IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D553/2022
Not Reportable
In the matter between:
DURBAN UNIVERSITY OF TECHNOLOGY Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER BESS PILLEMER N.O. Second Respondent
LUNGA ALLEN SABATHA KHUMALO 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 14h00 on 23 July 2025
JUDGMENT
ALLEN-YAMAN J
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Introduction
[1] In t he present review application the applicant s ought to set aside the
arbitration award issued by the second respondent in which she found the third
respondent’s dismissal to have been substantively and procedurally unfair, and to
substitute her award with findings to the contrary. The third respondent opposed the
relief so sought.
[2] As the applicant’s review application had been initiated one day outside the
time period permitted therefor it applied for condonation. Given the insignificance of
the delay, the explanation therefor, and the absence of any prejudice to the third
respondent who did not oppose the granting of such order, there is no reason for this
court not to exercise its discretion in favour of the order sought, and condonation will
accordingly be granted.
Background
[3] The third respondent was dismissed on 22 June 2021 pursuant to having
been found to have committed the following act of misconduct,
‘It is alleged that you submitted, or caused to be submitted, a false statement
to the Labour Court in that you are an employee of Nehawu, and in the
capacity as a National Legal Officer of National Education Health & Allied
Workers Union (Nehawu). You knew, or ought to have known, that your
submission was false and constitutes an act of perjury as it was issued under
oath.’
[4] The statement in question was made in a founding affidavit deposed to by the
third respondent on 21 August 2020 in support of an application issued in this court
under D383/2020 by three trade unions (NEHAWU, TENUSA and NTEU) in which
the applicant in the present proceedings was sought to be interdicted f rom taking
certain action in relation to its employees . The applicant took issue with the third
respondent’s statement at paragraph 1 of the founding affidavit which read,
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‘I am an adult male, National Legal Officer for the First Applicant, whose place
of employment is situated at 5[…] M[…] Street, M[…], Johannesburg.’
[5] In disciplinary proceedings initiated by the applicant on 27 November 2020
the third respondent did not dispute that the statement in question had been
incorrect: he conceded that he was not an employee of NEHAWU, let alone its
national legal officer, employed at the address mentioned. On the contrary, it was
common cause that he was, and had at all material times, been an employee of the
applicant, employed in it s IT Department as a Desktop Practitioner. In dispute
between the parties was what had motivated the third respondent to make the
statement in question. It was the applicant’s case that the third respondent had done
so deliberately, with the intention to deceive. The third respondent, on the other
hand, asserted that the statement had been made in error.
[6] The chairperson appointed to the disciplinary enquiry found that the third
respondent’s misstatement of his own credentials had indeed been in error, but
nonetheless found him guilty of the infraction alleged,
‘However, although I accept Mr Khumalo’s argument that the contents of
paragraph 1 were made in error, there is a principle in our law which states
caveat subscriptor.
1 He should have read the affidavit properly and carefully
and should have seen there was an error. He should have asked his attorney
to rectify the mistake. He did not do so. He initialled the page as if it were
correct and signed the affidavit under oath.’
[7] Pursuant to having adjourned the matter for the parties to address him on
aggravating and mitigating factors, on 30 April 2021 the chairperson recommended
that the third respondent be dismissed ‘as soon as practically possible.’ The
applicant accepted the chairperson’s recommendation and notified the third
respondent of the termination of his employment on 3 May 2021. Having
respondent of the termination of his employment on 3 May 2021. Having
1 The caveat subscriptor rule was established in Burger v Central SAR 1903 TS 571, in which the
court was required to determine whether one contracting party was bound to the terms of a contract
which he alleged he had not read, ‘It is a sound principle of law that a man, when he signs a contract,
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unsuccessfully challenged the outcome of the disciplinary enquiry by way of the
applicant’s appeal process, he was dismissed from the applicant’s employ on 22
June 2021.
[8] The third respondent referred a dispute to CCMA in which he challenged the
substantive and procedural fairness of his dismissal. His challenge to the substantive
fairness of his dismissal was premised upon his assertion that he had not been guilty
of the misconduct for which he had been charged. Insofar as the procedure adopted
by the applicant was concerned, it was his case that the applicant had not adhered
to the procedure prescribed in its own Disciplinary Policy and Procedure.
