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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1131/2017
In the matter between:
SAMWU obo S MVINJELWA Applicant
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
MMAMAHLOLA GLORIA RABYANYANA Third Respondent
Heard: 27 November 2024
Delivered: 10 October 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
VUKEYA, AJ
Introduction
2
[1] The South African Municipal Workers ’ Union (the applicant) brings an
application to this Court on behalf of Mr. Silulami Mvinjelwa (Mr Mvinjelwa) to
have the arbitration award of the South African Local Government B argaining
Council (The Bargaining Council) under case number PMD081501 dated 8
May 2017, reviewed and set aside.
[2] It requests the C ourt to decide whether the commissioner’ s reasoning falls
within the scope of reasonableness based on the conclusion that the
dismissal of Mr Mvinjelwa was both substantively and procedurally fair.
Whether a reasonable arbitrator presented with the evidence before her would
have arrived at the very same decision reached by the second respondent ,
and whether the second respondent did in fact comply with item 4(2) under
Schedule 8 of the Labour Relations Act
1 (LRA).
[3] SAMWU is the t rade union that represents Mr Mvinjelwa. Mr Mvinjelwa was
the local office bearer and a shop steward of the applicant r epresenting the
employees in the licensing department. He has been the employee of the first
respondent since 1 October 2012 until the date of his dismissal on 27 July
2015, on allegations of misconduct.
[4] Mr Mvinjelwa was charged in terms of the Disciplinary Procedure concluded
at the Bargaining Council as a Collective Agreement. He was charged with
having contravened the Code of Conduct, which is referred to in the Collective
Agreement. In terms of the first charge, it was alleged that Mr Mvinjelwa failed
to refrain from any rude, insolent, provocative, intimidatory or aggressive
behaviour to a fellow employee or a member of the public, thereby
contravening clause 1.2.9 of Annexure “A” of the Collective Agreement.
[5] The first respondent averred that Mr Mvinjelwa willfully and unlawfully
assaulted Ms Monja Basson, a member of the public, by slapping her with an
open hand across her face. It was alleged that this incident happened on or
about 20 November 2014 at the first respondent’s Centurion Licensing offices
about 20 November 2014 at the first respondent’s Centurion Licensing offices
in Pretoria. Mr Mvinjelwa was found guilty after a disciplinary hearing and was
1 Act 66 of 1995, as amended.
3
dismissed on 27 July 2015. The applicant then lodged a dispute of unfair
dismissal under the auspices of the Bargaining Council.
[6] The dispute could not be resolved by the Council for conciliation, and a
certificate of the outcome of the conciliation was issued. After the applicant’s
request to have the matter arbitrated, Ms M G Rabyanyana was appointed as
the arbitrator. The arbitration was heard on 4 April 2017, where Mr Mvinjelwa
was represented by a Union Official , Adv J Baloyi, and the first respondent by
Adv EM Ngomani.
At the arbitration proceedings
[7] What transpired at the arbitration hearing can be briefly summari sed as
follows. The arbitrator determined the issues to be decided to be:
7.1. whether the applicant’s dismissal was substantively fair;
7.2. whether the dismissal was procedurally fair; and
7.3. Appropriate relief.
[8] It was common cause at the arbitration hearing that Mr Mvinjelwa started
working on 1 October 2012 and that at the time of his dismissal , he was a
Chief Licensing Officer earning R21 277 per month. He was dismissed after a
disciplinary hearing was held on 27 July 2015 for assaulting a member of the
public. The sanction for the offence was also common cause between the
parties.
[9] Ms Basson testified that she accompanied her sister to renew her driver's
license, and after waiting in the queue for some hours, Mr Mvinjelwa refused
to assist them. He, according to Miss Basson, told her sister that he would not
accept a certified copy of an ID and that he would require the original. They
tried to explain to him that the certified copy was accepted, but he rudely
ordered them to leave. After leaving the cubicle, Ms Basson testified that she
said, ‘this is fu*ked up’ , after which Mr Mvinje lwa walked around his cubicle
and confronted her in full view of the public. He slapped her on the right side
of the face, and a plainclothes policeman came to her rescue and took them
4
to the boardroom. Ms Basson’s sister confirmed this version and denied that
her sister had insulted Mr Mvinjelwa by calling him the ‘mother fu*king kaffir’.
