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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 1997/21
In the matter between:
WEIR MINERALS AFRICA (PTY) LTD Applicant
and
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA (“NUMSA”) First Respondent
BULELANI MAKALENI Second Respondent
SIPHO GALO Third Respondent
METAL AND ENGINEERING INDUSTRIES
BARGAINING COUNCIL (“MEIBC”) Fourth Respondent
COMMISSIONER DAISY MANZANA N.O Fifth Respondent
Heard: 25 June 2025
Delivered: 1 October 2025
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Summary: Review and cross-review application in terms of section 145 of the
Labour Relations Act 66 of 1995 – Test for review restated – Commissioner
erred in placing reliance on an apology which did not materialise.
The word ‘ Impimpi’ in the employment context considered – Outcome of the
award found to be unreasonable – Award reviewed and set aside – Held that
the dismissal is substantively fair – Cross-review dismissed – No order as to
costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MOTSHEKGA, AJ
Introduction
[1] Serving before the Court are two applications , a review and cross -review of
the arbitration award (award) rendered by the fifth respondent as the duly
appointed Commissioner (the Commissioner) on 25 June 2021 , under the
auspices of the fourth respondent , the Metal and Engineering Industries
Bargaining Council (MEIBC). The review applications are brought in terms of
section 145 of the Labour Relations Act1 (the LRA).
[2] The applicant, Weir Minerals Africa (Pty) Ltd (the employer ), seeks an order
reviewing and setting aside the award, and in the alternative that the matter
be remitted to the MEIBC for a fresh hearing before another commissioner.
[3] At the outset, it is apposite to record that the employer’s review application is
prefaced by an application for condonation of the late filing of the record and
an application for the uplifting of the file from archives in terms of Clause
1 Act 66 of 1995, as amended.
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11.2.7 of the now -repealed Practice Manual of the Labour Court 2. These
interlocutory applications were not opposed by any of the respondents . For
the sake of brevity, it suffices to state that the Court accordingly granted the
relief as prayed for on the previous sitting, following submissions to the effect
that late filing of the record was attributed to the failures of the MEIBC, which
submissions the Court accepted as plausible.
[4] The first, second and third respondents (the respondents), oppose the
applicant’s review application and have simultaneously launched a cross -
review of the commissioner’s award. Similarly, the applicant opposes the
respondents’ cross-review application.
[5] The second respondent , Bulelani Makaleni and the third respondent Sipho
Galo are members of the first respondent, National Union of Mine W orkers of
South Africa (NUMSA) and will be referred to collectively as ‘the employees’.
Relevant Facts
[6] The employees at the time of their dismissals were union shop stewards and
on 21 August 2020, they were charged as follows:
‘Gross Misconduct in one or more of the following categories:
Breach of Duty to act in good faith
And /or
Failure to promote the interests of the Company:
In that a message was sent to the employees of Wier on WhatsApp group on
behalf of shop stewards with cell phone no 0[ …] on or about 04 July 2020
which read as follows;
“Comrade from Warehouse let’s stop mpimping please, what is the benefit of
losing or of assisting company to fire our members. I just want to warn those
who continually working hand in hand with supervisors to destroy other
2 Clause 11.2.7 provided that a review application lapses and the file is to be archived where an
applicant has failed to file the necessary papers within a period of 12 months, unless good cause can
be shown for the removal of the file from archives.
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employees, there was an incident last night as rubber warehouse, where the
supervisor confronted comrade Freddy, as he claimed that Freddy was
sleeping, during the argument, the supervisor told Freddy he is not fighting
with him but he was called by one of our members, he must come to a
particular spot where he will find comrade sleeping. As shop stewards we
condemn such kind of behavior and we are not going to lead divided
comrade. Let’s be careful because we will expose those individuals because
it seems it is consistent.”
The content of the message misleads/threatens employees implying that they
should not report acts of misconduct.’
[7] A disciplinary hearing was held on 26 August 2020, wherein the employees
were assisted by Mr Anthony Manaka, a NUMSA official. It is further recorded
that the employees declined to enter a plea but fully associated themselves
with the message.
[8] At the conclusion of the disciplinary hearing, t he chairperson found the
employees guilty of gross misconduct and recommended that they be
dismissed. Accordingly, the employees were dismissed on 1 September 2020.
[9] Dissatisfied with the out come of the disciplinary hearing, the employees
referred the matter to the MEIBC, alleging unfair dismissal.
