IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Case No: D314/2022
Not Reportable

In the matter between:

DEPARTMENT OF HIGHER EDUCATION
AND TRAINING REPUBLIC OF SOUTH AFRICA Applicant

and

LUNTU NOCHA First Respondent

NEHAWU Second Respondent

T D NTSHANGASE NO Third Respondent

Heard: 12 March 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time for handing-
down is deemed 10h00 on 14 July 2025


JUDGMENT


ALLEN-YAMAN J

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Introduction

[1] Pursuant to the third respondent in his capacity as the chairperson of a
disciplinary enquiry having concluded that the first respondent had committed certain
acts of misconduct he imposed a sanction of a three month unpaid suspension,
together with a final written warning. When asked to endorse such an outcome t he
Minister for Higher Education, Science and Innovation was not prepared to do so,
having noted,

‘I suggest that the matter involving Mr L Nocha be referred to Adv Ndlovu as it
is too serious a matter to just [indistinct] what is a lenient sentence. Sexual
harassment and sexual favour must be [indistinct].’

[2] The issue of the third respondent’s sanction was referred to the applicant’s
legal department which led to the initiation of the present application in which, inter
alia, an order reviewing, correcting and setting it aside was sought. The applicant
asked that the sanction be substituted with that of the first respondent’s dismissal or,
in the alternative, that the matter be remitted to the third respondent for him to
determine the question of the sanction de novo. The application was opposed by the
first respondent.

[3] As a result of the review application having been initiated more than a year
after the sanction had been handed down, the applicant applied for condonation for
the late delivery thereof. C ertain delays occ urred in the prosecution of the review
application as a result of which the applicant also applied for its reinstatement.
Neither applications were opposed by the first respondent and, this court having
been of the opinion that the interests of justice warranted the granting of both orders,
they were granted at the outset of the hearing of the matter.

Background

[4] On 25 October 2019 the first respondent was called to attend a disciplinary
hearing by the applicant in relation to the following acts of alleged misconduct,

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‘a) On the 18 th February 2019, at Cato Manor Campus you wilfully and
intentionally disrupted the National Examination sitting, as a result of the
students could not complete their examination. Your alleged conduct is a
gross violation of sections 3.1; 3.2; 3.3; 7.2 and 7.9 of the Code of
Professional Ethics for the South African Council of Educators.
b) On the 11
th May 2019, at Thekwini TVET College you received a sum
of R350.00 after demanding it from a student in return for an increased test
marks and which resulted to her DP improving from 52% to 56%. Your
conduct is a gross violation of sections 4.4.5 and 4.5.3 of the Code of Conduct
for the Public Service and section 3.14 of the Code of Professional Ethics for
the South African Council of Educators.
c) On the 19 th May 2019, at Thekwini TVET College you received a sum
of R200.00 after demanding it from a student in return for an increased test
marks and which resulted to her DP improving from 52% to 56%. Your
conduct is a gross violation of sections 4.4.5 and 4.5.3 of the Code of Conduct
for the Public Service and section 3.14 of the Code of Professional Ethics for
the South African Council of Educators.
d) On the 19
th of May 2019, at Thekwini TVET College you demanded
sexual favours from a student after she was unable to make a full payment of
R600.00 in exchange for higher test marks. Your conduct is a gross violation
of section 4.2.8, 4.4.5 and 4.5.3 of the Code of Conduct for the Public Service
and section 3.9 and 3.12 of the Code of Professional Ethics for the South
African Council of Educators.’

[5] Having concluded at the outset of his report that the first respondent was not
guilty of the first act of misconduct alleged, the third respondent concluded otherwise
in respect of the final three allegations. The basis upon which he reached such
conclusions are unclear as the third respondent’s analysis of the evidence which

conclusions are unclear as the third respondent’s analysis of the evidence which
preceded his verdict provides no clear explanation for his findings . His final verdict
read,

‘I have no doubt that the employer was unable to cover the most crucial
aspect in completing the clandestine or puzzle that would quantify and justify

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its prayer for dismissal, however the balance of probability strongly suggest
that there was indeed an element of misconduct by Mr Nocha. Thereby
finding Mr Nocha Guilty as charged and he should be suspended for the
period of three (03) consecutive months without emoluments Plus final written
warning.’

[6] The first respondent unsuccessfully appealed the outcome of the enquiry.
The Minister for Higher Education, Science and Innovation’s subsequent
consideration of the matter and refusal to endorse the third respondent’s sanction
resulted in the present review application.

Analysis

[7] It was the applicant’s case that the third respondent’s decision to impose a
sanction other than dismissal was unreasonable in the light of the evidence before
him, and that in consideration of the gravity of the offences which the first respondent
was found to have committed, no sanction other than that of dismissal could be
countenanced.

