THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2680/ 22
In the matter between:
NOMFUNDO KHUMALO Applicant
and
COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION (‘CCMA’) First Respondent
COMMISSIONER THANDIWE TSHAYAN N.O Second Respondent
STANDARD BANK OF SOUTH AFRICA Third Respondent
Heard: 4 February 2025
Delivered: 25 June 2025
JUDGMENT
TSHISEVHE, AJ
Introduction
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[1] An application for review is regulated in terms of Section 145(1) (a) of the
Labour Relations Act1 (LRA).
[2] The Applicant herein (Ms Nomfundo Khumalo) filed a review application within
the required time frames.
[3] As per the Applicant’s submission, the review application was not properly
before the court as the founding affidavit could not be found in the Court file.
[4] The Applicant established the issue of a missing founding affidavit on the 23
rd
of November 2023 when she uplifted the court file and was , as a result , advised to
file a condonation application.
[5] The condonation application is not opposed.
Material background facts
[6] The Applicant was employed by the Third Respondent on 8 Nov ember 2017
as a Universal Cash Consultant (Teller).
[7] The Applicant’s responsibilities included, amongst others , balancing cash
daily, reporting differences , as well as maintaining effective security controls ,
including maintaining a high level of honesty, integrity and ethical standards.
[8] At the time of the commission of misconduct, the Applicant had been off duty
for some two weeks as her mother who also works for the same company took ill and she only returned to work on 20 December 2021.
[9] That on the day she returned to work she was assigned till 41 and at the end
of the day her till reflected as balanced.
1 Act 66 of 1995, as amended.
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[10] That the following day on 21 December 2021, during a monthly surprise check
of Applicant’s cash balance in her till, her supervisor ( Alleta Mukosi) discovered a
bag of R20 in R1.00 coins in the Applicant’s till tray which was not accounted for.
[11] That she o ught to have reported the sai d money and same should be
investigated as it violates banking rules and procedures.
[12] That upon investigations, it was discovered that on 20 December 2021, the
Applicant attempted to balance her till four times where she consistently reflected an amount of R11 in a form of R1.00 coins which was contrary to the R31 in R1.00
coins that was discovered during the surprise check.
[13] That during further investigation, it was discovered in the CCTV footage that
the Applicant’s attempts to balance her till on 20 December 2021 had a discrepancy of R0.50c in her balancing till, which was in the following manner:
13.1 On her first balancing attempt, records showed an amount of R22,50 in
R0,50c coins and as a result, a difference in the amount of R20.50 was
recorded;
13.2 On her second attempt, the records showed an amount of R2.50 in
R0,50c coins with a difference of R0,50c being recorded.
13.3 On the last attempt, records showed an amount of R2.00 in R0,50c
coins and ultimately, no difference was recorded. The till was balanced.
[14] That on the CCTV footage the Applicant was seen removing the R0,50c coin
from the till.
[15] That the Applicant was trained in her duties as she attended courses and she
was well aware of what was expected of her in line with Bank’s Code of Ethics.
[16] That in terms of Bank’s Disciplinary code, falsification of bank records is a
dismissible offence as it destroys trust relationship.
[17] The Applicant was suspended on 22 December 2021 and appeared before a
disciplinary enquiry on 4 March 2022 facing charges of misconduct relating to
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dishonesty as a result of falsification of balancing records and failure to follow
company procedures in that she failed to notify her line manager of the discrepancy
during her till balancing process.
[18] The third charge was that of dishonesty owing to her misappropriation of
funds from her till.
[19] The Applicant was acquitted of charge two and found guilty of charge one and
three which led to her dismissal on 11 March 2022.
[20] The Applicant referred her dismissal case to the First Respondent with the
Second Respondent as an arbitrator.
[21] The Second Respondent dismissed her application hence she filed for review
of such award citing several grounds of irregularities.
[22] The Applicant fi led a review application outside the prescribed time lines and
as a result, the review application will be preceded by the application for
condonation.