The Arbitration award
[10] The commissioner held that the respondent had proven that the applicants
breached the Rules. However, she found that the dismissal was substantively
unfair and ordered reinstatement without retrospective effect. The following
salient paragraphs from the award provide insight t o the reasoning behind the
commissioner’s finding:
‘…
54. … The evidence that the applicants were offered an opportunity to
apologize does not support the version that they cannot be trusted but
indicate on a balance of probabilities that the apology would have
settled the dispute.
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…
56. The Code of Good Practice on dismissals promotes progressive
discipline however; the Code also states that each case must be
treated on its own merits. Based on common cause that the applicants
had clean disciplinary records in their period of employment, and were
offered an opportunity to apologiz e but did not, I find that the sanction
of dismissal was harsh as the offer to apologiz e indicates that there
were still prospects of a continued employment relationship.
57. The applicants seek retrospective reinstatement, and I find it fair and
reasonable to order the respondent to reinstate the two applicants to
the positions they occupied or any similar positions with the same
terms and conditions of employment that existed before their
dismissal. The reinstatement is not retrospective i.e. period of
dismissal is as unpaid suspension...’ (Own emphasis)
[11] It is against these findings of the commissioner that the employer has
approached this C ourt for a review , with the employees similarly launching a
cross-review.
Grounds for the review
[12] In the main, the employer’s disconcert with the commissioner’s award is
directed at the sanction, thus making its application that which is commonly
known as a ‘sanction review’.
[13] The employer contends that the finding of the commissioner is not one which
a reasonable commissioner would have arrived at for the following reasons;
(a) the commissioner’s finding that an offer for an apology negated that a trust
relationship had been broken is not supported by evidence that there was no
apology received from the employees and (b) the employees persistently
failed to acknowledge any wrongdoing and showed no remorse.
[14] The employer submitted that whether or not the apology would have led to a
finding of any existence of a trust relationship or to have had any bearing on a
determination of an appropriate sanction could not be assessed absent the
apology having materialised.
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[15] Furthermore, Ms Kok argued for the employer, it is trite that the
acknowledgement of wrongdoing and showing remorse are imperative
differential treatment factors in deciding whether progressive discipline is
appropriate in the circumstances. In the current matter, the commissioner
erred by ignoring the employees’ non- acknowledgement of wrongdoing and
lack of remorse in toto and on that basis, her finding is grossly unreasonable.
[16] It was argued on behalf of the employees that the commissioner failed to
properly discharge her duties regarding the finding of guilt by deferring to the
employer’s interpretation of the threatening nature of the WhatsApp text. The
argument continued, she ought to have made her own determination with due
regard to the evidence before her , including the employees’ testimony at
arbitration, absent which, this failure is a reviewable irregularity. To this end,
the employees urged the Court that the word ‘Mpimping’ was used ‘informally’
in the context of a fellow employee member, Freddy, who had been falsely
accused of sleeping. Furthermore, submitted Mr Ngako, although the
WhatsApp message could have been drafted differently, its context needs to
be taken into consideration.
Grounds for the cross-review
[17] The employees , in their answering affidavit to the employer’s review
application, deny the submissions made thereat and contend that they were
not guilty of misconduct.
[18] In their application for a cross -review, the employees persist with their
contention that they did not breach any rules; however, the ground for their
cross-review is premised on the non- retrospectivity of their reinstatement and
not the commissioner’s guilt finding.
[19] In the result, the only pertinent ground in relation to the cross -review is found
in the employees’ founding affidavit and reads as follows3:
3 Pleadings Index at page 55.
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‘24. The first to third respondent submit that the fifth respondent’s award is
reviewable on one or all of the following grounds:
24.1 The first to third respondent [the employees] submit that the
fifth respondent [the commissioner] committed misconduct in
that she committed an error of law and/or fact when she found
that the individual respondents’ dismissal was substantively
unfair but failed to grant the individual respondents the primary
relief of retrospective reinstatement.
24.2 The fifth respondent should have found that the primary relief
of retrospective reinstatement should have been awarded
because:
24.2.1 The fifth respondent is compelled to require the
applicant to reinstate the individual respondents
retrospectively to a date not earlier than the date of
dismissal unless they do not wish to be reinstated
…
24.3 The first to third respondent submit that the fifth respondent
committed misconduct in that she came to a conclusion that no
reasonable arbitrator could have reached.’
