THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 903/23
In the matter between:
JERICHO KHOZA Applicant
and
SPAR NORTH RAND DISTRIBUTION First Respondent
COMMISSIONER BONGE MASOTE N.O. Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION- BENONI Third Respondent
Heard: 22 April 2025
Delivered: 19 June 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
DJAJE, AJ
Introduction
[1] This is an application in terms of section 145 of the Labour Relations Act 1
(LRA) to review and set aside the arbitration award by the second respondent
1 Act 66 of 1995, as amended.
2
declaring the dismissal of the applicant substantively fair. The applicant seeks
an order to have the dismissal declared unfair and an order for retrospective
reinstatement and appropriate compensation. In the alternative, the applicant
seeks an order remitting the matter to the third respondent for arbitration to
commence de novo before another commissioner other than the second
respondent.
[2] The applicant was dismissed by the first respondent on 18 January 2023 after
he was found guilty of:
‘- Unauthorised removal of company property that he removed a roll of
5000 Master Chef Pots stickers and gave them to a colleague;
- Breach of trust for having removed and given the said stickers to a
colleague with the intention of the said employee to benefit unduly;
- Gross Negligence by failing to carry out duties diligently in giving the
colleague the stickers to benefit improperly and unlawfully and being
dishonest to cover up gross misconduct.’
[3] The applicant was employed by the first respondent as Promotions Clerk and
had been in the employ of the first respondent since 1 March 2016. On 8
November 2022, the first respondent was running a Master Chef Pots
promotion where a customer would qualify for one sticker with the grocery
purchase of R100.00. There was an anonymous tip- off received by the
Human Resources Department of the first respondent that the applicant had
stolen stickers used for Master Chef Pots and had given them to a colleague
named Harold Cave. During investigations, Cave deposed to an affidavit
admitting that the applicant did give him the 5000 stickers, but the applicant
denied the allegations. As a result of the dispute between the applicant and
Cave, a polygraph test was conducted on the applicant and Cave with their
consent. The results showed no deception detected with Cave and deception
detected with the applicant.
[4] The respondent’s witnesses, Robert Williams and Joe Matlou, testified before
[4] The respondent’s witnesses, Robert Williams and Joe Matlou, testified before
the second respondent at the CCMA that Cave admitted during the hearing
that the applicant gave him the stickers . Frank Olivier was the Polygrapher
3
and testified that the polygraph tests showed that the applicant showed
deception and that Cave did not. Cave was subpoenaed for the arbitration but
did not attend.
[5] The applicant’s evidence was that he never gave Cave any stickers , and
further that the stock did not indicate any shortage of sticker s or any claim
from the retailers that they were short of stickers. He did confirm that Cave
asked him for stickers, but he did not give them to him as it was not allowed.
Findings by the commissioner
[6] The commissioner found that the evidence against the applicant was
overwhelming, corroborative, and based on oral , documentary and digital
recordings. In addition, as the applicant was responsible for distributing
marketing materials and overseeing the promotion campaign, it made sense
why Cave would approach him for stickers. As such, there was no reason for
Cave to lie about the applicant giving him the stickers. The commissioner
went on to reject the defences raised by the applicant of criticising the
respondent for not calling an Edward, who was mentioned by Cave, and not
presenting evidence of the cameras in Cave’s office. The finding was also
based on the results of the polygraph test that Cave was truthful, and the
applicant was not.
Law and evaluation
[7] The Constitutional Court outlined the test for review in Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others2 as follows:
‘… Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach?’
[8] Later on, the same Court in Duncanmec (Pty) Ltd v Gaylard NO and Others 3
expounded on the test as follows:
2 (2007) 28 ILJ 2405 (CC) at para 110.
3 (2018) 39 ILJ 2633 (CC) at paras 42-43.
4
‘[42] This test means that the reviewing court should not evaluate the
reasons provided by the arbitrator with a view to determine whether i t
agrees with them. That is not the role played by a court in review
proceedings. Whether the court disagrees with the reasons is not
material.
[43] The correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there are
reasons supporting it. The reasonableness requirement protects
parties from arbitrary decisions which are not justified by rational
reasons.’
[9] The Labour Appeal Court in Fidelity Cash Management Services v
Commission for Conciliation, Mediation and Arbitration and Others4 held that:
‘The test enunciated by the Constitutional Court in Sidumo for determining
whether a decision or arbitration award of a CCMA commissioner is
reasonable is a stringent test that will ensure that such awards are not lightly
interfered with. It will ensure that, more than before, and in line with the
objectives of the Act and particularly the primary objective of the effective
resolution of disputes, awards of the CCMA will be final and binding as long
as it cannot be said that such a decision or award is one that a reasonable
decision maker could not have made in the circumstances of the case. It will
not be often that an arbitration award is found to be one which a reasonable
decision maker could not have made but I also do not think that it will be rare
that an arbitration award of the CCMA is found to be one that a reasonable
decision maker could not, in all the circumstances, have reached.’
