THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JR599/21
In the matter between:
MERAFONG CITY LOCAL MUNICIPALITY Applicant
and
SAMWU obo CLIVE WOODRIDGE SPEEK First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING
COUNCIL (“SALGBC”) Second Respondent
COMMISSIONER PHUMLA NONDLALA N.O. Third Respondent
Heard: 11 June 2025
Delivered: 11 June 2025
Reasons: 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.)
REASONS FOR ORDER
2
PHEHANE , J
Introduction
[1] On 11 June 2025, this Court , hearing an opposed application in terms of
section 145 of the Labour Relations Act,1 (LRA) issued an order dismissing a
preliminary point , reviewing and setting aside the arbitration award by the third
respondent dated 24 February 2021 and substituting the award with an order that the
dismissal of the first respondent is substantively fair, with no order as to costs.
[2] The reasons for the order follow.
Background
[3] The first respondent member, Mr Speek was employed as a cashier by the
applicant . It is not disputed that Mr Speek was extensively trained in his role,
responsibilities and duties as a cashier.
[4] It is also not disputed that cashiers had rules applicable to their job, recorded
in various prescripts, including the Basic Rules and Guidelines for Cashiers:
Procedures for Daily Cashing Up,
2 sections 2(a), (b), (d) and 9 of Schedule 23 of the
Local Government: Municipal Systems Act4 (MSA) and clause 8.7 of the Municipal
Policies for Cashiers entitled “ Cashing up the cashiers and banking thereof”5.
[5] Section 2(a), (b) and (d) of S chedule 2 of the MSA read thus:
‘2. General conduct. —A staff member of a municipality must at all times —
(a) loyally execute the lawful policies of the municipal council;
1 Act 66 of 1995, as amended.
2 Documentary records bundle at pp 80 to 85.
3 Code of Conduct for Municipal Staff Members .
4 Act 32 of 2000.
5 Documentary records bundle at pp 73 to 74.
3
(b) perform the functions of office in good faith, diligently, honestly and in a
transparent manner;
(c) …
(d) act in the best interest of the municipality and in such a way that the
credibility and integrity of the municipality are not compromised’.
[6] Section 9 of Schedule 2 of the MSA reads as follows:
‘9. Council property. —A staff member of a municipality may not use, take,
acquire, or benefit from any property or asset owned, controlled or managed by the municipality to which that staff member has no right.’
[7] Claus e 8.7 of the cashing up rules provides , in essence, that where there is a
cash short fall at cashing up, the cashier must pay it in immediately or the following
morning at the lates t and a note of shortfall must be indicated on the cash analysis
form. With a special request, the Chief Financial Officer can extend the payback date
to not later than the following salary date and a journal entry mus t be recorded. The
supervisor is responsible for the collection of shortages from the cashiers under their
supervision .
[8] At the cash reconciliation at the end of the day on 19 May 2017, Mr Speek’s
supervisor, Ms Henning, discovered that Mr Speek’s t akings were short by the
amount of R1 220.00. According to Ms Henning, Mr Speek informed her that he had
taken the money as he needed it for his family in Bloemfontein. She told him to
immediately return the money. He refused.
[9] Mr Speek’s conduct was subsequently investigated, and he was called to a
disciplinary hearing to answer the following charges of misconduct:
6
‘CHARGE 1 -
1. MISCONDUCT
6 Documentary records bundle at pp 52 to 53.
4
1.1 You are guilty of misconduct in that, you violated the provisions of
Section 2(a), (b), (d) and section [9] of schedule 2 of [the] Local Government
Municipal Systems Act 32 of 2000, Code of Conduct for Municipal Staff
Members and the Municipal Policies on Cashiers and Banking, particularly
clause [8] in that:
1.1.1 On or about 19 May 2017 you had a system total of R30 959.00 and
total takings of R29 739.00 and a shortfall of R1220.00 and after a demand
that you pay it back immediately you refused to pay it back and no special arrangements were made with the Chief Financial Officer.
CHARGE 2:
2.1 You are guilty of a misconduct of theft in that on 19 M ay 2017 you
unlawfully and intentionally took an amount of R1220.00 belonging to the
municipality with the intention of depriving the municipality of the said amount permanently.’
