THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1837/20
In the matter between:
MOSA IRRIS SEPHEKA Applicant
and
FAITH GUMEDE N.O. First Respondent
GENERAL PUBLIC SECTORAL BARGAINING
COUNCIL Second Respondent
DEPARTMENT OF HOME AFFAIRS (SASOLBURG) Third Respondent
Heard: 04 July 2024
Delivered: 19 March 2025
JUDGMENT
MALULEKE, AJ
2
Introduction
[1] This is an application to review an a rbitration award under case number:
GPBC2481 -14 in which the Arbitrator found that the Applicant’s dismissal was
substantively fair and the dismissal was uph eld.
[2] The Applicant require this C ourt to review and set aside the a rbitration award
issued by the Arbitrator on 26 August 2020, substituting the a rbitration award with an
order of this C ourt declaring the dismissal of the Applicant to be substantively unfair,
alternatively directing that the matter to be referred back to the Second Respondent
for a hearing de novo before a commissioner other than the First Respondent and
further that the Applicant require this C ourt to condone the late filing of the review
application.
Background facts
[3] The Applicant was employed by the Third Respondent on January 2004 as an
Administration Clerk. In the year 2005, the Applicant was then promoted to the position of Senior Clerk and again in the year 2011 , she was then promoted to the
position of Chief Administration Clerk. On 17 July 2014, the Third Respondent
preferred four charges of misconduct against the Applicant concerning an incide nt
that occurred on 28 and 29 February 2012 and 19 May 2012, respectiv ely. A
disciplinary hearing was then constituted at which the chairperson found the
Applicant guilty of three charges of misconduct and subsequently recommended a sanction of dismissal.
[4] It is perhaps of crucial importance to highlight the charges with which the
Applicant was found guilty , which led to her dismissal , and these charges are
outlined as follows:
‘Allegation 1
it is alleged that you committed an act of gross dishonesty in that on or about 19 of May 2012 near or at Department of Home Affairs , Sasolburg Local
3
Office, whilst on d uty you processed the applications of passport s for Mr TP
Speke and Mrs MI Sepheka without following correct procedures.’
‘Allegation 2
it is alleged that you committed an act of gross dishonesty in that on or about
19 of May 2012 near or at Department of Home Affairs , Sasolburg Local
Office, whilst on duty you failed to collect the amount of appr oximately
R800.00 for applications of passport belonging to Mr TP Sepheka and Mr s MI
Sepheka.’
‘Allegation 4
it is alleged that you committed an act of gross dishonesty in that on or about 28 and 29 of February 2012 at or near Department of Home Affairs, Sasolburg Local Office, you closed the cash register and did not hand over the collected revenue to Finance Section for banking, as a result the Department suffered a loss to the amount of approximately R4 400.00 for passport applications.’
The award
[5] The First Respondent concluded that the Applicant’s dismissal was
substantively fair. The core of her reasoning was the following:
‘Allegation 1
52. The Respondent alleges that the Applicant processed the passport
applications on 19 of May 2012 without following the correct procedure. The clause 2.13 of the Passport Manual Guide, states that “Regulation 3(3)(g) provides for the issuing of a second passport holder in the circumstances as stipulated. Applications to hold a second passport must be considered at the
level of at least Senior Administrative Officer. “It was not disputed that the
Senior Administrative Officer was not on duty on this date. However, the
Applicant argued that they sought and granted approval from this official on 15 of May 2012 to this official. There was no evidence led to show that this
official was not at work on this date.
53. However, the Respondent’s evidence suggest that the physical
application forms were not completed, as they were not found at Finance an d
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Archives Sections. Mbola and the Applicant corroborated each other in that
they were duly completed on 15 of May 2012. However, the Applicant
conceded that the details on the application forms are captured and scanned
to the system. This implies that even if the physical application form cannot be located but the scanned copy can be retrieved from the system. However, it is not clear, as to why the Applicant did not produce this existence to
substantiate her version.
54. The Respondent’s witnesses also indicated that the Applicant did not
update the system to show that she collected these passports. The Applicant argued that the system was offline on the day of collection and the list was compiled and sent to the Head Office in this regard. This appears, as if it is
duty of the Head Office officials to update the system to show the collection
dates. However, the Applicant’s evidence would have carried more weight if
she had furnished such a proof or if this version was corroborated by any other evidence.
Allegation 2
55. The Respondent alleges that the Applicant failed to collect the amount
of approximately R800.00 for her and husband ’s passports on 19 of May
2012. The Respondent’s witnesses corroborated each other in that the copies
should have been triplicated, also to be kept by the Applicant and her husband, the other two copies to be handed over t o Finance and Archives
Section. However, she argued that she did not collect the money because she
was not working as a cashier on this day. It is probable that she was not the
cashier on this day, however they should have been a proof to show that such payment particularly, as involves her and spouse application.
56. I noted the Applicant’s version which was corroborated by Mbola and
her spouse that the money was paid on 15 of May 2012. However, the Applicant’s spouse contradicted himself regarding who assisted him to make payment. Under cross -examination, he stated that he paid to the cashiers as
opposed to his initial statement that it was Du Plessis on 15 of May 2012. It is
probable that he had forgotten, as these events occurred in approximately
eight years ago. However, the proof of payment should have been produced
at the initial stages of these investigation regardless of the date it was made.
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Allegation 4
57. The Respondent alleges that the Applicant closed the cash register
and she did not hand over the collected revenue at Finance Section for
banking on 28 and 29 of February 2012, as a result they suffered a loss to the amount of approximately R4 400.00 for passport applications. Majoro argued
that on 29 of February 2012, the Applicant assisted LL Mashishi, C Mchavi, CP Henery and J Machakata but Finance Section did not receive payments
for these applications. The Applicant conceded that she assisted above
client s except LL Mashishi with the applications for the passports and finger
prints.
58. Du Plessis argued that on 28 and 29 of February 2012, there were 24
receipts however the applications with reference number: 7973, 7977, 7978,
7980, 7982, 7985, 7987, 7990, 7992, 7994 were found in archives. The Applicant argued that the Respondent did not produce any receipts as evidence to validate her case in these proceedings and Finance Section would have enquired the very next day if money was handed over to them.
The Applicant’s version is probable that this claim was not probable supported
by any other evidence.
59. Majoro argued that cashiers were exonerated of any wrongdoing, as
they confirmed that they handed the money to the Applicant. Further stated that it was also discovered that the system was closing more than once, as they had two shifts. This evidence also would have carried more weight if it
was corroborated by any other evidence.
60. Majoro further argued that cashiers and the Applicant were expected to
co-signed the cash register book which could not be found for verification.
Further av erred that the cashiers confirmed that they have enclosed their
cash register in the presence of their superv isor during the investigation. I
noted that it was corroborated that the cash book could not be located at the office. However, it is not clear, as why the Respondent found the cashiers more credible than the Applicant. Therefore, this evidence would have carried
more weight if they were called as witnesses or if the investigation report was tendered as evidence in these proceedings. ’
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[6] From the abovementioned, it is apparent that the First Respondent has failed
to properly analyze the evidence before her for the following reasons:
6.1. it is commonly known principle that arbitration proceedings are heard
de novo, which means that when a dispute goes to arbitration, it will be heard
completely afresh, with all evidence presented anew, as if the initial hearing
never happened.
6.2 Based on the abovementioned principle, the e mployer , therefore, bears
the onus to demonstrate that the dismissal was procedurally and subs tantively
fair. That much said, it is ev ident from the arbitration award that the Applicant
and her witness , Mbola, corroborated each other on allegation 1, after having
testified that the physical application forms were completed, although they
could not be located as they were not found at Finance and Archives Section.
In actual fact , it is the full responsibility of the Third Respondent to ensure that
at all material times , records are kept safe, and in this instance, it has failed to
do so. The Applicant , therefore, cannot be expected to adduce such evidence
eight years later when invited to arbitration proceedings .
6.3 For purposes of Allegation 2, the First Respondent on paragraphs 55
and 56 of the Arbitration Award emphasizes the f act that the Applicant’s
husband ought to have produced proof that payment in the amount of
R800.00 was paid for the passport applications. That much said, it is common cause that the incident in question occurred eight years ago, and the
customer cannot be expected to keep a payment receipt for passport applications which have already been approved and received. Instead, the
Third Respondent , being the custodian of the records, ought to be in
possession of such documents. In addition to the above, the Third
Respondent ought to have ensured that issues such as payments are verified the same day or at least the following day, you do not have to wait for two years unless it intended to conduct an investigation and in this instance, there
has not been any investigation report presented by the Third Respondent. 6.4. As for Allegation 4, it has become apparent that the records have been
misplaced at the Third Respondent’s offices, therefore crucial documents
such as receipts and cash books, could not located and this conduct cannot
solely be attributed to the Applicant , and as stated above, it is the Third
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Respondent’s full responsibility to ensure that it has proper control channels
and mechanism s to keep records safe and in this instance, it has been found
wanting. Although the First Respondent in Allegation 4 questioned the
credibility of the testimony of the Third Respondent’s witnesses, it is unclear on what grounds the Applicant was in the end still found guilty on the charge.
Review test and e valuation
[7] The Sidumo test remains the landmark judgment in review applications,
therefore, this Court is obliged to consider the reasonableness test as postulated by
the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd
and Others
1. The question is , therefore, whether the decision arrived at by the
commissioner is one that a reasonable decision- maker could reach, having regard to
the material properly before them.
[8] The Labour Appeal Court ( LAC) in Head of the Department of Education v
Mofokeng and Others
2 held that :
‘irregularities or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide a compelling indication that
the arbitrator misconceived the inquir y. In the final analysis, it will depend on
the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesis be material to the
determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. ’
[9] It is of significance to state that the incidents with which the Applicant is
charged took place during the year 2012, and she was only charged with misconduct
1 [2007] ZACC 22; [2007] 12 BLLR 1097 (CC).
2 [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) at para 33.
8
two years later. The question is , therefore , why did it take so long for the Third
Respondent to charge the Applicant of the misconduct ? Justice delayed is justice
denied is a known common law princ iple which aims to prevent undue delays in
litigation that undermine the fundamental rights of individuals and impede the
administration of justice. It is common cause in the present matter that the Third
Respondent has taken at least two years to institute disciplinary proceedings for the
misconduct that occurred in the year 2012, and there has not been a single shr ed of
evidence on the reasons for such delays.
[10] In the reportable Labour Court judgment of Moroenyane v Station
Commander of the South African Police Services – Vanderbijlpark
3, the Labour
Court laid down the following test regarding delay:
‘[38] In deciding whether a delay could possibly serve to render the
institution or continuation of disciplinary proceedings unreasonable and unfair, guidance in be found in referring to the issue of a stay in criminal proceedings due to an undue delay in such proceedings. In Bothma v Els and Others
4 the
Court considered the question of a permanent stay of a private prosecution due to a delay in the bringing of the prosecution. Sachs J said:
5
“…. the delay in the present matter must be evaluated not as the foundation of
a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably and irremediably taint the overall substantive fairness of the trial if it were to commence.”
In then considering whether a delay would taint overall substantive fairness, Sachs J referred with approval to the following dictum from the judgment in
Sanderson v Attorney -General, Eastern Cape
6:
“…. The critical question is how we determine whether a particular lapse of
time is reasonable. The seminal answer in Barker v Wingo is that there is a
‘balancing test ’ in which the conduct of both the prosecution and the accused
are weighed and the following considerations examined: the length of the
3 (J1672/2016) [2016] ZALCJHB 330 (26 August 2016).
4 2010 (2) SA 622 (CC).
5 Id at para 35.
6 1998 (2) SA 38 (CC) at para 25.
9
delay; the reason the government assigns to justify the delay; the accused’s
assertion of his right to a speedy trial ; and prejudice to the accused.”
Sachs J then added the following:7
“A word of caution: these four factors should not be dealt with as though they
constitute a definitive check list. A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis . ....”
The learned judge finally concluded:
8
“To the list … . must be added a further factor, one not considered by the High
Court . I refer to the nature of the offence. .… Without placing the specific
nature of the offence in the scales, the balancing exercise is itself
unbalanced.”
[39] If one applies these considerations in Sanderson to delayed disciplinary
proceedings, what has to be considered, in deciding whether the delay is unreasonable to the extent of bringing about the final termination of the proceedings,
is the length of the delay, the explanation justifying the delay being inexcusable or
not, the assertion of a right to a speedy hearing by the employee, the issue of
prejudice, and finally the nature of the alleged offence. This approach was indeed adopted by the SCA in Cassimjee v Minister of Finance
9 where the Court said:
“There are no hard- and-fast rules as to the ma nner in which the discretion to
dismiss an action for want of prosecution is to be exercised. But the following requirements have been recognized. First, there should be a delay in the prosecution of the action; second, the delay must be inexcusable; and, third, the defendant must be seriously prejudiced thereby. Ultimately, the enquiry
will involve a close and careful examination of all the relevant circumstances, including the period of the delay, the reas ons therefor and the prejudice, i f
any, caused to the defendant. There may be instances in which the delay is
relatively slight but serious prejudice is caused to the defendant, and in other cases the delay may be inordinate but prejudice to the defendant is slight. The
court should also have regard to the reasons, if any, for the defendant’s
7 Id at para 37.
8 Id at para 38.
9 2014 (3) SA 198 SCA at para 11.
