IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JR 1598/22

In the matter between:

SOUTHERN AFRICAN CLOTHING AND
TEXTILE WORKERS’ UNION Applicant

and

PLUSNET GEOTEX,
A DIVISION OF MASTER PLASTICS LTD First Respondent

COMMISSION FOR CONCILIATION,
MEDIATION, AND ARBITRATION Second Respondent

MARK HAWYES N.O. Third Respondent

Heard: 30 April 2025
Supplementary Heads of Arguments: 07 and 20 May 2025
Delivered: 28 August 2025


JUDGMENT

2

Introduction

[1] After the dismissal of 50 employees ("the Individual Employees"), 1 who are
members of the South African Clothing and Textile Workers Union ("Applicant
Union"), a dispute concerning unfair dismissal was referred to the Commission for
Conciliation, Mediation, and Arbitration ("the CCMA"). The CCMA appointed
Commissioner Hawyes ("the Arbitrator") to resolve this matter following the
unsuccessful conciliation. During the pre- arbitration engagement, both disputants
agreed on, among other things , issues for the Arbitrator to decide: (a) whether 40 of
the Individual Employees (“the 40 Employees”) were guilty of the misconduct that led
to their dismissal, as 10 of the Individual Employees (“the 10 Employees”) were not
disputing the guilty outcome;
2 (b) the inconsistent application of discipline, 3 and
(c) the appropriateness of sanctions imposed.

[2] At the end of the arbitration proceedings, the Arbitrator concluded that all the
Individual Employees were guilty as he inter alia said: " I am not required to
determine the identity of each individual Applicant at each commission of crime or
each act of misconduct or the extent of their involvement in same. By a process of
inferential and probable reasoning, each of [them] committed misconduct by at least
issuing unlawful instructions and/or following unlawful instructions to ignore the
Labour Court Order as to where to picket should take place and/or blocking the
company entrance and/or carrying weapons (even on the very first day) and/or
executing the instruction to beat and hurt non- striking workers ." Consequently, the
dismissal was found to be fair.

[3] The Applicant Union is now pursuing a review of the arbitration award,
requesting that it be set aside and replaced with an order for reinstatement, among
other requests , which will be detailed hereafter . The central issue in these

1 Bundle J: p 211- 2. Within these 50 Employees , there are those who will be referred to as “the 10

Employees” and others as “the 40 Employees”.
2 Transcripts: p 1046, line 9-13
3 Part A: p 138-9. The issue raised was that 15 employees of the Employer “were not dismissed
despite actively participating in the strike and picket”

3
proceedings is whether the Arbitrator committed a gross irregularity, leading to a
conclusion that no reasonable decision- maker could have reached, given the
evidence provided. In addressing this question, this Court must recognise its role as
a reviewing Court , with the grounds for review specified in section 145 of the LRA
still applicable, and that the Sidumo judgment 4said this Court has to decide whether
an arbitrator’s decision is one that a reasonable decision maker could have reached
based on the evidence presented before them.5 In this judgment , th is Court will
cover the following topics hereafter, presented in no specific order: the relevant
evidence; grounds for review; findings derived from the doctrine of common purpose;
the treatment of hearsay evidence; the parity principle; claims of bias; procedural
fairness; a summary of the arbitration award; and the conclusion.

Relevant background and the arbitration

[4] The Individual Employees participated in the protected strike organised by the
Applicant Union. During this period, the Applicant Union arranged picketing, with the
Employer involved in the process. It is undisputed that credible reports were
indicating serious acts of misconduct, including property damage and torching of
residences of some of the non -striking employees. Additionally, incidents of
intimidation occurred, such as obstructing access to the Employer's premises and
violating picketing lines. The Individual Employees do not deny these acts of
violence; however, the pertinent question remains: who were the actual perpetrators ,
as the 40 Employees deny involvement?
6

[5] During the arbitration, there was considerable debate regarding which
Individual Employees were involved in these acts of violence. Representatives for
the Individual E mployees contended that while the 10 E mployees were not
challenging the guilty findings aspect of the dismissal , the remainder , the 40

challenging the guilty findings aspect of the dismissal , the remainder , the 40

4 Sidumo and Another v Rusternburg Platinum Mines Ltd and Others 2008 (2) BCLR 158 (CC)
(“Sidumo”).
5 Id, at par 110, where it was held that “… The better approach is that s 145 is now suffused by the
constitutional standard of reasonableness. That standard is the one explained in Bato Star : Is the
decision reached by the commissioner one that a reasonable decision -maker could not reach?...
Applying it will give effect not only to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful, reasonable and procedurally fair.”
6 Transcripts: p 84-6.

4
Employees, maintained their respective innocence. On the latter group’s behalf, their
legal repres entatives, before the Arbitrator , in their opening statement said that:
“…[the Employer] cannot satisfy the onus of proving that [ the 40 Employees ]
committed the acts of misconduct described to them…require[s] that misconduct be
proved against each employee, not merely associated acts…”7. Therefore, it was the
Employer's responsibility to prove the guilt of the 40 Employees , as this was one of
the key issues to be decided.8

[6] Before evidence could be presented, both the Applicants and the Employer
submitted their respective formal applications for the admission of hearsay evidence,
attaching affidavits supposedly from anonymous witnesses. The Arbitrator ruled that
“hearsay from both sides would be provisionally admitted”.

[7] The relevant viva voce evidence can be summarised as follows: Mr Saif,
9 for
the Employer, testified that, before the strike concluded, the Employer successfully
applied to this Court for an interdict against 61 Employees (this list includes the
Individual Employees and 15 others, "the 15 Employees").10 In preparation for this
application, the Employer’s management aimed to identify employees suspected of
misconduct that warranted the Court’s urgent intervention. During cross-examination,
Mr Saif, among other points, presented the following noted evidence:
7.1. Some names on the list of th ese Employees should not have been
included, as there was no concrete evidence of their presence during the
alleged acts of misconduct, despite being part of the strike.
7.2. He also conceded that the list of all those employees was compiled
with a broad brush, indicating that the Employer had not conducted a

7 Id, p 84, lines 21-4, p 85
8 See par 1 of this judgment. In Sidumo supra, at par 78 that Court said “ In approaching the
dismissal dispute impartially a commissioner will take into account the totality of

dismissal dispute impartially a commissioner will take into account the totality of
circumstances. He or she will necessarily take into account the importance of the rule that had been
breached. The commissioner must of course consider the reason the employer imposed the sanction
of dismissal, as he or she must take into account the basis of the employee's challenge to
the dismissal. There are other factors that will require consideration. For example, the harm caused
by the employee's conduct, whether additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal on the employee and his or her long -service record.
This is not an exhaustive list.” (Own emphasis)
9 One of the 10 witnesses called by the Employer.
10 These 15 Employees are the comparators referred to in the parity principle mentioned in footnote 2
above.

5
thorough investigation, since the main goal was to hasten the interdict
application—an approach he acknowledged was improper.
7.3. The charges against the Individual Employees related to either direct
participation or acting in common purpose to commit misconduct, and that is
what resulted in the dismissal.11
7.4. One of the Individual Employees , Phenyo Selemane, was seen by him
on the tree shouting at the people, saying, “We are coming to get you”.12
7.5. That no specific material allegations were made against some of the
Individual Employees , namely: (a) Nkosoxolo Jaxa, (b) Grace Kgonare, (c)
Itumeleng Kgotlabeng, (d) John Mathetsa, (e) Refilwe Mogale, (f) Mita
Mokobane, (g) Samuel Manama, (h) Johannes Motheletsi, (i) Lawrence
Seelo, (j) Ben Sibigi, and (k) Thamsanqa Xhama (collectively referred to as
“the 11 Employees”).13

[8] The pertinent documentary evidence, which formed part of the hearsay
evidence provisionally admitted by the Arbitrator, was submitted for consideration
and referenced during the testimonies of the witnesses. Among these documents,
Amos Mohale is identified as one of the individuals observed around 22:00 on 1
October 2018 and remained there “with intention to burn the truck…” . Since there
are two Mohales , it appears that Andries Mohale was not mentioned. A statement
from "Security Guard 2" indicates that they witnessed a group of individuals
assaulting others and preventing them from reporting to work, one of the victims was
identified as 'Sandile,' who subsequently fled to the Security Guard 2, then the latter
"and Sandile then ran to get away from them ." It remains unclear whether this
"Sandile" refers to Sandile Xekwa, one of the Individual Employees.

[9] Furthermore, the hearsay evidence suggests that Elias Mere followed a car
driven by Louis when it left the Employer’s premises. The OB report also states that
“We identified (Mere) with another guy. Mere with another guy,” but the significance

“We identified (Mere) with another guy. Mere with another guy,” but the significance
of this was not clearly explained. Additionally, Xolelwa Sigaba is recognised as one
of the individuals who “come to stand in front of Plusnet/Geotex” around 7:29 on 19

11 Transcripts: Part A, p 660.
12 Id, p 732.
13 Id, Part A, p 730-9

6
October 2018; however, it was not clarified what the implications of her actions were.
Moreover, it was noted that on 18 October 2018 at approximately 13:05, Grace
Kgonare was seen with others “screaming.” Once again, the reasons for their actions
and the content of their “screaming” were not clarified, as the relevant witnesses did
not provide testimony.

[10] The evidence further revealed that, at the conclusion of the strike, the
Employer summoned the I ndividual Employees to a disciplinary hearing, where they
were accused of various types of misconduct , with specific charges outlined. The
introductory paragraph of the charge sheet reads: " Be advised that the below
charges are of a collective nature and directed against any and all employees who
were not at work since since commencement of the legal strike, either participating in
the strike action directly, or by way of association, being a member of the
representative union or not. And despite the charge that indicates direct involvement,
it was also indicated in the charge that “ …associated yourself as part of striking
employees collectively and with a common purpose to commit intentional
misconduct…”
14 Accompanying this charge sheet was a covering letter that invited
employees to make representation s to Management regarding “why they should not
be charged15 based on any common purpose or collective intent to commit
misconduct.16 It was common cause during the arbitration that no instructions were
given to the strikers to identify possible perpetrators.

[11] Mr Saif also testified that, although the 15 Employees were involved in the
strike and were members of the Applicant Union alongside the Individual Employees,
they were later removed from the list of those facing charges because management
established that they had not committed any acts of misconduct.
17 Before this Court,
the Applicant's legal representatives argued that this alone indicates a clear sign of

the Applicant's legal representatives argued that this alone indicates a clear sign of
inconsistency, given the circumstances of this matter.


14 Bundle A, p 1. This excludes two Individual Employees who were S hopstewards, namely Abram
Gadibolawe and Hlengiwe Mkhonza (“the Shopstewards”), as they were charged differently.
15 Own emphasis.
16 This excludes the Shopstewars..
17 Transcripts: p 699.

7
[12] The procedure followed, which resulted in the dismissal, consisted of two
separate hearings. The first, involving 48 employees, was chaired by Advocate
Ebersohn, while a second forum, comprising only the shopstewards, was headed by
Advocate Chokwe. Mr Saif confirmed that all 48 Employees wanted to attend the
disciplinary hearing, and although the Applicant Union offered a larger venue, the
Employer insisted that only a repres entative group could. Both forums ultimately
found the Individual Employees guilty, leading to their dismissal. Advocate Ebersohn,
who was the first witness for the Employer, during the arbitration inter alia, who
found the 48 employees guilty of misconduct that resulted to this dismissal, indicated
that in a collective inquiry there is no requirement for identifying who exactly
committed misconduct and said he followed the doctrine of common purpose, as
those 48 Employees failed to distance themselves from the acts of misconduct . He
noted that these employees only offered a bare denial of the incidents and failed to
“dissociate” themselves from the misconduct.

[13] Despite their denials, he believed they bore responsibility to come forward; by
not doing so, they were linked to the violent actions, and he said they were
associated with misconduct by virtue of their participation in the strike.
18 Advocate
Chokwe concluded that the shop stewards were guilty of some of the counts . The
findings of the latter are not significant considering Order 2 below.

[14] At the end of the arbitration, t he Arbitrator clearly identified the key issues to
be addressed, focusing on the substantive fairness of the dismissals, the
inconsistency, and the procedural aspects involved.
19 He discussed the common
ground regarding how the violence occurred, confirming that it was the Employer's
responsibility to substantiate the allegations against the Individual Employees. Under
the rubric of common purpose, the Arbitrator looked at the case law presented by the

the rubric of common purpose, the Arbitrator looked at the case law presented by the
disputants’ respective legal representatives. He recognised the Individual
Employees' concerns —that the evidence provided by the Employer did not
demonstrate that the violence was planned collectively or that all Individual
Employees were aware of the culprits' identity, which simply being present at the

8
event does not necessarily imply that each participant was aware of or supported the
acts of violence committed.

[15] The Arbitrator, after closely repeating part of the evidence presented by the
parties and where the Individual Employees were dealing with the legal principle of
common purpose,on this point, said the Indiv idual Employees were not before a
criminal court, reasoned it was likely that all the strikers attended a briefing
organized by the shop stewards at the start of the strike, where they were advised to
take aggressive action. Additionally, regarding the picketing, he said his finding was
that "the strikers" participated in the initial pickets, knew what was happening, and
concluded that it was each I ndividual Employee's responsibility to dis associate
themselves from any violent acts .. Moreover, the Arbitrator found that he was not
required to identify each individual applicant for every act of misconduct or the
precise extent of their involvement . This is the same approach taken by Advocate
Ebersohn, which resulted in the dismissal.