[10] Mr. Speek was dismissed follo wing a disciplinary hearing where he was found
guilty as charged of charge 1 and was not found guilty of theft on charge 2, but was
found guil ty of having contravened section 2(a), (b) and (d) and section 9 of
Schedule 2 of the MSA.
7
[11] After considering the outcome of the disciplinary hearing, the then Municipal
Manager dismissed Mr Speek in a l etter dated 23 April 2018.
8 As the first
respondent’s opposition to this review application in the main hinges on the content
of this letter, it is pertinent to set it out in full. It reads:
‘DISCIPLINARY ENQUIRIES: CONFIRMATION OF DISMISSAL: C SPEEK
1. Following the disciplinary hearings [sic] held on 19 February 2018, 26
February 2018 , 6 March 2018 and 13 March 2018 and in view of the
seriousness of this matter, the decision has been made to terminate your
employment with Merafong City Local Municipality by reason of your misconduct .
7 See: outcome of disciplinary hearing at para 5.9 on p 43 of the documentary records bundle.
8 Pleadings, annexure “MLM3” at pp 58 to 59.
5
2. The reason for this decision is that the hearing has found that your
conduct was unsatisfactory in the foll owing respects:
2.1 You have wrongfully and unlawfully taken an amount of R1 220,00
from the employer without authorisation, and after a lawful instruction from the
supervisor refused to return the money. In so doing you have violated
Sections 2(a), 2(b), 2(d) and 9 of Schedule 2: CODE OF GOOD CONDUCT FOR MUNICIPAL STAFF MEMBERS and Clause 8.7 of the Revenue Management: Cashier Processes.
2.2 You demonstrated lack of respect for authority , disregard rules and
policies of the Municipality and jeopardise the employer’s business , which
resulted that the relationship between you and the Municipality have been
severely tarnished [sic].
3. These are particularly serious issues for the M unicipality because your
core function as a cashier is to handle cash, collecting and handling public money and requires utmost honesty, trust and reliability.
4. This conduct is serious enough to merit dismissal in its own right. This
is the case even though we have taken into account the fact that you do not
have an active warning on your disciplinary record.
5. The arrangements in regards of your dismissal [sic] are:
• Your dismissal is effective immediately and your final day of
employment is therefore 30 April 2018.
• You are not entitled to any period of notice or payment in lieu of notice.
• We will pay you in lieu of any accrued but untak en leave, less tax and
normal statutory deductions.
• You must return in good condition any property which belongs to the
Municipality.
• Your final payment of salary shall be made on 31 May 2018, less tax
and normal statutory deductions and/or contributions.
6. You have the right to appeal against your dismissal or waive your right
to appeal and proceed directly to refer a dispute as provided for in the L abour
Relations Act, 66 of 1995.
7. If you wish to appeal, you should inform the M unicipal Manager in
writing within sev en (7) days of receipt of this notification, stating your
6
grounds/reasons of appeal in full. The dismissal will still take effect as
described above, but if you appeal is successful, you will be reinstated with retrospective effect to the termination date and any l ost remuneration will be
reimbursed.’
[12] Mr Speek subsequently referred an unfair dismissal dispute to the second
respondent , which was arbitrated by the third respondent. Procedural fairness was
not in dispute. The third respondent found the dismissal of Mr Speek to be substantively unfair and ordered retrospective reinstatement and back pay.
[13] The applicant approached this Court to review and set aside the arbitration
award.
Preliminary issues
[14] Three preliminary issues served before the Court. The first preliminary point
related to a jurisdictional issue – the first respondent alleged that the review
application was filed out of time , and without an application for condonation for its
late filing, this Court lacked jurisdiction to adjudicate this application. The second preliminary point concerned an application by the applicant for condo nation for the
late filing of its replying affidavit. The third preliminary point was the doctrine of
peremption raised by the first respondent.
[15] As is gleaned from the notice of motion filed by the applicant in two parts, Part
A concerned a review application in terms of the provisions of section 145 of the LRA
and Part B concerned an application to stay the enforcement of the arbitration award in terms of the provisions of section 145(3) of the LRA and ancillary relief in the
review application.
