THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable
Case No: JR 331/22

In the matter between

DEPARTMENT OF INFRUSTRUCTURE DEVELOPMENT Applicant

and

KAWU obo M DELIHLAZO First Respondent

GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL Second Respondent

ADV. ITUMELENG KGATLA N.O Third Respondent

Heard: 10 December 2024
Delivered: 30 June 2025
Summary: Review Application – The applicant contends that inconsistency
was never raised as an issue in dispute, yet the commissioner relied on it as a
basis for reinstating the employee, despite having made a finding of
dishonesty. Such reliance, in the absence of this being a live issue, renders
the award unreasonable.

Condonation – Although the explanation for the delay in filing was not
detailed, it was found to be adequate when assessed against the strength of

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the applicant’s case and the broader interests of justice. Condonation granted


JUDGMENT


SWARTZ, AJ

Introduction

[1] This is an application brought in terms of section 145 of the Labour Relations
Act
1 (LRA) to review and set aside the arbitration award dated 25 November 2021,
issued under the auspices of the second respondent, the General Public Service
Sectoral Bargaining Council (GPSSBC), under case number GPBC436/2021. The
award was issued by the third respondent (the commissioner).

[2] The commissioner found the dismissal of the first respondent (Muzwethu
Delihlazo – the employee) both substantively and procedurally unfair and ordered
reinstatement without retrospective effect. The employee was initially represented by
KAWU but is now represented by NEHAWU.

[3] There has been an unfortunate and material delay in the finalisation of this
matter. The conduct that led to the employee’s dismissal dates back to 2017.

[4] The applicant seeks for this Court to substitute the commissioner’s findings
with an order that the first respondent’s dismissal was substantively and procedurally
fair.

[5] The applicant’s principal grounds of review are, inter alia , that the
commissioner exceeded his powers by determining the appropriateness of the
sanction without affording the parties an opportunity to be heard on the issue, and

1 Act 66 of 1995, as amended.

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that, despite finding the employee guilty of dishonesty, he nonetheless reinstated
him. The applicant contends that the award is therefore unreasonable and that the
commissioner committed a gross irregularity.

[6] In addition to the review application, there is also a condonation application
for the late referral of the review and an application for the revival of the review.

[7] The merits of the review will be addressed first, as they have a direct bearing
on the applicant’s aforementioned condonation and revival applications.

Factual background

[8] The employee commenced employment with the applicant on 1 December
2012 as a boiler operator. He was dismissed on 30 October 2019, and at the time of
his dismissal, he was based at Bertha Gxowa Facility Maintenance Hub (the
hospital).

[9] On Saturday, 4 November 2017, it was common cause that the employee and
Mr Robert Nkosi (Mr Nkosi) were found cutting boiler pipes in the hospital’s old boiler
room. They were discovered by Mr Malefo Johannes Doepeleng (Mr Malefo), a chief
artisan, manager at the hospital, and the employee’s superior.

[10] On 13 February 2019, the employee was formally charged with three counts
of misconduct, principally relating to the damage to property and the theft of boiler
pipes. A disciplinary hearing was conducted between 12 July and 11 September
2019. The employee was found guilty on all charges and was dismissed on 30
October 2019.

[11] The employee referred an unfair dismissal dispute to the GPSSBC . The
arbitration commenced on 17 August 2021 and concluded on 21 October 2021.

The applicant’s submissions – on the merits

4

[12] The employee and Mr Nkosi had not been granted permission to work
overtime on 4 November 2017. Overtime instructions are never issued verbally ; a
formal work order ( like a job card) must be issued before any overtime work is
authorised. This is essential in order to process the overtime payment.

[13] On the morning of 4 November 2017, Mr Malefo attended the hospital to meet
a generator contractor. As the contractor was running approximately 30 minutes late,
he proceeded to the office in the old boiler room to make himself some tea. Upon
entering the old boiler room , he heard a grinder in use and discovered Mr Nkosi and
the employee inside. Mr Nkosi was standing beneath the boiler, while the employee
was positioned on top of it. Both were wearing p ersonal protective equipment, and
the employee was using a grinder to cut the boiler’s steel pipes.