[10] Mr Mvinjelwa’s evidence was that he did not assault anyone on that day. He
said the two ladies came to renew a driver's license, and the one he was
helping did not have her original ID as required. He explained to her several
times that an ID was required, but they did not want to hear him out. He asked
the lady to go to his supervisor to verify the information, but Miss Basson kept
on interfering and called him a ‘ mother fu*king kaffir ’. He got outside of his
cubicle to show them his supervisor. The police came to investigate the
commotion and took them to the boardroom to listen to her story. He was then
told to assist them, and he did.
[11] Mr Thembile Mabinza was also working in the third cubicle from Mr Mvinjelwa
on the date of the incident. He said that he heard Mr Mvinjelwa saying, ‘who
are you calling the ‘F’ word?’ . At that time , Mr Mvinjelwa was standing, and
there were two ladies in front of his cubicle. After they exchanged words, he
saw the applicant going out of his cubicle and walking down the passage. Mr
Mabinza testified that he did not see any assault tak e place, and he also did
not hear what the two ladies said because there were glasses obstructing his
view.
[12] In her evaluation of the evidence, the arbitrator found that the evidence of Ms
Basson and her sister was consistent and that it was without contradictions.
She rejected Mr Mvinjelwa’s version and accepted that of the first respondent
and concluded that the first respondent had successfully proven, on a balance
of probabilities, that the dismissal of Mr Mvinjelwa was substantively fair.
Regarding the procedural challenge of the dismissal, the arbitrator remarked
that she w as convinced that if the union had not been notified, it could have
raised or ventilated the issue during the disciplinary hearing. This could have
raised or ventilated the issue during the disciplinary hearing. This could have
been submitted as evidence supporting the contention and negating the first
respondent’s letter. She was of the view that , in the absence of any evidence
rebutting the respondent ’s evidence that it had dispatched the letter to the
union, it satisfied her that the first respondent had successfully proven on a
balance of probabilities that the dismissal was procedurally fair.
5
[13] The arbitrator proceeded to make an award as follows:
‘The applicant’s dismissal is substantively and procedurally fair.
The application is dismissed.’
On review
[14] The issues for determination in this application are very crisp, and they are
whether the dismissal of Mr Mvinjelwa was substantively and procedurally
unfair and whether the arbitration award made was one which a reasonable
decision maker could make based on the facts and evidence presented to her
at the arbitration hearing.
[15] In this review application, the applicant contended that the arbitrator failed to
fully assess the evidence presented to her and arrived at a decision which a
reasonable decision-maker in her position would not have arrived at. It further
contended that the arbitrator was wrong to conclude that the dismissal of Mr
Mvinjelwa was procedurally fair in the absence of evidence proving that the
first respondent had duly complied with the procedure for disciplining union
officials because Mr Mvinjelwa was a shop steward and a local office bearer.
[16] According to the applicant, Mr Mvinjelwa received a notice to attend a
disciplinary hearing on 10 February 2015, and his hearing began on 17
February 2015. The applicant avers that it was only informed on 18 February
2015 about the disciplinary hearing and alleges that the email , which,
according to the first respondent , was sent to the union to notify it , did not
reach the applicant’s offices. It argues , therefore, that this was contrary to the
provisions of Schedule 8, item 4(2) of the LRA and that on this basis , the
dismissal cannot be said to be procedurally fair.
[17] Discipline against a trade union representative or an employee who is an
office bearer or official of a trade union should not be instituted without first
informing and consulting the trade union.