9
[16] The application to stay the enforcement of the arbitration award was
determined by this Court in August 2021 and prior to the hearing of this application. In that application, Baloyi AJ ordered on 6 August 2021 inter alia , that the
9 Notice of Motion, notices bundle at pp 1 to 3.
7
enforcement of the arbitration award is stayed pending the outcome of this review
application and the applicant was to pay security in terms of the provisions of section
145(7) and (8) of the LRA.10
First preliminary point: jurisdiction
[17] From the pleadings in the application to stay the arbitration award, it
transpired that the first respondent had also raised the same jurisdictional issue that
the review application was launched out of time. In brief, the first respondent contended that the dies within which to file the review application expired on 19 April
2021, as the applicant alleged that it received the arbitration award on 8 March 2021.
Although the respondents were served with the review application before the expiry
of the dies , the first respondent contended that the applicant failed to comply with the
provisions of Rule 7A(1) read with Rule 1 of the former Rules of this Court
11 in that it
failed to deliver the review application to this C ourt timely. The review application
was delivered to this C ourt on 23 April 2021.
[18] Given that this same jurisdictional issue served before Baloyi AJ in an
application to stay the arbitration award that is the subject -matter of this review
application, this Court required the parties to make submissions as to whether this
jurisdictional issue was determined finally before Baloyi AJ.
[19] Mr van Graan , for the applicant , handed up heads of argument filed on behalf
of the applicant that w ere before Baloyi AJ and submitted that the jurisdictional issue
was raised before the Court. At that stage, the applicant ’s submission before Baloyi
AJ was that the review application was emailed to the R egistrar of this C ourt on 19
April 2021, and a copy of this e- mail was attached to the aforesaid heads of
argument . As was required by the provisions of the former Rule 5(5) of this Court,
the original application was filed in this Court five days following the service by e-
mail. In the premises, Mr van Graan submitted that the review application was filed
10 Pleadings, pp158 to 159.
11 GN 1665 in GN 17495 of 1996 (repealed on 17 July 2024). Rule 7A(1) provided that a party
desiring to review a decision or proceedings of a body or person performing a reviewable function
must deliver a notice of motion to the personal body and to all other parties . Rule 1 define “deliver” to
mean service on the parties an file with the Registrar.
8
timely and therefore con donation was not necessary. Further , this must have been
the impression formed by Baloyi AJ on hearing the applicant ’s aforesaid
submissions .
[20] Mr Gwebu , for the first respondent , submitted that the jurisdictional issue was
deferred to the review Court , and if the applicant was at that stage, found to have
filed the review application out of time, the applicant would, in such circumstances ,
be required to launch an application for condonation.
[21] After hearing these submissions as aforesaid, I held the view that Baloyi AJ
was satisfied that the review application was f iled timely and therefore condo nation
was unnecessary. In these circumstances, the order issued by Baloyi AJ as set out
above did not deal with condonation. If I am wrong , which I do not think I am, I am
satisfied given the aforesaid submissions and having had sight of the heads of argument by the applicant , the review application was emailed timeous ly to this
Court and the original review application was filed within five days of the service by
e-mail. In the circumstances, this C ourt is clo thed with jurisdiction to adjudicate this
review application . It follows that co ndonation is not necessary. Before this C ourt
was a comprehensive set of pleadings . The review application was ripe for hearing .
Therefore it was in the interest s of justice that this application be disposed of without
further unnecessary delay s.
Second preliminary point: condonation for late filing of the replying affidavit
[22] The second preliminary point was, as with the first, unnecessary, as the first
respondent did not , within 10 days of receipt of the replying affidavit , which was filed
out of time, serve and file a notice of objection to its late filing i n terms of the
provisions of item 11.4.2 of the former Practice Manual
12 of this C ourt, which read:
‘Where the respondent or the applicant has filed its opposing or re plying
affidavit outside the time period set out in the rules, there is no need to apply
for condonation for the late filing of such affidavits unless the party upon
12 Practice Manual of 2013 (repealed on 17 July 2024).
9
whom the affidavits are served files and serves a N otice of Objection to the
late filing of the affidavits. The Notice of Objection must be served and filed
within 10 days of the receipt of the aff idavits , after which time the right to
object shall lapse’ .
(Own emphasis).
