THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
Case No: JR1793/2023
In the matter between:
ALLY MOKOMANE Applicant
and
TSOGO SUN t/a MONTECASINO First Respondent
REFILOE NOINYANE N.O. Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
Heard: 30 April 2025
Delivered: 18 August 2025
Summary: Application to review and set aside an arbitration award of the CCMA.
Outcome reasonable and application accordingly dismissed.
JUDGMENT
2
DANIELS J
Introduction
[1] This is an application brought to review and set aside an arbitration award
issued by the second respondent (hereafter the “commissioner”). The commissioner
found that applicant’s dismissal was substantively fair, procedural fairness not being
in issue.
Material facts
[2] The facts of the matter may be summarized as follows:
2.1 The applicant was employed by the first respondent as a gaming
technician in its casino. He was responsible for ensuring that the slot
machines were functioning or operational when the casino was open for
business. The applicant was one of several gaming technicians engaged by
the first respondent. The technicians were scheduled to work according to a
roster.
2.2 The first respondent issues the roster for the gaming technicians
approximately one month in advance. The first respondent is short staffed in
respect of technicians. The casino is extremely busy during the month of
December, at the peak of the festive season. The applicant had applied for
and was scheduled to take annual leave from 23 December.
2.3 On 21 December, the applicant asked his supervisor for permission to
leave early and was granted permission to do so. Later that same day, he
applied, on SAGE, for a half day’s leave on the next day as well. On that day,
the following occurred:
2.3.1 The applicant spoke to Mr Maduma Kgapane (also known as “Kabelo”),
the gaming technical shift manager, and asked if he could be released early.
3
2.3.2 Kabelo ascertained if the first respondent had sufficient ‘coverage’ and,
when he found that it did, he informed the applicant that he could leave early.
2.3.3 The applicant testified that he needed to leave early because his
mother was sick and he needed to attend to her. He also testified that he
informed Kabelo that he needed to leave early because his mother was ill.
However, under cross examination, Kabelo denied that the applicant informed
him of this.
1
2.3.4 Before leaving, the applicant applied for leave on SAGE for the latter
half of 22 December because he wasn’t sure whether he would be able to
“complete” the emergency on 21 December.
2
2.4 On 22 December, the following occurred:
2.4.1 The senior manager ( referred to as “Kobus”) contacted the two shift
supervisors, Kabelo and Azwindini Tshikhudo (“Azwi”) and enquired whether
they were aware that the applicant had applied for a half day’s leave. Kobus
informed them that the applicant could only do so if the casino had adequate
coverage. They investigated the issue and decided that the casino did not
have adequate coverage.
2.4.2 Azwi called the applicant just before 07h00 and informed him that his
application for leave had been declined. The applicant, according to Azwi, was
unhappy and told Azwi that he would take his leave, he had a personal life,
and the casino could not stop him. Azwi told him that the casino was short
staffed and had insufficient coverage. According to Azwi, the applicant stated
that he did not care. The applicant indicated to his supervisors that he would
be prepared to stay until 12h00 but they were unwilling to negotiate.
1 Transcript Part A, p61 lines 4 – 17
2 Transcript Part A, p66 lines 2 – 8
4
2.4.3 At approximately 08h00, the applicant informed Azwi and Kabelo that
he was not feeling well and needed to leave. They told him that he ought to go
to the inhouse clinic, but he was uninterested.
2.4.4 Azwi
3 and Kabelo4 corroborated each other’s version that the applicant
did not mention that he needed to attend to his sick mother . They also
confirmed that the applicant stated that he was going to leave regardless of
what they said.
2.4.5 The applicant indicated that he would leave with the machine keys if
they (Azwi and Kaeblo) did not collect the keys from him quickly. When Azwi
and Kaeblo failed to do so, the applicant threatened to leave the keys
unattended in the office, which would be a security risk. Azwi and Kabelo were
delayed because they had been attending to a machine, which the applicant
would ordinarily have attended to.
