THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 21/23
In the matter between:
THARISA MINERALS (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER MMELI ANDRE DANISA N.O Second Respondent
NATIONAL UNION OF PUBLIC SERVICE
AND ALLIED WORKERS obo BONGIKOSI
MASEKO Third Respondent
Heard: 24 April 2025
Delivered: 14 August 2025
JUDGMENT
2
DJAJE, AJ
Introduction
[1] The applicant filed this application to review and set aside the a rbitration
award issued by the second respondent, which cleared the third respondent of guilt
and granted reinstatement along with 11 months' backpay amounting to
R264 333.08.
[2] The third respondent commenced his employment with the applicant on 7
January 2019 as a Face Shovel (FS) Operator earning a monthly salary of
R24 030.28. Four charges were preferred against the third respondent:
‘(a) Failure to carry out a lawful instruction by the mine manager issued in a
meeting;
(b) Unauthorised or uncommunicated absence from work during a shift;
(c) Flagrant disregard of the general safety rules of the Respondent, in
that he used the LDV without doing the pre- check list and the safety of the
bakkie therefore unknown [sic]:
(d) Theft and/or unauthorised possession of the Respondent ’s property, in
the he used the LDV.’
[3] On 9 December 2021, he was found guilty and dismissed. He referred the
dismissal for arbitration on 24 January 2022. On 25 November 2022, the
commissioner handed an award in favour of the third respondent as stated above.
[4] The commissioner found that the dismissal was procedurally fair but
substantially unfair. The third respondent was found guilty on charge 2 of
‘Unauthorised or uncommunicated absence from work during a shift ’, and the
commissioner found that dismissal would not be an appropriate sanction. The
sanction imposed was a final written warning. On the other charges , he was found
not guilty, hence the award for reinstatement and payment of backpay.
[5] The applicant conducts a business of Opencast Mining Operations in the
Republic of South Africa, with its mining activities located at Marikana in the North
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West Province. The incident occurred on 11 October 2021, when the third
respondent was directed by the Mine Manager to operate an ‘FS1’ machine. The
applicant alleges that , instead of following these instructions, the third respondent
took the applicant's light delivery vehicle ( LDV) and used it for his own purposes
without completing the required documentation or obtaining the necessary authority.
[6] I turn now to consider the parties’ respective evidence and the
commissioner’s findings in light of the trite test to be applied in review applications
within this Court.
Evaluation
Failure to carry out a lawful instruction
[7] The applicant argued that the third respondent was obliged to carry out a
lawful instruction by the mine manager as it was issued at the meeting of 11 October
2021. The third respondent testified that at the said meeting, he was instructed to
operate the F2 machine on that day to move 10 000 tons of tare. He then responded
that the machine was not working. The machine that was working was the F1, which
was already operated by Mr Mashaba. After the meeting adjourned, the other
machine, the F1, was already taken, and the one he was supposed to operate was
not working. Mr Mashaba testified that he was using the F1 machine for the entire
shift on that day.
[8] It is the applicant’s case that in the meeting, it was agreed that the third
respondent would operate the F1 machine, and as such, the commissioner erred in
finding that the instr uction was unreasonable and unfair. The applicant argued that
the third respondent went missing after the meeting for the entire shift , displaying a
clear intent to defy the instructions by the mine manager. In addition, that the third
respondent failed to inform the supervisor that the F1 machine was operated by Mr
Mashaba, and he could not carry out the instruction.
[9] It was submitted that the commissioner failed to apply his mind to the version
[9] It was submitted that the commissioner failed to apply his mind to the version
of the third respondent that he went to check if the F2 machine was being fixed, but
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failed to inform his immediate supervisor about all that. According to the applicant ,
the commissioner’s finding that the third respondent was guilty of failing to
communicate his whereabouts during the shift and not guilty of failing to carry out an
instruction during the same shift is unreasonable. It was argued that if the
commissioner had considered that the third respondent was given an instruction to
work during that shift, he would have determined that there was defiance of
authority.
[10] In contention, the third respondent argued that after the instruction was given
at the meeting, everyone left, and the third respondent had hope that the machine
that he was supposed to operate would be fixed. He then went to check on it. He
could not operate the other machine as it was already operated by someone else. As
a result, he could not carry out the instruction by the mine manager.
[11] The commissioner in the award made the following findings:
‘The fact that the instruction was given is common cause. The applicant was
able to prove that he did not have the tools, an FS machine to execute the
instruction. He was able to prove this by his own testimony which was
substantiated by the operator of FS 1. The applicant was able to prove that he
was not a standby operator and that he operated FS2 which was broken
down. He was able to prove that he tried to get FS1, but the original driver
had already taken it and the actual driver came and corroborated the
applicant’s version. There was therefore no way in which the applicant could
have executed the instruction for him to take out 10 000 tons without a
machine.’
[12] In Exxaro Coal Mpumalanga Pty Ltd (Matla Coal Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
1, the court held as follows:
‘…Should it be shown that the instruction was unlawful, it would be the end of
the enquiry. If it is found that the instruction was lawful, the expectation is that
the enquiry. If it is found that the instruction was lawful, the expectation is that
the employee to whom such instruction was issued should have complied. It
will have little, if any, to do with whether the instruction related to the
1 Unreported judgment under case no: JR269/11 delivered 2015 at para 15.
5
employee’s job description because it will never be a justification for an
employee to refuse lawful instructions merely because the instructions are not
his or her direct functions.’
[13] The Labour Court in Independent Risk Distributors SA (Pty) Ltd v Commission
for Conciliation, Mediation and Arbitration and Others
2 stated that , in order to be
found guilty of insubordination, an unrepentant intransigence against a good
instruction issued by a superior must be present. Moreover, for such obstinacy to be
dismissible, it must be gross (serious, persistent and deliberate).
[14] In Palluci Home Depot (Pty) Ltd v Herskowitz and Others 3, the Court stated
that insubordination in the workplace involves a wilful and serious refusal by an
employee to obey a lawful and reasonable instruction, or conduct that poses a
deliberate and serious challenge to the employer’s authority. The Court clarified
that while defiance of an instruction may indicate such a challenge, this is not
always the case.
[15] It is common cause in this matter that there was a lawful instruction by the
mine manager to the third respondent. The instruction was reasonable, and there
was no compliance. The reason for non-compliance by the third respondent was that
he had no equipment to carry out the instruction. The supervisor at the hearing
testified that the third respondent did not communicate his inability to carry out the
instruction. The third respondent , on the other hand, insists that it was known that
the F2 machine that he operates was not working as he reported in the meeting.
[16] The evidence of Mr Sethedi, who was the immediate supervisor of the third
respondent, was that the third respondent was missing throughout the entire night
shift. This lends credence to his evidence that the third respondent did not report to
him that someone else was operating the machine the entire night , and he could
therefore not carry out the instruction by the mine manager. The commissioner made
therefore not carry out the instruction by the mine manager. The commissioner made
a finding that the third respondent was guilty of not communicating his absence
during the shift. This finding goes hand in hand with the failure to carry out the
2 (JR 1906/19) [2022] ZALCJHB 282 (11 October 2022) at para 31.
3 (2015) 36 ILJ 1511 (LAC) at para 19.
6
instruction. The absence of the third respondent during his shift meant that he was
not working and consequently not carrying out the instruction by the m ine manager.
If indeed the third respondent could not carry out the instruction since the machine
was being used by someone else, nothing prevented him from reporting to his
immediate supervisor. Instead, he went missing without being given permission.
[17] In its heads of argument, the applicant referred to Sarrahwitz v Motor Industry
Bargaining Council (DRC) and Others 4 where the court held that a refusal to
communicate with an immediate supervisor , coupled with a failure to respond
positively to persistent requests in total disregard of the employer’s business,
constitutes insubordination. This is quite apposite in this matter as the third
respondent failed to communicate with his immediate supervisor , which resulted in
him not carrying out an instruction to perform his duties , which impacted the
applicant’s business.
Flagrant disregard of the general safety rules of the mine
[18] The third respondent did not deny that he drove the LDV without the Artisan
signs on the pre- check list. The respondent's version was that he did conduct a
checklist and that he had tested the brakes before using the LDV. The only issue
was that he did not obtain the artisan's signature. The evidence led during the
arbitration was to the effect that the policy clearly states that ‘ All LDVs must have a
pre-use checklist and it must be completed before using the vehicle. The LDV
checklist will be signed off by the Driver and the Artisan’. This was not denied by the
respondent. However, there was evidence that a common practice within the
company was for drivers to conduct a checklist in the absence of an artisan and use
the LDV without obtaining his signature.
[19] The commissioner in the award concluded that the respondent successfully
proved that he had carried out a checklist, which included brake checks. Additionally,
proved that he had carried out a checklist, which included brake checks. Additionally,
the respondent demonstrated that it was standard practice for drivers to perform their
own checklists without the assistance of an artisan. The commissioner also found
4 (PR152/2021) [2023] ZALCPE 22 (13 October 2023).
7
that there is no procedure in place to guide workers when the artisan is unavailable ;
therefore, the respondent could not have been wrong or guilty of flagrant disregard of
the safety rules.
[20] During the cross -examination of the respondent’s supervisor, Mr. Sethedi, it
was put to him that he had previously conducted a pre- checklist on a bakkie without
it being signed by an artisan, which is exactly what the respondent had done. Mr.
Sethedi disputed this and testified that he did not use the bakkie, but it was different
in the respondent's case, as he drove the bakkie out of the mine. This was the only
evidence presented by the respondent to demonstrate the common practice of
conducting a pre-checklist in the absence of an artisan.
[21] The word ‘will’ in the applicant’s policy clearly indicates that the LDV can only
be used after an artisan has signed the pre- checklist. In this case, the third
respondent failed to comply. He also did not demonstrate that it was standard
practice in the company for other drivers to use the LDV without the artisan signing
the pre- checklist. The issue of consistency does not arise herein, and it would be
unreasonable to rely on common practice without any evidence. The commissioner
relied on the evidence that the third respondent presented, which included a
checklist completed by his supervisor, but it did not have an artisan's signature.
However, the record indicates that the supervisor testified that he did not use the
bakkie on that checklist. This finding by the commissioner was not based on any
evidence and is unreasonable.
[22] The commissioner’s finding that there is no policy or procedure detailing what
should be done if an artisan is absent from the test bay is unfounded. The applicant’s
policy exists and is mandatory regarding what must be done before a driver uses an
LDV. A policy addressing scenarios where the artisan is unavailable would be
contradictory and would not serve the purpose of ensuring the safe use of LDVs at
contradictory and would not serve the purpose of ensuring the safe use of LDVs at
the mine.
Theft and/or unauthorised possession of company property
8
[23] On this charge, Mr Sethedi testified that the third respondent was not
authorised to use the LDV on the night in question. The third respondent also
testified as follows concerning authorisation to use the LDV:
‘No. No one authorised me because I believe that if I take any machine, as I
mentioned that on my licence I have I can say 95 per of Tharisa equipment.
So on that licence, the licence authorises me to operate any particular
machine [sic].’
[24] The key controller, who was responsible for issuing the keys to the LDVs ,
testified that she did not issue an LDV key to the third respondent on 11 October
2021. She only realised that the third respondent had signed for the key, and she
mistakenly signed next to the third respondent’s name as if she had issued the key
to him. When she realised that the third respondent had taken the LDV key, she
immediately contacted Sethedi, who was the foreman of the third respondent.
[25] The commissioner found no proof that the third respondent contravened any
rule. The finding was also that there was no evidence of theft, only unauthorised use,
as the third respondent explained that he signed for the key to the LDV and that the
key controller countersigned. The commissioner did not accept the explanation by
the key controller on how she came to co- sign the book after the third respondent
had signed, especially after she told the third respondent that he could not take the
LDV.
[26] The applicant contended that the commissioner overlooked the fact that the
third respondent acquired the keys and operated the LDV without the key controller's
knowledge. This, they argued, made the third respondent guilty of unauthori sed
possession of the applicant’s property, a dismissible offence according to the
applicant’s Disciplinary Code.
[27] The evidence before the commissioner showed that the third respondent was
not authori sed to possess the LDV. This was confirmed by Sethedi, the key
not authori sed to possess the LDV. This was confirmed by Sethedi, the key
controller, and the third respondent himself, that he lacked authori sation. The third
respondent further stated that he believed he could use any machine based on the
license he possessed. In response, the commissioner remarked that holding a
9
license does not automatically grant the authority to use the vehicle. This evidence
was before the commissioner and should have been considered to determine
whether the third respondent had the authority to be in possession of the applicant’s
property.
Dishonesty
[28] The third respondent was found to have been dishonest about the TNA
parade. TNA officer , Hulisani, testified that he received instructions from Sethedi to
parade the third respondent. When the third respondent arrived at the TNA office to
clock off, he informed him about the parade. The third respondent then requested a
speed dial to speak with Sethedi. Hulisani heard the third respondent talking on the
phone and assumed he was speaking with Sethedi. After the call, he allowed the
third respondent to leave, trusting that he was talking to Sethedi and did not verify
with Sethedi whether he could permit the third respondent’s departure.
[29] The third respondent testified that as he was clocking out, he reali sed that he
was being paraded, and couldn't leave. He was told that Sethedi was responsible for
the parade. He attempted to call Sethedi but received no answer. Later, he asked
the TNA officer to lift t he parade so he could go home since Sethedi was not
answering his phone, and he was permitted to leave.
[30] The commissioner found that the TNA officer's reason for allowing the third
respondent to leave after initially being asked to parade was unconvincing.
Additionally, the officer should have verified with the foreman before granting the
third respondent permission to leave. As a result, the third respondent was not
considered guilty of dishonesty.
[31] There are two versions presented in this regard: that of the TNA officer and
that of the third respondent. The bottom line is that the third respondent was allowed
to leave the mine premises despite being paraded. The TNA officer permitted the
third respondent to leave without verifying with the foreman whether he could do so.
third respondent to leave without verifying with the foreman whether he could do so.
