THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR58/24
In the matter between:
BRAKFONTEIN MINE Applicant
and
POOLINAH ZANELE MKWANAZI First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
COMMISSIONER JOSHUA MASHEGO NO Third Respondent
Heard: 7 May 2025
Delivered: 3 September 2025
JUDGMENT
ENGELBRECHT, AJ
Introduction
[1] This is an unopposed application to review and set aside an arbitration
award issued by the third respondent (Commissioner), acting in his capacity as
Commissioner of the second respondent, the Commission for Conciliation, Mediation
and Arbitration (CCMA) under case number MPEM7137/23 (Award), and remit the
matter back to the CCMA for hearing afresh before a different commissioner. The
application is made in terms of section 145 and/or 158(1)(g) of the Labour Relations
Act 66 of 1995
1 (LRA).
[2] The service affidavit shows that the first respondent (Ms Mkwanazi) was
properly informed of the litigation. Yet, she offered no opposition.
[3] Of course, the mere fact that the review application is not opposed does not,
in itself, entitle the applicant to relief as a matter of course. The Award may be
reviewed and set aside only if there are cogni sable grounds to justify judicial
intervention. The applicant (Brakfontein) retains the duty to establish that the Award
is reviewable on recognised legal grounds.
2
[4] Before this Court, Brakfontein contends that the Commissioner committed
gross misconduct in relation to his duties as an arbitrator, committed a gross
irregularity in the arbitration proceedings, exceeded his powers, failed to apply his
mind, and/or committed a material error of law. In the result, Brakfontein says that
the Commissioner reached a conclusion that no reasonable decision- maker could
have reached in the circumstances of the case.
Relevant facts
[5] At the time of her dismissal, Ms Mkwanazi was employed as a Plant and
Weighbridge Supervisor. Her duties included overseeing that the procedures for
trucks entering and exiting the Brakfontein property were followed, including
1 Labour Relations Act 66 of 1995, as amended.
2 See, for example, MEC Public Works and Infrastructure Free State Provincial Government v
GPSSBC and Others (JR857/2017) [2018] ZALCJHB 164 at para 4.
ensuring that trucks entering Brakfontein’s premises were recorded on fleet lists.
Whenever trucks arrived at Brakfontein’s gate, Ms Mkwanazi was supposed to be
informed of their details via WhatsApp message or radio communication, and she
would then have to notify the Front -End-Loader Operators about the arrival of the
trucks, and ensure they loaded the correct material. Additionally, Ms Mkwanazi was
required to ensure that trucks loaded with material were reflected on Brakfontein’s
fleet list.
[6] Ms Mkwanazi was on duty on the night of 25 June 2023. She did not report
any incident during or after her shift. Then, on 29 June 2023, Brakfontein’s security
manager received a tip-off that coal had been stolen, prompting him to review CCTV
footage. This revealed that, during Ms Mkwanazi’s shift on 25 June 2023, six
additional trucks, which did not appear on the fleet list, accessed the Brakfontein
premises, were loaded with coal, and left the premises without authori sation.
According to the evidence of Brakfontein’s security manager,
‘if spot checks had been done or i f she just had a look at the trucks comin g in
and the fleet list where they were loading and that, this could have possibly
been prevented”. His evidence was that “she would have to be in the area
where the trucks are busy loading and going over the weighbridge. The entire
area is under the supervisor’s control.’
Ms Mkwanazi’s own evidence was that the ‘loading area’ was her ‘priority’ and
that she saw it ‘mostly’, that she used to pass trucks as she moved around the
operation. Indeed, she conceded that it is part of the duties of the supervisor
to ensure that the trucks are loaded correctly. This echoed the evidence of
Brakfontein’s Plant Manager, who also explained that:
‘The responsibilities of the supervisors are to make sure that in the absence of
management the operation runs smoothly, there are no problems. If there are
any suspicions o r any diversions, they need to report it immediately. And on
any suspicions o r any diversions, they need to report it immediately. And on
our side, there has been said although it was not on a written circular but it
has been said before that there is complaints that coal is being stolen, coal is
missing, we need to be vigilant. So now, as a supervisor on shift, she needed
to be vigilant to make sure that nothing happens on her shift . She needed to
be, to stand guard because that is what we need to do. Without the company
being, let me say, run properly, at the end of the day the company is going to
close up and we are all going to lose.’
[7] Indeed, the P lant Manager’s evidence was that Ms Mkwanazi had, not long
before this incident, been given a final written warning when the wrong material was
loaded onto a truck, so she was well aware that she needed to be vigilant. It would
appear that she was not:
7.1 According to the evidence before the Commissioner, Ms Mkwanazi was
responsible to control an area of about 500 square metres, and she would be
able to see different parts of the plant even if she were in different areas
throughout the night, although the Plant Manager did concede that
‘If you are at the waiting area at the wash plant right at the back, you cannot
see your stockpile area’
7.2 The undisputed evidence before the Commissioner was that six trucks
entered the Brakfontein premises that night, loaded coal and exited, even
though they were not on the fleet list. That was in addition to 13 trucks for
which access sheets were registered on the night in question.