Condonation for the late filing of the r eview application
[23] The facts are recorded in the papers , and there is no need to burden this
judgment with a repetition.
[24] However, it is sufficient to state that it is common cause that the notice of
motion of the review application was filed timeously, however, the founding affidavit
went missing from the Court file.
[25] It is trite that i f condonation is not granted, this Court lacks the necessary
jurisdiction to consider the review application , and if the condonation is granted, it is
only then that I will turn to consider the review application.
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[26] One of the purposes of the LRA is the speedy resolution of disputes.
Therefore, when a party is dilatory in instituting or referring a dispute to this Court,
they are sort of defeating the purpose of the LRA, which in the end frustrates the
opponent in the matter.
[27] However, it is not all the time where the delay in finalising or filing for a review
is deliberate or wilful.
Reason for the delay
[28] The Applicant argued that she filed the review application within the required
time lines, however, the founding affidavit went missing from the C ourt file.
[29] Therefore, without any opposition of such application, this Court is inclined to
accept the averred reason as it seem reasonable.
Length of delay
[30] The founding affidavit replacing the missing founding affidavit was filed on 4
April 2023, some period of around four months after the original documents were
filed.
[31] The length of delay is excessive.
Prospects of success
[32] The Applicant’s prospects of success can be well gleaned in the founding
affidavit.
[33] The law does not require that prospects of success be excellent but
reasonable.
[34] It is trite that a satisfactory explanation of delay may compensate the
prospects of success.
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[35] I should state outright that in my view , the period of delay is excessive but
given the explanation herein such delay is not unreasonable as it is apparent from
the application.
Prejudice
[36] It is trite that the Applicant stands to suffer prejudice should this condonation
application be refused.
Analysis of condonation application
[37] Turning to the substance of the Applicant's Condonation Application, it is
important to first identify the legal principles applicable to condonation applications.
[38] In accordance with the provisions of section 145 (1)A of the LRA, this Court
may on good cause shown condone the late filing of a review application.
[39] It is well accepted that condonation cannot be had for the mere asking. This
notion was emphasised in Grootboom v National Prosecuting Authority and
Another ,2 where the Constitutional Court, per the majority judgement, stated that:
‘[22] ...[T]he standard for considering an application for condonation is the
interests of justice. However, the concept “interests of justice” is so elastic that
it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate
determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above.
2 2014 (2) SA 68 (CC) ; [2014] 1 BLLR 1 (CC) (Grootboom ).
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The particular circumstances of each case will determine which of these
factors are relevant.
[23] It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it to the court’s
indulgence. It must show sufficient cause. This requires a party to give a full
explanation for the non- compliance with the rules or court’s directions. Of
great significance, the explanation must be reasonable enough to excuse the
default.’
[40] The well -established legal principles are set out in Melane v Santam
Insurance Co. Ltd
3 (Melane) . The approach which the Labour Court and the Labour
Appeal Court (LAC) have followed in determining whether good cause has been
shown is the often- referred -to passage enunciated by Holmes JA in Melane:
‘In deciding whether sufficient cause has been shown, the basic principle is that the C ourt has a discretion, to be exercised judicially upon a consideration
of all the facts , and in essence is a matter of fairness to both sides. Among the
facts usually relevant are the degree of lateness, the explanation therefor , the
prospects of success, and the importance of the case. Ordinarily these facts
are interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion...’
[41] In applying the ratio in Melane, the Court in Academic & Professional Staff
Association v Pretorius NO & others ,
4 summarised the principles for consideration as
follows:
‘[17] The factors which the court takes into consideration in assessing
whether or not to grant condonation are: (a) the degree of lateness or non-
compliance with the prescribed time frame; (b) the explanation for the
lateness or the failure to comply with time frame; (c) prospects of success or
bona fide defence in the main case; (d) the importance of the case; (e) the
respondent's interest in the finality of the judgment ; (f) the convenience of the
court ; and (g) avoidance of unnecessary delay in the administration of
justice…
3 1962 (4) SA 531 (A); [1962] 4 All SA 442 (A) at 532 C - E.
