THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no : JR 1797 / 17
In the matter between:
BHEKUYISE MJOLI AND OTHERS Applicant s
and
PETER S PAPERS (PTY) LTD First Respondent
DANIEL DU PLESSIS N.O. (AS COMMISSIONER) Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Third Respondent
Heard: 15 October 2024
Delivered: 6 Febr uary 2025
This judgment was handed down electronically by circulation to the parties and
legal representatives by email. The date and time for hand -down is deemed to
be 6 February 2025
Summary: CCMA arbitration proceedings – review of proceedings, decisions
and awards of arbitrators – s 145 of LRA 1995 – determination of conduct of
arbitrator, gross irregularities and reasonable outcome
Evidence – evaluation and determination thereof – proper assessment of
evidence and probabilities by arbitrator – no basis to interfere with arbitrator’s
2
conclusions on the probabilities, evidence , credibility and preferring particular
evidence
Dismissal – theft of employer property – principles and evidence considered –
conduct of employee s constituting gross serious misconduct placing employer
at risk and causing harm – arbitrator drawing proper inference from such
conduct in finding that employee s committed mi sconduct – dismissal justified
Review of award – conclusion of arbitrator correct and/or reasonable –
arbitration award upheld – review application dismissed
JUDGMENT
SNYMAN , AJ
Introduction
[1] This is yet another review application where there has been an unfortunate
material delay in the conclusion of the matter. The case dates back almost a
decade, and has only come up for hearing now. This is the kind of situation the
new Rules of the Labour Court seeks to remedy, and only time will tell if this
intention prevails. After all, expeditio n must be one of the cornerstone s of
employment law dispute resolution.1
[2] The above being said, what is now before Court concerns an application
brought by the applicant s to review and set aside an arbitration award issued
by the second respondent in h is capacity as an arbitrator of the Commission
for Conciliation, Mediation and Arbitration (CCMA), the latter being the third
respondent. In terms of this arbitration award, the second respondent found
that the dismissal of the applicant s by the first respondent was substantively
and procedurally fair. The review application has been brought in terms of
section 145 of the Labour Relations Act (LRA)2.
1 As said in Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty) Ltd
(2018) 39 ILJ 1213 (CC) at para 187 : ‘… Our courts have, on occasion, pronounced on the importance
of labour disputes to be conducted with expedition …’.
2 Act 66 of 1995 (as amended).
3
[3] In this review application, the applicant s seek relief to the effect that the finding
of the substantive fairness of the dismissal of the applicants , as made by the
second respondent , be reviewed and set aside, and be substituted with a
finding that the dismissal of the applicant s by the first respondent was
substantively unfair, and they be reinstated into their employment with the first
respondent with retrospective effect to the date of their dismissal. The
application has been opposed by the first respondent.
[4] The arbitration award of the second respondent is dated 10 July 2017 and was
received by the applicant s on the same date. The applicants ’ review
application was served and filed on 21 August 2017 , and ha s thus been
brought within the six weeks ’ time period as contemplated by section 145(1) of
the LRA. The review application is therefore properly before Court for
determination, and I shall now attend to deciding this review application by first
setting out the relevant background facts.
The relevant background
[5] The first respondent conducts business of selling and distributing paper, which
it either imports or sources locally. The applicants were all employed by the
first respondent as either drivers, or drivers’ assistants, and their duties
included transporting stock s of paper to the various customers of the first
respondent in vehi cles provided by the first respondent .
[6] The paper stock s that are delivered to the first respondent’s customers are
ordinarily placed onto pallets, for ease of handling and transport. These pallets
are loaded onto the first respondent’s vehicles, manned by drivers and drivers’
assistants, and the pallets are then offloaded at the customer s. When the
paper is offloaded at a customer, the pallets either remain at the customer, or
the pallets are returned to the first respondent. It also happens that pallets
previously kept by the customer, when the next consignment of stock is
delivered, is required by the customer to be returned to the first respondent.
The upshot of this ebb and flow of pallets, so to speak, is that there was a
continuous flow of pallets out of and back into the first respondent, to the
extent that there was always a proper stock of pallets, and it was actually an
unknown occurrence for the first respondent to need to order pallets.
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[7] The first respondent also strictly regulates its delivery activities. It operates an
automatic route sorter, which determines particular delivery routes for dr ivers
and their assistants , base d main routes as well as the shortest route . In fact,
the route sorter not only determines the routes the vehicles must travel, but
determines the sequence in which the deliveries must be made. The delivery
vehicles are then loaded in the sequence of the deliveries. The drivers are
issued with a route sheet for the deliveries, as well as the invoices for each
and every delivery. The drivers and their assistants are obliged to adhere to
these predetermined and assigned routes.
[8] The drivers record each and every arrival and departure times for deliveries at
each of the customers, on the route sheet. In this context, drivers / assistants
are not allowed to stop or idle at places not on their route , save only if prior
permission is obtained from the first respondent ’s management. Permission is
also a requirement for any deviation from the assigned route.
[9] Drivers / assistants are however allowed to stop their delivery vehicles for a
half hour lunch break between the hours of 12h00 and 14h00, again subject to
the proviso that it is on route to the various customers, and the pre -assigned
route is not departed from. In addition, any personal errand is not allowed,
unless permission from management is obtained, and then also, once again,
subject to the proviso that there is no deviation from the assigned route.
[10] What led to the ultimate dismissal of the applicants in casu is that for the very
first time in its history of 30 years, the first respondent ran out of pallets in
2016. It then also, for the first time, had to order a consignment of pallets from
a sister company. This was a most strange occurrence to the first respondent.
[11] The first respondent then discovered, also in the course of 2016, that one of
the driver’s assistants had sold pallets at a pallet yard , by deviating from the
delivery route to go past this pallet yard. This raised the first respondent’s
suspicions that what was happening was that the pallets were not being
returned to the first respondent’s premises as would usually be the case , but
were being sold by the drivers / assistants at pallet yard s, and this was why it
ultimately ran out of pallets. The first respondent then embarked upon an
investigation , to ascertain if these was substance in this belief .
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[12] The first respondent’s vehicles are tracked by a system called ‘ Trackmatic ’.
