THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JR458/22
In the matter between:
BARLOWORLD EQUIPMENT SOUTHERN
AFRICA (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION First Respondent
JOSIAS SELLO MAAKE N.O. Second Respondent
RUDZANI MOSES MASHOVHELA Third Respondent
Heard: 27 May 2025
Delivered: 27 May 2025
Reasons delivered: 24 June 2025(This judgment was handed down
electronically by circulation to the parties’ legal representatives by email,
publication on the Labour Court website and release to SAFLII. The date and time for handing- down is deemed to be 10h00 on 24 June 2025.)
2
REASONS FOR ORDER
PHEHANE , J
Introduction
[1] Three applications served before this Court.
[2] The first is an application by Barloworld Equipment Southern Africa (Pty) Ltd
(Barloworld) to reinstate its review application which lasped for lack of compliance with the provisions of item 11.2.7 of the former Practice Manual of this Court
1 (revival
application). The third respondent opposes the revival application.
[3] The second is an application by the third respondent to condone the late filing
of his answering affidavit in the review application, pur suant to Barloworld filing a
notice objecting to its late filing (condonation application). Barloworld opposes the
condonation application.
[4] The third is a review application launc hed by Barloworld in t erms of the
provisions of section 145 of the Labour Relations Act
2 (LRA) to review and set aside
the arbitration award by the second respondent dated 1 February 2022.
[5] On 27 May 2025, this Court handed down an order granting the reinstatement
application, dismissing the condonation application, review ing and setting aside the
arbitration award and substituting same with an order that the dismissal of the third
respondent is substantively fair, and ordering the third respondent to pay the costs.
[6] The reasons for the orders follow .
1 Practice Manual of the Labour Court of 2013 (repealed on 17 July 2024). Item 11.2.7 provided that
all the necessary papers in a review application must be filed within 12 months of the launch of the
review application, failing which the application will lapse and will be archived.
2 Act 66 of 1995, as amended.
3
Revival application
[7] Barloworld’s notice in terms of the former Rule 22 B of the now repealed
Rules for the Conduct of Proceedings in the Labour Court
3 (the former rules) was
delivered approximately nine days late. This period of delay is minimal.
[8] This Court is satisfied that good reasons have been proffered by Barloworld
for the delay. Barloworld has demonstrated that it has reasonable prospects of
success in the review application. In the interests of justice, this C ourt exercised its
discretion to grant the revival application. T herefore, the review application is
reinstated.
Condonation application
[9] The test to succeed in an application for condonation is well established.
4 An
applicant for condo nation seeks the indulgence of the C ourt. Condo nation is not for
the mere asking. The onus is on the applicant to demonstrate good cause for the
delay and in so doing, the applicant must provide a detailed and accurate
explanation for the entire period of delay .5
3 GN 1665 in GG 17495 of 14 October 1996 (repealed on 17 July 2024).
4 Melane v Santam Insurance Co Ltd [1962] 4 All SA 442 (A) ; Grootboom v National Prosecuting
Authority and another [2014] 1 BLLR 1 (CC).
5 In Independent Municipal and Allied Trade Union on behalf of Zungu v South African Local
Government Bargaining Council and Others (2010) 31 ILJ 1413 (LC) the Labour Appeal Court held as
follows at para 13: “In explaining the reason for the delay, it is necessary for the party seeking
condonation to fully explain the reason for the delay in order for the court to be in a proper position to
assess whether or not the explanation is a good one. This in my view requires an explanation which
covers the full length of the delay. The mere listing of significant events which took place during the
period in question without an explanation for the time that lapse between these events does not place
a court in a position properly to assess the explanation for the delay. This amounts to nothing more
than a recordal of the days relevant to the prosecuting of a dispute or application, as the case may
be”.
4
[10] The third respondent failed to provide a detailed and accurate explanation for
the entire period of delay. The extent of the delay is eight months, which is excessive
in view of the ethos of the LRA that employment law disputes are to be resolved
expeditiously.
[11] The explanation for the delay over the period that is accounted for, is not
reasonable. The third respondent was passive and did not pursue his opposition in the review application diligently. His excuses of not having network coverage where
he resides and thus not being contactable to his legal representatives is not a good reason for the delay. The reason proffered in respect of the exchanges between his legal insurer and his legal representatives in respect of payment for lega l services is
equally not a good reason for the delay. Where no reasonable explanation is
proferred for the delay, the prospects are immaterial.
6
[12] In the present case, the third respondent has failed to demonstrate to this
Court that he has reasonable prospects of success in the review application.
Therefore, in consideration of the aforegoing, it is not in the interest of justice to grant
condonation for the late filing of the answering affidavit.
Review application
[13] In view of the aforegoing orders , the review application proceeded on an
unopposed basis.
[14] The test on review is trite.
7
Brief factual background
6 National Union of Mineworkers v Council for Mineral Technology [199] 3 BLLR 209 (LAC) .
7Sidumo and Another v Rustenburg Platinum Mine Ltd and Others [2007] BLLR 1097 (CC). Goldfields
Mining South Africa (Pty) Ltd (Kloof Goldmine) v Commission for Conciliation, Mediation and
Arbitration and others [2014] 1 BLLR 20 (LAC); Herholdt v Nedbank Limited and Congress of South
African Trade Unions (Amicus Curiae) [ 2013] 11 BLLR 1074 (SCA).
5
[15] Whistleblowers resported to Barloworld that employees were complicit in
defrauding its medical aid scheme. Followi ng an investigation, two anonymous
witnesses named the third respondent as a par ticipant in this scheme. Consequently,
the third respondent was called to a disciplinary hearing to answer to the following
allegation of misconduct:
‘CHARGE 1 : DISHONESTY AND/OR ALTERNATIVELY COMPLICIT IN
SUBMITTING IRREGULAR CLAIMS in that:
you have perpetrated and/or you were complicit in filing irregular claims against B arlowold Medical Scheme while you have not consulted and/ or used
the services of the following service providers:
1. MR MZAMANI DONALD MATHEBULA’.
As a result of your dishonest actions Barloworld Medical Scheme has
unwarrantedly and unduly paid the above service providers R17 978,20 which
in actual fact should not have been paid to the said service providers.
8
[16] The third respondent was dismissed following the disciplinary hearing. He
subsequently referred an unfair dismissal dispute to the first respondent which was arbitrated by the second respondent. Procedural fairness was not in dispute. [17] The second respondent found that the third respondent’s dismissal was
substantively unfair and ordered Barloworld to pay the third respondent six months’
salary compensation plus interest.
[18] Barloworld challenges this decision by the second respondent.
Grounds of review
8 Records bundle at p 5.
6
[19] The grounds of review are that the second respondent committed a gross
irregularity and / or a material error of law and misconstrued the nature of the enquiry
before him in the following respects:
19.1 He refused to consider the admission of hearsay evidence in
circumstances where whistleblowers had alerted Barloworld to the misconduct of the third respondent for which he was charged.
19.2 He raised the threshold of the onus in a disciplinary hearing to proof
beyond reasonable doubt and failed to assess the circumstantial evidence
before him on a balance of probalities .
19.3 On numerous occasions, the second respondent interrupted
Barloworld’s representative and assisted the third respondent in his defence.
Evaluation
[20] Section 3 of the Law of Evidence Amendment Act
9 (LEAA) provides:
‘3. Hearsay evidence
(1) Subject to the provisions of any other law , hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless —
(a) each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of
such evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to—
(i) the nature of the proceedings;
(ii) the nature of the evidence ;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence ;
9 Act 45 of 1988.
7
(v) the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might
entail; and
(vii) any other factor which should in the opinion of the court be taken into
account,
is of the opinion that such evidence should be admitted in the interests of
justice.
(2) The provisions of subsection (1) shall not render admissible
any evidence which is inadmissible on any ground other than that
such evidence is hearsay evidence .
(3) Hearsay evidence may be provisionally admitted in terms of subsection
(1) (b) if the court is informed that the person upon whose credibility the
probative value of such evidence depends, will himself testify in such
proceedings: Provided that if such person does not later testify in such
proceedings, the hearsay evidence shall be left out of account unless the
hearsay evidence is admitted in terms of paragraph ( a) of subsection (1) or is
admitted by the court in terms of paragraph ( c) of that subsection.
(4) For the purposes of this section—
“hearsay evidence” means evidence , whether oral or in writing, the probative
value of which depends upon the credibility of any person other than the person giving such evidence ;
“party” means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution. ’
[21] Section 3(1)(c) of the LEAA provides factors that a triar of evidence may take
into account in determining whether it is in the interests of justice to admit hearsay evidence. It is tri te that in terms of section 138 of the LRA, a commissioner has a
discretion to conduct an arbitration in a manner that he or she considers appropriate so as to determine a dispute fairly and quickly and to do so with minimum legal
formalities. However, this does not imply that the commissioner may arbitrarily exclude hearsay evidence.
8
[22] The second respondent insisted on direct evidence in circumstances where
the facts of the case before him related to whistleblowers placing evidence before an
employer upon which evidence, an employee was charged for misconduct. The second respondent did not permit the representative of Barloworld to make representations to him, despite repeated requests, on the admission of hearsay evidence. He considered prejudice to the third respondent only and that the authors of the affdiavits would not be called as witnesses. He r epeatedly r efused to hear any
submissions on the admissibility of hearsay evidence. He stated that he was well
aware on the provisions of the LEAA,
10 yet he failed to properly apply them.
[23] Applying the common law rules for the exclusion of hearsay evidence without
any consideration of section 3(1)(c) of the LEAA was not in the interests of justice. Further, refusing to permit any submissions in regard to the admission of hearsay
evidence was grossly irregular , and denied Barloworld a fair hearing.
[24] Had the second respondent considered the law in relation to the admissibility
of hearsay evidence, he would have undertaken the correct inquiry in terms of Section 3(1) of the LEAA. Having failed to do so renders his decision unreasonable.
[25] Depsite the charge of misconduct being placed before the second
respondent, he was was of the view that the charge related to fraud. He was fixated on Barloworld having to prove fraud beyond a reasonable doubt. He was further
fixated on Barloworld having to prove that moni es were exhanged between the
practitioner who submitted fraudulent claims to the medical aid (Mr Mathebula, a
physiotherapist) and the third respondent , and required Barloworld to prove that Mr
Mathebula was unjustly enri ched.
11 This is not what the third respondent was
charged for.
[26] The second respondent ignored, closed his mind to, and without any basis for
doing so, rejected the evidence of Barloworld’s human resources business partner,
Ms Maphalle, who led evidence on the multiplicity o f duplicated medical aid claims
10 Transcribed record at pp 183 to 187.
11 Transcribed record at pp 250 to 256.
9
by Mr Mathebula for alleged treatment on the third respondent which raised alarm
bells for Barloworld .12 He does not mention her evidence in his arbitration award.
[27] In Country Fair Foods (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration and Others13 the Labour Appeal Court ( LAC) stated that it is not expected
for commisisoners to write well resear ched and sc holarly awards and that awards
are to be brief. However, a failure to deal with an important facet may, depending on
the circumstances, indicate that a commisisonet failed to apply his or her mind to
that partucular facet.
[28] Ms Maphalle stated that in view of the multiplicity of claims, had they been
genuine, the thir d respon dent was obliged to report his illness to Barloworld and he
would have been subjected to incapacity procedures , which he was not.
[29] Therefore, in failing to deal with the evidence of Ms Maphalle and insisiting on
direct evidence throughout the proceedings, the second respondent failed to apply
his mind to the circumstantial evidence before him.
[30] In Komape v Spoornet (Pty) Ltd and others
14 this Court stated as folloiwng
regarding the assessment of circumstan tial evidence:
‘In assessing circumstantial evidence the arbitrator should always consider
the cumulative effect of all the item s of the evidence before him or her . In
assessing the inference to be drawn from the facts the commissioner should
look at the totality of the evidence and weigh it on a balance of probabilities .
See Zeffert et al, (supra), Numsa v Kia Motors (2007) 28 ILJ 2283 [also
reported at [2007] JOL 20069 (LC) – Ed], SA Nylon Printers (Pty) Ltd v Davids
1998 2 BLLR 135 (LAC) at 1369 [also reported at [1998] JOL 1833 (LAC) –
Ed]. The inference must be drawn through a careful survey of the connection
between the facts and their relationship to the offence alleged to have been
12 The multiple claims appear on p 77 of the documentary bundle. Her evidence in relation thereto is
from p 212 to 215 of the transcribed record.
13 (1999) 20 ILJ 1701 (LAC) at para 39.
14 (2008) 29 ILJ 2967 (LC) at para 28.
10
committed by the employee. To this extent the court in Smith v Arthurs 1976
(3) SA 378, when dealing with circumstantial evidence the court held that: "All
the relevant facts must necessary go into the melting pot and the essence must finally be extracted there from. ”’
(Own emphasis).
[31] Faced with circumstantial evidence, the second respondent was duty bound
to consider the cumulative effect of all the evidence before him and ought to have drawn an inference through a careful survey of the connection between the facts and
and the offence alleged to have been committed by the third respondent. In
assessing the inference to be drawn f rom the facts, the second responden t ought to
have considered the probabilities taking into account the totality of evidence before him. The correct test is on a balance of probabilities. The second respondent ought
to have considered whether on a balance of probabilities, B arloworld discharged its
onus to prove that the third respondent was guil ty of the offence for which he was
charged.
[32] The failure by the second respondent to assess the circumstantial evidenc e,
apply his mind to the charge that was levelled against the third respondent and to raise the threshold of proof for Barloworld constitute gross irregularities that render his outcome unreasonable.
[33] It is worth noting that at the start of the proceedings, the second respondent
refused the third respondent legal representation. He however, ruled that the third respondent’s legal representative could remain seated in the venue and be avai lable
to consult and assist the third respondent in his defence.
15
[34] The second respondent effectiv ely led the third respondent’s cross -
examination and defence on his behalf. He unequivocally stated that he acts in the
interest of the parties and can dictate how to conduct the proceedings.
16 Barlowor ld’s
representative and witnesses were interrupted on several occasions. This is
15 Trans cribed record ap p 176, lines 1 to 5.
16 Transcribed record at p 205, lines 20 to 25.
11
apparent from the traanscribed record. His tone cannot be described other than
bullyism .17 In so doing, the second respondent committed a gross irregularity which
rendered his outcome unreasonable.
[35] The grounds of review all have merit. The second respondent failed to apply
his mind to the evidence, committed gross irregularities in the conduct of the proceedings as set out above which renders his dec ision unreasonable.
[36] On the record before this Court, there is sufficient basis for this Court to
substitute the arbitrator’s award.
Costs
[37] The third respondent opposed the revival application on an incorrect premise
that the review application had lapsed as contemplated in item 16 of the former Practice Manual of this Court ,
18 averring that the review application lapsed on 5
January 2023 as no further steps wer e taken by Barlowold since 5 Jul y 2022 . This
contention is mischievous, as the third responden t failed to file its answering aff idavit
which was to be filed on 4 July 2022 . The answering affidavit was filed approximat ely
eight months late, on 28 March 2023. The third respondent cannot contend that the last process fi led was on 5 July 2022 when no process was filed on that date.
[38] Barloworld filed all the necessary papers in the review application as required,
barring the notice i n terms of the former Rule 22B which, read with item 11.2.7 of the
former P ractice Manual, required an applica nt to file all the necessary papers in the
review application and request a hearing date from the Registrar within 12 months of the launch of the review appl ication. The review ap plication was launched on 15
March 2022. The R ule 22B notice was file d on 28 March 2023, eight days late, due
to the third respondent filing its answering affidavit late.
17 See: transcribed recor d at p 204, lines 20 to 25 and p 205, line 1 to 25; p 186, lines 1 to 20.
18 Practice Manual of the Labour Court of South Africa, 2013 (repealed on 17 July 2024).
12
[39] During oral argument, t he third respondent ’s legal represent ative conceded
that the basis of opposition on th e premise of the review application having lapsed as
contemplated in item 16 of the Practice Manual was incorrect . Therefore, in my view,
the opposition was without merit and resulted in the further delay i n disposing of this
dispute. This, coupled with the fact that the di spute was delayed due to the late filing
of the th ird’s respondent’s answering aff idavit in circumstances where no good cau se
was shown for the delay .
[40] In short, the defence by the third respondent and the manner in which he
proceeded with his defence is unmeritorious. Barloworld is out of pocket for having to, when required, answer to unmeritorious defences by the third respondent.
[41] Thus, costs against the third respondent are warranted due to his conduct in
these pr oceedings.
[42] It is for the above reasons that the afor esaid order was made.
T. M. Phehane
Judge of the Labour Court of South Africa