IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN CAPE TOWN )
CASE NO: C 511 /2023
Not Reportable
In the matter between:
MARION DE WET Applicant
and
CCMA First Respondent
MELWYN NASH N.O. Second Respondent
STRATEGIC FUEL FUND ASSOCIATION NP Third Respondent
Heard: 24 October 2024
Judgment d elivered: 2 January 2025
JUDGMENT
WHITCHER J
Introduction
[1] This is a review application in terms of section 145 of the Labour Relations
Act, 1995.
[2] The applicant seeks to have the award issued by the second respondent (the
Commissioner ) in her unfair labour practice dispute with the third respondent (SFF)
reviewed and set aside and substituted with an order that her suspension by SFF
constitut ed an unfair labour practice , and as a result she is entitled to six month’s
compensation.
[3] The test in Sidumo dictates the resolution of the controversy, i.e. was the
Commissioner’s decision one to which no reasonable arbitrator could come on the
issues he was called upon to decide and the evidence that served before him.
[4] Further to the above, the Labour Appeal Court in Makuleni v Standard Bank of
South Afric a Ltd and Others ,1 reiterated that:
…At the heart of the exercise is a fair reading of the award, in the context of
the body of evidence adduced and an even -handed assessment of whether
such conclusions are untenable. Only if the conclusion is untenable is a
review and setting aside warranted.
[5] While SFF opposed this application, they did not attend the arbitration2, so the
review is obviously assessed on the issues and evidence adduced at arbitration by
the applicant.
The issues and evidence adduced by the applicant at arbitration
[6] SFF is a wholly owned subsidiary of the Central Energy Fund SOC Ltd . They
are public entities listed in Schedule 2 of the Public Finance Management Act 1 of
1 (2023) 44 ILJ 1005 (LAC).
2 They explained there was an error in the email address used by the CCMA , but decided not to take
issue with the matter decided in their absence because the award is in their favour.
1999 (‘the PFMA’). The SFF acquir es, maintains, monitors and manage s the
country's strategic energy feed stock and carriers to ensure security of supply.
[7] The applicant commenced employment with SFF on 28 April 2015 as the
General Manager: Commercial.
[8] In 2015/2016, SFF sold 10 million barrels of South Africa’s strategic stock of
crude oil . The Board discovered the matter in February 2016. Following a forensic
investigation, SFF filed to have the transactions reviewed and set aside . Judging
from the applicant’s reference to p leadings at the arbitration, it seems the application
was filed in 2017. In a judgment delivered on 20 November 2020, the High Court
found that the transaction s were unlawful and set them aside. The Court found that
the person responsible for the unlawful transactions was the then Acting CEO, S
Gamede , but expressed strong dissatisfaction with Gamede’s management team
which included the applicant. The court also found that they failed to alert the Board
regarding the transactions.
[9] The Court stated, inter alia :
Although Gamede was driving the improper disposal process and to a large
extent made decisions on his own he could not have achieved what he did
without the acquiescence or supineness of SFF’s se nior managers and
directors…The board was allowed to go in ignorance of what was happening
until 5 February 2016.
[10] Following the judgment, SFF initiated a further forensic investigation by
Gobodo Forensic and Investigative Accounting (Gobodo) .
[11] In a report dated 5 February 2021, Gobodo found that, notwithstanding the
suggestions in the judgment, the applicant played no role in the disposal of the
strategic stock . Their only criticism of her was articulated as follows:
It may be argued that between 19 January 2016, when she became aware of
the sale of the strategic stocks, and on 5 February 201 6, when the SFF Board
was informed of the sale for the first time , she failed to communicate to the
Board at the earliest practicabl e opportunity …the sale of the strategic crude
oil stocks. This would be particularly applicable to her having remained silent
at the BARC meeting on 27 January 2016.
[12] Two years after the Gobodo report, SFF placed the applicant on
precautionary suspension pending disciplinary proceedings.
[13] On 27 February 2023, SFF dispatched the following notice to the applicant :
You are hereby notified that SFF intends to place you on precautionary
suspension pending finalisation of a disciplinary hearing against you for your
alleged involvement in the unlawful sale of South Africa’s strategic stock …
As you may be aware, the sale was declared unlawful invalid and set aside on
20 Novembe r 2020 by [ the High Court] .
I am of the view that the intended suspension is justified because, amongst
others, the alleged misconduct is very serious and/or that your continued
presence in the organisation may prejudice the envisaged disciplinary
process .
[14] In her response to the notice , the applicant contended that the suspension
was unwarranted . She reasoned that s he had not been involve d in the unlawful sale ;
she gave her full cooperation in all the forensic and criminal investigations; and SFF
had known about the matter since 2016 and in all that time there was no suggestion
or concern that she was involved in or may be involved in the destruction or
interference of evidence .
[15] In reply, on 7 March 2023 , SFF confirmed the applicant’s suspension. Their
justification:
Notwithstanding your representations, the company considers that your
continued access to the workplace pending the finalisation of a disciplinary
process may be prejudicial to the company – given your seniority and the
seriousness of the allegations against you.
Please note that [in the matter in the High Court and Supreme Court of
Appeal] your involvement in those tra nsactions was sharply raised. This
contradicts your continued denial of any involvement in those transactions.
[16] “Shortly thereafter” the applicant was served with a charge sheet, containing
two charges of misconduct . Other than this statement and mention of a sitting in
August 2023, no evidence was adduced to when the applicant was served with the
disciplinary notice .
[17] In the first charge, SFF inter alia alleged with details that not withstanding the
Gobodo report, evidence submitted in the High Court matter indicated that the
applicant had been aware of the intended disposal of the crude oil and in fact
assisted Gamede in negotiating , drafting and conclu ding the agreements with Vitol.
[18] The second charge related to the applicant’s alleged failure to inform the
Board about the transactions , as set out in the Gobodo report.
[19] The charge sheet highlighted the fact that SFF is a public entit y listed in
Schedule 2 of the Public Finance Management Act 1 of 1999 ( ‘the PFMA’).
[20] Grieved, the applicant inter alia filed an unfair labour practice dispute
concerning her precautionary suspension . The dispute was filed two months into her
suspension . The m atter was arbitrated on 18 September 2023 whereupon an award
was issued rejecting the applicant’s claim that her precautionary suspension was
unfair. The review lies against that finding.
[21] While not articulated in a structured manner at arbitration , it is evident that the
applicant elected to challenge her suspension on the following grounds :
(a) SFF, in failing to take any disciplinary action against her from the time
the Board became aware of the transactions in 2016 and/or from the date of
the second Gobodo report in February 2021 to the date of her suspension
coupled with their failure i n those time periods to indicate an intention to take
disciplinary action against her , waived its right to take any disciplin ary action
against her. It was argued that if SFF intended to take disciplinary action
against her, it had a duty to speak in that time. In the event of it being found
that there was such a waiver, it was argued that the suspension was
automatically unfair.
(b) The alleged unreasonable delay in disciplining her also automatically
mean t that her suspension was unfair.
(c) Her suspension served no rational and fair purpose because she
posed no t hreat to the investigations, which were concluded two years before
she was suspended.
(d) Her suspension caused her considerable humiliation and prejudice .
According to the applicant, she was at a conference when she was informed
about her impending suspension and judging from how other attendees
treated her , they had obviously heard about it. Further, she ha d just
completed her PhD and the university had nominated her to take part in a
project that sits in the Pre sidency. However, SFF refused to permit her to take
up the nominati on/secondment citing her suspension. This meant she lost out
on extra income and career opportunities. She had also received a prestigious
academic award in November 2022 and was worried that she may lose the
award as a result of the suspension .
[22] Before I turn to the Commissioner’s findings, an important point: the applicant
in her review application took issue with only the Commissioner’s findings in respect
of (a) , (b) and (c) above. How the Commissioner approached the issue of alleged
humiliation and prejudice, if at all, was not raised in the pleaded grounds of review ,
and accordingly will not be addressed in this judgment .
[23] The Commissioner found no merit in the waiver and unreasonable delay
argument. He reasoned as follows :
Objectively viewed, the respondent always treated the matter as a priority.
There were steps taken to deal with the status of the deal with the High Court
litigation. These measures signify t hat the outcome of those processes would
have a bearing on whether actions should be taken against individuals.
Overall, it is not as though the respondent sat back and decided to not give
the matter its due attention and this says much about its intention as to
whether it intended to abandon its right to take disciplinary actio n. As such I
conclude that the waiver argument cannot be sustained.
…
In relation to the argument of unreasonable delay my sentiments are the
same that despite the matter dating back a considerable period, the delay was
not unreasonable given there were pr ocesses in motion that impacted on the
decision whether to proceed with disciplinary action against the applicant.
[24] The Commissioner also considered that SFF explained the delay following the
Gobodo report, albeit at the disciplinary enquiry and that the a pplicant had been
aware that SFF in that time was conducting disciplinary enquiries again st the other
Exco members implicated by the High Court. He stated:
…the applicant’s account of the reasons given as to why action was not taken
against her included that she must have known that disciplinary action was
coming given that other individuals were in the process of disciplinary
enquiries and further that disciplinary action was imposed gradually so as not
to disrupt operations. The applicant testi fied that she was aware of other
disciplinary actions, but she came to know thereof from outside the
organisation. If so, irrespective of how it came to her knowledge, she would
have known that disciplinary action was taken based on the controversial sale
agreement. Based on the applicant’s account the other two individuals were
Exco’ members and she too was one so it was not unreasonable to suspect
that Exco members would be under the spotlight.
[25] As to the applicant’s claim that her precautionary suspension was
unnecessary and thus unfair because all investigations were complete and so she
posed no threat to integrity of the investigation, the Commissioner found that the
“matter was not a run of the mill matter. ” It involved high prof ile individuals , huge
amounts of money and had received public attention . In these circumstances , it was
not unreasonable for SFF to adopt a cautious approach and put contingencies in
place to protect the integrity of the disciplinary hearing .
[26] In my view, the applicant failed to demonstrate that the Commissioner failed
to consider material evidence – as alleged – and that his conclusions are untenable .
In fact, the award is soundly reasoned .
[27] Waiver is the legal act of abandoning a right on which one is entitled to rely
and can be proved either through express actions or by conduct plainly inconsistent
with an intention to enforce the right.3
[28] The evidence revealed that SFF’s conduct was not plainly inconsistent with an
intention to enforce its right to bring disciplinary proceedings against Exco members
and Gamede’s team implicated in whatever way in the unlawful transactions.
[29] On the applicant’s own evidence, SFF instituted various investigations in
connections with the unlawful transaction s: a forensic investigation followed by a
substantial court application followed by a further forensic investigation . The
applicant led no evidence that the investigations were not instituted within a
reasonable time after discovery of the transactions and that the investigations were
uncomplicated and thus no t time consuming ; and, on her own account, she was very
much aware of all these investigations .4
[30] Further on her own account, she was implicated in some way by the High
Court judgment and the Gobodo report .
[31] Also, on her own account, she had been aware that SFF was busy holding
disciplinary enquires against Exco members implicated by the High Court and
forensic investigations.
3 NUMSA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC) at paras 60 -61.
4 See the applicant’s response to the notice of intention to suspend and her evidence that she
provided an affidavit in the High Court matter.
[32] In these circumstances there was no so-called duty to speak. Her contention
that she never expected to be charged because in her view she had not
misconducted herself in any way was irrelevant.
[33] In any event, there is authority to the effect that no public entity may renounce
a right introduced not only for its own benefit, but in the interests of the public as wel l
in the absence of good reason5 - good reason being for example an opinion from a
proper authority that its case against the employee has poor p rospects of success .
[34] As also pointed out by the Constitutional Court in Khumalo and Another v
Member of the Executive Council for Education: KwaZulu -Nata l:6
‘Section 195 provides for a number of important values to guide decision
makers in the context of public sector employment. When, as in this case, a
responsible functionary is enlightened of a potential irregularity, s 195 lays a
compelling basis for the founding of a duty on the functionary to investigate
and, if need be, to correct any unlawfulness through the appropriate avenues.
This duty is founded, inter alia, in the emphasis on accountability and
transparency in s 195(1) (f) and (g) and the requirement of a high standard of
professional ethics in s 195(1) (a). ….’
[35] These principles were alluded to in the charge sheet issued to the applicant.
[36] As to the proposition that SFF unreasonably delayed in bringing disciplinary
proceeding against the applicant and that automatically meant her suspension was
unfair, it is trite that a delay in bringing disciplinary action per se does not
automatically render the disciplinary proceedings unfair. A significant factor is
whether the re is objective evidence that the delay will materially prejudice the
5 Die Suider -Afrikaaanse Kooperatiewe Sitrousbeurs Beperk v Die Direkteur -Generaal: Handel en
Nywerheid and another [1997] 2 ALL SA 321(A) ; SA Eagle Insurance Co Ltd v Bavuma 1985 (3) SA
42 (A) .
6 (2014) 35 ILJ 613 (CC) at para 35.
employee’s abil ity to conduct a proper defence.7 The applicant led no evidence to
this effect.
[37] But more importantly, as correctly found by the Commissioner, there was no
unreasonabl e delay – at all critical times SFF was dealing with the matter of the
unlawful transactions – conducting relevant investigations , filing a critical court
application and conducting disciplinary enquires against other management
employees and Exco members.
[38] Finally, the concept s of an unfair disciplinary hearing and that of an unfair
suspension are materially different and judged by different factors – how the one in
law automatically renders the o ther unfair was not addressed at arbitration.
[39] Which brings the court to the applicant’s final ground of review - that the
Commissioner failed to appreciate that her suspension served no fair purpose as all
the investigations were complete. Here again, the Commissioner’s reasoning was
sound, particularly since i t has been confirmed by the Constitutional Court that a
precautionary suspension may be implemented to safeguard the integrity of a
pending hearing (not just investigation) and/or the Office of the employer pending the
hearing.8 SFF pertinently relied on these considerations when it made the decision to
proceed with the suspension , as stated in the letter. The applicant did not say why
these considerations were unfair.
[40] To the extent that the issue of humiliation and prejudice may be considered i n
this review – the evidence on this matter was wholly insubstantial , vague and
speculative . There was no evidence that the award was lost and th at that she was
entitled to the secondment in terms of her contract.
[41] For all these reasons, the application is dismissed, with no order as to costs.9
7 See: Moroenyane v SAPS [2016] ZALCJHB 330] , including the Constitutional Court judgments
referred to therein.
8 See: Long v S outh African Breweries (Pty) Ltd and Others [2018 ] ZACC7; Democratic Alliance and
Another v Public Protector of South Africa and Others [2023] ZACC 25 .
9 The third respondent did not seek costs.
________________________________
Benita Whitcher
Judge of the Labour Court of South Africa
APPEARANCES :
For the Applicant: C De Kock, instructed by CK Inc. Attorneys
For the Third Respondent: T Govender, instructed by Diale Mogashoa Attorneys