This system has the functionality in terms of which the first respondent can set
and establish specific delivery / collection points, called a ‘DECO ’. This allows
the system to establish when a vehicle stops or idles in a DECO, and records
the time spent there. The system will not record anything if the vehicle does
not stop or idle in the DECO.
[13] What the first respondent then did, using the DECO functionality, is to set up
DECOs at pallet yard s that buy and sell pallets. This mean t that whe never a
delivery vehicle of the first respondent would stop / idle at a pallet yard DECO,
the system would record it. In particular, DECOs were established at four
areas where there were pallet yards that purchase pallets, being Hanau Street
(Hanau DECO) , the Johannesburg Market (Market DECO) , Albertina Sisulu
Drive (Sisulu DECO) , and Stormhill (Stormhill DECO) .
[14] These pallet y ard DECOs that were set up were not in the immediate vicinity
of customer delivery sites, no r were such DECOs along the fastest and /
prescribed delivery routes for making deliveries to customers , which the
drivers / assistants had to adhere to. This means that where the drivers /
assistants adhered to the prescribed delivery routes and made their deliveries
in the ordinary course, the pallet yard DECOs would not be triggered. In the
case of customers that were in the general vicinity if these pallet yard DECOs,
the DECOs were set up with a radius of some 30 metres at th e DECO, and
this would mean that the DECO is not trigge red should the drivers / assistants
attend at these customers in the normal course .
[15] Utilising this system, the DECOs set up, and monitoring the movements of the
drivers / assistants, the first respondent established that the drivers /
assistants on numerous occasions stopped / idled within the areas of the pallet
yard DECOs . In fact, and at the Hanau DECO, the drivers / assistants had
stopped / idled in the DECO on more than 300 occasions. In addition, it was
found that the drivers / assistants that stopped at the Hanau DECO would
often return to the first respondent’s premises after 16h30, which was unusual ,
and even resulted in overtime being paid to them. The applicants were
amongst these drivers / assistants.
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[16] The first respondent concluded, from its investigation, that the applicants were
amongst a large number of drivers / assistants t hat were selling the first
respondent’s pallets at these pallet yards, for their own account. In the end, a
total of approximately two thirds of the first respondent’s drivers / assistants
were charged and disciplined for this, resulting in their dismissal. This is
clearly a highly unusual situation, was disruptive for the first respo ndent, and
not lightly embarked upon.
[17] Several charges were proffered against the employees involved (including the
applicants ) on 22 and 25 July 2016 . These included a gross deviation from the
allocated daily delivery routes, misuse of company vehicles, claiming overtime
for unlawful activities, theft and / or unauthorised removal of company
property , and derivative misconduct. Group disciplinary hearings were held for
the employees on 25 , 26 and 27 July 2016 respectively. The employees were
all summarily dismissed following such disciplinary hearings. This included the
applicants.
[18] The applicants, duly represented by the trade union CEPPWAWU, referred a
number of individual disputes to the CCMA following their dismissal. These
disputes were unsuccessfully conciliated , referred to arbitration , and
subsequently all consolidated into one dispute by way of a ruling by the
CCMA. The consolidated dispute came before the second respondent for
arbitration over a period of nine days, the first day being 23 January 2017, and
the last day was on 21 June 2017.
[19] At the commencement of the arbitration, the parties narrowed down the issues
in dispute to be decided by the second respondent . Where it came to the issue
of procedural fairness, the only challenge raised by the applicant s was that the
chairperson was biased , considering his conduct in the disciplinary hearings.
In addition, it was established that should it be found that the applicants
committed the misconduct with which they had been charged, then dismissal
would be an appropriate sanction.
[20] In his arbitration award dated 10 July 2017 , the second respondent, as
touched on above, found in favour of the first respondent. As far as the second
respondent was concerned, and based on the reasons dealt with more fully
later in this judgment, the dismissal of the applicant s by the first respondent
7
was both substantively and procedurally fair. He dismissed the referral. These
conc lusion s by the second respondent prompt ed the current review
application , which I will now turn to deciding by first setting out the applicable
test for review.
The test for review
[21] The test for review is settled . In Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others,3 the Court held that ‘ the reasonableness standard
should now suffuse s 145 of the LRA ’, and that the threshold test for the
reasonableness of an award was: ‘… Is the decision reached by the
commissioner one that a reasonable decision -maker could not reach ?...’4. This
means that the award in question is tested against the facts before the
arbitrator to ascertain if it meets the requirement of reasonableness.5 In
conducting this test it is always necessary and imp ortant for the Court to
enquire into and consider the merits of the matter and the entire evidence on
record in deciding what is reasonable.6 In Herholdt v Nedbank Ltd and
Another7 the Court said:
‘… A result will only be unreasonable if it is one that a reasonable arbitrator
could not reach on all the material that was before the arbitrator. Material
errors of fact, as well as the weight and relevance to be attached to the
particular facts, are not in and of themselves sufficient for an award to be set
aside, but are only of consequence if their effect is to render the outcome
unreasonable. ’
[22] In sum, applying the correct review test has a logical chronolo gy. First, i t must
be determined if there a failure or error on the part of the arbitrator . Second,
3 (2007) 28 ILJ 2405 (CC).
4 Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at
para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration
and Others (2008) 29 ILJ 964 (LAC) at para 96.
5 See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.
6 Id at para 41.
7 (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold
Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at
para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing
Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968
(LAC) at paras 15 – 17; National Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.
8
and where there is such a failure or error, it must be show n that the outcome
arrived at by the arbitrator was unreasonable , based on all the evidence and
issues before the arbitrator , even if it may be for different reasons or on
different grounds as those referred to by the arbitrator .8 Third, it would only be
if the consideration of the evidence and issues before the arbitrator shows that
the outcome arrived at by the arbitrator cannot be sustained on any grounds,
and the irregularity, failure or error concerned is the only basis to sustain the
outcome the arbitrator arrived at, th at the review application would succeed.9
Analysis
[23] As a point of de parture in deciding this case, it must be pointed out that certain
material evidence emerged as either undisputed or common cause. It was not
disputed that the first respondent ha d set up the DECOs concerned where it
came to businesses that purchase pallets , and that the vehicles allocated and
driven by the applicants did stop / idle within the se pallet yard DECOs . It was
also undisputed that the applicants were not making any deliveries to
customers when stopping / idling in these demarcated DECOs. The fact that
the first respondent for the first time in 30 years has experienced a complete
exhausting of its pallet stock was equally undisputed . And finally, all the
documentary evidence relating to the maps and tracker extracts relating to the
DECOs was ultimately accepted as undisputed. Considering the award of the
second respondent, it is in my view clear that he properly appreciated and
considered these irrefutable facts.