4 (2008) 29 ILJ 318 (LC) ; [2008] 1 BLLR 1 (LC) at paras 17 - 18.
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[18] It is trite law that these factors are not individually decisive but are
interrelated and must be weighed against each other. In weighing these
factors for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly, strong prospects of success may compensate the inadequate explanation and long
delay. ’
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[42] In this C ourt, the principles have long been qualified by the rule that where the
period of delay is satisfactorily explained, the applicant’s prospects of success are
compensated.
[43] I therefore see no reason why the application for condonation for the late filing
of the review application should not succeed.
[44] I now turn to consider the review application.
Arbitration proceedings
[45] The Second Respondent found that the dismissal of the Applicant was
substantively fair on the following grounds:
45.1 That the Applicant in her statement seems to be in agreement that she
had differences in her till, however, same was caused by seizures that be fell
her.
45.2 That she had a clean record and the sanction of dismissal was
therefore inappropriate.
45.3 That the extra R20 that was found in her bag of coins was never
miraculous because when the money was counted by her supervisor , it was
done in her presence.
45.4 That the Applicant failed to produce any proof to support her
allegations that someone might have placed the extra coins in her bag.
45.5 However, the Applicant’s defence is contrary to what she wrote in her
statement that she wrote when asked to explain what happened where she
5 See also: Minister of Public Works and Infrastructure v GPSSBC and others [2024] JOL 65513 (LC).
9
stated that: “I thought I had balanced properly the previous day but to my
surprise I had mistakenly omitted a tray of R1.00 which amounted to R20 and
this happened because I had seizures about four times the previous day and I
forced myself to come to work …”.
45.6 That the Applicant argues that when she wrote the above statement
she did not have any legal representative to guide her. However, the above
statement debilitate her case, let alone being deleterious to her defence.
45.7 That the Applicant was aware of the rules as per her concession during
cross- examination.
45.8 That the Applicant could be seen from the CCTV footage taking the
R0.50c from the till and putting it in her pocket in order to manipulate the
system . This she did after several attempts to balance with no success.
45.9 That the Applicant’s submission that she did not put anything in her
pocket is rejected as her hand became free after that , and her till then
balanced.
45.10 That it is common cause that the Applicant’s conduct attracts a penalty
of dismissal in terms of the Third Respondent’s code.
Grounds for review
[46] The Applicant raised several grounds of review and the salient one are
summar ised below as follows:
46.1 That the award is unreasonable based on the totality of evidence
before the arbitrator . More especially considering that she never had
differences or surpluses in her till for a period of a year.
46.2 That she had seizures and had to be transported to the hospital with an
ambulance.
46.3 There is no evidence that she took the R0.50c , even though the
Second Respondent said during the hearing that she cannot see anything.
46.4 That her physician recommended that she be removed from stressful
duties or cash space.
46.5 That she was dismissed without considering her health in general.
46.6 That in the morning of the incident , she forced herself to attend to work ,
whereas she had seizures five times and her health was capricious .
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The Issue to be decided
[47] I am required to determine whether the finding of the Second Respondent that
the dismissal of the Applicant was substantively fair based on the totality of evidence
before her.
[48] If I find that it was unreasonable, I am required to interfere with such a
decision and substitute it with an appropriate one.
Test for r eview
[49] The test that the Labour Court is required to apply in a review of an
arbitrator’s award is to determine whether the decision reached by the commissioner
is one that a reasonable decision maker could not reach within the totality of
evidence at his disposal .
[50] The Constitutional Court settled the issue of the test for review of an
arbitration award in the case of Sidumo & another v Rustenburg Platinum Mines Ltd
& others (Sidumo) .
6 The C ourt at paragraph 110 held that the test for review is
whether the decision reached by the Commissioner is one that a reasonable decision maker could not reach in relation to the totality of evidence before him or her.
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[51] This C ourt is entitled to intervene if and only if the arbitrator’s decision is one
that falls outside of a band of decisions to which a reasonable decision- maker could
come to on the available material evidence before her .