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inactivity and failure to avail itself of remedies which it might reasonably have
been expected to use in order to bring the action expeditiously to trial.”
[40] In the employment law context, the approach in dealing with whether
disciplinary proceedings should be ended on the basis of a delay is firmly founded in considerations of fairness. The former Industrial Court dealt with a delay in the
conduct of a disciplinary hearing in the judgment of Union of Pretoria Municipal
Workers and Another v Stadsraad van Pretoria
10 and said:
“Fairness, however, dictates that disciplinary steps must be taken promptly.
Both the staff regulations and the recognition agreement echo the need for
prompt action as all time- limits must be adhered to strictly and time- limits are
provided for in paras 5.2.5 and 5.3.1. In Mahlangu v CIM Deltak (1986) 7 ILJ
346 (IC) one of the guide- lines for a fair hearing was a right to have the
hearing take place ‘timeously’. In Brassey & others The New Labour Law it is
said that the enquiry must be held promptly. Article 10 of ILO
Recommendation 166 suggests that:
‘The employer should be deemed to have waived his right to terminate the
employment of a worker for misconduct if he has failed to do so within a reasonable period of time after he has knowledge of the misconduct. ’”
[41] The current Labour Court followed suit, in the judgments of Department of
Public Works, Roads and Transport v Motsoso and Others
11 and Rope Constructions
Co (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others12
where the Labour Court referred with approval to the judgment in Stadsraad van
Pretoria . I cannot find any fault with such an approach, in principle, provided that it is
always subject to the kind of considerations as set out in the judgments of Sanderson and Cassimjee .
[42] In summary, I do not believe that what may be considered to be a lengthy
delay in the institution, and then conclusion, of disciplinary proceedings, can per se lead to a conclusion of unreasonableness and unfairness. A disciplinary hearing
10 (1992) 13 ILJ 1563 (IC) at 1659A -C.
11 [2005] 10 BLLR 957 (LC).
12 (2002) 23 ILJ 157 (LC) at paras 4 and 13.
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cannot be directed to be aborted just because there is a long delay. More is needed.
What must always be considered, in deciding whether to finish off disciplinary
proceedings because of an undue delay, is the following:
42.1 The delay has to be unreasonable. In this context, firstly, the le ngth of
the delay is important. The longer the delay, the more likely it is that it would
be unreasonable.
42.2 The explanation for the delay must be considered. In this respect, the
employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable w ould normally lead to a conclusion of
unreasonableness.
42.3 It must also be considered whether the employee has taken steps in
the course of the process to assert his or her right to a speedy process. In
other words, it would be a factor for consideration if the employee himself or herself stood by and did nothing.
42.4 Did the delay cause material prejudice to the employee? Establishing
the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.
42.5 The nature of the alleged offence must be taken into account. The
offence may be such that there is a particular imperative to have it decided on the merits. This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious. What it means is that the nature of the offence
could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable.
42.6 All the above considerations must be applied, not individually, but
holistically.
[43] In addition to what I have dealt with above, there may well be, depending on
circumstances, another basis where an undue delay can serve to scupper the institution or continuation of disciplinary proceedings. This is founded, as said in
Stadsraad van Pretoria, on the principle of waiver. This kind of case would be an
assertion that because of the delay, it has to be inferred that that employer has
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waived its right to take disciplinary action against the employee. To succeed with
such a case, the employee would have the duty to satisfy all the legal r equirements
relating to waiver. In National Union of Metalworkers of SA v Intervalve (Pty) Ltd and
Others13 the Court held:
‘…. Waiver is the legal act of abandoning a right on which one is otherwise
entitled to rely. It is not easily inferred or established. The onus to prove it lies with the party asserting waiver. That party is required to establish that the
right-holder, with full knowledge of the right, decided to abandon it.
So waiver depends on the intention of the right -holder. That can be proved
either through express actions or by conduct plainly inconsistent with an
intention to enforce the right . ….’
[44] Waiver has a further nuance. In Greathead v SA Commercial Catering and
Allied Workers Union
14 the Court said that: ‘…. The appellant could not have
considered abandoning his rights if he (and his legal advisers) had not appreciated it’. This same approach was followed by the Labour Court in EHCWAWU Obo
Tshabalala and Others v M & P Bodies CC
15 where it was held that: ‘ It is also trite
that before a waiver can be upheld, it must be demonstrated that the person who is alleged to have waived his or her right knew that he or she was waiving her right….’. Finally in this respect, it cannot just be assumed there was a possible waiver, considering the following dictum in Ullman Bros Ltd v Kroonstad Produce Co.
16 ‘…A
waiver is not presumed, but must be clearly established by the party who relies on it .
.…’. As to what constitutes ‘clear establishment’, the Court in Victoria Falls and
Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd17 referred with
approval to the following extract from the judgment of De Villiers CJ, in Smith v Momberg (12 SC 295):
‘Under certain circumstances a renunciation of rights may be implied from the conduct of the person entitled to them, but his conduct must be such as to
leave no reasonable doubt in the mind that he not only knew what his rights
were, but intended to surrender them.’
13 (2015) 36 ILJ 363 (CC) at paras 60 – 61.
14 (2001) 22 ILJ 595 (SCA) at para 17.
15 (1999) 20 ILJ 1787 (LC) at para 26.
16 1923 AD 449 at 454.
17 1915 ad 1.
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[11] Having regard to the above- mentioned legal principles , it is clear that the First
Respondent did not put much weight on the delay by the Third Respondent in instituting the disciplinary hearing proceedings against the Applicant which, in my
view, is a serious error that cannot be ignored by this C ourt. That much said; It is
common cause that the Third Respondent has delayed instituting the disciplinary proceedings at least by two years, no explanation of the delay was provided by the
Third Respondent whatsoever and further that the delay has caused material
prejudice to the Applicant in that the Applicant could not locate most of the required
documentation to support her testimony.
[12] By the time the matter reached the arbitration proceedings stage, it was
already eight years , and therefore, such can be categorized as unreasonable.
[13] As stated above that the First Respondent has also failed to analyze the
evidence provided in the arbitration proceedings it would have been feasible that the
matter be referred back to the Second Respondent to be arbitrated afresh by a
commissioner other than the First Respondent, however because of the delay caused by the Third Respondent in instituting the disciplinary hearing proceedings
against the Applicant so much prejudice has already been caused to the Applicant coupled with the fact that the Third Respondent has misplaced the proper record of the required documentation such as application forms, cash books and payment receipts, all these factors will render the rehearing of the matter a futile exercise.
[14] In consideration of the above mentioned applicable legal principles and based
on what I have discussed, supra and more importantly , the evidence assessment in
paragraph 6 above, this C ourt finds that the Third Respondent has failed to
discharge its onus on the balance of probabilities and further to the above, this Court
finds the delay by the Third Respondent in instituting the disciplinary hearing proceedings against the Applicant to be unreasonable , worsened by the fact that the
Third Respondent did not provide any explanation for such delay whatsoever.
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[15] The Applicant has also applied for condonation for the late filing of the review
application. The review application appears to have been filed 23 days late, and this
was during the COVID- 19 pandemic. This C ourt has a wide judicial discretion to
grant condonation if it would be in the interests of justice to do so after primarily
considering the following interrelated factors: the degree of lateness, the explanation for the lateness, and the applicant’s prospects of success in the main dispute. Having considered the Applicant’s averments in her founding affidavit as well as the
legal principles raised by this C ourt in the review application, this Court finds that it
would be in interests of justice to grant the application for condonation.
[16] In the premises, I make the following order:
Order
1. The application to condone the late filing of the review application
under case number JR1837/20 is granted.
2. The arbitration award granted by the First Respondent on 26 August
2020 under case number GPBC 2481 -14 is reviewed and set aside;
3. The First Respondent’s award is substituted with an order that the
dismissal of the Applicant is substantively unfair .
4. There is no order as to costs.
S Maluleke
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr. Andrew Goldberg of Goldberg Attorneys
For the Third Respondent: Adv. Zondo
Instructed by : The State Attorney