[24] A second issue that must be di sposed of from the outset is the issue of
dismissal as an appropriate sanction, in the event that the applicant s were
found to have comm itted the misconduct with which they had been charged. In
the review application, the applicants have raised as a review ground that the
second respondent had committed a review able irregularity in finding that the
dismissal of the applicants was an appropriate sanction in the circumstances.
However, t he record reveals that at the commencement of the arbitration,
8 Fidelity Cash Management Service (supra) at para 102.
9 See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32;
Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC)
at para 12.
9
there was an exchange between the parties and the second respondent, with
the objective of narrowing the issues to be determined by the second
respondent in the arbitration. In this context , the following exchange then took
place between the applicants ’ representative and the second respondent:
‘COMMISSIONER : Okay, and then the last issue I think I wanted to raise. If it
is found that the applicants committed the misconduct on a balance of
probabilities I find it is – well not the applicants , anyone, anyone that is
accused of these things and it is found they probably done it, do you agree
that it is a cause of dismissal or not?
MR QOLE : If you are found guilty of what is alleged, Commissioner, yes , if you
are found guilty of that .’
[25] The point is that the applicants , and for that matter the second respondent as
decision maker, should be held bound to this limitation of issues concluded in
the course of the opening addresses of the parties. This is b ecause there are
no pleadings to speak of in CCMA arbitration proceedings, and therefore the
opening addresses and the limitation of issues articulated by the parties at the
outset of the arbitration , would serve the very same purpose as limiting issues
in a pre -trial minute.10 In Fidelity Cash Management Service v Commission for
Conciliation, Mediation and Arbitration and Others11 the Court dealt with the
limitation of issues for determination in an arbitration, by way of the opening
addresses made by the parties. The Court referred to what each party in the
arbitration had said in their opening addresses,12 and then concluded:13
‘… in an arbitration such as the one that happened in this matter, the parties
do not exchange, and, in this case, did not exchange, pleadings that would
enable each party to know what the other party's case is. In cases in which
opening statements are made, they serve to inform both the arbitrator and the
other side what one's case is. …’
[26] It is a trite principle that an issue placed beyond contestation by way of a pre -
arbitration agreement (minute) cannot be raised as an issue in the arbitration,
10 See Tiger Brands Field Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration
and Others [2013] ZALCJHB 216 (13 August 2013) at para 71.
11 (2008) 29 ILJ 964 (LAC).
12 See paras 20 – 22 of the judgment.
13 Id at para 23.
10
as the parties are bound by the limitation of the issues they have agreed to.14
As specifically said in Filta-Matix (Pty) Ltd v Freudenberg and Others :15 '… If a
party elects to limit the ambit of his case, the election is usually binding … ’.
The applicant s would similarly be bound by th e case as articulated in th e
opening address at the arbitration .16 In ZA One (Pty) Ltd t/a Naartjie Clothing v
Goldman NO and Others17 the Court held:
‘The effect of the events at the commencement of the arbitration, as
specifically set out above, is similar to a pretrial agreement and has the same
consequences. As there are no pleadings in CCMA arbitrations, the court has
specifically dealt with the significance of opening addresses. … ’
[27] It follows that the issue of dismissal as an appropriate sanction was beyond
contestation should the second respondent find that the applicants committed
the misconduct with which they had been charged. Therefore, the finding of
the second respondent that dismissal was appro priate in this instance cannot
legitimately form the subject of a review ground, and would thus be
unassai lable on review. It is s trictly speaking thus not necessary or required to
delve into the facts and principles where it comes to deciding wheth er
dismissal as a sanction is appro priate and fair. Once it is accepted that the
applicants committed the misconduct concerned, their dismissal must follow.
[28] It is true that one of the charges against the applicants concerned derivative
miscon duct, and the issue was ventilated in the arbitration . In a nutshell,
derivative misconduct would be where an employee is aware of misconduct
having been committed by another employee, and has a duty to report this to
the employer as a result of the employee’s fiduciary duty to wards his / her
employer. The employee then commits misconduct by failing to disclose this
misconduct of the other employee to the employer. It is also true that following
the judgment in National Union of Metalworkers of SA on Behalf of Nganezi
and Others v Dunlop Mixing and Technical Services (Pty) Ltd & Others
14 See GE Security (Africa) v Airey and Others (2011) 32 ILJ 2078 (LAC) at para 20 – 21.
15 1998 (1) SA 606 (SCA) at 614B -D. See also National Union of Metalworkers of SA and Others v
Driveline Technologies (Pty) Ltd and Another (2000) 21 ILJ 142 (LAC) at paras 16 and 83.
16 See Fidelity Cash Management Service (supra ) at para 23.
17 (2013) 34 ILJ 2347 (LC) at para 62. See also para 61 of the judgment.
11
(Casual Workers Advice Office as Amicus Curiae)18 the concept of derivative
misconduct is a problematic one, considering the following finding made by the
Court:19
‘In finding this right balance between employer and employee in fair labour
practice, the reciprocal duty of good faith should not, as a matter of law, be
taken to imply the imposition of a unilateral fiduciary duty of disclosure on
employees. In determining whether, as a matter of fact, a unilateral fiduciary
duty to disclose information on the misconduct of co -employees forms part of
the contractual employment relationship, caution must be taken not to use this
form of indirect and separate misconduct as a means to easier dismissal
rather than initially investigating the participation of individual employees in the
primary misconduct. A failure to appreciate that there are many ways, direct
and indirect, for employees to participate in and associate with the primary
misconduct increases this risk. …’
[29] The second respondent dealt with the derivative misconduct issue in his
award. He recognised the difficulties associated with making a finding against
the applicants on such basis. What he concluded was that in a case of theft,
such as would be the case in casu , there was a duty on the applicants to
inform the third respondent of the misconduct , however he then held that ‘ … it
is accepted that all of the Applicants worked together in selling the pallets ’. He
further concluded that ‘… the Respondent has proven the misconduct having
been committed by each of the Applicants ’. These findings, despite being dealt
with under the heading, so to speak, of derivative misconduct, are in fact not
commensurate with a finding of derivative misconduct. A finding that each of
the applicants committed the misconduct necessarily means that it is not about
whet her some of the applicants failed to inform the third respondent of
misconduct by the other applicants. The finding that the applicants were
‘working together ’ would be more indicative of a common purpose between
them , which is not the same as derivative misconduct.20 What happened in
18 (2019) 40 ILJ 1957 (CC) .
