THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 634/23
In the matter between:
ADONIA MUSHWANA Applicant
and
THABAZIMBI LOCAL MUNICIPALITY First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
DIALE NTSOANE N.O. Third Respondent
Heard: 3 July 2025
Delivered: 2 September 2025
JUDGMENT
SCHENSEMA, AJ
2
Introduction
[1] This is an application brought by the applicant to review and set aside the
arbitration award of the third respondent (the Commissioner) in terms of which the
applicant’s unfair dismissal referral to the second respondent was dismissed.
[2] At the outset of the proceedings, I queried the absence of the first respondent.
The applicant’s representative informed the Court that the first respondent’s legal
representatives had served a notice of withdrawal on the applicant’s attorneys on 2
July 2025, and a copy of this notice was presented to the Court. After having
considered the set down notice and communication to the parties contained in the
Court file, I was satisfied that proper notice of the hearing had been given to the first
respondent and proceeded with the matter accordingly.
[3] In relation to the pleadings, the pleadings bundle includes an unsigned
answering affidavit from the first respondent. T his Court retains the discretion to
accept or reject an affidavit that does not comply with the requirements of the
Justices of the Peace and Commissioners of Oaths Act
1. Considering that the first
respondent, despite being duly notified, failed to attend the proceedings, the
answering affidavit cannot be regarded as properly before the Court ; accordingly,
this review application will be considered on an unopposed basis.
Condonation
[4] The applicant further seeks condonation for the late filing of his review
application. The award was received on 28 February 2023, and the applicant served
his review application on 13 April 2023 and filed it at Court on 21 April 2023.
[5] In accordance with the stipulated timelines, the review application was due on
12 April 2023; the review application is therefore one day late and not three days as
deposed to by the applicant in his founding affidavit. I have considered the reasons
1 Act 16 of 1963.
3
provided for the delay , and I am satisfied that a basis has been established for the
delay in filing the review application, and condonation is therefore granted.
Background
[6] The applicant was employed by the first respondent as a Manager : Local
Economic Development in June 2018 . In terms of the applicant’s responsibilities, he
was required to deal with Thabazimbi’s business communit y, the business
individuals and hawkers needing assi stance. Given the nature of these
responsibilities, it would not have been possible for the applicant to have conducted
these duties remotely.
[7] Due to the COVID -19 pandemic and the national lockdown imposed, the
abovementioned duties could not be performed. Nevertheless, the first respondent’s
employees were required to work remotely and were provided with the necessary
tools to do so.
[8] On 26 June 2020, the first respondent issued a letter instructing all employees
to return to the workplace on 30 June 2020. The employees were further notified of
the COVID-19 measures that it had implemented.
[9] On 4 August 2020, the first respondent in a nother letter to its employees
advised that, as per the Disaster Management Act
2, employees who were over 60
years of age or had underlying comorbidities would qualify to work from home and
further sought that each department provide a report to inter alia confirm which
employees would be working from home and to obtain a medical certificate
confirming the underlying condition in respect of the employees with comorbidities.
[10] Thereafter, and on 1 October 2020, the first respondent issued another letter
to its employees in which all employees subject to the conditions set out in the letter
were to return to work on 5 October 2020. Of significance in respect of this letter are
paragraphs 6.3, 6.4 and 7:
2 Act 57 of 2002.
4
‘…
6.3 Comorbidities management: it is acknowledged that not all employees
will be returning to work to identified uncontrolled risks and vulnerabilities,
notwithstanding all municipal services must be provided during this period.
Employees who are 60 years and older, with one or more stated comorbidities
(as published by the Department of health) which is not managed or
controlled as medically determined may be permitted to work remotely where
possible, subject to prior written approval from their HOD.
6.4 A medical report from a medical practitioner , which confirms that the
employees suffers from any one of the comorbidities as published by National
department of Health should be provided to corroborate and support the
conditions as stated in the medical certificate. The standard medical certificate
will be insufficient for this purpose and will not be accepted, without the
attached short medical report stating the following details/information:
6.4.1 medical practitioners details;
6.4.2 duration that they have been treating the patient for the stated
condition;
6.4.3 Confirmation that the employee does have a stated comorbidity, which
is catagorised in the broad group as determined by the National department of
Health. If the employee as a pat ient agrees to provide granular details of
actual sated sub- group condition, then such information can be provided.
Example: Comorbidity: Metabollo Syndrome ( which includes poorly controlled
diabetes mellitus as the details, amoungst other conditions);
6.4.4 Confirmation that the stated comorbidity does present a medical risk
and such risk/s must be clearly stated in relation to that comorbidity.
6.4.5 Confirmation of the recommended duration that the employee remains
at risk and is recommended for a managed return to the workplace.
6.4.6 The onus of proof is upon the employee to produce all relevant
requested medical reports as required to assess the risks of the comorbidities
and other vulnerabilities.
and other vulnerabilities.
7. All employees are to comply with the instructions as set out above
failing which will be regarded as a transgression and will lead to disciplinary
action being instituted.’ (sic) (Own emphasis added)
5
[11] The first respondent’s employees , including the applicant , also received a
workplace return schedule, which clearly indicates that the applicant was required to
be present at the first respondent’s offices and to also work from home if and when
permitted to do so.
[12] The applicant complied with the instruction and resumed his duties on 30
June 2020. In response to the first respondent’s directive of 4 August 2020, the
applicant obtained a medical certificate dated 30 July 2020 in which Dr D. Chauke
only records the following:
‘Sir/Madam
Mr A Mushwana is our client and he has a chronic condition of respiratory
airways viz asthma, the condition falls under those high renders the sufferer
vulnerable to the severe form of covid 19, he therefore qualifies for a special
arrangement at his work place.’
[13] After returning in January 2021, the applicant contracted COVID -19, following
which he submitted a medical certificate which booked him off from work for the
period 11 January 2021 to 21 January 2021. Notwithstanding the return date as
recorded in the medical certificate, the applicant did not return to work after 21
January 2021.
[14] The applicant has submitted that upon being booked off, he attended to
submit his medical certificate from Dr Marais together with the aforementioned
medical certificate from Dr Chauke to Mrs Lindiwe Makaya. Mrs Makaya
subsequently instructed the applicant to submit the medical certificates to Mr
Letsoalo, the first respondent’s safety officer , who the applicant alleges had
instructed the applicant to work from home.
The charges
[15] The applicant was charged with gross insubordination, dereliction of duty and
gross dishonesty. In support of these charges, the first respondent presented the
testimony of Mrs Makaya, the Acting Municipal Manager, and Mr Jakobus van der
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Merwe, the former Senior Manager: Corporate Services, who also served as the
chairperson of the internal disciplinary enquiry, together with documentary evidence.
[16] Mrs Makaya testified that the applicant had failed to comply with her
instructions and had repeatedly missed several virtual meetings. On 8 December
2021, the applicant was directed to attend a meeting; however, he declined, stating
that previous meetings had not been honoured and therefore he would not attend the
one scheduled for that date. The documentary evidence presented further confirms
that the applicant had failed to attend numerous meetings between February 2020 to
September 2021.
[17] In light of the applicant’s persistent absence, it was decided by the first
respondent in response to the two memorandums it had received from Mrs Makaya,
that the ‘ no work, no pay ’ principle would be applied. The uncontested evidence of
Mrs Makaya further demonstrated that , as a result of the applicant’s persistent
absence, the department experienced numerous operational challenges due to a
lack of communication between the applicant and his team. This breakdown in
communication negatively impacted the overall performance of the department.
[18] Mr van der Merwe testified that he chaired the internal disciplinary enquiry,
which the applicant did not attend, citing financial constraints. Mr van der Merwe
confirmed that there was no obligation on the first respondent to provide financial
assistance for the applicant’s attendance and that the applicant had received proper
notice of the proceedings. The enquiry proceeded in the applicant's absence, and he
was ultimately found guilty and dismissed.
[19] In response, the applicant testified that , prior to his dismissal, he reported
directly to Mrs Makaya and had three subordinates reporting to him. He stated that
he had submitted a medical certificate from Dr D . Chauke by placing it under the
he had submitted a medical certificate from Dr D . Chauke by placing it under the
door to avoid physical contact with other staff members. He maintained that he had
complied with the directives from the first respondent and continued to work
remotely. According to the applicant, the lack of further follow -up communications
from the first respondent led him to believe that he was authorised to work from
home. He also confirmed that he received his salary until October 2021.
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[20] The applicant further denied Mrs Makaya’s claim that he had failed to submit
reports. He acknowledged that while the reports may not have been in the specified
format, he believed that Mrs Makaya often gave contradictory instructions. He
concluded by asserting that the first respondent was always aware of his location,
that he had been working from home, and that he was unable to attend the
disciplinary enquiry due to financial constraints.
The award
[21] The Commissioner found that the applicant’s dismissal was both procedurally
and substantively fair.
[22] Regarding substantive fairness, the Commissioner concluded that the
applicant could not reasonably claim to have been working from home while residing
in Tzaneen, approximately 250 kilometres away from his designated workplace.