2 It is the version of the applicant that
the employer failed to inform and consult the union before instituting the
the employer failed to inform and consult the union before instituting the
disciplinary hearing against Mr Mvinjelwa. On the other hand, the first
2 Schedule 8, item 4(2) of the LRA.
6
respondent claims to have informed and consulted the union before instituting
the disciplinary hearing. No proof, according to the applicant, has been filed to
show that a notice to inform the union about the intention to charge the
applicant was sent to the union or if it was sent, that it ever reached the union.
[18] It is the applicant’s contention that the arbitrator failed to and committed
misconduct by disregarding and or ignoring the procedural aspect of charging
a shop steward. She erred in making a finding that the procedure followed by
the respondent was fair , while the correct procedure was not followed. The
applicant further avers that the arbitrator erred in stating that the applicant
should have raised or ventilated the issue of non- compliance with Schedule 8
during the disciplinary hearing, further ignoring the fact that the arbitration
hearing was a hearing de novo and that referral on unfairness is to address all
aspects which were disregarded during a disciplinary hearing.
[19] The applicant referred the Court to the case of County Fair Foods (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
3 where the
Labour Appeal Court (LAC) stated as follows:
‘The decision of the arbitrator as to the fairness or unfairness of the
employer’s decision is not reached with reference to the evidential material
that was before the employer at the time of its decision but on the basis of all
the evidential material before the arbitrator. To that extent, the [arbitration]
proceedings are a hearing de novo.’
[20] Furthermore, the applicant avers that the arbitrator misdirected herself by
accepting hearsay evidence that there were certain policemen in private
clothes when no such police officers were called to testify and if the assault
had indeed happened in the presence of the officers, they were duty-bound to
arrest the applicant. The applicant further argues that the record of arbitration
arrest the applicant. The applicant further argues that the record of arbitration
proceedings clearly demonstrates that the arbitrator not only misconstrued
important aspects of the evidence, but she also failed to apply her mind to the
absence of a J88 form , which could have proven whether the witness was
indeed assaulted or not.
3 (1999) 20 ILJ 1701 (LAC) at para 11.
7
[21] Relying on Mushi v Exxaro Coal (Pty) Ltd 4 The applicant submitted that the
arbitrator must have regard to all material before him , including the provisions
of the disciplinary code which is applicable between the parties to an
employment contract. It argued that the arbitrator has failed to do so and
therefore, the award falls to be reviewed and set aside, it submitted.
[22] The first respondent submitted that the award given by the third respondent
was sound and well-reasoned, as she considered the evidence placed before
her by both parties. She, according to the first respondent, considered the
disciplinary code and procedure and applied her mind to the evidence before
her. Regarding the substantive fairness of the dismissal, the first respondent
submits that Mr Mvinjelwa’s defence was that of a bare denial, but his version
was improbable. The first respondent argued that the police who were present
when the incident happened would not have intervened if he had only directed
the witnesses to a particular office for further inquiries.
[23] It is further submitted by the first respondent that Mr Mvinjelwa’s evidence
contradicted that of his representative, in that, although his defence was that
of a bare denial, his representative stated during cross-examination of the first
respondent that he would testify that he slapped her with an open hand. The
first respondent’s submission was that the arbitrator correctly found that it ha d
successfully discharged its onus in terms of item 7 of Schedule 8 of the Code
of Good Practice and that her finding that the dismissal was substantively fair
stands to be confirmed.
[24] Regarding the finding of procedural fairness made by the arbitrator on the
ground that in the absence of any evidence rebutting the respondent’s
evidence that it had dispatched the letter to the union, she was satisfied that
the first respondent had successfully proven on a balance of probabilities that
the first respondent had successfully proven on a balance of probabilities that
the dismissal was procedurally fair, is correct and stands to be confirmed by
this Court.
[25] The first respondent submits that on 10 February 2015, the union was
informed of the intended disciplinary hearing. It stated in its opposing affidavit
4 2020 JDR 2927 (LAC).
