THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable
Case No: JR 22/23

In the matter between:

PASCHAL OBINNA ANYADIEGWU Applicant

and

THE COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION First Respondent

COMMISSIONER SHUMANI SYDNEY TSHAKAFA Second Respondent

NEDBANK GROUP LIMITED Third Respondent

Heard: 27 May 2025
Delivered: 18 August 2025
Summary: CCMA arbitration proceedings – review of proceedings – review test
considered – The Applicant’s case falls short of the stringent threshold
required for this Court to interfere with the Award. Review application
dismissed.


JUDGMENT

2



CITHI, AJ

Introduction

[1] This is an application, in terms of section 145 of the Labour Relations Act 1
(LRA), brought by Paschal Obinna Anyadiegwu (“Applicant”) to review and set aside
an arbitration award issued by the Second Respondent (“Commissioner”) dated 23
November 2022 under case number GAJB7208- 22 (“Award”), acting under the
auspices of the First Respondent (“CCMA”). The Third Respondent (“ the Bank ”)
opposes the application. In terms of the Award, the Commissioner found that the
Applicant’s dismissal was procedurally and substantively fair.

[2] Prior to setting out the factual background concerning the Applicant’s
dismissal, it is necessary to first deal with a preliminary point raised by the Bank that
the review application is deemed to have been withdrawn in terms of clause 11.2.3 of
the now-repealed Practice Manual of the Labour Court of South Africa 2 (“Practice
Manual”).

Point in Limine

[3] The relevant chronology to the Bank’s jurisdictional point is briefly as follows:
the Applicant served and filed his review application on 9 January 2023. On 31
January 2023, the Registrar delivered the first notice in terms of Rule 7A ( 5) of the
then Labour Court Rules
3 notifying the parties that the Record of the arbitration
proceedings was ready for collection. On 7 February 2023, the Registrar delivered a
second notice in terms of Rule 7A ( 5) of the Labour Court Rules notifying the parties
that the Record of the arbitration proceedings was ready for collection.

1 Act 66 of 1995, as amended.
2 Practice Manual of the Labour Court has been repealed by GN 4775 of 2024: Rules Regulating the
Conduct of the Proceedings of the Labour Court (“new Rules”) promulgated on 17 July 2024.
3 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024). In terms of the new Rules, Rule 7A(5) is now Rule 37(9); Rule 7A(6) is now Rule 37(13)

and 14 and Rule 7A(8) is now Rule 37(20) (a) or (b), effective from 17 July 2024.

3


[4] Clause 11.2.2 of the repealed Practice Manual required the Applicant to
deliver the Record of the arbitration proceedings in terms of Rule 7A ( 6) of the
previous Labour Court Rules within 60 days of the date on which the Applicant is
notified by the Registrar that the Record has been received. Accordingly, the Record
in this matter was due on or before 10 May 2023. The Applicant delivered the Record
on 10 May 2023. The Record delivered excluded the Bank’s bundle of documents
used during the arbitration proceedings. On 22 May 2023, a day before the Bank’s
answering affidavit was due in terms of Rule 7A (8) of the Labour Court Rules , the
Bank’s attorneys directed correspondence to the Applicant’s attorney , bringing to
their attention that the Record filed wa s missing the Bank’s bundle of documents.
The Applicant’s attorneys were requested to file the Bank’s bundle of documents
used during the arbitration proceedings. In that letter, the Bank’s attorneys further
contend that their client’s affidavit will only be due once the full Record is delivered.

[5] On 23 May 2023, the Applicant’s attorneys delivered the bundle of documents
as requested by the Bank’s attorneys. On 13 June 2023, the Bank’s attorneys served
and filed the Bank’s answering affidavit. In the answering affidavit, the Bank
contends that the complete Record was filed outside the 60 -day time period
stipulated in the Practice Manual and, therefore, the review application is deemed to
have been withdrawn in terms of clause 11.2.3 of the Practice Manual.

[6] The Bank’s point in limine is, in my view, devoid of merit. In terms of the
provisions of clause 11.2.6 of the Practice Manual , read in conjunction with Rule 7A
(6) of the Labour Court Rules, an Applicant is required to deliver portions of the
Record necessary for the adjudication of the review application. On 10 May 2023,
the Applicant delivered a Record that he asserts is relevant to the adjudication of the

the Applicant delivered a Record that he asserts is relevant to the adjudication of the
review application. Having perused the Record, I am satisfied that the review
application is capable of adjudication on the Record delivered by the Applicant on 10
May 2023. Further in this regard, most of the documentation requested was
extensively led into evidence during the arbitration proceedings.

[7] In my view, the contention advanced by the Bank – that the filing of the
requested documentation outside of the 60- day period bears the consequence that

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the review application is deemed to be withdrawn in terms of clause 11.2.3 of the
Practice Manual, notwithstanding the fact that the Applicant deliver ed portions of the
Record relevant for the adjudication of the review application within the stipulated
timeframe – is legally unsound. Indeed, no authority was advanced for this
extraordinary proposition. Dr JJ van der Walt, who appeared on behalf of the Bank ,
to his credit, left that question in the hands of the Court. Nonetheless, I am of the
view that the Record delivered on 10 May 2023 complied with the provisions of
clause 11.2.2 of the Practice Manual read together with Rule 7A ( 6) of the Labour
Court Rules. Accordingly, I am satisfied that the review application is capable of
being adjudicated on the Record filed by the Applicant on 10 May 2023. I now
proceed to deal with the merits of the review application.