[16] By stating that what he said was inferential reasoning, the Arbitrator
concluded that, through reasonable deduction, each of the Individual Employees
engaged in misconduct by either failing to comply with instructions or ignoring the
Court's order regarding picketing lines, blocking the Employer 's entrance, carrying
weapons, and assaulting non-striking workers.
20

Grounds for review application and analysis

[17] The Applicant Union disputes the Arbitrator's decision, arguing that he
committed several major errors in law and fact that significantly impacted the
arbitration outcome. The Employer contends that the Individual Employees were
dismissed due to common purpose, without mentioning derivative misconduct, as
none of the strikers were questioned about their fellow strikers' actions and/ or
afforded necessary protection.


20 Para 106-110

9
[18] The Applicant Union further argues that the Arbitrator mis conceived the
inquiry. In support of this argument, the Applicant Union asserts that the Arbitrator's
understanding of the principle of common purpose was flawed, as he inter alia
irregularly relied on an obiter dictum of a judgment that the Employer invited him to
follow, while the principle clearly stated that an individual must have been associated
with the conduct; furthermore asserts that the mere participation in the strike and/or
picketing cannot sufficiently prove that the 40 Employees were involved in acts of
misconduct, as certain elements have to be proved (these are as covered
hereafter).
21

[19] The Applicant Union also contends that the Arbitrator’s guilty finding regarding
one Individual Employee, Mr Sibi gi, who had a sick note with him from a medical
practitioner, represents a reviewable irregularity ; this finding lacked a solid basis,
particularly because there was uncontradicted evidence that Sigibi was on leave and
did not return to work, and the Employer’s evidence confirmed that Sigidi attempted
to submit a sick note during the strike.

[20] It is further argued that the Arbitrator's acceptance of hearsay evidence was
inappropriate, as he failed to adhere to the relevant principles. His analysis did not
adequately address the hearsay evidence provided by the Individual Employees. On
the issue of the admission of hearsay evidence, the Applicants contend that the
Arbitrator “was not aware of what the relevant legal principles underlying the
admission of hearsay evidence were”.

[21] In Tau Ying,
22 the Constitutional Court held that an arbitrator, in order to
perform their duties effectively, is given a measure of latitude in deciding a matter
before them in a manner that they deem fit. However, what needs to guide him is
that he must promptly address the real dispute between the parties and act fairly
towards all parties in accordance with the LRA. In doing so, he should disregard

towards all parties in accordance with the LRA. In doing so, he should disregard
claims and counterclaims that would not assist in reaching a reasonable decision.
Moreover, the arbitrator is required to reach the desired outcome based on the

21 Id, para 84.13.
22 CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC), at para 65.

10
evidence that was properly presented before him , taking into account that he deals
“with the substantial merits of the dispute”.

[22] In this matter, the Arbitrator indicated that he was provisionally accepting
hearsay evidence for both parties, the evidence that had been admitted on behalf of
the Applicants consisted of three statements from anonymous, which covered the
issue of picketings, as they said no one told them exactly where the picketting would
be held, and the denial of the charges. Whereas in respect of the Employer,
statements were submitted indicating what happened, and some informants were
deployed by Liebenberg, who testified that he had planted them among the strikers
and was regularly in communication with them.23

[23] This Court acknowledges that the Labour Appeal Court in the matter of CTP
Gravure 24recently recognised that an arbitrator may admit hearsay evidence in
arbitration if, upon considering relevant factors,25 the arbitrator is of the opinion that it
would be in the interests of justice to do so. Considering the affidavits that were
submitted and considered as hearsay evidence, it is clear that the admission of
hearsay evidence in casu the Arbitrator, according to him, was premised on the
discretion following a section 3(1)(c)
26 assessment of the circumstances of the
disputes as it was clear from the beginning that these witnesses were not going to
testify as they were concerned with their safety, witnesses on both sides.

[24] This Court agrees with the Applicants’ Counsel that it seems the Arbitrator
misconceived the provisions of LEAA as it is unclear what the Arbitrator meant by

23 Transcripts: p 889.
24 CTP Gravure (Pty) a division of CTP Limited v Statutory Council for Printing Newspaper and
Packaging Industry and Others (DA 04/2024) [2025] ZALAC 16 (20 March 2025)
25 “(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;

(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value
of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account,
is of the opinion that such evidence should be admitted in the interests of justice.’”

26 Of the Law of Evidence Amendment Act 45 of 1988 (“the LEAA”).

11
stating at the start of the arbitration that he was provisionally admitting hearsay
evidence, which he repeats in paragraph 9 of the arbitration award, considering that
the Labour Appeal Court27 clearly stated thus:
“‘Those safeguards and precautions, duly adapted, also apply to the
application of s 3 of the LEAA in civil proceedings. …(6) the commissioner
must timeously rule on the admission of the hearsay evidence, and the ruling
on admissibility should not be made for the first time at the end of the
arbitration, or in the closing argument, or in the award. The point at which a
ruling on the admissibility of evidence is made is crucial to ensure fairness in
a criminal trial. The same ought to be true for an arbitration conducted in an
adversarial fashion because fairness to both parties is paramount.”