19 Id at para s 75.
20 In SA Commercial Catering and Allied Workers Union and Others v Makgopela NO and Others
(2023) 44 ILJ 1229 (LAC) at para 16, the Court said: ‘ A dismissal for misconduct based on common
purpose arises as a consequence of the deemed participation of the employee as part of the group
which committed the primary misconduct , and at para 17 Involvement with the primary misconduct is
proved through application of the general principles required to prove common purpose … In general,
common purpose will be proved if the individual was present at the scene of the misconduct; was
12
casu is in line with the following dictum in A J Charnaud and Co v SA Clothing
and Textile Workers Union on behalf of Members and Others21 where the
Court held:
‘In short, the arbitrator’s reference to the employees being ‘either primarily or
derivatively guilty' is unfortunate — the evidence before him established, on a
balance of probabilities, that the employees had directly participated in the
misconduct for which they were dismissed. The arbitrator’s reference
to derivative misconduct is a misnomer, but the conclusion to which he
ultimately came is not untenable, having regard to the evidence that served
before him. The arbitrator’s factual findings must therefore be upheld. ’
[30] It follows that derivative misconduct does not feature in this case, despite
being mentioned as one of the charges against the applicants , and the second
respondent referring to it. Rather, this is a case to be decided on whet her the
evidence showed that the misconduct of selling the pallets belonging to the
first respondent was perpetrated by all the applicant s, or at the very least that
all the applicants acted with a common purpose in selling those pallets. This is
therefore the ce ntral question in th is review application , namely wheth er the
second respondent’s determination that this was the case would be
sustainable on review, based on the evidence before him as a whole. As a
result, the applicants ’ ground of review relating to the issue of derivative
misconduct does not take the matter any further, and cannot serve as basis to
upset the award of the second respondent.
[31] And finally in the preliminary phase of this analysis, the applicants , on review,
do not seek to challenge any of the findings made by the second respondent
on the issue of procedural fairness , as part of their review grounds . The
applicants are bound by the grounds of review as raised in the founding
affidavit , as they elected not to file a supplementary affidavit in terms of Rule
aware of the misconduct; intended to make common cause with those who perpetrated it; manifested
some common purpose with the perpetrators of the misconduct by performing an act of association
with the conduct of the others; and possessed the requisite mens rea. …’.
21 (2024) 45 ILJ 2257 (LAC) at para 29.
13
7A(8) .22 Accordingly, the conclusion of the second respondent that the
dismissal of the applicants was procedurally fair stand s.
[32] I now return to the merits of the case. The misconduct with which the
applicants were charged, described as simply as possible, is they perpetrated
or were involved in the theft of the first respondent’s pallets, by way of selling
those pallets at various pallet yards . Ancillary to this charge is a further charge
that the applicants deviated from their prescribed delivery routes in doing so.
Some of the applica nts also face d charges of unlawfully claiming overtime,
however I do not deem it necessary to separately delve into this misconduct,
as in my view everything turns on the two instances of misconduct referred to
above.
[33] Now it is true that there was no evidence presented of any of the applicants
actually having been witnessed or in any manner caught red handed in selling
pallets at one of the pallet yards . But the critical question then is what the
applicants were doing in the DECO s specifically set up at such pallet yards,
which, at the very least on a prima facie basis, they ha d no business being at.
The inference the first respondent sought to draw from this , considering the
background that led to the establishment of these DECOs, was that the
applicants we re selling the pallets at these pallet yards . The second
respondent, in his award, accepted that this was the proper inference to draw.
The question now is whether the probabilities support such an inference ,
because if that was not the case, then then the conclusion arrived at by the
second respondent would not be reasonable.
[34] What must thus be considered is what is called the ‘ inherent probabilities ’.23
The determination of probabilities entails an inference to be drawn from the
22 See Northam Platinum Ltd v Fganyago NO and Others (2010) 31 ILJ 713 (LC) at para 27; Brodie v
Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 608 (LC) at para 33;
Sonqoba Security Services MP (Pty) Ltd v Motor Transport Workers Union (2011) 32 ILJ 730 (LC) at
para 9; De Beer v Minister of Safety and Security and Another (2011) 32 ILJ 2506 (LC) at para 27.
23 See SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at para 5;
National Union of Mineworkers (Id fn 14 ) at para 34; Mphigalale v Safety and Security Sectoral
Bargaining Council and Others (2012) 33 ILJ 1464 (LC) at para 12; Sasol Mining (Pty) Ltd v Ngqeleni
NO and others Sasol Mining (2011) 32 ILJ 723 (LC) at para 8.
14
evidence as a whole, on the following basis , as explained in SA Post Office v
De Lacy and Another24:
‘The process of inferential reasoning calls for an evaluation of all the evidence
and not merely selected parts. The inference that is sought to be drawn must
be 'consistent with all the proved facts. If it is not, then the inference cannot be
drawn' and it must be the 'more natural or plausible, conclusion from among
several conceivable ones' when measured against the probabilities. ’
[35] Deciding a matter on the probabilities thus entails a complete consideration of
all the evidence, as a whole, in order to decide which outcome is the most
logical, natural and plausible out of a number of possible different outcomes.25
As said in Bates and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co26:
‘The process of reasoning by inference frequently includes consideration of
various hypotheses which are open on the evidence and in civil cases the
selection from them, by balancing probabilities, of that hypothesis which
seems to be the most natural and plausible (in the sense of acceptable,
credible or suitable).’