[20] It was submitted on behalf of the employees that the appropriate primary relief
for their unfair dismissal is reinstatement without any loss of benefits unless
the provisions of section 193 (2)(b) of the LRA are applicable, that is, a
continued employment relationship would be intolerable.
The test for review
[21] In sum, the grounds for review pleaded by the respective parties, albeit for
different reasons, is directed at the reasonableness of the commissioner’s
finding on sanction. Strictly speaking the cross -review is predicated on the
alleged error of law. Differently put, the commissioner failed to apply the
section dealing with the remedy of reinstatement appropriately.
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[22] The test for review is well-settled and derived from the seminal judgment of
Sidumo & another v Rustenburg Platinum Mines Ltd & others4 wherein the
Constitutional Court posited 5: “Is the decision reached by the c ommissioner
one that a reasonable decision- maker could not reach?” This has come to be
known as the ‘Sidumo test’.
[23] The Sidumo test has since been the subject of copious exposition in
subsequent authorities. However, as per Van Niekerk J6 (as he then was), the
locus classicus on reviews is the LAC judgment of Head of Department of
Education v Mofokeng and Others 7 (Mofokeng). The following passage in
Mofokeng is instructive for purposes of determining unreasonableness by a
review court:8
‘Irregularities or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide a compelling indication that
the arbitrator misconceived the e nquiry. In the final analysis, it will depend on
the materiality of the error or irregularity and its relation to the result. Whether
the irregularity or error is material must be assessed and determined with
reference to the distorting effect it may or may not have had upon the
arbitrator’s conception of the enquiry, the delimitation of the issues to be
determined and the ultimate outcome. If but for an error or irregularity a
different outcome would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would point to at
least a prima facie unreasonable result. The reviewing judge must then have
regard to the general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests impacted
upon by the decision; and then ask whether a reasonable equilibrium has
been struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the arbitrator, a wrong answer will not
necessarily be unreasonable.’
necessarily be unreasonable.’
4 [2007] 12 BLLR 1097 CC; (2007) 28 ILJ 2405 (CC).
5 Ibid at para 110.
6 In Intercape Ferreira Mainliner (Pty) Ltd v McWade & others (2020) 41 ILJ 208 (LC); [2020] 2 BLLR
199 (LC) at para 9; see A Myburgh SC ‘Reasonableness Review - The Quest for Consistency' (2024)
45 ILJ 1377 at 1390.
7 (2015) 36 ILJ 2802 (LAC); [2015] 1 BLLR 50 (LAC).
8 Ibid at para 33.
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[24] Myburgh aptly crystallises the above dictum into a m ethodology for a review
court when deciding the reasonableness of the outcome of an award, as
follows:9
‘(i) having identified an error or irregularity (for example, the ignoring of
material facts), the first inquiry is whether it was material, which would
be the case if, but for it, the commissioner would have come to a
different result; (ii) if this is established, the (incorrect) result arrived at
by the commissioner is prima facie unreasonable; and (iii) a second
inquiry must then be embarked upon — it being whether the result is
nevertheless capable of reasonable justification... Instead of asking in
an abstract way whether the result of the award is reasonable (which
is a difficult inquiry), one is required to identify what went wrong;
whether the result would have been different but for this; and, if so,
whether the wrong decision is capable of reasonable justification .’
(Own emphasis)
Evaluation
[25] It is overtly evident ex facie the award that the commissioner’s finding of
substantive unfairness rested on an apology which never materialised.
[26] The commissioner erred in attaching any weight to a non- existent apology
and more particularly in finding that the offer to apologise is indicative of any
prospects of a continued working relationship. An opportunity to apologise is
only the beginning of a conciliatory process within a dispute resolution
process; it would normally be followed by the actual apology, then a
consideration of the said apology – however it may be framed – and finally an
acceptance or rejection of the apology depending on the circumstances.
[27] In casu, no apology was tendered. The employer was therefore deprived of
the opportunity to weigh the nature of any such apology against the gross
misconduct and determine whether it would have been acceptable for
purposes of a continued employment relationship.
purposes of a continued employment relationship.
9 Myburgh above n 6 at 1391. This formulation was recently cited with approval by the Labour Appeal
Court in National Bargaining Council for the Road Freight & Logistics Industry v Deysel NO & others
(2025) 46 ILJ 1679 (LAC); [2025] 8 BLLR 790 (LAC) at para 34.
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[28] To conclude on this aspect - for an apology to have formed part of a
determination on sanction, it needed to have materialised, absent which, the
commissioner’s reliance on an offer to apologise as a panacea to dismissal is
misconceived and led to the outcome being prima facie unreasonable. In
essence, a reasonable decision maker may not, in the absence of a
demonstration of remorse, arrive at a decision that the sanction of dismissal is
inappropriate. Inasmuch as a commissioner is not supposed to defer to the
sanction of an employer, he or she must interfere with the sanction if it is
unfair. Absent unfairness, a commissioner is not at large to interfere with the
sanction of an employer.
[29] Therefore, in having identified the error committed by the commissioner, the
first enquiry in determining unreasonableness thereat is to establish whether
this error was material. The Court finds that but for the aspect of the apology,
the commissioner, hav ing found that the employees were guilty of gross
misconduct, would have arrived at a different sanction.
[30] The subsequent enquiry , as per the Mofokeng dictum
10, is determining
whether, notwithstanding a finding that the commissioner’s error led to a
prima facie unreasonable result , the latter is capabl e of a reasonable
justification. This Court finds that the commissioner’s result is not so capable.
The only other reason cited by the commissioner for finding the dismissal as
‘harsh’ is the employees’ clean disciplinary record. A clean disciplinary record
alone cannot shield unremorseful employees from the consequences of their
gross misconduct.
[31] As stated elsewhere above, Mr Ngako for the employees argued that the
commissioner ought not to have deferred to the employer’s decision that the
WhatsApp message was threatening without imputing her own interpretation.
This was raised from the bar and not as a ground in the employees’ cross -
review. Thus the employees are bound by their pleadings and the Court
review. Thus the employees are bound by their pleadings and the Court
cannot make a determination on this ground, as it was not pleaded and the
employer was not afforded an opportunity to respond to it in its own pleadings.
10 Mofokeng above at n 7.
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[32] Notwithstanding the above finding and without interfering with the
commissioner’s finding on guilt, the use of the word ‘Mpimping’ in the
WhatsApp message requires careful consideration by the Court. Mpimping is
a verb derived from the word ‘ Impimpi’. With its origins from isiNguni
languages (isiZulu and isiXhosa), it denotes to spy or informer – that is –
someone who secretly provides information to the authority regarding the
activities of others . While not endemic to the apartheid era, it is, as correctly
argued by the employer , patently threatening. The word is part of a painful
history where those so labelled were the subject of severe retaliation, with
consequences that were sometimes fatal . In the employment context, no
employee should fear being labelled an Impimpi for reporting wrongdoing by a
fellow employee. Union activities do not exist outside the social milieu in
which they operate, and their presence in a workplace ought to strengthen the
collective bargaining process and not foster an atmosphere of intimidation.
[33] Finally, the employees’ failure to appreciate their wrongdoing is regrettable.
This failure demonstrates that the trust relationship has, therefore, broken
down, and thus the commissioner’s finding that employees should be
reinstated is not a decision which a reasonable decision-maker could reach.
[34] The Court, in its conclusion above, finds refuge in the following pa ssage from
the Labour Court in National Union of Metalworkers of SA & another v
Commission for Conciliation, Mediation & Arbitration & others:11
‘… an employee is obliged to act to protect the interests of the employer and
where an employee fails to do so and the failure constitutes serious
misconduct, the sanction of dismissal will be fai r, as the employer is entitled,
as an operational imperative, to rely on its employees to act in good faith and
to protect the interests… In such a case, dismissal becomes an operational
imperative and way of a managing risk.’
imperative and way of a managing risk.’
[35] Axiomatically, the Court , having found that the employer has proven the
unreasonableness in the outcome of the commissioner’s award in her finding
11 (2023) 44 ILJ 1575 (LC); [2022] 3 BLLR 209 (CC) at para 54.
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that the dismissal was substantively unfair, the employees’ cross -review must
fail.
[36] Accordingly, the following order is made:
Order
1. The award issued by the commissioner on 18 August 2021 under
MEGA case no 56632 is reviewed and set aside.
2. The following award is substituted for it: ‘The dismissal of the
applicants is found to be substantively fair’.
3. The respondents’ cross-review is dismissed.
4. There is no order as to costs.
_______________________
M. J. Motshekga
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Ms L. Kok of Van Zyl Attorneys
For the First Respondent: Mr X. Ngako of Ngako Incorporated Attorneys