[23] The Commissioner emphasi sed that employees cannot assert they are
working from home when they are not within reasonable proximity to the workplace.
The applicant’s persistent failure to report for duty, despite multiple instructions to do
so, was deemed gross insubordination. The Commissioner held that dismissal was
an appropriate sanction under these circumstances.
[24] On the issue of the applicant’s failure to comply with instructions to submit
monthly reports, the Commissioner found that the first respondent had sufficiently
demonstrated this failure. Furthermore, the applicant had ample opportunity to
request any relevant information from the first respondent to challenge this claim, but
did not do so. Accordingly, the Commissioner concluded that dismissal was also
appropriate in relation to this charge.
[25] With respect to the charge of dishonesty, the Commissioner found that, given
that the matter was still pending before the Labour Court, there was no valid basis
for the first respondent to allege that the applicant had brought the organisation into
8
disrepute. Consequently, the Commissioner determined that the first respondent had
not proven that the finding or sanction relating to this charge was fair.
[26] As for procedural fairness, the Commissioner held that the applicant had been
duly notified of the disciplinary enquiry but chose not to attend. By failing to
participate, the applicant effectively waived his right to be heard. The dismissal was
accordingly determined to be procedurally fair.
Grounds of review
[27] The applicant holds the view that the Commissioner’s award fails to meet the
standard of reasonableness required by the authorities and denied the applicant a
fair trial for the following reasons:
27.1 The Commissioner’s conclusion that the applicant was guilty of the
charge of gross insubordination was unreasonable for the following reasons:
27.1.1 the charge of insubordination requires for an employee to refuse to
obey a reasonable instruction. During the applicant’s evidence he testified that
he had honoured the first respondent’s instructions by returning to work on 30
June 2020;
27.1.2 the WhatsApp the applicant had received from a colleague to return to
work did not constitute an instruction;
27.1.3 no letter or telephone call was sent or made by the first respondent
requesting him to return to work;
27.1.4 the applicant had been instructed to submit his medical certificate to
the safety officer by Mrs Makaya;
27.1.5 the first respondent had failed to prove that there had been any
instruction given to him to return to work on 30 June 2021;
27.1.6 the applicant had submitted a doctor’s note, and that Mrs Makaya had
not indicated to him that she would not be accepting the doctor’s note;
27.1.7 the first respondent ’s letters were general communication to staff and
cannot therefore be said to be a communication directed at the applicant
specifically ordering him to return to work;
27.1.8 in respect of the second charge relating to dereliction of duties, the
27.1.8 in respect of the second charge relating to dereliction of duties, the
applicant is of the view that the first respondent has failed to prove that there
9
had been any form of dereliction of his duties during the period July 2021 and
January 2022 in that the first respondent had relied on emails from 2019,
which emails do not assist the first respondent in proving the charge of
dereliction of duties , and the Commissioner failed to take this into
consideration; and
27.1.9 the applicant was able to prove that he had submitted a fourth quarter
report in June 2021, which was not disputed by the first respondent and that
he led evidence in chief that he had submitted all his reports, however he was
unable to provide these reports as his work laptop had been taken from him
prior to the disciplinary enquiry, which version was not disputed by the first
respondent.
[28] The applicant considers that the above reasons demonstrate that the manner
in which the Commissioner approached the matter constitutes a review able
irregularity in that he had misconstrued the evidence and issues before him, and that
the outcome was therefore unreasonable. For the reasons set out below, I do not
agree.
Test for review
[29] In a range of cases, starting with Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others 3 and the jurisprudence that followed 4, the test on review is
trite. The Supreme Court of Appeal , in the matter of Herholdt v Nedbank Limited 5,
has defined with greater clarity the standard of review:
29.1 It must be established, either that the arbitrator has misconceived the
nature of the enquiry, or that they arrived at an unreasonable result.
29.2 For an award to be unreasonable, the arbitrator’s conclusion must be
one that a reasonable decision- maker could not reach on the material that
was before the arbitrator.
3 (2007) 28 ILJ 2405 (CC).
4 Cusa v Tao Ying Metal Industries and others 2009 (2) SA 204 (CC); Fidelity Cash Management
Service v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC);
Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA) (Herholdt); Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v C ommission for C onciliation, Mediation and
Arbitration and others [2014] 1 BLLR 20 (LAC) (Gold Fields).
5 Herholdt supra.
10
29.3 Material errors of fact, including errors concerning the weight and
relevance to be attached to certain facts, are only of consequence if their
effect is to render the outcome unreasonable.
29.4 If the arbitrator’s reasons provide a reasonable ‘route’ leading towards
the conclusions, it must follow that the decision is one that could have been
reached (and in fact was) by a reasonable decision- maker. A review
application would, in such circumstances, not succeed.
29.5 Even if there are flaws in the arbitrator’s reasons, a review must still
consider whether, apart from the arbitrator’s reasons, ‘ the result is one a
reasonable decision maker could reach in the light of the issues and the
evidence’
6.
29.6 A review court is required to examine the merits ‘in the round’ only.
[30] It is thus obvious that reasonableness can only be assessed with regard to
the evidence before the decision-maker.
[31] It is uncontroversial that the review test is whether an arbitrator has
misconceived the nature of the enquiry or arrived at an unreasonable result.
7 A result
will be considered to be unreasonable if it is one that a reasonable arbitrator could
not reach on all the material presented to him or her.8
[32] The court on review is therefore not required to consider each and every issue
raised during arbitration. Instead the Court must decide whether the commissioner
considered the principal issue before him, evaluated the material evidence and
concluded that the outcome is reasonable.9
[33] In Head of the Department of Education v Mofokeng & others 10 Murphy AJA
said the following:
‘The determination of whether a decision is unreasonable in its result is an
exercise inherently dependant on variable considerations and circumstantial
6 Ibid at para 12.
7 SA Rugby Union v Watson and others (2019) 40 ILJ 1052 (LAC) (Watson) at para 25.
8 Ibid.
9 Gold Fields supra at paras 15 and 16
10 [2015] 1 BLLR 50 (LAC) at paras 31 and 33.
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factors. A finding of unreasonableness usually implies that some other ground
is present, either latently or comprising manifest unlawfulness. Accordingly,
the process of judicial review on grounds of unreasonableness often entails
examination of inter -related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or effect of the
decision, corresponding to the scrutiny envisioned in the distinctive review
grounds developed casuistically at common law, now codi fied and mostly
specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”);
such as failing to apply the mind, taking into account irrelevant considerations,
ignoring relevant considerations, acting for an ulterior purpose, in bad faith
arbitrarily or capriciously etc. The court must nonetheless still consider
whether, apart from the flawed reasons of or any irregularity by the arbitrator,
the result could be reasonably reached in light of the issues and the evidence.
…’
Further:
Irregularities or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide a compelling indication that
the arbitrator misconceived the i nquiry. In the final analysis, it will depend on
the materiality of the error or irregularity and its relation to the result. Whether
the irregularity or error is material must be assessed and determined with
reference to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry, the delimitation of the issues to be
determined and the ultimate outcome. If but for an error or irregularity a
different outcome would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would point to at
least a prima facie unreasonable result. The reviewing judge must then have
regard to the general nature of the decision in issue; the range of relevant
regard to the general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests impacted
upon by the decision; and then ask whether a reasonable equilibrium has
been struck in accordance with the objects of the LRA . Provided the right
question was asked and answered by the arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity or error
material to the determination of the dispute may constitute a misconception of
the nature of the enquiry so as to lead to no fair trial of the issues, with the
12
result that the award may be set aside on that ground alone. The arbitrator
however must be shown to have diverted from the correct path in the conduct
of the arbitration and as a result failed to address the question raised for
determination..’
[34] As Myburgh and Bosch suggest:
‘This passage makes it clear that errors of fact and law may translate into a
commissioner misconceiving the inquiry, and that this leads to the losing
parties being deprived of its right to a fair trial, which constitutes in itself a
basis for review (without the reasonableness of the outcome having to be
assailed). But in order for it to be held that the Commissioner misconceived
the inquiry, it must be established that the errors of fact or law committed by
him or her cause the commissioner to diverge from the correct and failed to
address the question raised for determination.’
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[35] The primary task of a commissioner is to take into account the totality of the
circumstances. In the present matter, the Commissioner clearly had regard to all of
the relevant factors and committed no reviewable irregularity that has the
consequence that the award under review is so unreasonable that no reasonable
decision maker could reach the decision to which the Commissioner came on the
basis of the available evidence.
[36] It is uncontroversial that the review test is whether an arbitrator has
misconceived the nature of the enquiry or arrived at an unreasonable result.
12 A
result will be considered to be unreasonable if it is one that a reasonable arbitrator
could not reach on all the material presented to him or her.