[8] Before considering whether the sanction imposed by the third respondent falls
to be reviewed and set aside, it is first necessary to deal with the applicant’s
concerns regarding the third respondent’s treatment of certain hearsay evidence
relied upon by it in the course of the disciplinary hearing. In the present application,
the applicant asserted that the third respondent had excluded such evidence and
thereby committed a reviewable irregularity . The first respondent asserted that
reliance on such evidence in the absence of the student to whom the allegations
related having testified militated against a finding that he had been guilty of the
offenses at all.

[9] Despite the third respondent’s analysis of the principles applicable to the
admission of hearsay evidence, it is uncertain as to what his ultimate decision in this
regard was. Whatever his conclusion may have been however, he ultimately found
that the first respondent had committed the offences complained of . Such finding

that the first respondent had committed the offences complained of . Such finding
was not the subject matter of the present application. The applicant’s challenge was

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confined to the sanction imposed, whereas the first respondent did not seek to
disturb any of the third respondent’s conclusions regarding the infractions
themselves. The third respondent’s treatment of the hearsay evidence in question
was seemingly immaterial to his determination regarding the sanction and
accordingly need be considered no further.

[10] The factors which informed the third respondent’s conclusion that the
appropriate sanction was that of suspension without pay coupled with a final written
warning were also not clear from his r eport. Having summarised the evidence of the
parties’ witnesses, the third respondent commenced his analysis of the evidence by
examining the tensions between their respective versions, together with the
circumstantial and documentary evidence relevant to the charges. He thereafter
mentioned the failure on the part of the applicant to have called the student to testify,
and subsequently examined the law relevant to hearsay evidence. Without making
any explicit findings concerning either the admissibility of the hearsay evidence or
which version he preferred, he proceeded to consider what he believed to have been
the applicable law relating to dismissals. This included both an analysis of Item 7 of
Schedule 8 of the LRA as well as the principles relevant to the assessment of the
fairness of a dismissal established in Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others (2007) 28 ILJ 2405 (CC).

[11] The applicant asserted in the present application that the third respondent
erred in the manner in which he had applied Item 7 of Schedule 8 to the LRA when
determining the sanction, but did not take issue with the applicability such provision.
The first respondent , likewise, did not dispute the applicability of that provision, but
denied that it had been erroneously applied.

[12] Item 7 of Schedule 8 to the LRA is the guideline applicable to the

[12] Item 7 of Schedule 8 to the LRA is the guideline applicable to the
determination of the fairness or otherwise of a decision already taken to impose of
the sanction of dismissal. Given that the third respondent was himself required to
determine the appropriate sanction, and was not required to assess the fairness of a
decision to dismiss an employee which has already been taken, Item 7 of Schedule
8 was irrelevant to his enquiry. Having been required to determine the appropriate
sanction upon having found t he first respondent to have been guilty of three acts of

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misconduct he was bound to adhere to the guideline established under Item 3 of
Schedule 8.

[13] As regards the reasonableness of the sanction, the applicant asserted that the
third respondent:
- failed to take into account the competing interest s of the applicant, the
students and the first respondent;
- did not give due weight to the importance of the rule and the harm
occasioned by its breach;
- erred in attaching undue weight to the evidence that the first
respondent had been recalled to his position after his precautionary
suspension;
- attached undue weight to the first respondent’s unblemished
disciplinary record which did not sufficiently negate the sanction of dismissal;
- failed to appreciate that t he first respondent ’s long service was not a
bar to a sanction of dismissal;
- committed an irregularity when he found that t he first respondent had
not been ‘charged for dishonesty and that leading evidence on the working
relationships would still be proper and justify the irreparable relationships ;’;
and that
- the reasons advanced by the third respondent in relation to the
sanction did not support the conclusion arrived at;

[14] The rationale for the third respondent’s sanction cannot be discerned from his
report. Despite having been afforded an opportunity to furnish the reasons for his
decision in the present application
1, he did not avail himself thereof. Absent the third
respondent having expressly explained his reasoning in having arrived at his
conclusion that the sanction of a suspension coupled with a written warning sufficed,
it is not possible to assess the rationality of his decision.2

[15] In the course of the third respondent’s analysis he:

1 R7A(2)(b)
2 See Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA) at paragraph 47

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- acknowledged that the allegations against the first respondent were to
be viewed in a serious light;
- mentioned that although t he first respondent had been placed on a
precautionary suspension, his suspension had been uplifted prior to the
disciplinary proceedings having commenced; and
- seemed to suggest that by virtue of the fact that t he first respondent
had not been charged with an act of dishonesty, it would be possible to
restore the relationship.
All that may be gleaned from his having mentioned these issues in passing is
that they may possibly have influenced his ultimate decision regarding the
sanction.

