THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable/Of interest to other Judges
Case no: C390/2021
In the matter between:
LETSEMENG LOCAL MUNICIPALITY Applicant
And
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (“SALGBC”) First Respondent
COMMISSIONER BAAS TIMOTHY TUMELO
N.O. Second Respondent
SAMWU obo NONOFO THUPE Third Respondent
Heard: 27 JUNE 2025
Delivered: 21 JULY 2025
Summary: (Review application – applicant alleges arbitrator failed to act
inquisitorially and establish the true facts - commissioner enjoined to lend a helping
hand and may commit a gross irregularity where they fail to fairly try the issues or
fails to lend the hand where the circumstances and procedural fairness so require –
no duty on an arbitrator to infer evidence from the documents contained in a record
2
or to arbitrarily receive or exclude hearsay evidence or any other kind of evidence –
application dismissed)
JUDGMENT
MAY, AJ
Introduction
[1] This is an opposed application to review and set aside an arbitration award in
which the second respondent (“the arbitrator ”) determined that the Third
Respondent’s dismissal was substantively unfair, ordered his reinstatement, on
similar terms and conditions which regulated the employment relationship prior to the
date of dismissal, on 19 March 2021, ordered that he report for duty on 15 June
2021 and ordered the Applicant to pay the Third Respondent back pay amounting to
R 99 916.86 by 15 June 2021
1.
Background
[2] The facts herein were largely common cause. The third respondent was
called to attend a disciplinary hearing on 24 August 2020 in which it was alleged that
he had made himself guilty of:
2.1 Gross insubordination in that he on or around the 22
nd of June 2020
refused to take instructions from his supervisor and or the person with
authority to give such instruction in that he was instructed to make audit (sic)
on bypass meters or faulty meters in contravention of clause 1.2.4 of the
Disciplinary Procedure Collective Agreement;
1 Page 15 of the record, page 8 of the arbitration award, paragraph 9.
3
2.2 Insolence in that he on or around the 23 rd of June 2020 refused to take
instructions from the person duly authorised to give such instruction in that he
did noy do audit (sic) to the other part of Donkerhoek and thus failed to
perform his tasks and responsibilities in a diligent and careful manner in
contravention of clause 1.2.3 of the Disciplinary Procedure Collective
Agreement;
2.3 Gross insubordination in that he on 25
th of June 2020 did not make a
follow-up audit which are executed on a daily basis in contravention of clause
1.2.4 of the Disciplinary Procedure Collective Agreement; and
2.4 Absenteeism in that he on 26 th of June 2020 was absent from work
without authority in contravention of clause 1.2.7 of the Disciplinary Collective
Agreement.2
[3] The Third Respondent was found guilty of the charges and dismissed. 3 He
appealed, and his appeal was also unsuccessful. 4 The matter was referred to the
First Respondent who appointed the Second Respondent to arbitrate the dispute.
The arbitration was held on 3 June 2021. The Third Respondent testified in his own
defence and the Applicant called Mpho Tsoene as its sole witness5.
[4] Mr Tsoene testified that he was the acting technical officer at the Applicant. He
manages the operations side that includes water and sanitation, road and
stormwater as well as the electrical supply.
6 He knew the Third Respondent as an
electrician.7 He testified that a meeting was held with the electrical section the week
before the 22 nd of June 2020, where they were told that they should start with the
meter audit the following week on the Monday, the 22 nd of June 2020. The Third
Respondent was in the meeting.8
2 Pages 17 to 18 of the record.
3 Pages 24 to 27 of the record.
4 Record pages 28 to 30.
5 Paragraph 4.1 of the award, page 9 of the record.
6 Transcript page 92.
7 Transcript page 92.
8 Pages 92 to 93 of the transcript.
4
[5] On the Monday, he was with Sizwe Fikizolo, an electrical engineer seconded
to the Applicant, and they wanted to ascertain i f the audit had commenced. When
they called the senior electrician, Enoch Mdzane, he informed them that the third
respondent did not want to do the auditing.
