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[2025] ZALCCT 101
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Mugwagwa v Commission for Conciliation, Mediation and Arbitration and Others (C156/2023) [2025] ZALCCT 101 (16 October 2025)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no:
C156/2023
In
the matter between:
GIVEMORE TAFADZWA
MUGWAGWA
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
I
DE VLIEGER- SEYNHAEVE N.O
Second Respondent
BOTMA
FAMILIE TRUST
Third Respondent
Heard
:
15 October 2025
Delivered
:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by email, and by publication on
Caselines. The date for hand-down is
deemed to be 16 October 2025.
Summary:
An application in terms of
section 145
of the
Labour Relations Act No
66 of 1995
to review an award on the sole ground that an applicant
was not pleased with how the case was handled at the arbitration
stage.
Application dismissed.
JUDGMENT
GANDIDZE, J
Introduction
[1]
The applicant, an unrepresented litigant, seeks an order reviewing
and setting aside an arbitration award dated 18 March
2023, issued
under the auspices of the Commission for Conciliation, Mediation and
Arbitration in case number WECT16491-22, which
found that his
dismissal by the Botma Familie Trust, the third respondent herein,
was substantively fair.
[2]
The review application was filed 18 days late, and the applicant
sought condonation for the late filing. He states that
he had to
leave the country to get another passport. No details are given about
when the applicant left the country to obtain a
new passport or when
he returned. These details were required to assess the bona fides of
the applicant’s explanation for
the delay; without that
information, it cannot be said that the applicant has shown good
cause for filing the review application
late. Therefore, I would
refuse condonation, and that would be the end of the matter.
[3]
However, for completeness, I will now address the merits of the
review application.
No
grounds of review
[4]
The applicant submitted that he sought to have the arbitration award
reviewed, ‘
as I was not so pleased with how the case was
handled’
. There is nothing else in the founding affidavit
on why the award is reviewable, other than this quoted statement.
While it is
understandable that the founding affidavit does not refer
to any grounds for review as required by
section 145
of the LRA
because the applicant was unrepresented, it is not for this Court, in
a review application, to formulate grounds for
review for an
applicant. The applicant was requesting that the Court to consider
the entire record in the matter and determine
why an award should be
set aside in the applicant's favour. This the Court cannot do. It is
for an applicant to specify, with reference
to the grounds for review
set out in
section 145
of the LRA, why an award is susceptible to be
reviewed and set aside, and for the Court to then assess whether a
case has been
made out to review and set aside an award.
Unfortunately, that did not happen in this case.
[5]
Without knowing the grounds upon which an award in its favour is
being attacked, it is not possible to prepare and file
an answering
affidavit. This is the predicament that the third respondent was put
in, even though it filed an answering affidavit
raising the
preliminary points that no case had been made out for condonation or
for the reviewing or setting aside of the award,
and that the award
is not one that no reasonable decision maker could arrive at. The
third respondent could not say any more, as
it was unclear what
issues the applicant had with the arbitration award.
[6]
In oral argument, Mr Mugwagwa sought to specify what it is that he
was complaining about regarding the award. The challenge
for Mr
Mugwagwa is that the third respondent had a right to be forewarned of
the case it was required to answer, and this did not
happen. An
applicant is not allowed to argue a review based on grounds or
complaints that were not pleaded.
[7]
On that further basis, the review application falls to be dismissed.
The
evidence
[8]
Even if the Court considers the evidence presented during the
arbitration proceedings and the award, it is difficult to
find a
reason to criticise the commissioner for the conclusion he reached.
[9]
During the arbitration proceedings, the applicant was represented by
his union, the National Union of Food, Beverage,
Wine, Spirit and
Allied Workers Union (NUFBWSAW), and the third respondent was
represented by an employer’s organisation,
the South African
United Commercial and Allied Employers’ Organisation.
[10]
The background to the applicant’s dismissal is that the third
respondent operates a poultry farm. The applicant
had been employed
by the third respondent since 2008, and at the time of his dismissal,
he was a Supervisor. He was dismissed for
sabotage and inciting staff
after what the applicant described as a misunderstanding with Mr.
Botma Senior regarding his work.
The applicant was alleged to have
incited the casual employees he had transported to work that day to
leave the third respondent’s
premises, leaving the third
respondent with no staff to clean the chicken houses in preparation
for the arrival of a batch of chicks
the following day. The third
respondent had to find other people to do the work that the casual
employees were meant to do.
[11]
At the
arbitration proceedings, Botma Senior, a trustee of the third
respondent, testified that on 7 October 2022, the applicant
was
issued with a written warning for leaving work early but then
claiming payment for a full shift.
[1]
This upset the applicant, who then aggressively instructed the casual
employees preparing the houses where the expected 40,000
chicks would
have been kept to leave with him. They got into his bakkie and left.
[12]
During cross-examination, the applicant put it to Bothma Senior that
he informed the casuals that he was leaving, and
they chose to go
with him as they did not have transport. Botma Senior disputed this,
stating that the third respondent provided
transport to the casual
employees and they were not dependent on the applicant for transport.
[13]
Mr. Botma (Botma Junior), who is also a trustee and manager,
testified about the written warning issued to the applicant.
