THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1088/20
In the matter between:
NATIONAL UNION OF MINEWORKERS (NUM)
obo HOWARD MATHEBULA Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
SEBOLELO TSHABALALA N.O Second Respondent
KHUTALA COLLIERY-SOUTH 32 Third Respondent
Heard: 2 July 2025
Delivered: 28 August 2025
Summary: The Applicant seeks to review and set aside an arbitration award
dated 29 June 2020.
JUDGMENT
2
PRETORIUS, AJ
Introduction
[1] This is an application to review and set aside an arbitration award dated 29
June 2020, which was received by the Applicant, the National Union of Mineworkers
(“NUM”) acting on behalf of Howard Mathebula (“Mr Mathebula”), under case
number MPEM5908- 19 (“ the Award”). In the Award, the First Respondent
(“Arbitrator”) found that the dismissal of Mr Mathebula was substantively fair.
[2] Dissatisfied with the A ward, the Applicant launched this review application on
7 September 2020. This application has been brought in terms of section 145 of the
Labour Relations Act
1 (“LRA”).
[3] The Third Respondent opposed this application for review.
Evidence adduced at arbitration
[4] The Third Res pondent called one witness during the arbitration, namely Mr
Clement Matshavha (“Mr Matshavha”). The Applicant called Mr Hlabirwa Mashabele
(“Mr Mashabele”) and thereafter testified himself.
[5] Mr Mathebula commenced his employment with the Third Respondent in
October 2003 as an Engineering (Maintenance) Supervisor and held appointments in
terms of Regulation 2.9.2 and Section 7(4) of the Mine Health and Safety Act
2
(“MHSA”). He was dismissed on 22 January 2019 after a disciplinary enquiry where
he was charged with the following transgressions:
‘1. On or about 4 October 201 8, you [Mr Mathebula] worked and / or
allowed subordinates to work under unsafe conditions and disregarded codes
of good practice issued by the company [the Third Respondent].
1 Act 66 of 1995, as amended.
2 Act 29 of 1996.
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2. Violation of the lock -up Procedure in that on or about 4 October 2018,
you [Mr Mathebula] failed to isolate and lock-out.
3. Alleged act of dishonesty in that you [Mr Mathebula] changed the
description of the works order post incident of 4 October 2018.’
[6] Aggrieved by the dismissal, Mr Mathebula, through the assistance of the
NUM, subsequently referred an unfair dismissal dispute to the First Respondent,
where he only challenged the substantive fairness of his dismissal. The A ward was
rendered on 29 June 2020, which award is the subject of this review application.
[7] In order to assess the Arbitrator’s findings and the grounds of review raised by
the Applicant, it is necessary to consider the evidence at the arbitration proceedings
as well as the charges levelled against Mr Mathebula, which dismissal was found to
be substantively fair by the First Respondent.
[8] It is this decision that the Applicant seeks to be reviewed and set aside.
Background
[9] On 4 October 2018, Mr Mathebula was on duty, and on the instructions of his
supervisor, Desire Shikwambane (hereinafter “ Mr Shikwambane”), he attended to
the repair of the damaged nip guard bracket together with Jan Veldsman (hereinafter
“Mr Veldsman”) and Mr Mashabela. Before the repair could commence, the scope of
the work and risk assessment were verified, all controls were effectively applied, the
correct tools and equipment were made available, and the work was deemed safe to
start.
[10] Messrs Veldsman and Mashabela, under Mr Mathebula’s supervision,
electrically isolated the machine, and Clement Matshavha (“ Mr Matshavha”), who is
Mathebula’s immediate supervisor, authorised the work to commence. However,
when the work began, an incident occurred where Mr Veldsman was trapped
between the belt and the machine and sustained serious injuries . As a result of this
incident, Mathebula was charged with the aforesaid transgressions.
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[11] In the Award, the Arbitrator found, inter alia, the following:
11.1 Mr Mathebula uses the allegation of appointments that were backdated
to shy away from his responsibilities and taking accountability for his actions;
11.2 the allegation that Mr Mathebula was not trained on the machine he
worked on as a supervisor is improbable;
11.3 Mr Mathebula was negligent in carrying out his functions, breached the
lifesaving rules when conducting the inspection, and failed to determine
shortcomings he was reasonably expected to have identified as a supervisor ;
and
11.4 Mr Mathebula’s version that he was instructed by Mr Matshavha to
change the work’s order is highly improbable, as he had no recollection of the
instruction.
The Applicant’s case
[12] The Applicant alleges that the Arbitrator’s incorrect finding w as based upon
several grounds.
[13] Firstly, in the Applicant’s founding affidavit, he alleges that the Arbitrator failed
to properly consider and/or ignored crucial evidence placed before him regarding the
incident of 4 October 2018, namely:
13.1 the Applicant alleges that the Arbitrator ignored both Mr Mathebula’s
and Mr Mashabela’s evidence. They both alleged that they were asked by the
senior foreman of the Third Respondent, Mr Shikwambane, to backdate their
appointment letters after the incident in question;
13.2 the Arbitrator ignored both Mr Mathebula’s and Mr Mashabela’s
allegations that they were not trained by the Third Respondent on certain
aspects of their job. The Applicant took particular exception to the Arbitrator’s
finding that Mr Mathebula’s version was highly improbable;
13.3 the Arbitrator’s finding that Mr Mathebula was negligent in carrying out
his functions is unreasonable and not supported by the evidence. The
Applicant contends that the Arbitrator ignored a statement made by Mr
Mathebula wherein he set out the events of the incident, which statement was
not challenged by the Third Respondent in evidence;
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13.4 the Arbitrator ignored the evidence that employees we re allegedly
allowed to make changes to work orders, and that Mr Mathebula w as
instructed by Clement to make such changes.
[14] In its supplementary affidavit, t he Applicant added two additional grounds for
review, namely:
14.1 the Arbitrator’s finding that the evidence of the Applicant’s witness, Mr
Mashabela, was irrelevant is incorrect and inconsistent with the evidence
placed before him. Mr Mathebula alleges that Mr Shikwambane ordered him ,
together with Mr Mashabela, to backdate their job descriptions after the
incident in order to portray compliance with the laws and regulations imposed
by the Department of Mineral Resources. The Applicant emphasi ses the fact
that Mr Shikwambane was not called as a witness to rebut such an allegation.
14.2 The second supplementary ground was that the Arbitrator ignored Mr
Mathebula’s evidence by finding that he did not ensure that proper safety
procedures were followed before embarking on the work done on the belt ,
which led to the injuries of Mr Veldsman.
The Third Respondent’s case
[15] The Third Respondent contends that Mr Mathebula’s appointment described
his area of responsibility as the 4 Seam Underground Inbye.
[16] Mr Mathebula was instructed to repair a broken nip guard bracket , which
required welding and a Permit to Work: Hot Work was required, which required a
permit that was issued by the Applicant.
[17] Whilst performing the work on 4 October 2018, energy was introduced into the
belt, causing serious injury to a fellow worker, Mr Veldsman.
[18] Mr Mathebula was subsequently charged and dismissed for his (i)
transgression of lifesaving rules, and (ii) his act of dishonesty.
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[19] The alleged transgression of lifesaving rules related to the A pplicant allowing
subordinates to work in unsafe conditions and/ or against the standards and rules of
the Third Respondent.
[20] The charge of dishonesty relates to the alteration of the Hot Work permit to
read ‘Hot Work permit section belt drive feed breaker welding’, which alteration was
made after the incident.
[21] In accordance with his appointment, Mr Mathebula was obliged to comply with
all applicable legislation , including but not limited to the MHSA, as well as the T hird
Respondent’s policies and codes of practice (particularly its mandatory code of
practice for lockout of systems, machinery, equipment or apparatus ). He was also
obliged to take all steps to ensure that the persons under his control were fully
conversant with the MHSA and to provide and maintain a working environment that
is safe without risk to health.
[22] A ‘permit to work’ was issued by Mr Mathebula on 4 October 2018. As issuer
of a permit to work, Mr Mathebula was in charge of the particular job and was
obliged to oversee all controls associated with that job, and was responsible for the
subordinates working under him.
[23] The permit to work confirmed that controls were verified in the field, including
isolation and that people have the required skill s and competency, correct tools and
equipment, to perform the work.
[24] The Third Respondent has in place a mandatory code of practice for the
lockout of systems, machinery, equipment, or apparatus. It provides for the minimum
requirements that must be adhered to. Its objective is to meet the relevant
requirements of the MHSA and its regulations, and to ensure no person encounters
any live wiring or components or moving machinery.
[25] The Code of Good Practice defines ‘ lockout’ as the steps taken to physically
render any circuit incapable of being made alive or being set in motion by an
unauthorised person.
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Test on review
[26] I have to deal with the grounds for review within the context of the test that
this Court must apply in deciding whether the Arbitrator’s decision is reviewable. The
test has been set out in Sidumo & another v Rustenbu rg Platinum Mines Ltd &
others
3 (Sidumo). The Constitutional Court held that the Arbitrator’s conclusion must
fall within a range of decisions that a reasonable decision maker could make. The
test is therefore whether the decision reached by the commissioner is one that a
reasonable decision maker could reach, having regard to the evidence before
him/her.
[27] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof
Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others
4 affirmed
the test to be applied to review proceedings and held that:
‘In short: A reviewing court must ascertain whether the a rbitrator considered
the principal issue before him/her; evaluated the facts presented at the
hearing and came to a conclusion that is reasonable.’
[28] The LAC authoritatively considered the Sidumo review test in Fidelity Cash
Management Service v Commission for Conciliation, Mediation & Arbitration &
others
5 (Fidelity Cash), and stated the following –
‘The Constitutional Court has decided in Sidumo that the grounds of review
set out in s 145 of the Act are suffused by reasonableness because a CCMA
arbitration award, as an administrative action, is required by the Constitution
to be lawful, reasonable and procedurally fair. The court further held that such
an award must be reasonable and if it is not reasonable, it can be reviewed
and set aside.’
3 (2007) 28 ILJ 2405 (CC) at para 110.
4 (2014) 35 ILJ 943 (LAC) (Goldfields) at para 16.
5 (2008) 29 ILJ 964 (LAC) at para 96.
8
[29] As to what would be considered to be unreasonable, the LAC in Fidelity Cash
held as follows6:
‘The Constitutional Court further held that to determine whether a CCMA
commissioner's arbitration award is reasonable or unreasonable, the question
that must be asked is whether or not the decision or finding reached by the
commissioner 'is one that a reasonable decision maker could not reach' (para
110 of the Sidumo case). If it is an award or decision that a reasonable
decision maker could not reach, then the decision or award of the CCMA is
unreasonable, and, therefore, reviewable and could be set aside. If it is a
decision that a reasonable decision maker could reach, the decision or award
is reasonable and must stand. It is important to bear in mind that the question
is not whether the arbitration award or decision of the commissioner is one
that a reasonable decision maker would not reach but one that a reasonable
decision maker could not reach…’
[30] The LAC in Fidelity Cash formulated the ‘ outcome-based review test ’ which,
the LAC held, is what the Sidumo review test envisaged. The LAC held
7 -
‘It seems to me that… there can be no doubt now under Sidumo that the
reasonableness or otherwise of a commissioner's decision does not depend -
at least not solely - upon the reasons that the commissioner gives for the
decision. In many cases the reasons which the commissioner gives for his
decision, finding or award will play a role in the subsequent assessment of
whether or not such decision or finding is one that a reasonable decision
maker could or could not reach. However, other reasons upon which the
commissioner did not rely to support his or her decision or finding but which
can render the decision reasonable or unreasonable can be taken into
account. This would clearly be the case where the commissioner gives
reasons A, B and C in his or her award but, when one looks at the evidence
and other material that was legitimately before him or her, one finds that there
and other material that was legitimately before him or her, one finds that there
were reasons D, E and F upon which he did not rely but could have relied
which are enough to sustain the decision.’
6 Ibid at para 97.
7 Ibid at para 102.
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[31] The LAC concluded8:
‘…. Whether or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with due regard
to all the evidence that was before the commissioner and what the issues
were… before him or her. There is no reason why an arbitration award or a
finding or decision that, viewed objectively, is reasonable should be held to be
unreasonable and set aside simply because the commissioner failed to
identify good reasons that existed which could demonstrate the
reasonableness of the decision or finding or arbitration award.’
[32] Our courts have repeatedly stated that , in order to maintain the distinction
between review and appeal, an a rbitrator’s award will only be set aside if both the
reasons and the result are unreasonable. In determining whether the result of an
arbitrator’s award is unreasonable, this Court must broadly evaluate the merits of the
dispute and consider whether, if the a rbitrator’s reason is found to be unreasonable,
the result is, nevertheless, capable of justification for reasons other than those given
by the a rbitrator. The result will, however, be unreasonable if it is entirely
disconnected from the evidence, unsupported by any evidence and involves
speculation by the arbitrator.
[33] Unreasonableness is thus the threshold for interference with an a rbitrator’s
award on the review.
Analysis of the Arbitrator’s findings
[34] The Arbitrator had to determine whether Mr Mathebula’s dismissal was
substantively fair, and she ultimately agreed that the dismissal was substantively fair.
[35] To reach such a conclusion, the Arbitrator found that Mr Mathebula and his
witness, Mr Ma shabela, contradicted each other’s respective versions. It is also
8 Ibid at para 103.
10
apparent that the Arbitrator preferred the evidence presented by the Third
Respondent over that of the Applicant. Such a credibility finding is not easily
overturned on review.9
[36] The Arbitrator also found that on the day of the incident, Mr Mathebula failed
to ensure that the mechanical lockout was done, which ultimately resulted in the
incident in which Mr Veldman was seriously injured.
[37] Mr Mathebula conceded that both he and Mr Veldsman were responsible for
ensuring that adequate health and safety measures were complied with, and that
employees have the right to refuse an unreasonable instruction, when asked about
having signed an appointment letter after the incident.
[38] Despite Mr Mathebula’s contention that he was not trained to operate the
machine, he was nevertheless responsible for the skilled people on his team, and
therefore, the Arbitrator reasonably inferred that he would be equally competent and
capable to perform such tasks.
[39] Mr Mathebula’s version that he was instructed by Mr Shikwambane to change
the work’s order wa s highly improbable, as he gave testimony that he had no
recollection of this instruction, but instead saw it unfolding in a dream. He further
admitted in his evidence to having changed the work’s order an d submitted that it is
allowed in the company.
[40] There was no evidence from the Third Respondent that Mr Shikwambane
issued such an instruction to Mr Mathebula to change the works order , and no
written instruction to this effect was available. The Arbitrator therefore concluded that
Mr Mathebula contravened the Third Respondent’s rule and changed the work order
without proper authorisation.
9 Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others [2012] 1
BLLR 84 (LC) at para 18; See: N ational Union of M ineworkers & another v Commission for
Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 945 (LC) at para 30.
11
[41] Insofar as Mr Mathebula alleged that the Third Respondent inconsistently
disciplined employees involved in similar incidents, he failed to submit any evidence
supporting such alleged inconsistency . The Arbitrator thus found this to be hearsay
evidence and therefore inconclusive.
The grounds for review
[42] The question this Court must ask on review is whether the way the A rbitrator
dealt with the evidence constituted an irregularity or error which was material and
whether it impacted the determination of the question of whether Mr Mathebula’s
dismissal was fair and whether this distorted the A rbitrator’s ultimate decision. The
ultimate question is whether, holistically viewed, the decision taken by the Arbitrator
was reasonable based on the evidence placed before him.
[43] The findings at paragraphs 33 to 41 of the Award do not, in my view, appear
to be open to attack . The evidence before the Arbitrator was that Mr Mathebula was
responsible for performing the mechanical lockout, alternatively ensuring that a
person with competent skills performed the mechanical lockout, in accordance with
workplace rules as well as health and safety standards.
[44] Mr Mathebula’s allegation that he did not receive sufficient training was found
by the Arbitrator to be unlikely due to his having subordinates under him required to
perform such tasks. In any event, should Mr Mathebula have not possessed the
necessary training then as Engineering (Maintenance) Supervisor , it was incumbent
on him to disclose this rather than entering a contract whereby he assumed
responsibility for such functions, particularly in circumstances where such
responsibilities bear significant ri sks and dangers to fellow employees , which , as
Engineering Supervisor, Mr Mathebula was well aware. It is significant that Mr
Mathebula was appointed as Supervisor Maintenance as long ago as 24 June 2011.
This also militates against a contention of a lack of training. Moreover, if he felt he
This also militates against a contention of a lack of training. Moreover, if he felt he
lacked the skills to conduct this task, he could have refused to attend to it. In any
event, there was evidence tendered that Mr Mathebula had attended a Conveyor
System Safety Training Assessment on 1 December 2017. Accordingly, the finding
12
of the Arbitrator that it was unlikely that Mr Mathebula did not receive sufficient
training cannot be criticised.
[45] It was put to the Third Respondent’s witness that he had asked Mr Mathebula
to backdate the appointment letter . He denied this. After the Third Respondent had
closed its case, bot h Mr Mashabela and Mr Mathebula then testified that it was in
fact Mr Shikwambane who asked them to sign their appointment letters . This
inconsistency renders it impossible, on the facts , to conclude whether a backdating
in fact occurred. Moreover , the conclusion of the Second Respondent that it is a red
herring put up to deflect from Mr Mathebula’s obligations to ensure the safety of his
team members, which, on the objective facts he failed to do, cannot be faulted.
[46] The Labour Court has considered a breach of safety rules , and in Sasol
Mining (Pty) Ltd v C ommission for C onciliation, Mediation & A rbitration & Others
10,
the court concluded:
‘Safety of employees at the workplace is paramount, it cannot be
compromised. An employer cannot be expected to wait until an employee has
maimed or has lost his or her life before taking decisive action against an
employee who has exposed fellow employees to danger. Procedures which
are intended to prevent injury and fatality, particularly in the mining industry,
need to be complied with properly because the lapse has disastrous
consequences. In exercising his power to determine the fairness of the
[employees] dismissal, the commissioner had to decide the appropriateness
of the sanction of dismissal. His decision that dismissal was inappropriate
disregards the value of the lives and safety of the employees, the third
respondent had the responsibility of protecting. It is not supported by the
evidence before him. It constitutes a decision a reasonable decision maker
could not reach on the facts before him and stands to be reviewed and set
aside.’
10 (2015) 36 ILJ 2359 (LC) at para 6.
13
[47] In such a case taking place in the mining industry, it is reasonable to highlight
the importance of safety rules, considering the potential life- threatening
consequence/s of a breach of such rules.
[48] Workplace safety must always be given due consideration, and in Samancor
Chrome Limited (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
11, the court concluded:
‘It is evident from the evidence that there are considerable risks associated
with the appellant’s operations at the smeltery. It carries a high risk of
potential danger to the safety of its employees which in turn may hold serious
consequences for the appellant as the employer. The issue of safety and the
rules pertaining thereto are accordingly of considerable importance to both the
appellant and its employees. …’
Conclusion
[49] Having regard to the facts and circumstances of this case, I am not convinced
that the result is one that a reasonable decision maker could not reach in light of the
issues and the evidence placed before her. As such, the review application must fail.
Costs
[50] Even though costs were not argued before me, it was sought in the
Applicant’s notice of motion.
[51] This Court has a discretion in terms of Section 162 of the LRA to order costs
in accordance with the requirements of the law and fairness. Furthermore, in the
Union for Police Security and Corrections Organisation v South African Custodial
Management (Pty) Limited and others
12, the Constitutional Court has made it clear
that costs should only be awarded by this Court in exceptional circumstances. In the
present instance, there are no exceptional circumstances, and I am of the view that
11 (2011) 32 ILJ 1057 (LAC).
12 2021 (11) BCLR 1249 (CC) at para 40.
14
this is a matter that, in the interests of fairness and equity, does not warrant a cost
order being made.
[52] In the premises, I make the following order:
Order
1. The Applicant’s review application is dismissed.
2. There is no order as to costs.
D. O. Pretorius
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant: Mr. S. Makalima of Cheadle Thompson & Haysom Inc.
For the third respondent: Mr. M.G Maeso of Shepstone & Wylie Attorneys