[14] Mr Malefo observed numerous cut pipes on the old boiler room floor, as well
as additional cut pipes in the employee’s bakkie, which was parked outside the
premises. He proceeded to switch off the power to the grinder. Upon seeing Mr
Malefo, both Mr Nkosi and the employee began apologising, explaining that they had
no money for food or electricity. Mr Malefo reprimanded them and instructed them to
cease what they were doing immediately.

[15] Mr Malefo then returned to the hospital to meet with the generator contractor.
The meeting lasted approximately 1.5 hours, after which he went back to the old
boiler room, only to find Mr Nkosi and the employee still cutting pipes. It was at that
point that he contacted the police and his supervisor, Mr Ernest Moraka (Mr Moraka).

[16] Mr Nkosi and the employee spent the weekend in police custody. During this
time, the employee signed a police statement admitting to the theft. Their families
pleaded with Mr Malefo to withdraw the charges and handle the matter internally. As
a result, the police investigation was not pursued further.

a result, the police investigation was not pursued further.

[17] Mr Nkosi was the employee’s assistant and subordinate. On 4 November
2017, he was instructed by the employee to assist in cutting pipes. The employee
had falsely informed Mr Nkosi that Mr Malefo had authorised the overtime work they
were about to perform.

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[18] Mr Nkosi was also charged with misconduct. Following a disciplinary hearing,
held separately from that of the employee, he cooperated with the applicant and was
suspended from the applicant’s service for two months without pay.

[19] The applicant contends that the issue of the consistency of sanction was not
in dispute and, accordingly, was never properly ventilated during the arbitration
proceedings. Despite this, the commissioner, of his own accord, found that the
sanction imposed on the employee was too harsh in comparison to that imposed on
Mr Nkosi. The applicant submits that this demonstrates the commissioner exceeded
his powers by determining and basing his award on an issue that was never placed
in dispute.

[20] The commissioner’s finding is also irrational. Despite concluding that the
employee’s version was less probable, that he was not authorised to perform
overtime work, that he acted with intent to steal, and that tampering with essential
infrastructure constitutes a serious offence, the commissioner nevertheless ordered
the employee’s reinstatement. The applicant contends that, in doing so, the
commissioner not only exceeded his powers but also made a finding that is irrational,
which constitutes a gross irregularity.

[21] The applicant further submits that remitting the matter to the GPSSBC would
result in unnecessary delay and incur additional, unwarranted costs.

The employee’s submissions – on the merits

[22] The employee contends that Mr Malefo gave him and Mr Nkosi verbal
instructions to work overtime on 4 November 2017 and that work orders are only
required when working in the hospital, not outside the hospital.

[23] According to the employee, they were instructed to clean the boiler room by
cutting pipes to create space for the interns’ lockers. He further alleges that Mr
Malefo deliberately set a trap for him and Mr Nkosi due to discord in their working

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relationship. The employee denied having apologised to either Mr Malefo or Mr
Moraka and further denied that there were any cut pipes in his bakkie.

[24] In the answering affidavit, the employee fails to engage with any specificity in
relation to the review ground concerning the commissioner’s determination of the
issue of inconsistency. The only reference appears in paragraph 12, where he states
that ‘…in determining the fairness of my dismissal the arbitrator had to look into the
inconsistence sanction that was meted towards me and my colleague, and, there is
nothing unreasonable in that regard’.

[25] In the employee’s heads of argument, it is further submitted that it would be
‘impossible’ for this court to substitute the GPSSBC’s sanction with one of dismissal.

Analysis of the review application

[26] The employee’s submissions in his heads of argument focus primarily on the
condonation and revival applications, rather than on the merits of the review itself.

[27] In essence, the applicant relies on two principal grounds of review. First, that
the commissioner found the employee’s dismissal to be unfair on the basis of
inconsistency in sanction when compared to that imposed on Mr Nkosi, an issue that
was never in dispute. Second, that despite the commissioner finding the employee to
be an unreliable witness and his version improbable, he nevertheless concluded that
the dismissal was unfair.

Ground of review: The commissioner determined the issue of inconsistency

[28] An analysis of the transcript and the pre -arbitration minute confirms that
inconsistency was not a matter placed in dispute between the parties. The employee
testified that Mr Nkosi remains employed by the applicant, and under cross -
examination, Mr Nkosi confirmed that he was suspended without pay for two months
following his disciplinary hearing. It was further established that the disciplinary
hearings of Mr Nkosi and the employee were conducted separately and presided

hearings of Mr Nkosi and the employee were conducted separately and presided
over by different chairpersons.

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[29] During the arbitration, the commissioner made only passing references to the
issue of inconsistency. At page 61 of the transcript, he briefly asked Mr Moraka,
‘Then how was the case closed by labour relations?’, to which Mr Moraka responded
that Mr Nkosi had been suspended without pay but added that the question should
rather be directed to Mr Malefo. Later, at pages 188 to 189 of the transcript, the
commissioner sought clarification in relation to a question posed by the employee’s
representative to Mr Malefo regarding the outcome for Mr Nkosi following the
incident. Mr Malefo confirmed that Mr Nkosi had been charged and remained
employed by the applicant. Aside from these brief and incidental exchanges, the
issue of inconsistency was neither raised nor meaningfully explored by either party
during the arbitration.

[30] Not only was the issue of inconsistency not identified in the pre- arbitration
minute, but it was never raised by the employee’s representative in his opening
address. This ground is based on the premise that the commissioner should be
bound by the limitation of issues concluded in the course of the opening addresses
of the parties and identified in the pre- arbitration minute. This is because there are
no pleadings to speak of in CCMA arbitration proceedings, and, therefore, the
opening addresses and the limitation of issues articulated by the parties at the outset
of the arbitration would serve the very same purpose as limiting issues in a pre- trial
minute.
2 In Fidelity Cash Management Service v Commission for Conciliation,
Mediation and Arbitration and Others3, the Court dealt with the limitation of issues for
determination in an arbitration by way of the opening addresses made by the parties.
The Court referred to what each party in the arbitration had said in their opening
addresses,
4 and then concluded:5
‘… in an arbitration such as the one that happened in this matter, the parties

‘… in an arbitration such as the one that happened in this matter, the parties
do not exchange, and, in this case, did not exchange, pleadings that would
enable each party to know what the other party's case is. In cases in which

2 See: Tiger Brands Field Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration
and Others (JR 2650/2010) [2013] ZALCJHB 216 (13 August 2013) at para 71.
3 (2008) 29 ILJ 964 (LAC) (Fidelity Cash).
4 Ibid at paras 20 – 22.
5 Id at para 23.

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opening statements are made, they serve to inform both the arbitrator and the
other side what one's case is. …’

[31] It is a well- established principle that an issue expressly excluded by way of a
pre-arbitration agreement (minute) cannot be introduced during arbitration
proceedings, as the parties are bound by the limitations they have agreed to. 6 As
stated in Filta-Matix (Pty) Ltd v Freudenberg and Others :7 ‘…If a party elects to limit
the ambit of his case, the election is usually binding…’ . Similarly, the applicants are
bound by the case as outlined in their opening address at the arbitration. In ZA One
(Pty) Ltd t/a Naartjie Clothing v Goldman NO and Others,8 the Court held:
‘The effect of the events at the commencement of the arbitration, as
specifically set out above, is similar to a pretrial agreement and has the same
consequences. As there are no pleadings in CCMA arbitrations, the court has
specifically dealt with the significance of opening addresses. …’

[32] The employee did not challenge the issue of inconsistency, nor did he dispute
the procedural fairness of his dismissal. Significantly, the employee’s representative
made no mention of inconsistency in the opening statement. Nevertheless, in
paragraph 7 of the award, the commissioner unexpectedly identified as an issue for
determination, ‘Thirdly I must determine whether or not the Respondent was justified
to impose different sanctions between the Applicant and his co- accused for a
misconduct arising from the same facts’.

[33] This issue was introduced mero motu by the commissioner and was never
raised during the arbitration proceedings. This identification of inconsistency as a
matter for determination appears for the first time in the award itself.

[34] Inconsistency was not placed in dispute by the parties ; however, the
commissioner nevertheless concludes that ‘ I find that the employers conduct in
meting out the different sanctions between the A pplicant and Mr. Robert Nkosi

meting out the different sanctions between the A pplicant and Mr. Robert Nkosi

6 See: GE Security (Africa) v Airey and Others (2011) 32 ILJ 2078 (LAC) at para 20 – 21.
7 1998 (1) SA 606 (SCA) at 614B-D.
8 (2013) 34 ILJ 2347 (LC) at para 62. See also para 61 of the judgment.

