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IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C518/22
In the matter between:
NATIONAL UNION OF MINEWORKERS obo B LEKWA Plaintiff
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER BEESNAAR N.O. Second Respondent
ASSMANG (PROPRIETARY) LIMITED
(BLACK ROCK MINING OPERATIONS) Third Respondent
Date of Hearing: 26 June 2025
Date of Judgment: 3 July 2025
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Summary: Review of decisions by CCMA Commissioner — Commissioner’s
evaluation of the evidence not unreasonable, and the Award accordingly not
reviewable — application dismissed.
JUDGMENT
A OOSTHUIZEN AJ
Introduction
1. This is a review of a CCMA arbitration award (“the Award”) handed down
by the Second Respondent, a CCMA Commissioner (“the Commissioner’).
The Commissioner found that the dismissal of Mr Lekwa, on whose behalf
the Applicant brings the review, was substantively and procedurally fair.
2. Mr Lekwa was employed by Assmang (Pty) Ltd (“Assmang”), a mining
operation. At the time of his dismissal, Mr Lekwa held the position of
Manager: Safety and Risk. He was dismissed for gross negligence and
failure to secure a safe workplace.
3. The Employer's case is that, following an accident at one of the mines, a
meeting was called on 24 November 2021 at which Mr Lekwa was
instructed to perform a safety audit on all contractors who were working at
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heights on Assmang’s Nchwaning Mine. It is alleged that Mr Lekwa failed
to comply with this instruction.
4. The Court may only review and set aside an award by a CCMA
Commissioner if the Court is satisfied that the decision reached is not one
that a reasonable decisionmaker could have made, on the available
material. In Fidelity Cash Management Service v CCMA & Others (2008)
29 ILJ 964 (LAC) the Labour Appeal Court, at para 100, elaborated on this
test and said the following:
“The test enunciated by the Constitutional Court in Sidumo for
determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent test that will ensure that
such awards are not lightly interfered with. It will ensure that, more
than before, and in line with the objectives of the Act and particularly
the primary objective of the effective resolution of disputes, awards
of the CCMA will be final and binding as long as it cannot be said
that such a decision or award is one that a reasonable decision
maker could not have made in the circumstances of the case.”
5. The test formulated above accords with later pronouncements of the LAC
and SCA (see, for example, Herholdt v Nedbank Ltd & Another 2013 (6)
SA 224 (SCA) at para 25; Goldfields Mining SA (Pty) Ltd v CCMA &
Others [2014] 1 BLLR 20 (LAC) at paras 14 — 15).