THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: JR1428/22
In the matter between:
PATRICK ZINGENI Applicant
And
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL First Respondent
RONALD MUDAU Second Respondent
DEPARTMENT OF CO-OPERATIVE GOVERNANCE Third Respondent
MUNICIPAL INFRSTRCTURE SUPPORT AGENCY Fourth Respondent
Heard: 12 August 2025
Delivered: 18 September 2025 (This judgment was handed down
electronically by emailing a copy to the parties. The 18 September 2025 is
deemed to be the date of delivery of this judgment).
JUDGMENT
RAMJI, AJ
2
Introduction
[1] This case concerns an employee (the applicant) appointed to a senior
government post in circumstances where: (a) he does not have a matric
certificate; (b) he also did not purport to have a matric certificate; (c) the
employer’s external verification service provider confirmed that the matric
certificate could not be verified prior to the employee’s appointment ; (d) the
applicant produced a statement of matric results ; (e) the employer does not
challenge the validity of the applicant’ s tertiary qualifications ; and (f) the
applicant states and believes that he matriculated and has subm itted all
documents which he submits reflects this.
[2] The issue is where blame lies. The employer argues that it lies with the
respondent for not having a matric certificate and for misrepresenting this.
The applicant argues that the employer knew that he did not have a matric
certificate, that he did not misrepresent this, that it employed him anyway and
therefore had no right to dismiss him for this reason, let alone dismiss him
summarily. He also argues that a matric certificate was not a listed job
requirement. The post is for a chief civil engineer of the province.
[3] The dismissal was found procedurally unfair and substantively fair. The
applicant represented himself in an application to review an arbitration award
made by the second respondent (the Commissioner) on 30 May 2022 under
the auspices of the first respondent (the Council) . The third and fourth
respondents oppose this application (the Department and MISA, respectively ,
and the respondents, collectively).
[4] In the alternative to his review in terms of section 145 of the LRA, the
applicant submitted that the decision is reviewable in terms of section
158(1)(g) of the LRA. The applicant’s review grounds are all covered by
section 145(2) of the LRA.
1 He has no review grounds beyond the
1 Section 145(2) of the LRA provides for the review of an arbitration award where –
‘(a) … the commissioner
‘(a) … the commissioner
(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner’s powers; or
(b) that an award has been improperly obtained.’
3
Commissioner allegedly committing gross irregularities and exceeding his
powers. He has laid no basis to rely on section 158(1)(g) of the LRA. I
therefore consider the review application solely in terms of section 145 of the
LRA.
[5] The applicant w as employed by MISA, a government component within the
Department. He was summarily dismissed by MISA through written
correspondence on 16 March 2020. The applicant referred an unfair dismissal
dispute to the Council. The Commissioner found that the applicant’s dismissal
was substantively fair but procedurally unfair and awarded him two months ’
salary as compensation.
[6] The applicant challenges the finding of substantive unfairness and the amount
of compensation awarded to him by the Commissioner based on the finding of
procedural fairness.
[7] This judgment is structured as follows:
7.1. The respondents’ point in limine that the application has been archived
and therefore is not properly before the Court in the absence of a
reinstatement order by the Court.
7.2. The respondent s’ point in limine that the founding affidavit which
accompanied the notice of motion was not substantially compliant with
the Justice of the Peace and Commissioners of Oaths Act 16 of 1963
(the Oaths Act) and therefore this matter is not properly before the
Court.
7.3. The background to the matter, from the applicant’s appointment to his
summary dismissal.
7.4. A summary of the arbitration proceedings and the arbitration award.
7.5. The applicant’s review grounds with reference to reasonableness.
7.6. Relief.
Archiving
4
[8] The respondents submitted that the case was arc hived and regarded as
having been dismissed.
[9] They argued that clause 16.1 of the Practical Manual applied because there
was a directive from the Judge President to file heads of argument, which was
issued on 15 March 2023. It is undisputed that the applicant did not meet the
15-day deadline. Instead, the respondent first filed heads of argument on 28
February 2024, and the applicant then filed his heads of argument on 8 March
2024.
[10] The respondent is incorrect. The directives to file heads of argument were the
Registrar’s directives and not a judge’s directives , and so the applicants
cannot rely on clause 16.1 of the Practice Manual. No further submissions
were made on other aspects of the Practice Manual relating to archiving.
[11] The next question is the application of clause 11.2.7 of the Practice Manual2,
although this was referred to in passing by the respondents and not argued
fully. It provides:
‘An applicant in a review application is therefore required to ensure that all the
necessary papers in the application are filed within twelve (12) months of the
date of the launch of the application (excluding Heads of Arguments) and the
registrar is informed in writing that the application is ready for allocation for
hearing. Where this time limit is not complied with, the application will be
archived and be regarded as lapsed unless good cause is shown why the
application should not to be archived or be removed from the archive’ (Own
emphasis)
[12] It is correct that t here is no sign from the court file that the applicant informed
the Registrar that the application was ready for allocation.
[13] The Practice Manual does not contain deeming provisions for the archiving of
matters, in contrast to the deeming provision for the withdrawal of a review
application when a record is not filed within the prescribed period.
Nevertheless, the Labour Appeal Court (LAC) has held that –
Nevertheless, the Labour Appeal Court (LAC) has held that –
2 Practice Manual of the Labour Court of South Africa, effective 2 April 2013, repealed with effect from
July 2024.
5
‘the archived case acquires a peculiar status which requires the delinquent
party to justify why it should be reinstated and thereafter be entertained by a
court in the wake of a lack of expeditious prosecution. The Labour Court a
quo, treated the ‘archiving’ as an administrative act, not as a matter of status.
The significance of this distinction between status and an administrative act is
that the acquisition of a peculiar status means that upon a given event, the
status automatically adheres to the case.’3
[14] The position taken in E-Tradex (Pty) Ltd t/a Global Trade Solution v Finch and
Others4 (E-Tradex) is distinguishable from this case.
14.1. In E Tradex, the LAC rejected the Labour Court’s finding that the
Registrar’s act of setting a review application down for hearing meant
that the case had not been archived and that the enrolment by the
registrar ‘resuscitated’ the case.5
14.2. This case is different in respect of the enrolment. After considering the
file, and after heads of argument had been exchanged, on 1 August
2024, Molahlehi AJP issued directives to the Registrar to enrol the
review application on the opposed motion roll to all parties. In this
respect, the enrolment of the applicant’s case accords with the LAC’s
requirement for intervention by the Court, expressed in E Tradex:
‘There can be no plausible doubt that once the case is “archived” it
requires the intervention of the court to “un-archive” it. There is no
room to read into these provisions a role for the registrar to
“resuscitate” the case.’ (Own emphasis)
14.3. It was not the Registrar’s decision, but a judge’s directive that triggered
the enrolment. That is ‘the intervention of the court.’