7.3 Given those facts, the rhetorical question Brakfontein asked was: how
was it possible that, at no stage, Ms Mkwanazi noticed that coal was being
loaded on trucks that were not on the fleet list, and whose entry had not been
reported to her on the WhatsApp group? Even if she could not be held
responsible for not being informed by the weighbridge that six trucks
unauthorised trucks had entered and exited fully loaded, given that she was
‘supposed to be proactive or actively monitor their area’ , how did the theft go
undetected?
[8] Ms Mkwanazi was charged with dereliction of duty and/or gross negligence
in that she
‘failed in her duties as a supervisor to ensure that standard operating
protocol/procedures were followed by ( her) subordinates, resulting in the
trucks that were not on the fleet list as per the customer order and TITAN
system being loaded with washed coa l [sic]. This resulted in coa l [sic] losses
system being loaded with washed coa l [sic]. This resulted in coa l [sic] losses
equivalent to R173 400.00 to the company.’
The second charge against Ms Mkwanazi was
‘
[9] Following a disciplinary hearing, Ms Mkwanazi was dismissed on 2 October
2023. The weighbridge clerk and one of her assistants were also dismissed as a
result of the events of the night of 25 June 2023. An appeal against her dismissal
was dismissed on 27 October 2023. By that stage, Ms Mkwanazi had already
referred a dispute of unfair dismissal to the CCMA. Her position was that dismissal
was not an appropriate sanction in the circumstances of the case.
[10] Pursuant to the arbitration before him, t he Commissioner agreed. He
determined that the dismissal was substantively unfair and granted compensation
along with reinstatement. In reaching this conclusion, the Commissioner held the
view that the loss of the coal resulted from organised corruption that did not involve
Ms Mkwanazi. Since the Commissioner believed that the theft was executed by a
syndicate, he concluded that it would have been ‘difficult to pick up any suspicion’. In
the Commissioner’s opinion, Ms Mkwanazi carried out her duties to the best of her
ability on the night in question, especially considering that she did not have access to
transport throughout the night.
The review test
[11] The test for review is well known. In Gold Fields Mining SA (Pty) Ltd (Kloof
Gold Mine v C ommission for Conciliation, Mediation and Arbitration and others,
3 the
Labour Appeal Court (LAC) held that:
‘In short: A reviewing court must ascertain whether the arbitrator considered
the principal issue before him/her: evaluated the facts presented at the
hearing and came to a conclusion that is reasonable.’
[12] In Head of Department of Education v Mofokeng and others,
4 the LAC said:
‘[31] The determination of whether a decision is unreasonable in its result is
an exercise inherently dependent on variable considerations and
circumstantial factors. A finding of unreasonableness usually implies that
3 [2014] 1 BLLR 20 (LAC) at para 16.
4 [2015] 1 BLLR 50 (LAC) at paras 31- 32.
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 defect of the decision, corresponding to the scrutiny envisioned
in the distinctive review grounds developed casuistically at common law, now
codified and mostly specified in s 6 of the Promotion of Administrative Justice
Act ( PAJA): such as ailing to apply the mind, taking into account irrelevant
considerations, ignoring the relevant considerations, acting for an ulterior
purpose, in bad faith, arbitrarily or capriciously etc. The court must
nonetheless still consider whether, apart from flawed reasons of or any
irregularity by the arbitrator, the result could be reasonably reached in the light
of the issues and the evidence. Moreover, judges of the Labour Court should
keep in mind that is not only the reasonableness of the outcome which is
subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not
misconceive the enquiry or undertake the enquiry in a misconceived manner.
There must be fair trial of the issues.
[32] …. Mere errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: f laws in the reasoning of the
arbitrator, evidence in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material factors must be assessed with the
purpose of establishing whether the arbitrator has undertaken the wrong
enquiry, undertaken the enquiry in the wrong manner or arrived at an
unreasonable result.’…
Evaluation
[13] The starting point in the evaluation of the review before this Court must be
the exposition of Justice Prinsloo in National Union of Metalworkers of South Africa
and Another v Commission for Conciliation Mediation and Arbitration and Others
5
(the Lumka case):
5
(the Lumka case):
5 (2023) 44 ILJ 1575 (LC)
‘…an employee is obliged to act to protect the interests of the employer and
when the employee fails to do so and the failure constitutes serious
misconduct, the sanction of dismissal will be fair, as an employer is entitled,
as an operational imperative, to rely on its employees to act in good faith and
to protect the interests (which includes property) of the employer. In such a
case, dismissal becomes an operational imperative and way of managing
risk”.
6
This, on the basis of the LAC’s explanation in De Beers Consolidated Mines
Ltd v Commission for Conciliation, Mediation and Arbitration and Others
7 (De
Beers) that
‘Dismissal is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational response to risk
management in the particular enterprise. That is why supermarket shelf
packers who steal small items are routinely dismissed. Their dismissal has
little to do with society’s moral opprobrium of a minor theft; it has every thing to
do with the operational requirements of the employer’s enterprise.’