[25] As the Arbitrator stated in the arbitration award that “I decided that all relevant
hearsay from both sides would be provisionally admitted as part of the record,
subject to its proper evaluation at the end of the arbitration and in preparation of this
award.” This led to confusion during the arbitration, as even Attorney Daniels,
representing the Individual Employees , continued to mention this confusion and
expressed his concern that the Arbitrator had not indicated his final decision on this
evidence. The Court also considers what the Arbitrator describes as “primary these
three factors” when deciding on the admission of hearsay evidence and overlooks
the other factors that the LEAA requires him to consider.

[26] On this point, the Court agrees with the Applicant Union that the Arbitrator
committed an irregularity, but the remaining question is whether it amounts to a
gross irregularity, which requires the intervention of this Court, considering the
totality of the evidence. This Court concludes that it does not, based on the evidence
before it, as per the records of the arbitration, which states, among other things, that:

before it, as per the records of the arbitration, which states, among other things, that:
(a) Witness Liebenberg infiltrated the strikers with informers who provided
information whenever something occurred, and he confirmed with Mr Saif the
accuracy thereof; (b) Witness Liebenberg did not seek to implicate employees not
directly mentioned by his informers, and he testified during the arbitration; (c) the
Individual Employees did not suffer prejudice from the hearsay evidence involving

27 Fn 23 above.

12
them, as they could have testified if they wished; (d) it was confirmed that the
informants were not going to testify, and the reason was known in advance—that it
was about their safety as acts of violence were committed, which is similar to the
witnesses the Applicants; (e) The Security guard’s Occurrence Book corroborated
some of the incidents indicated by the Employer's witnesses, and the person who
was coordinating security testified about some of the issues.

[27] In addition, the hearsay evidence exonerates some of the Individual
Employees, as it only states that they were present but does not state what acts of
misconduct, either directly or by common purpose, they committed, as part thereof
are summarised in paragraphs 8 and 9 above, and what is stated in paragraphs 29
to 34 below . Therefore, the admission of hearsay evidence cannot be set aside,
despite the shortfalls highlighted regarding the manner in which the Arbitrator
handled it.

[28] Regarding the issue of a guilty finding for those who claimed they were not
involved at all, this C ourt first looks at the established legal principle on common
purpose, as per Mgedezi
28, as followed by the Labour Appeal Court in AMCU and
others v KPMM Roads and Earthworks,29 which is that:
“…In the first place, he must have been present at the scene where the
violence was being committed. Secondly, he must have been aware of [the
crime to be committed]….Thirdly, he must have intended to make common
cause with those who were actually perpetrating the assault. Fourthly, he
must have manifested his sharing of a common purpose with the perpetrators
of [the crime] by himself performing some act of association with the conduct
of the others. Fifthly , he must have had the requisite mens rea [criminal
intent]…”


28 [1989] 2 All SA 13 (A). See also NUMSA obo Aubrey Dhludhlu and 147 Others 2023 (1) SA 338
(CC).
29 [2019] 4 BLLR 340 (LAC).

13
[29] Later, the apex Court in Nganezi 30 said the following , in addition to what is
stated in the preceding paragraph:
[46] Inferential reasoning in establishing actual participation or association in
the primary misconduct was sufficient in Fawu, Chauke and RSA Geological
Services (Review). The difficulty seems to be with the A emphasis placed on
the necessity of direct presence at the scene of the misconduct, as is also
evidenced by the arbitrator and Labour Court's approach here. Evidence,
direct or circumstantial, that individual employees in some form associated
themselves with the violence before it commenced, or even after it ended,
may be sufficient to establish B complicity in the misconduct. Presence at the
scene will not be required, but prior or subsequent knowledge of the violence
and the necessary intention in relation thereto will still be required. And as
Grogan aptly remarked in RSA Geological Services (Arbitration) , '(i)n any
event, a refusal to disclose information relating to an offence can in certain
circumstances make a person an accessory'. He could have added C 'after
the fact'. (footnote omitted)

[30] Furthermore, in R v Blom,
31 recently followed by the Labour Appeal Court32 in
respect of what has been said regarding inference and circumstantial evidence, it
was held that:
“‘…two cardinal rules of logic …”
(1) The inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.”