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amounts to self-misdirection, improper exercise of discretion, which further amounts
to unexplainable act of inconsistency’.

[35] In paragraph 47 of its heads of argument, the applicant sets out the reasons
why Mr Nkosi received a lesser sanction than the employee. However, this issue
was not expressly ventilated during the arbitration because it was never placed in
dispute. The difficulty and resulting prejudice to the applicant is that had the
employee identified inconsistency as an issue in dispute, the applicant would have
been afforded an opportunity to present evidence explaining the differential
treatment. For instance, the outcome of Mr Nkosi’s disciplinary hearing was not
included in the arbitration bundle, nor was the matter meaningfully canvassed with
any of the applicant’s witnesses.

[36] The commissioner exceeded his powers within his jurisdiction by deciding an
issue which the parties had not placed in dispute.
9 In Reunert Industries (Pty)
Limited t/a Reutech Defence Industries v Naicker & others 10, the Labour Court held
that where the parties have expressly limited the issues in dispute, thereby confining
the arbitrator’s jurisdiction, it constitutes a gross irregularity for the arbitrator to
determine an issue that was not placed before him. By deciding a matter outside the
scope of the agreed dispute, the arbitrator exceeded his mandate, which rendered
the award reviewable. The court held:
‘The commissioner exceeded her powers by entering into the question of the
adequacy of the sanction and, in so doing, committed a gross irregularity by
failing to hear the parties on the issue.’
11

[37] By raising inconsistency mero motu in the award, the commissioner denied
the applicant a fair opportunity to address the point, thereby failing to comply with the
tenets of the audi alteram partem rule. This constitutes a gross irregularity in terms of
section 145(2)(a)(ii) of the LRA , as well as the commissioner exceeding his powers

section 145(2)(a)(ii) of the LRA , as well as the commissioner exceeding his powers
in terms of section 145(2)(a)(iii) of the LRA.

9 A Myburgh, C Bosch, ‘Review in the Labour Courts’, LexisNexis, at p 117 para 6.5.
10 [1997] 12 BLLR 1632 (LC) at 1637.
11 At p 1638 A-B.

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Ground of review: Despite finding the employee was not credible and his version
was improbable the commissioner still found that his dismissal was unfair

[38] The commissioner makes the following adverse findings against the
employee:
38.1 ‘I find this contradiction is very material and taps negatively into the
Applicant’s credibility and reliability as a witness in these proceedings’;
38.2 ‘I find that this version is less probable and should not be accepted. I
am inclined to believe that the Applicant was indeed not authorised to conduct
overtime work on the day in question’;
38.3 ‘In my view that tampering with essential infrastructure is a serious
crime and should be treated as such’; and
38.4 ‘I take cognizance of the fact that the Applicant’s dismissal was for
cutting of steel pipes with the intention to [steal]…’.

[39] In paragraph 73 of the award, the commissioner outlines instances in which
an employee may be dismissed for a first offence where the misconduct is
particularly serious. Strikingly, in the same paragraph, the commissioner expressly
includes examples of such serious misconduct as ‘ ... gross dishonesty or wilful
damage to the property of the employer’.

[40] The commissioner made an adverse credibility finding against the employee
and concluded that he was not authorised to cut the steel pipes, which constituted
State property. However, despite setting out in the award when dismissal is
appropriate even for a first offence involving serious misconduct, the commissioner
nevertheless found that the sanction of dismissal was too harsh, relying on the
employee’s length of service and clean disciplinary record. In so doing, the
commissioner relied on Shoprite Checkers (Pty) Ltd v CCMA & others .
12 The
reliance of this judgment is misplaced because the form of misconduct was
substantively different.


12 [2008] 12 BLLR 1211 (LAC).

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[41] This Court should only interfere with credibility findings made by
commissioners if the evidence contained in the record before the Court shows that
the credibility findings of the commissioner are entirely at odds with or completely out
of kilter with the probabilities and all the evidence actually on the record when
considered as a whole.13

[42] In particular, and having considered the record, I am of the view that the
employee’s testimony leaves much to be desired, and that the commissioner was
correct to make an adverse finding about the employee’s credibility.

[43] Despite these findings , namely, that the employee did not have permission
from Mr Malefo to cut the steel pipes and that the probabilities favoured the
employer, the commissioner, inexplicably, found the dismissal to be unfair and
ordered the employee’s reinstatement without retrospective effect.

