether or not they wished to be absorbed into permanent positions.

Subsequent to this, the Auditor-General submitted a report in terms of which it advised the OCJ that the automatic renewal of fixed-term contracts of employment was in contravention of the Public Service Act, 1994 ("PSA") and its regulations. Vacant positions had to be advertised and a competitive process followed in filling these posts. The OCJ, therefore, decided not to appoint the judges' secretaries on a permanent basis and adopted the stance that, in order to comply with the PSA and its regulations, the posts of the judges' secretaries would have to be advertised and that the applicants would have to apply for the positions they occupied in terms of their fixed-term contracts. They would have to compete with external candidates for their positions.

The applicants voiced their concerns in this regard and the fact that they may not be appointed. Having received no answer that satisfied them, they approached the Labour Court for a declaratory order to the effect, inter alia, that they were permanent employees. The OCJ had already advertised the posts and the applicants had applied for appointment to safeguard their positions. They also asked for an order restraining the OCJ from interviewing and placing candidates.

As the applicants' remuneration exceeded the ministerially determined threshold, section 198B did not apply. The applicants therefore relied on section 186(1)(b) of the LRA. They based their case on their view that they had a reasonable expectation of indefinite or permanent employment. Their argument can be summarised as follows:

  • the reasonable expectation flowed from the automatic renewal of their contracts over a number of years, as well as the fact that the OCJ had, prior to the Auditor-General's report, contemplated converting their employment into permanent employment without a recruitment process.
  • in substance, they were already permanently employed and there were no vacancies to be advertised and filled.
  • for the OCJ to rely on the provisions of the PSA and its regulations would not only be unfair, but also unlawful.

The OCJ's counter-argument was that the employees could not have had a reasonable expectation of permanent employment. This was because the information that the applicants had been provided with regarding how the OCJ was to proceed, as well as the fact that the applicants' contracts had been extended for a further period of three months to enable the recruitment process to be finalised, prevented such an expectation from arising. More importantly, it was argued that the applicants could never have a reasonable expectation of renewal if this was in conflict with the provisions of the PSA and its regulations.

The court rejected the OCJ's arguments, its most important finding being that reliance on the PSA and its regulations had serious consequences; it meant that a temporary employee in the public service could never rely on the protection of section 186(1)(b). There was a clear conflict between the provisions of the LRA and the PSA and its regulations. Section 210 of the LRA resolved this conflict. It provides that if any conflict arises between the LRA and any other law, the provisions of the LRA will apply unless the other law expressly amends the LRA.

The OCJ raised various other defences and arguments in support of relief not being granted. These were rejected by the court. Perhaps the most important one was that the Labour Court lacked jurisdiction to hear the matter because dismissals had not yet taken place. The applicants' contracts would expire sometime in the future and the court could not declare an anticipated dismissal unfair or grant any other relief in respect thereof. However, the applicants had an alternative remedy. They could claim that they had been unfairly dismissed if their applications for permanent employment were unsuccessful. The court rejected this on the basis that it was entitled to intervene by way of a declaratory order if the employees would suffer a grave injustice.

The court granted a declaratory order to the effect that the applicants were permanent employees employed on the same terms and conditions of employment as were agreed between the applicants and the OCJ in the three month fixed-term contracts that they entered into. The OCJ was also restrained from interviewing and placing candidates in the positions currently occupied by the applicants.

This decision clearly has important implications for the public sector. The Labour Court's view that it is entitled to intervene in these circumstances prior to a dismissal, if a grave injustice could arise, is also important for the private sector.

ENSafrica acted for the applicants in this matter on a pro bono basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions