THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case N o: JR267/2 021
In the matter between:
SAMWU OBO ABEL MOTSHEDI PELLE Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL First Respondent
THE CITY OF JOHANNESBURG Second Respondent
SILAS RAMUSHOWANA N.O Third Respondent
Heard: 17 OCTOBER 2024
Delivered: 04 JUNE 2025
(This judgment was handed down electronically by emailing a copy to the parties. The 04 June 2025 is deemed to be the date of delivery of this
judgment).
JUDGMENT
2
MAHALELO , AJ
Introduction
[1] The review proceedings before court are in terms of section 145 of the Labour
Relations Act
1 (LRA) against the arbitration award issued in favour of the second
respondent (employer). The applicant (employee) seeks to review and set aside the award and to substitute it with an order that his dismissal was substantively unfair alternatively to remit the matter to the first r espondent for arbitration de novo. The
proceedings are opposed by the employer.
[2] In terms of section 145(1) of the LRA, the applicant should have filed this
application within six weeks of service of the arbitration award. The applicant delayed and filed an application for condo nation of its late filing. The condonation
application is unopposed. I have considered it and noted that the delay is not excessive. It did not prejudice the second respondent, and the applicant provided a
reasonable explanation for the lateness. I am therefore satisfied that the applicant
has shown good cause for condonation to be granted.
The Facts
[3] The applicant was employed by the second respondent as a Metro Police
Officer on 1 July 2015 until his dismissal on 12 August 2020.
[4] On 4 March 2018, he was supposed to be on duty. He was running late. An
official vehicle, a Ford Ranger Double Cab Bakkie with registration numbers and
letter s DK23DGGP was parked in his yard by another officer, who was the
authorised driver. The applicant drove the official vehicle to work. While driving on
the N1 freeway he collided with another vehicle, a Nissan 1400 bakkie. Both vehicles
were seriously damaged as the official vehicle had rolled. Both the applicant and the occupants of the Nissan bakkie were injured.
1 Act 66 of 1995
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[5] The applicant was taken to hospital . A breathalyser test was performed on
him. It came out positive, it registered 0.40 g/ml of alcohol in his breath. B lood
samples were also obtained from him by a nurse.
[6] The applicant was charged for misconduct. The charges levelled against him
were the following :
‘Charge 1
Failure to comply with a standard of conduct as contained in Annexure A of the Disciplinary Procedure Collective Agreement: Clause 1.1 and 1.2.10 read with 2.7.6.
On the 4
th of March 2018 at about 7h30 on the N1 North freeway near Main
Road bridge you negligently drove a fully marked Johannesburg Metro Police Department ( JMPD) patrol vehicle, Ford Ranger Double Cab with registration
numbers and letter DK23DGGP and drove into the rear of (head rear collision) a Red Nissan LDV with registration numbers and letters NPN70846 driven by Mr Hadebe, resulting in serious damage to both vehicles and an injury to occupants of the other vehicle of the other vehicle and to yours elf (i.e. you
collided into the rear of the other party gross negligence on four part).
Charge 2 Failure to comply with a standard of conduct as contained in Annexure A of the Disciplinary Procedure Collective Agreement clause 1.1 read with 2.7.10, in that on 4 March 2018 at about 07h30 on the N1 North freeway near Main Road, bridge, you operated a fully marked JMPD patrol vehicle Ford Ranger Double Cab registration numbers DK23DGGP, while under the influence of alcohol or intoxicating substance, you drove into the rear of the Red Nissan with registration numbers and letters NPN70846 driven by Mr Hadebe,
resulting in serious damage to both vehicles and an injury to occupants of the
other vehicle and yourself, you were- breathalysed and a reading of 0.40g/ml
was registered from yourself which is above the legal limit of 0,05g/ml.
Charge 3
Failure to comply with a standard of conduct as contained in Annexure A of the Disciplinary Procedure Collective Agreement: clause 1.1, in that on the 4
th
March 2018 at about 07h30 on the N1 North Freeway near Main Road, bridge you operated a fully marked JMPD patrol vehicle Ford Ranger Double Cab
4
registration DK23DGGP in contravention of clause 1. 73 of the JMPD vehicle
policy.
Alternative Charge
Failure to comply with a standard of conduct as contained in Annexure A of
Disciplinary Procedure Collective Agreement: Clause 1.1 read with 1.7.3 of
the JMPD vehicle policy.