[44] As submitted by the applicant, the commissioner failed to appreciate that the
employee caused damage with the intention of stealing State property. The
commissioner’s finding is entirely disconnected from both his reasoning and the
evidence before him and accordingly, amounts to a gross irregularity.

[45] The test for review is well established. In Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others ,
14 the Constitutional Court held that ‘ the
reasonableness standard should now suffuse s 145 of the LRA’15, and articulated the
threshold test for the reasonableness of an award as follows: ‘ … Is the decision
reached by the commissioner one that a reasonable decision maker could not
reach?’16


13 See: National Union of Mineworkers and Another v Commission for Conciliation, Mediation and
Arbitration and Others (2013) 34 ILJ 945 (LC) at para 31; Truworths Ltd v Commission for
Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 677 (LC) at para 25; Moodley v Illovo
Gledhow and Others (2004) 25 ILJ 1462 (LC) at para 22; Kgoadi v Commission for Conciliation,

Gledhow and Others (2004) 25 ILJ 1462 (LC) at para 22; Kgoadi v Commission for Conciliation,
Mediation and Arbitration and Others [2014] JOL 31908 (LC) at paras 51 – 52.
14 (2007) 28 ILJ 2405 (CC).
15 Ibid at para 106.
16 Id at para 110. See also Commercial Workers Union of SA v Tao Ying Metal Industries and Others
(2008) 29 ILJ 2461 (CC) at para 134; Fidelity Cash supra at para 96.

12

[46] In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae)17 the Court stated:
‘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.’

[47] The commissioner was not entitled to consider the issue of inconsistency, and
his decision to reinstate the employee bears no rational connection to his own
findings regarding the employee’s guilt. The outcome is accordingly unreasonable.

[48] For all the reasons set out above, I conclude that the commissioner’s award is
reviewable. I am of the view that it clearly falls outside the bounds of what may be
regarded as reasonable. The applicant’s review application is therefore granted.

Condonation for the late filing of the review and the revival application
Condonation

[49] At the hearing of this matter the applicant submitted it was not perusing its
objection to the late filing of the employee’s answering affidavit.

[50] In respect of the condonation application: the award was received by the
applicant on 30 November 2021, and accordingly, the review application should,
according to the applicant, have been launched by 5 January 2022. However, by this
court’s calculation, the six-week period expired on 12 January 2022.

[51] The review application was served on 4 March 2022 making the application
just over seven weeks late.

17 (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v
Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para
14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing

Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968
(LAC) at paras 15 – 17; National Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.

13


[52] The applicant attributes the late filing of its review application primarily to
internal administrative delays. In its founding affidavit, the applicant explains that
upon receipt of the award, the standard procedure is to forward it to the Labour
Relations Unit, which then considers the award and prepares a memorandum to the
Head Office advising whether to comply with the award or to institute review
proceedings.

[53] The memorandum was submitted on 22 December 2021. However, as this fell
during the festive season, it was only considered on 4 January 2022. Thereafter, it
was referred to the Legal Services Department for further consideration of the
identified issues. As this department had not yet returned from the holiday break, its
opinion was only submitted on 31 January 2022.

[54] Ms Maponya from the Office of the State Attorney only received the file on 14
February 2022. The applicant attributes the continued delay to the recruitment
process for the appointment of counsel. Given the urgency of the matter, Ms
Maponya elected to draft the founding affidavit herself. However, due to capacity
constraints, including other urgent applications and a trial, she was only able to
consult on 28 February 2022.

[55] The employee contends that the allegations contained in the applicant’s
condonation application amount to hearsay, as none of the supporting documents,
such as the memorandum, have been attached. Furthermore, no explanation is
provided as to why the State Attorney was only briefed on 4 February 2022, or why
Ms Maponya was only instructed on 11 February 2022. In addition, while Ms
Maponya attributes the delay to her workload at the time, no supporting
documentation, such as a notice of set down for her trial , has been provided to
substantiate this claim.

[56] The employee further contends that the delay is unreasonable and that the
explanations provided by the applicant are wholly inadequate.

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[57] The legal principles applicable to an application for condonation are well
established. This court exercises a discretion in such matters, which must be applied
judicially and with due regard to the facts of each case. Ultimately, the enquiry is one
of fairness to both parties.