Relevant chronology that led to the Applicant’s dismissal

[8] The Applicant was employed by the Bank as a Financial Planner effective
from 1 July 2007. The Applicant was a representative of an authorised Financial
Services Provider (Bank) in terms of section 13 of the Financial Advisory and
Intermediary Services Act
4 (FAIS Act) and was responsible for giving financial advice
on behalf of the Bank. The fees generated from rendering financial advice are split
between the Financial Planner and the Bank in accordance with an agreed fee
structure. Section 3 of the General Code of Conduct for authorised Financial Service
Providers and Representatives 5 (“Code”) states that the Financial Service Provider
and/or representatives must at all times render financial services honestly, fairly, with
due skill, care, and diligence, and in the interests of clients and the integrity of the
financial services industry.

[9] Section 9 of the Code required the Financial Service Provider to, inter alia ,
maintain a record of the advice (ROA) furnished to a client which must reflect the

maintain a record of the advice (ROA) furnished to a client which must reflect the
basis on which the advice was given, and in particular, a brief summary of the
information and material on which the advice was based; the financial product s
which were considered; the financial product /s recommended with an explanation of

4 Act 37 of 2002.
5 BN 80 of 8 August 2003: General Code of Conduct for Authorised Financial Services Providers and
Representatives as amended.

5

why it was selected; whether the product/s is or are likely to satisfy the client’s
identified need and objectives; and, where the financial product/s recommended is a
replacement product, the comparison of, inter alia, fees must be stated and the
reasons why the replacement product was considered more suitable for the client’s
needs than retaining or modifying the terminated contract, must be provided.

[10] Section 8 of the Determination of Fit and Proper Requirements 6 states that a
representative of the Financial Services Provider must be a person who is honest
and has integrity and is of good character 7. Section 14 of the FAIS Act provides that
an authorised FSB (the Bank) must debar an FSP (Financial Planner) from rendering
financial services if the jurisdictional facts for debarment have been established.

[11] In July 2022, the Bank received a complaint from Ms Thelma Padiri (Padiri), a
client within its wealth department. Padiri was a client in the Applicant’s portfolio. This
complaint detailed two primary concerns: an allegation of the Applicant ’s
unprofessional and discourteous conduct, and a claim of withdrawals that were
made on her investments at the instance and/or advi ce of the Applicant and
reinvestment as ‘ new funds’ in another fund. The Bank appointed Mr Ernest Herbst
(Herbst) from the Group Financial Crime, Forensic and Security Division to
investigate the complaint.

[12] The investigation conducted revealed that on 20 November 2017, Padiri made
an initial investment of R936, 000.00 into the Nedgroup Investments Opportunity
Fund B2. The Applicant, having acted as the responsible financial planner
concerning this investment, levied an upfront commission fee of 3.42 % which was
the applicable rate at the time in terms of the Bank’s Financial Planning Business
Handbook ( “NFP Business Handbook ”). A formal ROA detailing the basis of the
advice, the upfront fee rate applicable and the specific investment choice was duly

advice, the upfront fee rate applicable and the specific investment choice was duly
signed by the Applicant and Padiri on 20 November 2017. The payment of
R936,000.00 was processed on 23 November 2017.


6 BN 194 of 15 December 2017: Determination of Fit and Proper Requirements (Government Gazette
No: 41321) as amended.
7 Section 14 of the FAIS Act set out the procedure that the Financial Service Provider must follow to
debar a representative that has ceased to possess the character and honesty and integrity.

6

[13] On 4 December 2017, Padiri invested another amount of R520,000. 00 in the
Nedgroup Investments Opportunity Fund B2. A ROA relating to this investment was
not part of the bundle of document s used during the arbitration proceedings .
However, in my view, nothing turns on this having regard to the gravamen of the
complaint against the Applicant. On 6 September 2018, Padiri invested an amount of
R700,000.00 into the Nedbank Investments XS Select Guarded FOF. A formal RO A
was signed on 6 September, setting out the details as envisaged in terms of Section
9 of the Code. The Applicant levied the commission upfront fee of 3.45% for this
investment.

[14] Padiri opened another investment on 16 March 2020, wherein an amount of
R946,000.00 was invested into the Nedgroup Investments Stable Fund. The
Applicant levied the commission upfront fee payment of 3. 45% in respect of that
investment as well.

[15] The NFP Business Handbook states that no more than a 3.45% upfront fee
may be charged on the same funds within a 5- year period. Accordingly, the Applicant
was not permitted to charge another upfront fee on the above investments within 5
years, as doing so would contravene the NFP Business Handbook.

[16] On 7 September 201 8, an amount of R720, 000.00 was withdrawn from
Padiri’s Opportunity Fund B2, which was the initial investment dated 20 November
2017. On 11 September 2018, Padiri opened a Nedgroup Investment XS Selected
Guarded Fund C for an amount of R700, 000.00. The payment was processed on 19
September 2018. The Applicant levied an upfront commission fee of 3.45% for this
investment.

