THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2995/19
In the matter between:
NTSIELENI EMMANUEL NETSHITOMBONI Applicant
and
NATIONAL CONSUMER COMMISSION First Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
G.S JANSEN VAN VUUREN N.O Third Respondent
Heard: 21 November 2024
Delivery: 29 May 2025
JUDGMENT
BALOYI, AJ
Introduction
[1] This is an application in terms of section 145 of the Labour Relations Act 1.
The applicant seeks the review and setting aside of the Award of the third
1 Act 66 of 1995, as amended.
2
respondent (the Commissioner) issued under the auspices of the second
respondent, the Commission for Conciliation Mediation and Arbitration
(CCMA), in which the Commissioner found that the dismissal of the applicant
was substantively and procedurally unfair and ordered the first respondent to
pay six months compensation to the applicant . In the CCMA, t he applicant
sought reinstatement , and the Commissioner concluded that reinstatement
was not appropriate because the relationship of trust with the employer had
broken down and the applicant’s psychiatrist had recommended in a report
that “[the applicant] should be removed from the toxic environment at work”.
[2] The applicant disputes a breakdown of the relationship with the employer and
the Commissioner’s reliance on the psychiatrist’s recommendation that he be
removed from the toxic work environment. He seeks that the award be set
aside and replaced with an order that he be reinstated retrospectively and
without loss of benefits.
[3] The application is opposed by the first respondent which, in addition to
contesting the grounds for review relied upon by the applicant, has raised
points in limine that – (i) the application is brought out of time and the
applicant has not demonstrated good cause for condonation; and (ii) the
applicant acquiesced in the award and is precluded from bringing this review
application.
[4] I accordingly deal first with condonation and the defence of peremption, either
of which dispose of the matter if decided against the applicant.
The facts briefly
[5] It is only necessary to set out the following brief facts.
[6] The applicant was employed by the National Consumer Commission (NCC),
the first respondent , as Senior Manager Information Technology from 15
August 2011 until he was dismissed on 14 February 2017. I t is common
cause that he was dismissed without a hearing and with immediate effect for
gross insubordination after he defied an instruction of the first respondent’s
gross insubordination after he defied an instruction of the first respondent’s
Commissioner, Mr Ebrahim Mohamed, not to leave the management
3
committee on 13 February 2017. The letter of termination dated 14 Februar y
2017 states that the following reasons for dismissal – (i) disregarding Mr
Mohamed’s instruction not to leave a meeting of the management committee
on 13 February 2017; (ii) leaving work early without the permission and in
disregard of his line manager’s refusal to give permission to leave early on 13
February 2017; and (iii) arriving late at work, leaving work early or absence
from work without permission of his line manager, Mr Anton van der Merwe.
[7] Dissatisfied with his dismissal, the applicant referred a dispute of unfair
dismissal to the Commission for Conciliation , Mediation and Arbitration
(CCMA) which appointed the third respondent to arbitrate the dispute after
conciliation of the dispute failed.
[8] In an award dated 8 November 2019, t he Commissioner found that the
dismissal of the applicant was substantively and procedurally unfair . The
Commissioner held that the circumstances around the applicant’s dismissal
are such that a continued employment relationship would be intolerable and
that reinstatement was not appropriate. The Commissioner ordered that the
applicant pay compensation of R481 204.50 (less tax) by no later than 30
November 2019.
[9] It is common cause that the first respondent discharged the award and made
payment to the applicant’s bank account of the awarded amount on 29
November 2019.
[10] On 19 December 2019, the applicant instituted the review application. He
seeks the review and setting aside of the award, and that it is substituted with
an order of reinstatement without loss of benefits . The application is opposed
by the first respondent on the following grounds – the review application is
brought out of time and has not shown good cause for condonation; the
applicant perempted the award by accepting payment of the amount awarded
by the third respondent; the award of the third respondent is unassailable and
reinstatement is inappropriate.
Condonation
4
[11] The applicant instituted the review application on 19 December 2019, 6 weeks
after the date of the award. The complaint of delay relates to the filing of the
record and the delivery of the amended notice of motion and supplementary
founding affidavit, delivered the record 3 months after the CCMA delivered the
record. The applicant seeks condonation of the delay.
[12] According to the applicant, the Registrar informed him on 28 January 2020
that the CCMA had filed the record on 24 January 2020. His attorney s
collected the record on 7 February 2020 for transcription, and the transcribed
record was received on 25 February 2020, delivered to the first respondent by
his attorneys on 23 March 2020. The applicant delivered an amended notice
of motion and supplementary affidavit on 15 May 2020 – his explanation for
the delay is the intervening nationwide lockdown declared by the President as
a result of the Coronavirus epidemic.