13
[37] The applicant contends that the award inter alia stands to be reviewed and set
aside on the basis of the Commissioner’s failure to properly and/or adequately
consider the evidence before him , and that the first respondent had failed to prove
the misconduct for the following reasons:
11 A Myburgh, C Bosch, ‘Reviews in the Labour Courts, LexisNexis at p 77.
12 Watson supra.
11 A Myburgh, C Bosch, ‘Reviews in the Labour Courts, LexisNexis at p 77.
12 Watson supra.
13 Ibid.
13
37.1 in respect of the first charge, the Commissioner had failed to take into
consideration that the applicant had been present at work until 30 June 2020
when the country went into the second lockdown period. The applicant had
obtained a medical certificate from Dr Chauke in which it is confirmed that the
applicant suffers from asthma and therefore qualified for a ‘ special
arrangement at his workplace’. In January 2021, the applicant contracted
COVID-19 and he was booked off from 11 January 2021 to 21 January 2021;
37.2 upon being booked off, the applicant submitted his medical certificate
in confirmation of his illness. The applicant further attempted to submit his two
medical certificates to Mrs Makaya , who advised him that he should submit
his medical certificates to Mr Letsoala, the first respondent’s safety officer ,
who, according to the applicant , had authorised him to work from home from
January 2021. Accordingly the applicant submits that he had taken steps to
obtain approval, which steps had not been considered by the Commissioner ;
and
37.3 in respect of the second charge of der eliction of duty , the applicant
submits that the first respondent had only relied on emails for the period of
2019, which do not fall within the time frame that the applicant was char ged
for. Furthermore that he submitted all reports required of him and that in light
of the fact that he was unable to have access to his laptop he was not in a
position to provide proof in confirmation of his version.
Application to the facts
[38] The common cause evidence is that the first respondent had addressed
numerous letters to its employees in which the employees were inter alia specifically
provided with instructions as to what steps would be required to be taken by an
employee in order to be able to work from home on the basis of a comorbidity. On
the applicant’s own version, the applicant has knowledge of these correspondences,
the applicant’s own version, the applicant has knowledge of these correspondences,
yet does not believe that these constitute instructions as they were not specifically
addressed to him.
[39] It is further common cause that the applicant had not obtained the authority as
envisaged in the first respondent’s correspondence to simply work from home on the
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basis of Dr Chauke’s medical note. Furthermore, the applicant relies on unverified
evidence that Mr Letsoala authorised him to work from home, despite the process as
set out in the first respondent’s correspondence, which , as set out above, required
the following:
‘The standard medical certificate will be insufficient for this purpose and will
not be accepted, without the attached short medical report stating the
following details/information:
6.4.1 medical practitioners details;
6.4.2 duration that they have been treating the patient for the stated
condition;
6.4.3 Confirmation that the employee does have a stated comorbidity, which
is catagorised in the broad group as determined by the National department of
Health. If the employee as a patient agrees to provide granular details of
actual sated sub- group condition, then such information can be provided.
Example: Comorbidity: Metabollo Syndrome (which includes poorly controlled
diabetes mellitus as the details, amoungst other conditions);
6.4.4 Confirmation that the stated comorbidity does present a medical risk
and such risk/s must be clearly stated in relation to that comorbidity.
6.4.5 Confirmation of the recommended duration that the employee remains
at risk and is recommended for a managed return to the workplace.
6.4.6 The onus of proof is upon the employee to produce all relevant
requested medical reports as required to assess the risks of the comorbidities
and other vulnerabilities.’ (own emphasis)
[40] The medical certificate of Dr Chauke clearly does not comply with these
requirements.
[41] Furthermore, in relation to the second charge, there is no explanation as to
why the applicant could not have simply subpoenaed the information he required to
disprove the first respondent’s charge of dereliction of duty.
[42] It is trite that if the employer succeeds in establishing a prima facie case that
implicates the employee on a balance of probabilities, the burden then shifts to the
implicates the employee on a balance of probabilities, the burden then shifts to the
employee to prove any defence or explanation they put forward. In practical terms,
15
this means the employee must substantiate their version of events or justification,
which the applicant failed to do.
[43] I am therefore satisfied that the award falls within the bounds of
reasonableness and is not susceptible to review on the grounds advanced in the
review application.
Costs
[44] Although the review application was misguided, I find no legal or equitable
basis to burden the applicant with a costs order. It is trite that in this Court, costs do
not automatically follow the outcome.
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[45] In the premises, I make the following order:
Order
1. Condonation is granted for the late filing of the review application;
2. The review application is dismissed.
3. There is no order as to costs.
H Schensema
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate A Seshoka
Instructed by: Ndobela and Associates
For the First Respondent: No appearance
14 Zungu Premier of the Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC).