THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
Case No: JR1764/2023
In the matter between:
GAUTENG GAMBLING BOARD Applicant
and
LUCKY LUKHWARENI First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
JULIUS WEHNCKE NO Third Respondent
Heard: 30 April 2025
Delivered: 18 August 2025
Summary: Application to review and set aside the arbitration award of the CCMA.
Application dismissed, with costs.
JUDGMENT
2
DANIELS J
Introduction
[1] This is an application brought to review and set aside the arbitration award
issued by the third respondent ( hereafter the “commissioner”) . The commissioner
found that applicant had committed an unfair labour practice, in relation to benefits,
by failing to pay the first respondent the acting allowance while he was on
suspension.
Material facts
[2] The facts of the matter are common cause:
2.1 The applicant is the Gauteng Gambling Board (“the Gambling Board”
or “the GGB”) a statutory body established in terms of section 3 of the
Gauteng Gambling Act No. 4 of 1995 as amended.
1
2.2 The first respondent is, or was, employed by the Gambling Board as a
senior legal manager.
2.3 On or about 31 March 2021, the Gambling Board was placed under
administration by Mr Parks Tau, at which time he was the Member of the
Executive Council (the “MEC ”) for Gauteng Department for Economic
Development, Agriculture, Environment and Rural Development.
2.4 On 3 June 2021, the first respondent was appointed to act as the
Acting Chief Operations Officer (“ACOO”) by the administrator. His letter of
appointment states: “ This letter serves to confirm your appointment as the
1 Gambling in the Province of Gauteng is regulated under both the National Gambling Act and the
Gauteng Gambling Act No. 4 of 1995. This is because gambling is a functional area referred to in Part
A of Schedule 4 of the Constitution, which is titled ‘Functional Areas of Concurrent National and
Provincial Legislative Competence’.
3
Acting Chief Operations Officer at the Gauteng Gambling Board, effective
from today 03 June 2021 until terminated by yourself or the GGB”.
2.5 At the time of the first respondent’ s appointment as the ACOO, the
Gambling Board had no Chief Executive Officer.
2.6 The Gambling Board has an Acting Allowance Policy, which provides
as follows:
2.6.1 Clause 7.1.11: “Once an acting employee has rendered services in the
Acting Position for a period in excess of 1 (one month, he/she will be notified
in writing of his / her entitlement to an Acting Allowance on the terms and
conditions set out in this policy”.
2.6.2 Clause 7.1.14: “All acting appointments requests / recommendations,
appointments, acceptance and termination of acting appointments shall be
made in writing”.
2.6.3 Clause 7.3.4: “An employee will be appointed in writing to act in a
position by the CEO and the employee must indicate their acceptance / non-
acceptance of this appointment in writing.”
2.6.4 Clause 7.4.6: “Should the operational requirements of the organisation
require that the acting appointment be extended beyond 6 (six) months, a
special motivation must be drafted by the Line Manager and supported by HR
for the extension of the acting period and submitted to the CEO for approval.”
2.6.5 Clause 7.6.1: “Where the operational requirements of the GGB no
longer necessitate the appointment of an acting employee in an Acting
Position, the appointing Senior Manager shall inform HR to effect the
termination of acting and the acting employee shall be notified thereof in
writing and his / her appointment shall be terminated”.
4
2.6.6 Clause 7.6.2: “In cases of absence from duty by the acting employee,
the payment of an acting allowance must be terminated with immediate effect
from the date of commencement of the absence, provided that the period of
absence is going to be longer than one calendar month.”
2.6.7 Clause 7.6.3 “The Acting Allowance shall terminate with effect from the
date on which the acting employee no longer occupies the Acting Position”.
2.7 On 22 January 2022, a new b oard was appointed to the GGB. The first
respondent’s appointment as the ACOO was not terminated.
2.8 More than a year later, on 30 January 2023, the first respondent was
placed on precautionary suspension with full pay and without loss of benefits.
2.9 On 25 February 2023, the b oard failed to pay the first respondent his
monthly acting allowance, in the amount of R25 000, 00.
2.10 The first respondent referred a dispute to the CCMA, which resulted in
the arbitration award directing the GGB to pay his acting allowance between
25 February and 25 July 2023.
2.11 The first respondent received a notice from the GGB informing him of
the termination of his acting appointment on 16 August 2023.
Arbitration proceedings
[3] On review, the court was provided only with extracts of the transcribed
proceedings, marked “relevant portions of the transcribed record”. The transcript
does not contain the arguments of the applicant and the first respondent. It is unclear
whether the parties filed written submissions. If so, these have not been provided to
the court. The parties did not conclude a pre- arbitration minute, at least none which
appears from the record. Accordingly, the arguments made by the parties are drawn
from the propositions put by the parties during evidence as indicated in the
5
transcript, and the pleadings in this matter . The arbitration featured only two
witnesses, the first respondent, followed by Mr Thapelo Bodila (“ Mr Bodila”), the
company secretary, for the applicant.
[4] Mr Bodila testified as follows:
4.1 The MEC appoints the CEO, who then appoints all the other staff.
2
These powers cannot be delegated. The appointment of the first respondent
was unlawful because he was not appointed by the CEO. Furthermore, the
appointment irregularly sought to appoint the first respondent in perpetuity.
4.2 When the first respondent was suspended, he was no longer an
employee in a junior position to the acting position.
3 Accordingly, so the
submission went, the first respondent was no longer qualified to be appointed
as ACOO because he was not an existing employee.
4.3 The first respondent was not permitted to act for longer than six
months, without a proper process being followed, in accordance with clause
7.4.6 of the Acting Policy, and that process was not followed.
4.4 The first respondent was absent from duty during his suspension, and
he was therefore not entitled to the allowance, in accordance with clause 7.6.2
of the Acting Policy.
4.5 The letter of suspension should be understood as also terminating the
acting appointment.
4
[5] It appears from the transcript that , during the arbitration, the applicant argued
that:
2 This was not borne out by my interpretation of the applicable legislation.
3 This argument is, with respect, non sensical. It is trite that an employee, while on suspension,
remains an employee.
4 No basis was laid for this argument. The letter of suspension does not make any reference to the
acting appointment.
6
5.1 The appointment of the first respondent was unlawful because only the
CEO was entitled to appoint him, to the exclusion of the Board of the GGB,5
5.2 The board of the GGB has no powers to appoint any employees,6
5.3 No consequences flow from the unlawful appointment of the first
respondent. This contention is dealt with in para 11 below.
5.4 The first respondent was not entitled to notice of the termination of his
acting position because he was unlawfully appointed. This too is dealt with in
para 11 below.
Legal principles and analysis
[6] The test applicable to awards of the CCMA is captured by the following
question: is the arbitration award one which no reasonable commissioner could
reach on the material before him or her ?
7 The test has come to be known as the
“reasonableness test.” As to what is reasonable, this must be determined by the
circumstances of each case. In Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and others
8 the Constitutional Court held:
“[45] What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair procedure will
depend on the circumstances of each case. Factors relevant to determining
whether a decision is reasonable or not will include the nature of the decision,
the identity and expertise of the decision- maker, the range of factors relevant
to the decision, the reasons given for the decision, the nature of the
competing interests involved and the impact of the decision on the lives and
well-being of those affected. Although the review functions of the Court now
5 The applicant relies on the Acting Policy, but ignores the applicable legislation.
6 This submission ignores section 12(1)(b), 12(1)(c) and 12(3) of the Gauteng Gambling Act.
7 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
8 2004 (4) SA 490 (CC) at para [45]
7
have a substantive as well as a procedural ingredient , the distinction between
appeals and reviews continues to be significant . The Court should take care
not to usurp the functions of administrative agencies. Its task is to ensure that
the decisions taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.” (own emphasis)
[7] The court on review need not consider every issue raised at arbitration.
Instead, the court must decide whether the commissioner considered the principal
issue before him/her ; evaluated the evidence presented and concluded that the
outcome is reasonable.
9
[8] Provided that the commissioner ask s the right question, and applies his mind
to the issues, the award is not reviewable merely because the outcome is incorrect.