[16] If these were, indeed, the factors which led to his sanction, then the only
conclusions which can be drawn are that (1) he misconstrued the nature of the
misconduct which the first respondent had been found to have committed, and (2)
failed to take all the factors relevant to the determination of the appropriate sanction
into account.

[17] As regards the first aspect, t he second and third of the charges entailed the
breach of clause 3.14 of the Code of Professional Ethics for the South African
Council of Educators, which requires an educator to refrain from abusing ‘the
position he or she holds for financial, political or personal gain’ . The particularity of
the offences which the first respondent was found to have committed in
contravention of clause 3.14 entailed the receipt of payment of the amounts of
R350.00 and R200.00 by a student in exchange for his having inflated a score in one
of her tests from 27% to 47%, which resulted in her DP score increasing from 52% to
56%. Such conduct is nothing other than an act of dishonesty. As regards the
second issue, if the remaining factors mentioned by him were indeed the only factors
he took into account in arriving at the sanction (the seriousness of the infractions and
the first respondent’s suspension having been uplif ted), then the third respondent

the first respondent’s suspension having been uplif ted), then the third respondent
failed to take all relevant factors into account in having arrived at his decision,
including those asserted by the applicant in the present application.

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[18] For these reasons, the third respondent’s sanction falls to be reviewed and
set aside.

[19] It is the applicant’s case that this court should substitute the sanction with that
of dismissal. In this regard, the applicant took issue with the third respondent’s
statement that it had introduced no evidence to suggest that the working relationship
between the parties had been irretrievably damaged. T he applicant argued that the
evidence introduced in relation to the charges themselves demonstrated that the first
respondent had breached his duty towards the applicant and the conclusion that the
trust relationship had been irreparably damaged implicitly arose from the gravity of
the misconduct alone.

[20] The principle that a break down in the relationship between the parties can
invariably be inferred in circumstances in which the misconduct in question evinces a
measure of dishonesty was confirmed by the Labour Appeal Court in Autozone v
Dispute Resolution Centre of Motor Industry and Others (2019) 40 ILJ 1501 (LAC),

‘An employer relying on irreparable damage to the employment relationship to
justify a dismissal would be prudent normally to lead evidence in that regard,
unless the conclusion that the relationship has broken down is apparent from
the nature of the offence and/or the circumstances of the dismissal. Where
the offence in question reveals a stratagem of dishonesty or deceit, it can be
accepted that the employer probably will lose trust in the employee, who by
reason of the misconduct alone will have demonstrated a degree of
untrustworthiness rendering him unreliable and the continuation of the
relationship intolerable or unfeasible.’
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[21] The Labour Appeal Court reiterated this principle in Algoa Bus Company (Pty)
Ltd v TASWU obo Mzawi and Others (2025) 46 ILJ 89 (LAC),

‘In sum: contrary to what the Labour Court held, there is no obligation in law
on an employer to adduce evidence on the appropriateness or suitability of

on an employer to adduce evidence on the appropriateness or suitability of
dismissal as a sanction for misconduct, as a necessary condition for any

3 At paragraph 12

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finding of unfair dismissal. An arbitrator making a decision on the
appropriateness of dismissal as a sanction for misconduct must make a value
judgement, taking into account all relevant facts and circumstances. A
breakdown in trust or deterioration in the employment relationship may be
inferred from the evidence regarding these facts and circumstances.’
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[22] Although both these decisions concern the ex post facto assessment of the
fairness of a dismissal, there is no reason that the principles stated therein ought not
to apply equally to the determination of the appropriate sanction to be imposed upon
an employee having been found to have committed misconduct . In making such a
determination, the ultimate question to be answered in the light of the totality of the
evidence before the decision maker is whether the relationship between the parties
has irretrievably broken down.

[23] Item 3 of Schedule 8 provides the guideline to be applied in the determination
of the appropriate sanction,

‘(4) Generally, it is not appropriate to dismiss an employee for a first
offence, except if the misconduct is serious and of such gravity that it makes a
continued employment relationship intolerable. Examples of serious
misconduct, subject to the rule that each case should be judged on its merits,
are gross dishonesty or wilful damage to the property of the employer, wilful
endangering of the safety of others, physical assault on the employer, a fellow
employee, client or customer and gross insubordination. Whatever the merits
of the case for dismissal might be, a dismissal will not be fair if it does not
meet the requirements of s188.
(5) When deciding whether or not to impose the penalty of dismissal, the
employer should in addition to the gravity of the misconduct consider factors
such as the employee’s circumstances (including length of service, previous
disciplinary record and personal circumstances), the nature of the job and the
circumstances of the infringement itself.

circumstances of the infringement itself.
(6) The employer should apply the penalty of dismissal consistently with
the way in which it has been applied to the same and other employees in the

4 At paragraph 17

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past, and consistently as between two or more employees who participate in
the misconduct under consideration.’