[9] It is the outcome of the ensuing arbitration which forms the subject matter of
the present review application, the second respondent having found that the third
respondent’s dismissal had been both substantively and procedurally unfair, and
having awarded his retrospective reinstatement.
Analysis
[10] In seeking to review the award the applicant asserted that the second
respondent arrived at a decision no reasonable decision maker could have reached
having regard to the evidence before her ; having acted unreasonably in the
execution of her duties and responsibilities as arbitrator; having failed to apply her
mind to the law and the evidence before her; and having committed a gross
irregularity by having misconstrued the import of the evidence before her as well as
the enquiry she was required to undertake.
[11] Insofar as the second respondent’s finding concerning the substantive
unfairness of the third respondent’s dismissal was concerned, and in amplification of
its assertion that such finding was unreasonable, the applicant articulated a variety of
complaints concerning the second respondent’s assessment of the evidence before
her, concluding that,
is taken to be bound by the ordinary meaning and effect of the words which appear over his
signature.’
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‘On a complete assessment of these factors, it supports that the Third
Respondent did in fact act intentionally and dishonestly – and this was by no
means a “genuine mistake that was acknowledged, and the correct position
as corrected in the opposing affidavit accepted”, as she contends at
paragraph 9.1 of the Award.’
[12] An award will be reviewed and corrected only if it fails to meet the standard of
reasonableness, as explained in Herholdt v Nedbank Ltd (Congress of South African
Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA),
‘A result will only be unreasonable if it is one that a reasonable arbitrator could
not reach on all the material that was before the arbitrator. Material errors of
fact, as well as the weight and relevance to be attached to particular facts, are
not in and of themselves sufficient for an award to be set aside, but are only of
any consequence if their effect is to render the outcome unreasonable.’
The reasonableness or otherwise of the second respondent’s conclusion that the
third respondent had been unfairly dismissed will accordingly be considered
holistically in relation to the evidence before her.
[13] The parties concluded a pre- arbitration conference, the minute of which was
placed before the second respondent, and in which the third respondent’s denial that
he was guilty of the charge was re- iterated. It having been common cause between
the parties that the information captured in paragraph 1 of the founding affidavit
deposed to by the third respondent under case number D383/2020 had been
incorrect, they agreed that the second respondent’s finding concerning whether the
he had committed the offence alleged required her to determine, ‘[w]hether the
Applicant acted intentionally and/or dishonestly when he deposed to the founding
affidavit, specifically paragraph 1.’
[14] The only witness to testify on behalf of the applicant in support of its case that
[14] The only witness to testify on behalf of the applicant in support of its case that
the third respondent’s statement had been a deliberate untruth was Mr Augustine
Mxolisi Msomi, its Acting Senior Director: Human Capital Services. In his evidence in
chief he described the circumstances in which the third respondent’s founding
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affidavit had come into existence, the applicant’s response thereto, and the manner
in which the applicant’s response was dealt with by the third respondent . In
consideration of t hese issues it is evident that the applicant ( 1) assumed that the
misstatement in the founding affidavit had been a deliberate act on the part of the
third respondent, and (2) was of the opinion that he had failed adequately to address
the issue in reply and had thereby perpetuated the lie.
[15] Although Mr Msomi could point to no direct evidence to substantiate his belief
that the third respondent’s misstatement had been deliberate, he refused to accept
that such statement had been nothing more than an error under cross -examination.
He was also unable to provide an explanation as to what may have motivate d the
third respondent to have misrepresented his credentials. Additionally, his response
to the question as to whether he had been misled by the statement, given that he
was very familiar with the third respondent by virtue of their workplace interactions,
was that he had been unaware that the third respondent had been NEHAWU’s
national legal officer. This contradicted the position taken by him in his own
answering affidavit under D383/2020, in which he unequivocally denied t hat the third
respondent held such a position.
[16] The third respondent testified that the designation attributed to him in the
founding affidavit in question had never been one claimed by him. Upon receipt of
the draft founding affidavit he noted his name, and thereafter focussed his attention
on the material facts of the dispute. Without having noticed that his designation and
address were erroneously captured in the draft affidavit, he signed it before a
commissioner of oaths. His version that this had been no more than a mistake
remained steadfast under cross -examination, and was confirmed by the attorney
responsible for the application, Mr Adrian Moodley, who described the circumstances
responsible for the application, Mr Adrian Moodley, who described the circumstances
which led to the inclusion of the offending paragraph having been as a result of an
error of drafting by counsel.