The court must guard against using the correctness test in reviews, except where
this is mandated by the nature of the issue, such as in relation to jurisdiction, lest the
distinction between appeals and reviews becomes illusory.
10
[9] When applying the review test, the court follows a logical sequence. First, it
must be determined if there is a failure or error on the part of the commissioner.
Second, where there is such a failure or error, it must be shown that the outcome
arrived at was unreasonable, based on all the evidence before the commissioner,
even if it may be for different reasons to those referred to in the award.
11 It is only
where the outcome cannot be sustained on any of the evidence properly before the
arbitrator that the review will succeed.
12
9 Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation &
Arbitration & others (2014) 35 ILJ 943 (LAC) at paras [15] and [16]
10 Bestel v Astral Operations Ltd & others [2011] 2 BLLR 129 (LAC) at para [18]
11 Fidelity Cash Management Service (2008) 29 ILJ 964 (LAC) at para [96]
12 Campbell Scientific Africa (Pty) Ltd v Simmers and others (2016) 37 ILJ 116 (LAC) at para 32;
Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and others (2015) 36 ILJ 1453 (LAC)
at para 12.
8
[10] With this in mind, the grounds of review, in the applicant’s founding and
supplementary affidavits13 must now be considered.
[11] The applicant’s arguments flow directly from its erroneous belief that an
unlawful appointment cannot have any consequences. This argument is premised on
the principle of legality, captured by Goldstone J (as he then was) when he stated: “It
seems central to the conception of our constitutional order that the Legislature and
Executive in every sphere are constrained by the principle that they may exercise no
power and perform no function beyond that conferred upon them by law.” 14 While
legality is an important principle, it must be viewed in its full and proper context. It is
an established principle of our law that government cannot ignore an apparently
binding ruling or decision on the basis that it is invalid. 15 The validity of the decision
must be tested in appropriate proceedings and the power to pronounce that the
decision is defective, and invalid, lies with the courts. The decision remains
legally effective until properly set aside.
16 Unless set aside, a decision erroneously
taken will continue to have lawful consequences. As explained in Oudekraal17 the
proper functioning of the State will be severely compromised if all administrative acts
could be given effect to, or ignored, depending upon the view take n of the validity of
the act in question. In the circumstances, the applicant’s view that the first
respondent was irregularly appointed, and maintained in, the position of ACOO is of
no moment. His acting appointment was not challenged, and was never declared
unlawful. In any event, on the facts before me, his acting appointment was lawful.
[12] I do not propose to address each and every ground of review raised by the
applicant. The court need only have regard to the mate rial evidence and the material
submissions with bearing on the issues to be decided.
18 The court need not deal with
submissions with bearing on the issues to be decided.
18 The court need not deal with
13 CWU and others v SA Post Office Ltd and others (2013) 34 ILJ 626 at paras [35] and [39]
14 Fedsure Life Assurance Ltd and others v Greater Johannesburg Transitional Metropolitan Council
and others 1999 (1) SA 374 (CC) at para [58]
15Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at paras [26],
[32] and [37]
16 Merafong City v AngloGold Ashanti Ltd 2017 (2) SA 211 (CC) at paras [41] and [42]
17 See fn. 15
18 Vodacom (Pty) Ltd v Makate and Another (CCT 51/24) [2025] ZACC 13 (31 July 2025) at para [45]
9
every argument presented by counsel. 19 I therefore deal only with the principal
challenges to the award. The grounds of review pertinent to the outcome of the
review application are as follows:
12.1 The applicant alleges that the commissioner misapplied or
misinterpreted sections 12(1) (b), 15A and 18C of the Gauteng Gambling Act
No. 4 of 1995 (the “Act”). It is unclear in what manner the commissioner
supposedly misinterpreted the Act. The applicant does not explain this. In any
event, the argument lacks merit. An analysis of the provisions reveals that the
Act empowers the responsible MEC to appoint the board, and section 12(1)(b)
and 12(3) empowers the board to appoint staff members. In addition, s ection
15A permits the delegation of powers in the GGB and section 18C empowers
the responsible MEC to appoint an administrator to perform the functions and
exercise the powers of the board. There is no support in the legislation for the
argument that only the CEO is entitled to appoint an acting Chief Operating
Officer, and only the MEC may appoint the CEO .