6 (2007) 28 ILJ 2405 (CC) (Sidumo ) at para 110.
7 In CUSA v Tao Ying Metal Industries and others [2009] 1 BLLR 1 (CC) ; 2009 (1) BCLR 1 (CC) at
paras 76 and 134 the Constitutional Court held that it is now axiomatic that a commissioner of the
CCMA (or an arbitrator of a bargaining council) is required to apply his or her mind to the issues
before him or her and that failure to do so may result in the ensuing award being reviewed and set
aside. The irregularity must , however , result in an unreasonable outcome or misconception of the true
enquiry , resulting in no fair trial of the issues. See also Sidumo .
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[52] The LAC in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v C ommission
for Conciliation, Mediation & Arbitration & others8 affirmed the test to be applied in
review proceedings and held that:
‘[16] 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.
…
[18] … the review ing court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with one
or some of the factors amounts to process related irregularity sufficient to set
aside the award. This piecemeal approach of dealing with the arbitrator’s
award is improper as the reviewing court must necessarily consider the totality
of the evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision maker could make.’
Analysis of submissions
[53] The law justif ies setting aside an award on review if the decision is “ entirely
disconnected with the evidence” or is “ unsupported by any evidence” and involves
speculation by the commissioner.
[54] The Applicant tenaciously argued that she did not have surplus before,
however, in her statement she indicated otherwise as the Second Respondent found.
[55] The Applicant in buttressing her case submitted that the surplus found in her
till bag might have been placed there by someone else without supporting same with evidence.
8 (2014) 35 ILJ 943 (LAC) at paras 16 and 18.
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[56] The Second Respondent’s finding that the Applicant can be seen from the
CCTV footage placing something in her pocket and thereafter her till balanced
cannot be ignored as they both enervate her case flagrantly so.
[57] In this regard, I am not convinced that the Applicant has demonstrated
material errors in the award of the Second Respondent. On the other hand, the
Applicant’s serendipity should be praised.
[58] In determining whether the result of an arbitrator’s award is unreasonable, the
Labour Court must broadly evaluate the merits of the dispute and consider whether
the arbitrator’s reasoning is found to be unreasonable, the result is nevertheless
capable of justification for reasons other than those given by the arbitrator.
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[59] The result will, however, be unreasonable if it is entirely disconnected from
the evidence, unsupported by any evidence and involves speculation by the arbitrator.
[60] I do not see any reason to excoriate the findings of the Second Respondent ,
as her finding is pithily or succinctly addressed.
[61] I am not convinced that the award is entirely disconnected from the evidence
before the arbitrator.
[62] The epiphany of the surplus money found in the till bag of the Applicant
resonates well with the decision of the arbitrator.
Conclusion
[63] Having considered the evidence adduced at the arbitration proceedings, the
findings made by the arbitrator and the grounds for review as raised by the Applicant, I find that the arbitrator ’s award is reasonable under the circumstances .
9 See: National Union of Mineworkers & another v Samancor Ltd (Tubatse Ferrochrome) & others
(2011) 32 ILJ 1618 (SCA) ; [2011] 11 BLLR 1041 (SCA) .
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[64] Therefore, there is no reason for me to interfere with her decision as it is a
reasonable one.
[65] The award of the Second Respondent seems to be sagaciously arrived at ,
and the reasons provided therein are, in my view, legally sound, factually correct,
and highly substantiated by the transcript.
[66] Pursuant to the above, t he arbitrator’s decision does pass the Sidumo test.
Costs
[67] I have had regard to the requirements of law and fairness in considering costs
and am of the view that costs should only be awarded where it is warranted.
[68] I am of the view that a cost order is not warranted in this matter.
[69] In the premises, I make the following orders:
Order
1. Condonation for the late filing of the review application is hereby
granted.
2. The r eview application is hereby dismissed .
3. No order is made as to costs.
N Tshisevhe
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Ms N Khumalo
Instructed by: Self Representing
For the Respondent: Mr D octor Cithi
Instructed by: Taback Attorneys Inc