8
that although the notice to SAMWU was dated 10 February 2015, it was
formally sent on 18 February 2015 to M[…]. On 17 February 2015, the
disciplinary hearing did not proceed to allow the parties to consult. The letter,
which is attached to the pleadings as annexure “STS3”, reads as follows:
‘In terms of the Labour Relations Act (Act 66 of 1995) discipline against a
trade union representative should not be instituted without first informing the
union.
I therefore, hereby have to inform you that we intent (sic) to take disciplinary
action against one of your Shop Stewards Mr S Mvinjelwa (180588).’
[26] The first respondent’s submission is that it has complied with the provisions of
Schedule 8 (4) (2) of the LRA , as the postponement was to consult in
accordance with Schedule 8. It conceded that the letter was not sent before
17 February 2015, but stated that it was mindful that the purpose of item 4(2)
was for the union to be informed and consulted when an office bearer is to be
disciplined; however, the purpose of the postponement was to fulfil the
consultation process. The first respondent referred the court to the case of
BIFAWU and Another v Mutual and Federal Insurance Company L td
5
(BIFAWU) where the LAC, as per Willis JA, stated as follows:
‘The trade union in question may not be a representative trade union in terms
of the LRA and, therefore, not entitled to various of the organisational rights
set out in Chapter III. Item 4(2) of Schedule 8 does not, however, confine itself
to a trade union which is representative. Nevertheless, Item 1 of the Schedule
makes it clear that that the Schedule serves as a guideline only. There seems
to have been no prejudice to the second appellant as a result of the
respondent’s failure to consult the trade union. The second appellant was
ably represented during his disciplinary enquiry by a representative of his own
choice, Mr Baardt. Moreover, account must be taken of the fact that the error
choice, Mr Baardt. Moreover, account must be taken of the fact that the error
on the part of the respondent was bona fide. There was no mischief on the
part of the employer. The mischief which the item seems designed to prevent
is the perception that a trade union representative may not have been
dismissed for a fair reason and/or after the following of a fair procedure. Such
mischief cannot be perceived here. It also seems most unlikely that the failure
5 [2006] 2 BLLR 118 (LAC) at para 32.
9
to visit an award of compensation in this case for a lack of full compliance
with the requirements of procedural fairness will result either in this employer
or others being indifferent to the guideline in Item 4(2) of Schedule 8 of the
LRA in future.’
[27] It was therefore submitted on behalf of the first respondent that the arbitrator’s
award is not reviewable because a reasonable decision-maker presented with
the same evidence would arrive at the same finding. The first applicant prays
for the dismissal of the application on the basis that it is not reviewable.
Evaluation
[28] The principles in Sidumo and Another v Rustenburg Platinum Mines Ltd and
others6 (Sidumo), becomes applicable when deciding the issue relating to the
review of arbitration awards. In Sidumo, the Constitutional Court held that the
test is whether the decision reached by the commissioner is one that a
reasonable decision maker could not reach and that the arbitrator's conclusion
must fall within a range of decisions that a reasonable decision maker could
make.
[29] In Herholdt v Nedbank Ltd (Congress of South African Trade Unions as
amicus curiae)
7, the Supreme Court of Appeal made the following remarks:
‘In summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the proceedings falls
within one of the grounds in section 145(2)(a) of the LRA. For a defect in the
conduct of the proceedings to amount to a gross irregularity as contemplated
by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of
the inquiry or arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached to particular facts, are not in and of
themselves sufficient for an award to be set aside, but are only of any
themselves sufficient for an award to be set aside, but are only of any
consequence if their effect is to render the outcome unreasonable.’
6 (2007) 28 ILJ 2405 (CC) at para 110.
7 [2012] 11 BLLR 1074 (SCA) at para 25.
10
[30] In Palabora Copper (Pty) Ltd v Motlokwa Transport & Construction (Pty) Ltd 8
(Palabora), it was stated that a gross irregularity may include a decision -
maker misconceiving the mandate. The court remarked as follows:
‘It suffices to say that where an arbitrator for some reason misconceives the
nature of the enquiry in the arbitration proceedings with the result that a party
is denied a fair hearing or a fair trial of the issues, that constitutes a gross
irregularity. The party alleging the gross irregularity must establish it. Where
an arbitrator engages in the correct enquiry, but errs either on the facts or the
law, that is not an irregularity and is not a basis for setting aside an award. If
parties choose arbitration, courts endeavour to uphold their choice and do not
lightly disturb it. The attack on the award must be measured against these
standards.’