[13] The applicant brought the review application without any delay, and there was
no delay in uplifting the record after his attorneys were informed of its
availability, and the first respondent does not suggest that he wilfully delayed
its transcription and filing. The fact of, and the disruption to everyday activities
brought about by the President’s declaration of a state of disaster and
nationwide lockdown in the relevant period are a notorious fact. It would be
unreasonable to insist that , notwithstanding these circumstances which
affected every person in the country and brought life as we knew it to a
standstill, the applicant should have delivered the record in that same period.
[14] I am satisfied that there is good cause to condone the delay , and the delay is
condoned.
Peremption
[15] The facts relied upon by the first respondent are that it paid the amount
ordered by the third respondent within the stipulated period. The applicant did
not object to the payment or inform the first respondent that he did not want
not object to the payment or inform the first respondent that he did not want
payment and that he intended to seek a review of the award, even as he was
aware that the award required payment to be made by 30 November 2019.
He instead requested the first respondent to withdraw his pension fund
5
benefits from the Government Employees Pension Fund, of which he was a
member. After he received payment, he did not tender repayment of the
amount paid to him in terms of the award, and only did so for the first time in
his replying affidavit, in response to the first respondent pointing this out in its
answering affidavit . According to the first respondent, this conduct
demonstrates that the applicant elected to abide by the award and is
precluded from bringing this review application.
[16] Our law does not permit a party who acquiesces in a judgment or award to
later change their mind and pursue an opposite or course inconsistent with
their first election – see Balasana v Motor Bargaining Council & others2. It is
said, one may not blow hot and cold, or have one ’s cake and eat it. The
Labour Appeal Court held this to be the correct position of law in National
Union of Mineworkers of SA & others v Fast Freeze
3. A party claiming
peremption bears the onus to prove that, either expressly or by conduct, the
other party acquiesced in the judgment or award.
[17] The Court in Relton Fred Booysen v The Sol Plaatjie Municipality and 2
others4 (Relton) held that the following facts were pertinent to demonstrate
acquiescence – (i) the applicant never indicated any intention to challenge the
arbitration award at the outset of receiving the award; (ii) the award stipulated
a date for compliance and this was adhered to by the respondent; (iii) the
applicant was paid as stipulated in the award and retained the payment ,
without any demur; (iv) the applicant never indicated that he was dissatisfied
with the award, nor did he seek to engage the first respondent on this, prior to,
at the time or immediately after he was paid; (v) the applicant was
represented and his representative did not raise any dispute about the award;
(vi) the applicant never tendered re payment of the money paid to him , when
and after filing the review application.
and after filing the review application.
[18] The Court in Relton could have been writing the judgment in the present
matter. I agree with the first respondent that the factors considered by that
2 [2011] 2 BLLR 161 (LC); (2011) 32 ILJ 297 (LC) at para 11.
3 (1992) 13 ILJ 963 (LAC).
4 (C103-16) 8 December 2017 (unreported).
6
court in finding that the applicant in that matter had perempted the award and
therefore was precluded from bringing a review application, apply in the
present application. To that list, I would add the further factor that the
applicant requested the first respondent to withdraw his pension fund benefit
from the GEPF. As with Relton , Mr Netshito mboni, (i) never indicated any
intention to challenge the arbitration award at the outset of receiving the
award even as the award stipulated a date for compliance and this was
adhered to by the first respondent; (ii) was paid as stipulated in the award and
retained the payment (and only belatedly tendered repayment in the replying
affidavit, obviously prompted by the first respondent’s allegations in the
answering affidavit which mentions the payment as ordered in the award, a
fact not disclosed in the founding affidavit, and that the applicant has retained
the payment and never offered to repay it ); (iii) never indicated that he was
dissatisfied with the award, nor did he seek to engage the first respondent on
this, prior to, at the time or immediately after he was paid, which payment he
received without protest. It is fair to say there could be no clearer, unequivocal
case of acquiescence in an award.
[19] I find that t he first respondent has discharged the onus to prove that the
applicant has acquiesced in the award and therefore perempted the award.
Conclusion
[20] Having found that the applicant perempted the award, i t follows that he is
precluded from bringing this review application, and the application must fail
on this basis. It is therefore not necessary that I deal with the merits of the
review application.
[21] Accordingly, the following order is made.
Order
1. The applicant’s late delivery of the amended notice of motion and
supplementary affidavit is condoned.
2. The application to review and set aside the award of the third
------.r-
7
respondent that the first respondent compensate the applicant in the
amount R481 204.50 to the applicant is dismissed.
3. There is no order as to costs.
________________________
MS Baloyi
Acting Judge of the Labour Court of South Africa
8
Appearances:
For the Applicant: Adv KA Tema
Instructed by: Mabuza Attorneys
For the First Respondent: Adv M Msomi
Instructed by: Cowan Harper Madikizela Attorneys