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[2025] ZALCPE 10
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Inxuba Yethemba Municipality v Msweli Others (Application for Leave to Appeal) (PR198/21) [2025] ZALCPE 10 (30 May 2025)
IN THE LABOUR COURT OF
SOUTH AFRICA, GQEBERHA
Not Reportable
Case No:
PR198/21
In the matter between:
INXUBA
YETHEMBA MUNICIPALITY
Applicant
and
XOLELA
MSWELI
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
Second Respondent
BARGAINING COUNCIL
COMMISSIONER
KELVIN KAYSTER N.O.
Third Respondent
Heard:
In Chambers
Delivered:
This judgment was handed down electronically by circulation to the
Legal Representatives of the Applicant
and the First Respondent by
email, and release to SAFLII. The date and time for handing down is
deemed to be 14h00 on 30 May 2025.
JUDGMENT:
APPLICATION FOR LEAVE
TO APPEAL
KROON,
AJ
[1]
This is an application for leave to appeal, brought by the First
Respondent, against a judgment handed down on 7 April
2025.
Submissions were received on behalf of the First Respondent on 16 May
2025 and the Applicant on 27 May 2025. The submissions
of the
Applicant were out of time but nothing turns on this as, in my view,
on the First Respondent’s own version, a case
has not been made
out for the granting of leave to appeal.
[2]
The main ground relied on in support of the application for leave to
appeal is sourced in the contention that the Court
considered the
matter through the lens of an appellate court and not a review court.
Expressed differently, the assertion is that,
whilst the decision of
the Arbitrator may have been wrong, it was not a decision to which no
reasonable arbitrator could have come.
[3]
There is no merit in this contention for all the reasons contained in
the judgment which demonstrate that, given the material
errors of law
and fact committed by the Arbitrator as well as his failure to apply
his mind properly to the dispute before him,
and, in particular, to
the gravity of the misconduct committed by the First Respondent, he
came to a decision to which no reasonable
arbitrator could have come.
[4]
As mentioned in the judgment, the award issued was the type of award
that was arguably reviewable on its face, the Arbitrator,
having
found that the First Respondent was guilty of serious financial
misconduct, proceeding, without foundation, to determine
that the
sanction of dismissal was unfair. An evaluation of the record
revealed that the ultimate conclusion of the Arbitrator
was
unsustainable, both on the facts and on the law, and that, as a
result of the various gross irregularities committed by him,
the
Arbitrator adopted an approach to sanction which was
disproportionately, if not shockingly, lenient. To borrow from the
parlance
of earlier jurisprudence, the determination by the
Arbitrator that the First Respondent should be reinstated was one
that makes
you whistle.
[5]
What stands out in the submissions is a contention that the Applicant
was made aware by the First Respondent of the irregular
so-called
“
risk appointment
”. This is not accurate. I was at
pains to set out in the judgment that when the Applicant presented
its case, there was no
contention that the Applicant was aware of the
contentious appointment. Even in his evidence in chief, the First
Respondent conceded
that, in violation of his obligation as the
accounting officer, he had not reported the irregular appointment to
the Municipal
Council. The failure by the First Respondent to
disclose his conduct meant,
inter alia,
that he could be held
to account for the unlawful appointment which was worth millions of
Rands. To put it colloquially, the facts
demonstrated that the First
Respondent took a deliberate decision not to account for what he had
done. Contrary to what is submitted
in support of the application for
leave to appeal and contrary to what was found by the Arbitrator,
such conduct does contain an
element of dishonesty (albeit in the
form of an omission). This is aside from the circumstance that,
irrespective of whether there
was dishonesty present, the misconduct
committed by the First Respondent was destructive of the employment
relationship on its
own terms, something which the Arbitrator would
have appreciated, had he properly applied his mind.
[6]
The First Respondent also complains that the judgment has resulted in
bad publicity. It was contended in the submissions
that the First
Respondent had, in the media, been referred to as a “
crook
”.
To be clear, I did not find that the Arbitrator should have found
that the First Respondent guilty of corruption or theft.
I also did
not find that the Arbitrator should have found him guilty of having
personally benefited from his misconduct. That being
said, negative
or unfair publicity does not, in and of itself, constitute a
self-standing ground justifying an appeal where otherwise
none would
lie, particularly so where, as in this case, the matter concerns the
narrow interests of an individual employee. If
anything, if a media
outlet has not acted lawfully when it comes to a publication about a
judgment, then the remedy of the First
Respondent lies against that
media house.
[7]
A further point was raised that this was a case where the dispute
should have been remitted “…
back to the functionary
for re-consideration
”. I find this submission unpersuasive.
Leaving aside that this was not a submission made by the First
Respondent when the
matter was argued (it was raised for the first
time in the submissions), this was not a case where the issues were
not properly
ventilated. In the result, the Court was in as good a
position as any arbitrator would have been to determine the matter on
the
merits, all the more so when the gravamen of the misconduct was
not seriously in dispute. When it comes to labour disputes and the
ethos of the Labour Relations Act, the watchwords are economy,
expedition and finality. Where no purpose will be served in further
delaying the finalisation of a matter, it has become part and parcel
of our jurisprudence that the Labour Court will step in to
resolve
it. I would add that I also have reservations as to whether it might
not offend one’s sense of justice to remit the
issue of
sanction to an arbitrator who has already made up his mind on that
question.
[8]
Lastly, a
point was raised that the record was incomplete and that the review
application should have been dismissed on this basis.
No factual
basis was laid as to why it was contended that the record was
incomplete. No allegation was made as to which parts of
the record
were missing. When the matter was argued, no party contended that the
record was incomplete and the Court was not in
a position to
adjudicate the review application. On the contrary, both counsel
contended that, on the strength of the record, their
respective
clients should succeed. If a party is unhappy with the content of the
record then ordinarily what should occur is that
an objection should
be noted in the answering affidavit.
[1]
This did not occur and, as mentioned, there was no suggestion during
argument that the record was defective or that the Court was
not in a
position to adjudicate on the merits of the matter.
[2]
For these reasons, in my view, this last point borders on the
disingenuous.
Order:
1. The application
for leave to be appeal is dismissed.
2. There is no
order as to costs.
P. N. Kroon
Acting Judge of the
Labour Court of South Africa
Written
submissions
:
For
the Applicant:
Adv
S Nzuzo
Instructed
by:
NE Mbewana Incorporated Attorneys
For the First
Respondent: Mr Voyi of Voyi
Incorporated Attorneys
[1]
Lubbe v
Roop NO & Others
(2012) 33 ILJ 1695 (LC) at para [7];
SACCAWU
& Others v President, Industrial Tribunal & Another
[2000] ZASCA 163
;
2001
(2) SA 277
(SCA) at para
[7]
.
[2]
What did happen was that the Court,
mero
motu
,
initially
drew the attention to the representatives that the record was
incomplete in the sense that not all the hard copies of
the
transcript had been placed in the Court file. By way of
amplification, although the full transcribed record was transmitted
electronically to the Court, for reasons which were not explained
the Applicant had not furnished a hard copy of the last portion.
As
appears from the judgment, it was the First Respondent’s
attorney himself (who is now responsible for the application
for
leave to appeal) who stepped into the breach and sorted out the
record
so
that the Court was in a position to adjudicate the merits of the
review application
.