3 E Tradex (at para 11) is also significant that the new rules provide for the Registrar ‘must first issue
a notice affording the initiating party 15 days to take a further step ’, suggesting that an administrative
step is now required, to the extent that one was not previously required (see Rule 7(2) of the new
Rules).
4 [2022] ZALAC 106; (2022) 43 ILJ 2727 (LAC).
5 E Tradex supra at para 8.
6
14.4. I have also considered the more recent decision in South African
Commercial Catering and Allied Workers’ Union v Putini (Putini),6
where the LAC , considering the use of the archiving provisions of the
Practice Manual as a tactical ploy to frustrate an employee, as the
employer delays in prosecuting its review . First, it noted that the
Practice Manual promotes a ‘spirit of cooperation between litigants and
the granting of an indulgence to each other.’7 It went on to hold:
‘The drafters of the Practice Manual never envisioned a situation
where its provisions would be used by parties as a tactical ploy.
Conversely, the provisions of the Practice Manual call for flexibility in
their application when that is necessary to promote their purpose.’
8
14.5. Although t he respondents’ conduct was not a tactical ploy, it was a
misstep that propelled the matter forward.
14.6. The respondents had the option of writing to the Registrar to request
that the file be archived, alternatively, to leave the matter and raise the
point in limine should the applicant have sought to set the matter down
for hearing, based on E Tradex. Instead, they chose, legally advised, to
file heads of argument , leading to the applicant filing his heads of
argument, and Molahlehi AJP issuing directives to the Registrar to
enrol the matter.
14.7. I have also considered that the applicant filed all papers and the record
timeously, and that he has not been legally represented in this Court.
14.8. Perhaps a judge would not have directed the enrolment of the matter
had the respondents not filed heads of argument, but the fact is that
after the file was automatically archived in terms of E Tradex , there
was ‘the intervention of the court’.
[15] For these reasons, the first point in limine is dismissed.
6 [2025] ZALAC 11.
7 Putini supra at para 12.
8 Putini supra at para 13.
7
Commissioning founding affidavit
[16] The applicant filed his review application on 27 July 2022. He was
representing himself in this Court from the outset. The notice of motion wa s
signed on 26 July 2022. It is accompanied by a founding affidavit. The
respondent pointed out the following issues with the founding affidavit.
16.1 It is not initialled at the foot of every page by either the applicant or the
Commissioner of Oaths.
16.2 There is a discrepancy between the date and place at which the
affidavit was deposed: the Commissioner’s stamp states that the
affidavit was deposed to on 27 July 2022 in Cambridge, Eastern Cape.
The certification ‘template’ at the end of the affidavit is typed stating
that the affidavit was deposed to on 26 July 2022 at Johannesburg.
[17] I was referred to the test in S v Msibi
9 on whether there has been ‘ substantial
compliance with the requirements’ of the Oaths Act.
[18] The reference to S v Msibi is instructive but not illustrative. Further
consideration of t he Oaths Act, the regulations and the case law favour the
applicant:
18.1. The Oaths Act is silent on how any affidavit should be commissioned.
The reference to it therefore does not take the respondents’ case
anywhere.
18.2. The Regulations Governing the Administering o f an Oath or
Affirmation10 (the regulations) are relevant. The affidavit provides that
the applicant “ acknowledge[d] that he knows and understand the
contents of this affidavit, had no objection to taking the oath,
considered the oath binding on his conscience, and the
regulations…having been fully complied with” . Regulations 1(1) and 2
are therefore complied with.
9 1974 (4) 821 (T).
10 GNR 1258 of 21 July 1972.
8
18.3. The applicant signed the affidavit ostensibly in the presence of the
commissioner. Regulation 3(1) is therefore complied with.
18.4. Below this, the commissioner (a police sergeant) signed, provided his
designation and name, and provided the date and place of signature.
Regulation 4 is therefore complied with.
[19] Every relevant provision of the regulations has been complied with in ‘ such a
way as to give effect to the purpose of the legislator ’.
11 Courts regularly
exercise their discretion to condone any non- compliance with the formalities
of this legislation. 12 The discrepancy in date and place is clearly a clerical
error, and not a substantial error. It is condoned.
[20] The Gauteng Provincial Division has condoned failure to initial every page,
referring to the practice as ‘ desirable’ but not a requirement of the
Regulations.
13 In the above matter, the court made the following point:
‘If there is doubt as to whether the details that appears on that certificate is
not that of the commissioner of oaths, it is for the party who had the doubt to
challenge and substantiate that.’14
[21] This omission is therefore also condoned, given that the applicant has not
been legally represented in these proceedings, the affidavit was being
commissioned at a police station and not before an attorney, and the
respondents did not aver or submit that they had any doubt that this was the
applicant’s affidavit.
[22] The second point in limine is dismissed.
Background
MISA advert for chief civil engineers
11 S v Munn 1973 (3) SA 734 (NC) at 737.
12 Ibid. See more recently: Van As N.O. and Others v Jacobs N.O. and Another [2022] ZAGPPHC 928
at para 13.
13 Mailula , Matsi Law Chambers at paras 20 to 21.
14 Ibid.
9
[23] During 2017, MISA advertised positions for chief civil engineers. The job
advert requirements were:
‘An appropriate degree in Civil Engineering (B Eng/ BSc Eng/ BTech Eng) or
relevant qualification, with six years’ post-qualification experience in Civil
Engineering and registr[ation] as a professional Engineer/Engineering
Technologist.’
[24] Further core competencies were then listed under requirements. There was
no requirement for a matric certificate or even matriculation.
[25] As with all positions advertised through the Department of Public Works, the
advert contained the following note:
‘[The application] should be accompanied by a comprehensive CV, ID and
certified copies of qualifications… It is the applicant’s responsibility to have
foreign qualifications evaluated by the South African Qualifications
Authority… Incomplete applications… will not be considered.’
The applicant’s job application
[26] The applicant submitted his job application on 27 September 2017. This
included the completed Z83 form, his CV and supporting documents. It is
common cause that the applicant did not submit a matric certificate with his
job application and that he does not have one.
[27] The applicant did, however submit : (a) a ‘Statement of Results’ for matric
examinations issued by the South African Certification Council in December
1993; (b) a B Tech (Engineering Civil – Urban) certificate and a B Tech
(Engineering Civil – Transportation) certificate awarded by the former
Technikon Witwatersrand with effect from 2000; (c) a BSc Honours certificate
in Applied Science: Transportation Planning awarded by the University of
Pretoria in 2014; (d) a certificate of competency in Management of Ci vil
Engineering Construction Processes in 2008; (e) a certificate of registration as
a Professional Engineering Technologist with the Engineering Council of
South Africa since 2009, and (f) a certificate showing that he is an elected
South Africa since 2009, and (f) a certificate showing that he is an elected
member of the South African Institute of Civil Engineering since 2016.