He said
he expected this warning to upset the applicant and cause him to
leave the premises to cool down. However, he did not foresee
that the
applicant would persuade the casual workers to leave with him. He
tried to stop the casual workers from leaving with the
applicant, but
some of them got into the applicant’s car. Then, the applicant
instructed the other two casual workers outside
his car to get in so
they could leave. Sometimes, the third respondent transports the
casual workers, and on that day, that arrangement
had been made. They
needed to find other casual workers to complete the work, as they
were at risk of losing the chicks.
[14]
During cross-examination, the applicant maintained that the casual
workers left the premises of their own free will,
while the witness
disagreed, stating they wanted to work and earn money. The witness
also mentioned that the applicant had visited
all the houses where
the casual workers were cleaning and that they heard the applicant
instruct the casual workers to get in the
bakkie. Furthermore, the
witness stated that the applicant said ‘they were leaving now’,
directed at the casuals who
were still outside the vehicle.
[15]
The applicant testified in support of his own case and called one of
the casuals as a witness.
[16]
He
testified that he had worked for the third respondent for 15 years.
The award records that the applicant received a warning,
which upset
him and prompted him to decide to go home.
[2]
He was upset because he often worked the night shift and was not
given days off.
[17]
The practice was for him to bring in casual workers whenever they
needed to clean the chicken houses. That day, he brought
in about
five or six casual workers. After informing Botma Senior that he was
leaving, he went to the houses where the casual workers
were cleaning
and told them he was leaving due to a misunderstanding with Botma
Senior, and that they could stay and get paid.
He did not deny that
Botma Junior, the manager, pleaded with the casual workers to stay,
but that they jumped into his car, and
he could not force them to
remain. He also stated that they were scared of the boss, who was
shouting.
[18]
A casual employee, Mr Rauziwi, confirmed that the applicant told him
he was leaving and that he could stay, but he chose
to go with the
applicant because he had no transport. He would have stayed if there
had been alternative transport. After leaving
the third respondent’s
premises, he went to another casual job.
The
award
[19]
Assessing the evidence before him, the Commissioner stated that
sabotage involves deliberately causing damage to disrupt
operations,
and that incitement is persuading another person to act in a specific
way.
[20]
Thereafter,
the Commissioner referred to the fact that he had conflicting
versions about what had transpired and therefore would
apply the test
set out in
Stellenbosch
Farmers Winery Group Pty Ltd and Another v Martell et Cie SA and
Others
[3]
,
and
make findings on the credibility of the witnesses, their reliability
and the probabilities.
[21]
The Commissioner concluded that the casual workers would not have
followed the applicant outside after he instructed
them to stay. He
reasoned that the casual workers might have left when the applicant
announced he was departing, as he was the
one who had brought them to
the premises; otherwise, they would not have had transport home. He
also found that the applicant should
have informed the casual workers
that the third respondent would provide them with transport. Instead,
he left with the casual
workers, despite Botma's pleas for him not to
go.
[22]
The Commissioner also referred to an affidavit by one of the casual
workers who was not available to testify. It recorded
that the
applicant was forceful and told them they were leaving with him.
However, the Commissioner acknowledged that the affidavit
could not
carry much weight since the casual worker in question had not
testified.
[23]
Finally, the Commissioner reasoned that, having worked for the third
respondent for as long as he had, the applicant
understood the
importance of preparing the poultry houses for the chicks' arrival,
and he was aware that failing to clean the houses
could cause serious
harm. He found the respondent’s version more probable and
concluded that the applicant was guilty of
the charge he faced.
[24]
On
sanction, the commissioner referred to the Constitutional Court
decision in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
,
which required him to consider relevant factors when determining an
appropriate sanction. He considered the fact that the misconduct
committed by the applicant went to the heart of the employment
relationship and affected the trust relationship, as he was required
to act in the best interests of the employer, and that the misconduct
was such that dismissal was justified. In this regard, the
commissioner referred to the relevant case authorities on the issue.
[25]
The commissioner also took into account that the applicant did not
accept responsibility for his actions and showed no
contrition.
[26]
For those reasons, he found that dismissal was an appropriate
sanction.
Analysis
[27]
As the applicant did not, in his founding affidavit, specify the
aspects in which the award failed to ‘please’
him, the
only issue the Court needs to determine is whether the award is one
that no reasonable decision-maker could have reached,
which is the
test set out in the
Sidumo
judgment I have referred to above.
Based on the facts of this case, the conclusions reached by the
Commissioner are the only ones
that could have been made, given the
evidence before him. There is nothing more for this Court to add to
the Commissioner’s
award. It stands.
[28]
In the premise, the following order is made:
Order
1.
Condonation
for the late filing of the review application is refused.
2.
The
review application is dismissed.
3.
There
is no order as to costs.
T
Gandidze
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
In person
For the
Respondent: Mr Bell
Instructed
by:
C & A Friedlander Attorneys
[1]
In oral submissions, the applicant submitted that what upset him is
that he was told that he would no longer be working night
shift and
would be cleaning the chicken houses instead.
[2]
Above
I have already noted that the applicant gave a different version
about what upset him.
[3]
2003
(1) SA 11 (SCA).
[4]
[2007] 12 BLLR 1097
(CC).