[58] In NUM v Council for Mineral Technology
18, the Labour Appeal Court was
very clear that in the absence of a reasonable explanation, considerations such as
the prospects of success become irrelevant. It was said that:
‘The approach is that the court has a discretion, to be exercised judicially
upon a consideration of all the facts, and in essence it is a matter of fairness
to both sides. Among the facts usually relevant are the degree of lateness, the
explanation therefore, the prospects of success and the importance of the
case. These facts are interrelated; they are not individually decisive. What is
needed is an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects of success which are not
strong. The importance of the issue and strong prospects of success may
tend to compensate for a long delay. There is a further principle which is
applied and that is that without a reasonable and acceptable explanation for
the delay, the prospects of success are immaterial, and without prospects of
success, no matter how good the explanation for the delay, an application for
condonation should be refused…’.

[59] Condonation for delays is not simply there for the taking. A n applicant in an
application for condonation seeks an indulgence and bears the onus to show good
cause.

[60] The applicant’s explanation for the delay is lacking in that it has failed to
attach any documents to support Ms Maponya’s allegations that she was
overwhelmed with work. However , Ms Maponya did depose to a confirmatory
affidavit in this regard.


18 [1999] 3 BLLR 209 (LAC) (NUM) at para 10.

15

[61] Moreover, there is no explanation as to why Ms Maponya only received the
file on 11 February 2022 when the mandate was granted to refer the matter to the
office of the State Attorney already on 4 February 2022.

[62] The review application was filed just over seven weeks out of time. While this
constitutes a delay, it cannot be regarded as unduly excessive.

[63] As already stated above, the award falls to be reviewed and set aside.
Accordingly, the applicant’s prospects on the merits are strong.

[64] This court enjoys a wide judicial discretion to grant condonation where it
would be in the interests of justice to do so, primarily based on the interrelated
factors already outlined above.
19 In addition, the Labour Courts have, at various
times, taken into account a number of ancillary considerations, including: the relative
prejudice to each party should condonation be granted or refused; the importance of
the case; the respondent’s interest in the finality of the dispute; the convenience of
the Court and the need to avoid unnecessary delays in the administration of
justice.
20

[65] In circumstances where the explanation for the delay and the prospects of
success stand at opposite ends of the spectrum, I must take into account the
ancillary considerations set out above and, ultimately, determine whether it is in the
interests of justice to grant condonation.

[66] It is not in the interests of justice to overlook the seriousness of conduct
involving the damaging and attempted theft of property, particularly where, as in this
case, the property in question belongs to the State. To refuse condonation solely on

19 Steenkamp & Others v Edcon Ltd (2019) 40 ILJ 1731 (CC) ( Steenkamp II CC) at paras 29 and 36.
See also NEHAWU obo Mafokeng and Others v Charlotte Theron Children’s Home [2004] 10 BLLR
979 (LAC); Mndebele & Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (2016) 37

ILJ 2610 (LAC) at [4]; See also Chetty v Baker McKenzie (2022) 43 ILJ 1599 (LAC); Mashishi v
Mdladla NO & Others (2018) 39 ILJ 1607 (LC) at para 7; Matsha & Others v Public Health & Social
Development Sectoral Bargaining Council & Others (2019) 40 ILJ 2565 (LC).
20 National Education Health & Allied Workers Union on behalf of Leduka v National Research
Foundation (2017) 38 ILJ 430 (LC) at para 38 citing Academic & Professional Staff Association v
Pretorius NO & others (2008) 29 ILJ 318 (LC) at paras 17-18.

16

the basis of a weak, albeit existent, explanation for the delay would unjustly
undermine the applicant’s strong prospects on the merits and risk diminishing the
public respect for and protection of State-owned property.

[67] As stated in the Labour Appeal Court’s judgment of Government Printing
Works v Public Service Association and Another
21 held that: ‘The failure to provide a
proper explanation for a delay has not been an absolute bar to condonation. A
measure of flexibility has been applied where required in the interests of justice…’.

[68] Although the explanation for the delay lacks specific detail and some periods
remain unexplained, an explanation has nonetheless been provided and in my view,
meets the minimum threshold. The delay is not excessive, and when considered
alongside the strength of the applicant’s case and the overarching interests of
justice, I am satisfied that condonation for the late filing of the review application is
warranted.

Revival application

[69] The applicant filed the record one day out of time. In its heads of argument
dated 19 November 2024, approximately three weeks before the matter was argued,
the employee alerts the applicant that the matter has been archived. T he applicant
brought a revival application on 6 December 2024.

[70] The employee has not filed opposing papers.

[71] The reason for the applicant’s late filing of the record, by one day, is attributed
to one of the four messengers employed by the State Attorney failing to file the
record on the same day it was served on the employee. Given that the record was
ultimately filed on 14 July 2022, approximately a year and a half after the revival
application was launched, the specific individual responsible can no longer be
identified.


21 (2025) 46 ILJ 915 (LAC) at para 25.

17

[72] The employee further contends that the applicant failed to notify the Registrar
in writing to request the allocation of a hearing date, a step which the employee was
ultimately compelled to take on 10 October 2023. The employee also asserts that the
applicant did not comply with the obligation to furnish security in terms of section
145(7) of the LRA.

[73] The applicant attaches a notice of enrolment dated 21 December 2022,
advising the Registrar that the court file had been indexed and paginated, and
applying for a date on the opposed roll. As for the issue of security, the failure to file
security does not render the application defective; rather, it affects only the
enforceability of the award. An award may still be enforced if security is not
furnished, and as such, the point raised by the employee in this regard is misplaced.

[74] For all the reasons stated for the granting of the condonation application, the
revival application is granted

The substitution of the award

[75] In relation to misconduct , the commissioner f ound that ‘… a misconduct
involving dishonesty does not automatically warrant a sanction of dismissal…’.

[76] Dishonesty is the kind of misconduct that justifies the sanction of dismissal as
an appropriate and fair sanction. 22 There can thus be little doubt that the employee’s
misconduct was very serious , especially as it involved the State’s property. Further,
all of the applicant’s witnesses, Mr Nkosi, Mr Moraka, and Mr Malefo, confirmed that
the employee had apologised for his actions. Notably, Mr Malefo testified that the
employee had signed an admission of guilt at the police station. In light of the
commissioner’s finding that the probabilities favoured the employer, it is striking that
he failed to consider the employee’s reversal of his version of events during the
arbitration.


22 Toyota SA Motors (Pty) Ltd v Radebe and Others (2000) 21 ILJ 340 (LAC) at para 15; Mutual

22 Toyota SA Motors (Pty) Ltd v Radebe and Others (2000) 21 ILJ 340 (LAC) at para 15; Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC) at paras 35 and 37.

18

[77] Even if the commissioner failed to consider this aspect , he still found the
employee to have been dishonest.

[78] From the transcript and the findings of the award (in finding that the employee
was dishonest), the employee sought to evade responsibility by advancing contrived
and false defences and explanations. As aptly described in Malaka v General Public
Service Sectoral Bargaining Council and Others ,23 this conduct signifies the
following:
‘The evidence reveals that the appellant’s dishonest conduct rendered
continued employment intolerable and incapable of restitution. Conduct, such
as we have here, is incompatible with the trust and confidence necessary for
the continuation of the employment relationship. The Department of Justice
was entitled, in the circumstances, to end the employment relationship.’

[79] In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others24, it was stated that: ‘… Dismissal is not an expression of
moral outrage; much less is it an act of vengeance. It is, or should be, a sensible
operational response to risk management in the particular enterprise. …’.

[80] In light of the facts of this case and, in particular, the commissioner’s adverse
credibility findings against the employee and his conclusion that the employee had
indeed committed misconduct, it is surprising that the commissioner nevertheless
ordered reinstatement, albeit without retrospectivity. His justification for doing so
rests on the issue of inconsistency, which, as detailed above, ought not to have been
considered by him in the first place.

[81] The employee contends that this Court may not substitute the award.

[82] In terms of section 145 (4) (a) of the LRA, th is Court has the broadest powers
to determine a dispute in whatever manner it considers appropriate.
25 In exercising

23 (2020) 41 ILJ 2783 (LAC) at para 34.
24 (2000) 21 ILJ 1051 (LAC) at para 22.

23 (2020) 41 ILJ 2783 (LAC) at para 34.
24 (2000) 21 ILJ 1051 (LAC) at para 22.
25 National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and
Arbitration and Others (2022) 43 ILJ 530 (CC) (NUMSA).

