QUESTION 1

Themba, who was a manager of the Men's Club, approached the Commission for Conciliation, Mediation and Arbitration (the CCMA) seeking severance pay after he was retrenched. The trade union Themba belongs to was informed that he was not employed by the Men's Club, but in fact by a close corporation named Bad Boys CC. The trade union duly cited Bad Boys CC as the respondent in a referral to the CCMA. During conciliation, Tendai Munyai, who is the sole member of Bad Boys CC, indicated that the Men's Club was insolvent and that Themba had been dismissed for operational reasons. The commissioner advised Themba to refer an unfair dismissal dispute for resolution. When the matter was referred for arbitration, both the Men's Club and Bad Boys CC were cited as respondents. After hearing the matter, the commissioner ordered Bad Boys CC to pay Themba an amount of R250 000 for his unfair dismissal. However, it was discovered that Bad Boys CC had no assets. In fact, Tendai Munyai, who also participated in the running of the business, had provided a loan to Bad Boys CC and he had secured claims against the close corporation for repayment of the loan amounts. Themba intends to seek an order from the Labour Court to the effect that Tendai Munyai was his true employer and that he must pay him the amount of R250 000. With reference to the relevant provisions of the Close Corporations Act 69 of 1984 and case law, indicate what Themba would have to prove in order to hold Tendai Munyai personally liable to pay him the amount of R250 000. (25 Marks)