IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C10/2020
In the matter between :
BUYELEKHAYA CHRIS NKWALI Applicant
and
TRANSNET NATIONAL PORTS AUTHORITY First Respondent
TRANSNET BARGAINING COUNCIL Second Respondent
COMMISSIONER T ERASMUS N.O Third Respondent
Heard: 31 July 2024
Delivered : This judgment was handed down electronically by circulation to the
parties' legal representatives by email and publication on the Labour
Court’s website. The date for hand -down is deemed to be on 09 July
2025
JUDGMENT
TLHOTLHALEMAJE , J
Introduction:
[1] In this opposed application, t he applicant seeks an order reviewing and setting
aside the arbitration award issued by the third respondent (Arbitrator) , in which
it was found that his dismissal by the first respondent , Transnet National Ports
Authority (‘TNPA’), was procedurally and substantively fair.
[2] The applicant further sought condonation for the late filing of his supplementary
affidavit. An explanation was proffered in that regard which the Court has no
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reason to reject. Accordingly, good cause was shown and the interests of
justice given the nature of the matter and the period since dismissal, dictate that
for the late filing of the supplementary affidavit in the review be condoned.
Background:
[3] The TNPA is one of Transnet SOC Ltd’s operating divisions and is responsible
for the provision of port services and facilities. The applicant was employed as
its Maritime Technical Manager (MTM) since October 2014. He was based in
the Marine Operations Department in Transnet, Port Saldanha , and report ed to
the then Marine Operations Manager (MOM ), Mr Dean Petersen.
[4] Amongst the duties of the applicant were the maintenance and Lay-up of all
Tugboats for the Port of Saldanha; management of all Marine projects;
mentoring of marine employees; procurement; management of marine building
projects; aligning TNPA with the South African Maritimes of South Africa
(SAMSA) which is the regulator in ensuring safety and property at sea and also
with Independent Communications Authority of South Africa (ICASA);
compliance with Health, Safety and environmental legislation; management
and coordination of all Human Resources related issues; and procurement of
new Tugboats and scrapping of old ones.
[5] A tug /vessel is a powerful boat used to move or pull vessels to the port and to
fetch vessels from the sea. It is used for certain cargo activities or cargo
handling from large vessels. It is piloted by a captain ( Tug Master) with a crew.
The TNPA at the Port of Saldanha had four tug -boats/vessels (Tug-Marcus,
Tug Meeuw, Pilot Inyoni and Pilot Avocat ), which were due for lay -ups during
2016/2017.
[6] The applicant was suspended in March 2017 and dismissed on 19 April 2018
following upon a disciplinary enquiry into various allegations of misconduct. The
charges were formulated as follows;
6.1 Gross dishonesty, gross negligence, dereliction of duties pertaining to Noi se
and Vibration testing . In this regard, the applicant is alleged to have in
September 2016, breached Transnet Procurement Polic y Manual (TPM) by
~
'y
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separating requisitions for noise and vibration testing services into 8
different requests (‘parcelling ’), in order to bypass the requests for quotes
(RFQ) process and/or de legation of authority , enabling him to sign off each
quotation as it fell under his delegation of authority (of R150.000.00) .
6.2 Gross Dereliction of duties: Non -compliance with Health and Safety
Prescripts – Noise and vibration testing , the applicant is alleged to have in
September 2016, failed to ensure compliance Health and Safety prescripts
during the procurement of services from service providers to conduct noise
and vibration testing on vessels at the Port of Saldanha .
6.3 Breach of the Public Finance Management Act (PFMA)1- noise and vibration
testing , it was alleged that , in September 2016 , he failed to take reasonable
steps to prevent irregular, fruitless and wasteful expenditure for noise and
vibration testing services on vessels in the Port of Saldanha, which were
estimated at R199 687.88 . These emanated from alleged failures to comply
with health and safety prescripts, bypassing TNPA Health and Safety
Department and failing to comply with procurement processes ;
6.4 Gross dereliction of duties, non -compliance with health and safety
requirements and breaches of the PMFA , the applicant is alleged to have
failed to take reasonable steps to prevent expenditure in April – November
2016 related to the Lay -up of tug boats Marcus and Meeuw in the amounts
of R636 185. 53, and R173 736.00 r espectively . In addition was such non -
compliance with work undertaken on Pilot Nyoni and Avocate :
6.5 Gross misconduct in that in 2016/2017, he breached Transnet Code of
Ethics by failing to declare business interests.
6.6 Putting the image of Transnet into disrepute by not following correct and
proper processes in the tug lay -up timeously and meeting the required
standards.
[7] Aggrieved with the dismissal, the applicant lodged an unfair dismissal dispute
with the second respondent , Transnet Bargaining Council (TBC) . When the
1 Act 1 of 1999
4
dispute could not be resolved at conciliation, it came before the Arbitrator , who
had issued the impugned award.
The arbitration proceedings :
[8] The applicant had challenged both the procedural and substantive fairness of
his dismissal. The arbitration proceedings took place over 8 days hence the
voluminous record encapsulating the Arbitrator’s 87 -paged award , the
pleadings and both parties’ equally lengthy heads of argument .
The challenge to procedural fairness and Arbitrator’s findings :
[9] The applicant challeng ed the procedural fairness of his dismissal on the
following grounds; viz – that he was denied an opportunity to present his version
during investigations into the allegations; denied access to information in
support of his case; the charges against him were vague and technical ; there
were excessive delays between the alleged misconduct, his suspension ,
scheduling the disciplinary enquiry, and ultimate dismissal ; he was denied legal
representation at the disciplinary enquiry ; and that son had merely allowed that
he be cross -examined based on the written statement he had made at the
enquiry.
[10] In these proceedings, I did not understand from the submissions made on
behalf of the applicant that the complaint surrounding legal representation was
pursued with any vigour . This contention however would have in any event
lacked merit in that under cross -examination at the arbitration proceedings, the
applicant had conceded that neither he nor his union representative had
formally requested legal representation before the chairperson .
[11] TNPA had called upon Adv. Bouwer, a director of Nexus Forensic Services
(‘Nexus’), who had investigated the allegations against the applicant in April
2017. He had submitted a report in that regard in September 2017. The
investigations were initiated by a memorandu m submitted by the General
Manager Group Forensic at Transnet at the time , in which various alleged
procurement irregularities in respect of vessels and service providers at the Port
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of Saldanha were listed . Those allegations had also been reported by Mr
Donovan Samuels (Samuels) , the then acting Port Manager in March 2017 .
[12] Bouwer had testified that various individuals within the TNPA and from the
service providers ( i.e., Bayside Marine, Inyameko Trading, Argos Scientific
South Africa and Safetech) were invited and had participated in the interview s.
Despite the invitation having been extended to the applicant and Petersen who
had both initially accepted, the two on the date of the interview (17 August
2017), had declined to part icipate despite being implicated in the allegations.
[13] Despite assurances that the investigations were not a formal process and w ere
merely meant for both the applicant and Petersen to provide their input, they
had advised Bouwer of their uneasiness with the interviews and made various
demands . These included t o see confirmation of the appointment of the
investigators by TNPA ; the details of the investigations such as date of
commencement ; the status and stage of those investigations; copies of the
interview notes, statements, and affidavits obtained during inv estigation s. They
further requested that all questions to them be in writing and emailed to them
so that they could have time to apply their minds before the y responded in
writing. Bouwer had however proceeded with the finalisation of the report
without their participation
[14] The applicant had confirmed that he was invited for an interview in August 2017
to be held at the premises of the TNP A. He contended that a t the time, he was
already served with a notice to appear before a disciplinary enquiry. He
confirmed that he had made the various requests and contended that these
were not acceded to. He had informed the investigators that he would only
answer questions after he was provided with the information he had requested.
[15] His further contention was that he merely sought clarity from the investigators,
and that access to the documents would have assist ed him in answering and
contributing to the investigation during his interview . He contended that that
despite the initial promise that such documents would be provided he never
received them . He had testified that the report was used by the TNPA to
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formulate the charges against him without his input , and further that it had
created an impression of the guilt against him even prior to the hearing.
[16] A second complaint raised by the applicant in respect of procedural fairness of
the dismissal was that the charges against him were vague , too technical and
legalistic, and had made reference to statute (PFMA) , without providing specific
sections allegedly contravened. He contended that he did not understand some
of the charges. Under cross -examination, he refuted when it was put to him that
the issue of vagueness was not raised at the internal enquiry with the
chairperson.
[17] The chairperson of the disciplinary enquiry, Mr Louis Eland, had testified that
the charges were explained to the applicant and his representative (a Union
Full-Time Shop Steward) , and that the only issue that was raised w as in regard
to the sub -charges. Eland had clarified to them that he would deal with the
primary charge incorporating the sub -charges and make a determination in that
regard.
[18] A further complaint raised by the applicant was that it was common cause that
at the disciplinary enquiry , he had handed in written submissions on the
charges, and he was thereafter cross -examined on the contents of his
statement . The applicant however complained that the chairperson had merely
accepted his written submissions, and did not warn him of the implications
thereof .
The Arbitrator’s findings on procedural fairness:
[19] The Arbitrator had regarded Bouwer as an ‘exceptionally credible witness’, and
concluded that the applicant failed to make use of the opportunity to make his
input in the investigations and that he failed to raise his concerns about the
interview with Samuels . The Arbitrator i nstead concluded that the applicant’s
refusal to participate in the interview showed flagrant disregard for the TNPA
processes , resulting in it incurring wasteful and fruitless costs related to
travelling of the investigators from Pretoria to Cape Town, and further driving
from Cape Town to Saldanha . The Arbitrator found that neither the applicant
nor his representative had raise d concerns about the vagueness of the charges
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to the chairperson (Eland) or Samuels (who had issued the letter of suspension
and notices of disciplinary enquiry) . Instead, at the disciplinary enquiry, he had
confirmed before Eland that he understood the charges against him. The
Arbitrator further concluded that the applicant chose not to testify at the
disciplinary enquiry and merely submitted his written statement upon which he
was cross -examined . He could not therefore claim to have been deprived of an
opportunity to state his case In the end, the Ar bitrator concluded that there was
no merit in the challenge to the procedural fairness of the dismissal.
Substantive fairness and the charges:
[20] Other than Bouwer and Eland, TNPA called upon five other witnesses including
Messrs Samuel; Miyela Mushwana (Finance Manager); Quentin Kordom
(SHEQ Manager); Hilton Brent (Tug Master) and Steven Hamilton (Chief
Maritime Engineer). The applicant was the only witness in his case.
[21] Bouwer gave an overview of the allegations against the applicant . He testified
that investigations had established that the applicant and Petersen failed to
follow the relevant procedures in the lay -up of these boats, resulting in delays
and therefore fruitless and wasteful expenditure. The ir conduct entailed poor
planning and non-compliance with relevant regulations and legislative
prescripts .
[22] A lay -up is a process that involved the tug being taken to the dry dock where it
was to spend two to three weeks undergoing maintenance . During a lay -up
period, the water will be drained from the vessel and contractors would repair
the seawater pipes or any pipes that may have rusted and also perform any
other repair work that needs attention on the vessel for it to continue to be
operational for a further two years .
[23] Any maintenance on tug at the time was to be in accordance with the Contract
Management Standard Operating Procedure (SOP). In this case, it was the ‘CM
SOP 21 ’, which regulated the procedure to be followed before, during and after
any maintenance work was carried out on the vessels. The CM SOP 21 was
presented at a workshop held at the Port of Saldanha in February 2016, with
the aim of ensuring that all employee s who utilised the services of service
8
providers or contractors within the TNPA premises complied with the relevant
legislation, Transnet SHEQ Risk Management Policy Statements and other
legal requirements under the Occupational Health and Safety Act (OHS)2.
[24] In respect of t he first charges related to Gross dishonesty (alternatively gross
negligence) pertaining to noise and vibration testing, and the alleged breach of
the PFMA , it was common cause that a noise and vibration project was to be
undertaken with respect to eight vessels , which received 8 separate quotations
from Argos. The applicant in his position was to lead the project, and the total
value of the quotations combined was R437 912.00, which quotations he had
accepted and Argos was awarded the contra ct. This exceeded the applicant’s
delegation of authority of R150.000.00.
[25] Bouwer had found that procurement prescripts were by -passed, and that the
aspect of the maintenance of tugs which Argis had in turn subcontracted , had
caused a mark -up to be too high resulting in fruitless and wasteful expenditure.
This was as a result of travel and testing costs, and misrepresentations made
in the invoices which included travelling that did not take place . This effectively
had resulted in ‘parcelling’3, which essentially means instances where the full
scope of work is known, were however deliberately split into smaller portions to
keep the transaction value within the applicant’s delegation of authority the tune
of R150.000.00 .
[26] The above conclusions were further based on a variety of factors including that;
there was a separate loading of requisitions in order to create eight separate
RFQ’s for the same services rendered . Ordinarily, a RFQ can only happen
when a requisition is made by the end user (person or unit requiring services) ,
i.e., the Department of Maritime or the applicant. In such circumstances, the
procurement unit would then commence with the process.
2 Act 85 of 1993
3 Section 14.2 of the PPM, Policy Procurement Manual of Transnet provides that,
“Parcelling is considered a prohibited practice. Parcelling is defined as, when the full scope of
work is known at the point in time and business is deliberately split into smaller portions to
keep the transaction value within one’s own DOA or to keep it below the threshold of an AC
or a person with a higher DOA”,
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[27] Bouwer further based his conclusions on the sending of RFQ’s to Argos, which
was not registered to provide the services and which had in turn sub -contracted
100% of the work to another entity (Safe Tech); the failure to follow full tender
processes as required since the RFQ’s were split into eig ht separate quotes for
the same service and same amounts to en sure that they fell within the
applicant’s delegation of authority ; the by-passing of the unit of Mr Q. A Kordam,
the Transnet SOC Manager of Safety , Health and Environment (SHE) during
the process of noise and vibration testing under the applicant; delays in the
completion of the work on Marcus caused by the applicant’s unavailability;
Argos inflated pricing by making a mark -up of about 233% on the invoices for
noise and vibration testing; the applicant ’s failures to comply with the provisions
of OHS and regulations, and also with the internal SC SOP 21 .
[28] Bouwer further concluded that the applicant failed to declare interests in line
with the Transnet Declaration of Interest and Related Party Disclosure Policy
for Directors in that it was established that he was a director of a company which
was operational during his employment with TNPA . Against the applicant’s
contention s that in March 2017 he was on suspension and that he was only a
director of a shell company since 27 June 2016, Bouwer had testified that a
recent search through the entity’s IRP6 tax ret urn for the 2018 tax year, and a
Wind Director Report search , showed that the applicant was the director and
that the entity was active.
[29] In the end, Bouwer in the report concluded that the applicant failed to take
reasonable steps to avoid the fruitless and wasteful expenditure and/or irregular
expenditure in respect of the two tug boats in the sum of over R1m, made up
of VAT, tug Markers in the amount of R636 185.53 that include d variation orders
plus the additional work done by another contractor, Bay Side Marine ,
additional time spent at Armscor during the lay -up; R173736 spent on Meeuws
and paid to Inyameco Trading for the foam storage t anks ; and R199 687.00 for
noise and vibration testing paid to Argo s. Those amounts were paid to
contractors, which Bouwer further concluded could have involved fraud and
corruption during the invoicing of the noise and vibration testing. It was against
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these conclusions it was recommended that disciplinary action be taken against
the applicant and Petersen.
[30] Mushwana was the Finance Manager at the Saldanha Port, and had acted as
Procurement Manager during February 2015 – November 2017. Amongst his
duties was health environment. He testified that it was a requirement with all
procurement processes, to be in line with t he Transnet Procurement
Procedures Manual (TPPM), which all employees were aware of. He confirmed
that the conduct of the applicant in regard to the requisitions and acceptance of
the Argos quotations amounted to parcelling which was prohibited by the
TPPM. Parcelling was essentially aimed at avoiding to follow proper
adjudication processes by the Procurement Adjudication Committee (PAC) ,
and prevented the latter from opening the bid for the project to more than one
service provider, and which could have cost the TNPA less than what Argos
had claimed or quoted for the project.
