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THE LABOUR COURT OF SOUTH AFRICA
AT JOHANNESBURG
Not Reportable/Of interest to other judges
Case no: JR 589-2021
In the matter between:
BOMBELA OPERATING COMPANY First Applicant
(PTY) LTD
and
THE COMMISSION FOR First Respondent
CONCILIATION, MEDIATION &
ARBITRATION
COMMISSIONER N MLSHUNGU
(N.O.) Second Respondent
ITUMELENG LEHLOKWA Third Respondent
Heard: 24 October 2024
Delivered: 11 July 2025
Summary: (Review — arbitrator finding suspension substantively and
procedurally unfair — disputed right to make representations before a
precautionary suspension not invoked — no basis for finding of procedural
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unfairness — Constitutional Court decision in Allan Long v SAB curtailing scope
for substantive challenge to the reasons for suspension in a precautionary
suspension — award set aside)
JUDGMENT
LAGRANGE, J
[1] This is a twofold application to reinstate a review application which had
lapsed, and if reinstated, to review an award in which an employee, the
third respondent (‘Lehlokwa’) was found tohave unfairly suspended for
about a month and was awarded one month’s salary as compensation.
Application to reinstate the review application
[2] The review application waslaunched on 08 April 2021. On 16 April 2021,
the CCMA lodged the record,with the»Registrar of the Court. By the end of
July 2021, the transcript ofthe arbitration and Bombela’s supplementary
affidavit were filedyand kehlokwa filed his answering affidavit by 11 August
2021 and a replying affidavit was filed on 23 August 2021. was filed. On 5
April 2022, Bombela.applied to have the application enrolled. In May 2023
Lehlokwa filed an application under Rule 11 of the Labour Court rules to
‘strike off. the review application. This application was prompted by
Bombela filing a bond of security in the previous month for the value of the
compensation. Lehlokwa was of the view that Bombela should have
furnished the security immediately the review application was launched
and could not do so nearly two years later. On 28 June 2023 Bombela
filed a further request to have the matter set down.
[3] It came to the attention of Bombela’s attorneys that more than a year had
elapsed between the time that the review application was filed and the first
request to enrol the review application had been made. In terms of clause
11.2.7 of the Labour Court Practice Manual (‘the practice manual’) the
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review application had lapsed as Bombela was about 14 days out of time
in requesting the enrolment of the matter. Detailed reasons were provided
why the attorney’s system for managing review matters failed, owing
mainly to staff changes. Accordingly, Bombela applied to reinstate the
application.
[4] Having considered the matter | am satisfied the delay of 14 days was not
unduly prejudicial to Lehlokwa in terms of prolonging the review
application process, the explanation for the delay appears to be bona fide
and Bombela’s conduct of the review application demonstrates a ongoing
intention to prosecute the review to finality. The reinstatement application
was not formally opposed by Lehlokwa. His rule 11 application was based
on the timing of the issue of the bond of security,which did not trigger any
of the deeming provisions in the practice manual and once the security
bond was filed, he could not enforce the award, until the conclusion of the
review proceedings. In the circumstances, | believe it is an appropriate to
reinstate the application.
Background
[5] Lehlokwa, a train driver and a ‘shop steward of the trade union NUMSA
was suspended™on) 21, September 2020 following his alleged
dissemination of confidential documents. A dispute was referred to the
CCMA.Claiming*that the suspension, which was on pay, constituted an
unfair labour practice.
[6] Lehlokwa_was handed his suspension letter at the end of a shift. The
letter stated that he was suspended immediately pending the outcome of
an investigation “for disseminating company’s confidential documents”
(sic). The letter further advised that he would remain suspended pending
the outcome of the investigation and nature and purpose of the
suspension was precautionary.
[7] It is common cause that Lehlokwa had forwarded Bombela’s operating
contract and financial statements to NUMSA. It also appeared to be
common cause that he was not the only employee who received the