[31] I first deal with the arbitrator’s finding that Mr Mvinjelwa’s dismissal was
substantively fair. The arbitrator based her findings on the evidence that was
before her relating to the allegations of misconduct. She accepted the
evidence tendered on behalf of the first respondent and rejected that of Mr
Mvinjelwa. The first contention made herein is that the arbitrator misdirected
herself by accepting hearsay evidence that there were certain policemen in
private clothes when no such police officers were called to testify.
[32] Hearsay evidence is ‘ 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 ’
9. The fact that there were policemen present at the
scene was testified to by the first respondent’ s witnesses as a matter of fact.
This was something they saw and witnessed. They did not hear from anyone
that the policemen were present. The evidence of these policemen would
have become relevant only to provide corroboration to the evidence of the first
have become relevant only to provide corroboration to the evidence of the first
respondent’s witnesses, or even that of Mr Mvinjelwa. The fact that they were
not called as witnesses does not affect the credibility or reliability of their
evidence.
[33] In another angle, the applicant contends that if the assault had indeed
happened in the presence of the officers, they were duty -bound to arrest the
8 2018 (5) SA 462 (SCA) at para 8.
9 Section 3(4) of the Law of Evidence Amendment Act, No 45 of 1988 (LEAA).
11
applicant. It is important to bear in mind that even though the police may
arrest any person without a warrant of arrest who commits an offence in their
presence10, it is far- fetched to submit that they were duty -bound to do so.
They have the discretion to arrest or not to arrest. Furthermore, the question
of whether Mr Mvinjelwa committed the offence was not to be determined
based on the police officer’s decision not to arrest him. To expect the
arbitrator to consider this in favour of the applicant would have been a
deviation from the relevant issues , which were whether they witnessed the
incident or not.
[34] The applicant further argued that the record of arbitration proceedings clearly
demonstrated that the arbitrator not only misconstrued important aspects of
the evidence, but she also failed to apply her mind to the absence of a J88
form, which could have proven whether the witness was indeed assaulted or
not. In other words, the absence of a J88 at the hearing did not support the
allegations made by the witnesses for the first respondent.
[35] Firstly, there are numerous reasons why a J88 may not be available, one of
which may be that the complainant did not seek medical attention after the
alleged assault, which is the case in the current application. The question ,
therefore, is, does it mean that the assault did not happen?
[36] Secondly, looking at the circumstances of the case, again, a J88 would have
provided corroboration to the evidence of Ms Basson, more so if she had
stated that she sustained visible injuries, but she did not give that evidence.
The fact that there was no J88 is not sufficient to dismiss the claims made by
the complainant , especially when considering the mosaic of the evidence
which was presented to the arbitrator. Simply put, the absence of the J88 form
is not crucial to the case of the first respondent ; she was hit with an open
hand and sustained no serious injuries. This cannot justify the sort of negative
hand and sustained no serious injuries. This cannot justify the sort of negative
inference the applicant expected the arbitrator to draw. Accordingly, I am of
the view that the finding of substantive fairness of the dismissal is not to be
interfered with.