5
2.4.6 The applicant left the workplace early, without permission, and in the
face of the first respondent’s express instructions to the contrary. As a result
of the applicant’s early departure, guests of the casino complained and the
casino was forced to switch off some machines leading to a loss of revenue.
6
Arbitration proceedings
[3] Some of the evidence presented is summarized above, however there are
other observations which must also be made:
3 Transcript Part A, p54 lines 2 – 4
4 See fn. 1
5 The applicant testified that he did not respond to the call to fix the machine because he did not hear
it.
6 Transcript Part A, p41 lines 18 - 21
5
3.1 The first respondent called three witnesses, who corroborated each
other in material respects , particularly with regards to what was said to the
applicant and how he responded.
3.2 The applicant admitted that he was aware of the rule, that he had
broken the rule, and that he did so deliberately. His defence was that he had
no choice because he had to attend to his sick mother.
3.3 It is indeed strange that, at arbitration, the applicant did not identify the
nature of the ailments from which his mother allegedly suffered. Nor did he
mention the nature of the assistance he rendered to his mother on 22
December. He had no response when he was questioned, by the first
respondent, about the absence of documentary proof which indicated that his
mother was ill. Indeed, if the applicant’s mother was seriously ill, one would
have expected him to mention the nature of her illness.
3.4 The applicant’s supervisors disputed that he had informed them, on
either the 21st or 22nd, that the reason he needed to leave early was his
mother’s health. While these witnesses were consistent , the applicant was
not.
3.5 Ultimately, the applicant conceded he did not mention that his mother
was sick, on the 21st.
7 In respect of the 22nd his evidence was unclear .
Sometimes he testified that he informed his supervisors that he had “a
personal issue” to attend to, but on other occasions he says he told them he
had “an emergency”.8
3.6 The applicant testified that he mentioned, at his disciplinary hearing,
that the reason he left work early on the relevant dates was to attend to his
sick mother. While the minutes of the hearing suggest that the issue was
raised, they do not corroborate the applicant’s version at arbitration that he
7 Transcript Part A, p61 lines 11 – 13
8 Transcript Part A, p66 lines 1 – 9
6
informed his supervisors that he needed to leave early because of his
mother’s poor health.
Legal principles and analysis
[4] In relation to arbitration awards issued by the CCMA, the test on review is
settled. The test is captured by asking the following question: is the arbitration award
one which no reasonable commissioner could reach on all the material before him or
her?9 This is known as the “reasonableness test.” As to what is reasonable, or
beyond the bounds of reasonableness, 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
10 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
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)
[5] The court on review need not consider each and every issue raised by the
parties at arbitration. Instead, the court must decide whether the commissioner
9 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
10 2004 (4) SA 490 (CC) at para [45]
7
considered the principal issue before him/her ; evaluated the material evidence and
concluded that the outcome is reasonable.11
[6] Provided that the commissioner ask s the right question, and applies his mind
to the material issues, the award is not reviewable merely because the outcome is
incorrect. The court must guard against whittling away the distinction between
appeals and reviews.12
[7] When applying the review test, the court follows a logical sequence.
7.1 First, it must be determined if there is a failure or error on the part of
the commissioner.
7.2 Second, where there are errors, it must be shown that, but for the
errors, the outcome would have been different .
13 Errors of fact, by
themselves, may not be sufficient to vitiate the award. What matters is the
materiality of such errors.
[8] Importantly, it is only where the award cannot be sustained on any of the
evidence properly before the commissioner that the review should succeed.14
[9] With this in mind, the grounds of review, in the applicant’s founding and
supplementary affidavits
15 must now be considered.
11 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]
12 Bestel v Astral Operations Ltd & others [2011] 2 BLLR 129 (LAC) at para [18]
13 Fidelity Cash Management Service (2008) 29 ILJ 964 (LAC) at para [96]; Head of the Department
of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) at paras [32] and [33]
14 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.