[10] The applicant’s argument is that the commissioner , in arriving at his finding,
relied on hearsay evidence which was admitted in breach of the Law of
Evidence Amendment Act 5. In that , Cave did not testify at the arbitration
proceedings, and reliance on his evidence amounted to hearsay evidence. It
was argued that hearsay evidence can only be admitted if agreed to by the
was argued that hearsay evidence can only be admitted if agreed to by the
parties or if it is in the interests of justice to do so in accordance with section
3(1)(c) of the Law of Evidence Amendment Act. The applicant’s case is that at
4 (2008) 29 ILJ 964 (LAC) at para 100.
5 Act 45 of 1988.
5
the commencement of the arbitration, there was an objection on the absence
of Cave at the arbitration as they sought to cross-examine him.
[11] The other ground of review by the applicant is the reliance on the polygraph
results by the commissioner to dismiss the applicant. It was submitted that the
respondent failed to comply with Rule 37A of the CCMA Rules which provides
that: ‘A party intending to call an expert witness must give the other party
seven (7) days’ notice together with a summary of why the person is regarded
to be an expert, the proposed evidence of the witness and the documents the
expert will rely on’ . The applicant submitted that in this matter , there was no
notice in terms of Rule 37A , and as such, a breach of the Rules occurred.
This resulted in no expert evidence being accepted at the arbitration.
[12] In contention, the respondent argued that at the arbitration, the applicant’s
representative did not object to the admission of the hearsay evidence of
Cave but only expressed difficulty in not being able to cross -examine him.
Accordingly, the respondent’s case is that fai lure to object to the admission of
hearsay evidence is implied consent to the admission thereof. In
substantiation, the respondent relied on the case of Ithala Devel opment
Finance Corporation Ltd v Zulu and Others
6 (Ithala) that ‘… when a witness
tenders inadmissible evidence, the party against whom the evidence is
tendered must immediately object to the tendering of such testimony. Failure
to object would imply that there is an agreement as to the admission of such
evidence’.
[13] Section 3 of the Law of Evidence Amendment Act provides that:
‘(1) Subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless –
(a) each party against whom the evidence is to be adduced
agrees to the admission thereof as evidence at such
proceedings;
6 (D615/2020) [2023] ZALCD 13 (24 July 2023) at para 10.
6
(b) the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person
upon whose credibility the probative value of such
evidence depends;
(vi) any prejudice to a party which the admission of such
evidence might entail; and
(vii) any other factor which should in the opinion of the court
be taken into account,
is of the opinion that such evidence should be admitted in the interests
of justice.
(2) The provisions of subsection (1) shall not render admissible any
evidence which is inadmissible on any ground other than that such
evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of
subsection (1) (b) if the court is informed that the person upon whose
credibility the probative value of such evidence depends, will himself
testify in such proceedings: Provided that if such person does not later
testify in such proceedings, the hearsay evidence shall be left out of
account unless the hearsay evidence is admitted in terms of
paragraph (a) of subsection (1) or is admitted by the court in terms of
paragraph (c) of that subsection.
(4) For the purposes of this section –
'hearsay evidence' means evidence, whether oral or in writing,
the probative value of which depends upon the credibility of
any person other than the person giving such evidence;
7
'party' means the accused or party against whom hearsay
evidence is to be adduced, including the prosecution.’
[14] The Supreme Court of Appeal in S v Ndhlovu and Others7 stated the following
about hearsay evidence and the right to cross-examination:
‘The Bill of Rights does not guarantee an entitlement to subject all evidence to
cross-examination. What it contains is the right (subject to limitation in terms
of s 36) to ‘challenge evidence’ . Where that evidence is hearsay, the right
entails that the accused is entitled to resist its admission and to scrutini se its
probative value, including its reliability. …’
[15] The Court in Ndhlovu8 went on further to state that:
‘Third, an accused cannot be ambushed by the late or unheralded admission
of hearsay evidence. The trial court must be asked clearly and timeously to
consider and rule on its admissibility. This cannot be done for the first time at
the end of the trial, nor in argument, still less in the court’s judgment, nor on
appeal. The prosecution, before closing its case, must clearly signal its
intention to invoke the provisions of the Act, and, before the State closes its
case, the trial judge must rule on admissibility, so that the accused can
appreciate the full evidentiary ambit he or she faces.’
