Modiba v Clicks Retailers (Pty) Ltd and Others
Labour Court of South Africa, Johannesburg – Case No JR986/23
31 July 2025
Although marked “Not Reportable”, the judgment is of practical significance because it clarifies the approach a reviewing court will adopt when an arbitrator receives and relies on hearsay evidence, refuses to hear a material witness and then draws speculative conclusions. The judgment therefore offers important guidance on the limits of an arbitrator’s discretion under section 145 of the Labour Relations Act and on the safeguards that must be observed to ensure a fair de novo arbitration process.
No earlier authorities were expressly cited in the judgment. The court’s reasoning was confined to an application of the Labour Relations Act and general principles governing review under section 145.
Labour Relations Act 66 of 1995 (as amended), specifically section 145.
The judgment does not identify or rely on any specific rules of court.
The applicant, Ms Elizabeth Sabi Modiba, sought to review and set aside an arbitration award delivered by a commissioner of the Commission for Conciliation, Mediation and Arbitration. The award had upheld her dismissal for gross misconduct following an altercation with her pregnant subordinate. The Labour Court granted condonation for the late filing of the review papers and examined whether the commissioner committed reviewable irregularities by admitting hearsay evidence and by declining to call a crucial witness who had been waiting outside the arbitration venue.
The court stressed that an arbitration hearing is a hearing de novo. An arbitrator may not, without good reason, refuse to hear a witness whose evidence is both available and clearly material. The commissioner’s reliance on hearsay evidence from the disciplinary inquiry, his speculative evaluation of probabilities, and his failure to resolve mutually destructive versions constituted misconduct and a gross irregularity.
Accordingly, the court held that the commissioner’s decision fell outside the range of decisions to which a reasonable decision-maker could have come. The award was reviewed and set aside, and the dispute was remitted to the CCMA for a fresh arbitration before a different commissioner.
The principal issues were whether the commissioner committed a reviewable irregularity by: first, admitting and relying on hearsay evidence; second, refusing to hear the viva voce evidence of an available eyewitness; and third, drawing speculative conclusions in the absence of tested evidence. The court also considered whether these irregularities rendered the award unreasonable.
Erasmus AJ found that the commissioner’s conduct breached the principles of a fair de novo arbitration and that the resulting award was unreasonable. The award was reviewed and set aside, and the matter was remitted for rehearing before a new commissioner.
Ms Modiba had been employed by Clicks Retailers for twenty-six years and was the manager of its Trade Route Mall branch. On 17 November 2022 she directed two subordinates, Mr Themba Danisa and Ms Jeanette Sithebe, to tidy the stockroom. Both Danisa and Sithebe were present when tensions escalated after Modiba allegedly issued changing instructions and made remarks about Sithebe’s pregnancy.
There was a brief physical altercation. Modiba claimed that Sithebe assaulted her first, forcing her to defend herself, whereas Sithebe maintained that Modiba was the aggressor and had to be fended off. Danisa and another employee, Mr Roraney Mathye, intervened. Both women were subsequently charged with assault and dismissed following separate disciplinary hearings.
At arbitration the employer called Danisa and the disciplinary initiator, Ms Pavashnee Govenden. Despite Mathye’s presence outside the hearing room, the commissioner suggested that his testimony would be repetitious and released him. The commissioner later relied on Mathye’s disciplinary-hearing statement as corroboration for Danisa’s version, ultimately upholding the dismissal. Modiba then launched the present review under section 145 of the Labour Relations Act.
The court had to determine whether the commissioner’s award was reviewable. This entailed deciding if the commissioner had committed misconduct in relation to his duties, grossly exceeded his powers, or rendered an award so unreasonable that no reasonable decision-maker could have reached it.
Central to this enquiry was the commissioner’s treatment of evidence. Did he err by rejecting the testimony of a material eyewitness without hearing it? Did his acceptance of hearsay evidence offend against the rules of natural justice and the principle that an arbitration is a hearing de novo? Moreover, did the commissioner unfairly speculate on probabilities instead of properly assessing and resolving mutually destructive versions?
If any of these questions were answered in the affirmative, the court then had to decide on the appropriate remedy – whether to substitute its own finding or remit the dispute for fresh arbitration.
Erasmus AJ began by restating the well-established test for review under section 145: the applicant must show misconduct, gross irregularity, or that the award falls outside the range of reasonableness. A refusal to hear readily available, relevant evidence is a recognised ground of review because it deprives the proceedings of material that may tilt the balance.
The commissioner’s decision to dispense with Mathye’s evidence was found to be irrational. The witness was present, willing and able to testify, and his version could have been decisive in resolving the conflicting accounts. Relegating his evidence to hearsay, while simultaneously treating it as corroboration, amounted to a gross irregularity. It also infringed the applicant’s right to challenge and test adverse testimony through cross-examination.
The court further criticised the commissioner’s speculative reasoning. Instead of weighing the probabilities on the evidence properly before him, he hypothesised about what “could very well have happened” between the parties. Such conjecture falls short of the standard required of a reasonable decision-maker. When these irregularities were viewed cumulatively, the award could not stand.
The court reviewed and set aside the arbitration award dated 15 March 2023. Given the factual disputes that still required ventilation, the matter was remitted to the CCMA for a fresh arbitration before a commissioner other than the second respondent. Condonation for the late filing of both the review application and the supplementary affidavit was granted.
An arbitrator must conduct a de novo hearing and may not rely on hearsay evidence where the original witness is available and willing to testify. Refusal to hear such material evidence constitutes a gross irregularity. An award basing decisive findings on speculation, rather than properly tested evidence, falls outside the bounds of reasonableness contemplated by section 145 of the Labour Relations Act. Where cumulative irregularities render the proceedings unfair, the Labour Court is entitled to set the award aside and remit the dispute for rehearing.