19

this power, this Court may, after reviewing the proceedings, and if it finds in favour of
the applicant by upholding the review, either substitute its decision for that of the
commissioner or remit the matter to the CCMA.

[83] The Labour Appeal Court in Phakoago v SANCA Witbank Alcohol and Drug
Help Centre and Others
26 (Phakoago) referred to National Union of Metalworkers of
South Africa v Commission for Conciliation, Mediation and Arbitration and Others 27
where the Constitutional Court held that the Labour Court should ‘exercise a
measure of judicial deference and only substitute decisions in exceptional
circumstances’. However, the Constitutional Court went further and stated that
‘judicial deference should not be interpreted to mean that the Labour Court does not
have the power to substitute … arbitration awards’.
28

[84] Phakoago also referred to Southern Sun Hotel Interests (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
29 (Southern Sun),
and stated:30
‘…the court set out the circumstances in which the Labour Court would rather
correct the decision than refer it back to the CCMA as being:
“(i) where the end result is a foregone conclusion and it would merely be a
waste of time to order the CCMA to reconsider the matter;
(ii) where a further delay would cause unjustified prejudice to the parties;
(iii) where the CCMA has exhibited such bias or incompetence that it would
be unfair to require the applicant to submit to the same jurisdiction again; or
(iv) where the court is in as good a position as the CCMA to make the
decision itself.”’

[85] As stated above, the employee’s misconduct occurred in 2017 . T here has
been an unfortunate material delay in the conclusion of the matter, which erodes one

26 [2024] 12 BLLR 1271 (LAC) at para 41.
27 Ibid.
28 NUMSA supra at para 67.
29 (2010) 31 ILJ 452 (LC) at para 33.
30 Phakoago supra at para 43.

20

of the cornerstones of employment law , being the expeditious resolution of
employment disputes.31

[86] Having regard to the factors listed in Southern Sun, this court finds that (i) the
end result is a foregone conclusion and it would merely be a waste of time to order
the CCMA to reconsider the matter; (ii) where a further delay would cause unjustified
prejudice to the parties ; and (iii) this court is in as good a position as the CCMA to
make the decision itself.

[87] Furthermore, having carefully considered the transcript and the arbitration
bundle in detail, I am satisfied that a rehearing would serve little to no practical
purpose.32

[88] For all the reasons set out above, and given that the commissioner’s decision
is one that no reasonable decision- maker could have reached, this court is in a
position to substitute the award with a finding that the employee was fairly dismissed.

Costs

[89] In terms of the provisions of section 162(1) of the LRA, I have a wide
discretion when it comes to the issue of costs. I am aware of what the Constitutional
Court said with regard to costs in employment disputes as expressed in Zungu v
Premier of the Province of KwaZulu- Natal and Others
33 (Zungu). In exercising this
judicial discretion, the same court recently reaffirmed the principle set in Zungu and
stated that ‘ when making an adverse costs order in a labour matter, a presiding
officer is required to consider the principle of fairness and have due regard to the
conduct of the parties’.
34


31 Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty) Ltd (2018) 39
ILJ 1213 (CC) at para 187.
32 Stated Auto Industrial Group (Pty) Ltd and Others v Commission for Conciliation, Mediation and
Arbitration and Others (2019) 40 ILJ 550 (LC) at para 60.
33 (2018) 39 ILJ 523 (CC) at para 25.
34 Long v SA Breweries (Pty) Ltd and Others (2019) 40 ILJ 965 (CC) at para 29.

21

[90] The employee was fully entitled to oppose this application, particularly given
the lack of detail in the condonation application. Taking these factors into account,
together with a broader consideration of fairness to both parties, I am satisfied that it
is just and appropriate to make no order as to costs.

[91] In the premises, the following order is made:

Order
1. The application to condone the late filing of the review application is
granted.
2. The revival and reinstatement application is granted.
3. The review is granted and t he award issued by the third respondent
under case GPBC436/2021 is set aside and substituted with the following
order:
‘1. The employee, Muzwethu Delihlazo’s dismissal was substantively and
procedurally fair.’
4. There is no order as to costs.

S. Swartz
Acting Judge of the Labour Court of South Africa

Appearances
For the Applicant: Adv M Mhambi
Instructed by: The State Attorney
For the First Respondent: M Maraka
Instructed by: NEHAWU