[16] In Exxaro Coal (Pty) Ltd v Chipane9 (Exxaro), the court held that:
‘Those safeguards and precautions, duly adapted, also apply to the
application of section 3 of the LEAA in civil proceedings. Because of the
similarities between civil proceedings and arbitration proceedings, the,
overwhelmingly, adversarial nature of arbitration proceedings under the LRA,
and the overarching requirement that such proceedings be fair, those
safeguards and precautions, duly adapted, apply equally to arbitration
proceedings to ensure fairness and serve as an invaluable guide for
commissioners and arbitrators when confronted with hearsay evidence, and,
particularly, when applying section 3 of the LEAA. Adapted they would include
particularly, when applying section 3 of the LEAA. Adapted they would include
the following: (1) Section 3(1)(c) of the LEAA is not a licence for the
wholesale admission of hearsay evidence in the proceedings; (2) in applying
7 2002 (6) SA 305 (SCA) at para 24.
8 Ibid at para 18.
9 (2019) 40 ILJ 2485 (LAC) at para 24.
8
the section the commissioner must be careful to ensure that fairness is not
compromised; (3) a commissioner is to be alert to the introduction of hearsay
evidence and ought not to remain passive in that regard; (4) a party must as
early as possible in the proceedings make known its intention to rely on
hearsay evidence so that the other party is able to reasonably appreciate the
evidentiary ambit, or challenge, that he/she or it is facing. To ensure
compliance, a commissioner should at the outset require parties to indicate
such an intention; (5) the commissioner must explain to the parties the
significance of the provisions of section 3 of the LEAA, or of the alternative,
fair standard and procedure adopted by the commissioner to consider the
admission of the evidence; (6) the commissioner must timeously rule on the
admission of the hearsay evidence and the ruling on admissibility should not
be made for the first time at the end of the arbitration, or in the closing
argument, or in the award. The point at which a ruling on the admissibility of
evidence is made is crucial to ensure fairness in a criminal trial. The same
ought to be true for an arbitration conducted in an adversarial fashion
because fairness to both parties is paramount.’
[17] In this matter, Cave was subpoenaed as a witness, and he did not attend the
proceedings to testify. At the commencement of the proceedings , the
applicant raised a concern about the absence of Cave at the arbitration as he
would not have the opportunity to cross -examine him. The respondent was
allowed to present a recording of what transpired during the investigations.
The recording was allowed by the commissioner, but it was not transcribed,
and as such, it is not clear from the record what was said in the recording and
by whom. The respondent further submitted into evidence the statement by
Cave made during the investigations, where he implicates the applicant as the
person who gave him the 5000 stickers.
person who gave him the 5000 stickers.
[18] The witnesses for the respondent, Ms Mokoma, Mr Matlou and Mr Williams ,
testified about what they were told by Cave that it was the applicant who gave
him the stickers. They also testified that they acted as a result of the
anonymous tip-off received about the applicant and Cave.
[19] The general rule is that hearsay evidence is inadmissible unless consented to
by the parties or provisionally accepted if it will be confirmed or it’s in the
9
interest of justice to have it admitted. In this matter , there is no express
consent for the hearsay evidence by Cave to be admitted, nor was there any
submission made that he would testify at a later stage in the arbitration
proceedings. In his findings, the commissioner relied on the anonymous tip-off
and the version of Cave which was contained in the statement he made at the
disciplinary hearing. The commissioner went on to find that Cave had no
reason to lie about the applicant. This was not evidence at the arbitration; it
was contained in the statement made during the disciplinary hearing.
Arbitration proceedings are de novo proceedings, and the commissioner’s
finding must account for the evidence led at those proceedings.
[20] The commissioner did not make any ruling as to the admissibility of the
hearsay evidence led , and the basis for such a ruling does not appear in the
record of the proceedings . This hearsay evidence was the basis of the award
by the commissioner to conclude that the applicant’s dismissal was
substantively fair.
[21] It is also important to examine whether the commissioner had relied entirely
on the hearsay evidence.
[22] A commissioner is expected to be of assistance to the litigants where it is
clear that hearsay evidence is to be led during arbitration proceedings. The
statement made by the applicant about the difficulty to cross -examine Cave
was an indication of an objection to the leading of such evidence. The
commissioner was obliged to deal with the hearsay evidence with or without
an objection, as the general rule is that hearsay evidence is inadmissible,
subject to the provisions of section 3 of the Law of Evidence Amendment Act.
Failure to state the basis of relying on hearsay evidence during the
proceedings was prejudicial to the applicant. This Court is in no better position
to deal with such hearsay evidence as well.
[23] The applicant argued that the reliance on the polygraph results was flawed as
[23] The applicant argued that the reliance on the polygraph results was flawed as
there was no notice served in terms of Rule 37A of the CCMA R ules. The
purpose of an expert notice is for the other party to know of the expert
evidence and be able to counter it if necessary. In this matter , the record of
10
proceedings indicates that the representative of the applicant and the
applicant were aware of the evidence of Mr Olivier in relation to the polygraph
results. There was no objection thereto or a request for a postponement to
deal with the evidence. The applicant has not stated if any prejudice was
suffered because of the failure to serve a notice to call the expert.