[17] The amount invested in the Nedgroup Investment XS Selected Guarded Fund
C was withdrawn from the Opportunity Fund B2 investment opened on 20 November
2017. The Bank’s contention is that the R700, 000.00 amount was not ‘ new money’
but rather funds that were withdrawn from the Opportunity Fund B2 investment

but rather funds that were withdrawn from the Opportunity Fund B2 investment
activated on 20 November 201 7. That being the case, the Applicant ought not to
have charged the upfront fee commission of R3.45%. The Bank further contends that
the Applicant ought to have advi sed Padiri to do a switch rather than opening the

7

Nedgroup Investment XS Guarded Fund C investment account. A switch in the
circumstances would not have resulted in Padiri being levied with the upfront
commission of 3.45% , as her investment ( invested on 20 November 2017) was
within the 5-year period.

[18] On 16 March 2018, two withdrawals were executed from the investment
accounts held by Padiri. A withdrawal of R510, 000.00 was made from the
Opportunity fund B2, and a separate withdrawal of R520, 000.00 was made from the
Nedgroup Investment XS Selected Guarded Fund of Funds C . The total amount
withdrawn from the two account s was R1 030 000.00. On the same day, an ROA for
this investment was signed, which reflects tha t Padiri invest ed an amount of
R946,000.00 into the Nedgroup Investment Stable Fund A2. The invested amount
was deposited into the Nedgroup Investments Stable Fund A2 on 19 March 2018.
Again, the Applicant levied an upfront commission fee of 3.45% for this investment.

[19] On 23 March 201 8, Padiri signed up for another Nedbank Investment Stable
Fund 2 for an amount of R622, 000.00. In the ROA, it is stated that Padiri was called
for a review – she then expressed an interest in opening a new investment portfolio
alongside the previous portfolios reviewed and would invest an additional lump sum
that she had. It is common cause that this investment never materialised for reasons
that will be discussed below. It is noteworthy that on the same day, an amount of
R622,000.00 was withdrawn from the Nedbank Investment Stable Fund A2, which
was opened on 16 March, transferred to Padiri’s transactional account , and later
transferred back to the Nedbank Investment Stable Fund A2.

[20] Between September 2018 and March 2020, Padiri was charged an additional
amount of R56,797.00 in upfront fees/commission as a result of the withdrawals and
reinvestments before the 5 -year period as detailed above. The Bank had to
reimburse Padiri this amount. In general, the Applicant’s explanation is that he was

reimburse Padiri this amount. In general, the Applicant’s explanation is that he was
not aware that the funds used emanated from the withdrawals as detailed above. It is
common cause that on the days the withdrawals were made, the Applicant was
conspicuously either on leave or not available. In explaining the two withdrawals of
16 March, the Applicant stated that Padiri requested the funds for her son -in-law,

8

who was involved in the import and export business. Padiri denied the Applicant’s
version during the investigation.

[21] Arising out of the above, the Applicant was issued with a notice of suspension
with full pay on 14 January 2022 , pending the finalisation of an internal investigation
that had ensued. On 14 March 2022, the Applicant was issued with a notification to
attend a disciplinary hearing scheduled for 31 March 2022. In terms of that
notification, the Applicant was required to answer to the following allegations:
‘Misconduct in that:
1. Dishonesty, in that, during the period 7 September 2018 and 19 March
2019,
• You charged the full upfront commission (3.45% incl VAT) for re-
investing funds of client Ms Thelma, which you reasonably ought to have
known was not new funds, but disinvestments from other funds you yourself
assisted with.
• Records of Advice dated 6 September 2018 and 16 March 2020 on
page 5 refer to “you will invest additional lump sum you have in your savings
account”. This statement is false as the client did not have any additional
funds for investment except for the funds which were withdrawn from her NGI
account on 07 September 2021 and 19 March 2020 and thereafter reinvested
into different funds.
• You attributed the withdrawals to the client having requested the money
to fund her son in- law’s import business, however, this is false as Ms Padiri
does not have a son in-law.
• You did this knowing and understanding the contents of the Nedbank
Financial Planning Business Handbook, which states that “No more than
3.45% upfront advice fee may be charged on the same funds within a 5 – year
period”.
By your actions you did not act in the best interests of the client by charging
her an additional amount of R56 787.00 (in total) in upfront fees/commission
you were not entitled to.
Charge 2 – Breach of the NFP Business Handbook,

9

In that paragraph ‘3.5 Other Limits’ prohibits that “No more than 3.45% upfront
advice fee may be charged on the same funds within a 5 – year period”. You
breached this rule when charging Ms Padiri a maximum upfront advice fee on
two further occasions:
• On 11 September 2018 you invested R700 000 of Ms Padiri’s funds
into the Nedgroup Investments XS Select Guarded Fund of Funds C
(8591990) and charged 3.45% upfront advice fee which funds had already
been charged the maximum upfront advice fee on 23 November 2017 when
these were initially invested in the Nedgroup Investments Opportunity Fund
(8570707).
• On 19 March 2020 you invested R946 000 into the Nedgroup
Investments Stable Fund A2 (8635171) and charged 3.45% upfront advice fee
which funds had already been charged the maximum upfront advice fee
previously on 23 November 2017 and 04 December 2017 when these were
initially invested in the Nedgroup Investments Opportunity Fund (8570707),
You were not permitted to charge any upfront advice fee on these further
occasions as you had already charged the client this maximum amount on the
same funds previously.’