15 CWU and others v SA Post Office Ltd and others (2013) 34 ILJ 626 at paras [35] and [39]
8
9.1 The applicant alleges that the commissioner failed to conduct the
arbitration in an inquisitorial manner and applying the “helping hand”
approach, necessary because the applicant was unrepresented. There is no
merit in this. The record of the arbitration, when read as a whole, reveals that
the commissioner assisted the applicant as much as was reasonably
permissible. The commissioner advised the applicant of the process, and his
rights. There is no indication on the record that the applicant did not
understand the process.
9.2 The applicant alleges that the commissioner committed an error when
she found that the applicant did not mention that his mother was sick at his
disciplinary hearing. This is an incorrect reading of the award. In para 38, the
commissioner summarizes the evidence of the respondent. The analysis of
the evidence occurs from paras 40 to 43 of the award. Nowhere does the
commissioner find that the applicant made no mention of his mother’s illness
at the disciplinary hearing. In any event, the real issue was whether the
applicant made mention of his mother’s illness when he sought leave, and the
first respondent’s witnesses were consistent in their version that he did not.
9.3 The applicant alleges that the commissioner failed to consider whether
the instruction to remain at work was reasonable. This is incorrect. The
commissioner explicitly stated: “The respondent was not unreasonable in
declining his leave request due to operational needs”. In my view, t his finding
is not so unreasonable (that no reasonable decisionmaker could reach it)
given the evidence tendered, which was corroborated, and consistent, from all
three of the first respondent’s witnesses that the applicant made no mention of
his mother’s illness on the relevant dates . In any event, the applicant
presented no evidence about the nature of his mother’s illness at arbitration.
There was no basis for the commissioner to find that the applicant’s mother
There was no basis for the commissioner to find that the applicant’s mother
was seriously ill, or that there was an emergency. If first respondent was
unaware of the applicant’s mother’s medical condition (assuming there was
one) it can hardly be contended that the instruction was unreasonable.
9
9.4 The applicant alleges that the commissioner committed an error by
accepting, in the absence of any evidence, that the applicant had disregarded
the needs of the casino guests and caused financial loss . However, the first
respondent presented evidence to that effect, and such evidence was not
disputed. The evidence was that, on the 22nd, the applicant did not respond
to a call for his assistance. Furthermore, first respondent’s witness16 testified
that financial harm resulted from the applicant’s conduct, which evidence was
also undisputed.
9.5 The applicant contends that the commissioner failed to take his
personal needs into consideration – he had to attend to a medical emergency.
There was no basis for the commissioner to accept that there was a medical
emergency or that the applicant’s mother was sick. The applicant presented
no concrete evidence to that effect , and put no such version to the first
respondent’s witnesses. The applicant made passing references to
‘emergency’ and ‘sickness’ but not once did he identify his mother’s condition,
or why she required his care and attention. It was understandable why the
commissioner did not give the issue serious consideration.
9.6 The applicant conceded that he was instructed on several occasions to
remain at work, but he nevertheless disobeyed the instruction.
17 In the
absence of evidence that the applicant’ s mother was ill, that issue can have
no relevance to whether the instruction was reasonable or mitigati on. The
commissioner’s conclusion that the applicant had defied an instruction,
challenged the authority of the employer, and caused financial harm to the
first respondent, was perfectly reasonable. In the circumstances, the
commissioner’s conclusion that the dismissal was substantively fair falls within
the range of reasonable outcomes. Accordingly, the review falls to be
dismissed.
Costs
16 See fn. 5 above
17 Transcript Part A, p75 lines 1 – 22
10
[10] Although the review was ill advised, I see no reason in law or fairness to mulct
the applicant in costs. In this court costs do not follow the result in this court.18
Conclusion
[11] The arbitration award falls within the bounds of reasonableness, and is not
susceptible to review on the grounds advanced in the review application. In the
circumstances, for the reasons set out above, I make the following order:
11.1 The application is dismissed,
11.2 There is no order as to costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
L Tooka
Bareng Mokoena Inc
For the First Respondent:
Frans Cronje
Cronje Attorneys
18 Zungu v Premier of Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC) at para 24