9 They then went to the site to check if the
audit was taking place and they found no one present. They then called the third
respondent whose response was that they did not know what they were doing
according to the witness.10 He then sent him an SMS the same day instructing him to
commence the audit, but he only started doing the audit the next day on the 23rd.11
[6] Mr Tsoene was then led by the Applicant’s representative on what transpired
on the 26 th of June 2020 relevant in relation to charge 4. 12 Importantly, the second
respondent tells the representative that the witness has not said anything yet about
the 23rd and 25th (relevant to charges 2 and 3) to which the representative replies
that he is aware and he still wants to proceed to lead evidence on the 26 th. The
Commissioner indicates that he assumes that the representative has his reasons for
doing so, that he doesn’t have a problem proceeding and that he was just checking
with him whether that was in fact his intention.
13 At this point an objection is noted by
the third respondent’s representative to the commissioner advising the witness. The
arbitrator indicates that he will refrain from doing that, but he had thought that maybe
the representative had forgotten about the other days and raised it for this reason.
14
[7] Mr. Tsoene then testified that the third respondent was nowhere to be found
on the 25
th of June 2020 . He was the only electrician on duty on that day as the
others had taken leave. They tried to call him on his phone, and he was not
answering.
15 When pressed on this issue by the arbitrator, he indicated that the third
respondent had reported for duty but was not on site during the assessment and
respondent had reported for duty but was not on site during the assessment and
when he was called, he did not answer calls. The same situation was true for the 26
th
9 Pages 94 to 95 of the transcript.
10 Pages 96 to 97 of the transcript.
11 Page 97 of the transcript.
12 Page 102 of the transcript.
13 Page 102 of the transcript.
14 Page 103 of the transcript.
15 Page 103 of the transcript.
5
of June according to the witness. 16 That was the extent of the evidence in chief and
the case for the Applicant.
[8] Under cross- examination, and in relation to charge 1 it was put to him that an
electricity transformer had to be replaced at Donkerhoek on the 22 nd of June 2020 ,
which he conceded. 17 He further conceded that this meant that there would be no
electricity in Donkerhoek as a result. 18 It was further put to him that there was also
scheduled loadshedding in Donkerhoek on 22 June 2020 and that, in fact, because
of the loadshedding, the electricity department took advantage of the loadshedding
to get the transformer and replace it.
19
[9] It was put to him that as a result of the loadshedding, it was impossible to do
meter auditing as this requires a specific code to be punched into the electricity
meter which could not be attended to if there were no electricity. He could not
dispute this.20
[10] Mr Tsoene alleged that he was advised by Mr Enoch Futsane that he, Mr
Futsane, instructed the third respondent to go to the other side of Donkerhoek
seemingly unaffected by the loadshedding and go and do audits there
21. It was put to
him that the third respondent disputes receiving such an instruction 22. This was over
and above the statement that the third respondent would testify that the whole of
Donkerhoek was without electricity. Enoch Futsane was not called to testify.
[11] It was then put to Mr Tsoene that the third respondent had in fact attended to
the audits of various properties on the 23
rd, 25th and 26th of June 2020, relative to
charges 2 to 4 and with references to the audit forms on pages 36 to 74 of the
record. It was also put to him that that these forms were in fact handed to Mr
16 Page 104 of the transcript.
17 Page 109 of the transcript.
18 Page 112 of the transcript.
19 Page 113 of the transcript.
20 Pages 115 to 116 of the transcript.
21 Pages 115 to 116 of the transcript.
22 Page 116 of the transcript.
6
Futsane, who was the third respondent’s senior. 23 Mr Tsoene indicated that he did
not believe that the third respondent had given them to Mr Futsane.
[12] The third respondent testified that he did receive the instruction to attend to
the audits on the 22nd of June 2020.24 He indicated that there was loadshedding and
the transformer was blown so they replaced the transformer whilst the electricity was
off25. He also confirmed that the meter audit cannot be done if there is no electricity
as he needs to punch in the 20- digit code to check whether the meter has been
tampered with. This requires electricity. 26 He testified that all of the electricians were
busy changing the transformer on 22 June 2020. 27 The third respondent then also
confirmed, with reference to the audit forms, that he did conduct the meter audits
over the period 23 to 26 June 2020.28
[13] Under cross – examination, the Applicant’s representative, Mr Phalane, did
not challenge any of the evidence other than whether he submitted the forms to Mr
Enoch Futsane. He maintained that he had.
29 That was the extent of the evidence
led at arbitration.
The award
[14] The arbitrator in analysing the evidence before him concluded that the
Applicant bore the onus to prove that the dismissal was for a fair reason, he correctly
summarised that the Applicant failed to establish that the third respondent had failed
to follow an instruction given and had failed to establish that the third respondent
was absent on the 26
th of June 2020.
[15] The arbitrator, correctly in my view, summarised that a substantial amount of
evidence, uncontested, showed that the third respondent was busy replacing the
23 Pages 123 to 143 of the record.
24 Page 153 of the transcript.
25 Page 155 of the transcript.
26 Pages 155 to 156 of the transcript.
27 Page 156 of the transcript.
28 Pages 159 to 164 of the transcript.
29 Pages 171 to 172 of the transcript.
7
faulty transformer on 22 June 2020 and had conducted meter audits from the 23 rd to
the 26th of June 2020.
Grounds of review and evaluation
[16] Applicant contends that the award is defective in that the arbitrator committed
misconduct in relation to his duties as commissioner and arbitrator, he committed an
irregularity in the conduct of the proceedings, and he exceeded his powers in that:
16.1 he did not consider that the charges against the third respondent also
related to the failure to conduct an audit in other areas of Donkerhoek and to
perform a follow -up audit whilst it was clear from the documents before him
which were not in dispute that the charges were those which was mentioned
and that these were the charges that the third respondent had to answer in
the disciplinary enquiry and the fact that he was unable too answer those
charges satisfactorily;
16.2 the arbitrator failed to act inquisitorially and establish the true facts,
especially when he had before him documentation which indicated that the
third respondent was not only charged for failure to carry out an instruction
given on 22 June 2020 but also for failure to carry out an instruction to do
audits in other areas in Donkerhoek and to do a follow-up audit;
16.3 he failed to consider that the third respondent was on standby duty on
26 June 2020 and absent in his duties in this regard;
16.4 he failed to consider the fact that the undisputed evidence was that the
third respondent had failed to carry out an audit in other areas of Donkerhoek
and a follow-up audit on 25 June 2020;
16.5 these failures means that the arbitrator’s findings were irrational.
30
30 Page 11 to 13 of the pleadings record.
8
[17] They contend that the arbitrator’s outcome therefore is one a reasonable
decision-maker could not reach.
[18] The well-established test for review is whether the decision reached by the
arbitrator is one that a reasonable decision maker could not reach. 31 In assessing
the impugned decision for reasonableness, this court takes into account the totality
of the evidence which was before the arbitrator, and will only set aside an award if
irregularities identified had a material effect on the outcome, in the sense that they
led directly to the unreasonable result.
32
[19] For a review on the grounds of unreasonableness to be determined, the court
has to consider the often- inter-related questions of rationality, lawfulness and
proportionality. 33 The court must also consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result could be reasonably
reached in light of the issues and the evidence before the arbitrator.34 In other words,
whether the arbitrator misconceived the inquiry or undert ook the inquiry in a
misconceived manner and thus whether there was a fair trial of the issues.35
[20] It is by now trite that there is always a duty on the arbitrator to ascertain the real
nature of the issue in dispute.36
31 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at
para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para
134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and
Others (2008) 29 ILJ 964 (LAC) at para 96. Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v
De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12
32 Herholdt v Nedbank Ltd & another (2013) 34 ILJ 2795 (SCA) at para 25; see also Gold Fields
Mining South Africa (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
33 Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) at
paragraph 32.
34 Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA) at paragraph 12.
35 CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 (CC) at paragraph 76.
36 National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2003) 24 ILJ
305 (CC) at para.52.
9
[21] The commissioner is also enjoined to lend a helping hand and may commit a
gross irregularity where they fail to fairly try the issues or fails to lend the hand where
the circumstances and procedural fairness so require. Not doing so could result in an
unreasonable award. A commissioner also commits a reviewable irregularity not only
when the outcome of an award is unreasonable but also where the nature of the
enquiry has been misconceived which may happen when the issues are not
ventilated by proper lines of enquiry.
37
[22] The findings by the arbitrator are not divorced from the material before him in
that no evidence was led to support the contention that an instruction was given to
the third respondent to conduct an audit in other areas of Donkerhoek or to conduct
a follow-up audit. The evidence before the arbitrator, relevant to charge one, shows
that there was loadshedding in Donkerhoek as a result of which the third respondent
and other electricians replaced the transformer. It was common cause that meter
audits could not be performed if there were no electricity. The uncontested evidence
also shows that the third respondent was on duty and had conducted meter audits
on 23 to 26 June 2020. The evidence from the Applicant, relevant to charges 3 and
4, were that the third respondent was on duty but nowhere to be found and not
reachable on his phone. This version was disputed by the third respondent who
contended that he was on duty, was reachable on his phone, had in fact spoken to
the witness on the phone and had submitted the meter audit forms to his superior.
No evidence was led to gainsay this.
[23] There is no duty on an arbitrator to infer evidence from the documents
contained in a record. The provisions of section 138 of the Labour Relations Act,
1995 (LRA) give a Commissioner a discretion to conduct an arbitration in a manner
that he or she considers appropriate to determine a dispute fairly and quickly, and to
that he or she considers appropriate to determine a dispute fairly and quickly, and to
do so with a minimum of legal formalities. However, I am mindful once again of the
dicta in the Exxaro case
38 where the court said that this discretion “does not imply
that the commissioner may arbitrarily receive or exclude hearsay evidence, or for
37 Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration and Others (2019)
40 ILJ 819 (LAC) at paragraph 18.
38 Exxaro Coal (Pty) Ltd & another v Chipana & others (JA161/17) [2019] ZALAC 52; [2019] 10 BLLR
991 (LAC); (2019) 40 ILJ 2485 (LAC)
10
that matter any other kind of evidence. In the case of hearsay evidence, even though
section 3 of the LEAA, by providing a set of rules or principles for the admission or
exclusion of hearsay evidence, assumes some legal formality, it is invaluable. While
a commissioner is notionally not obliged to apply it because of the discretion
bestowed on him or her by section 138 of the LRA, the prudent commissioner does
not err by applying it when dealing with hearsay evidence, rather than conceive of an
alternative norm that will ensure not only fairness in the process, but also in the
outcome of the arbitration. Applying the common law rules for the reception, or
exclusion, of hearsay evidence appears not to be the answer, because those rules
have already rightly been jettisoned for their “rigidity, inflexibility – and occasional
absurdity”.
39 Those “epithets” are not consonant with fairness and reasonableness.40
[24] The Applicant did not introduce any evidence to support its contentions under
review. Despite the wide powers afforded an arbitrator, it is this Court’s view that
those powers do not include making inferences from the record. If the arbitrator had
done so, it would amount to an irregularity. The arbitrator was mindful of his duties to
lend a helping hand and did what he could to remind the Applicant’s witness and
representative of their obligation to lead evidence on the charges.
[25] On the basis of the discussion above, the arbitrator’s conclusion that it was
unfair to dismiss the third respondent was one a reasonable arbitrator could have
arrived at on the evidence before him in the circumstances.
[26] Considering the law and fairness, no costs order will be made herein.
Order
1. The application for review is dismissed.
2. There is no order as to costs.
C May
Acting Judge of the Labour Court of South Africa
39 S v Ndhlovu and others at para 15.
40 Exxaro at para 21.
11
Appearances
For the Applicant L Roux
Instructed by Peyper Attorneys,
Bloemfontein
For the third respondent T Du Preez
Instructed by Kramer Weihmann
Incorporated, Bloemfontein