Third preliminary point: the doctrine of peremption [23] The first respondent contends that the applicant acquiesced to the arbitration
award, in that on 8 March 2021, the applicant allowed Mr Speek to resume duties. At
no point, when he presented hims elf to resume duties armed with the arbitration
award which was in his favour, was he turned away by the applicant for the reason that the applicant intended to institute proceedings to review and set aside the arbitration award. Mr Speek only learned about the review proceedings when he was served with the application on 19 April 2021.
[24] The applicant contends that at no stage did it acqui esce to the arbitration
award. When it became aware of the arbitration award on 8 March 2021, given the
seriousness of the offence for which Mr Speek was charged, it sought a legal opinion
on the reviewabili ty of the award on 10 March 2021. Ms Mbilini, who was the
applicant’s Human Resources Manager at the time, and during the arbitration
proceedings, was the first respondent’s local b ranch chairperson and Mr Speek’s
initial represent ative, permitted Mr. Speek to resume duties. She had no authority to
do so, as only the Municipal Manager is empowered in term s of section 55 of the
MSA to ap point and dismiss employees. At no stage did the Municipal Manager , Ms
Peu, who is now deceased, authori se Mr. Speek’s return to work. In fact, she
expressly instructed Mr Cannon, the applicant’s representative in the disciplinary
proceedings and its acting Manager: Corporate Secretariat and Legal Services to proceed with the review application. Mr. Cannon followed through with this
instruction. Mr. Cannon informed Ms Mbilini that Mr Speek must not be reinstated.
He also infor med the salary section not to pay Mr. Speek the back pay as ordered in
the arbitration award. Due to Ms Mbilini’s efforts, Mr Speek was paid a salary for
March to Ma y 2021 and was informed on 25 May 2021 to refrain from reporting for
duty as review proceedings had been instituted.
10
[25] The applicant , therefore submits that the doctrine of peremption is
inapplicable.
[26] The common law doctrine of peremption is explained in Dabner v South
African Railways and Harbours
13 as follows:
‘If the conduct of an unsuccessful litigant is such as to point indubitably and
necessary to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it . But the conduct relied upon must be
unequivocal and must be inconsistent with an intention to appeal . And the
onus of establishing that position is upon the party alleging it …’
(Own emphasis).
[27] In labour law matters, peremption usually occurs once an employee has
accepted a settlement agreement or compensation, or where the employer took actions to comply with an arbitration award or Labour Court order to reinstate or re-employ the employee.
14
[28] In de termining whether the defence of peremption should succeed, a fact -
based enquiry shou ld be undertaken as peremption is fact -specific.
15
[29] In Nation al Union of Metalworkers of South Africa v Fry’s Metals (A division of
Zimco Group) and Others
16 (Fry’s Metals) this Court , quoting from the Labour Appeal
Court judgment in National Union of Metalworkers of South Africa and Others v Fast
Freeze17 held as follows regarding the doctrine of peremption:
‘In the context of employment l aw, the former LAC also specifically dealt with
preemption (sic) in the judgment of National Union of Metalworkers of SA and
13 1920 AD 583 .
14 See: Jusayo v Mudau NO and Others [2008] 7 BLLR 668 (LC).
15 Doorgesh v Commission for Conciliation, Mediation and Arbitration and Others (CA4/2014;
C965/2011) [2015] ZALAC 44 (6 November 2015) at para 29.
16 (2015) 36 ILJ 232 (LC) at para 41.
17 (1992 ) 13 IL J 963 (LAC).
11
Others v Fast Freeze . As to the concept of per emption , Mullins J said the
following :
“If a party to a judgement acquiesces therein, either express ly, or by some
unequivocal act wholly inconsistent with an intention to contest it, his right of
appeal is said to be p erempted, ie he cannot thereafter change his mind and
note an appeal. Peremption is an example of the well -known principle that
one may not ap probate and reprobate, or, to use colloquial expressions, blow
hot or cold, or have one's cake and eat it. Per emption also includes elements
of the principles of waiver and estoppel.”
The Court then analysed all the authorities relating to this issue and held as
follows as to the applicable principles that must be considered in order to determine if per empt ion exists:
“From the above authorities it seems to me that the relevant principles can be summarised as follows:
(a) Where a right of appeal exists, the party desiring to appeal loses the
right to appeal where he has acquiesced in the judgement.
