Mbatha v University of Zululand

The applicant, Mr Mpumelelo Obed Mbatha, was employed by the University of Zululand (Unizul) from 1984 as a researcher in the Zulu Dictionary Project. In 2002, a tripartite agreement was concluded between Unizul, the Pan South African Language Board (PanSALB), and Isikhungo Sesichazamazwi SesiZulu (ISS), a section 21 company established to promote isiZulu through lexicography. Under the agreement, Unizul seconded three staff members, including the applicant, to ISS, with ISS to take over their employment by 31 December 2005. PanSALB was to fund ISS and channel staff remuneration through Unizul. PanSALB suspended funding from June 2005 due to outstanding audited financial statements. Unizul continued paying salaries until June 2008, after which it stopped. The applicant claimed he remained a Unizul employee and sought an order compelling Unizul to pay his salary. Unizul contended that his employment transferred to ISS after December 2005.

Leave to appeal to the Constitutional Court was refused, with the effect that the Labour Appeal Court’s decision dismissing the applicant’s claim stood.

The case is significant for clarifying how South African courts determine the existence of an employment relationship in complex tripartite and secondment arrangements, particularly where funding and administrative functions are separated from control and supervision. It affirms the application of the control test in labour disputes and limits reliance on administrative indicators such as payslips.