[24] The applicant’s case is that the polygraph results should not have been relied
upon by the commissioner , as they are inconclusive. In DHL Supply Chain
(Pty) Ltd v De Beer NO and Others
10, the Labour Appeal Court dealt with
polygraph testing and held that:
‘An example of a polygraph being used in a misconduct case is Truworths Ltd
v CCMA & others (2009) 30 ILJ 677 (LC). In a review, the award was set
aside for a myriad of irregularities, including a failure to have regard to all the
evidence, amongst which was evidence of polygraph tests (at para 38).
Further, in that judgment, relying on the observations of Grogan A in Sosibo &
others v Ceramic Tile Market (2001) 22 ILJ 677 (CCMA), it was held at para
37 that a polygraph is useless on its own but may be 'taken into account'
together with 'other supporting evidence'. The dictum goes on to say that a
polygraph can serve as corroboration of other evidence.’
[25] In Food and A llied Workers Union on behalf of Kapesi and Others v Premier
Foods Ltd t/a Ribbon Salt River11, the court held that:
‘I am in agreement with the submission that while there may be a serious
debate about the reliability of the outcome of the test (see the discussion
hereinbelow) it has never been argued that the outcome of a polygraph test
can serve as a substitute for a hearing. In fact, as is clear from the decisions,
a polygraph on its own can never be conclusive proof of the guilt of an
employee. At best the polygraph could be used as part of the investigation
process to determine whether or not a further investigation into the conduct of
a particular individual is warranted.’
a particular individual is warranted.’
10 (2014) 35 ILJ 2379 (LAC) (DHL Supply Chain) at para 29.
11 (2010) 31 ILJ 1654 (LC) at para 90. See also: DHL Supply Chain supra.
11
[26] The court expressed doubts in the reliability of polygraph testing in Truworths
v Commission for Conciliation, Mediation and Arbitration and O thers12 as
follows:
‘What appears from the aforegoing is that a polygraph test on its own cannot
be used to determine the guilt of an employee (see also John Grogan
Workplace Law (9 ed) at 160). However, a polygraph certainly may be taken
into account where other supporting evidence is available provided also that
there is clear evidence on the qualifications of the polygraphist and provided
that it is clear from the evidence that the test was done according to
acceptable and recognizable standards. At the very least, the result of a
properly conducted polygraph is evidence in corroboration of the employer's
evidence and may be taken into account as a factor in assessing the
credibility of a witness and in assessing the probabilities. The mere fact that
an employee, however, refuses to undergo a polygraph is not in itself
sufficient to substantiate an employee's guilt.’
[27] The commissioner herein relied on the polygraph results together with the
hearsay evidence, which, as a general rule, is inadmissible.
[28] The court in Exxaro expanded further on fairness as follows:
‘[34] Even though this is not a criminal matter, the principles to be derived
from that decision are salient and consonant with fairness in
arbitration proceedings where section 3 of the LEAA is invoked. Both
the employer and the employee ought to be able to appreciate the
evidentiary ambit they (respectively) face, so that they are able to
conduct their cases accordingly. Late rulings on admissibility of
evidence are of no assistance to the parties and result in unfairness
that cannot be undone on review, or on appeal.
[35] While this approach appears to introduce some measure of formality
one would rather have that than unfairness. Some formality is not
anathema to arbitration proceedings in the CCMA. Section 138 does
anathema to arbitration proceedings in the CCMA. Section 138 does
not ban all formality – it merely requires “minimal formality”. In
deciding on how much formality is permissible one must be careful not
to sacrifice fairness on the altar of informality. Section 138 not only
12 (2009) 30 ILJ 677 (LC) at para 37.
12
requires minimal formality, but also requires fairness and speed. An
equitable balance must be struck so that none of these pre-eminent
values are sacrificed.’
[29] The failure by the commissioner to rule on the admissibility of the hearsay
evidence impacted his finding at the end of the proceedings , which, as stated
in Exxaro, is a sacrifice to fairness. This is the main reason why this matter
should be re mitted back to the third respondent to start de novo before
another commissioner to be properly deal t with on the issue of the
admissibility of the hearsay evidence.
[30] Consequently, I make the following order:
Order
1. The award is reviewed and set aside.
2. The matter is referred back to the third respondent for hearing de novo
before a different commissioner.
3. There is no order as to costs.
_______________________
J T Djaje
Acting Judge of the Labour Court of South Africa
13
Appearances:
For the Applicant:
Instructed by:
For the Respondents:
Instructed by: