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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
HELD AT JOHANNESBURG

CASE NO: JR1768/2022

In the matter between:
FINKIE MONTSHO Applicant
And FIDELITY SECURITY SERVICES (PTY) LIMITED 1
st Respondent
VUSI MOYO N.O. 2
nd Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 3
rd Respondent
Heard: 23 May 2024
Delivered: 26 March 2025
This judgment was handed down electronically by emailing a copy to the parties. The 26
th March 2025 is deemed to be the date of delivery of this
judgment.


JUDGMENT

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MOKOSE AJ
Introduction
[1] The applicant approaches this court in terms of Section 145 of the Labour
Relations Act 66 of 1995 (“LRA”) for an order reviewing and setting aside the second
respondent’s award, made under the auspices of the third respondent o n 22 July
2022. In the alternative, the applicant seeks an order that the matter be remitted
back to the first respondent for hearing before a different commissioner. The order
sought is as follows:
1. T hat the arbitration award granted by the second respondent dated 22
July 2022 but received on 22 July 2022 by the applicant, case number GAEK 10991/17 be reviewed and set aside.
2. That the award be reviewed and set aside, alternatively ;
3. That the matter be remitted back to the third respondent for a hearing
before another Commissioner.
4. Directing that any of the Respondent who may opposed this application
be directed to pay the costs of this application 5. Grant the Applicant such further and alternative relief as this Court may
deem appropriate.
[2] The applicant contends that the award was irrational and that the second
respondent failed to apply his mind to the facts on hand and that a different commissioner faced with the same set of circumstances would have come to a different conclusion. Furthermore, the applicant contends that the second
respondent failed to apply his mind to the rules of the third respondent . As such, a
costs order should be awarded against anyone who opposes the review application.
[3] The application is opposed by the first respondent . In limine , the first
respondent contends that this is not actually a review application as the applicant
seeks to supplement the record of proceedings with documentation whi ch was not

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previously filed in accordance with Rule 7A(3) by the third respondent and was not
presented by the applicant during the proceedings on 12 July 2022. Furthermore, the
first respondent seeks a costs order on a punitive scale.
[4] The second and third respondents have not opposed the application.
Brief Facts [5] The facts of the matter are briefly as follows: the first respondent held a
disciplinary hearing against the applicant for misconduct. The applicant was found
guilty of the charges proffered against him and was dismissed on 11 October 2017.
The dismissal was referred timeously to the third respondent who set the matter
down for a hearing on 4 June 2018. An application was made for the appearance of
certain witnesses at the hearing however, they failed to appear whereupon the
arbitration was postponed. As a reason for t he postponement the applicant was
ordered to pay the witnesses .

[6] In August 2020, the applicant having referred his matter to Legal Wise for
legal assistance and having been referred to Mr Dlamini of ODBB Attorneys , the
CCMA was contacted by the applicant’s attorneys enquir ing about the status of the
matter. This was in November 2020. On 25 May 2021 the attorneys contacted the
first and second respondents to request the record of the arbitration hearing. The
third respondent informed the attorneys on the same day that there were no records
of the previous sitting of the 4th of June 2020.
[7] Despite numerous requests being made to set the matter down, the matter
was not scheduled. It was only set down for 12 July 2022, which arbitration was
attended by the applicant and his attorney. At this hearing, the first respondent’s legal
representative complained about the delay in the scheduling of the matter and
lamented the inability of tracing their witnesses which was blamed on the delay in scheduling the matter. The first respondent contends that no points in limine were
raised however, the second respondent misconstrued this lamentation as a point in
limine and issued an award dismissing the arbitration application having disallowed
the first respondent’s legal representative to represent him in the proceedings. This

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award was based on the fact that the applicant delayed in having the matter
scheduled.

[8] It is this award which is the basis of the review matter before this court today.
The applicant applies for the review and setting aside of the award.
Point in limine
[9] The first respondent raises a point in limine that despite the applicant bringing
this application in terms of Section 145 of the Labour Relations Act 66 of 1995 (LRA) ,
this is not actually a review application as the applicant seeks to supplement the record of proceedings with documentation which was not previously filed in accordance with Rule 7A(3) by the third respondent and was not presented by the applicant during the proceedings on 12 July 2022. These documents therefore did
not serve before the second respondent . Any non-consideration thereof is nothing
more than the applicant’s failure to present the documents at the appropriate time.

[10] In his founding affidavit and in limine , the first respondent contends that on 23
August 2022 the second and third respondents gave notice in terms of Rule 7A(3) in terms of which the record of proceedings were filed with the Registrar for collection , copying and subsequent delivery by the applicant. On or about 21 September 2022
the applicant delivered a notice in terms of Rule 7A(6) wherein the transcript purporting to be documentary portion of the record, the overwhelming majority of which are not referred to in the Rule 7A(3) notice were not referred and did not form part thereof. The first respondent contends that the documents did not form part of
the record of proceedings before 12 July 2022 and that similarly, certain annexures, FM7- FM9 and FM16- FM24 supporting the founding affidavit did not form part of the
record of proceedings and are not appropriate to be included in this application.
[11] The applicant denies this and contends that the second respondent has a
duty to proceed with the arbitration despite the point in limine being raised. He has a
duty to assess the prospects of success by hearing the facts of the dispute.
Secondly, the applicant contends that the second respondent misconstrued a complaint raised by the first respondent as a point in limine particularly as the

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applicant had delivered his application for arbitration within the prescribed period of
time.
[12] In terms of Rule 7A, a party wishing to review a decision or proceedings of a
body or person performing a reviewable function justiciable by the court, must deliver
a notice of motion to all affected parties. The notice of motion must call upon these
people to chow cause why the decision or proceedings should not be reviewed and
corrected or set aside. The notice of motion must be supported by an affidavit setting
out the factual and legal grounds upon which the applicant wishes to have the decision or proceedings set aside. The rule further provides that the registrar should
make available to the applicant the record which the applicant will make copies of such portions as may be necessary for the purposes of review and certify each copy
as true and correct. The applicant must then furnish the registrar and each of the
other parties a copy the record and of the reasons filed by the person or body.
[13] The record of proceedings would have been obtained by the applicant from
the third respondent. The applicant in his heads contends that he lodged the
transcripts and had accordingly complied with the rule. It is evident that the applicant
never submitted his arbitration bundle to the third respondent and as such, it could
not be considered by the second respondent for the purposes of his ruling. It could
not have formed the record of proceedings . It is also not evident the legal basis for
the documents attached to the founding papers as to how they formed part of the record of proceedings.
[14] Accordingly, the point in limine is upheld. The applicant is therefore precluded
from utilising and relying on the documents which do not form part of the record of
proceedings delivered in compliance with Rule 7A(2) and 7A(3).
Legal Principles on Review
[15] The applicant contends that a reasonable decision make would have come to
a different conclusion than that of the second respondent and maintains that the
second respondent erred in his ruling.


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[16] Section 145(1) provides that any party to a dispute who alleges a defect in
any arbitration proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award. The defect referred to
in Section 145(1) is one where the commissioner has committed a misconduct in relation to his duties of a commissioner or arbitrator or he has committed a gross irregularity in the conduct of the arbitration proceedings or even where he has exceeded his powers.
[17] The test on review was espoused by the court in the matter of Sidumo &
Another v Rustenburg Platinum Mines Limited and Others
1 where it was held as
follows:
“In light of the Constitutional requirement (in Section 33(1) of the Constitution) that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, the ‘reasonableness standard’ should now suffuse Section 145 of the LRA”.
[18] It is clear that a commissioner is obliged to apply his or her mind to the issues
in the case.
2The review court is therefore required to determine whether the decision
of the arbitrator is reasonable in light of the totality of the evidence that was before him together with the issues he was required to determine.
[19] The Labour Appeal Court (“LAC”) in the matter of Fidelity Cash Management
Service v CCMA and Others
3 considered what unreasonableness is and held as
follows:
“[97] The Constitutional Court further held that to determine whether a
CCMA commissioner’s arbitration award is reasonable or unreasonable, the question that must be asked is whether or not the decision or finding reached by the commissioner is ‘one that a reasonable decision maker could not reach’ (para 110 of the Sidumo case). If it is an award or decision that a
reasonable decision could not reach, then the decision or award of the CCMA is unreasonable, and, there, reviewable and could be set aside. If it is a

1 [2007] 28 ILJ 2405 (CC)
2 CUSA v Tao Ying Metal Industries [2008] 29 ILJ 2461 (CC) at para 134
3 [2008] 29 ILJ 964 at para 97