(b) Such a acquiesence may be express, or implied from the conduct of
such party .
(c) Acquiescence by conduct requires an over t act by such party, i.e.
conduct which conveys outwardly to the other party his attitude towards the judgment.
(d) The overt act must be consistent with an intention to abide by the
judgment, and inconsistent with an intention to appeal against such judgment.
(e) The test is objective. It is the outward manifestation of such part y’s
attitude in relation to the judgment that must be looked at, not his subjective
state of mind or intention.
(f) Where there is such overt conduct, a mental reservation or resolve not
to acquiesce in the judgement will not avail the party who by his conduct in evinces an intention to abide by the judgment .
(g) The state of mind of the party mentally reserving his right to appeal
must yield to his conduct which plainly contradicts such intention.
12
(h) The court must be satisfied that the conduct in question, w hen fairly
construed, necessarily leads to the conclusion that the party intends abiding
by the judgment.
(i) If more than one inference may fairly be drawn from the conduct in
question, this will not be sufficient to prove renunciation. The conduct must be unequivocal.
(j) The onus of proving that a party has renounced his right to appeal
rests on the party alleging such renunciation.
(k) Voluntary payment, or acceptance of payment, as the case may be, in
terms of a judgment , will usually be sufficient to satisfy a court that the party
has acquiesced to the judgment.”
[30] The doctrine of peremption applies not only to appeals but also to reviews.
18
[31] In Balasana v Motor Bargaining Council and O thers ,
19 (Balasana ) this Court
specifically dealt with the doctrine of peremption in a review application referencing
Fry’s Metals . The C ourt in Balasana accepted that the principle applied to review
applications and said thus :
‘As a general rule a party that per empts the arbitration award would not be
entitled subsequently to challenge that arbitration award. The basic
requirement, however, to sustain a claim of per emption entails having to show
that the acceptance of the outcome of the arbitration award expressly or by
conduct was unequivocal’.
(Own emphasis).
[32] In Venture Otto SA (Pty) Ltd v Metal and Engineering Industries Bargaining
Council and Others
20 this Court in considering the specific facts of the case, upheld
18 See: Venmpo 275 (Pty) Ltd and Another v Cleverland Projects (Pty) Ltd and Another 2016 (1) SA
78 (GJ) where Peter AJ at para 26 stated thus:
‘Although the doctrine of peremption has its genesis in relation to appeals, it has been extended to
application s for rescission of default judgement … and to the common law right of judicial review in
respect of the exercise of statutory authority… Although there appears to be no precedent for
peremption in the context of an application to set aside an arbitration award, there appears to be no
reason, either in policy or principle, not to apply the doctrine of per emption to such a right .’
19 (2011) 32 ILJ 297 (LC) at para 11.
20 (2005) 26 ILJ 349 (LC) .
13
the defence of peremption as the employer undertook to comply with the arbitration
award and the employee positiv ely responded to the undertaking, such that a written
agreement was concluded between the parties . The Court thus found that t he
acquiesence with the arbitration award was unequivocal. What subsequently occurred was a repudiation of the agreement pursuant to the employer’s managing
director having some qualms after having sought legal advice. By then, the Court
remarked, it was too late.
[33] In the present case, the specific facts, objectively assessed, demonstrate that
the applicant did not unequivocally acquiesce to the arbitration award. Ms Mbilini
utilised her powers to Mr Speek’s advantage, although expressly informed by Mr
Cannon, that Mr Speek must not be reinstated. Mr. Speek’s conduct and that of the Municipal Manager at the time, the latter who had the statutory power to reinstate Mr Speek, by their conduct in seeking a legal opinion on the reviewability of the award and proceeding with the review application, the applicant’s refusal to pay Mr Speek his back pay and informing him to refrain from rendering services, are acts which unequivocally demonstrate no intention by the applicant to acquiesce to the
arbitration award.
[34] It is now well- established that an arbitration award does not reinstate an
employee – the employee is to render his services and his reinstatement takes effect
only once the former employer accepts the tender of his services.