[36] As stated, it was not disputed that the applicants indeed stopped / idled their
vehicles on a large number of occasions in DECOs concerned, and it was
never their case that they were conducting a delivery at any customer of the
first respondent at the time when doing so. In simple terms, the applicants
never said that stopping / idling at a DECO was delivery to a customer.
Against this backdrop, there are several further important probabilities to
consider. The first is that there are pallet yar ds at these DECOs that purchase
pallets . The second is that these DECOs were not situated on the shortest /
direct and prescribed delivery route s to customers , which the applicant s are
compelled to follow, unless permission is obtained from management to
deviate. E ven if it can be said that the applicants stopped / idled in the DECOs
24 2009 (5) SA 255 (SCA) at para 35. See also Govan v Skidmore 1952 (1) SA 732 (N) at 734A -C;
Food and Allied Workers Union and Others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ
1057 (LAC) at 1064C -E; National Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others (2013) 34 ILJ 945 (LC) at para 37.
25 See S FW Group (supra ) at para 5; National Union of Mineworkers (supra ) at para 34; Mphigalale v
Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 1464 (LC) at para 12; Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC) at para 8.
26 1985 (3) SA 916 (A) at 939I -J.
15
for personal errands , the same contention applied . The third is that the
applicants never asked for permission for personal errands , as required. The
fourth is that most of these stop s / idling at the DECOs took place outside the
ordinary lunch period. The fifth is that the applicants were in the position to sell
pallets. And finally , this all took place against the backdrop of the first
respondent running out of pallets for the first time in 30 years, and that since
the dismissal of th e employees involved in this misconduct, none of the first
respondent’s drivers / assistants have been found to have stopped / idled at
any of the DECOs .
[37] All these probabilities, derived from the evidence as a whole, in my view
established at least a proper prima facie case that the applicant s perpetrated
or were involved in the theft of the pallets, by selling the same at the various
pallet yards situate at the DECOs . This was also the conclusion reached by
the second respondent, and I believe he cannot be faulted for doing so. As
held in Cooper and Another NNO v Merchant Trade Finance Ltd27:
‘… If the facts permit of more than one inference, the Court must select the
most "plausible" or probable inference. If this favours the litigant on whom
the onus rests he is entitled to judgment … ’
[38] So where does this leave the applicants ? As the second respondent correctly
and rationally appreciated in his award, the duty then shifted onto the
applicants to provide a plausible and acceptable explanation to the contrary ,
so as to avoid a final conclusion that they committed the misconduct. In
Federal Cold Storage Co Ltd v Angehrn and Piel28 the Court held that: ‘…
Once the appellants had proved a prima facie case of misconduct on the part
of the respondents in taking, in violation of their duty, a secret profit of the kind
described, the dismissal stood prima facie justified, the burden of proof was
shifted, and it lay upon the respondents … to prove the righteousness of the
transaction. If they failed to discharge that burden satisfactorily, then the prima
facie case against them must prevail and their guilt, justifying dismissal, must
be taken to be established. … ’. And a s succinctly said in National Union of
27 2000 (3) SA 1009 (SCA) at para 7. See also Minister of Police v Safety and Security Sectoral
Bargaining Council and Others (2023) 44 ILJ 1017 (LAC) at para 16.
28 1910 TS 1347 at 1352.
16
Mineworkers and Another v Commission for Conciliation, Mediation and
Arbitration and Others29:
‘… the third respondent had at least made out a prima facie case. That meant
that there was a duty on the second applicant to advance and provide a
reasonable alternative explanation. His failure to do so in my view counts
heavily against him. … ‘
[39] The explana tions sought to be offered by th e applicants were simple. First,
they baldly denied any involvement in the sale of pallets. In fact, some of them
even denied having knowledge that there were pallet yards in the DECOS.
Insofar as stopping / idling in the DECOS are concerned, the explanations in
essence boiled down to con ducting personal errands, namely purchasing food,
drink, airtime and other items for personal use. As said above, the applicants
never explained that they were actually conducting deliver ies at customer s at
that point in time. Especially where it came to the Hanau DECO, the applicant s
sought to explain that they were often in Hanau Street to buy food and/or
cigarettes and/or airtime and/or cold drinks from a particular vendor . The
applicants offered similar explanations where it came to the Market and
Stormhill DECOs . In the case of the Sisulu DECO, the only explanation
provided was that the applicants stopped / idled at such DECO to obtain food
from Shakes Restaurant .
[40] Can these explanations be accepted ? Obviously, and in this context, it would
be required of the second respondent to determine the tru th thereof. This
entailed conducting the following exercise, as articulated in Sasol Mining (Pty)
Ltd v Ngqeleni NO and others30:
‘One of the commissioner's prime functions was to ascertain the truth as to the
conflicting versions before him. The commissioner was obliged at least to
29 (2013) 34 ILJ 945 (LC) at para 41. See also See also Woolworths (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 2455 (LAC) at para 34; SA Municipal
Workers Union on behalf of Damens v Breede Valley Municipality and Others (2014) 35 ILJ 2018 (LC)
at para 13; Aluminium City (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others
(2006) 27 ILJ 2567 (LC) at paras 21 and 23 ; SATAWU obo Mpoko and Another v National Bargaining
Council for the Road and Freight and Logistics Industry and Others (JR2039/16) [2019] ZALCJHB 192
(15 August 2019) at paras 36 – 39.
30 (2011) 32 ILJ 723 (LC) a t para 7. See also Blitz Printers v Commission for Conciliation, Mediation
and Arbitration and Others [2015] JOL 33126 (LC) at para 37; Southern Sun Hotel Interests (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC) at para 20.