[24] Despite that the existence of dishonesty is likely to destroy the employment
relationship, and there will be circumstances in which the nature of misconduct may
in the absence of any counter-veiling evidence suffice to arrive at the conclusion that
the employment relationship has been destroyed thereby, it cannot be said that
dismissal is, without exception, the inevitable and only possible sanction which can
be imposed where dishonesty is present or the misconduct is serious. Each case is
required to be determined on its own merits.

[25] When considering the appropriateness of a court substituting its own sanction
for that of the original decision maker rather than remitting the matter to the decision
maker for his or her reconsideration the Supreme Court of Appeal in Ntshangase v
MEC: Finance Kwa-Zulu Natal and Another (2009) 30 ILJ 2653 (SCA) stated,

‘It is indeed correct that it is well established that, ordinarily, a court will refer a
matter back to the administrative functionary for reconsideration rather than to
substitute its own decision for that of the functionary. The underlying reasons
for this are as Heher JA stated in Gauteng Gambling Board v Silverstar
Development Ltd and Others 2005 (4) SA 67 (SCA) in para 29 that such a
functionary is generally best equipped by amongst others, its composition, by
experience, and its access to sources of relevant information and expertise to
make the right decision. However this principle is not inflexible. The facts of
each case will determine whether it is fair and practical to remit the matter to
the original functionary or of the court to substitute its own decision for that of
the original functionary.’
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[26] In consideration of the possible substitution of sanction in the present
instance, this court finds that there are certainly factors indicating that t he first

instance, this court finds that there are certainly factors indicating that t he first
respondent’s conduct has potentially rendered the continued employment
relationship untenable: the misconduct was both serious and evinced dishonesty on
his part . Moreover, in advancing his defence (impliedly rejected by the third

5 At paragraphs 21 - 22

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respondent) he not only evinced a complete lack of contrition, but argued that the
applicant itself had purposefully set about fabricating documentation and evidence in
order to orchestrate his dismissal.

[27] From the third respondent’s report, however, there was at least one factor
referred to and seemingly relied upon by him which militated against the imposition
of the sanction of dismissal, and that was the fact that t he first respondent ’s
suspension had been uplifted prior to the commencement of the disciplinary enquiry,

‘… it is trite that initially the employee was precautionary suspended and
recalled prior to the beginning of the disciplinary processes thus allowing the
possibilities of mending the relationships between the parties.’

[28] In the present proceedings the applicant did not furnish this court with the
entire record. The effect thereof was that this court was unable to establish from the
record the basis upon which the first respondent ’s suspension had been uplifted,
whether possibly as a result of the effluxion of a mandatory time period, or because
the applicant did not perceive the misconduct as having been an impediment to the
first respondent’s continued performance of his work functions. As this factor is of
relevance to the determination as to whether the employment relationship has been
destroyed as a result of the first respondent’s misconduct, and this court is unable to
make any finding in relation thereto, it is not in a position to make a determination as
to whether the employment relationship has been irreparably compromised, and
hence the appropriate sanction to be applied. The issue of the appropriate sanction
will accordingly be required to be remitted to the third respondent for his
reconsideration.

Costs

[29] The applicant asked that the first respondent be ordered to pay its costs.

[30] Given that the first respondent opposed the application to defend a decision

[30] Given that the first respondent opposed the application to defend a decision
taken which preserved his status as an employee of the applicant, t his court is not of

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the view that such opposition was not unreasonabl y undertaken, and he will
accordingly not be required to pay the applicant’s costs.

Order

1. The applicant’s review application is reinstated.

2. The applicant is granted condonation for the late delivery of its review
application.

3. The sanction handed down by the third respondent on 2 February
2021, that the first respondent be suspended for a period of three consecutive
months without emoluments and be given a final written warning, is reviewed
and set aside.

4. The issue of the appropriate sanction to be imposed as a consequence
of the first respondent having been found to have committed the acts of
misconduct alleged under items (b), (c) and (d) of the applicant’s notice to
attend a disciplinary hearing dated 25 October 2019 is remitted to the third
respondent for his reconsideration.

5. There is no order as to costs.

K Allen-Yaman
Judge of the Labour Court of South Africa

Appearances

Applicant:
Ms N Bhagwandeen, instructed by the State Attorney, KwaZulu-Natal

Respondent:
Mr A Moodely, Adrian Moodley Attorneys