THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: C287/2023
In the matter between:
SAMWU OBO LOTZ Applicant
and
HESSEQUA LOCAL MUNICIPALITY First Respondent
COMMISSION FOR CONCILIATION, Second Respondent
MEDIATION AND ARBITRATION
COMMISSIONER MOSES N.O. Third Respondent
Heard: 19 August 2025
Delivered: 2 October 2025
JUDGMENT
MacKENZIE, AJ
Introduction
[1] On behalf of Mr T Lotz, the a pplicant seeks an order reviewing and setting
aside the third respondent’s award, and substituting it with one that Mr
Lotz’s dismissal was unfair. The applicant also seeks condonation for the
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late filing of the review application, it having fallen due for delivery on 27
January 2023 but was only delivered on 6 June 2023.
[2] While the first respondent delivered a notice of opposition, it failed to
deliver an answering affidavit.
[3] Mr Geldenhuys appeared for the applicant . Mr Jansen appeared on a
watching-brief basis only, and accordingly did not address the Court.
[4] Despite not delivering any answering affidavit, on the morning of the
hearing, the first respondent delivered heads of argument. It argues that
the rules contemplate participation by a respondent even absent an
answering affidavit. This is so, it argues, since the “ enquiry is in essence
based on the record and further consist of an investigation into the
reasonableness of the Commissioner’s decision, not a re- hearing on the
affidavits”. Moreover, it argues that there is no prejudice to Mr Lotz.
[5] Whilst it is not acceptable that the first respondent delivered its heads of
argument on the hearing date, I accept the first respondent’s submissions.
At any rate, the Court ought to consider the submissions of counsel where
they are of assistance to the court.
[6] The Court appreciates the helpful submissions by Mr Geldenhuys as well
as those in the first respondent’s heads of argument.
Condonation
[7] Condonation is a discretionary, fact - and fairness -based enquiry. The
court must weigh the respondent’s interest in finality against the
importance of the case, the extent of the delay, the explanation offered,
and the prospects of success. These factors are interrelated: weak
explanation or merits weigh against condonation, while strong explanation
or merits may offset delay.
1
1 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C–E.
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[8] The applicant delivered a separate and substantive affidavit in support of
condonation. The explanation offers an update about once a month over
the entire period. In essence, the a pplicant blames its bureaucracy in
considering the award and appointing attorneys to pursue the review.
[9] In opposing condonation, the first respondent argues that the delay is
excessive since it was instituted after 95 calendar days (62 court days).
[10] I agree that the explanation is less than satisfactory. Even considering any
bureaucratic delays and since review proceedings must be brought
without delay since they are inherently urgent , a delay of three months is
unacceptable. This is the more where the matter is uncomplicated, the
record is short, and the award is attacked on grounds of obvious
irregularities.
[11] However, for the reasons given hereinbelow, I am of the view that require
that condonation is in interests of justice.
The facts
[12] For almost ten years Mr Lotz was employed by the municipality as a
handyman and driver, based at Heidelberg. Mr Lotz was required to have
a plumbing certificate and driver’s license. It is common cause that Mr Lotz
did not have a driver’s license at the commencement of his employment.
[13] During 2017, in terms of certain draft regulations, the municipality was
required to formulate personal development plans (PDP) for employees,
including Mr Lotz. This was done by Mrs Marcelle Cronje, the
municipality’s head of employee relations. As part of finalising his PDP,
Mrs Cronje discovered that Mr Lotz did not have a driver’s license.
[14] On 22 April 2021, the municipality’s director of technical services issued a
letter to Mr Lotz informing him that he was to obtain a learner’s license by
30 July 2021. When he failed to do so, Mr Lotz was given notice to attend
an incapacity meeting, which was ultimately convened on 3 November
2021. However, Mr Lotz obtained his learner’s license on 27 October 2021
and submitted it at the incapacity meeting.
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[15] Mr Lotz informed the municipality that he needed new glasses in order to
obtain his driver’s license, for which he would only qualify in February
2022. He also asked for financial assistance in the sum of R3 000 which
the Municipality declined on the basis that it does not offer advances on
salaries.
[16] The municipality subsequently issued an ultimatum for Mr Lotz to obtain
his driver’s license by 30 April 2022.
[17] On 22 April 2022, the municipality offered Mr Lotz an alternative T -level
post – lower than the level on which he had been – which Mr Lotz was
required to accept by 29 April 2022. Mr Lotz did not accept that offer.