[31] At this juncture, this Court must affirm its agreement with the Applicant
Union's assertion that the central issue at the core of the dispute was the

30 Numsa obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd and Others - 2019 (5) SA

354 (CC) at par 46.
31 1939 AD 288.
32 NUMSA obo Mokase v Nissan South Africa Ltd and Others (JA46/23) [2024] ZALAC 16

14
identification, considering the reason for dismissal as elaborated in paragraph 7.3
above and what the Arbitrator was invited to decide. Accordingly, the Arbitrator
indeed committed a reviewable irregularity by misconstruing the substantial merits of
the dispute with regard to the law and facts of this matter.
31.1 Furthermore, it is acknowledged as fact that (a) the strike was
protected; (b) the Individual Employees participated in the strike; (c) acts of
violence occurred during the strike and picketing; and (d) some of the
employees who participated in the strike were not charged (“the 15
Employees”), despite the determination by Advocate Ebersohn and the
assertions in paragraph 7.3 of this judgment, that those found guilty were
based on common purpose, thus only capable of “disassociation” if implicated
in a case.
31.2 Consequently, the ongoing inquiry pertains to the role of the 40
Employees and whether their participation in the lawful strike constitutes acts
of misconduct, especially in light of the charge sheet as noted in paragraph 10
above
33 and the reasons provided for their dismissal. More on this is
demonstrated below.

[32] This Court confirms that the Arbitrator committed a reviewable irregularity
relating to the Individual Employees mentioned in Order 1.1 below relating to the law
and fact in respect of the guilty findings of those Individual Employees as the
reasoning by inference by the Arbitrator was not consistent with all the proved facts
as it is not the more plausible or natural one from the evidence instead is a sharp
contrast of what was before him based on what is set out above and hereinafter.

[33] The Applicant Union correctly contends that the Employer:
33.1 Conceded during cross-examination that no material allegations were
made against the following I ndividual Employees: (a) Nkosoxolo Jaxa, (b)
Grace Kgonare, (c) Itumeleng Kgotlabeng, (d) John Mathetsa, (e) Refilwe
Mogole, (f) Mita Mokobane, (g) Samuel Manama, (h) Johannes Motheletsi, ( i)

Mogole, (f) Mita Mokobane, (g) Samuel Manama, (h) Johannes Motheletsi, ( i)
Lawrence Seelo, ( j) Ben Sibigi, ( k) Thamsanqa Xhama, and ( l) Solomon
Sekao (collectively referred to hereafter as “the 12 Employees”). According to

33 This again excludes the Shopstewards.

15
the principles outlined in paragraphs 2 8 to 30 above, none of these
Employees was involved. Even the hearsay evidence that the Arbitrator
admitted does not implicate these Employees. Instead, the Employer's
witnesses, specifically witness Greef, testified that not all those involved in the
strike were necessarily involved in the acts of violence, and indicated that only
a few might have been involved.
33.2 In addition, has not presented evidence that supports the guilty findings
on employees such as (m) Adries Mohale, (n) Steven Kambula, (o)Samuel
Lephafa, (p) David Maleke, (q) Xolela Sigaba, (r) Abel Tshukulume, and (s)
Sandile Xekwa. In applying the same principle mentioned in paragraphs 28 to
30 above, no evidence implicates these ones.

[34] Additionally, Mr Saif and Advocate Ebersohn confirmed that the Employer’s
case was based on a common purpose, and the former also stated that he could not
confirm whether “the strikers” were aware of all plans and who was responsible for
what actions during the strike and picket except those identified . This admission by
Mr Saif, which was presented before the Arbitrator, indicates that even the 11
Employees should not have been found guilty, as was the case with those who were
part of the list of employees referenced as the 15 Employees above, who, together
with the Individual Employees , were part of the Court Order in the interdict
application. This Court concludes in this way , except those who were positively
identified as culprits, as per the evidence in the records and are not mentioned in
Order 1.1 below.

[35] Furthermore, Advocate Ebersohn stated that “the evidence of the employer
before me stated that they were not 100% sure who was involved." Considering the
entire transcripts, it is clear that the Employer’s expectation that these Employees
mentioned in paragraphs 33.1 and 33.2 above would disassociate themselves was
illogical, because how can one disassociate themselves when they were never

illogical, because how can one disassociate themselves when they were never
associated or invited to do so in the first place? Regarding the charge sheet
mentioned in paragraph 10 above, what occurred was that they were asked to state
“why they should not be charged based on any common purpose or collective intent
to commit misconduct," not to disclose their whereabouts during the acts of violence
in question.

16

[36] Furthermore Ben Sibigi presented uncontested testimony that prior to the
strike and picketing he injured his finger and was on sick leave between 19 and 30
September 2018 and he was treating his finger at home, when sick his leave
expired, he did not return to work but only went there with an intention to submit a
medical certificate but found security and could not enter the premises of the
Employer then handed over it to the security at the gate and he never returned to
work until after the strike. 34 Liebenbenerg, also representing the Employer, clarified
when questioned by Attorney Daniels for the Applicant s that the report on the strike
did not indicate that “all the strikers were aware of the planned attacks." He added
that some union members did not participate in the physical strike actions. 35
Furthermore, Greef, a witness for the Employer, acknowledged during cross -
examination by Attorney Ramji for the Applicant that not everyone on strike
committed violence. He suggested only a few might have been violent, while others
were not. Therefore, the conclusion by the Arbitrator that Ben Sibigi and all those
mentioned in paragraphs 33.1 and 33.2 w ere guilty of misconduct , whilst the
Employer failed to show the elements of common purpose as indicated above,
indicates a misapprehension of the law and fact, as this indicates that the Arbitrator
misconceived “the substantial merits of the dispute”.

[37] As a result, the issues to be decided and all the evidence presented before
the Arbitrator pointed in a direction that is contrary to the Arbitrator’s inference when
he concluded that he was not required to determine who was involved and who
committed the misconduct; consequently, this Court, in this manner, concludes that
the Arbitrator indeed misconstrued the inquiry before him, specifically whether the 19
Employees mentioned in Order 1. 1 below were charged and dismissed based on
common purpose or derivative misconduct. The principle regarding the latter

common purpose or derivative misconduct. The principle regarding the latter
required more from the Employer, such as that the Individual Employees became
aware of the wrongdoers and were invited to come forward with information, but they
failed to do so, and the Employer offered them protection, which did not occur in this


35 P 945 and 946 at line 10-17.

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matter. Therefore, t he conduct of the Arbitrator resulted in an outcome that a
reasonable decision-maker could not have reached.

[38] Furthermore, being part of a protected strike and/or picketing does not make
you part of the violence that took place on different dates during that protected strike
and/or picketing. Even if one was part of a briefing by shop stewards that violence
was to be committed does not equate to breach of a rule, considering that no
evidence was presented during the arbitration that it was a common understanding
that all those who were present were in agreement that they were condoning the
violence to be committed, and that they associated themselves with such.
Additionally, if the Arbitrator’s reasoning that “all the strikers” were part of the briefing
by the shopstewards , so are guilty , were to be followed, it would imply that even
those whom the Employer removed from the list committed the acts of misconduct,
and this raised the issue of inconsistency, one of the issues to be decided by the
Arbitrator. However, considering the facts of this case, one clear thing is that, despite
the Arbitrator identifying the issue of whether they committed the offences for which
they were dismissed, he misconceived the applicable principle thereof.

[39] Regarding procedural aspects of the dismissal side. This Court finds that the
dismissal of the Shopstewards was procedurally fair, as they were given an
opportunity to state their respective case. However, the evidence presented by the
Employer witnesses indicates that the remaining Individual Employees, through their
trade union, offered a larger venue in which they wanted to explain what transpired
for each of them. However, they were not given such an opportunity. Instead, the
Employer indicated that they can only be represented by a limited number of people,
who were classified as observers , so not given time to state their respective

who were classified as observers , so not given time to state their respective
versions. This indicates that these Individual Employees were prevented from
presenting side which is unfair . Considering the charge sheet relating to them ,as
stated in paragraph 10 above, which repeatedly states that the Individual Employees
associated themselves and all participated with their fellow striking employees in
committing the offence, they needed to be allowed to present their cases, not only to

18
allow few individuals to be permitted as observers. 36 The Employer, however,
refused to provide them with this opportunity.

[40] Considering what the A rbitrator says in the arbitration award, as he states
what he refers to as the realities of COVID- 19, which he says have proven that it is
impossible to conduct large- scale events, goes against the evidence presented
because this was not an excuse given by the Employer. Therefore, the dismissal
was procedurally unfair. This clearly indicates that the A rbitrator relied on something
that was not before him.

[41] This Court has considered the issue of bias as raised against the Arbitrator by
the Applicant Union, but finds none; instead, it concludes that this Arbitrator erred, as
all commissioners are prone to do.

[42] As this Court has ruled that the dismissal of the 19 Employees was
substantively unfair, the enquiry now concerns whether to order reinstatement , re-
employment, or compensation, as section 193(2) of the LRA provides that:
“The Labour Court … must require the employer to reinstate or re- employ the
employee unless—
(a) The employee does not wish to be reinstated or re-employed;
(b) The circumstances surrounding the dismissal are such that a continued
employment would be intolerable;
(c) It is not reasonably practicable for the employer to reinstate or re- employ
the employee; or
(d) The dismissal is unfair only because the employer did not follow a fair
procedure.”