21 The delegated
official, being the Municipal Manager, refused to reinst ate Mr Speek. Ms Mbilini ha d
no power to reinstate Mr Speek , therefore the doctrine of estoppel does not arise
and was not contended to have had arisen.
[35] In view of the aforegoing fact speci fic ing redients, it simply cannot be, that the
applicant attempted to have its cake and eat it - the ingredients do not come together
for the cake to rise. In short, on the facts, the doctrine of peremption does not arise.
Argument in the review application
21 National Union of Metalworkers of SA on behalf of Fohlisa and others v Hendor Mining Supplies (A
Division of Marschalk Beleggings (Pty) Ltd) (2017) 38 ILJ 1560 (CC) and Mahlanga N.O v Rand
Water (2023) 44 ILJ 569 (LC).
14
[36] The applicant raises f ive grounds of review.
[37] The first and fifth groun d of review in summary, is that the third respondent
commi tted a gross irregularity , misconstrued the enquiry before her and failed to
apply her mind to the evidence before her when she found that the evidence of the
applicant was corroborative and proved that (a) the shortage of R1 220,00 in Mr.
Speek’s takings on 19 May 2017 did not contitute a shor tfall as defined in the
applicant’s cashing up rules ; (b) that he failed to return the money when instructed,
and despite this finding, she reached an irrational decision that the applicant failed
to discharge the onus on it to prove that the dismissal was substan tively fair.
[38] Further, t he third respondent misconstrued the nature of the enquiry before
her when she took into consideration the dismiss al letter by the Municipal Manager
dated 23 April 2018 and found that as Mr Speek was not charged with the
allegations in paragraph 2.2 of h er letter , Mr. Speek’s dismissal was unfair. In the
circumstances, the applicant contends that the third respondent reached an
unreasonable decision. The appl icant contends that the third respondent ignored the
submissions in the written closing argument submitted by the Mr Cannon for
applicant , that Mr Speek was found guilty of a competent verdict, that is, he
contravened the policies mentioned in charge 1. Mr van Graan submit ted that the
guilty fin ding in the disciplinary hearing on both charge 1 and 2 relate to the
contravention of Municipal policies , charges that were understood by Mr Speek
which he was to meet.
[39] The ap plicant further contends that the dismissal letter penned by the
Municip al Manager does no more than summaris e the unsatisfactory conduct of Mr
Speek , and paragraph 2.1 of that letter record s the allegations of misconduct in
charge 1 for which he was found guilty.
[40] Mr Gwebu submitted that had the letter by the Municipal Manager ended at
paragraph 2.1, then “ we would not be here”. I understand this submission to mean
that there would be no opposition to the dismissal. That being the case, then in my
15
view, there is no basis for the first respondent to argue that Mr Speek’s dismissal
was substantively unfair , and the review application succeeds.
[41] The second ground of review is that the thi rd respondent took into account
irrelevant evidence relating to the delay in instituting disciplinary hearings against Mr Speek and this had no bearing on the determination of substantive fairness.
Therefore, her decision is unreasonable.
[42] Mr Gwebu submits that it was necessary for the third respondent to consider
this evidence in determining substa ntive fairness, as it shows that the misconduct
was not serious , hence the third respondent’s decision that Mr. Speek be reinstated.
[43] The third ground of review is that the third respondent reached a factually
incorrect finding that the applicant paid Mr Speek a salary until 31 May 2018. Mr Speek was dismissed on 23 April 2018 and his last day of service was 30 April 2018.
This incorrect finding, which is immaterial to the substantive fairness of the dismissal
renders her outcome unreasonable.
[44] The fourth ground of review is that the third respondent failed to take into
consideration, the f actors listed in section 193(2) of the LRA in reaching a decision t o
reinstate Mr Speek following her finding that his dismissal was substantively unfair.
[45] In opposing the merits of the review application, the first respondent is fixated
on the content of the letter of dismissal by the Municipal Manager of 23 April 2018
and in essence, contends that the reason for dismissal captured in the letter is not
what Mr Speek was charged for. The first respondent contends that Mr Speek was
found guilty of contravening section 9 of S chedule 2 of the MSA, that is, taking the
applicant’s money without authorisation.