[18] On 4 May 2022, at the resumed disciplinary hearing, Mr Lotz was
dismissed.
The proceedings before the commissioner
[19] The arbitration was conducted virtually on 24 October 2022. The
municipality called only Mrs Cronje. The applicant called Mr Lotz but, at
the close of proceedings on that day, Mr Lotz had finished being examined
in chief, and the matter was then postponed. No date was set. The
municipality’s position was that it needed time to consider whether it would
cross-examine Mr Lotz. Importantly, the record bears out that the
commissioner gave two options to the parties, postpone for closing
arguments or ‘ rather schedule this matter for another day’ – the latter
option being preferred by the municipality’s representative, Mr Clark. In
other words, the impression was that the postpone was for the matter to
resume, and not for closing arguments.
[20] The matter resumed on 1 December 2022. The commissioner recorded
that the matter was ‘ scheduled to continue with cross -examination’.
However, there was no appearance by either the a pplicant’s
representative or Mr Lotz. According to the record, the commissioner said
that he had personally forwarded the T eams link. The commissioner also
indicated that he had contacted the applicant’s case management officer,
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Mr Gondani Sithole who had apparently tried to contact Mr Bozo and Mr
Lotz without success. The commissioner indicated that he was informed
by Mrs Cronje that she too had tried unsuccessfully contacting Mr Bozo.
[21] Consequently, the commissioner considered that the applicant had closed
its case and simply moved on to closing arguments. T he municipality
proceeded to make its closing argument.
[22] On 8 December 2022, the commissioner delivered the award, confirming
Mr Lotz’s dismissal was both procedurally and substantively fair.
Grounds of review
[23] The applicant argues that the commissioner failed to apply his mind,
misconducted himself, committed a gross irregularity and/or acted
unreasonably, unjustifiably, and irrationally (i) in failing to take into
consideration the evidence before him, and (ii) in finding that Mr Lotz’s
dismissal was fair.
Analysis and discussion
[24] In light of the procedural irregularities mentioned below , it is unnecessary
to consider the merits of this matter.
Failure to receive evidence under oath
[25] Evidence is normally given under oath. 2 The administration of the oath is
governed by the Justices of the Peace and Commissioners of Oaths Act ,
1963; specifically Regulation 1 of the regulations promulgated thereunder,
which provides as follows:
‘1(1) An oath is administered by causing the deponent to utter the
following words: “I swear that the contents of this declaration
are true, so help me God”.
2 Schmidt Law of Evidence at para 9.2.2.1.
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(2) An affirmation is administered by causing the deponent to
utter the following words: “ I truly affirm that the contents of
this declaration are true”.
2(1) Before a commissioner of oaths administers to any person
the oath or affirmation prescribed by regulation 1 he shall ask
the deponent
(a) whether he knows and understands the contents of the
declaration;
(b) whether he has any objection to taking the prescribed
oath; and
(c) whether he considers the prescribed oath to be binding
on his conscience.
(2) If the deponent acknowledges that he knows and
understands the contents of the declaration and informs the
commissioner of oaths that he does not have any objection
to taking the oath and that he considers it to be binding on
his conscience the commissioner of oaths shall administer
the oath prescribed by regulation 1(1).
(3) If the deponent acknowledges that he knows and
understands the contents of the declaration but objects to
taking the oath or informs the commissioner of oaths that he
does not consider the oath to be binding on his conscience
the commissioner of oaths shall administer the affirmation
prescribed by regulation 1(2).’
[26] The record reflects that none of the witnesses took the oath. The
commissioner simply asked Ms Cronje to ‘confirm’ her testimony. Similarly,
he asked Mr Lotz to ‘confirm that everything that he would say is the truth’.
There was no attempt to administer the oath or affirmation, whether
properly or at all.
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[27] The question is whether the commissioner’s failure to administer the oath,
or affirmation, constitutes a gross procedural irregularity. In Morningside
Farms,3 Revelas J held:
‘[12] Even though a commissioner, appointed by the CCMA,
must deal with the substantial merits of a dispute with a
minimum of legal formalities during arbitration proceedings
(section 138(1) of the Act), certain basic principles cannot
be breached. It is trite that in courts, witnesses who give
evidence are required to take the oath or affirm as a
witness.
[13] In terms of section 31(1) of the Supreme Court Act 59 of
1959, a person who refuses to be sworn or who refuses to
make an affirmation as a witness, may be committed to gaol
for a period not exceeding eight days. In terms of section
142(8)(c) of the Act a person commits contempt of the
Commission if he or she refuses to take the oath or to make
an affirmation as a witness.