10 Section 40 (1) of the Criminal Procedure Act 51 of 1977, as amended.
12
[37] Regarding the finding of procedural fairness of the dismissal, the applicant’s
contention is that the correct procedure when dismissing a shop steward or a
local office bearer of a union was not followed by the first respondent. This
procedure is regulated in terms of item 4(2) of Schedule 8 of the LRA, and in
terms of this provision, the employer must inform the union of its intention to
institute a disciplinary hearing against such an official. What is common cause
in this application is that a notice was prepared dated 10 February 2015, the
same date as it was served on Mr Mvinjelwa. Although Mr Mvinjelwa received
his, the union did not. The disciplinary hearing was to take place on 17
February 2015, and the notice was not sent to the union until 18 February
2015. It is also common cause that the disciplinary hearing did not proceed on
17 February 2015.
[38] The purpose of item 4(2) and the question of prejudice on any of the parties
becomes a significant consideration in dealing with this issue, especially when
looking at the surrounding circumstances of this application. Item 1 of
Schedule 8 provides that
‘(1) This code of good practice deals with some of the key aspects of
dismissal for reasons related to conduct and capacity. It is intentionally
general. Each case is unique, and departures from the norms
established by this Code may be justified in proper circumstances. For
example, the number of employees employed in an establishment
may warrant a different approach.’
[39] The above is a solid indication of the fact that the Code of Good Practice
serves as a guideline only , and its application may differ from case to case
depending on the circumstances of each case. Its key principle is that
employers and employees should treat one another with mutual respect. In
the circumstances of the case in consideration, it may be said that the
purpose of the consultation would be to allow the parties to resolve the issues
purpose of the consultation would be to allow the parties to resolve the issues
existing between them without a formal hearing because of Mr Mvinjelwa’s
status in the union. Common practice is that if they cannot reach an
agreement, the employer will then be justified to follow the usual disciplinary
process. The purpose of this pro vision is to protect shop stewards and other
13
office bearers of the union from victimisation while performing their duties , for
reasons of being office bearers of a trade union.
[40] Clearly, the main purpose is to allow the process of consultation to take place
between the parties in order to try and resolve the disputes before the
disciplinary action is embarked on. The disciplinary hearing did not proceed
on 17 February 2015, and this means that when it finally took off on 27 July
2015, the notice had been in the hands of the union for at least five months. I
am inclined to agree with the arbitrator that the applicant chose not to raise
this issue at the disciplinary hearing, and therefore, a negative inference could
be drawn from this, even though an arbitration hearing is a trial de novo.
[41] Furthermore, none of the parties were prejudiced by the failure to strictly
comply with the provisions of item 4(2), more so because they had the
opportunity to consult between 18 February 2015 and 27 July 2015. It does
not seem like there was any mischief on the side of the first respondent, which
may have motivated it to notify the applicant union of the disciplinary hearing
after 17 February 2015, because the postponement of the matter provided an
opportunity for consultation. As in BIFAWU , no prejudice was suffered by Mr
Mvinjelwa as a result of the non- compliance, as he was also able to get a
representative to assist him at the disciplinary hearing.
[42] I am therefore inclined to agree with the first respondent that the applicant’s
submissions relating to the finding of procedural fairness of Mr Mvinjelwa’s
dismissal have no merit and therefore fall to be dismissed. According to the
applicant, the record of arbitration proceedings clearly demonstrates that the
arbitrator not only misconstrued important aspects of the evidence, but she
also failed to apply her mind and failed to fully assess the evidence presented
to her, and as a result, arrived at a decis ion which a reasonable decision-
to her, and as a result, arrived at a decis ion which a reasonable decision-
maker in her position would not have arrived at. I am disinclined to agree with
the applicant as I am of the view that the reasons I mention above clearly
demonstrate the opposite of the applicant’s contentions.
[43] The arbitrator’s findings on substantive and procedural fairness are, in my
view, ones that a reasonable decision- maker could make. I cannot fault the
14
arbitrator in her findings , and therefore, this Court declines to review and set
aside the arbitration award.
[44] In the result, the following order is made:
Order
1. The application to review and set aside the arbitration award issued by
the third respondent dated 8 May 2017 under case number
PMD081501 is dismissed.
2. There is no order as to costs.
________________
L Vukeya
Acting Judge of the Labour Court of South Africa
15
Appearances:
For the applicant: Ms Phakedi (Attorney)
Instructed by: Phakedi Attorneys Inc
For the respondent:
Instructed by:Moche Attorneys