10
[28] The applicant did not withhold any documentation in applying for the job.
Respondents’ conduct in appointing the applicant
[29] Prior to appointing the applicant, the respondents outsourced pre- screening
tasks and received the following:
29.1. A pre -employment screening memorandum from the Department of
Co-Operative Governance dated 24 January 2018 which reflected
criminal and credit records of applicants. The last paragraph of the
memorandum states, ‘ The pre- employment screening is valid until a
candidate is appointed. The appointed candidate should complete a
Z204 form that must be forwarded to the Vetting Unit in order to
conduct necessary vetting investigation, at the end of which relevant
security clearance will be considered.’ SAQA was task ed with vetting
qualifications.
29.2. A verification document complied by SAQA (the SAQA report), dated
24 January 2018 which indicated that the applicant’s tertiary
qualifications had been verified but that the matric certificate could not
be verified. At the head of the document, SAQA states, ‘ The rows
indicating ‘Yes’ have been verified. Decisions concerning appointment
rest with the client’ (own emphasis).
[30] These documents formed part of the respondents’ arbitration bundle.
[31] On 7 March 2018, after the SAQA report was sent to MISA , the applicant
received correspondence from MISA that his application for one of the chief
civil engineer posts was successful (the appointment letter). This letter stated
in bold, among other things:
‘This appointment is provisional pending the positive outcome of pre-
employment screening. The Department reserves the right to summarily
terminate your employment should the results come back negative depending
on the status.’
[32] The applicant then started working at MISA on 4 April 2018.
11
[33] Evidently, the respondents provisionally appointed the applicant to his post
after receiving information from SAQA that his matric certificate could not be
found and his matric status could not be verified. The respondents still
allowed him to begin working at MISA. This was at their discretion, with all
information before them.
[34] 14 months into his employment, the applicant received a letter dated 6 June
2019 from MISA’s human resources department (HR) (the probation letter).
The letter stated:
‘It is a pleasure to inform you that your probationary appointment in
accordance with section 13(2) of the Public Service Act, 1994 as amended,
read with Regulation 68(1) of the Public Service Regulations, 2016, has been
confirmed with effect from 25 April 2019.
Please take note that the changing of your salary payment date to the
fifteenth of each month will become effective from 15 June 2019.’
[35] The wording of the letter suggested to the applicant that he was being placed
on probation over a year into his employment. The respondent had no
submissions on this point by the applicant, even though the legislation makes
it clear that the applicant was being informed that he was no longer on
probation. Section 13(2) of the Public Service Act provides:
‘After the completion of a probationary period… an executive authority shall
confirm the probationary appointment if the employee concerned has –
(a) performed at least satisfactorily during the period; and
(b) complied with all the conditions to which his or her appointment was
subject.’ (Own emphasis)
[36] The probation letter was therefore telling the applicant that his probation had
come to an end, and implied in this, that his performance during the
probationary period was satisfactory and, significantly, that he had complied
with all the conditions to which his appointment was subject.
Matric certificate inquiries
12
[37] The respondents claim that a subsequent internal audit alerted them that the
applicant ‘did not submit the matric certificate he claimed to have’ . The
internal audit report did not form part of the record, and the respondents do
not provide its date. This is irrelevant in any event: the respondents did not
need an internal audit into the applicant’s school qualifications in 2019. They
had the SAQA verification document from 24 January 2018 which ought to
have alerted them to the shortcoming. They also had t he applicant’s job
application from which it was plain that he did not have a matric certificate.
[38] It appears from the record that, starting in September 2019, MISA’s HR began
making inquiries into whether the applicant held a matric certificate. The
official correspondence from HR, according to the record, was sent to the
applicant on 13 September 2019 (the HR letter).
[39] The applicant’s undisputed evidence was that he is a South African citizen,
and that in his early childhood, he was taken to stay in Zimbabwe with family
friends due to the political instability in South Africa. In Zimbabwe, he studied
until Grade 11 (Standard 9), completing his O -levels. This was in 1991. He
returned to South Africa in 1992 through the United National Voluntary
Repatriation Programme. In 1993, he studied Grade 12 (Standard 10 or
matric) at a high school in Johannesburg. For his matric exams, h e registered
for English (first language), Afrikaans (second language) and five other
subjects. He ultimately did not write Afrikaans. He did not say why, save for
stating that the only second language in which he was competent because of
his time in Zimbabwe was Shona. He is recorded as having been absent from
the exam. He wrote the other six subjects and passed each of them.
[40] The applicant commenced his efforts to secure his matric certificate. The
record shows the following written correspondence:
40.1 On 10 October 2019, the applicant wrote to uMalusi requesting
40.1 On 10 October 2019, the applicant wrote to uMalusi requesting
assistance. In it, he explained his childhood schooling and the
following:
‘It recently came to my attention that I am not in possession of a
matric senior certificate, but a statement of results. Upon enquiry with
13
the Department of Education, they indicated that I couldn’t get my
matric senior certificate because of the outstanding alternative
language which I didn’t do. They indicated that is I can write that
alternative language and pass it, then and only then can I get the
matric senior certificate, probably with exemption.
My challenge is that at work they want me to provide them with a
matric senior certificate or its equivalen[t], which I now realise that I
don’t have, which is likely to expose [me] to the risk of losing my
employment. I am therefore requesting your intervention and
assistance in this regard…’
40.2 On 11 October 2019, uMalusi respondent informing the applicant that if
it was indeed the case that he completed his O -levels and that he
arrived in South Africa within five years of sitting his matric exams, he
qualified for the status of an ‘ immigrant candidate’ . UMalusi then
advised the applicant to provide proof of the above two facts, upon
which he could ‘ apply for the re- issuing of [his] certificate to reflect
immigrant status’. The correspondence further stated, ‘ With the results
achieved in November 1993, you could qualify for the Senior Certificate
if you were registered as an immigrant candidate’.
[41] On 18 November 2019, the CEO of MISA wrote to the application recording
the contents of the HR letter. The CEO also recorded that the applicant
informed HR that his matric certificate had not been issued because he ‘ only
enrolled and passed one vernacular ’, and that he would liaise with the
Department of Education in Zimbabwe to request them to reissue his O -levels
certificate so that he could submit these to SAQA.
[42] On 28 November 2019, the applicant wrote back to uMalusi, providing proof of
his O-levels. On 29 November 2019, he had a call with uMalusi and he was
asked to then contact the school (in Johannesburg) where he wrote matric ‘ to
ask for copies of the documentations that were submitted when they
ask for copies of the documentations that were submitted when they
registered [him] for the examination. These documentations must be
submitted to the Department of Education who will then request a re- issue of
[his] certificate with the correct status’.