22 In this regard, the first respondent refer s
to the finding of the disciplinary hearing.23 What the first respondent loses sight of, is
22 First respondent’s heads of argument at para 48.
23 Pleadings, annexure “MLM 2” at p 53. Although not eloquently drafted, paragraph 5.9 of the
disciplinary hearing outcome reads:
‘In this case I am convinced that Mr Speek did take the employer's money without authori sation ,
thereby violating section 9 of the Municipal Systems Act 32 of 2000 (schedule 2 ) which stipulates as
follows: a member of a municipality may not use, take, acquire or benefit from any property or assets
owned, controlled or managed by the municipality to which that s taff member has no right. I therefore
16
firstly, the chairperson found Mr. Speek guilty of both charges 1 and 2 on the basis
that he contravened the M unicipal policies and pr escripts mentioned in charge 1.
This is what paragraph 5.9 of the finding of the disciplina ry hearing states .
[46] Secondly, the first respondent loses sight of the f act that the arbitration
hearing is a hearing de novo. The third respondent found that the applicant’s version was more probable. This should then, have been the end of the enquiry insofar as proving the charges is concerned. The third respondent ought then , to have
consider ed whether or not dismissal was the appropriate sanction.
Evaluation
[47] The test in review applications in terms of section 145 of the LRA is trite.
24
The third respondent was tasked to determine substantive fairness only.25
[48] On the totality of evidence before the third respondent, Mr Sp eek was
extensively trained in his job. Mr Speek admi tted that he had a shortage of R1220.00
as discovered by Ms Henni ng, but he denied having taken the money. In the same
breath, he admits having paid back that ex act shortage of money the following week
and complains that the applicant failed to follow its own policy on cash shortages.
[49] It was not disputed that Mr Speek was instr ucted by Ms Henning, supported
by Ms Chauke, the Manager: Revenue, to wh om Ms Henning reported the incident ,
to return the money immediately but he refused to do so.
[50] Due to his failure to return the money, Ms Chauke instructed Ms Henning to
institute disciplinary proceedings agai nst Mr Speek.
find Mr Speek guilty of contravening both s ection 2 ( a)(b)(d) and section 9 of schedule 2 of L ocal
Government Municipal Policies on Cashier s and Banking [sic]’.
24 Sidumo 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).
25 Transcribed record of 27 November 2020 at p 300, lines 5 to 11.
17
[51] The chairperson of the discip linary hearing found him guilty on charge 1. He
found that he applicant did not prove theft on charge 2 and thus found Mr Speek
guilty of contravening clause 9 and clauses 2 (a), (b) and (d) of Schedule 2 of the
MSA.26
[52] When Mr. Speek was furnished with his dismissal letter, the Municipal
Manager summarised the reasons for his dismissal. The third respondent misconst rued the nature of the enquiry before her when she determined that the
content of the Municipal Manager’s letter contained different allegations of
misconduct in paragraph 2.2 thereof that Mr Speek was not charged for, and therefore, she reached an unreasonable decision in determining that Mr Speek was
unfairly dismissed.
[53] It was not the version of Mr. Speek before the third respondent that he was
dismissed for charges that were not levelled against him as contained in the
Municipal Manager’s letter. His version was that he had a shortfall ; the applicant
failed to follow its own policies to deal with the shortfall. He paid it back and
therefore, he was not guilty of theft. The first respondent di d not refer to anywhere in
the record, where Mr Speek’s case before the third respondent was that the letter by
the Municipal Manager referred to allegations for which he was not charged, which
rendered his dismissal procedurally and substantively unfair. It is not for this Court to
troll through the record to find portions that substantiate parties’ contentions one way or the other. Be that as it may, I have considered the record and on the re ading of
the record, this was not the first respondent’s defence.
[54] Therefore, the third respondent not only misconstrued the nature of the
enquiry before her, she also committed a gross irregularity i n considering a version
that was not before her . Her conduct in so doing had distorted the outcome and
renders the arbitration award unreasonable.
[55] The third respondent considered irrelevant evidence relating to the delay in
suspending and charging Mr. Speek. Procedural unfairness was not an issue that
26 Fn. 2 3 supra.
18
was before her to determine. Her c onsidering this irrelevant evidence has distorted
the outcome such that her decision is one that no reasonable decision maker could
reach.
