THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1173/19
In the matter between:
ABF LEGEND LOGISTICS (PTY) LTD Applicant
and
JAO PEDRO MARRENGULA First Respondent
COMMISSIONER M.P. MNGOMEZULU Second Respondent
NATIONAL BARGAINING COUNCIL FOR THE ROAD
FREIGHT AND LOGISTICS INDUSTRY Third Respondent
Heard: 20 August 2025
Delivered: 29 August 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email . The date for handing down judgment is deemed to be
29 August 2025.
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JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter came before the court as an application to review the arbitration
award issued by the second respondent. The applicant raised various grounds of review
alleging that the first respondent failed to apply his mind to the evidence presented and
that his findings are not those of a reasonable decision- maker. The outcome of the
award is that the first respondent was dismissed, and that his dismissal was
procedurally and substantively fair. The applicant was ordered to pay to the first
respondent an amount of R 65 671.48, said amount equivalent to seven months, as
compensation. The crucial issue that the second respondent was required to determine
was whether the first respondent was dismissed. The second respondent found, on the
evidence before him, that the first respondent discharged the onus of proving that he
was dismissed.
Test on review
[2] The courts have held that the test on review test regarding the existence of a
dismissal is the “correctness” test and not the “reasonable” test. The Labour Appeal
Court in SA Rugby Players Association v SA Rugby (Pty) Ltd and Others
1 stated:
“[39] The issue that was before the commissioner was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The
significance of establishing whether there was a dismissal or not is to determine
whether the CCMA had jurisdiction to entertain the dispute. It follows that if there
1 (2008) 29 ILJ 2218 (LAC).
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was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in
terms of s 191 of the Act.
[4] The CCMA is a creature of statute and not a court of law. As a general rule, it
cannot decide its own jurisdiction. It can only make a ruling for convenience.
Whether it has jurisdiction or not in a particular matter is a matter to be decided
by the Labour Court. In Benicon Earthworks & Mining Services (Edms) Bpk v
Jacobs NO & others (1994) 15 ILJ 801 (LAC) at 804C -D, the old Labour Appeal
Court considered the position in relation to the Industrial Court established in
terms of the predecessor to the current Act. The court held that the validity of the
proceedings before the Industrial Court is not dependent upon any finding which
the Industrial Court may make with regard to jurisdictional facts but upon their
objective existence. The court further held that any conclusion to which the
Industrial Court arrived on the issue has no legal significance. This means that, in
the context of this case, the CCMA may not grant itself jurisdiction which it does
not have. Nor may it deprive itself of jurisdiction by making a wrong finding that it
lacks jurisdiction which it actually has. There is, however, nothing wrong with the
CCMA enquiring whether it has jurisdiction in a particular matter provided that it
is understood that it does so for purposes of convenience and not because its
decision on such issue is binding in law on the parties. In Beni con’s case the
court said at 804C-D:
‘In practice, however, an Industrial Court would be short -sighted if it made no
such enquiry before embarking upon its task. Just as it would be foolhardy to
embark upon proceedings which are bound to be fruitless, so too would it be
fainthearted to abort the proceedings because of a jurisdictional challenge which
is clearly without merit.’
In my view the same approach is applicable to the CCMA.
[41] The question before the court a quo was whether on the facts of the case a
[41] The question before the court a quo was whether on the facts of the case a
dismissal had taken place. The question was not whether the finding of the
commissioner that there had been a dismissal of the three players was justifiable,
rational or reasonable. The issue was simply whether objectively speaking, the
facts which would give the CCMA jurisdiction to entertain the dispute existed. If
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such facts did not exist, the CCMA had no jurisdiction irrespective of its finding to
the contrary.”
[3] If the court is satisfied that the employee was dismissed, it must apply the usual
Sidumo reasonableness test on review of the decision as to fairness. The test focuses
on the outcome “is the arbitrator’s decision capable of reasonable justification on all the
material that was before the arbitrator”.
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Arbitration proceedings
[4] The second respondent, upon being advised that the existence of a dismissal
was in dispute, first listened to the first respondent’s evidence, as the onus was on the
first respondent to prove that he was dismissed. The first respondent was not
represented during the arbitration proceedings, and the second respondent was
required to guide the first respondent in certain respects. The court notes that the
transcribed record seems to be missing various parts of the evidence presented with
frequent references to ‘inaudible’.