On the 4th March 2018 at about 07h30 on the N1 North Freeway near Main
Road bridge, you operated a fully marked JMPD patrol vehicle Ford Ranger
Double Cab registration DK23DGGP while under the influence of alcohol or intoxicating substance, you drove into the Red Nissan with registration numbers and letters NPN70846 driven by Mr Hadebe, resulting in serious damage to both vehicles and an injury to occupants of the other vehicle and yourself, while you did n ot have the permission to drive the patrol vehicle,
furthermore you were breathalysed and reading of 0.40g/ml was registered from yourself which is above the legal limit of 0,05g/ml. ’
[7] Following disciplinary proceedings, the applicant was found guilty of
misconduct and his employment was terminated on 12 August 2020
[8] He referred an unfair dismissal dispute to the first respondent for conciliation .
A certificate of non- resolution was issued. The matter was referred to arbitration. The
commissioner, after arbitration of the dispute, issued an award in terms of which he
found the applicant’s dismissal to be both substantively and procedurally fair. It is
this award which is the subject of these review proceedings.
The Arbitration Proceedings
[9] The issue before the arbitrator was whether the applicant ’s dismissal was
substantively and procedurally unfair.
[10] The applicant challenged his dismissal on the grounds that he was not under
the influence of alcohol. During his evidence he wanted to hand up the statement of
Mr Hadebe ( Hadebe), the other driver with whom he was involved in the accident .
The statement sought to indicate that Hadebe withdrew the case against the
5
applicant (as he allegedly realised that he was the one who was negligent ). The
commissioner refused to accept the statement on the basis that the applicant failed
to bring that witness to arbitration in order to attest to that statement.
[11] The applicant explained that he had been sick for the past two days and was
taking flu medication. O n the issue of the employer’s vehicle policy, he explained that
his supervisor was aware that he was using the said vehicle on the morning in
question. On the issue of the breathalyser test, he contended that the machine that was used was not calibrated because no calibration certificate was produced and no
witness testified about the whole procedure of breathalysing him . Moreover, none of
the witnesses at the scene of accident testified that he was under the influence of
alcohol.
[12] On the issue of the blood test the applicant submitted that he was not aware
that his blood was drawn and if it was , it was tampered with because in the
statement of the police officer Sergeant Nzaule, it is reflected that when she received the blood kit it was not properly sealed. It had the seal number DD097377.According
to the section 212 certificate of Ms Shabalala, the forensic Analyst the blood sample
which she received and tested in relation to this case was sealed with seal number DD097378. That just like the breathalyser test, not a single witness testified at
arbitration about the chain of evidence. He mentioned that he was not wearing a t ag
on the day in question and that failure to wear a tag is not a dismissible offence. The applicant further alleged that there was inconsistency in the application of discipline by the employer as there were other employees who were previously involved in
accident s with official cars but were never dismissed. He considers the sanction of
dismissal to be too harsh and unfair .
[13] The second respondent led the evidence of Mrs Barnard, the superintendent
of the second respondent . She testified that on 4 March 2018 she was driving along
the N1 North when she observed the accident involving a JMPD marked vehicle which was driven by the applicant. At that stage both drivers were outside. Both cars were severely damaged. The other driver was also seriously injured. The applicant was not in work uniform. She called the freeway patrol and the ambulance and took
6
the applicant’s firearm for safekeeping. She handed over the scene to the police and
left.
[14] Mr BI Zuma, a metro police officer testified that he was on duty on 4 March
2018 when he was called to attend the accident on N1 North next to Maritzburg.
Upon arrival he observed that the applicant was lying down because he was also
injured. He recorded the accident. He was approached by the driver of the other
vehicle who requested that the applicant be breathalysed. The applicant was breathalysed at the hospital by inspector Phahlele and the reading was 0.4 1g/ml of
alcohol in his b reath.
[15] With regard to the calibration certificate, he explained that Constable Phethele
showed it to h im but he was not sure if he took it along when he went to open a
criminal case of reckless and/or negligent driving against the applicant. That case
was withdrawn against the applicant for insufficient evidence. According to Zuma, if
an officer is not on duty and would like to use an official vehicle, he/she only phones
the radio room or the supervisor to inform them. He conceded that failure to wear a
tag is not a dismissible offence. After his evidence the commissioner accepted the
statement of Mr Mabekebeke without him having been called to testify.
[16] After having considered the whole evidence, the commissioner issued an
award in terms of which he found that the dismissal of the applicant was procedurally
and substantively fair. It is this award that is the subject of this application.