[31] In relation to the charges against the applicant, Mushwana testified that the lay -
up of the tugs had to take place in Simonstown and after ARMSCOR (the owner
of the dock) had issued a quotation. The tugs were supposed to be docked for
three weeks in accord ance with the quotation, but took seven weeks. Delays
were as a result of unavailability of equipment and material needed for the task ,
which the applicant as project manager ought to have arranged on time. He had
testified that some work , such as the wash ing of the hull of vessels and the
removal of rust before painting work could be done, had to be re -done as paint
material was not delivered on time. Because of the delays resulting from the
lack of equipment to perform the task, AMSCOR charged Transnet for the
standing on site, and an additional amount of R173 000.00 for equipment .
Furthermore, additional costs had to be paid for work done that had to be re -
done on the hulls.
[32] Mushwana attributed the delays to incorrect tender processes being followed
in awarding the bid to Argo s; numerous failures to adhere to the 3 -qoute
system , to rely on the marine department to give an overview of services
required , to identify specifications, to secure correct service providers and to
verify whether the service provider had the correct technical qualification s to
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provide the service required . He contended that there was an overall incorrect
planning of the project.
[33] Kordom testified in regards to the failures when sourcing procurement services
at Transnet . The process involved adherence with health and safety prescripts,
completion of SHE specifications, and sanctioning of projects by his unit
(SHEQ) . He had testified that he was unaware of an appointed contractor to
perform noise and vibration testing on vessels, until he received a call from a
Dr Williams from Safetech. He had then established that through the applicant,
the bid for the work on th e vessels was grante d to Argo s which had then sub -
contracted to another entity, Safe Tech. The applicant had however not gone
through Kordom’s unit to seek guidance on the process even prior to the
sourcing of the services. There was a requirement that the SHE specifications
had to be requested for all marine services, which the applicant partially
complied with. It was further established that Argo s was not an approved
inspection authority or registered with the South African National Accreditation
System (SANAS) to conduct noise testing. Safe Tech was however accredited .
Kordom was also presented with a recommendation to pay Argos and had
realised that the costs for its services were exorbitant.
[34] Mr Hilton Brent, the Tug -Master (Captain) at Transnet confirmed that lay -up of
vessels was done every two years and included painting, pipe work and
checking of the hull of the vessels . He had assisted in getting the vessels to sail
from Saldanha to Simonstown with a crew of 10, after the applicant had assured
him that everything was arranged with ARMSCOR. F our of the crew members
were to remain in Simonstown during the lay -up. When the crew arrived at the
Simonstown harbour, nothing had been arranged for t he docking with
ARMSCOR , and they had to stay overnight in the vessel which could not dock .
They had to call the applicant to come to Simonstown to assist with the
necessary arrangements for docking, food supplies and accommodation . The
crew had at some stage after they were allowed to dock, ended up overstaying
at a hotel in Simonstown as proper accommodation arrangements were not
done.
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[35] The lay -off took over six weeks during which they only saw the applicant on no
less than six occasions and in some instances he was not contactable on his
mobile phone nor did he respond to emails . Material for the work such as paint
had not been ordered and despite attempts, the applicant could not be reached.
During that period , the rust removed from the hull of the vessels had resurfaced
as it could not be painted on time . That task had to be repeated once the paint
became available . At some point, AMSCO R informed them that they had to
leave the harbour with their vessels which had overstayed. They could not
however do so as the work was not completed. He described the project as a
mismanaged contract with costs having escalated due to equipment hire. After
the applicant was suspended he had discovered discrepancies in payment to
service providers .
[36] Mr Stephen Hamilton, the Chief Engineer, Marine Department in Saldanha was
responsible for the maintenance of the vessels . If there were problems and
breakages, he first had to communicate with the applicant as Marine T echnical
Manager for the latter to fix the problem and if he could not, to get external
assistance. At the commencement of the lay -up of the vessels , Hamilton
showed the applicant the foam tanks of the vessels that needed repairs. Each
vessel had three foam tanks that needed to be opened immediately in case
they were rusted , and which could have major consequences if not attended to .
The applicant had however failed to do so despite being reminded by Hamilton
on numerous occasions. B y the time the foam tank s were opened towards the
end of the lay -up, they were completely rusted and could have led to a loss of
the vessel . A further problem was encountered when the tanks were opened,
and it was realised that there were not enough foam containers to transfer the
foam from the tanks. The applicant however had a responsibility to ensure that
enough containers were available. At all times despite being needed, the
applicant was hardly available or contactable to deal with problems. He failed
to honour appointments with contractors who had to delay the completion of the
work due to his unavailability or due to arriving late at meetings
[37] In relation to the charge of gross dereliction of duties and non -compliance with
the Health and Safety requirements pertaining to Inyoni and Avocet Pilot Boats
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in November 2017 to February 2017, Kordom had testified that the applicant
was after his request, issued with a SHE specification for work to be performed
at the at either the slip way or the dry dock in Saldanha. A site inspection
however revealed that the vessel to be worked on was not ready as it still had
scaffolding erected on its front part . That scaffolding had not been declared safe
for use by a qualified inspector at the commencement of the work as it did not
have a ’tag’ to declare it as safe . Kor dom then had to issue a ‘stop work
certificate’ for work not to proceed on the pilot boat , in view of non -compliance
with the SOP21 and other health and safety requirements. He conceded that
at the time he conducted an inspection, no work was being done and there was
no personnel on site.
[38] The ‘stop certificate’ is issued to indicate amongst other things, areas of non -
compliance . After he had issued it, the applicant and Petersen had
acknowledged and signed a copy in that regard, and also furnished with their
signed copies. Had work commenced in circumstances where the area had not
been declared safe, this would have had consequences for Transnet as it would
have entailed non -compliance with legal requirement and led to contravention
penalties or imprisonment being imposed on senior management by Inspectors
of the Department of Employment and Labour.
[39] To the extent that the applicant was said to have put the image of Transnet into
dispute, the evidence of the then acting port manager, Samuels , was that he
was part y to the formulation of the charges against the applicant. He testified
that the service providers (Inyabek o Trading) held the view resulting from
unavailability of the applicant when needed by contractors and the crew of the
vessels , that the delays caused by him resulted in them carrying the costs.
Delays related to the emptying of the foam ta nk, painting etc. The applicant was
indecisive and unavailable resulting in a longer than budgeted lay -out.
Equipment needed by the service providers was not available on time and this
had resulted with a pay dispute which the providers threatened to expose to the
media, and a loss of confidence in conducting business with Transnet. These
complaints were also brought to the attention of the Transnet Port Group by the
contractors
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The applicant’s case:
[40] The applicant had refuted all the allegations of misconduct against him.
Regarding the first charge of gross dishonesty/gross negligence and breach of
the PFMA, the applicant conceded that his delegation of authority was limited
to R150.000.00. He conceded that he had received the quotations from Argos
which were loaded on the SAP system . He however contended that he was not
solely responsible for the loading of requisitions on the SAP system during a
procurement process. To th e extent that he had released the requisitions as
loaded on the system in the procurement process, he could not recall whether
he had made enquiries with any other individual that had loaded a requisition.
[41] He denied that he was involved in ‘parcelling’ during the process of
procurement and payments, as he had nothing to gain from it. He contended
that Petersen , to whom he reported directly, had the necessary delegation of
authority to load requisition s as he was given a budget to manage.
[42] He conceded that he was involved in procurement related to the testing for
noise and vibration on the tug s. He contended that the splitting of invoices and
the loading of such requisitions was done by Petersen , as it was further a norm
known as ‘Marine Services’ . This was as a result of different vessels which had
different budgets and costs centres , and that he had merely followed instruction
from Petersen, discussed the matter with the finance manager, and had also
advised Petersen before releasing requis itions . In that regard he contended that
he had signed a comparative statement and approved the payment of the
invoices for payment through the SAP system
[43] Related to the charge of placing the image of Tra nsnet into disrepute, the
applicant had conceded that he was the project manager for the tug boats
Meeuw and Marcus . He did not dispute that the tugs were not allowed to dock
by AMSCOR and that the crew was inconvenienced due to lack of proper
arrangements. He contended that he had however apologised for what he
termed a misunderstanding /miscommunication with AMSCOR , and further
bought the crew food to take it back to the vessels whilst waiting for approval
to dock.