20 Neither at the arbitration,
nor in the review, does the applicant set out why the commissioner is incorrect
in his analysis of the legislation. The applicant’s submission, that the
commissioner committed a material error of law in his approach to the
legislation, is flawed. The power of the board is determined by the enabling
legislation, not the Acting Policy.
12.2 The applicant argues that the commissioner ignored the Acting Policy -
which does not permit the first respondent to act beyond six months. This
argument too is without merit. Clause 7.4.6 of the Acting Policy required the
GGB to terminate his acting appointment in these circumstances. It did not do
so.
19 Id at para [57]
20 Section 12(1)(a) of the Gauteng Gambling Act states: “The Board shall in the performance of its
functions be assisted by:- (a) a chief executive officer appointed by (sic) subject to the approval of his
or her appointment by the responsible Member”. It is apparent that section 12(1)(a) empowers the
Board to appoint the CEO, whose appointment must be confirmed by the MEC. This is consistent with
the purpose of the Act – to make the CEO subject to the control and management of the Board.
10
12.3 The applicant alleges that the commissioner failed to consider that the
first respondent was not acting when he was on suspension. Put another way,
the applicant alleges, the commissioner fail ed to appreciate that the acting
role automatically terminated upon his suspension as senior legal manager.
The Acting Policy does not define the phrase “ absence from duty” in terms of
clause 7.6.2. The applicant does not explain why the commissioner’s
interpretation is incorrect, or unreasonable. It appears to me that the
commissioner adopted an interpretation that is consistent with the
interpretative triad of language, context, and purpose as mandated by our
courts.
21 The context and purpose of the clause suggest that its purpose was
to deal with voluntary absences from duty.
12.4 The applicant contends the commissioner erroneously considered that
the first respondent was entitled to a separate letter of suspension in respect
of the acting position. I do not understand why this was erroneous . The Acting
Policy expressly states, on a number of occasions, that the acting position
must be confirmed in writing and terminated in writing. The purpose is to
ensure certainty as to the rights of the employer and the employee. The
applicant was fully aware of the terms of its Acting Policy , and fairness
required that it abide by its own policies. In any event, the MEC appointed the
first respondent to act until his appointment was terminated, whether by
himself or the GGB. Clearly it was unfair for the applicant to breach its own
policies - in the absence of any bona fide and reasonable excuse.
12.5 The commissioner failed to appreciate that the effect of the arbitration
award is that the applicant will be forced to pay two individuals for the same
position, which constitutes wasteful expenditure. While the commissioner did
not address this issue, I do not understand how this could affect the outcome.
The wasteful expenditure is the unfortunate result of the applicant failing to
The wasteful expenditure is the unfortunate result of the applicant failing to
follow its own policies.
21 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) par [18]
11
Costs
[13] I am acutely aware of the principle that costs do not follow the result in this
court.22 However, the application is so lacking in merit that it deserves some
sanction. This court is not averse to making costs awards where it is apparent that
the parties have not invested adequate time and energy into considering whether to
institute or defend a matter.
23 This court’s precious time and resources cannot be
whittled away on frivolous matters. In addition, the first respondent has been forced
to defend the arbitration award through unnecessary and costly litigation. In my view,
law and fairness requires the applicant to bear the costs.
Conclusion
[14] The arbitration award falls within the bounds of reasonableness, and is not
susceptible to review on the grounds advanced in the review application.
[15] In the circumstances, for the reasons set out above, I make the following
order:
15.1 The application is dismissed,
15.2 The applicant is ordered to pay the first respondent’s costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Adv Ralikhuvhana
Prince Mudau and Associates
For the First Respondent:
22 Zungu v Premier of Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC) at para 24
23 NUMSA v Tshwane University of Technology (2020) 41 ILJ 2686 (LC)
12
Adv Ramabulana – Mathiba
SM Mfingwana Attorneys