[56] The third respondent considered the evidence before her, made a credibility
finding and determined on the probabilities, that t he version of the applicant was
more probable, yet she found that the applicant failed to discharge the onus on it. Her decision is out of kilter not only with her own findin g on the probabilities, but it is
also irrational in consideration of the totality of evidence before her.
[57] On the evidence, there was a rule which was known by Mr Speek. The rule is
that cashiers are not to take the property of the employer without authorisation. The
evidence before t he third respondent is that the misconduct committed by Mr Speek
was not a shortfall . Ms Henning stated t hat it could not be categorised as a shortfall,
as the reason for the shortfall was known – Mr Speek took the money, which he was
isntructed to return immediately , but did not. The evidence by Ms Chauke is that Mr
Speek on his own version of having a shortfall, did not report the incident to the C hief
Executive Officer. She stated that Mr Speek paying back the money was an
admission of guilt.
[58] The third respondent was fixated on the letter by the Municip al Manager,
when the charges were clear and were clarified to her during the evidence of Mr
Mazibuko, the applicant’s witness who investigated the misconduct.
27 It was also
clarified to the third respondent that the issue she was to determine, was substantive
fairness only. Therefore, she misconstrued the enquiry before her and failed to apply her mind to the evidence before her. The third respondent ignored the heads of
argument by the applicant submitted by Mr Cannon which set out that according to
the Labour Appeal Court decision in Woolworths (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others
28, disciplinary hearing charges
need only be crafted with sufficien t particularity for an employee to know the case he
or she is to meet. In the present case, Mr Speek knew the case he was to meet and conducted his defence with this knowledge.
27 See: transcribed record of 13 January 2021 at p 365.
28 [2011] 10 BLLR 963 (LAC).
19
[59] On the totality evidence before the third respondent, the applicant had a rule,
Mr Speek was aware of the rule. The rule was not to take funds, the property of the applicant without authorization; the rule was that staff are to b e loyal and are to
execute their duties diligently , honestly, transparently and in good faith and are not to
compromise the integrity and credibility of the applicant. The funds in issue are
public funds , thus the integrity of the municipal ity is seriously compromised if staff
use taxpayer ’s money as they will without there being transparency in deal ing with
taxpayer’s money.
[60] The rule in question does not permit taking funds of the applicant at all. Only
where there is a shortfall that cannot be accounted for, is an employee responsible to pay it over. In the present case, following a reconciliation, Mr. Speek’s takings had
a discrepancy . He did not deny this. When questioned, he became emotional, thr ew
his wallet on the desk and left the employer’s premises. He returned the following
week and paid in the money without following the same procedure he complains the
applicant did not follow. In this instance, he cannot approb ate and reprobate. He
failed to raise the issue of the discrepancy with his Chief Executive Officer – this was
the unchallenged evidence of Ms Chauke. On the evidence the discrepancy was not
a shortfall as envisaged in the Cashing up policy, as he took the money. Had he not
taken the money, and it was a shortfall as envisaged by the polic y, he would have
complied with the policy.
[61] The real issue before the third respondent was a cashier who brea ched the
applicant’s rules. The applicant discharged its onus in proving the allegation.
[62] Taking funds of the Municipality for personal use and refusing to immediately
pay back the money is serious misconduct. The nature of the charges and the rules contravened denote that the relationship of trust was broken dow n irretrievably. This
is an employee who refused, together with his union, to co- operate with the
investigation – this was the unchallenged evidence of Mr. Mlangeni the investigator.
Mr Speek showed no remorse for his conduct. This is not an employee who can be trusted with public funds.
20
[63] In the circumstances, dismissal was an appropriate sanction.
[64] Therefore, in light of the afore- going, the third respondent’s decision is one
which no reasonable decision maker could reach on the totality of evidence before
him or her.
[65] In view of the Court’s finding and order, it was not necessary to determine the
fourth ground of review relating to the third respondent failing to consider the factors in section 193 of the LRA in respect of the order of reinstatement.
[66] The application suceeds and the record is sufficient for this Court to substitute
the award with its own order.
Conclusion
[67] It is for the ab ove-mentioned reasons that the said order was made.
M. T. M. Phehane
Judge of the Labour Court of South Africa