[14] It therefore must follow that a commissioner who fails to
administer the oath or fails to ensure that an affirmation is
made by a witness, commits a gross irregularity.’ (emphasis
added)
[28] The above dictum is at odds with the decision in Aitken,
4 where Stein AJ
held:
‘[11] Section 142 of the Act defines the powers of commissioners
when attempting to resolve disputes. In relation to the receiving of
evidence a commissioner is given a power under section 142(1)(e)
as follows:
“A commissioner who has been appointed to attempt to
resolve a dispute may –
3 Morningside Farm v Van Staden NO & another [1998] 5 BLLR 488 (LC); Portnet (A division of
Transnet Ltd) v Finnemore & others [1999] 2 BLLR 151 (LC) at para 9.
4 Aitken v Khoza & others [2000] 9 BLLR 1011 (LC) at paras 12–13.
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(e) administer an oath or accept an affirmation from any
person called to give evidence or be questioned.”
[12] It is not a statutory requirement of the Act that evidence
placed before a commissioner should be sworn evidence, unlike
section 162 of the Criminal Procedure Act, which provides that a
witness's evidence must be under oath. Neither party gave sworn
evidence. The proceedings were informal and in keeping with the
spirit of the Act . Much of the relevant evidence to determine who
the employer was, was common cause, ie that the employee was
assigned by an employment agency to do a special project in the
bank, that on the completion of the project the employee was
advised of such, that the employee was paid her salary by
Intersearch, that when they defaulted, FNB paid the salary. The
only area of disagreement appears to be the employee's allegation
that during the course of her attendance at FNB a verbal contract
of employment was entered into between her and the bank. The
commissioner, weighing up the evidence found there was no proof
of this.
[13] The fact that the evidence relied upon by the commissioner in
the making of his determination was unsworn oral evidence, from
both parties, does not constitute reviewable misconduct on behalf
of the commissioner . The applicant has failed to state why sworn
evidence was necessary and would have made a difference. The
unsworn evidence of the employee constitutes evidence, which
the commissioner was allowed to rely on in coming to his
determination. Further, the determination was rationally justifiable
on the facts presented to him.’ (emphasis added)
[29] While not referring to Aitken, in Rowmore,
5 Molahlehi J echoed Stein AJ’s
view:
“[51] The other issue raised by the applicant concerns the
complaint that the commissioner failed to administer an oath or
5 (2008) 29 ILJ 2275 (LC).
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affirmation before taking evidence from the witness of the
employee.
[52] In Morningside Farm v Van Staden NO & another (1998) 19
ILJ 1204 (LC), the court disagreed with the employee ’s contention
that the failure to swear in a witness did not amount to an
irregularity. In arriving at this conclusion the court relied on the
provisions of s 31(1) of the Supreme Court Act 59 of 1959, which
provides for committal F to prison for a person who refuses to take
an oath or who refuses to make an affirmation as a witness. The
court also relied on the provisions of s 142(1)(e) of the Labour
Relations Act 66 of 1995 (LRA), which provides that a
commissioner who has been appointed to resolve a dispute may
administer an oath or accept an affirmation from any person called
to give evidence. To this extent the court held:
“It therefore must follow that a commissioner who fails to
administer the oath or fails to ensure that affirmation is made
by a witness, commits a gross irregularity.”
[53] In criminal cases it has been held that the testimony of a
witness which had not been properly placed under oath or
properly affirmed or properly admonished to speak the truth as
provided for in s 162 read with s 163 and s 164 of the Criminal
Procedure Act 51 of 1977, lacks the status and character of
evidence and can therefore not support a conviction in a criminal
trial.
[54] It is clear that in criminal matters there is a statutory duty
imposed on the presiding officer to administer an oath or admit an
affirmation. In the context of the LRA the commissioner has a
discretion in terms of s 142(1)(e) whether or not to administer an
oath or require an affirmation. However, refusal to take an oath or
make an affirmation when required to do so by the commissioner
constitutes contempt of the CCMA in terms of s 142(8)(c) of the
LRA.
[55] The issue of oaths and affirmations in private arbitrations is
governed by s 14(1)(b) (ii) of the Arbitration Act 42 of 1965.
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[56] In Portnet, A Division of Transnet Ltd v Finnemore &
others (1999) 20 ILJ 1104 (LC), the court after noting the decision
in Morningside Farm that failure to administer an oath is an
irregularity which justifies the intervention of the court, held that in
private arbitration proceedings evidence need not be led under
oath where there is an agreement between the parties or where
no objection is taken at any stage, [and] a party cannot
subsequently approach the court and cry foul. The court went
further to say:
“Accordingly, I do not think that the arbitration award is
reviewable because of failure to administer the oath.”
[57] It is interesting to note that rule 24 of the American Arbitration
Association provides:
“Oaths — ... the Arbitrator may, in his discretion, require
witnesses to D testify under the oath administered by any
duly qualified person, and if required by law to or requested
by either party, shall do so.”
See Frank Elkour et al How Arbitration Works (5 ed) at 263.
[58] In my view the correct approach is the one adopted in Portnet
and should apply to both private and compulsory arbitration
proceedings. Because of the adversarial nature of the arbitration
proceedings, there can be no doubt that taking an oath or making
an affirmation by witnesses will always be preferred . However,
failure to have a witness take an oath or make an affirmation
before testifying, does not in my view automatically amount to a
gross irregularity. In such cases the issues turn on the weight
[attached to] and the manner in which the commissioner
approaches the evidence tendered without taking an oath or
making an affirmation.
[59] Turning to the facts of the present case, the evidence of the
witness who did not take an oath had no bearing on the decision
of the commissioner. It can also not be said that failure to
administer an oath on the witness denied the applicant a fair
hearing.” (emphasis added)
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[30] In addition to finding the reasoning of Revelas J to be persuasive and fully
aligning myself with it , I respectfully disagree with the reasoning of Stein
AJ and Molahlehi J for the following reasons.
[31] Firstly, the admissibility of unsworn or unaffirmed testimony is governed by
section 41 of the Civil Proceedings Evidence Act, 1965 which provides as
follows:
‘(1) Any person who, from ignorance arising from youth,
defective education or other cause, is found not to
understand the nature or to recognize the religious obligation
of an oath or affirmation, may be permitted to give evidence
in any civil proceedings without being upon oath or
affirmation, if, before any such person proceeds to give
evidence, the person presiding at the proceedings in which
he is called as a witness, admonishes him to speak the truth,
the whole truth and nothing but the truth and administers or
causes to be administered to him any form of admonition
which appears, either from his own statement or from any
other source of information, to be calculated to impress his
mind and bind his conscience, and which is not, as being of
an inhuman, immoral or irreligious nature, obviously unfit to
be administered.
(2) Any person to whom an admonition has been administered
as aforesaid, who in evidence wilfully and falsely states
anything which, if sworn, would have amounted to the
offence of perjury or any statutory offence punishable as
perjury, shall be deemed to have committed that offence, and
shall upon conviction be liable to such punishment as is by
law provided as a punishment for that offence.’ (emphasis
added)
[32] Accordingly, unsworn testimony is permissible only if:
32.1 The witness who does not understand the nature or obligation of
an oath/affirmation due to youth, poor education, or other cause;
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32.2 The presiding officer first admonishes the witness to speak the
truth, the whole truth, and nothing but the truth;
32.3 An appropriate form of admonition is administered that impresses
the witness’s mind and binds their conscience; and
32.4 The admonition must not be inhuman, immoral, or irreligious.
[33] The record shows that none of the above requirements were met.
[34] Secondly, while it is trite that proceedings in the CCMA are intended to be
speedy and informal,
6 section 138(1) of the LRA expects that the
commissioner dispose of a matter with “ the minimum of legal formalities ”.
It seems to me that the proper taking of evidence to be such a minimum
formality. Indeed, administering the oath or affirmation is a simple and
straightforward matter. I can see no possible reason or justification why a
commissioner would ever be placed in a situation where they cannot do
so. What is more, there is already provision in section 41, excerpted
above, to deal with a situation where unsworn testimony is admissible.
[35] In my respectful view, a commissioner does not have a discretion whether
or not to receive evidence under oath. It constitutes a minimum legal
formality. A commissioner must adhere to the requirements framed in the
LRA, the Justices of the Peace and Commissioners of Oaths Act , its
regulations and – when all else fails – the Civil Proceedings Evidence Act.
To allow such a discretion permits an unreasonable degree of informality.
[36] Accordingly, I conclude that the commissioner’s failure to receive evidence
under oath constitutes a material procedural irregularity as contemplated
in section 145(2)(a)(ii) of the LRA.