14
[43] The applicant provided no further information of his engagements with
uMalusi or the Department of Basic Education.
[44] On 16 March 2020, the CEO of MISA wrote to the applicant dismissing him
(the dismissal letter). The dismissal letter referred to MISA’s earlier letter to
the applicant dated 18 November 2019, in which MISA gave him until 28
February 2020 to submit his matric certificate. In the dismissal letter, the CEO
records:
‘To date you have failed to submit matric certificate which means your
employment contract was secured by misrepresentation.
As it is stated clearly in the appointment letter, your appointment was
provisional pending the positive outcome of the pre-employment screening,
which includes the verification of qualifications. The timeframe that was given
to you for representations has now expired.
Kindly take notice that your provisional appointment is hereby terminated with
immediate effect for the following reason:
(1) Your failed to submit your matric certificate.
Your final appointment would only be possible if you meet the above
conditions. In the circumstances kindly return all MISA equipment in your
possession and custody and control.’ (sic)
[45] The applicant has still not secured his matric certificate . The legal question is
whether, in the circumstances, the reasons given in the dismissal letter (not
having a matric certificate and misrepresenting this to the employer) were fair
reasons for MISA to dismiss the applicant.
[46] The arbitration proceeded by way of a stated case, which included written
submissions and documents.
[47] The Commissioner began his analysis by stating, ‘ I have to determine
[whether] the applicant is in possession of a valid matric certificate or not: in
line with the requirements of the Department of Education as per the
respondent’s requirement’ (sic). He proceeded immediately to find:
15
‘Based on the evidence before [me], it is my finding that the applicant does
not have the required matric certificate in line with the requirements of the
Department of Education as per the respondent’s requirement. It is my finding
that the above dismissal was substantively fair.’
[48] This is the full extent of the Commissioner’s inquiry into substantive fairness.
[49] The Commissioner then found that the respondent ‘ deviated from its
disciplinary code’ which required that a disciplinary hearing be conducted prior
to a dismissal. On this basis, he found that the dismissal was procedurally
unfair. He found an award of two months of the applicant’s salary to be just
and equitable compensation.
Review grounds
Procedural fairness
[50] The applicant seeks to review the relief awarded following the finding, on
procedural fairness. The respondents have not applied to cross -review the
finding of procedural unfairness and so I deal only with whether the amount of
compensation awarded was unreasonable and should be interfered with.
[51] The applicant argues:
51.1 The Commissioner ‘ misdirected himself by failing to give due weight
and/or ignoring relevant evidence relating to the conduct of the
[Department] illegal conduct when dismissing the applicant’ (sic).
51.2 The respondents ‘should have at least investigated [his] conduct if any
and advised [him] of the allegations against [him]’ and that he ‘should
have been given the opportunity to respond to the allegations or at
least to make a form of representations before [his] employment was
abruptly terminated.’
[52] The Constitutional Court had held that ‘ [a]n award would meet this
requirement [of reasonableness] if there are reasons supporting it .’
15 In
15 Duncanmec (Pty) Ltd v Gaylard NO & others (2018) 39 ILJ 2633 (CC); [2018] 12 BLLR 1137 (CC)
at para 43.
16
awarding two months salary as compensation, the Commissioner states that
this is based on the applicant’s length of service, which I presume the
Commissioner regarded as relatively short. There is no evidence of other
factors being considered. The applicant pleaded that the way he was
dismissed was not considered, and that it ought to have been considered. It is
correct that it is not apparent from the award that the Commissioner had any
regard to the applicant’s summary dismissal.
[53] For this reason, I find that a different award of compensation could have been
made by another decision- maker, on the information available, and properly
directing himself or herself to the legal principles on determining the amount
of compensation in cases of procedural fairness.
[54] I address the amount of compensation under the heading of relief.
Substantive unfairness
[55] The first irregularity alleged is that the Commissioner failed to apply his mind
and so misconstrued the inquiry that he was required to undertake based on
the issues in dispute. As a result, the applicant avers that the Commissioner’s
decision was completely unreasonable and ‘not understandable in law’.
[56] The Commissioner explicitly stated that the question before him was whether
the applicant possessed a matric certificate. The Commissioner found that the
applicant did not have a matric certificate and that his dismissal was therefore
fair.
[57] The Commissioner committed a gross irregularity because this was patently
not the question before him. It was common cause that the applicant did not
have a matric certificate.
[58] This is the archetypal case of misconceiving the nature of the inquiry.
Myburgh and Bosch have argued that misconception of the nature of the
inquiry warrants a setting aside of the award without any consideration of the
reasonableness of the outcome.
16 I agree that unreasonableness follows, as it
16 A Myburgh and C Bosch Reviews in the Labour Court at 93 – 94.
17
does in cases of material errors of law. The Commissioner’s decision can only
be a decision that no reasonable decision- maker would make, because a
reasonable decision- maker would understand the nature of the dispute, the
common cause facts, and the issue that he is required to decide.
[59] The respondents added a further aspect to their argument concerning the
applicant not having a matric certificate. The respondents argued that the
matric certificate is an indication of passing matric and of the ability to obtain
tertiary qualifications and it was therefore an implied requirement for the job.
This was not pleaded, but I deal with it in any event.
[60] The first problem for the respondents’ ‘foundational argument’ is that it bears
the onus of proving good reason for the dismissal. They therefore cannot
accept the applicant’s tertiary qualifications, as they expressly do, and then
argue that in the absence of a matric certificate being produced, the above
qualifications crumble.17 If the respondents wanted to make this foundational
argument, they ought to have either investigated further or at least sought to
cast doubt on or dispute the validity of the applicants’ tertiary qualifications.
They did not and were candid about this.
[61] Put differently, if the respondents contend that the applicant lied in claiming to
have passed matric, it must follow that they would at least question his tertiary
qualifications and not expressly and unconditionally accept them. The
‘foundational’ argument therefore, does not move beyond being theoretical.
The position might have been different had the respondents sought to cast
doubt on the applicant’s tertiary qualifications, instead of expressly stating that
they were not challenging these.
[62] Although the respondents did not substantiate their proposition that matric
was a foundation for tertiary qualifications, making the requirement of a matric
certificate ‘obvious’ or ‘implied’ , there is case law that, on the face of it,
certificate ‘obvious’ or ‘implied’ , there is case law that, on the face of it,
supports this argument . It is unfortunate that the respondents, despite being
fully represented, did not assist the Court.
17 In principle, this is incorrect: university and technical college have provisions for mature students,
who may be permitted to study based on experience and not on passing matric, or passing matric
with exemption. This was not, however, the applicant’s pleaded case.
