Key Takeaways
- The Labour Court in Gqeberha upheld a CCMA award that reinstated long‑serving farm worker Mzukisi Petrus Mkhavu and ordered eight months’ back pay plus eight months’ compensation for an unfair labour practice.
- The court found that Mkhavu did not allow “unauthorised persons” onto Rhodene Farm; the individuals he admitted were lawful occupiers or bona‑fide visitors under the Extension of Security of Tenure Act (ESTA).
- Judge Molatelo Makhura rejected the farming company’s attempt to distinguish between pedestrian and vehicle access, calling the distinction “illogical and unsustainable.”
- The court affirmed that ESTA grants occupiers the right to receive bona‑fide visitors at reasonable times unless the landlord imposes reasonable conditions—none of which were shown to exist or be communicated.
- The company’s challenge to the amount of compensation was not considered because it was not properly raised in the review papers, depriving Mkhavu of a chance to respond.
- The Labour Court concluded the CCMA’s award was reasonable, dismissed the review application, and made no order as to costs.
Background of the Dispute
Mzukisi Petrus Mkhavu had been employed and resided on Rhodene Farm in Kirkwood, Eastern Cape, since 1984. As a lawful occupier under the Extension of Security of Tenure Act (ESTA), he lived on the property with his family and performed farm duties for the owner, Madalas Rest (Pty) Ltd. In November 2022, following disciplinary proceedings, the company initially suspended Mkhavu’s dismissal. However, a second disciplinary process was launched between December 2022 and February 2023, alleging that Mkhavu had allowed three individuals—his son Andile Tambo, his nephew Devan Mkavu, and Shaunton Gouws—to enter the farm without authorisation and that he had failed to inform the farm owner of their presence. Mkhavu 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.
CCMA Findings and Remedy
Mkhavu referred both the disciplinary sanction and his dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The commissioner concluded that the dismissal was substantively unfair. The key reasoning was that the individuals Mkhavu admitted were not “unauthorised” under ESTA: Andile Tambo and Devan Mkavu appeared on the official list of occupiers supplied to the new farm owner, and Shaunton Gouws was a bona‑fide visitor to his grandmother, a right expressly protected by ESTA unless reasonable conditions were imposed by the landlord—none of which existed or were communicated. Accordingly, the commissioner ordered Mkhavu’s retrospective reinstatement, eight months’ back pay, and compensation equal to eight months’ remuneration for the unfair labour practice.
Company’s Review Application
Madalas Rest (Pty) Ltd sought to have the CCMA award reviewed, arguing that the commissioner had taken an overly technical approach by refusing to consider incidents not expressly listed in the disciplinary charges. The company 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—specifically, by driving through the vehicle gate using Mkhavu’s keys and vehicle while Mkhavu was not physically present, rather than using the pedestrian entrance. The employer also argued that the eight months’ compensation awarded for the unfair labour practice was excessive and punitive.
Court’s Rejection of the Pedestrian‑vs‑Vehicle Distinction
Judge Molatelo Makhura dismissed the company’s arguments. The court noted that the disciplinary charges specifically alleged that Mkhavu had permitted “unauthorised persons” onto the farm. Evidence showed that both Andile and Devan were recognised occupiers whose names appeared on the official occupier list provided to the new owner. 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 solely on the fact that they entered via the vehicle gate using Mkhavu’s vehicle and keys while Mkhavu was absent. 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 choose to enter in a vehicle rather than on foot.
Application of ESTA to Visitors
Regarding Shaunton Gouws, the court found his visit to his grandmother on the farm to be lawful. Mkhavu’s evidence that he had informed the farm owner of the planned visit was never challenged, and ESTA expressly grants occupiers the right to receive bona‑fide visitors at reasonable times unless the landlord imposes reasonable conditions. No evidence demonstrated that such conditions existed or had been communicated to residents. The judge emphasised that the case raised an important question about the rights enjoyed by occupiers of agricultural land under ESTA: 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 answer, according to the court, is no.
Jurisdictional Scope of the CCMA
The court also addressed the company’s claim that the CCMA had exceeded its jurisdiction by relying on ESTA to determine whether the individuals had a right to be on the property. Judge Makhura held that the commissioner correctly used ESTA solely to ascertain the legal status of the persons entering the farm and did not venture beyond the CCMA’s mandate. The arbitration award therefore remained within the permissible scope of the CCMA’s authority.
Compensation Argument and Procedural Default
Madalas Rest’s contention that the eight months’ compensation for the unfair labour practice was excessive and punitive was not entertained by the Labour Court. The judge found that this argument had not been properly raised in the review papers, thereby depriving Mkhavu of an opportunity to respond. Because the issue was not before the court, it could not be considered, and the original award stood.
Conclusion and Implications
Finding that the CCMA’s award met the legal standard of reasonableness, Judge Makhura dismissed the review application and made no order as to costs. The judgement reinforces the protection afforded to long‑term farm workers and their families under ESTA, clarifying that lawful occupiers and their bona‑fide visitors retain the right to enter the property using any reasonable means of access, absent explicit, reasonable restrictions imposed by the landlord. Employers must therefore ensure that any disciplinary action based on alleged unauthorised entry is grounded in clear, communicated conditions and not merely on a preference for a particular mode of entry. The decision serves as a precedent for future disputes concerning access rights on agricultural land in South Africa.