The Review Application
[17] The applicant contended that the commissioner committed misconduct and
gross irregularities in the conduct of the proceedings, that he committed material errors of fact and law and arrived at a decision that no reasonable decision -maker
could have arrived at on the evidentiary material before him. He argued that t he
arbitrator failed to fully assess the evidence presented to him in that:
1. He failed to admit the third statement purportedly made by Hadebe;
2. He admitted the statement by Mabekebeke without any basis,
7
3. Despite being aware that the results of the blood samples were in
dispute, the arbitrator was biased in that he did not make an inference to the
second respondent’s failure to produce a witness who could testify about the process followed prior, during and subsequent to blood sample being obtained from the applicant and the breathalyser test being administered.
4. He committed an irregularity by rejecting the applicant’s version that his
supervisor was aware that he was using the official vehicle that morning;
5. On the appropriateness of the sanction the arbitrator dismally failed to
appreciate that the CCMA or Bargaining Council hearing is a hearing de novo.
He found that the dismissal of the applicant was substantively fair because he
relied on the statement of a witness who was never called to testify which
statement was prejudicial to the applicant.
Evaluation
[18] Section 145 of the LRA provides that any party to a dispute alleging a defect
in any arbitration proceedings may apply to the Labour Court for an order setting
aside the arbitration award, and ‘defect’ is given the following meaning:
(a) “that the arbitrator
(i) committed misconduct in relation to the duties of the
arbitrator as an arbitrator;
(ii) committed a gross irregularity in the conduct of the
arbitration proceedings; or
(b) exceeded the arbitrator’s powers; or that an award has been
improperly obtained. ’
[19] It is now trite that the requirements for the review of an award under the LRA
are stringent and that the applicable test in reviews is that of reasonableness , an
award of an arbitrator of the CCMA or a Bargaining Council is reviewable if the
decision reached by the arbitrator was one that a reasonable decision- maker could
not reach.
2
2 Sidumo and Another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC) .
8
[20] In Herholdt v Nedbank Limited3, the Supreme Court of Appeal stated as
follows:
‘[25] … Material errors of fact, as well as weight and relevance to be
attached to particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’
[21] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
4, it was stated that :
‘in short, a reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’
[22] Mere errors or irregularities are not sufficient to vitiate the award. To warrant
interference from a review court, the award must be disconnected from the evidence resulting in an unreasonable outcome
5 and/or the failings, errors, irregularities or
misconduct must have resulted in the award ultimately being unreasonable.6 In
Makuleni v Standard Bank of SA (Pty) Ltd and others7 the LAC cautioned this Court
not to “yield to the seductive power of a lucid argument that the result could be different” because that is the luxury and privilege reserved for the court of appeal. The LAC continued that it is only if the conclusion reached by the commissioner is untenable that the review court will be justified in reviewing and setting aside the award.
3 (2013) 34 ILJ 2795 (SCA) .
4 (2014) 35 ILJ 943 (LAC) .
5 Duncanmec (Pty) Ltd v Williams Itumeleng NO and others [2020] 7 BLLR 668 (LAC) at para 23;
Securitas Specialised Services (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and others (2021) 42 ILJ 1071 (LAC); [2021] 5 BLLR 475 (LAC) at para 19.
6 Heroldt supra, Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC);
[2015] 1 BLLR 50 (LAC) at paras 31 – 3
7 (2023) 44 ILJ 1005 (LAC); [2023] 4 BLLR 283 (LAC) (8 February 2023)
9
[23] Ultimately, the applicant in this case is required to establish that the award
was one that could not have been made by a reasonable decision- maker on the
evidence presented.
Reasonableness of the award on the evidential material placed before the
commissioner.
[24] In his award the arbitrator found that the version of the employer that the
applicant was under the influence of alcohol is probable and believable on a balance
of probabilities. This was primarily based on the breathalyser test. He found that
there was no evidence suggesting that the blood samples were tempered with and that the applicant had been sick of flu two days before the incident
[25] On the issue of the breathalyser test, it is important to distinguish between
testing positive for alcohol on the breath of an employee and such an employee
being under the influence of alcohol. Being under the influence of alcohol implies that an employee was not capable of safely performing his duties. In this regard, the breathalyser reading or indication of alcohol on the breath of an employee will be
considered in addition to other evidence such as witnesses testifying to the
behaviour of the employee at the time. For example, slurred speech, unsteady pace, bloodshot eyes etc , there is no evidence led in this regard. The arbitrator does not
even give reasons why he finds the version of the employer believable and probable in this regard. He committed a reviewable irregularity .