[22] At the conclusion of a disciplinary hearing that then ensued on 31 March
2022, the Applicant was found guilty of the above charges and dismissed. The
Applicant’s dismissal was effective from 14 April 2022. The letter of dismissal notified
the Applicant that his name would be listed on the Register of Employee Dishonesty
System (“REDS”). Aggrieved by the decision to dismiss him, the Applicant referred
an alleged unfair dismissal dispute to the CCMA for conciliation in terms of section
191 of the LRA, failing that, arbitration. After conciliation attempts were unsuccessful,
the matter was set down for arbitration bef ore the Commissioner on 12 October
2022. On or about 23 November 2022, the Commissioner delivered the arbitration
award, which is the subject of these review proceedings.

Arbitration Award

10

[23] During the arbitration proceedings, the Applicant was represented by Ms
Michell Lage, an attorney from CGG Inc. The Bank was represented by Mr Ntebo
Letshela, who is employed by the Bank in a position of Industrial Relations. The
Bank called Herbs t and Zanele Jafta (‘Jafta’) , who worked at the Digit Advice Desk.
The Applicant testified on his behalf and did not call any witness es in support of his
case. The relevant Bank statements, withdrawal forms, the NFB Handbook and
ROAs relating to the investments were adduced into evidence.

[24] The Applicant assailed both the procedur al and substantive fairness of his
dismissal. In respect of the procedural fairness challenge, the Applicant contends
that his dismissal was pre- emptive. The basis of this contention was that he was
removed from the payroll before his disciplinary hearing was finalised, which resulted
in him not receiving his remuneration. On substantive fairness, the Applicant avers
that he was not aware that the funds used for the investments were from the
withdrawals made from Ms P adiri’s existing investments. The Applicant confirmed
that he reviewe d Padiri’s investment accounts. The Applicant further stated that he
thought the funds were from the client’s current account, which he had no access to.

[25] Had he known that the funds were from the existing investments, he would
have advised the client to do a switch rather than opening a new investment. In a
nutshell, the Applicant’s explanation ranged from not being aware that the funds
were from the disinvestments to the Bank, having had no NFP Business Handbook
prior to September 2020, and the ROAs were approved by his Line Manager.

[26] The main thrust of the Commissioner’s reasoning in finding that the
Applicant’s dismissal was procedurally and substantively fair is contained at
paragraphs 62, 68 and 69 of the Award. At paragraph 62, the Commissioner
addressed the Applicant’s procedural challenge:

addressed the Applicant’s procedural challenge:
‘62 The applicant further submitted that his dismissal was pre- empted. He
challenged the fairness of the procedure in that it was a formality because he
was already removed from the payroll. He did not receive his salary in March
while he was still going to attend a disciplinary hearing. He was not given a
reason as to why he was not paid. Only after he complained he was told that
there was an error, and the Finance Department made a mistake with a

11

formula for calculating the salary. I there find that the dismissal was
procedurally fair. There is no evidence that his dismissal was procedurally
unfair. The applicant’s claim that his dismissal was pre- empted is without
merit.’

[27] In respect of the Applicant’s substantive fairness challenge, the Commissioner
opined:
‘68 It was not disputed that a 5 – year rule does exist. The financial planner
may not use an old investment to open a new investment account, unless 5
years have elapsed as per Nedbank Financial Planning Business Handbook
rules.
69 The applicant confirms that he did review the client’s portfolio but
denies that there are withdrawals. The withdrawals were shown to be
reflecting on the same document the applicant relies on. It is a common cause
that the applicant is aware of the withdrawals. It signifies that there is a
fiduciary duty on the financial planner to identify the source of the funds to be
invested. The applicant failed his fiduciary duty to do so. The statements the
applicant made copies of clearly show that the client withdrew funds from the
existing investment to open a new investment. It is probable that the applicant
was aware of the investments and the source of the funds to be invested, but
failed to advise the client to switch than withdraw and reinvest because he
wanted to get a commission. This practice is detrimental and costly to the
clients. The applicant failed to act with honesty and integrity. Furthermore, the
applicant failed to adhere to a 5 – year rule, he should have considered an
investment from November 2017 and September 2018 to be new
investments.’

[28] Ultimately, the Commissioner concluded that the Applicant’s dismissal was
substantively and procedurally fair. It is this conclusion that is the subject of these
review proceedings.

Grounds of review

12

[29] The Applicant submits that the Award is reviewable for a variety of reasons ,
which include, inter alia, that:
29.1 the Commissioner failed to attach necessary weight to the fact that the
Financial Planners relied on information provided by the client during the
meeting. The Applicant contends that he was not informed that Padiri had
made the withdrawals from her investment accounts;
29.2 the Commissioner failed to draw a reasonable inference from the fact
that the client was not called to testify to dispute the contents of the signed
ROAs. Accordingly, so argued the Applicant, the ROAs should have been
accepted as valid and binding;
29.3 the Commissioner failed to attach due weight to the fact that the ROAs
were approved by the Line Manager and the approval thereof, according to
the Applicant, confirms the contents therein and that the Applicant’s advice
was in line with the Bank’s policies;
29.4 the Commissioner concluded, without evidence, that it would have
been impossible for the Bank to operate without the NFP Business Handbook
prior to September 2020; and
29.5 In respect of the C ommissioner’s findings on procedure, the Applicant
contends that the A ward does not address his procedural challenge, despite
raising the issue at the onset of the arbitration proceedings. Further in this
regard, the Applicant takes issue with the Commissioner’s mischaracterisation
of the relief he sought during the arbitration proceedings. In the A ward, the
Commissioner recorded that the Applicant sought reinstatement , while during
the arbitration proceedings , it was indicated that the Applicant sought
compensation and removal of his name from REDS.

The review test

[30] The applicable test on review in applications such as this one is now trite. In
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
8, the
Constitutional Court held that ‘ the reasonableness standard should now suffuse s

8, the
Constitutional Court held that ‘ the reasonableness standard should now suffuse s
145 of the LRA’, and that the threshold test for the reasonableness of an award was:

8 (2007) 28 ILJ 2405 (CC).

13

‘… Is the decision reached by the commissioner one that a reasonable decision
maker could not reach? …”9

[31] In Glencore Operations South Africa (Pty) Ltd v Taala and Others 10, the
Labour Appeal Court (LAC) per Van Niekerk JA restated the threshold for
interference with a commissioner’s arbitration award:
‘The hurdles that the appellant was required to overcome on review were to
establish some misdirection on the part of the arbitrator in his assessment of
the evidence and, secondly, that the factual conclusions that he drew were
untenable, rendering the award one to which no reasonable decision- maker
could come. Implied in the Labour Court’s finding is that the arbitrator had
regard to relevant evidence, did not take irrelevant evidence into account, and
arrived at a conclusion that fell within the bounds of reasonableness.’
11

[32] In Makuleni v Standard Bank of SA (Pty) Ltd & others
12, the LAC per
Sunderland JA indeed reminded this Court of the crucial distinction between a review
and an appeal. The case highlighted instances where the Labour Court was ‘ misled
into treating the case for a review as if it were an appeal ’. The learned Judge
observed:
‘The court asked to review a decision of commissioner must not yield to the
seductive power of a lucid argument that the result could be different. The
luxury of indulging in that temptation is reserved for the court of appeal. At the
heart of the exercise is a fair reading of the award, in the context of the body
of evidence adduced and an even- handed assessment of whether such
conclusions are untenable. Only if the conclusion is untenable is a review and
setting aside warranted.’
13

[33] In sum, this Court’s review powers are limited to scrutinising the rationality
and reasonableness of the decision- making process and outcome. They do not
extend to it re-adjudicating the merits of the case that was before a commissioner as

9 Ibid at paras 106 and 110.
10 [2025] 6 BLLR 559 (LAC).
11 Ibid at para 25.

9 Ibid at paras 106 and 110.
10 [2025] 6 BLLR 559 (LAC).
11 Ibid at para 25.
12 (2023) 44 ILJ 1005 (LAC).
13 Ibid at para 4.

14

if it were an appeal. Lastly, it is unhelpful to enumerate a catalogue of alleged errors
without substantively demonstrating how such errors materially impacted the ultimate
outcome.14

[34] Thus, errors which do not materially impact the substantive rationality of the
outcome are to be regarded as superfluous observations and do not, in themselves,
constitute a basis for judicial intervention. The true inquiry remains whether, despite
any identified errors , the Award falls within the band of decisions that a reasonable
decision-maker could reach.

[35] Below, I proceed to assess the Commissioner’s Award to determine whether it
falls within the band of decisions that a reasonable decision- maker could have
reached, in light of the evidence presented and the review test enunciated above.

Analysis

[36] It is undisputed that a series of withdrawals and re investments were
effectuated in Padiri’s investment accounts during 7 September 2018 and 19 March
2022. The first withdrawal on 7 September 2018 was an amount of R720, 000.00 on
the Opportunity fund B2 opened on 20 November 2017 for the initial investment of
R936,000.00. The withdrawal form, bearing Padiri’s signature dated 7 September
2018, contains handwritten notations stating that ‘Pascal on leave’. On the form, it is
recorded that ‘withdrawals are payable within two business days of processing your
instruction (one business day for Nedgroup Investments Money Market Fund) ’. The
nominated account for payment of this withdrawal is Padiri’s current account. The
withdrawal was executed a day after an amount of R700, 000.00 was invested into
Nedgroup XS Selected Guarded FOF on 6 September 2021.