[17] In the present proceedings in response to this court having questioned what
possible advantage the third respondent could have obtained from misrepresenting
his true position, Mr Lawrence for the applicant suggested that it may have affected
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the issue of locus standi under D383/2020, albeit that he reiterated that this had not
been the applicant’s case.
[18] In the arbitration the applicant argued further that the third respondent’s
dishonesty ab initio was established by the manner in which the third respondent had
responded to the applicant’s answering affidavit delivered under D383/2020. In the
answering affidavit, and in response to the statement contained in paragraph 1 of the
founding affidavit, Mr Msomi stated,
‘26.1 The contents of these paragraphs are disputed.
26.2 The deponent, Lunga Alan Sabatha Khumalo, is an employee of the
Respondent and is employed at the Respondent situated at 4[ …] ML S […]
Road, G […], Durban. The deponent however states that his place of
employment is situated at 5[…] M[…] Street, M[…], Johannesburg.’
[19] In the subsequent replying affidavit the third respondent stated,
‘The Applicants admit that the address of the deponent was an error and it is
as alleged by the Respondent. The remaining allegations in these paragraphs
are noted.’
[20] Mr Msomi explained that the applicant took the view that, in consideration of
the applicant’s challenge to the allegations made in paragraph 1 and the third
respondent’s response thereto , the third respondent had thereby continued to
perpetuate the falsehood regarding his own designation. His interpretation of the
response was that it constituted no more than a concession that the address was
wrong; insofar as the third respondent’s remaining assertions were concerned, the
third respondent had not corrected the position, which left the issue disputed
between the parties.
[21] The third respondent testified that the issue of the error had been drawn to his
attention when he consulted with NEHAWU’s legal representatives for the purpose of
drafting the replying affidavit. It was explained to him that the applicant had identified
8
the error, and that it had been corrected in his replying affidavit. Mr Moodley’s
evidence accorded with this version.
[22] The applicant bore the onus to establish that the dismissal of the third
respondent had been substantively fair. To do so, it was required to have established
that it was more probable than not that the third respondent had intentionally
attempted to perpetrate the fiction that he was employed by NEHAWU in the
capacity of its national legal officer at its offices in Johannesburg. In circumstances in
which it had no direct evidence of such intent, it relied upon the inference to be
drawn from the third respondent’s response to its answering affidavit under
D383/2020. It was the applicant’s case that the third respondent had dealt only with
the issue of his address, leaving the issues of both this status as an employee of the
DUT and not NEHAWU, a s well as the position he occupied as had been conveyed
by him in his founding affidavit.
[23] At the outset it may be noted that neither of the relevant paragraphs in either
the answering and replying affidavits exemplify clarity of drafting. As a matter of
convention, there are only three appropriate responses to allegations in a litigating
party’s affidavit: admission, denial, or confession and avoidance. Despite this, the
drafters of the respective affidavits resorted to having ‘disputed’ and ‘noted’ factual
allegations, with the result being that any reader of such affidavits was required to
consider the allegations as a whole, and to consider the effect thereof with reference
to established legal principles in order to determine to what extent, if any, the issues
contained therein had been placed in dispute.
[24] The starting point for consideration of the third respondent’s response in his
replying affidavit was the applicant’s own statement. At the outset, the applicant
‘disputed’ the contents of, inter alia , paragraph 1 of the third respondent’s founding
‘disputed’ the contents of, inter alia , paragraph 1 of the third respondent’s founding
affidavit, without limitation. From this, it may be understood that the applicant
intended to deny the correctness of the paragraph in its entirety. This interpretation
accorded with Mr Msomi’s evidence that the purpose of his response was to dispute
the correctness of the third respondent’s assertions,
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‘Actually in this paragraph it was disputed the submission that was made in
the founding affidavit, that is the applicant in this matter was an employee of
NEHAWU as a legal officer based in Marshall Street in Johannesburg. That
paragraph was inserted there just to dispute that particular assertion that was
given on the affidavit.’
In amplification of such denial, Mr Msomi asserted that the third respondent was the
applicant’s own employee, employed at its premises in Durban.