[14] Mining operations require substantial investment and they produce valuable
outputs. Mining companies are vulnerable to safety and security threats.
Trespassing, illegal mining, and theft of minerals and equipment are genuine
concerns. Access control and effective security measures are crucial to safeguarding
the assets of mining companies. There can be no doubt that the operational
requirements of a mine demand that a supervisor that is responsible for overseeing
security and safety issued, such as Ms Mkwanazi, must execute that duty with due
care, to prevent loss.
[15] Upon full evaluation of the record before this Court, it is evident that, at no
point, Brakfontein’s case was that Ms Mkwanazi turned a blind eye because she was
part of a syndicate involved in stealing coal from it. Its case was that Ms Mkwanazi
was under a duty to make it her business to verify that trucks that were loading coal
was under a duty to make it her business to verify that trucks that were loading coal
were authorised to do so, and that coal was being loaded correctly.
6 Lumka case at para 54
7 (2000) 21 ILJ 1051 (LAC) at para 22.
[16] In essence, the Commissioner asked the wrong question. Unreasonably, he
focused on the fact that Ms Mkwanazi could not possibly have been in all places at
the plant at once. The question he did not ask, and which he ought to have asked,
executing his duties as a reasonable Commissioner, was this: how was it possible
that, at no stage, Ms Mkwanazi noticed that coal was being loaded on trucks that
were not on the fleet list, and whose entry had not been reported to her on the
WhatsApp group? Bearing in mind her undisputed responsibilities and the lay -out of
the area for which she was responsible, the Commissioner ought to have asked the
question whether it constituted a gross dereliction of Ms Mkwanazi’s duties to have
completed her shift without noticing the irregularities on the night in question.
[17] Following the reasoning of the Commissioner, Ms Mkwanazi could not be
held responsible for not being informed by the weighbridge that a truck had entered
and exited fully loaded. But that was not the end of the matter. Reasonably, she
could be expected, in the execution of her duties, to have sufficiently executed her
oversight role to have noticed and checked the additional trucks that had not been
reflected on the fleet list or reported as having entered. This, in light of the evidence
that ‘the supervisor is supposed to be proactive or actively monitor their area’ . The
assumption from which the Commissioner appears to have proceeded appears to be
that she diligently performed her duties, even though it would appear that at no stage
attended at the loading site where six trucks were loaded, to check whether the right
product was being loaded and whether the trucks were indeed lawfully on site.
[18] Plainly, the Commissioner failed to consider all relevant evidence. Not only
that, his evaluation was flawed by legal error, as he imported a standard of proof for
demonstrating gross dereliction of duty that implied Ms Mkwanazi had knowledge of
demonstrating gross dereliction of duty that implied Ms Mkwanazi had knowledge of
theft occurring before concluding she was not grossly negligent in failing to notice
that six unauthorized loads of coal left Brakfontein’s premises in question. When a
supervisor has the duty to oversee security, a lack of knowledge about a security
breach cannot be used as an excuse; the very fact that someone with such duties
does not notice what is happening and fails to question it should be enough to
establish that they have grossly failed in their responsibilities. As the LAC explained
in LAC in National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section),8 albeit in the context of consistency:
‘As regards the dereliction of duties by his subordinates, if any acts of
misconduct were to be proven against any particular individual, it remains
plain that they had no managerial role and it is illogical to draw a comparison
as contemplated by the factor of inconsistency. Moreover, it would be a
paradox if the appellant could legitimately invoke the failure of the very
subordinates he was accountable to manage effectively to exonerate or
mitigate his managerial neglect by managing them ineffectively .’ (own
emphasis)
‘…Overall, the Arbitrator failed to appreciate that gross negligence or gross
dereliction of duties or a material breach of a fiduciary duty will, in appropriate
circumstances, be sufficient to destroy the trust and confidence which forms
the bedrock of the employment relationship, particularly where an employer is
dealing with a senior employee, or one who is placed in a particular position of
trust, but who does not demonstrate remorse…’9
[19] The outcome was unreasonable, because the Commissioner made errors.
Brakfontein is entitled to relief that it seeks.
[20] In the circumstances, I make the following order:
Order
1. The arbitration award issued by the third respondent, acting in his
capacity as Commissioner of the second respondent on 3 December 2023
under case number MPEM7137/23 is reviewed and set aside.
2. The matter is remitted back to the second respondent to be heard de
novo by a commissioner other than the third respondent.
3. There is no order as to costs.
MJ Engelbrecht
Acting Judge of the Labour Court of South Africa
8 (2014) 35 ILJ 2406 (LAC) at para 28.
9 See Inxuba Yethemba Municipality v Msweli & Others (2025) 46 ILJ 1725 (LC) at para 124.
Appearances
For the applicant: H Wissing
Instructed by: H Wissing Inc
For the respondents: No appearance