[37] An amount of R700,000.00 withdrawn from the Opportunity Fund B2 on 7
September 2018 was reinvested into the Nedgroup XS Selected Guarded Fund of
Funds C on 11 September 2018. The RO A for this investment was signed on 6
September 2018. It is recorded in the RO A that Padiri was called for a review of her

September 2018. It is recorded in the RO A that Padiri was called for a review of her

14 See: Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) at paras 30
– 33.

15

investment portfolio, and during the review, Padiri requested a 3- year horizon
wherein she will invest an ‘additional lump sum ’ from her savings account. The
Applicant charged the full upfront commission fee for this investment . Padiri had
already paid the full upfront commission fee a year before, on 20 November 2017,
when she signed for the O pportunity fund B2 investment for an amount of
R936,000.00.

[38] On 16 March 2020, two separate withdrawals were made from the
Opportunity Fund B2 and the Nedgroup XS Guarded Fund C, respectively. In the
Opportunity Fund B2, an amount of R510, 000.00 was withdrawn, whilst an amount
of R52, 000.00 was withdrawn from the Nedgroup XS Guarded Fund C. The total
amount withdrawn from the two investment funds was R1 030 000.00. Again, the
withdrawal form contains handwritten notations stating that ‘ Pascal on leave’. On 19
March 2020, an amount of R946, 000.00 was reinvested into the Nedgroup Stable
Fund 2. Crucially, the ROA for this investment was signed on 16 March , which
coincides with the day the Applicant met Padiri and the withdrawals of R510,000.00
and R520,000.00 from the Opportunity Fund B2 and Nedgroup XS Guarded Fund C.

[39] The ROA signed on 16 March is almost a cut -and-paste of the RO A dated 6
September 2018. The ROA states that Padiri was called for a review of her
investment portfolio - she requested a 3- year horizon during the review of her
portfolio, wherein she will invest an ‘additional lump sum ’. The Applicant charged a
full upfront commission fee for this investment despite charging the full upfront
commission fee on 20 November 2017 (Opportunity Fund B2) and 11 September
2018 (XS Selected Guarded Fund C).

[40] The Applicant’s main defence was that he was not aware that the reinvest ed
funds ( 11 September 2018 and 19 March 2020) were withdrawals made on 7
September 2018 and 16 March 2020, and therefore not ‘ new funds’ justifying

September 2018 and 16 March 2020, and therefore not ‘ new funds’ justifying
opening new investment accounts. His version, as I understand it, is that if he were
aware that these were not ‘ new funds’, he would have advised Padiri to do a switch
rather than a new investment. It being common cause that a switch would not have
resulted in the Applicant levying an upfront commission fee for the disinvestment

16

funds, as he had already charged upfront commission fees in November 2017 and
September 2018.

[41] In my view, the Applicant’s defence is demonstrably inconsistent with the
objective evidence. In his evidence- in-chief, the Applicant stated that a review of the
investment as recorded in the ROA entails reviewing previous investments, a
balance on the investments and market performance. That being the case, the bank
statements reflecting the withdrawals were part of the documents the Applicant
reviewed on 6 September 2018 and 16 March 2020. The bank statements appearing
on pages 272 – 280 showed all the wi thdrawals in Padiri’s investment accounts .
Thus, the reinvested funds are traceable to the withdrawals made on 7 September
2018 and 16 March 2020. In addition, the Applicant is required to ascertain the
source of the funds before opening a new investment account.

[42] In the ROA, the Applicant recorded that the funds were from Padiri’s
‘additional lump sum’. This, in my view, was a clear prevarication. The Applicant had
known Padiri for more than 6 years and had been her Financial Planner since 2017.
The Applicant was aware that Padiri was a 66- year-old pensioner in 2018, and her
only source of income was the monthly income from her pension. Accordingly, the
Applicant knew that Padiri would not receive any ‘additional lump sum ’. However,
even if she did, the Applicant was still obliged to investigate the source of the
‘additional lump sum ’. This investigation, if undertaken, would have reveal ed
information that is already known to the Applicant.

[43] The inference is inescapable that the Applicant ’s conduct was premedi tated.
The Applicant called Padiri for a ‘review’ of her investments. Objectively, this ‘review’
was a sham. In this ‘review’ meeting, Padiri was made to sign documents that she
did not properly understand. Padiri’s reliance on the Applicant’s expertise and
integrity was justifiable. The signed documents meant that Padiri withdrew funds

integrity was justifiable. The signed documents meant that Padiri withdrew funds
from her existing investments and reinvest ed the same funds in newly opened
investment funds either on the same day ( 16 March 2020) or within a few days (11
September 2018) of the withdrawals. This enabled the Applicant to charge an
additional upfront commission fee because the source of the funds was recorded as

17

‘additional lump sum ’ from a savings account and therefore constitutes ‘new funds’,
which entitled the Applicant to charge the upfront commission fee.

[44] The Applicant devised this grand plan to circumvent the provisions of the
Bank’s NFP Business H andbook, which states that ‘no more than 3.45% upfront
advice fee may be charged on the same funds within a 5- year period’. The Applicant
benefited from the plan to the detriment of Padiri, the Bank and integrity of the
financial services industry . The Bank had to reimburse Padiri for the additional
upfront commission fee charged.

[45] The evidence demonstrates that the Applicant put in place a stratagem to
bypass the provisions of the Bank’s NFP Business Handbook for personal
enrichment. It is trite that Financial Planners are expected to render financial
services with honesty and integrity. The Bank’s expectation that Financial Planners
should not act dishonest ly by breaching rules put in place to safeguard the interests
of its clients is undoubtedly reasonable and consist ent with its obligation to only
retain representatives that are honest and have integrity. The Rule , which prohibits
charging a client more than 3.45% within 5 years of the investment , was
implemented to prevent the very misconduct the Applicant committed. In my view,
the withdrawal made on 23 March 2020, which is not covered by the charge sheet,
lays bare the Applicant’s strategy and completely undermines his version that he did
not know that the funds were disinvestments.

[46] On 23 March 2020, an amount of R622, 000.00 was withdrawn from Padiri’s
Stable Fund A2 account, paid into her current account, but later transferred back into
her Nedgroup investment Stable Fund A2 investment account on the same day. The
Applicant’s explanation for this is not entirely convincing. In an email dated 9
December 2021, sent to Herbst , the Applicant alleges that this investment failed

December 2021, sent to Herbst , the Applicant alleges that this investment failed
because there were no funds in Padiri’s account. This is factually incorrect as self-
evident from what I stated above.

[47] In the ROA for this investment, signed on 23 March 2020, the Applicant states
that Padiri was called for a ‘review’ and she requested a 3-year investment horizon to
invest an ‘additional lump sum’ she had. The purported review meeting on 23 March

18

2020 took place a few days after the withdrawals and reinvestment , on 16 March
2020. Accordingly, the financial statements the Applicant ‘reviewed’ on 23 March
2020 reflect withdrawals of 11 September 2018 and 16 March 2020, respectively.

[48] In my view, the Applicant’s purported leave of absence on the days of the
withdrawals was a calculated subterfuge, intended to obscure his involvement and
prevent the tracing of the aforementioned withdrawals and subsequent reinvestment
transactions back to him. The Applicant’s explanation that Padiri withdrew the funds
on 16 March 2020 to lend it to her son- in-law, who was in the import and export
business, was correctly rejected by the Commissioner. On the objective facts, the
withdrawn funds are traceable to the reinvestment of R946, 000.00 to the Stable
Fund 2 on 16 March 2020.

[49] The Applicant contends that the Commissioner failed to appreciate that the
Bank had no NFP Business Handbook prior to September 2020. The suggestion is
that the incident happened prior to the implementation of the current version of the
NFP Business Handbook, which prohibits Financial Planners from charging more
than 3.45% additional upfront commission fees within 5 years of the investment. In
my view, the Applicant’s argument cannot be reconciled with his version that he
would have advised Padiri to do a switch rather than opening a new investment if he
knew that the funds were disinvestments from existi ng investments. In any event,
Jafta gave evidence showing that the rule prohibiting the Financial Planners from
charging clients more than 3.45% within 5 years of the investment had been part of
the different versions of the NFP Business Handbook.

[50] The Applicant further contends that the Commissioner failed to appreciate that
Padiri was not called to dispute the contents of the ROAs that were signed. This
argument, in my view, completely misses the point. The validity of the ROAs was

argument, in my view, completely misses the point. The validity of the ROAs was
never placed in dispute. During the investigation, Padiri readily accepted that she
was aware of the withdrawals and reinvestments. Padiri stated that the withdrawals
and reinvestments were on the advice given by the Applicant. It was the frequency of
the withdrawals and the numerous documentation that she had to sign within a short
period of time, which raised concerns and culminated in the hotline complaint in July
2022.

19


[51] Lastly, the Applicant contends that the Commissioner committed a reviewable
irregularity in failing to attach weight to the fact that his manager approved the
ROAs, which, according to him , indicates that the ROA complied with the Bank’s
policies. This contention is patently without merit. Section 9 of the Code placed an
obligation on the Applicant to render financial services honestly and fairly. On the
objective facts, there was no evidence that the Manager was involved in rendering
financial services to Padiri. Further in this regard, the Applicant’s manager would not
have known that the funds used were disinvestments from the existing investments.
The Applicant was deceitful in his description of the source of funds in the ROAs. In
South African Society of Bank Officials – The Finance Union and Another v Standard
Bank Ltd and Others 15 (SASBO), the LAC described dishonesty in the following
terms:
‘Dishonesty as an aspect of misconduct is a generic term embracing all forms
of conduct involving deception. This Court in Nedcor Bank Ltd v Frank &
Others defined dishonesty as a lack of integrity or straightforwardness and, in
particular, a willingness to steal, cheat, lie or act fraudulent. Deceitfulness can
manifest itself in various forms, which includes providing false information,
non-disclosure of information, pilfering, theft and fraud. The fiduciary duty
owed by an employee to the employer generally renders any dishonest
conduct a material breach of the employment relationship, thereby justifying
summary dismissal…’ (footnote omitted)

[52] I am of the view that the Applicant’s conduct was unethical, deceitful and
constituted a material breach of Section 3 of the Code, which obliged him to render
financial services honestly, fairly, with due skill, care, and diligence, and in the
interests of clients and the integrity of the financial services industry. Self -evidently,
the Applicant elevated his personal interests above the interests of the client and the

the Applicant elevated his personal interests above the interests of the client and the
integrity of the financial services industry. On the objective facts, the Applicant
demonstrated a willingness to use deceptive and unethical methods to bypass the
provisions of the Bank’s NFP Business Handbook designed to protect the public for

15 [2022] 10 BLLR 934 (LAC) at para 17.