[25] The third respondent’s response to the applicant’s allegations constituted
three parts: (1) he admitted that the correct address wa s that which had been stat ed
by the applicant; (2) he asserted that the address mentioned by him had been in
error; and (3) he ‘noted’ the remaining allegations in the paragraph.
[26] The third respondent accordingly expressly admitted the correctness of the
address alleged by the applicant, and disavowed the correctness of the address
which had been alleged by him in his founding affidavit. Ancillary to this, he
explained the address alleged by him had been erroneously given. Whilst his
‘noting’ of the remainder of the paragraph was not an unequivocal admission of its
contents, in context, that this was his intention is the most reasonable interpretation
to be given to the term , ‘noted’. The third respondent had readily acquiesced to the
error of the address originally stated, which address was inextricably linked to his
alleged employment by NEHAWU. Implicit in his abandonment of the original
address, together with his concomitant acceptance of the address cited by the
applicant as having been his place of employment, was his contemporaneous
acceptance of the correctness of the allegation that he was employed by the
applicant.
[27] To the extent that it was argued that despite this, it remained open for a
reader of the affidavits to believe that the third respondent may have been employed
reader of the affidavits to believe that the third respondent may have been employed
by both the DUT and NEHAWU, the applicant’s denial that he was employed by
NEHAWU was unchallenged in reply by the third respondent. Insofar as those issues
which had been denied by the applicant but which were not expressly dealt with by
the third respondent were concerned, it is trite that any of the applicant’s allegations
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which were neither admitted (with or without avoidance) or denied, were to be taken
as having been accepted as being correct.2
[28] Finally, the applicant did not dispute that the third respondent had not himself
drafted the replying affidavit, and that to that end he had relied upon the assistance
of both an attorney and an advocate. There was accordingly no reason to reject the
third respondent’s version that issue of the erroneous addressed had been
addressed in the course of the consultation, and that he presumed, himself not being
legally trained, that the issue had been adequately dealt with.
[29] Having narrowed the issues in their pre- arbitration conference, the parties
correctly identified that one of the essential elements of the commission of an act of
perjury (being the misconduct for which the third respondent was dismissed) was
intent (the remaining elements being a false statement; made in an affidavit,
affirmation or attested declaration; before a competent person).
[30] In consideration of the totality of the evidence before the second respondent,
nothing supported the applicant’s claim that the third respondent had deliberately set
about attempting to deceive anyone who read his affidavits, including this court.
Regardless of who may or may not have believed the statement contained in his
founding affidavit, the issue was the cause thereof, not its effect. There was no basis
upon which the second respondent ought to have rejected the third respondent’s
explanation that the offending paragraph had been included in error, or that he had
believed that his replying affidavit had adequately resolved the issue.
[31] Given that the applicant’s case that the third respondent had intentionally
misrepresented his status in his founding affidavit was premised on no more than its
own assumptions, that the third respondent’s replying affidavit did not evince the
perpetuation of his erroneous statement, and given further that there was no reason
perpetuation of his erroneous statement, and given further that there was no reason
for the second respondent to have rejected the third respondent’s version, the
second respondent’s conclusion that the third respondent’s dismissal had been
substantively unfair was not a conclusion which no reasonable decision maker could
not have arrived at.
2 Moosa v Knox 1949 (3) SA 327 (N)
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[32] It was the applicant’s further case that the second respondent had
unreasonably failed to find that re- instatement was an inappropriate remedy, in
consideration of the nature of the charge, and the subsequent conduct of the third
respondent post fact the misrepresentation, even if it had been an error.
[33] Having found that the third respondent was to be exonerated of any act of
misconduct, it was incumbent upon the second respondent to determine the
appropriate remedy. It is trite that, absent the presence of any impediment to the
reinstatement of an employee whose dismissal has been found to have been
substantively unfair, he or she is entitled to such an award. No evidence was placed
before the second respondent by the applicant which could have operated as a bar
to the third respondent’s reinstatement. The same is true of the second respondent’s
decision to make the third respondent’s reinstatement fully retrospective.
[34] Despite the applicant having been aware of the fact that the amount awarded
to the third respondent constituted back pay, the applicant nonetheless took issue
with the second respondent’s award of ‘compensation’, having asserted that
compensation equivalent to in excess of fourteen months of his salary was
unreasonable, and in its Heads of Argument that it was in excess of the limitation
imposed in terms of s194 of the LRA. The amount awarded to the third respondent
was his arrear salary, awarded to him on the basis of his having been awarded
retrospective reinstatement. As it was not awarded as an amount of compensation,
the limitation imposed on commissioners in terms of s194(1) of the LRA was
irrelevant.
[35] The applicant’s final grounds of review relate to the second respondent’s
finding that the third respondent’s dismissal had been procedurally unfair. As pointed
out by the third respondent, as no consequential relief arose out of such finding, the
out by the third respondent, as no consequential relief arose out of such finding, the
conclusions reached by the second respondent were immaterial to the outcome. This
issue will accordingly be dealt with for the sake of completeness only.
[36] The second respondent’s finding arose from her conclusion that (1) despite
that the applicant’s disciplinary code had not made provision for legal representation,
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and its Council had not authorised any deviation therefrom, the applicant had
nevertheless utilised an external legal representative as its evidence leader in the
third respondent’s disciplinary enquiry, and (2) despite the fact that the third
respondent’s representative had tested positive for COVID and he had applied for a
postponement on the basis of her unavailability, the postponement was refused.
[37] Mr Msomi testified that the applicant’s disciplinary code was a guideline which
could be departed from in appropriate circumstances, and that this instance was
such a circumstance. In circumstances in which the applicant had previously sought
to depart from the provisions of its own disciplinary code it had done so with the
express authorisation of its EXCO and its Council, that its disciplinary code could be
construed as a mere guideline is doubtful. Be that as it may, the applicant referred
this court to the conclusions of the Labour Appeal Court in Highveld District Council v
Commission for Conciliation Mediation and Arbitration and Others (2003) 24 ILJ 517
(LAC),
‘The mere fact that a procedure is an agreed one does not however make it
fair. By the same token, the fact that an agreed proc edure was not followed
does not in itself mean that the procedure actually followed was unfair. …
When deciding whether a particular procedure was fair, the tribunal judging
the fairness must scrutinize the procedure actually followed. It must decide
whether in all the circumstances the procedure was fair.’
3
[38] In consideration of the second respondent’s reasoning in relation to this
aspect, it is evident that she was of the opinion that departure from the disciplinary
code would have necessitated consideration by the applicant’s council of the
likelihood of ‘the imbalance and unfairness on an employee having to pay for his
legal representation’, which did not happen in relation to the third respondent. In the
legal representation’, which did not happen in relation to the third respondent. In the
circumstances, her conclusion was informed by not only the departure from the
disciplinary code itself, but also the effect thereof. Such conclusion, as with her
further conclusion that the appeal process was tainted by unfairness in light of
having proceeded in the absence of the third respondent’s representative who was
3 At paragraph 15
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likely to have been of assistance to the third respondent in having articulated his
appeal, was accordingly not one which was unreasonable.
Costs
[39] Mr Lawrance argued that in the event that the application did not succeed, it
would be appropriate that no order of costs be made as the employment relationship
between the parties would thereby be revived. Mr Rudling, who appeared for the
third respondent, persisted in the third respondent’s prayer for costs.
[40] The applicant’s own Chairperson, despite having recommended the third
respondent’s dismissal, found as a matter of fact that an error had resulted in the
inclusion of the offending paragraph in the founding affidavit in question. The second
respondent found the applicant’s contention that the third respondent had been guilty
of perjury to have been ‘ridiculous’. This court concurs with the view expressed by Mr
Rudling that the present application was ‘patently groundless.’
[41] In light of the circumstances of the third respondent’s dismissal and the patent
cogency of the second respondent’s award, this court is of the view that the third
respondent ought not to be mulcted with the costs of opposition. Albeit that the third
respondent sought costs on an attorney and client scale, this court is not of the
opinion that costs on such scale is warranted.
Order
1. The late initiation of the application is condoned.
2. The application is dismissed.
3. The applicant is ordered to pay the third respondent’s costs.
K Allen-Yaman
Judge of the Labour Court of South Africa
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Appearances
Applicant:
Mr I Lawrence, Edward Nathan Sonnenbergs Inc
Third Respondent:
Mr M Rudling, instructed by J Philip Attorneys