17
make some attempt to assess the credibility of each of the witnesses and to
make some observation on their demeanour. He ought also to have
considered the prospects of any partiality, prejudice or self -interest on their
part, and determined the credit to be given to the testimony of each witness by
reason of its inherent probability or improbability. He ought then to have
considered the probability or improbability of each party's version. … ’
[41] Starting with the issue of credibility, the second respondent obviously
preferred the first respondent’s witnesses, describing their evidence as
‘credible ’ in his award. However w here it came to the evidence of the
applicants , the second respondent found their testimony not to be credible,
describing it as ‘ pre-rehearsed ’. He also considered that the constant leading
questions asked of the witnesses for the applicants detracted from their
credibility , and the fact that some of the versions offered by the applicants
were presented for the first time under cross examination. He also considered
that some of th e applicants contradicted the others, and avoided answering
questions. Insofar as the grounds of review raised by the applicant s include an
attack on the se credibility findings made by the second respondent, it must be
said that this Court should be loath to interfere with credibility findings of
arbitrators who have the opportunity to observe witnesses, gauge their
demeanour and listen to their testimony in real time. A review Court, only
seized with a record, does not have this important benefit. As held in
Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others :31
‘… Credibility issues are indeed difficult to determine in motion proceedings
such as these. The commissioner is undoubtedly in a better position to make a
finding on this issue. …’
[42] It is my view that this Court should only interfere with credibility findings made
by CCMA arbitrators, if the evidence contained in the record before the Court
shows that the credibility findings of the arbitrator are entirely at odds with or
completely out of kilter with the probabilities and all the evidence actually on
the record when considered as a whole.32 I do not believe that a proper
31 (2012) 33 ILJ 485 (LC) at para 18.
32 See National Union of Mineworkers and Another v Commission for Conciliation, Mediation and
Arbitration and Others (2013) 34 ILJ 945 (LC) at para 31; Truworths Ltd v Commission for Conciliation,
18
conspectus of the record in casu establish es any basis for interference with
the award on these grounds.
[43] In particular, and having considered the record, I am of the view that the
applicants’ testimon ies leave much to be desired, insofar as it concerns the
issue of credibility. The second respondent was correct in concluding that a
significant amount of the testimony was elicited by leading questions. A
comparison of the testimony presented by each individual applicant leaves
one with the distinct impressions of a version having been decided on
beforehand, and then presented, leading to a justified conclusion as being
‘pre-rehearsed’, as the second respondent found to be the case. The
applicants also gave different evidence as to the location of the Hanau Street
food stall , where they say they on many occasions ordered food from . These
contradiction also applied where it came to what could be purchased fro m
such vendor . Several of the applicants were quite argumentative when
answering questions under cross examination and failed to make obvious
concessions. Overall considered, I would say that the credibility findings made
by the second respondent resort comfortably within the required parameters to
be unassailable on review.
[44] The lack of credibility of the applicants would of course be a formidable
obstacle to them succeeding in establishing an acceptable explanation . But
this is not where it stops. As the second respondent in my view not only
reasonably , but actually correctly appreciated in his award, there were a
number of factors that indicated that the version (explanation) sought to be
offered by the applicants could simply not hold water. I now set out these
factors.
[45] The first important tissue to consider is what the applicants did not explain.
They did not explain why they departed from the direct and main routes they
were required to follow, in attending at the various DECOs. None of the
DECOs were on such route s, and attending at the DECOs would involve a
departure from such pre -assigned and required routes, which is not
Mediation and Arbitration and Others (2009) 30 ILJ 677 (LC) at para 25; Moodley v Illovo Gledhow and
Others (2004) 25 ILJ 1462 (LC) at para 22; Kgoadi v Commission for Conciliation, Mediation and
Arbitration and Others [2014] JOL 31908 (LC) at paras 51 – 52.
19
permissible without permission. There was a suggestion from one witness
(who was not even a driver) that they could determine the routes for
themselves, but this was clearly false and contrary to the uncontested
evidence of how the routes are determined. They also could not explain why
they did not seek permission for stopping for these alleged personal errands at
the DECOs. They could not answer why they attended at the Market DECO
when they knew the Johannesburg Market was off limits, per se , without prior
permission. And finally, there was no explanation as to why the applic ants
would regularly stop at these DECOs outside the normal lunch period, when it
is expected for then to conduct their personal errands. It must be remembered
that the one common denominator for all these DECOs is the pallet yards.
[46] But it is especially the explanations for the stopping / idling at the Hanau
DECO that is concerning . It is clear that this was where the bulk of the
stopping / idling took place. There were some 300 instance s recorded of the
applicants stopping / idling at Hanau DECO. In addition, the tracking data
reflected that the applicants virtually always idled in the Hanau DECO,
which meant that they did not switch off their vehicles which would record
‘stop’ on the system , for which there is a specific report. In any event, the
vehicles would only idle for a short time in the DECO. It was also apparent
that a number of the applicants went to the Hanau DECO on more than one
occasion in a single day. How does the applicants then explain all of this?
The crux of the explanation was that the applicants were buying food, cold
drinks , airtime and other items from a particular individual vendor in the area.
The explanation was expanded on by way of the suggestion that this vendor
would often not have change for the applicants , and they then had to go back
for their change. The applicants also suggested that they had such a close
relationship of trust with this vendor that they would take food from her without
paying , and return later to pay her. And finally , it was explained that the
applicants would call the vendor and pre -order food , which they would then
collect .
[47] In dealing with the aforesaid explanation offered, t he second respondent was
critical of the fact that the applicants failed to call two critical witnesses, to
substantiate their explanation relating to their stopping / idling in the Hanau
DECO, and in my view , quite rightly so. Firstly, it was critical for the applicants
20
to have called the Hanau DECO vendor they alleged they did most of the
transactions with, especially considering that the applicants led testimony to
the effect that most of them had her number, so they could pre -order food from
her. It was suggested on behalf of th e applicants in the course of the
arbitration that the vendor would be called to testify . Secondly, it was
suggested in the opening address as well as on several occasions in the
course of the arbitration, including when cross examining the first respondent’s
witnesses , that the owner of the pallet yard at the Hanau DECO would be
called to testify that he bought no pallets f rom the applicants . But in the end,
these two witnesses were n ever called , with no explanation for this failure . As
the second respondent correctly found, this in all probability indicated that
these witnesses would not support the applicants’ version , and this must count
heavily against them . In ABSA Investment Management Services (Pty) Ltd v
Crowhurst33 the Court held:
‘... it is long established that the failure of a party to call an available witness
may found an adverse inference, the inference being that the witness will not
support - and may even damage - that party's case …’
[48] The second respondent also determined that the explanations offered by the
applicants lacked credibility, based on a number of considerations . He found
that it was highly improbable that a food vendor, running a small business,
would either almost never have change , or would have the kind of relationship
with the applicants to simply allow the m to take food and pay her later. He was
critical of the version that the applicants would call the vendor to pre -order
food, which was not likely for such a business . He further described it as
improbable that the vendor would have built a relationship with the applicants
based on trust, in terms of which she would allow them to take food, and
return later to pay her, or not give them change. Although the applicants
alleged to have pre -ordered food from the food vendor, they never disclosed
the telephone number they allegedly used to contact her to pre-order food.
And finally in this regard, the second respondent referred to the fact that there
33 (2006) 27 ILJ 107 (LAC) at para 14 . See also Zeffertt et al SA Law of Evidence (5 ed) at 128 -30;
General Food Industries Ltd v Food and Allied Workers Union (2004) 25 ILJ 1260 (LAC) at para 46;
Simelane and Others v Letamo Estate (2007) 28 ILJ 2053 (LC) at paras 22 and 23; United People’s
Union of SA on behalf of Khumalo v Maxiprest Tyres (Pty) Ltd (2009) 30 ILJ 1379 (LC) at para 29
21
was no acceptable explanation for the number of times the applicants were in
the Hanau DECO outside of their normal lunch hours , and in particular, would
go there shortly before closing time resulting in them arriving back at the first
respondent ’s premises shortly before or after closing time. All this reasoning
and conclusions of the second respondent make sense to me , and in my view,
would certainly qualify as findings that are reasonable based on a proper
consideration of the evidence.
[49] Where it came to the DECOs other than the Hanau DECO , the second
respondent found that no reliable evidence was presented to demonstrate that
the applicants had a bona fide reason for being there , and in particular, an
explanation for being in the Market DECO, considering the applicants were
expressly prohibited from going to the Johannesburg Market to buy food. A
consideration of the record leaves me convinced that there is no basis for
upsetting these findings of the second respondent.
[50] In the case of the Hanau DECO, the first respondent produced evidence that
the food stall the applicants contended they would often visit is not even
situate in the area of the DECO that had been set up. The food stall was on
the pavement, on the corner of Hanau and Gus Streets, being approximately
120 / 130 metres away from the pallet business in Hanau Street. The DECO
only covers 30 metres around such business . Considering that when the
applicants stopped / idle d in the Hanau DECO, they would be about 100
metres away from the food stall, and this begs the question that why the
applicants would stop / idle t heir vehicles so far away from the food stall, and
not right at the food stall. The point is that if they stopped / idled at the food
stall, it would not have triggered the DECO. But stopping / addling at the pallet
yard would trigger it. This equally detracts from the explanation that the
applicants stopped / idled in the Hanau DECO to buy food. And added to this,
there was no reason provided why the applicants could not have purchased
food from the vendors right outside the premises of the first respondent , or the
first respondent’s own canteen .
[51] Although the applicants did not dispute that the first respondent ran out of
pallets in 2016, for the first time in 30 years, they offered the explanation that
the pallet shortage could be caused by the third respondent disposing of
22
broken pallets , or customers not returning pallets . The first respondent, in
evidence, admitted that broken pallets or wood from broken pallets were
disposed of by the first respondent from time to time. The first respondent also
admitted that customers may sometimes not return pallets. But the point the
first respondent made is that this modus operandae had always been the case
throughout the 30 years, and nonetheless, the first respondent never ran out
of pallets. And added to this, the first respondent p resented evidence that the
applicants were not returning pallets to the first respondent . This put paid to
the explanation the applicants sought to offer in this regard, as nothing
changed in the first respondent as to how pallets were handled by it , and there
was always a sufficient ebb and flow of pallets to maintain pallet stock .
However, and suddenly, the first respondent ran out of pallets. On the
probabilities , as the second respondent reasonably appreciated, the most
plausible and logical inference would be that this sudden change came about
as a result of the employees (including the applicants) finding out that they
could sell the pallets for their own benefit.
[52] Mr Frahm -Arp, representing the applicants, made specific reference to the
case of one of the applicants, being Themba Sibiya (Sibiya). A pertinent
ground of review was raised in this regard, to the effect that Sibiya drove a
Toyota Tazz vehicle when making deliver ies, which was too small to carry a
pallet. It was also contended that there was no evidence of Sibiya’s vehicle
being found to have been in a DECO. As such, it was contended that he was
not involved in any misconduct, and the second respondent com mitted a
reviewable irregularity in so concluding.
[53] I do not consider there to be any substance in this ground of review . What is
true is that Sibiya drove a Tazz to conduct deliveries. This is a hatchback
motor vehicle. The first respondent’s fleet supervisor, Trevor Janse Van
Rensburg (Janse Van Rensburg) testified that the smaller empty pallets can fit
into the Tazz and then be taken to be sold at a pallet yard. Janse Van
Rensburg did concede that a full pallet could not fit into the Tazz , however he
explained : ‘… he can always take a pallet from a custom er and put it in the back
of the Tazz and then go and sell it … ’, as such a pallet would be empty. A
consideration of Sibiya’s own testimony reveals that he conceded that a small
23
pallet would fit in the Tazz . This disposes of the point that the vehicle used by
Sibiya meant he could not sell pallets.
[54] Next, it was never the case of Sibiya , either in the disciplinary hearing, or in
the arbitration, that he did not attend at the Hanau DECO. The explanation he
actually offered was that he did not know he was not allowed to be there , and
he could not recall why he was there. He added that he normally buys food
there, which is why he could have been there. He added that it would be
convenient for him, as he makes deliveries to customers in the gener al vicinity.
So, all considered, this is exactly the same kind of explanation offered by all
the other applicants, and must therefore meet the same fate. The attempt to
somehow distinguish Sibiya is unfounded, and this ground of review has no
substance.
[55] All th e above considered, it is clear to me that the explan ations the applicants
sought to offer for what is undeniably misconduct on their part by stopping /
idling in the DECO s, are improbable, contrived and lacking in credibility. These
explanations were rightly rejected by the second respondent and there is no
reason for this Court to interfere with such findings. It must then follow that the
most plausible and logical inference to be drawn from all of the facts , and the
acceptable evidence , must be that the applicants committed the misconduct of
theft, in selling the pallets at various pallet yards . Further , and considering that
there was in essence no explanation for the applicants deviating from the
prescribed routes they had to follow, they committed this misconduct as well.