He had received an instruction to parade the third respondent, and it was prudent for
him to confirm whether he was authori sed to let him go or not . The explanation
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provided by the TNA officer for permitting the third respondent to leave is
unconvincing, and the commissioner’s finding in this regard cannot be faulted.
[32] The Constitutional Court outlined the test for review in Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
5 as follows:
‘… Is the decision reached by the commissioner one that a reasonable
decision maker could not reach?’
[33] The Labour Appeal Court in Fidelity Cash Management Services v
Commission for Conciliation, Mediation and Arbitration and Others
6 held that:
‘The test enunciated by the Constitutional Court in Sidumo for determining
whether a decision or arbitration award of a CCMA commissioner is
reasonable is a stringent test that will ensure that such awards are not lightly
interfered with. It will ensure that, more than before, and in line with the
objectives of the Act and particularly the primary objective of the effective
resolution of disputes, awards of the CCMA will be final and binding as long
as it cannot be said that such a decision or award is one that a reasonable
decision maker could not have made in the circumstances of the case. It will
not be often that an arbitration award is found to be one which a reasonable
decision maker could not have made but I also do not think that it will be rare
that an arbitration award of the CCMA is found to be one that a reasonable
decision maker could not, in all the circumstances, have reached.’
[34] As noted above, the key question is whether the commissioner’s decision was
reasonable, considering that the third respondent's dismissal was deemed
substantially unfair.
[35] The evidence presented to the commissioner clearly indicated that the third
respondent did not comply with the lawful instructions given by the Mine Manager.
Additionally, he did not inform the foreman of his location. The commissioner
concluded that, although the third respondent did not communicate his whereabouts,
concluded that, although the third respondent did not communicate his whereabouts,
he was not guilty of failing to follow instructions. This conclusion is unreasonable.
5 (2007) 28 ILJ 2405 (CC) at para 110.
6 (2008) 29 ILJ 964 (LAC) at para 100.
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According to the applicant’s schedule of offences and policy guidelines, when an
employee is found guilty of refusing to perform any lawful practice or obey
instructions from a supervisor without reasonable cause, the sanction is a final
warning or dismissal.
[36] Concerning the unauthori sed use of the applicant’s property, evidence
demonstrated that the third respondent had no permission to use the LDV. He
admitted lacking permission and merely assumed that holding a license granted him
the right to use the vehicle. The key controller cannot be held liable for the third
respondent’s failure to secure authori sation. The applicant’s policy specifies that the
appropriate penalty for such an offence is dismissal.
[37] The applicant argued that the third respondent ignored safety standards when
operating the LDV. Specifically, the third respondent failed to follow the policy that
required prior approval from the artisan before using the vehicle. Using the non-
compliance of other employees as a defence is not justified. This offence as well has
a sanction of dismissal.
[38] The Supreme Court of Appeal in Herholdt v Nedbank Ltd (Congress of SA
Trade Unions as Amicus Curiae)
7 held that:
‘….. A result will only be unreasonable if it is one that a reasonable arbitrator
could not reach on all the material that was before the arbitrator. Material
errors of fact, as well as the weight and relevance to be attached to particular
facts, are not in and of themselves sufficient for an award to be set aside, but
are only of any consequence if their effect is to render the outcome
unreasonable.’
[39] In this case, the commissioner's conclusion overlooks the evidence introduced
at the hearing, and another commissioner might have deemed the dismissal of the
third respondent to be substantially fair. The third respondent’s version should have
been rejected as being unsubstantiated. There was overwhelming evidence against
been rejected as being unsubstantiated. There was overwhelming evidence against
the third respondent that he failed to follow instructions, he used the applicant’s
7 (2013) 34 ILJ 2795 (SCA) at para 25.
12
property without author isation and disregarded safety measures when using the
applicant’s property. These are serious charges that warrant dismissal , and the
commissioner’s finding should be set aside in that regard.
[40] In terms of section 162 of the Labour Relations Act 8, there is no reason for
this Court to make any cost order against any of the parties.
[41] Consequently, I make the following order:
Order
1. The commissioner’s award is reviewed and set aside, and substituted
with the following:
“The dismissal of the third respondent was substantially fair”.
2. There is no order as to costs.
J T Djaje
Acting Judge of the Labour Court Of South Africa
Appearances:
For the Applicant: L.P Hutchinson
Instructed by: Soldatos Cooper Inc
Attorneys for the Applicants
1st Floor, Workshop 17
The Bank, 24 Craddock Avenue
Rosebank, Johannesburg
Email: ari.soldatos@sciattorneys.co.za
Shilka.maharaj@sciattorneys.co.za
For the Third Respondents: C Sithole
Instructed by: Sithole Attorneys
8 Act 66 of 1995, as amended.
13
Unit 606 Protea Towers
246 Paul Kruger Street
Pretoria
Email: sitholeclaw@gmail.com
info@sitholecincorporated.co.za