[26] The commissioner further stated that there was no evidence to suggest that
the applicant had been sick of flu for two days before the accident and that the blood samples were tempered with. He was aware that the result of the blood sample drawn from the applicant were in dispute, yet he did not make any inference to the two different serial numbers reflected on the blood kit and on the blood sample that
was tested. Further, he did not question the second respondent’s failure to produce a calibration certifi cate and/or call a witness who could testify about the process
followed prior, during and subsequent to the breathalyser being administered on the
applicant and his blood being drawn. These are all reviewable irregularities
committed by the commissioner.
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[27] Another glaring irregularity is when t he commissioner failed to make any
pronouncement on the other charges the applicant was facing. He only found that
the applicant was under the influence of alcohol . The applicant was facing four
charges. These are separate charges which t he commissioner was supposed to
analyse and pronounce on.
[28] The commissioner further committed an irregularity when he accepted and
relied on the statement of Mabekebeke who was not called to testify during
arbitration. It is trite that the commissioner in exercising and executing their duties
must balance the interest of employer with those of the employee. This balancing
requirement demands that various components must be placed in the scales: an
objective analysis of the particular facts of the case; adequate regard to the
applicable statutory and policy framework; and adequate regard to the pertinent
jurisprudence as developed by the courts .8 The record of arbitration read with the
award clearly demonstrate that the arbitrator dismally failed to appreciate that a CCMA or Bargaining Council hearing is a hearing de novo. This authority was
expressed in County Fair Foods (Pty) Ltd v CCMA and Others
9 that:
“the decision of the arbitrator as to the fairness or unfairness of the employer’s
decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator. To that extent, the arbitration proceedings are a hearing de novo”
[29] It appears that the sole reason why the arbitrator found the dismissal of the
applicant to be substantively fair is because he relied on the affidavit of a witness who was never called to testify. His reasoning that Mabekebeke ’s affidavit ought to have been accepted as evidence during the arbitration proceedings was a serious
8Theewaterskloof Municipality v South African Local Government Bargaining Co uncil (Western Cape)
and Others para 19. (C966/2008) [2010] ZALC 69; (2010) 31 ILJ 2475 (LC); [2010] 11 BLLR 1216
(LC) (14 May 2010)
9 (1999) 20 ILJ 1901 (LAC) at para 11.
11
miscarriage of justice in that the applicant was denied the opportunity to cross -
examine him.
[30] The applicant admitted that he was not authorised to drive the vehicle in
question as it was signed out to another official. He however e xplained that his
supervisor was aware that he was using the vehicle that morning. It seems that the
commissioner rejected this version despite Zuma testifying that this is what used to happen at the workplace. Even if the applicant did not call the supervisor to testify,
fact of the matter is that the witness for the employer testified that one would call the radio room or inform the supervisor over t he phone that they would be using the
official vehicle which is what the applicant says he has done.
[31] The arbitrator also concluded that there was no evidence that the employer
applied discipline inconsistently without saying much. In my view , the arbitrator
reached a decision which no reasonable arbitrator could have reached. His
conclusion is disconnected to the evidence presented before him. The decision of
the arbitrator in this case does not fall within the bands of reasonableness as
required by law.
Substitution or remittal
[32] In its alternative prayer for relief, the applicant has sought an order that remits
the matter back for the arbitration proceedings to be started afresh before another
arbitrator . Having considered all the factors, I believe that a differently constituted
CCMA commissioner would be better placed than me to deliver an award after all the evidence has been taken into consideration and a full analysis of all the pertinent
evidence is considered.
Costs
[33] I intend on making no order as to costs, the reason being to ensure fairness.
Order
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[34] In the premise, t he following order is made:
1. The award issued by the third respondent under the auspices of the
first respondent under case number JMD082005, dated 13 October 2020, is
hereby reviewed and set aside.
2. The matter be remitted back to the South African Local Government
Bargaining Council for a hearing de novo before an arbitrator other that the
third respondent.
3. There is no order as to costs.
MB. Mahalelo
Acting Judge of the Labour Court of South Africa
Appearances :
For the A pplicant: Ms G. Phakedi
Instructed by: Phakedi Attorneys
For the Respondent: Mr Clive Govender
Instructed by: Salijee Govender Van der Merwe Inc