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[2025] ZALCCT 91
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Matyholo v South African Local Government Bargaining Council and Others (C322/2021) [2025] ZALCCT 91 (29 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no:C322/2021
Not
reportable
In
the matter between:
SIMPHIWE
MATYHOLO
Applicant
and
THE
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
COMMISSIONER
GORDON
EDWARDS
Second
Respondent
THE
CITY OF CAPE TOWN
Third
Respondent
Date
of Hearing:
27 June 2025
Date
of Judgment:
29 September 2025
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 30 September
2025.
JUDGMENT
BARTHUS
AJ
Introduction
[1]
The Applicant launched a review application on 1 June 2022 against
the Second Respondent's (“Commissioner”)
arbitration
award dismissing the Applicant, an Inspector, Traffic Services, for
assaulting a member of the public.
[2]
The Applicant objected to the late filing of the Third Respondent’s
answering affidavit. The answering papers were
4 months late.
[3]
The Third Respondent’s explanation for the delay was primarily
focused on difficulties related to securing legal
services. Every
period of delay was not explained in the founding papers for
condonation but was more fully described in the replying
affidavit.
[4]
The Applicant argued that the case for condonation (as in any
application) should have been made out in the founding papers
and not
in reply.
[5]
The Respondent did not address the court on prospects of success in
its papers, save to assert that the Applicant has
not made out a case
to succeed in the review application. Prejudice against the Applicant
was not dealt with either. The application
for condonation and the
review were heard together.
[6]
The Respondent did not make out a case for condonation that meets the
requirements to satisfy such an indulgence, and
the condonation
application is therefore deficient.
Contextual
Background
[7]
Turning to the merits of the review application, the Applicant was
charged with assaulting, threatening, and stabbing
(this relates to
the third charge and was disputed by the Applicant) a member of the
public for the theft of a television set he
believed had been stolen
by the member of the public. These events transpired while the
Applicant was off duty.
[8]
The Applicant conceded up front that “
the findings made by
the Commissioner on the evidence fall within the band of
reasonableness
.” There is, therefore, no need to
delve into the reasonableness of the findings on the merits since
there is no challenge
to this portion of the award.
[9]
The Applicant’s grounds of review are summarised as follows:
a)
The
Commissioner erred in finding that there was a nexus between the
misconduct and the employment relationship despite a lack of
evidence
produced by the Third Respondent in this regard. the Applicant relied
on the case of
Edcon
Limited v Cantamessa and Others
,
[1]
and argued that it was incumbent on the Employer to lead evidence
that the conduct complained of had the effect of destroying or
seriously damaging the relationship of the employer and employee.
b) The Commissioner
entered the fray by considering Regulations and Legislation which
were not submitted by the Third Respondent
and for which the
Applicant was not given the opportunity to make submissions, thereby
committing an irregularity.
c) The Commissioner
failed to state expressly that the Applicant’s dismissal was
substantively and procedurally fair,
and therefore the Commissioner
misconstrued the nature of the dispute.
The
Applicant argued that the Commissioner’s reference to
Regulations and the Code of ethics to conclude that “
there
existed a causal link between the offence committed and the type of
work of the Applicant as a peace officer
”, was irregular
since it was not presented in argument by the Third defendant but by
the Commissioner entering the fray.
Discussion
[10]
The Commissioner, in his award, dealt comprehensively with the
connection between the offence committed and the employment
relationship. In the Edcon case (which was cited by the Applicant
before the Commissioner), the Court held that: “…
Therefore, having a good name is an essential asset or quality of
Edcon to the general public. Inasmuch as Buyers of Edcon can often
remain anonymous to the general public, once their identities are
exposed to the general public, it must only be in a positive
and not
negative environment or circumstance; otherwise, such disclosure
imposes a risk that the name of Edcon may be brought into
disrepute.
Therein lay the connection between the conduct of Ms Cantamessa with
the relationship she had with her employer. She
had to avoid being a
controversial employee in the public's eyes where she could be
associated with Edcon.”
[11]
The Court further held that Cantamessa’s conduct exposed Edcon
to a risk of reputational damage, and the fact that
no damage was
proved by Edcon was not a valid defence.
[12]
Similarly, in this case, the Applicant, as a municipal member and a
law enforcement officer, had an obvious duty not
to conduct himself
in a manner that would bring the Third Respondent into disrepute and
especially not to engage in the unlawful
act of assault, where he was
a custodian of public peace and law and order. Within this context,
the Third Respondent did not need
to prove that the employment
relationship had been destroyed. This is so because of the
established nexus between the misconduct
and the nature of the
employment. Third Respondent submitted that the Applicant cannot be
trusted to perform the duty of a Traffic/Peace
officer after having
taken the law into his own hands. The conclusion is logical.
[13]
It is therefore reasonable that the Commissioner had difficulty
understanding the Applicant’s assertion that it
was incumbent
on the Employer to lead evidence that the misconduct destroyed or
seriously damaged the employment relationship.
[14]
The Third Respondent cited the Municipal Systems Act in its
submissions before the Commissioner, but not the SAPS Regulations
nor
the provisions of the National Road Traffic Enforcement Code (NRTEC).
[15]
The
Commissioner’s reference to Regulation 22 of the SAPS
Regulations
[2]
, Schedule 2 of
the Municipal Systems Act 32 of 2002
[3]
and the NRTEC
[4]
was to
establish whether any internal regulations and or legislation existed
which would have regulated the Applicant’s off-duty
conduct.
[16]
The question then is whether the Applicant, who was a Policeman for 8
years and a Traffic Officer for 13 years, could
be held to the
standard of a law enforcement officer while off-duty as prescribed by
the Act, Regulations and NRTEC and whether
the Applicant should, in
any event, have been aware of the code of conduct. The question can
only be answered in the affirmative.
[17]
In the
present case, the Commissioner found that the Applicant, through his
conduct, acted in a manner that breached Regulations
and legislation,
and that, as a law enforcement officer, he should not have been
guilty of breaking the law. Of course, it is trite
that a court or
arbitrator may
mero
motu
raise a question of law even if neither of the parties has pleaded
it. There may also be instances where the court may
mero
motu
raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case
[5]
.
In the present matter, the arbitrator was seized with determining
whether there was a link between the Applicant’s off-duty
conduct and his responsibilities as an officer of the law- this was a
central issue to the dispute and formed part of the Applicant’s
defence to the charges against him.
[18]
Finally, in the award, the Commissioner set out the onus in dismissal
disputes and clearly understood that it was incumbent
on the Third
Respondent to show that the dismissal was substantively and
procedurally fair. The Applicant takes issue with the
fact that in
his conclusion, the Commissioner does not specifically state that the
dismissal was procedurally and substantively
fair, but instead
states, “
In the premises, the Applicant’s claim of
unfair dismissal is dismissed.”
Despite the clumsy wording,
what can be easily inferred from the award is that the Commissioner
found the dismissal both substantively
and procedurally fair and from
the award, it is clear that the Commissioner did not reverse the onus
as suggested by the Applicant’s
attorney.
[19]
Moreover, the Applicant was legally represented by Mr Aarninkhof, who
did not raise any material issues in respect of
the procedural
fairness of the dismissal.
[20]
It is trite
that adjudicating the severity of misconduct in context is a power
conferred on an arbitrator. The law is clear: the
choice of sanction
made by the arbitrator must stand unless it is demonstrable that no
reasonable arbitrator could have reached
that conclusion
[6]
. In
this matter, there is no demonstrable evidence that no reasonable
arbitrator could have reached the conclusion reached
by the
arbitrator. The result is that there is no irregularity in how the
arbitrator assessed the appropriateness of the sanction
and/or
fairness of the dismissal.
[21]
In conclusion, therefore, I am satisfied that the Commissioner
understood the nature of the enquiry he was called to
determine,
properly evaluated the evidential material placed before him and
reached a conclusion which falls within a band of reasonable
decisions and is correct on the law.
In
the premises, the following order is made:
[1] The Third
Respondent’s condonation application is dismissed.
[2] The review
application is dismissed.
[3] There is no
order as to costs.
Barthus
AJ
Acting
Judge of the Labour Court of South Africa
Representatives:
For
the Applicant: Brett Aarkinkhof
Instructed by Aarkinkhof
Attorneys
For
the Respondent: Adv Daniel Nyathi
Instructed by Hanekom
Attorneys
[1]
(2020)
41 ILJ 195 (LC)
[2]
The
Regulation prohibits behavior unbecoming or improper, which would
undermine the confidence of the public in the police.
[3]
Schedule 2(d) of the Act provides that a staff member of the
Municipality must at all times act in the best interest of the
Municipality and in such a way that the integrity and credibility of
the Municipality is not compromised.
[4]
The
Code provides that engaging in action on or off duty that brings the
Road Traffic Enforcement Authority into disrepute or
impairs the
operation of efficacy of the Road Law Enforcement Authority is
prohibited.
[5]
Fischer
v Ramahlele (203/2014)
[2014] ZASCA 88
(4 June 2014)
[6]
See
TMT
Services & Supplies (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration and Others
2019
(40) ILJ 150 (LAC) at para 21; and
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
2000
(2) SA 24
(CC)
at 178 and 179.