IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR849/22
In the matter between:
SYLVANIA METALS (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First R espondent
PIETER GREYLING N.O. Second Respondent
RONNY MOGAPI Third Respondent
Heard: 7 Novem ber 2024
Delivered: 24 February 2025
This judgment was handed down electronically by emailing a copy to the parties. The 24
th of February 2025 is deemed to be the date of delivery of this
judgment.
JUDGMENT
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ITZKIN , AJ
Introduction
[1] The applicant, Sylvania, seeks an order reviewing an arbitration award and
setting it aside, as well as an order substituting the award with a decision that the
dismissal of the third respondent, Mr Mogapi, was fair. In the alternative, it seeks the remittal of the matter to the CCMA.
[2] Mr Mogapi was employed by Sylvania as a community liaison officer. He was
dismissed for allegedly attem pting to solicit a bribe of R50 000 from Mal Mowers, a
contractor to Sylvania.
[3] In the award, the Commissioner found that Mr Mogapi's dismissal was
substantively unfair . Sylvania was ordered to reinstate him retrospectively.
[4] The review application was opposed (by way of an answering affidavit and
heads of argument delivered on behalf of Mr Mogapi) .
[5] In a somewhat unusual turn of events, at the hearing of the review application ,
Mr Mogapi ’s counsel conveyed that Mr Mogapi no longer wished to be reinstated.
Consequently, his stance was that the arbitration award ought to be reviewed and
set aside, and should be substituted with an order of 12 months’ compensation.
[6] Does the fact that both parties now seek an order setting the award aside
mean that it ought , automatically or necessarily, to be set aside?
[7] The answer to this question is “no” . Mr Mogapi did not concede that the award
is reviewable on its merits , and even if he did, it would remain necessary for the
court to be s atisfied that this is the case.
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[8] This is so because the arbitration award consti tutes administrative action. In
keeping with this, Rule 47(4) of the Labour Court Rules1 provides that “the court may
not grant any order which has the effect of reviewing and setting aside any
administrative act, award or ruling, only on the basis of the consent of the parties” .
Analysis
[9] On the evidence presented at the arbitration, it was uncontentious that Mr
Mogapi encountered Mr Maluleke, a director of Mal Mowers , at Sylvania’s plant on
24 March 2021.
[10] The key controversy pertains to whether Mr Mogapi attempted to solicit a
bribe from Mr Maluleke during their encounter .
[11] Mr Malukele testified that this occurred. In particular, he testified that Mr
Mogapi approached him and informed him of a pending paving contract (for the
walkway at Sylvania’s premises) and that he would ensure that Mal Mowers gets the
contract against payment to Mr Mogapi of R50 000.00. Mr Maluleke later reported
the incident to Mr Eben Louw, Sylvania’s Plant Manager.
[12] Mr Gomane, an employee of Mal Mowers, testified that he had been present
on 24 March 2021 and had overheard the interaction, which he described in similar
terms to Mr Maluleke.
[13] Mr Louw also tes tified. He confirm ed that he received a report from Mr
Maluleke regarding the alleged solicitation of the bribe and that he was aware of the possible tender that may be issued for a paving contract.
[14] Mr Mogapi denied that he had solicited a bribe from Mr Maluleke. He testified
that the paving project was not a community project, that he had no access to the planning of operational issues, and that he had no influence over the project.
1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
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[15] In the award, the Commissioner referred to the distinction between the
categories of tenders issued, and to Mr Mogapi’s lack of involvement in engineering
and operational issues (which included the paving project) .
[16] He also referred to the fact that the paving project was not ultimately put out
to tender and was ‘ stillborn ’, as a result of which (according to the Commissioner),
Mr Mogapi would not have known the value of the tender and a price to attach to a bribe. He also stated that to solicit a bribe, “there must be certainty that the tender
will be put out and that he will be in a position to manipulate and influence the tender” , which he found not to be the case.
[17] He also found that it was unlikely that Mr Mogapi would attempt to solicit a
bribe in the presence of unknown persons, and that the version of Mr Mogapi was more probable than that advanced by Mr Maluleke and Mr Gomane.
[18] During oral argument, Mr Van As (on behalf of Sylvania) focused his
submissions on two points.
[19] The first was that Mr Maluleke could only conceivably have known about the
paving contract if it was discussed with him, and it was argued that this was a strong
indicator that Mr Maluleke’s version was true (i.e. that the paving contract was
mentioned by Mr Mogapi, who sought to solicit a bribe).
[20] The second was that there was no evidence of any motive on the part of Mr
Maluleke to falsely accuse Mr Mogapi of attempting to solicit a bribe.
[21] The Commissioner’s reasoning in the award appears problematic in certain
respects.
[22] Although Mr Mogapi’s role (and portfolio) was a relevant consideration, the
fact that engineering and operational issues were outside of his portfolio did not
necessarily mean that the outcome thereof could not be illicitly influenced (for
instance, though the assistance of other complicit role-players) .
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[23] If the project had directly fallen within Mr Mogapi’s portfolio or if he otherwise
had a direct influence over the tender award, this would have been a factor strongly
weighing the probabilities in favour of a finding that the bribe was solicited. However, the fact that Mr Mogapi holds a different portfolio does not (in and of itself) exclude the possibility that he sought to solicit the bribe.
[24] The same applies to the fact that the paving project was not ultimately put out
to tender (for a definitive quantified value). It does not follow from this that a bribe
could not be solicited. A bribe amount is not necessarily based on an arithmetic
calculation using the total contract value. In a tender for a significant project, there
would be a general sense of the market value thereof, and it is conceivable that a
bribe may be sought for a project in the pipeline without a definitive price being
finalised as yet .
[25] The fact that Mr Gomane was present when the bribe was allegedly solicited
also does not exclude the possibility that the bribe was solicited. If a bribe was
solicited from Mal Mowers, it is conceivable that it could have been solicited in the
presence of two of its personnel (Mr Malukele and Mr Gomane) , and that one of
them (Mr Gomane) overheard the discussion with Mr Maluleke.
[26] In my assessment, t he fact that Mr Maluleke was aware of the existence of
the paving project, which was not public knowledge, is a weighty factor in evaluating the probabilities. It also conceivable that Mr Mogapi was likely aware of the project
despite it not falling within his portfolio. This is so because the project does not
appear to have been a secret/confidential project internally (i.e. at Sylvania), and it is
likely that there would have been an awareness of its existence among internal staff.
[27] During Mr Mogapi’s cross -examination of Mr Maluleke (and during Mr
Mogapi’s evidence) , he did not advance a version to the effect that Mr Maluleke had
any motive to falsely implicate him. The absence of evidence of a motive or conspiracy to falsely implicate Mr Mogapi is a significant factor.
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[28] Concerning the issue of motive, the Labour Appeal Court (LAC) held as
follows in Gaga v Anglo Platinum Ltd and others (Gaga ):2
‘[36] The complainant had no discernible reason to be dishonest about the
pattern of behaviour and her discomfort. Both she and the appellant confirmed
that in all other respects they had a good working relationship. At the time she testified before the CCMA, the complainant had already re- located and was
unlikely to have anything further to do with either party in the future. For the
court to accept the appellant’s total denials as truthful, we would be required
to believe that the complainant and Ms Mogaki, with unknown motives, had
conspired to falsely accuse the appellant of serious misconduct. Neither
witness displayed bias against the appellant of that order .’ (Own emphasis )
[29] It is also relevant that Mr Gomane corroborated Mr Maluleke’s evidence.
[30] In Gaga, the LAC held as follows:
‘[35] The appellant’s bare denials of the allegations against him are
unconvincing in the face of the complainant’s evidence, its partial
corroboration by the other witnesses and the manner and circumstances in
which the complaint arose. The probabilities overwhelmingly support a finding that the complainant was the more credible witness .’ (Own emphasis.)
[31] Importantly, during Mr Mogapi’s cross -examination of Mr Gomane, the
following exchange occurred:
‘MR MOGAPI: Are you sure that I was asking for R50 000 or I was
saying the tender is worth R50 000? MR GOMANE: He must give R50 000, I was there.’
[32] The proposition advanced by Mr Mogapi during this exchange, appears to
include an acknowledgement that he mentioned t he tender and the amount of R50
000 to Mr Maluleke (albeit that he suggested that it was the tender value that he
mentioned, and not the bribe amount) . This further weighs the probabilities in favour
of a finding that he indeed solicited the bribe.
2 [2012] 3 BLLR 285 (LAC) ; (2012) 33 ILJ 329 (LAC) at para 36.
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[33] Taking these factors into account, in my assessment, the probabilities strongly
weigh in favour of a finding that a bribe was solicited by Mr Mogapi (and thus that he
was guilty of the alleged misconduct). In these circumstances, the Commissioner’s
finding to the contrary is unsustainable on an overall consideration of the evidence.
[34] Given the seriousness of the alleged misconduct (which entailed an element
of dishonesty), dismissal would be the only appropriate sanction in the event that Mr
Mogapi was guilty . This was correctly accepted by the Commissioner in the award.
[35] In light of the above, in my view, the Commissioner’s decision fell outside a
band of reasonable decisions, from which it follows that the award falls to be reviewed and set aside.
[36] Given that the court has the benefit of the record, and given that a remittal of
the matter to the CCMA would be inimical to the imperative of expedition in labour
matters, the appropriate course of action would be to substitute the award with a finding that the dismissal of Mr Mogapi was substantively fair.
[37] Regarding costs, it would not be appropriate to saddle Mr Mogapi with a costs
order . Aside from the fact that he (through his counsel) adopted the position ( in oral
argument ) that the award should be reviewed and set aside, his original opposition to
the review application occurred in circumstances where he sought to defend an award in his favour.
[38] In the result, the following order is made:
Order
1. The arbitration award of the second respondent under CCMA case
number NWRB2433 -21 dated 27 March 2022 is reviewed and set aside and is
substituted with an order that the dismissal of the third respondent by the applicant was substantively fair.
2. There is no order as to costs.
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R. Itzkin
Acting Judge of the Labour Court of South Africa
Appearances
For the A pplicant: M.J. Van As
Instructed by: Cliffe Dekker Hofmeyr
For the Third Respondent: N. Ali
Instructed by: Makuta Attorneys Inc