18
62.1. In Kloppers v N Khumalo N.O and Others (Kloppers),18 van Niekerk J
(as he then was) held:
‘Although the minimum qualification for the post into which the
applicant applied to be promoted was a history qualification, it was
necessary for the purposes of the application to submit a matric
certificate which in all probability, is the reason why the applicant
submitted the incorrect certificate rather than his statement of
symbols.’
62.2. In Hlope v Head of Department , Department of Education, KwaZulu-
Natal & others (Hlope) ,19 Khuzwayo AJ rejected the argument that a
matric certificate was not a requirement for the post and held that ‘ all
candidates who applied for various posts were required to attach their
qualification certificates on their applications. This was one of the
standard requirements for a fully completed application form .’ The job
applicant in Hlope did not attach her matric certificate to her
application.
[63] Even if we accept that a matric certificate may be an implied requirement for a
job in some cases, the above cases are distinguishable from the applicant’s
case for several reasons.
63.1. In Kloppers v N Khumalo N.O and Others, the employee worked his
way through the ranks of the state service, and until 2017, the
verification exercises did not “ raise any concern about the integrity of
the applicant’s matric certificate” that he had submitted when he was
first appointed as a technician in 1997. In 2017, when the applicant
applied for a promotion, the state employer found out that the matric
certificate originally submitted was a forgery. It charged the employee
with fraud and dismissed him.
20 The applicant in this case is not alleged
to have committed a forgery. Further, the SAQA report raised concerns
about the applicant’s matric qualifications and brought this to the
18 [2022] ZALCD 42 at para 13.
19 (2024) 45 ILJ 805 (LC); [2024] ZALCD 4 at paras 33 – 36.
20 Kloppers supra at para 13.
19
attention of the respondents. They appointed the applicant anyway,
whether intentionally or negligently. The employee’s conduct is not
comparable.
63.2. In Hlope, the employee’s application was rejected at the outset
because of her failure to submit her matric certificate. She was not
appointed and the employer did not seek to backtrack later. In this
case, the respondents appointed the applicant despite his own
application containing only a statement of results and not a matric
certificate, and the SAQA report. In the present case, the respondents
were either negligent, intentionally ignored the documents before them,
appointed the applicant and now want to backtrack through, of all
things, a summary dismissal. The facts are not comparable.
[64] To summarise, this case is distinguishable for the respondents’ own conduct
in appointing the applicant suggest that the matric certificate was not required
in this case, alternatively that the respondents made the error in not requiring
it: when appointing the applicant provisionally on 7 March 2018, having him
commence work on 4 April 2018, and deciding that he has passed his
probation period on 6 June 2019 (which included an assessment into whether
he had ‘ complied with all the conditions to which his… appointment was
subject’), the respondents had been made aware by SAQA that his matric
qualifications could not be verified. They appointed him anyway.
[65] Two possible inferences can be drawn from the respondents’ conduct. E ither
the respondents did not consider a matric pass or matric certificate a
compulsory requirement for appointment to the post, or the respondents
negligently or intentionally disregarded the SAQA report. Neither is a good
reason for dismissal because it concerns the employer’s error, and not any
misconduct by the employee. The respondents in this case did not even seek
to correct their error shortly after the applicant’s appointment, instead allowing
20
him to work for over a year in his position, and confirming that he had passed
the one-year probationary period.21
[66] Given that the applicant’s employment, on balance, appears to have been an
error, the respondents were supposed to review their own decision, and not
resort to self-help to cure it. The Constitutional Court in Khumalo & another v
Member of the Executive Council for Education: KwaZulu- Natal (Khumalo)
has endorsed section 158(1)(h) of the LRA as the mechanism for correcting
irregular appointments , and has emphasised that these reviews are
obligations on an organ of state:
‘As bearers of this duty [to respect, protect, promote and fulfil the rights in the
Bill of Rights', and in performing their functions in the public interest, public
functionaries must, where faced with an irregularity in the public
administration, in the context of employment or otherwise, seek to redress it.
This is the responsibility carried by those in the public sector as part of the
privilege of serving the citizenry who invest their trust and taxes in the public
administration.’22
[67] Should the respondents seek to review the applicant’s appointment now, they
would, despite the approach taken in State Information Technology Agency
SOC Limited v Gijima Holdings (Pty) Limited,23 need to contend with the delay
since the appointment was made 24 to have the application heard, and to
obtain the relief sought (removing the applicant from his position).
[68] Having found that, in these unique circumstances, it was not a good reason to
dismiss the applicant for not having a matric certificate, I turn now to whether
21 This factor distinguishes the present case from Nogcantsi v Mnquma Local Municipality & others
(2017) 38 ILJ 595 (LAC) ; [2017] 4 BLLR 358 (LAC) where the LAC upheld a dismissal during the
probation period, in terms of an automatic termination clause following the outcome of a screening
process.
process.
22 (2014) 35 ILJ 613 (CC); 2014 (3) BCLR 333 (CC) at paras 30 – 37. See also: para 45.
23 State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC) ;
[2017] ZACC 40.
24 Premier, Eastern Cape Province & another v Tikayo (2025) 46 ILJ 628 (LC) ; [2024[ ZALCPE 47 at
para 33. See also: the discussion on what might constitute an unreasonable delay in legality reviews:
Charles Green and Martin Fourie- Viljoen ‘Pathways to review available to an organ of state acting in
the public interest: the unintended loophole of the Gijima “exceptions”’ TSAR (2024) Vol 3 at 299 –
300.
21
he misrepresented having matriculated , the second professed reason for his
dismissal.
[69] Because the Commissioner misconceived of the nature of the inquiry that he
was required to undertake, he did not engage the respondents’ second
justification for dismissing the applicant – that the applicant had allegedly
misrepresented his matric qualifications throughout the recruitment process.
[70] If the applicant committed misrepresentation, it will generally
25 follow that he
was dismissed for good reason because he sought to deceive his employer
on his qualifications, and persisted in doing so, which goes to the heart of
trust in the employment relationship.
26 There are two broad sets of cases
concerning the misrepresentation of qualifications: employees who
misrepresent by submitting fraudulent documents,
27 and those who
misrepresent by making statements in their CVs or job application forms that
are not be supported by the documents.
28 It is the second group of cases that
is relevant to the present case. It is established that intention to misrepresent,
deceive or defraud is required. Innocent misrepresentations do not constitute
misconduct generally, and if they do, they do not warrant dismissal. I deal with
the applicable case law later.
[71] The question here is whether the applicant , in writing , that he had
matriculated, made an intentional misrepresentation or an innocent
misrepresentation.
[72] The LAC and Labour Court’s determinations regarding the element of
intention clarify that it is fraudulent or dishonest intention that justifies
dismissal:
25 Department of Home Affairs & another v Ndlovu & others (2014) 35 ILJ 3340 (LAC); [2014] ZALAC
11 at para 18: ‘ It is obligatory that an employer should produce such evidence to justify a dismissal
unless of course that conclusion of a broken employment relationship is apparent from the nature of
the offence and/or the circumstances of the dismissal.’
the offence and/or the circumstances of the dismissal.’
26 See: Boss Logistics v Phopi & Others (2010) 31 ILJ 1644 (LC) ; [2010] 5 BLLR 525 (LC) (Boss
Logistics) 1652 E – G; Rainbow Farms (Pty) Ltd v Dorasamy NO & others (Rainbow Farms) (2014) 35
ILJ 3462 (LC) at para 13; Stellenbosch Municipality v SA Local Government Bargaining Council &
others (Stellenbosch Municipality) (2022) 43 ILJ 2100 (LC) ; [2022] 11 BLLR 1056 (LC) at para 25;
G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017) 38 ILJ 881 (LAC); [2016] ZALAC
55 at para 30.
27 Stellenbosch Municipality supra; Kloppers N.O supra.
28 Rainbow Farms supra; Boss Logistics supra.
22
72.1 The defence of mistake (believing that you held the qualification) has
been rejected where the employee did not admit to the alleged mistake
at the ‘first and earliest opportunity.’29
72.2 The defence of the employer misunderstanding the CV has been
rejected where it could be inferred that the employee knew what they
were doing when listing their qualifications,
30 and had previously
corrected their qualification listings when errors were pointed out to
them.31
[73] The respondents’ case for misrepresentation was that the applicant wrote on
the Z83 form, under highest (school) qualification obtained, ‘ Matriculation –
1993’. In his CV, he also wrote, ‘ Matriculation’. The respondent therefore
argued that the applicant misrepresented his qualifications. I was referred to
the Dictionary of South African English for the contention that the applicant
misrepresented his matric qualifications because ‘matriculation’ means
passing matric.
[74] In this case, the applicant provided a range of supporting documents, among
them, a document issued by the Department of Education for KwaZulu- Natal
dated 2017 (the KZN document). The KZN document set out the applicant’s
‘calculation of aggregate’ for his matric exams for Vector High School in
Braamfontein. The respondents did not take issue with this document . The
respondents also did not refer to the following contents of the KZN document
in support of their claim that the applicant did not pass matric and was
therefore misrepresenting to his employer when he stated on his job
application documents that he ‘matriculated’:
‘Remarks: The candidate failed the Senior Certificate examination. Reasons
for failure are: [blank].’ (Own emphasis)
29 Lesedi Local Municipality v Mphele & o thers (2023) 44 ILJ 1967 (LC) ; [2023] 9 BLLR 939 (LC) at
para 38.
30 Department of Home Affairs & Another v Ndlovu & Others (2014) 35 ILJ 3340 (LAC); [2014] ZALAC
11 at para 16.
31 Rainbow Farms supra at paras 14 – 16.
23
[75] The applicant’s conduct is comparable to the conduct examined in Austin -Day
v ABSA Bank Ltd and Others ,32 where an employee, unsolicited, did not
merely admit her misconduct, but paraded it, believing that she was not in the
wrong. The LAC found that dishonesty had not been proved on balance,
considering Ms Austin-Day’s openness about her actions:
‘The respondent had to, in order to be successful in showing that it acted
substantively fair in dismissing the applicant based on dishonesty must show
that the applicant intended by her actions to be dishonest. The facts of the
case before me does not support a finding of dishonesty because the
applicant acted openly by depositing the moneys over the counter with her
name as depositor and in a manner seeking approval from Mr Vallentyn for
her innovative thoughts and actions divulged to him. It cannot be said that a
person under these circumstances had the intention to be dishonest.’33
[76] The KZN document assists the respondent in proving misrepresentation of
some kind, and yet the applicant submitted it, and referred the Court to it. One
inference that may be drawn from the submission of this evidence is that the
the applicant genuinely held a mistaken belief that he passed matric. His
repeated reference to this , together with his statement of results , suggests
that he was negligent or even innocent misrepresentation, and not a
fraudulent (dishonest) misrepresentation that destroys the trust in an
employment relationship.
[77] On the other hand, the applicant puts himself out to be an engineer, and was
employed as a chief civil engineer for the province. He is not merely literate.
He is supposed to be highly educated and ought to have understood that the
documents which he submitted and on which he relied were not documents
that proved that he passed matric.
34 The KZN document expressly stated that
he did not pass.
[78] I do not know if the KZN document is a valid document. Had a disciplinary
[78] I do not know if the KZN document is a valid document. Had a disciplinary
hearing been held, the applicant’s documents could also have been tested
there. His understanding of the documents could also have been tested, and
32 [2022] 6 BLLR 514 (LAC); [2022] ZALAC 6.
33 Ibid at para 18.
34 See: Mothiba v Exxaro Coal (Pty) Ltd t/a Grootgeluk Coal Mine (2021) 42 ILJ 1910 (LAC) at para 8.
24
his credibility as a witness. Instead, there was no disciplinary hearing and the
arbitration proceeded by way of a stated case. In the absence of witness
testimony, I am not well -placed to balance the probabilities and determine if
the misrepresentation was fraudulent and justified dismissal, or if it was
innocent. If it was innocent, that would still raise serious concerns about the
applicant’s suitability for the position of chief civil engineer.
[79] I cannot, however, allow the fact that it appears from the documentation
before me, which was the very same documentation both in the job
application process and in the arbitration, t o detract from: (a) the onus on the
employer to prove that the dismissal for misrepresentation was fair, and (b) in
relation to this , that the applicant candidly put forward all these documents. I
do not know what, if anything, went on behind the scenes of the recruitment
and appointment process, and my inquiry is limited to fair reason for the
dismissal.
[80] In the circumstances, this dismissal was not fair: an employee cannot be
dismissed for misrepresenting his qualifications when he put forward all
documents to the employer, was appointed after a verification exercise
conducted by the employer, served out a probationary period successfully, an
employer later recognised that the appointment was incorrectly made, and the
employer cannot demonstrate an intention to act dishonestly.
[81] In Rainbow Farms, Cele J held:
‘It is not a defence to an allegation of fraud that the person to whom the
representation was being made, could have by the exercise of reasonable
care, discovered the truth of the misrepresentation and ought never to have
been duped by it.’35
[82] This does not apply here because the applicant was not ‘ duping’ anyone, and
I have found that this was not a fraudulent misrepresentation. Instead, the
applicant acted openly with the respondents, the Council and the Court, even
to his detriment.
35 Rainbow Farms supra at para 17.
25
[83] This is a case that should have been brought to the Labour Court by the
employer in terms of section 158(1)(h) of the LRA.
Conclusion
[84] I have found that –
84.1. there is a basis pleaded for me to revisit the Commissioner’s award of
the amount of compensation for procedural unfairness;
84.2. dismissing the applicant for not having a matric certificate was not a
good reason for the dismissal in the circumstances;
84.3. the employer failed to show fraudulent misrepresentation, which would
warrant a dismissal; but despite this,
84.4. there is evidence on the record, albeit not picked up by the
respondents, that calls the applicant’s suitability for the position into
question.
[85] This fourth finding informs the relief.
Relief
Remittal to Council inappropriate
[86] There are factual similarities with the first case in Khumalo, where Mr
Khumalo was working in his position, that the MEC had not raised
performance issues and that ‘ he bears no responsibility [for his appointment]
but for having the boldness to apply for a position for which be possibly did
not qualify’.
36 Three years into Mr Khumalo’s appointment to the position in
question, a task team found that Mr Khumalo did not meet the minimum
requirements on supervisory experience for appointment to the post, and that
36 Khumalo supra at para 55.
26
he ought never to have been shortlisted and interviewed, let alone appointed.
The task team also found irregularities in the appointment process.37
[87] The Constitutional Court did not accept Mr Khumalo’s arguments and found
that he indeed failed to meet the minimum supervisory requirements for the
post, and found that his appointment was unfair.
38 The Constitutional Court,
however, declined to set aside the appointment because the task team report
and the papers filed in the Labour Court did not contain reasons for the
Department’s decision to depart from the minimum requirements and appoint
Mr Khumalo.
39 The Constitutional Court therefore found that it could not make
a finding in terms of section 158(1)(h) or the principle of legality. It left Mr
Khumalo in his position.
[88] In this case, the applicant was appointed in April 2018. He was summarily
dismissed in September 2019. The CCMA handed down its award in May
2020. The respondents have acted unfairly, and possibly unlawfully.
[89] I must, however, consider that the documentation on record casts doubt not
merely on the applicant’s supervisory experience (as was the case with Mr
Khumalo), but on all his technical qualifications for the position to which he
was appointed.
[90] The question is whether it is worth remitting this matter to the Council for oral
evidence on the question of whether the applicant misrepresented his
qualifications by stating that he matriculated. Based on Khumalo and given
the respondents’ lackadaisical approach to the disciplinary process, the
arbitration and this review, I cannot see how a remittal to oral evidence on this
point would assist. Similarly to the Constitutional Court in Khumalo, I must
accept that I am constrained by the passage of time and the information
before me.
Reinstatement or compensation
37 Khumalo supra at para 8.
38 Khumalo supra at para 60.
39 Khumalo supra at para 67.
27
[91] Recently, in Bojosinyane v Ditsobotla Local Municipality & others,40 Makhura
J considered an urgent application against a municipality’s summary
termination of an applicant’s fixed- term contract. The municipality’s reason for
terminating the applicant’s employment was that the appointment contravened
the Municipal Systems Act. Makhura J held:
‘The Municipality decided that it could correct this decision by passing a
resolution. It passed a resolution to place the applicant on special leave
pending the determination of the review application filed by the fourth
respondent. The applicant sought urgently to challenge this decision.
Confronted by this urgent application, the municipality elected to constitute an
urgent special meeting on 30 January 2025. This special meeting passed a
resolution (1) not oppose the application, (2) to lift the special leave and (3) to
terminate the applicant’s employment contract with immediate effect. The
courts have pronounced that this conduct is not allowed. The decision to set
aside the appointment can only be taken by the High Court or this court on
review because only a c ourt of law is the final arbiter on legality issues. The
municipality was therefore obliged to follow the correct legal process of
applying to review and set aside the appointment. It cannot resort to self- help.
Its decision to correct the wrong is therefore unlawful and void.’
41
[92] In Bojosinyane, the Mr Bojosinyane approached the Labour Court pleading
unlawfulness of his summary termination. The termination, once found to
have been unlawful, was declared void. 42 The applicant in this matter pleaded
a case unfairness. The remedies should relate to unfairness.
[93] Another difference is that in Bojosinyane, the Labour Court was not faced with
any allegations of misconduct on the part of the applicant. In this case, the
record includes a document submitted by the applicant which, among other
things, states that he did not pass matric. This raises further questions
things, states that he did not pass matric. This raises further questions
regarding his tertiary qualifications, although the respondents , as part of their
generally lackadaisical approach to this very serious matter, chose not to
contest these qualifications.
40 Bojosinyane v Ditsobotla Local Municipality and Others (Bojosinyane) (2025) 46 ILJ 1350 (LC) ;
[2025] ZALCJHB 222.
41 Bojosinyane supra at para 28.
42 See also: Chubisi v S outh African Broadcasting Corporation (SOC) Ltd and Others [2020]
ZALCJHB 218; (2021) 42 ILJ 395 (LC).
28
[94] Zondo J set out the sequence of the inquiry into relief:
‘Once the Labour Court or an arbitrator has found a dismissal unfair, it or he is
obliged to consider which one of the remedies listed in s 193(1) is appropriate, having
regard to the meaning of s 193(2). Considering both the provisions of s 193(1) and s
193(2) is important because one cannot adopt the attitude that dismissal is unfair,
therefore, reinstatement must be ordered. The Labour Court or an arbitrator should
carefully consider the options of remedies in s 193(1) as well as the effect of the
provisions of s 193(2) before deciding on an appropriate remedy. A failure to have
regard to the provisions of s 193(1) and (2) may lead to the court or arbitrator granting
an award of reinstatement in a case in which that remedy is precluded by s 193(2).’43
[95] Reinstatement is the primary remedy where a dismissal has been
substantively unfair, but there is more to consider.
[96] Considering the evidence that the applicant openly submitted, which shows
that he did not pass matric, it would not be reasonably practicable, or
desirable, to reinstate the applicant to the position of chief civil engineer.
44
The particular the nature of the job must be a consideration. 45 In this case, it
is self -evident that the applicants educational qualifications are reasonably
linked to performance of the work of the chief civil engineer of for a province.46
[97] For this reason, in terms of section 193(2)(c) of the LRA, compensation, and
not reinstatement, would be the appropriate remedy.
Determining the amount of compensation
[98] Section 194(1) regulates the determination of compensation:
‘The compensation awarded to an employee whose dismissal is found to be
unfair either because the employer did not prove that the reason for dismissal
was a fair reason relating to the employee’s conduct or capacity or the
employer’s operational requirements or the employer did not follow a fair
employer’s operational requirements or the employer did not follow a fair
43 Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2016)
37 ILJ 313 (CC); 2016 (3) BCLR 374 (CC) at para 135. This was a minority judgment, but it does not
concern an issue of contention between the majority and minority in this case.
44 Section 193(2)(c) of the LRA.
45 This distinguishes the applicant’s case from, for example, that of correctional services offices
seeking salary grade promotions, see: Public Service Association on behalf of Van Zyl & others and
Department of Correctional Services (2008) 29 ILJ 215 (BCA).
46 See: Lagadien v University of Cape Town (2000) 21 ILJ 2469 (LC); [2001] 1 BLLR 76 (LAC).
29
procedure, or both, must be just and equitable in all the circumstances, but
may not be more than the equivalent of 12 months’ remuneration calculated
at the employee’s rate of remuneration on the date of the dismissal.’
[99] An initial concern was whether the matter ought to be remitted to the Council
for the hearing of evidence so that compensation can be determined. T wo
appellate decisions assist, however. First, Zondo JP referred to the following
factors, among others, when determining whether to award compensation:
‘(e) The consequences to the parties if compensation is awarded and the
consequences to the parties if compensation is not awarded.
(f) The need for the courts, generally speaking, to provide a remedy
where a wrong has been committed against a party to litigation but
also the need to acknowledge that there are cases where no remedy
should be provided despite a wrong having been committed even
though these should not be frequent.
(g) In so far as the employee may have done something wrong which
gave rise to his dismissal but which has been found not to have been
sufficient to warrant dismissal, the impact of such conduct of the
employee upon the employer or its operations or business.
(h) Any conduct by either party that promotes or undermines any of the
objects of the Act, for example, effective resolution of disputes.’
47
[100] Later in South African Revenue Service v Commission for Conciliation,
Mediation and Arbitration & Others (Kruger),48 the Constitutional Court held
that ‘one of the key factors ’ in determining is compensation has to be paid,
and to what extent, is –
‘the need to ensure that employers are not inadvertently encouraged by the
non-payment of compensation to adopt a shotgun approach of dismissing
employees without affording them the opportunity to be heard. Employees are
ordinarily vulnerable because, unlike employers, they do not often have the
resources necessary to vindicate their rights by prosecuting cases all the way
resources necessary to vindicate their rights by prosecuting cases all the way
up to this Court. Condoning the flouting of laws that govern the fate of
47 Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC) (Kemp) at para 20.
48 (2017) 38 ILJ 97 (CC).
30
people’s livelihood is a matter so serious that it always requires greater
sensitivity and care.’49
[101] In this case, the Constitutional Court was concerned purely with the relief
granted, the employer having, the day before the hearing, abandoned its
challenge to the Commissioner’s finding that the dismissal was substantively
unfair. On the premise that the dismissal was substantively unfair, and despite
the egregious conduct of the employee in this case, the Court awarded six
months’ compensation based on the following:
101.1. The extent of the deviation from disciplinary procedures.
101.2. That the effects of a dismissal are so serious that ‘a breach of the
relevant regulatory framework ought generally to be viewed in a
serious light’.
101.3. The employer was not against paying compensation.
101.4. Despite being better resourced than the employee, the employer
‘floated from one blunder to another thus causing Mr Kruger or his
sponsors to be financially burdened through litigation, when this could
have been avoided.’
50
[102] Bearing in mind the factors set out above, there is evidence for a just and
equitable determination on the amount of compensation.
[103] First, the extent of the deviation from procedure, by a government
department, was so severe in this case, and unwarranted. There were other
options, such as suspension, if the respondents did not want the applicant in
the workplace during a disciplinary process.
[104] Second, even after committing this procedural unfairness, when the applicant
challenged his dismissal, the respondents approached the case with so little
interest that points appearing from the record were not taken up, which would
have assisted the Court . They did not consider or point the Court to any
49 Kruger supra at para 52.
50 Kruger supra at paras 52 and 57.
31
relevant case law on the pertinent issues in the case, despite their being a
great deal of case law.
[105] In doing so, the respondents have failed in their responsibilities to the rule of
law as organs of state, failed to assist the Court as well -resourced litigants,
and undermined the principles for dispute resolution set out in the LRA. They
have not tendered a higher amount in compensation, or conceded that they
failed to act in accordance with the rule of law and the mechanisms provided
for in the LRA when an organ of state errs in an employment matter.
[106] The Constitutional Court’s concerns of encouraging employers to take ‘a
shotgun approach’ is also a consideration in this matter , given that the
respondents maintained throughout that they were entitled to act as they have
done.
[107] This must be balanced this against the fact that the record reflects that the
applicant did not pass matric, that he did not plead that the obtained his
tertiary qualifications as a mature student, and that academic and professional
qualifications are essential to the job he was employed to do. We will of
course, never know why (a) the respondents appointed the applicant to the
post, given all the documentation that was before them at the outset of the
appointment process; (b) they allowed him to serve over a year in the post,
and then (c) why they hastily tried to make his appointment go away through
an unfair dismissal process.
[108] It is fair to replace the Commissioner’s award of compensation for procedural
unfairness with compensation equal to four months’ remuneration to the
Applicants. It is further fair to award the applicant compensation equal to six
months’ remuneration for the substantive unfairness of the dismissal.
[109] The maximum award of compensation is not appropriate given that the
applicant ultimately does not have a matric certificate and should never have
been appointed to this post. A lower amount of compensation would amount
been appointed to this post. A lower amount of compensation would amount
to a slap on the wrist for government agencies and departments who side -
step their obligations in terms of the Constitution, the Public Service Act, the
principles in Gijima , and the mechanism provided for them in section 158 of
32
the LRA. The impact on an employee dismissed in the way that the applicant
was would also not be addressed by a lower amount.
Costs
[110] The applicant is self -represented and has indicated that he has not paid for
legal representation or advice in these proceedings. He has, however, paid
disbursements, including in relation to the record. Given that this matter
proceeded as a stated case, the record is short , and the preparation of a bill
of costs and its taxation would do little to assist the applicant, on a cost -
benefit analysis. Further, the respondents were defending an award in their
favour. For these reasons, costs are not appropriate.
Order
1. The review application is granted to the extent set out in paragraphs 2
to 4 of this order.
2. The arbitration award dated 20 May 2022 under case number GPBC
592/2020 is set aside, save in respect of the finding that the applicant’s
dismissal was procedurally unfair.
3. The finding that the applicant’s dismissal was substantively fair is
substituted as follows:
‘The applicant’s dismissal was substantively unfair.’
4. The award of two months’ compensation is substituted as follows:
‘The applicant is awarded compensation equal to ten months’
remuneration at the time of his dismissal.’
5. There is no order as to costs.
_______________________
B. Ramji
33
Acting Judge of the Labour Court of South Africa
34
Appearances:
For the Applicant: Self-represented
For the Respondent: Adv M Rasivhetshele
Instructed by: The State Attorney (Pretoria)