[5] The first respondent testified that he was employed on 26 January 2017 as a
truck driver and that he was dismissed on 19 December 2017. The first respondent was
off duty from 14 to 18 December 2017. He received a call on 18 December 2017 from
Paul, the supervisor, saying that they have been looking for him without success.
According to the first respondent, he was due to resume work the following morning,
i.e., 19 December 2017. He was advised to wait for the arrival of Mr. Fouche, the owner
of the company, the following morning. The first respondent, on 19 December 2017,
was summonsed to the office by Mr. Fouche. Present in the office was Mr. Fouche and
a lady unknown to the first respondent.
2 Fidelity Cash Management Service v CCMA & others [2008] 3 BLLR 197 (LAC) at para 103; National
Union of Mineworkers and another v Rustenburg Platinum Mine (Mogalakwena Section) and
others [2015] 1 BLLR 77 (LAC) at 27.
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[6] Mr. Fouche told him to pack his belongings and leave the premises. The only
reason advanced was that Mr. Fouche could not work with a person of the first
respondent’s caliber. This court must note that where the transcribed record is not
entirely clear on what the evidence was, the court relied on what was stated in the
award as to the summary of the evidence that was presented.
[7] It is, however, clear from the transcribed record that the second respondent’s
survey of the first respondent’s evidence is supported and this court accepts that the
summary is correct. The first respondent testified that he went outside and waited at the
gate and that he was told to ‘fokoff’. The first respondent was not told what he did
wrong, and he was never taken to a hearing nor given a dismissal letter.
[8] During cross -examination, it was put to the first respondent that he testified
during the first arbitration hearing that he was unemployed for ten months and that he
was not honest because he was employed. The transcribed record, again, is not clear
as to the exact questions in this regard, and the first respondent’s answers. The court,
however, notes that it does appear that the issue of the first respondent having been
employed by a different company was put to him during cross -examination, as
supported by the applicant’s bundle of documents. It does not appear from the
transcribed record that the first respondent denied the questions posed to him in this
regard. The first respondent was then questioned whether he knew what the normal
processes are when people are dismissed.
[9] The applicant called Mr. K Coetzee as their only witness. Mr. Coetzee’s evidence
was entirely based on the normal procedures that the applicant follows when
disciplining and dismissing employees. The evidence presented in this regard will not be
summarised for purposes of this judgment but is noted by this court. Mr. Coetzee,
summarised for purposes of this judgment but is noted by this court. Mr. Coetzee,
however, was unable to give any direct evidence as to the events that transpired on 19
December 2017, as testified to by the first respondent. In fact, it appears that Mr.
Coetzee was not even employed by the applicant at the time that the first respondent
claimed that he was dismissed.
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Arbitration award
[10] The second respondent, after surveying the evidence correctly finds that he is
required to determine whether the first respondent was dismissed, and if so, whether
the dismissal was procedurally and substantively fair. The second respondent accepted
the first respondent’s evidence that he was dismissed based on a balance of
probabilities and because the first respondent’s evidence regarding what transpired in
Mr. Fouche’s office was unchallenged. The second respondent specifically states that
there was no rebuttal evidence from Mr. Fouche.
[11] The second respondent finds further that, having found that the first respondent
was dismissed, the first respondent was dismissed immediately upon return from his off
days for no apparent reason, despite his attempt to understand the reason thereof. The
decision to dismiss was not preceded by any attempt to follow correct procedure. The
second respondent finds Mr. Coetzee’s evidence irrelevant to the issue that he was
required to determine.
[12] Insofar as relief is concerned, the second respondent noted that the first
respondent did not seek reinstatement. In respect of compensation, the second
respondent noted that the primary reason for awarding compensation is to place the first
respondent in the same position had he not been dismissed. The second respondent
then finds that the first respondent’s chances of getting a similar job in the industry are
slim and that he remains unemployed and ordered the applicant to pay seven months’
compensation as just and equitable compensation.
Evaluation
[13] This court is required to determine t hree issues in this review application. The
first issue is whether the second respondent’s finding that the first respondent was
dismissed is correct. The second issue is whether his decision that the dismissal was
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procedurally and substantively fair is a decision that a reasonable decision- maker could
not reach. The applicant also takes issue with the amount of compensation awarded
and the court will deal with this as the third issue to be determined by this court.
[14] Insofar as the applicant takes issue with the conduct of the second respondent in
assisting the first respondent to give evidence relevant to his dismissal, this court does
not share the view that the second respondent’s actions were unwarranted. The first
respondent had no representative and had to be guided in presenting his evidence
regarding the existence of a dismissal. The same applies to the applicant’s attack on the
second respondent unnecessarily interfering with the applicant’s representative in
cross-examination. Although it does appear from the transcribed record that the second
respondent did interfere with the cross -examination, this court is not of the view that
such interference had a material effect on the outcome at which the second respondent
arrived at.
[15] In respect of the first issue, i.e., whether the first respondent was dismissed, this
court finds no reason to interfere with the decision by the second respondent. The first
respondent’s evidence regarding the events of 19 December 2017 was not rebutted by
Mr. Fouche. For the evidence of the first respondent to be rejected, the applicant was
required to call Mr. Fouche as a witness. In the absence of Mr. Fouche having been
called, and there appears to be no good reason why he was not called, the second
respondent was correct in accepting the first respondent’s evidence as unchallenged.
The second respondent was also correct to find Mr. Coetzee’s evidence irrelevant under
circumstances where Mr. Coetzee was not even employed on 19 December 2017. Mr.
Coetzee’s evidence served no purpose whatsoever and the second respondent
correctly failed to attach any weight to his evidence. Whether the applicant follows
correctly failed to attach any weight to his evidence. Whether the applicant follows
procedures, after the fact, has no bearing on the first respondent’s evidence that Mr.
Fouche told him to ‘fokoff’. There is no evidence that the applicant followed up on the
first respondent not reporting for duty after 19 December 2017 such as instituting
disciplinary actions for desertion or absence without permission. This court therefore
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accepts that the second respondent’s finding that the first respondent was dismissed,
based on the evidence presented to him, was the correct decision.
[16] The second issue is whether the second respondent’s decision that the dismissal
was procedurally and substantively unfair is a decision that a reasonable decision-
maker could not reach. Based on the evidence before the second respondent, this court
is of the view that the second respondent’s decision is one that a reasonable decision-
maker could reach. Once it is accepted that there was a dismissal, it is clear from the
evidence that there was no reason for the dismissal, and no procedures that were
followed.
[17] This brings the court to the third issue in terms of the relief awarded. The court
has perused the transcribed record and can find no reference to any evidence having
been presented that the first respondent testified that the chances of him getting a
similar job in the industry are slim and that he remains unemployed. In fact, the
transcribed record shows that the applicant’s representative took the first respondent to
task about not being honest of being unemployed for ten months, as he testified to in a
previous arbitration. Although much of the questions in this regard is referenced in the
transcribed record as ‘inaudible’, it was put to the first respondent that his evidence in
the previous arbitration was dishonest , and reference was made to “January”. The
reference to “January” during cross -examination to “January” must be accepted to refer
to the fact that the first respondent was employed by Vuzani Investments on 9 January
2018. This is confirmed by an appointment confirmation letter that was before the
second respondent.
[18] It therefore follows that the second respondent’s finding of the first respondent
testifying that the chances are slim of getting a similar job in the industry and that he
remains unemployed is not supported by the evidence and is in fact false. No such
remains unemployed is not supported by the evidence and is in fact false. No such
evidence was presented and the second respondent’s reliance on such non- existent
evidence in support of the relief that was awarded was irregular. The first respondent,
on his own version, confirmed in the award that the primary reason for awarding
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compensation is to place the first respondent in the same position had he not been
dismissed. By awarding seven months’ compensation, the second respondent departed
from his own understanding of what the purpose is in awarding compensation. The
second respondent’s finding in respect of the amount of compensation awarded is
unreasonable and is a decision that a reasonable decision-maker could not reach.
[19] This court therefore accepts the applicant’s challenge regarding the relief
awarded. Given the evidence that the first respondent obtained alternative employment
on 9 January 2018, and there being no evidence that the salary he earned from Vuzani
Investments was less than the salary that the first respondent earned whilst working at
the applicant, the appropriate relief ought to have been to award one month’s
compensation.
[20] In the premises, the following order is made:
Order
1. The application for the arbitration award to be reviewed and set aside is
granted only in respect of the relief awarded. The relief granted to the first
respondent, in terms of paragraph [27] of the award, is replaced with the
following order:
The applicant is ordered to pay to the first respondent, within seven days from
the date of this judgment, compensation in the amount of R9 381.64, said
amount being equivalent to one month’s salary.
2. There is no order as to costs.
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: H Horn
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Instructed by: Yusuf Nagdee Attorney
For the Third Respondent: G Leshaba from MM MITTI Inc. Attorneys