[37] Whilst neither party canvassed this defect in their written submissions,
when this was queried with him, Mr Geldenhuys indicated that, if this
indeed constitutes a reviewable irregularity vitiating the award, then it is
appropriate to remit the matter. Regrettably, since he was on a watching
appropriate to remit the matter. Regrettably, since he was on a watching
6 Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others
(2017) 38 ILJ 527 (CC) at para 33.
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brief only, Mr Jansen did not address the court on this issue. To the extent
that the first respondent might have been prejudiced in not addressing the
Court on this aspect, I am of the view that that prejudice was of its own
making given its conscious decision to brief counsel on a watching brief
basis only.
Proceeding in the applicant’s absence and failure to allow the applicant to make
submissions
[38] In the supplementary founding affidavit, Mr Lotz claims that he was
unaware of the set down date of the hearing on 1 December 2022. Given
the absence of an answering affidavit, that averment is not disputed by the
municipality. I accept that averment. This is the more so considering that
the commissioner did not, at the close of the hearing on 24 October 2022,
specify a date upon which the hearing would resume. Moreover, the object
of the postponement was not for closing argument, but for cross -
examination.
[39] The question is whether the commissioner ought to have erred on the side
of caution and mero motu postponed the hearing given the absence of Mr
Bozo and Mr Lotz in order to allow the applicant to finalise its case.
[40] In this regard, there is no evidence in the record that Mr Bozo and Mr Lotz
were aware that the hearing was set to resume on 1 December 2022. The
record shows only that both the commissioner and the municipality’s
representative unsuccessfully attempted to contact them.
[41] The first respondent argues that since section 138(1) of the LRA affords
great latitude to the commissioner to conduct proceedings quickly, the
commissioner cannot be criticised for continuing in their absence. It relies
heavily upon what the commissioner says in the record regarding both his
attempts and that of the first respondent to contact the applicant’s
representative and Mr Lotz. However, that does not constitute evidence for
the same reasons given above.
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[42] Moreover, the first respondent overlooks the fact that Mr Lotz, under oath,
explains their absence. That explanation is entirely unchallenged. It is trite
that i f the respondent’s affidavit in answer to the applicant’s founding
affidavit fails to admit or deny, or confess and avoid, allegations in the
applicant’s affidavit, the court will, for the purposes of the application,
accept the applicant’s allegations as correct.
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[43] In my view, the commissioner ought to have mero motu postponed the
hearing in order to ensure that Mr Bozo and Mr Lotz were properly notified
when the arbitration would resume. Proceeding in their absence, violated
the applicant’s right to audi alterem partem and thus procedurally unfair.
[44] Regarding the commissioner’s failure to allow the applicant the opportunity
to make submissions, in Mutual & Federal Insurance Co Ltd,
8 Jali AJ held
that the commissioner committed a reviewable irregularity in failing to
allow a party the opportunity to present closing argument. That is the case
here.
[45] In my view, fairness dictates that the commissioner ought to have, at the
very least, adjourned proceedings to afford the applicant an opportunity to
make closing submissions. His failure to do so likewise violated the
applicant’s right to audi.
[46] Accordingly, the commissioner’s decision to proceed in the absence of the
applicant and Mr Lotz , constitutes a gross irregularity as contemplated in
section 145(2).
[47] In all the circumstances, the award cannot stand.
Appropriate remedy
[48] Since the proceedings are tainted by gross procedural irregularities, the
dispute has not been properly unresolved. Accordingly, the appropriate
7 Moosa v Knox 1949 (3) SA 327 (N) at 331.
8 Mutual & Federal Insurance Co Ltd v The Commission for Conciliation Mediation & Arbitration
& others [1997] 12 BLLR 1610 (LC) at 1616.
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remedy is to remit this matter for hearing de novo before a new
commissioner.
Costs
[49] Neither the a pplicant nor the first respondent are to blame for the defects
vitiating the award. Accordingly, it is fair that there be no order as to costs.
Order
[50] In the result, the following order is made:
1. The third respondent’s arbitration award under case number
WCP062221 dated 8 December 2022 is reviewed and set aside;
2. The dispute is remitted to the second respondent for hearing de
novo before a commissioner other than the third respondent;
3. There is no order as to costs.
_______________________
PS MacKenzie
Acting Judge of the Labour Court of South Africa
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Appearances:
For the applicant: Mr E Geldenhuys of MacGregor Erasmus Attorneys
Inc
For the first respondent: A Jansen (watching brief only)
(Heads of argument prepared by A Montzinger)
Instructed by: S A Hofmeyr & Son Attorneys