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decision that a reasonable decision make could reach, the decision or award
is reasonable and must stand. It is important to bear in mind that the question
is not whether the arbitration award or decision of the commissioner is one that a reasonable decision make would not reach but one that a reasonable decision make could not reach….”
[20] In a more recent case of Gold Fields Mining South Africa (Pty) Limited (Kloof
Gold Mine) v CCMA and Others
4 the court interpreted the test set out in the Sidumo
case as follows:
“Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the arbitrator…….In other words, in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of proceedings, but extends to whether the decision that the arbitrator arrived as is one that falls in the band of decisions a reasonable decision make could come to on the available material.”
[21] The court went on to say:
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“…….What is required is first to consider the gross irregularity that the arbitrator is said to have committed and then to apply the reasonableness test established in Sidumo. The gross irregularity is not a self -standing ground
insulated from or standing independent of the Sidumo test.”
[22] The court then concluded that
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“In short: A review must ascertain whether the arbitrator considered the principal issue before him/her, evaluated the facts presented at the hearing
and came to a conclusion which was reasonable to justify the decision he or
she arrived at.”


4 [2014] 1 BLLR 20 (LAC) at paragraph 14
5 Gold Fields Mining (supra) at para 15
6 Gold Fields Mining (supra) at para 16

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[23] The test on review is ultimately whether the decision reached by the
commissioner is one that a reasonable decision- maker could or could not reach.
Irregularities or errors in relation to the facts or issues may or may not produce an
unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry.
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Grounds for review
[24] The applicant contends that the second respondent erred when he found that
the applicant delayed in having the matter rescheduled . He contends that he lodged
the application timeously and was not responsible for its rescheduling. Furthermore,
the second respondent failed to understand that the third respondent had granted the subpoenas and accordingly was not responsible to pay the witness fees .
Furthermore, the second respondent’s refusal for the applicant to be represented at the CCMA in arguing points in limine was also a decision no reasonable decision
maker could have come to. And lastly, the applicant contends that the second
respondent did not hear the facts of the case to determine whether he had a case or
not. His evidence should have been allowed, and he would then have been in a
position to make his ruling on the basis of such evidence whilst considering the point
in limine .
Evaluation [25] The second respondent’s ruling was extensive and detailed. He considered
the issues of the dispute that were before him. He also refers to the interests of both
the applicant in pursuance of his claim for unfair dismissal but also refers to the extensive delay and the prejudice to be suffered by the first respondent should the
matter continue. The applicant avers that the second respondent committed an
irregularity by failing to take into consideration the facts of the evidence before him
and to show an understanding of such evidence. Therefore, his award must be
reviewed and set aside.


7 Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) at para 33

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[26] The test as stated above is not whether he was correct or incorrect. I do not
see an argument in the applicant’s papers in which he shows the court that the
award is reviewabl e on any jurisdictional basis. Even if the second respondent had
come to an incorrect conclusion, the requirements of the test for a review have not
been met. Furthermore, the applicant fails to refer to the transcript which was
delivered in support of his contentions in the review application.

[27] The allegations in the papers by the applicant rather ring of an attempt to
appeal the decision by claiming that the second respondent should rather have come
to a different conclusion. This is not the intention of Section 145 which was enacted
to enable litigant s to have their arbitration awards reviewed. No evidence of errors in
law have been furnished to show the court that the errors have affected his right to a
fair hearing nor was evidence furnished, or reference made to the record in
confirmation of the second respondent’s denial to allow him legal representation. I
am satisfied that he understood and followed the proceedings as an interpreter was available for his use.

[28] Accordingly, I am of the view that the applicant has failed to plead a proper
case for the review of the award by the second respondent .
Costs
[29] The general rule in litigation pertaining to an award of costs is that costs
should follow the result. However, this does not find application in labour disputes
due to the power imbalance between an employer and an employee. This court has
a wide discretion in respect of the award of costs, considering fairness and the principles of law and further considering the power relationship between the employer and employee.
8 This principle was confirmed in the matter of Zungu v
Premier of KZN and Others9 where the Constitutional Court stressed that the court
should seek a balance between unduly discouraging litigants from approaching the Labour Court to have their disputes dealt with and allowing those litigants to bring

8 Union for Police Security and Corrections Organisation v South African Custodial management (Pty)
Ltd [2021] ZACC 41
9 2018 ZACC 1

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their matters to the court which should not have been brought in the first place. I
have considered the circumstances in this matter and accordingly, I am of the view
that no order as to costs should be made in this matter.
Order
[30] Accordingly, the following order is granted:
The review application is dismissed.

MOKOSE AJ
Acting Judge of the Labour Court
Of South Africa, Johannesburg
For the Applicant Adv Sadiki
Instructed by: Linde Dlamini Attorneys For the Respondent Mr R .Atcheson(Attorney)
Instructed by: D.H Hinnchson Attorneys