Not reportable
THE LABOUR COURT OF SOUTH AFRICA ,
HELD AT CAPE TOWN
Case no: C 610/2022
In the matter between:
VERNON MARCHEL LOMBARD Applicant
And
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER C M BENNETT Second Respondent
NETCARE HOSPITALS (PTY) LTD t/a NETCARE
KUILSRIVER HOSPITAL Third Respondent
Heard : 1 July 2025
Delivered : 7 July 202 5
Summary : application to review – review dismissed – applicant failed to prove
that commissioner failed to properly consider the evidence or that the decision is
one that a reasonable decision maker could not reach .
________________________________________ __________________ ____
JUDGMENT
_______________________________________________________________
DE KOCK, AJ
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Introduction
[1] This matter concerns an application by the applicant (Lombard) to review
and set aside an arbitration award given by the second respondent
(Bennett ) in his capacity as a commissioner of the first respondent
(CCMA) . The application has been brought in terms of section 145 of the
Labour Relations Act1 (‘the LRA’).
[2] The matter arose from the alleged unfair dismissal of Lombard f or
allegations of sexual harassment and unsolicited sexual conduct towards
female colleagues . The arbitration proceedings before Bennett took
place on 1 November 2022 . Bennett , following the conclusion of the
arbitration proceedings, issued an award date d 14 November 2022
wherein he found that Lombard’s dismissal was substantively fair. It is
this determination that gave rise to the current review application.
Jurisdictional challenges
[3] The third respondent (Netcare) argued that the review application was
withdrawn because of the deeming provisions contained in clause 11.2.3
of the Labour Court Practice Manual, which was applicable at the time
that Lombard’s default took place. It was argued that, more over and in
any event, the Labour Cour t Rules, 2024 contain substantially identical
provisions and, to the extent that these Rules apply retrospectively, the
legal position remains the same. The court is satisfied that the 2024
Labour Court Rules do not apply retrospectively regarding the dee ming
provisions and that the reinstatement application must be considered in
1 Act 66 of 1995 (as amended).
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terms of the Labour Court Practice Manual that was applicable at the
time that Lombard’s default took place.
[4] Mr Wh yte, appearing for Netcare, argued that the reinstatement
application is defective as it has not been supported by a notice of
motion, and thus does not comply with the Labour Court Rules (the Old
Rules) or the Labour Court Practice Manual. The application only
consists of an affidavit headed “application for con donation for late filing
of review application”.
[5] The court is not inclined to adopt an overly technical approach to
Lombard’s application for the reinstatement of the review application. It
may be so that a notice of motion did not accompany the affi davit, and
that the heading of the affidavit does not specifically state that what is
sought is the reinstatement of the review application. It is however clear
that Netcare understood what Lombard did was to seek an order for the
reinstatement of the rev iew application, and his application was fully
opposed in Netcare’s answering affidavit. There is therefore no prejudice
to Netcare in this regard and the court will accept Lombard’s actions as
substantial compliance with the Rules, and the Labour Court P ractice
Manual.
[6] The court considered Lombard’s explanation for his failure to ensure that
the record has been timeously delivered, and Netcare’s opposition
thereto. The court is satisfied that there is a reasonable explanation for
the delay in deli very of the record, that the delay was not severe and that
Lombard showed sufficient prospects of success to succeed in the
application for reinstatement of the review application. The review
application is therefore reinstated, and the merits of the revi ew
application will be addressed hereunder.
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[7] Mr Wh yte also challenged the further grounds of review included in
Lombard’s heads of argument. The court pointed out to Lombard, during
arguments, that a litigant is not entitled to raise new grounds of r eview in
their heads of argument, especially since Netcare was not afforded an
opportunity to answer to these grounds of review when they delivered
their answering affidavit. The grounds of review, as raised in the
founding affidavit, are therefore the gr ounds of review which the court will
consider in the review application. The further grounds of review, as
raised for the first time in Lombard’s heads of argument, will not be
considered.
The relevant background
[8] Lombard was dismissed on 29 July 2022, having been found guilty of two
independent charges of sexual harassment. Specifically, he was
accused of making patently inappropriate sexual remarks inviting female
colleagues to have a “ quickie ” and made requests to “ kiss”, “touch ” and
“feel” them. The two female colleagues presented evidence that
Lombard’s conduct was unwelcome, part of ongoing abuse and infringed
their right to be free of such conduct.
The CCMA award
[9] Bennett made the following material findings in his award:
(a) The balance of probability is the standard of proof to be applied to
the factual disputes between the parties.
(b) Lombard’s defence, apart from denial, was to allege, without
corroboration, that there was a conspiracy involving Domingo,
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who did not like him , and the two complainants, Struis and
Serfontein.
(c) The probabilities favoured the conclusion that Lombard was guilty
of the charges brought against him.
(d) Lombard’s suggestion that the conduct would have stopped had
he been taken aside and warned about his conduct, essentially
amounted to a concession that the conduct did, in fact, take place
– contrary to his denials.
The test for review
[10] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others ,2
the Court held that ‘the reasonableness standard should now suffuse
section 145 of the LRA’, and that the threshold test for the
reasonableness of an award was: ‘…Is the decision reached by the
comm issioner one that a reasonable decision -maker could not reach?...3.
In Herholdt v Nedbank Ltd and Another4 the Court applied this
reasonableness consideration as follows:
‘… A result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are no t in and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable. ’
2 (2007) 28 ILJ 2405 (CC).
3 Id at para 110.
4 (2013) 34 ILJ 2795 (SCA) at para 25.
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[11] This test has thus been applied as a two -stage review enquiry. Firstly,
the review applicant must establish that there exists a failure or error on
the part of the arbitrator. If this cannot be shown to exist, that is the end
of the matter. Secondly, if this failure or error is shown to exist, the
review applicant must then further show that the out come arrived at by
the arbitrator was unreasonable. If the outcome arrived at is nonetheless
reasonable, despite the error or failure, that is equally the end of the
review application. In short, in order for the review to succeed, the error
or failure m ust affect the reasonableness of the outcome to the extent of
rendering it unreasonable.
[12] Further, the reasonableness consideration envisages a determination,
based on all the evidence and issues before the arbitrator, as to whether
the outcome of the arbitrator arrived at can nonetheless be sustained as
a reasonable outcome, even if it may be for different reasons or on
different grounds.5 This necessitates a consideration by the review court
of the entire record of the proceedings before the arbitrator, as well as
the issues raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain the outcome
arrived at by the arbitrator. In the end, it would only be if the outcome
arrived at by the arbitrator cannot be sustained on any grounds, based
on the material, and the irregularity, failure or error concerned is the only
basis to sustain the outcome the arbitrator arrived at, then the review
application would succeed.6
5 Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration
and Others (2008) 29 ILJ 964 (LAC) at para 102.
6 See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at
para 32; Anglo Platinum (Pty) Ltd ( Bafokeng Rasemone Mine) v De Beer and Others (2015) 36
ILJ 1453 (LAC) at para 12.
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[13] The court will now proceed to consider the review application by the
applicant against the above principles and test applicable to review
applications .
Grounds of review
[14] Lombard’s grounds of review, as contained in his founding affidavit, are
that:
(a) Bennett co nsidered hearsay evidence.
(b) That the evidence before Bennett was insufficient and/or unduly
influenced by Domingo.
(c) That the disciplinary process was unfair.
Analysis of the grounds of review
[15] In respect of the allegation by Lombard that Bennett considered hearsay
evidence, this ground of review is not supported by the evidence placed
before Bennett. The two female colleagues, referred to in the charges,
were called to present evidence during t he arbitration proceedings. Their
evidence therefore does not amount to hearsay evidence, and this
ground of review has no merit.
[16] The second ground of review is that there was not sufficient evidence
placed before Bennett, and that the evidence so presented was unduly
influenced by Domingo. Having perused the transcribed record, the
court is unable to find any merit in this ground of review. The two female
colleagues presented clear evidence regarding their respective
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complaints and Bennett’s acce ptance of their evidence, compared to the
mere denials by Lombard, cannot be said to be a decision that a
reasonable decision maker could not reach. Bennett applied his mind to
their evidence and Bennett’s conclusions fall within the bands of
reasonablene ss. There is no reason for the court to interfere with his
decisions regarding the evidence of the two female colleagues regarding
sexual harassment.
[17] Insofar as Lombard alleges that Domingo unduly influenced their
evidence, there is no merit to this allegation. There was no evidence
before Bennett to justify a conclusion that the two female colleagues ’
evidence was influenced by Domingo in any manner whatsoever.
Bennett’s failure to find that their evidence was unduly influenced by
Domingo cann ot be criticised on review.
[18] The third and last ground of review, as pleaded in the founding affidavit,
relates to the alleged procedural unfairness of the disciplinary hearing.
Lombard did not challenge the procedural fairness of the disciplinary
hearing during the arbitration proceedings and there is no reason for the
court to entertain this ground of review.
[19] Insofar as Lombard’s ground of review of procedure relates to Netcare’s
decision not to warn Lombard of the allegations against him, the court
finds no reason to interfere with Bennett’s arbitration award. Bennett
properly addressed Lombard’s evidence in this regard when he found
that Lombard’s evidence that he was not taken to one side, as per the
policy, and warned about his conduct is somewhat contradictory as if it
his conduct would have stopped, it is tantamount an admission that
Lombard was conducting himself in that manner, which Lombard denies.
[20] Lombard’s conduct, as per the evidence of the two female colleagues,
and as acc epted by Bennett, justified Netcare’s decision to follow its
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disciplinary process and not to address the complaints by warning
Lombard that his conduct was unacceptable.
[21] In conclusion, the court finds that Bennett correctly identified and
embarked upon the proper enquiry, which was to determine whether
Lombard’s dismissal was substantively fair. Bennett correctly identified
and applied the relevant standard of proof, which is a balance of
probabilities. Bennett’s finding that Lombard’s dismissal w as
substantively fair, given the evidence placed before him, falls within the
bands of reasonableness. The court is therefore unable to conclude that
Bennett’s decision is one that a reasonable decision maker could not
reach. There is further no evidence that Bennett committed misconduct
or committed a serious irregularity in how he conducted the arbitration,
and how he arrived at his conclusion.
Costs
[22] In terms of the provisions of section 162(1) of the LRA, I have a wide
discretion when it comes to the issue of costs. I am mindful of the dictum
of the Constitutional Court in Zungu v Premier of the Province of Kwa -
Zulu Natal and Others7 when it comes to the issue of costs in
employment disputes . In the matter before the court, there is no
compelling reason, in law and fairness, for an order to be made
regarding costs.
[23] In the premises, I make the following order:
Order
7 (2018) 39 ILJ 523 (CC).
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1. The review application is reinstated.
2. The application to review the award is dismissed.
3. No order is made as to costs.
_____________________________
C de Kock
Acting Judge of the Labour Court of South Africa
Representatives:
For the Applicant: In person (no representative)
For the Respondent s: Mr J Wh yte
From : Norton Rose Fulbright SA Inc.