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[44] The applicant conceded that the unavailability of paint to be used on the project
also caused delays , which had also caused the removal of rust on the hulls to
be re -done He however denied responsibility for the late payment of invoices
submitted by one contractor, Siyameko , contending that he was not solely
responsible , and attributed it to shortcomings within procurement, the service
provider and the marine staff generally.
[45] In regards to the fifth charge related to failure to disclose interests, he conceded
that he had registered BNK Transport Services in or around 2016. He further
conceded that Transnet was equally involved in the transport business. He
however testified that the entity was registered as a future endeavour as he
sought to own his own company in the future. He further testified that the
interests were not disclosed as the entity was a ‘shell’, or that at the time,
despite being a director since 2016, he could not disclose in 2017 as he was
placed on suspension with no access to the workplace ’s portals or means to
make the declaration. H e was suspended in March 2017 prior to the next
declaration window being April 2017 , and that at the last period of declaration
during April 2016 , he had no interest to declare as his entity was only registered
in June 2016 . He contended that the TNPA did not show an y prejudice resulting
from the failure to declare.
The Arbitrator’s findings on substantive fairness:
[46] The Arbitrator after a detailed summary of the evidence and its analysis ,
observed that on the whole, the applicant was not a credible witness; had
evaded questions put to him; gave long and irrelevant answers to questions
and propositions put to him under cross -examination; gave new versions and
tailored his versions as he testified; and even denied certain aspects of his own
version that were confirmed by TNPA’s witnesses under cross -examination.
[47] Against the seriousness of which he was found guilty of on the five principal
charges, the Arbitrator concluded that the dismissal was appropriate sanction.
The Arbitrator further concluded that the applicant failed to take responsibility
for his actio n, lacked remorse whatsoever, failed to take his responsibilities
seriously , and had flagrant disregard for workplace rules and policies
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[48] In respect of the first charge (Gross dishonesty, alternatively gross negligence)
related to the testing and vibration testing, the project entailed eight vessels
which were quoted separately by Argos in different amounts totalling of R437
912.00 . The applicant had accepted the quotation despite the total amount
exceeding his delegation of authority. The Arbitrator accepted that the total
project and the manner with which it was quoted would have been adjudicated
by the PAC, and would have led to the project being opened to more than one
service provider , which process could have cost t he TNPA less than what Argos
had claimed.
[49] The Arbitrator accepted that the mere acceptance of the quotation and
awarding of the project to Argos constituted ‘parcelling’ and a breach of clause
14.3.5 of the TPPM. She rejected the applicant’s version that Petersen was to
blame and held that the processing of the invoices with the applicant’s approval
went through his own cost centre in the SAP system .
[50] The Arbitrator had further accepted that based on f the evidence of Mushwana
and Kordon , the costs of the project could have been substantially less than
what Argos had quoted. To the extent that the applicant had received and
accepted the quotations which were loaded onto the SAP system by Petersen
for processing and payment , confirmed and signed the comparative statements
and approved the invoices for payment, he had therefore breached the PPM
despite his knowledge of what was required of him in complianc e thereof. A
comparative statement is a document produced by procurement department
used to compare the prices /costs of the service providers and the services they
offer.
[51] In regards to the second charge related to gross dereliction of duties: non-
compliance with Health and S afety requirements related to the project, the
Arbitrator accepted that during the noise and vibration testing, Argos or the sub -
contractor, Safetech, did not receive any SHEQ induction on site; that Kordom
had issued the ‘stop work certificate ’ as there was non -compliance with internal
SOP 21. Accordingly, the applicant had committed misconduct in that regard
due to various failure with safety and health procedures and prescripts , which
he was well aware of
17
[52] In regards to the third charge related to the breach of PFMA pertaining to the
lay-up of Meeu w, the Arbitrator had regard to the evidence of Bouwer, Hamilton
and Mushwana . She concluded that as a result of the applicant’s failures to
attend to the site inspection, ignoring calls and messages by colleagues , delays
as a result of lack of proper planning and unavail ability of the necessary
equipment , the late arrival of material, further costs not that were not budgeted
for had exposed TNPA to wasteful and irregular expenditure in breach of the
PFMA .
[53] Regarding the charge of putting the name of TNPA into disrepute, the Arbitrator
accepted that Mushwana had to intervene in relation to non -payment of a
service provider, and thus the applicant was guilty of the charge.
[54] Related to the charge of failure to declare interests in a private business, the
Arbitrator accepted that B & K Transport , which was in the transport business
like Transnet, was registered in the name of the applicant, and in breach of the
Transnet Code of Ethics . The Arbitrator rejected the applicant’s version that the
entity was a shell or that he could not make a declaration because he was
suspended during the period of its registration . She concluded that the
obligation was to declare as soon as the ent ity was registered , and that the
applicant could have done so before his suspension
The grounds of review and evaluation:
[55] Central to the applicant’s grounds of review was that the Arbitrator committed
gross irregularities and misconduc t in her application of the law to the facts , and
thus arrived at a conclusion that no reasonable decision maker would have
arrived at. In this regard, it was submitted that the Arbitrator reached a
conclusion that is unreasonable and illogical when evaluat ed against the facts
presented, the charges alleged , and the prevailing laws.
[56] In particula r, the applicant complained that the Arbitrator found th at he was
guilty as charged in relation to the breaches of the PFMA , in circumstances
where TNPA failed to show that the PFMA was a valid workplace rule, and how
it applie d to him . It was submitted that the Arbitrator misconstrued evidence
when a reasonable decision maker would have understood that to find an
18
employee guilty of the allegation of dishonesty require d the employer to provide
evidence of the elements of such dishonesty
The test on review:
[57] This Court in reviews of this nature must determine whethe r the commissioner’s
conclusion s on the evidence presented , falls within a range of decisions that a
reasonable decision maker could make4. Because the test on review is
stringent , in determining whether the result of the award is unreasonable, the
Court will broadly evaluate the merits of the dispute and consider whether, if
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. The
result will, however, be unreasonable if it is entirely disconnected with the
evidence, unsupported by any evidence and involves speculation by the
arbitrator5.
[58] In Goldfields6, the LAC held that a review court must ascertain whether the
commissioner considered the principal issue before him/her; evaluated the
facts presented at the hearing , and came to a conclusion which was reasonable
to justify the decisions he or she arrived at. Where the applicant seeks a review
on the basis of alleged irregularities in the assessment of the evidence, it was
further held in Goldfields that the court must be cautious to ensure that the line
between an appeal and a review is not crossed . The Labour Appeal Court
added that a review court is not required t o take into account every factor
individually, consider how the arbitrator treated and dealt with each factor and
then determine whether a failure by the arbitrator to deal with one or more
factors amounted to a process related irregularity sufficient to s et aside the
4 Sidumo and Another v Rustenburg Platinum Mines Ltd and others [2007] ZACC 22; [2007] 12 BLLR
1097 (CC); 2008 (2) SA 24 (CC ); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) at para 110 .
5 Heroldt v Nedbank Limited (Congress of South African Trade Unions as amicus curiae) [2013] ZASCA
97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA) at para 13 ; Quest
Flexible Staffing Solutions (Pty) Ltd (A division v Lebogate ) [2015] 2 BLLR 105 (LAC); (2015) 36 ILJ
968 (LAC)) [2014] ZALAC 136; [2014] ZALAC 55 .
6 Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation
and Arbitration and Others [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para s
18 and 20.
19
award. Thus, the review court was cautioned against adopting a piecemeal
approach , as it is the totality of the available evidence that must be determined7.
Evaluation:
[59] The enquiry therefore in this case is whether the Arbitrator’s conclusions on
procedural and substantive fairness of the dismissal , can be said to fall within
a range of reasonableness.
(i) Procedural unfairness:
[60] The principles applicable to procedural fairness of a dismissal are fairly trite.
Effectively, at the core of a procedural fairness of the dismissal is the protection
of employee’s rights to fair labour practices as guaranteed under section 23 of
the Constitution. As was reiterated in McGregor8, every employee, irrespective
of the nature of misconduct, is entitled to fair labour practices and procedurally
regular dismissals. This requires that an employee faced with disciplinary steps
must be aware of the allegations against him/her; be afforded sufficient time
and representation to properly mount a defence against those allegations, and
in an informal process that is transpa rent, unbiased and geared towards an
objective and fair outcome to the employee.
[61] The provisions of s ection 188 (1)(b) of the LRA9 read with Item 4 of Schedule 8
of the Code of Good Practice10 are also relevant in the determination of
7 At para 18
8 McGregor v Public Health and Social Development Sectoral Bargaining Council and Othe rs (CCT
270/20) [2021] ZACC 14; (2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC); 2021 (5) SA 425 (CC);
2021 (10) BCLR 1131 (CC) At para 35 .
9 Section 188 of the LRA provides:
(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove
that-
(a) the reason for dismissal is a fair reason -
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.
(2) Any person considering whether or not the reason for dismissal is a fair reason or
whether or not the dismissal was effected in accordance with a fair procedure must
take into account any relevant code of good practice issued in terms of this Ac t
10 Item 4 of the Code provides
“Fair Procedure
1. Normally, the employer should conduct an investigation to determine whether there are
grounds for dismissal. This does not need to be a formal enquiry. The employer should
notify the employee of the allegations using a form and language that the employee can
reasonably understand. The employee should be allowed the opportunity to state a case
20
procedural fairness of a dismissal. The Labour Appeal Court has recently in
Gauteng Department of Education v General Public Service Sectoral
Bargaining Council and Others11 re-affirmed the above principle s by stating
that;
“An employer is required to notify the employee of allegations of misconduct
raised against the employee in sufficient detail and in a form and language
that the employee can reasonably understand in order to allow the employee
to answer to such allegations . It is not required, as was suggested in Murray
and Roberts Cementation (Pty) Ltd v Association of Mineworkers and
Construction Union on behalf of Dube and Others , that “when formulating
charge sheets, employers must advise the accused employee of the precise
charge he or she is required to answer in the disciplinary hearing ”. This Court
has made it clear that disciplinary proceedings are not criminal trials, nor are
they intended or required to resemble highly technical civil trials. Employers
in disciplinary proceedings may not be lawyers and may at times define the
nature of the alleged misconduct raised against an e mployee imprecisely,
too narrowly or even erroneously record the legal basis for such misconduct,
in response to the allegations. The employee should be entitled to a reasonable time to
prepare the response and to the assistance of a trade union representative or fellow
employee. After the enquiry, the employer should communicate the decision taken, and
preferably furnish the employee with written notification of that decision.
2. Discipline against a trade union representative or an employee who is an office -bearer or
official of a trade union should not be instituted without first informing and consulting the
trade union.
3. If the employee is dismissed, the employee should be given the reason for dismissal and
reminded of any rights to refer the matter to a council with jurisdiction or to the
Commission or to any dispute resolution procedures established in terms of a collective
agreement. ”
4. In exceptional circumstances, if the employer cannot reasonably be expected to comply
with these guidelines, the employer may dispense with pre -dismissal procedures.
11 (JA141/2022) [2025] ZALAC 2; [2025] 5 BLLR 435 (LAC) (22 January 2025) at para 13 . See also
EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18)
[2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC). At paras 15 – 17. See also
SASBO -The Finance Union and Another v Standard Bank and Others (SASBO) (JA32/2021) [2022]
ZALAC 100; (2022) 43 ILJ 1794 (LAC); [2022] 10 BLLR 934 (LAC) at para 24, where it was held;
“The workplace disciplinary hearings are not criminal proceedings. This Court held in
Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others, that:
‘…(T)he misconduct charge on and for which the employee was arraigned and
convicted at the disciplinary enquiry did not necessarily have to be strictly framed in
accordance with the wording of the relevant acts of misconduct as listed in the
appellant's disc iplinary codes, referred to above. It was sufficient that the wording of
the misconduct alleged in the charge -sheet conformed, with sufficient clarity so as
to be understood by the employee, to the substance and import of any one or more
of the listed offe nces. After all, it is to be borne in mind that misconduct charges in
the workplace are generally drafted by people who are not legally qualified and
trained…’ ”
21
for example as fraud when the legal requirements of theft may in fact be met.
As has repeatedly been emphasised by this Court, it is not necessary that
the employee be given notice of the precise legal basis for a complaint of
misconduct in a highly techni cal charge sheet. Rather the employee must be
informed in the appropriate manner of the allegation of misconduct raised in
sufficient detail to enable the employee to understand such complaint and
answer to it. ”
(a) Alleged vagueness of the charges and reliance by the chairperson on the
written submissions :
[62] It was not in dispute that the applicant was properly notified of the disciplinary
enquiry . Prior to then, he was placed on precautionary suspension on 15 March
2017 and the notice12 set out the details and nature of the allegations against
him. The notice13 to attend the enquiry (which initially referred to ‘An Inquiry by
Arbitration’ ), sets out 6 ‘charges’ and gave details of what the applicant was
accused of , inclusive of the sub -charges .
[63] I did not understand that in his capacity as Marine Technical Manager, which is
an important and highly qualified and technical position, the applicant would
have had difficult ies in appreciating and understanding the substance of the
allegations against him . In my view, his contention s that the charges were
vague , or were formulated in English, or that he was a “marine person, and not
a legal person ”, are clearly mere red herring s.
[64] The Court accepts that at a mere glance of the charges may appear to be
technical to an outsider and someone who has no clue about vessels /tug boats ,
TPP Manual, delegation of authority or Transnet Code of Ethics or anything to
do with marine services . Samuels had conceded under cross -examination that
the details and technicalities in the charge sheet were not discussed with the
applicant. However, I find it improbable that any senior employee within
Transnet or the TNPA such as the applicant, and with defi ned delegation of
authority within his costs centre, would have difficulties in appreciating the basic
12 Page 1191 – 1194 ; 1197 - 1198 (Index to Arbitration Bundle Vol 4)
13 Page 1199 -1201 of Bundle 4
22
implications of or the meaning of the PMFA, noise and vibration testing RF Q or
health and safety prescripts .
[65] It is indeed an indictment on the applicant in his position, to claim that he did
not understand the nature of the charges against him in the manner that they
were formulated. If the applicant during the tenure of his employ ment as Marine
Technical Manager with its concomitant responsibilities had difficulties in
understanding these concepts, the probable inference to be drawn is that he
was clearly unsuited for the post. These concepts were or ought to have been
daily routine for him in that position . Even moreso, where the minute details of
those charges were vent ilated at length at both the disciplinary hearing and the
arbitration proceedings.
[66] To the extent that the applicant for some reason still did not understand the
substance of the allegations, evidence was led by the chairperson of the
enquiry that the applicant, being represented by a union official, was afforded
an opportunity to clarify anything he could not understand with the charges
including the su b-charges, and had confirmed that they understood them.
[67] Equally so, I find it illogical for the applicant to seriously contend that he did not
understand the allegations, when for the purposes of the internal hearing , he
had prepared written submissions in defence against the very charges he
professed not to understand, and upon which he was cross -examined . In the
applicant’s 21-paged ‘Written response to the charges’14 he had address ed
each charge with such detail and clarity that it clearly belies any contention that
he could not have understoo d their substance . Whether the chairperson had
warned him or not of the consequences of merely relying on the statement is
neither here nor there in that in the end he was afforded an opportunity to
answer to the allegations made against him and had do so in his written
statement. Clearly there is no substance in the applicant’s contentions that he
was prejudiced by the chairperson’s mere acceptance of his written statement
and allowing him to be cross -examined on it . He had elect ed the manner with
which he wanted to present his defence.
14 Pages 2029 -2051of ‘Loose Bundle ’ Pages – Bundle #5 & #6
23
(b) The Nexus Investigations:
[68] To the extent that the applicant disputed the fairness of the investigation
process, it is trite that t he purpose of such investigation prior to a disciplinary
enquiry , is merely to establish whether material evidence exists demonstrating
that the employee committed the allegations of misconduct made against him
or her. They are not meant to establish guilt or innocence of an employee, albeit
it can be found during that process, that the employee has or no case to answer
to at a formal disciplinary enquiry .
[69] In this case, the applicant was made aware of the Nexus investigation and he
was invited for an interview which he did not attend. When he was invited, he
had made certain demands or requests. It is not necessary to deal in detail with
the applicant’s list of demands which were clearly unreasonable for the
purposes of an investigation . All he needed to do was to communicate with
Samuels, who he knew or ought to have known was the Acting Port Manager
at the time, and enquired about the status of the investigators who had called
him to an interview , which was to take place at his workplace . Equally so,
Bouwer had confirmed that had the applicant in any even t sought the
information on time prior to the interview, and instead of having made deman ds
on the date of the interview, it could have been given to him. The end result of
the interview not proceeding as scheduled , was that fruitless and wasteful
expenditure were incurred in respect of the travelling costs of the investigators .
[70] The investigation report together with the necessary documents relied thereon
were presented at the internal enquiry and the arbitration proceedings. I did not
understand the applicant’s case to be that an application was made before the
Arbitrator to exclude it as inadmissible evidence or that it could not be relied for
some reason. Equally so, it would have been unreasonable for the chairperson
to have denied him access to the very documents that were going to be used
in the hearing, let alone a postponem ent for the applicant to familiarise himself
with the contents of those documents. There does not however appear to be
any evidence presented demonstrating that the applicant or his union
representative had made such requests.
24
[71] Bouwer was cross -examined at length on the Nexus report as well as all the
other witnesses mentioned in the report in support of its conclusions and the
allegations against the applicant . Both the disciplinary enquiry and the
arbitration proceedings were avenues for the applicant to challenge both the
report and the witnesses that testified to it.
[72] The facts and principles set out in Oliver vs Universiteit van Stellenbosch15, as
sought to be relied upon by the applicant, are clearly distinguishable from those
in casu. Other than the fact that Olivier in that case had disavowed reliance on
the provisions of the LRA , he had specifically requested clarity on the charges
and made an application for certain documentation and a postponement in his
hearing, which requests were refused. I did not understand the applicant’s case
as already stated, to be that he had requested and was denied documents or
postponement of the proceedings even at that belated hour . In any event, and
as already indicated, there was nothing conclu sive in regards to the applicant’s
guilt in the report as argued on behalf of the applicant, as that was not the
purpose of the investigations. Its purpose was to investigate the allegations
upon which TNPA had formulated the charges, and which were ventilated at
both the disciplinary hearing and the arbitration proceedings.
[73] In the end, a disciplinary enquiry cannot be deemed to be unfair, in
circumstances where the applicant was afforded an opportunity for an interview
during investigations into allegations of misconduct and had rebuffed that
opportunity. Furthermore, there can be no unfairness as correctly observed by
the Arbitrator, in circumstances where even at the disciplinary enquiry, the
applicant had not made any request for documents or a postponement to go
through the documents . In circumstances where the applicant w as invited to an
interview, Bouwer and Nexus were entitled to regard him as having waived his
rights to an interview and proceeded with it in his absence .
(c) Alleged time delays in the disciplinary process:
15 (unreported 2181/2004 Cape Provincial Division) ; (Contemporary Labour Law Vol. 14 No. 9 April
2005 , as referenced in the Applicant’s Heads of Argument at para 14.2.3 and fn 10)
25
[74] A further issue raised in regard to procedural fairness related to the time period
between the alleged misconduct and the timing of the disciplinary enquiry,
which the applicant viewed as being unreasonably protracted and unfair. It was
not in dispute that the a pplicant was suspended during March 2017 and only
dismissed during April 2018. Nexus was appointed in April 2017 to conduct
investigations , which were concluded with its report released in September
201716 The disciplinary proceedings as per the minutes17 took place between
November 2017 and February 2018, resulting in the dismissal on 9 March 2018
[75] It was submitted on behalf of the applicant that he was prejudiced as a result of
the delay to the extent that he was kept out of the workplace for an excessively
long period of time, denied access to workplace and that this delay created a
space for the employer to dismiss him .
[76] It is equally common cause that the applicant was placed on precautionary
suspension with pay and it is not clear what prejudice he had endured from any
delays in convening the hearing. The time period between his suspension, the
investigations and the ultimate disciplinary process and the dismissal, cannot
in my view be deemed unreasonable given the nature and magnitude of the
allegations against the applicant.
[77] The applicant’s contention that he was merely kept out of the workplace for
nefarious reasons is mere conjecture and no more need be said in that regard.
Furthermore, it was submitted on behalf of the TNPA that the applicant through
his legal representative during the course of pre -arbitration conducted by the
Arbitrator, did not raise the issue of the delay as part of his challenges to
procedure, nor was t he issue raised with the witnesses in their cross -
examination. To this end, there is no merit in the s uggestion that the delays in
the process leading to his dismissal made that dismissal procedurally unfair.
[78] On the whole, the grounds upon which the applicant alleged any procedural
unfairness in his dismissal are without substance. Based on the overall
evidence, the legal principles set out elsewhere in this judgment regarding
16 Pages 1174 – 1805 of the Arbitration Bundle #5 & 6
17 Page 1811 – 1814 of Arbitration Bundle #5 and #6
26
procedural fairness, there is no basis for any finding to be made that the
Arbitrator’s findings in th at regard fell outside a band of reasonableness.
(ii) Substantive fairness:
[79] It was submitted on behalf of the applicant that the enquiry into substantive
fairness turn ed on the interpretation and application of the PFMA to employees
in his position. The applicant complains that the Arbitrator confirmed that he
had breach ed the PMFA along with other allegations of misconduct. The
primary contention of the applicant is essentially that the PFMA is not a general
workplace rule . It was submitted that if the Court found that the applicant was
not an accountable person in lieu of the permits of the PFMA , then it must be
found that his dismissal was substantively unfair. Axiomatically, it follows that if
the Court finds otherwise, then the dismissal on that ground was substantively
fair.
[80] The applicability of the PFMA came about in relation to the first c harge 1 and
1.2 of gross dishonesty (alternatively gross negligence) - Noise and Vibration
Testing . The allegations were that the applicant breached the TP PM in that he
engaged in parcelling by separating requisitions into eight different requests for
noise and vibration testing services in order to bypass the RFQ process and his
delegation of authority.
[81] The breach of PFMA in this regard is said to have occurred in that he failed to
prevent irregular, fruitless and wasteful expenditure on the testing services in
that he also failed to comply with Health and Safety prescripts, bypassed the
TNPA Health and Safety Department, and failed to comply with procurement
prescrip ts.
[82] Under charge 2.1, the applicant is said to have breached the PFMA in regard
to the lay -up of the Tug Marcus in that he failed to take reasonable steps during
the lay -up, to prevent irregular, fruitless and wasteful expenditure in the amount
of about R636 185.53. In this regard, it was alleged that he had failed to heed
advice and complaints from crew; failed to timeously and diligently perform his
duties; and failed to be available to address unforeseen events that caused
delays
27
[83] The PFMA also arose under charge 3.1 related to the lay -up of the Tug Meeuw .
It was alleged that between April and November 2016 during the lay -up of Tug
Meeuw , the applicant failed to take reasonable steps to prevent irregular,
wasteful and fruitless expenditure in the amount of R173 736.00 incurred during
the lay -up, in that he failed to heed to advice and complaints from Chief
Engineer not to delay the docking dates provided by the Dock Master; prevent
the late opening of foam tanks and to be available a t all times to attend to a ny
that may cause delays
[84] It is my view that the starting point with the debate surrounding the applicability
of the PFMA are the various prescripts applicable to Transnet and the
applicant ’s own contract of employment18. At its clause 8. 3.5, the contract
stipulates that the employee agrees to comply with all legislation applicable to
the execution of his duties. Aligned to these provisions are the provisions of the
Delegation of Authority19 which enjoins the applicant in the scope of that
delegation, to comply with any law or regulation. Equally under clause 3 of the
Transnet Delegation of Authority Framework (effective from 1 September
2016)20, it is specifically stated that the Framework applies to all employees of
the company, including its Operating divisions and Special Units, and persons
granted delegation of authority must perform their functions and responsibilities
subject to exercising their powers and authority not in conflict with the PFMA
amongst other prescripts . Clause 37.3 of the Group Company Secretariat
(Code of Ethics)21 provides that Transnet complies with all regulatory
requirements in its regulatory universe, including the PMFA. The TPP M in its
introduction22 provides that the TPPM gives effect to the statutory requirements
under section 217 of the Constitution read with section 51(1)(a)(ii) of the PFMA.
[85] It is not necessary to elaborate on all the other applicable policies and manuals.
However, the point needs to be made that u nder section 3 of the PMFA , it is
specifically provided that the its provisions applies to all institutions and major
public entities of which Transnet is one of them under its Schedule 2. As
18 Page 1211 –1220 (Page 1223 -1232) of the Arbitration Bundle #4
19 Page 1245 -1246)
20At Page 1220
21 Page 1348
22 Page 1364
28
correctly pointed out on behalf of the TNPA, t he PFMA is an important statute
in the regulatory environment that affects public entities and regulates their
financial managementi. The point being emphasised is that against all these
policies and manuals and legislative provisions , I find it inexplicable that the
applicant would seriously contend that the PMFA is not applicable to him in the
performance of his duties , or that it was not a workplace rule.
[86] It is not necessary for an employer in a contract of employment or in its
disciplinary code to specifically state the provisions of a statu te under which an
employee would conduct his duties and responsibilities, especially in
circumstances where that particular statute is applicable to an employer and
employee in day to day activities and operations of the business. The
contention that the TNPA did not prove that the PFMA is a workplace rule or
that an employee in a public entity is exempt from a particular statute in the
performance of his duties when that statute is a requirement in the overall
running of the business of the employer is in my view lacking in logic. At the
very least, the applicant ought to have appreciated from the various prescripts
already referred to above and his own contract of employment under clause
8.3.5 as already indicated, that he agreed to to comply with all legislation
applicable to the execution of his duties .
[87] To the extent that reference was made to the PMFA in the charges without
specifying which provisions, it was not necessary for the TNPA to in any event
be legalistic in the charges as warned the authorities already referred to . All that
was required in the charge notice even if reference was made to a statute, was
context and substance of the allegations, which was provided by reference to
specific incidents. Bouwer had in giving context, referred to fact that the
specifics of the allegations were contained in the wording of the charges . These
included that the a pplicant had failed to take reasonable steps to prevent
irregular and fruitless wasteful expenditure , in relation to various incidents that
formed the subject of those cha rges such as parcelling, bypass ing health and
safety prescripts (As confirmed by Kordom); the excessive amounts quoted by
Argos; the delays and concomitant extra expenses incurred at the ARMSCOR
dockyard in respect of the lay -up of the vessels ; delays in making proper
29
arrangements for the emptying and transferring of foam from the tanks as
testified to by Hamilton.
[88] The provisions of s ection 51(1)(e) of the PFMA enjoins accounting authorit ies
in public entities to take effective and appropriate disciplinary steps against any
employee of the public entity who is found to have c ontravene d or fail ed to
comply with its provision ; commits an act which undermines the financial
management and internal control system of the public entity; or makes or
permits an irregular expenditure or a fruitless and wasteful expenditure. Section
57 of the PFMA on the other hand addresses its elf to what is required of an
official in a public entity. The applicant’s contention that he was not classified
as an ‘official’ or accountable person in his position and given his delegation of
authority is again baffling , and no more need be said in that regard .
[89] Under Charge 1 r elated to gross dishonesty (alternatively gross negligence)
noise and vibration testing , the applicant sought to argue that the Arbitrator
failed to take into account that it was unchallenged that acts of ‘parcelling’ were
prevalent within the practices of the TNPA; that t he separations of the purchase
orders were in fact committed by the Petersen ; that the comparative statements
were prepared and presented by the procurement department which in effect
authorised the process of ‘parcelling’
[90] The difficulty with the applicant’s contentions as the Arbitrator had correctly
found, is that they are intended to deflect attention from his own wrong -doing,
and essentially refuse d to take responsibility. Against the common cause fact
that the loading of requisitions and ultimate payment was a chain involving
various individuals within procurement, it was nonetheless accepted that he had
a delegation of authority to authorise amounts to a maximum of R150 000.00 .
The requisitions and quotations for noise and vibration testing as received from
Argos in respect of the eight vessels in total exceeded his delegation of
authority. He nonetheless , irrespective of the chain and role of other officials
including Petersen in the loading of requisitions and payment of invoices,
initially accepted those quotations without question, and assisted in the chain
of loading them unto the SAP system which he solely attributed to Petersen.
Petersen was his supervisor, and the quotations and the requisitions would not
30
have come to his attention or payment processed unless through the applicant.
The mere fact that other officials had access to the loading of the requisitions
on the SAP system is neither here nor there. The requisitions received were in
respect of a project under his control and management . I fail to appreciate the
reason the applicant would wash his hands of f any event that took place in the
course of the management of that project. It was equally disingenuous for the
applicant to seek to blame the other officials and attempt to make a case of
inconsistent application of discipline, when this was not even a case seriously
pursued before the Arbitrator.
[91] Clearly the applicant bypassed procuremen t prescripts when he as end -user,
authorised the split of requisitions for noise and vibration testing as received
from Argos into eight different requests and signing off each quotation . This
was a classic case of parcelling under section 14.2 of the PPM , and I fail to
appreciate how it could have been prevalent and condoned as the applicant
had argued, since it was a prohibited practice which he in his position ought to
have guarded against .
[92] The Court accepts that evidence was led by Mushwana under cross -
examination that there were instances where requisitions were separated and
this was not considered to be parcelling. He cited specific instances where there
was a deliberate local sourcing strategy, and which involved certain aspects of
the work which could be done by any one of the local company service
providers . With that sole objective, t he work w ould then be split into separate
components following recommendations by a relevant committee and final
approval by the Port Manager or the divisional acquisition council . In this case,
I did not understand it to be the applicant’s case that the parcelling was done
for any specific purpose and that it was sanctioned by any committee or the
Port Manager.
[93] His conduct and that of Petersen of allowing parcelling clearly constituted
dishonesty. In SASBO23, the Labour Appeal Court held that dishonesty as an
aspect of misconduct is a generic term embracing all forms of conduct involving
23 Ibid at para 17
31
deception , a lack of integrity or straightforwardness . It was added that
deceitfulness can manifest itself in various forms, which includes providing false
information, non -disclosure of information, pilfering, theft and fraud , and that
the fiduciary duty owed by an employee to the employer generally renders any
dishonest conduct a material breach of the employment relationship, thereby
justifying summary dismissal .
[94] The invariable conclusion to be reached by this c ourt upon a n objective analysis
of the evidence before the Arbitrator and her analysis thereof in respect of the
contentions raised in respect of the issue of the PFMA and the specific incidents
already dealt with above, and further in view of the adverse findings made by
the Arbitrator on the applicant’s credibility, is that the Arbitrator had no reason
to reject the evidence presented by all the witnesses on behalf of the TNPA in
respect of these charges, and her conclusions in that regar d are unassailable.
[95] A further charge related to the breach of Transnet Code of Ethics in that the
applicant failed to declare his external business interests. In this regard and to
summarise Bouwer’s testimony arising from the investigations, the a pplicant
was a director of B & K Transport since June 2016 , and that he had not
disclosed this interest in 2016 /2017 . The entity was in the transport sector like
Transnet. Investigations had revealed that the entity was still in business as at
the time that the investigations were co nduct and at about the time was also
placed on precautionary suspension.
[96] It is trite that an employment relationship is based on the common -law principle
of good faith . That principle was reaffirmed i n Bakenrug Meat (Pty) Ltd t/a
Joostenberg Meat v CCMA24 , when it was held that an employee that fails to
disclose a conflict of interest acts manifestly in violation of his duty of good faith
to the employ er, and that employees act in bad faith if conflict of interes t arise s
even though no real competition actually results25. In City of Cape Town v
SALGBC and Others26, it was further held that an employee’s failure to declare
his involvement in other business entities warranted his dismissal by the
24 CA8/2020) [2022] ZALAC 4; [2022] 4 BLLR 319 (LAC); (2022) 43 ILJ 1272 (LAC)
25 At 15 -16
26(C353/16) [2017] ZALCCT 35 (2 August 2017)
32
employer. In De Beers Consolidated Mines Ltd (Venetia Mine) v National Union
of Mineworkers and Others27, it was reiterated that where an employee has a
duty to disclose information and fails to do so, this constitute a breach of the
rule and as such, he was guilty of the misconduct complained of28.
[97] The duty of good faith is further embodie d in the Transnet Code of Ethics which
should be read with ‘ Declaration of Interests and Related Disclosure Policy for
Employees’ . That provision is made in clause 36.1.1 of the ‘Group Company
Secretariat – Code of Ethics29. It is not clear on what basis the applicant would
contend that the TNPA did not submit into evidence the actual declaration of
interest policy at arbitration , when he in any event ought to have known about
it given his position . It is trite that i t is an implied term of the contract of
employment that the employee will act with good faith towards his employer
and that he will serve his employer honestly and faithfully30.
[98] Amongst the reasons proffered by the applicant in not submitting his declaration
were that the entity was a shell. That contention in my view does not take his
case any further in that the entity was indeed registered and he was its director.
Against Bouwer ’s investigations with reference to the entity’s IRP6 tax return
for 2018 tax year, and a Wind Director Report which showed that the applicant
was the director and that the entity was active , his defence was to insist that
the company was a shell. That de fence however without more , was not
sufficient in the light of the documentary evidence adduced to demonstrate that
the entity was in operation.
[99] The explanation that the applicant was suspended at the time of submissions
of the declarations and thus unable to do equally lacks merit. It is not sufficient
for the applicant to merely allege constraints without demonstrating how he
made any endeavour t o overcome those constraints. As the Arbitrator had
correctly found, the obligation was to declare as soon as the entity was
registered. During his period of suspension, he remained under the duty of good
faith and subject to the employer’s policies and pr ocedures. If he was indeed
27JA83/18) [2019] ZALAC 72; [2020] 3 BLLR 251 (LAC); (2020) 41 ILJ 884 (LAC)
28 At para 15
29Pages 1338 - 1348 of Arbitration Bundle #4
30 Sappi Novoboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC) at para 7
33
serious about making any declarations, and being fully aware of that fact whilst
on suspension, nothing prevented him from contacting Samuel or any other
relevant official . In the end, there w as a rule about conflict of interest which the
applicant knowingly breached, and which breach deserved censure. The
Arbitrator’s conclusions in regard to this charge cannot be faulted.
Conclusions:
[100] Upon a holistic consideration of the evidence as it was before the Arbitrator, the
latter in the light of the common and disputed essential facts, properly
considered that evidence , and fairly and reasonably de termined the matter. The
summary of the extensive and in some instances technical evidence, which
summary I did not understand to be disputed in these proceedings , contain ed
all the core facts, and the Arbitrator properly and correctly identified all the
factual and legal questions to be determined. Her detailed analysis of the facts
and reasoning for all the conclusions she arrived at findings made are easily
identifiable and reasonable , and there is no basis for any conclusion to be made
that her conclusions were disconnected with or unsupported by the evidence,
or involves speculation .
[101] A perusal of the applicants’ pleadings and the heads of argument indicates that
that the fine line between an appeal and a review that the LAC in Goldfields
warned against , was indeed crossed in this case . This is so in that from the
equally voluminous heads of argument, it is apparent that the applicant sought
to dissect each and every factor in the voluminous evidence, in a futile attempt
at finding a ground to sustain interference with that award. This ap proach
cannot be countenanced as it is not the rol e of this Court in review proceedings
to approach this matter in the manner suggested by the applicant, in an attempt
to find whether there was some form of unreasonableness in the path followed
by the Arbitrator.
[102] The starting point for the Arbitrator was to make a credibility finding against the
applicant, and she was best placed to make that finding as the trier of facts.
There is on a whole reading of the transcribed record, no basis for this Court to
interfere with that finding . The record is replete with instances of evasiveness,
long-winded irrelevant answers even to the most basic questions and even on
34
the common cause facts as observed by the Arbitrator. What was further
apparent from the record is that the applicant was bent on adopting a deflection
rather than a self -reflection approach . He persistently refused to take
responsibility for his own project, its failures, short -comings and obstacles
which he created through his conduct .
[103] Against the above observations, the Arbitrator’s conclusions that the applicant
failed to show any form of remorse are unassailable . In De Beers Consolidated
Mines Ltd v Commission for Conciliation , Mediation and Arbitration and
Others31, it was held that it would be difficult for an employer to re -employ an
employee who has shown no remorse , as a cknowledgment of wrongdoing is
the first step towards rehabilitation. It was further held that i n the absence of a
recommitment to the employer's workplace values, an employee cannot hope
to re-establish the trust which he himself has broken. The LAC concluded that
where an employee, over and above having committed an act of dishonesty,
falsely denies having done so, an employer would, particularly where a high
degree of trust is reposed in an employee, be legitimately entitled to say to itself
that t he risk of continuing to employ the offender is unacceptably great.
[104] Against the clear lack of remorse, it is concluded that a sanction of dismissal
was appropriate in the light of the most glaring forms of misconduct, i.e.,
engaging in parcelling, failure to declare interests, dereliction of duties, blatant
non-compliance with internal prescripts or refusal to accept that the provisions
of crucial national legislation under which TNPA operated was applicable to
him, that the applicant was accused of. Equally unassailable were the
Arbitrator’s conclusions on the procedural fairness of the dismissal. Clearly all
the grounds raised by the applicant were at best meritless, and at worse, mere
red herrings as already pointed out i n this judgment.
[105] In the end, the Court is satisfied that in line with the approach set out in
Goldfields32, the Arbitrator in terms of h er duty to deal with the matter with the
minimum of legal formalities, applied a process that gave the parties a full
opportunity to have their say in respect of the dispute ; properly identified and
31(2000) 21 ILJ 1051 (LAC) at para 25
32 At para 20
35
understood the nature of dispute she was required to arbitrate ; dealt with the
substantial merits of the dispute ; and that h er decision is one that another
decision -maker could reasonably have arrived at based on the evidence that
was before h er.
[106] In regards to costs, the Court must with regard to the provisions of section
162(1) of the LRA, consider the requirements of law and fairness in determining
whether such an order is warranted. It is my view that this review application
was ill -conceived in the light of the well -reasoned award issued by the
Arbitrator , after hearing extensive evidence . TNPA was accordingly compelled
to defend the award and had in the process , incurred costs. It was argued on
behalf of the applicant that a cost order was not warranted in that he had a right
to challenge the award.
[107] In Zungu v Premier of the Province of KwaZulu -Natal and Others33, it was held
in reference to Dorkin34, when considering a cost order under the provisions of
section 162( 1) of the LRA, the C ourt should seek to strike a fair balance
between on the one hand, not unduly discouraging workers, employers, unions
and employers’ organisations from approaching thi s Court to have their
disputes dealt with, and, on the other, allowing those parties to bring to Court
frivolous cases that should not have been brought in the first place
[108] On the facts, clearly the review application lacked merits albeit it cannot be
classified as frivolous in the light of the issues to be determined . Against that
view, it is however upon a consideration of the requirements of law and fairness,
that a costs order against the applicant is not warranted. Accordingly, each
party must be burdened with its own costs.
[109] Accordingly, the following order is made;
Order :
1. The late filing of the Applicant’s supplementary affidavit is condoned.
33(CCT136/17) [2018] ZACC 1; (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC); 2018 (6) BCLR 686
(CC) at para 24
34Member of the Executive Council for Finance, KwaZulu -Natal v Dorkin NO [2007] ZALAC 41; (2008)
29 ILJ 1707 (LAC) at para 19
36
2. The Applicant’s application to review and set aside the arbitration award
issued by the Third Respondent under case number TCR012962 under
the auspices of the Second Respondent is dismissed.
3. There is no order as to costs
___________________
Edwin Tlhotlhalemaje
Judge of the Labour Court of South Afric a
37
APPEARANCES:
For the Applicant: Mr. Z Parker of Parker Attorneys
For the First Respondent : Mr. G. Cassells of Maserumule
Attorneys .
i In reference to Dyasi v Onderstepoort Biological Products Ltd & others [2011] 7 BLLR 671 (LC) at para
[13]; Naidoo and SA Civil Aviation Authority (2008) 29 ILJ 2044 (CCMA) at para 5.2.4