[43] This Court should carefully consider the options of remedies in section 193(1)
as well as the effect thereof, as per section 193(2) before deciding on an appropriate
remedy.
37 This Court has also to determine if there are any circumstances that could
prevent reinstatement, taking into account that those who have been found not guilty

36 Transcripts: p 143-144.
37 SARS v CCMA and Others 2017 SA 549 (CC), at para 38.

19
have asked for the primary remedy which is reinstatement, as “intolerability should
not be easily be reached, and that the employer must provide weight reasons,
accompanied by tangible evidence, to show intolerability.”38

[44] In Booi
39 the Court said:
“ It follows that this Court is at liberty to order that Mr Booi is entitled to
retrospective reinstatement, and in so doing, is constrained only by
section 193(1)(a) of the LRA, which states that the reinstatement may be
“from any date not earlier than the date of dismissal”. It is also noteworthy
that, in exercising its discretion regarding the date of reinstatement—
“a court or an arbitrator may address, among other things, the period between
the dismissal and the trial as well as the fact that the dismissed employee was
without income during the period of dismissal, ensuring, however, that an
employer is not unjustly financially burdened if retrospective reinstatement is
ordered or awarded.”

[45] Given that the dismissal of the employees referenced in paragraphs 33.1 and
33.2 of this judgment has been determined to be both procedurally and substantively
unfair, this Court, among other considerations, acknowledges that they were
dismissed on 26 August 2019. The referral was made immediately thereafter, and
the matter remained at the CCMA for nearly three years, with the arbitration award
issued on 8 June 2022. The Applicants’ legal representatives did not delay in
referring this matter to this Court, and there was no delay in prosecuting it.

[46] A significant period has elapsed since the dismissal. This Court recognises
that, although these 19 E mployees were dismissed following acts of violent
misconduct, no evidence has been presented to suggest their involvement.
Colleague employees who participated in the same strike were not dismissed, as
noted in this judgment. There is no evidence to suggest that the Employer is unable
to reinstate these E mployees, apart from concerns regarding the passage of time

to reinstate these E mployees, apart from concerns regarding the passage of time
and acts of violence that happened, which are unrelated to these Employees

38 Booi v Amathole District Municipality and others 2022 (3) BCLR 265 (CC) (“Booi”)
39 Id.

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themselves. The Court opines that, based on the evidence presented, reinstatement
with limited compensation, as specified in the order below, would be appropriate.

[47] Furthermore, individuals who challenged only the procedural aspect of the
dismissal, including employees not referenced in paragraphs 33.1 and 33.2 but part
of 40 Employees except the Shopstewards , shall be entitled to only one month’s
compensation each for the following reasons: they were involved in violent conduct
during a lawful strike, which resulted in the destruction of homes of individuals not
participating in the strike. This conduct also included stabbing incidents, discussions
of hiring hitmen to eliminate certain individuals, and the degree of non- compliance
with the procedural requirements of the dismissal, as this Court rejects the remaining
arguments advanced by them relating to the procedural aspects of this dismissal.

[48] Based on the above, the following order is made:

Order

1. The Third Respondent’s arbitration award is reviewed and set aside,
and replaced with the following order:
“1.1 The dismissal of the following Employees by the Plusnet Geotex, A
division of Master Plastic Ltd (“the Employer”) was substantively and
procedurally unfair: (a) Nkosoxolo Jaxa, (b) Grace Kgonare, (c) Itumeleng
Kgotlabeng, (d) John Mathetsa, (e) Refilwe Mogole, (f) Mita Mokobane, (g)
Samuel Manama, (h) Johannes Motheletsi, (i) Lawrence Seelo, (j) Ben Sibigi,
(k) Thamsanqa Xhama, and (l) Solomon Sekao, (m) Adries Mohale, (n)
Steven Kambula, (o)Samuel Lephafa, (p) David Maleke, (q) Xolela Sigaba, (r)
Abel Tshukulume, and (s) Sandile Xekwa.

1.2 As a result of the above, the Employer is ordered to reinst ate all these
19 Employees, mentioned in 1.1 above, on the terms and conditions not less
favourable than those applied before their dismissal, and ordered to pay each
of these Employees back-pay for their retrospective reinstatement equal to 36
months’ remuneration each.

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1.3 The dismissal of those Employees not mentioned above is confirmed to
be substantively fair.
1.4 The dismissal of both Abram Gadibolawe and Hlengiwe Mkhonza is
found to be procedurally fair.
1.5 The dismissal of the remaining Individual Employees not mentioned
above is found to be procedurally unfair; therefore, the Employer must pay
each of these Individual Employees compensation equivalent to one month's
salary.
2. There is no order as to costs.

Sandile Mabaso
Acting Judge of the Labour Court of South Africa

Appearances
For the Applicants: Mr K Barkhuizen.
From: Cheadle Thompson & Haysom Inc.

For the First Respondent: Adv M Meyerowitz
Instructed by:Griffiths & Associates Attorneys