20

his personal enrichment . This conduct, in my view, constitutes an egregious form of
dishonesty.

[53] It is my finding that the Commissioner’s conclusion – that the Applicant was
aware that the funds reinvested on 11 September 2018 and 16 March 2020 were
from the withdrawals made on 7 September 2018 and 16 March 2020 from the
disinvestments – is supported by objective evidence and falls within the bands of
reasonable decisions available to a reasonable decision- maker faced with the same
facts. Accordingly, the Commissioner’s conclusion that the Applicant was guilty of
dishonesty cannot be faulted. In SASBO, the LAC stated:
‘…The need for employees to act with honesty and fidelity is so fundamental
in the financial services industry, more so, where the employees deal with
large sums of money. A breach of trust in the form of conduct involving
dishonesty is one that goes to the heart of the relationship and is destructive
of it. It can hardly be argued that the dismissal was not justified.’
16 (footnote
omitted)

[54] It is undisputed that the Applicant held a position of trust which required him to
give financial services honestly, fair ly and in the interests of the client s and the
integrity of the financial services industry. As demonstrated above, the Applicant
engaged in conduct that was dishonest and constitutes a breach of his statutory
obligations to advance his personal interests. I am of the view that w hen a Financial
Planner provides financial services in a dishonest manner – actions calculated for
personal enrichment rather than the best interests of their clients or the industry – it
immediately renders the employment relationship untenable. Such conduct , in my
view, is inherently destructive of the employment relationship, as it fundamentally
shatters the essential trust, integrity, and ethical foundation critical for such a role
within the financial sector.


16 Ibid para 30.

21

[55] In Mlombo v Standard Bank Financial Consultancy and Another 17, the
Financial Service Tribunal , dealing with a debarment of a Representative for
dishonesty-related conduct, made the following observations:
‘Barring is not akin to a sentence. As long ago as 1778, Lord Mansfield stated
in Ex parte Brounsall Cowp 829 that debarment (in that case of a solicitor) is
not a punishment and that the question is rather whether the person
concerned in the light of the conduct would be free from suspicion. In other
words, debarring is for protecting the public and is not punitive.’ (footnote
omitted)

[56] The Bank was, therefore, entitled to fairly terminate the Applicant’s contract of
employment to protect the public. Thus, the Commissioner’s conclusion that a
sanction of dismissal was warranted is a decision that falls within the band of
reasonable decisions.

[57] This brings me to the Applicant’s challenge on the procedural fairness of his
dismissal. In my view, the Applicant’s contention that the Commissioner failed to
address his procedural fairness challenge is patently without merit. At paragraph 62
of the Award, the Commissioner addressed the Applicant’s contention that his
dismissal was pre-empted. The Commissioner accept ed the Bank’s explanation that
an error occurred, which resulted in the Applicant not receiving his salary in March.

[58] This error was, however, rectified . Accordingly, the Commissioner concluded
that the Applicant’s dismissal was procedurally fair. Lastly, the Applicant further
contends that the Commissioner miscategorised the relief he sought. In paragraph 7
of the Award, the Commissioner stated that the Applicant sought reinstatement as a
relief and removal of his name from REDS. During the arbitration proceedings, the
Applicant indicated that he sought compensation and removal from REDS. The
question of relief is, in my view, a moot point. Given the Commissioner’s finding that

question of relief is, in my view, a moot point. Given the Commissioner’s finding that
the dismissal was substantively fair, the Applicant is not entitled to any relief. That
being the case, the question did not arise for determination. The Commissioner’s
miscategorised of the Applicant’s relief is, therefore, inconsequential.

17 (FSP30/2019 [2019] ZAFST 4 (23 December 2019) at para 52.

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Costs

[59] In accordance with the requirements of law and fai rness, as set out in section
162 of the LRA, I am of the view that an order of costs should not be made in this
matter. The requirements of the law and fairness are best served by each party
bearing its own costs.

Conclusion

[60] For all the reasons set out above, I am of the view that the Applicant has
failed to disclose grounds of review to justify this Court’s interference with the
Commissioner’s findings on guilt and procedure. The arguments advanced by the
Applicant in support of this application do not, in my assessment, demonstrate any
irregularity, irrationality, unreasonableness, or fundamental misconception in the
Commissioner’s findings that the Applicant’s dismissal was procedurally and
substantively fair. The Applicant’ s case , thus, falls short of the stringent threshold
required for this Court to interfere with the Award.

[61] Accordingly, I make the following order.

Order

1. The Third Respondent’s point in limine is dismissed.
2. The Applicant’s review application is dismissed.
3. There is no order as to costs.

D Cithi
Acting Judge of the Labour Court of South Africa

Appearances:
For the Applicant: Mr G Grove of CGG Inc Attorneys
For the Third Respondent: Dr JJ van Walt of Cliffe Dekker Hofmeyer Inc