The second respondent’s conclusion that the aforesaid was th e case is
unassailable on review.
[56] Even though, as a result of the pre -arbitration limitation of issues discussed
above which made the fairness of the sanction of dismissal to be out of
contention, I will nonetheless shortly deal with it, as it was raised as a ground
of review. It is undeniable that the misconduct in this case concern s an offence
of dishonesty . The fact of the matter is that as a general proposition,
dishonesty is the kind of misconduct that justifies the sanction of dismissal as
24
an appropriate and fair sanction.34 In SA Society of Bank Officials and Another
v Standard Bank of SA and Others35 it was held as follows:
‘Dishonesty as an aspect of misconduct is a generic term embracing all forms
of conduct involving deception. This court in Nedcor Bank Ltd v Frank &
others defined dishonesty as a lack of integrity or straightforwardness and, in
particular, a willingness to steal, cheat, lie or act fraudulently. Deceitfulness
can manifest itself in various forms, which include providing false information,
non-disclosure of information, pilfering, theft and fraud. The fiduciary duty
owed by an employee to the employer generally renders any dishonest
conduct a material breach of the employment relationship, thereby justifying
summary dismissal. … ’
[57] There can thus be little doubt that the applicants ’ misconduct was very
serious, and they in effect acted in direct contravention of their duty of good
faith towards the first respondent as their employer . The deviation from their
prescribed routes coupled with the sale of the pallets all form part of the same
dishonesty misconduct package, so to speak. There is little doubt that the
applicants sought to escape responsibility based on contrived and false
defence s and explanation s. This means, as appositely described in Malaka v
General Public Service Sectoral Bargaining Council and Others36, the
follow ing:
‘The evidence reveals that the appellant’s dishonest conduct rendered
continued employment intolerable and incapable of restitution. Conduct, such
as we have here, is incompatible with the trust and confidence necessary for
the continuation of the employment relationship. The Department of Justice
was entitled, in the circumstances, to end the employment relationship …’
[58] In general terms, what the second respondent needed to consider was
articulated in Vodacom (Pty) Ltd v Byrne NO and Others37 as: ‘… the
34 Toyota SA Motors (Pty) Ltd v Radebe and Others (2000) 21 ILJ 340 (LAC) at para 15; Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC) at paras 35 and 37;
Absa Bank Ltd v Naidu and Others (2015) 36 ILJ 602 (LAC) at para 52.
35 (2022) 43 ILJ 1794 (LAC) at para 17. See also Continental Oil Mills (Pty) Ltd v Singh NO and Others
(2013) 34 ILJ 2573 (LC) 29 – 34; Consani Engineering (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others (2004) 25 ILJ 1707 (LC) at para 23.
36 (2020) 41 ILJ 2783 (LAC) at para 34.
37 (2012) 33 ILJ 2705 (LC) at para 9.
25
determination of the fairness of a dismissal required a commissioner to form a
value judgment, one constrained by the fact that fairness requires the
commissioner to have regard to the interests of both the employer and the
worker and to achieve a balanced and equitable assessment of the fairness of
the sanction … ’. I have little doubt that the second respondent discharged this
obligation on him. He clearly considered the serious nature of the misconduct,
the fact that it involved dishonesty, and that the trust relationship had been
destroyed. I may add that instead of showing contrition, the applicants instead
relied on false justification. In the end, it was appropriate, in the context of risk
management by the first respondent, to bring the employment relationship with
the applicants to an end. As said in De Beers Consolidated Mines Ltd v
Commission for Conciliation , Mediation and Arbitration and Others38: ‘… A
dismissal is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational response to risk
management in the particular enterprise. … ’. Therefore, the conclusion by the
second respondent that dismissal was a fair sanction re sorts well within the
bands of what may considered to be a reasonable outcome.
[59] I thus conclude that the second respondent’s finding that the applicants ’
dismissal s were substantively fair is in conformity with the facts, and the
applicable legal provisions. It is a finding that resorts well within the
parameters of what may be considered to be a reasonable outcome, and is
unassai lable on review.
Conclusion
[60] Therefore, based on all the reasons set out above, I conclude that the second
respondent’s arbitration award is not reviewable. I am satisfied that the second
respondent ’s findings of facts are properly supported by the evidence before
him. His views concerning the applicant s and their conduct are justified and
reasonable . His finding that dismissal was a fair sanction is substantiated by
the facts and legal principle. Insofar as the issue of the outcome arrived at by
the second respondent is considered on the basis of it being reasonable or
unreasonable, there is in my view no doubt that it would comfortably resort
38 (2000) 21 ILJ 1051 (LAC) at para 22.
26
within the bands of reasonableness as required, in order to be sustainable on
review. The applicants ’ review application thus falls to be dismissed.
Costs
[61] This then leaves only the issue of costs. In terms of the provisions of section
162(1) of the LRA, I have a wide discretion where it comes to the issue of
costs. I am aware of what the Constitutional Court said with regard to costs in
employment disputes as expressed in Zungu v Premier of the Province of
Kwa-Zulu Natal and Others39. In exercising this judicial discretion, the same
Court recently re -affirmed the principle set in Zungu supra and stated that
‘when making an adverse costs order in a labour matter, a presiding officer is
required to consider the principle of fairness and have due regard to the
conduct of the parties. ’40
[62] I do not believe that the applicant s acted in an unreasonable and frivolous
manner in pursuing this case. I also consider that the case was prosecuted in
a proper manner by the applicant s, and they were compete ntly assisted by Mr
Frahm -Arp on a pro -bono basis, which must always be lauded . These factors,
coupled with an overall consideration of fairness to both parties, leaves me
convinced that it would be appropriate and fair to make no order as to costs.
[63] In the premises, the following order is made :
Order
1. The applicant s’ review application is dismissed .
2. There is no order as to costs.
_____________________
S. Snyman
Acting Judge of the Labour Court of South Africa
39 (2018) 39 ILJ 523 (CC) at para 25.
40 Long v South African Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC) at para 30.
27
Appearances:
For the Applicant s: Mr L Frahm -Arp of Fasken Attorneys
For the Third Respondent: Advocate P Moll
Instructed by: David Shapiro & Associates Attorneys