THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1285/22
In the matter between:
LINDILE GULA Applicant
and
NORTHAM PLATINUM ZONDEREINDE First Respondent
MORAKA ABEL MAKGAA N.O Second Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Third Respondent
Heard: 20 March 2025
Delivered: 15 October 2025
JUDGMENT
MUSIKER, AJ
Introduction
[1] This is a review application, in terms of which the Applicant (Gula) seeks to
review and set aside the arbitration award of the Second Respondent
(Commissioner) dated 25 April 2022.
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[2] The review application is opposed by the First Respondent.
Background
[3] Gula was employed by the First Respondent as a Shift Supervisor reporting to
Ms Sibitso Sulman (Sulman), the Mine overseer.
[4] On 1 October 2021, Gula was legally appointed by Sulman for sections 4/16
and 4/19 UG stopes. The legal appointment was for a period of one month.
[5] It is common cause between the parties that Gula did not proceed
underground on 14 and 15 October 2021.
[6] Gula was charged with the following acts of alleged misconduct:
‘failure to adhere to your legal responsibilities and duties in that on 14
October 2021 and 15 October 2021 respectively, you failed to follow a lawful
and reasonable instruction issued to you by your Mine Overseer (S Sulman)
to report underground to your working places, 4/16 Stope and 4/19 Stope, to
perform your legal responsibilities and duties as a section 2.15.1 appointee in
terms of the Mine Health and Safety Act, as a result another Shift Supervisor
was appointed in your area of responsibility.’
[7] On 14 December 2022, Gula was dismissed by the First Respondent.
Aggrieved by the dismissal, an unfair dismissal dispute was lodged at the
Third Respondent.
[8] The unfair dismissal dispute was arbitrated on 22 April 2022 by the
Commissioner, who ultimately dismissed the Applicant’s case.
[9] Gula now seeks to review and set aside the findings of the Commissioner ,
and in so doing, raises the following grounds for review:
9.1 The decision of the Commissioner is unreasonable;
9.2 The Commissioner committed m isconduct in relation to his duties as
commissioner;
9.3 Gross irregularities in the conduct of arbitration proceedings; and
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9.4 The Commissioner failed to apply the principle of probable version.
Grounds for review
[10] In his founding and supplementary papers, the Applicant sets out his grounds
for review as follows:
The decision of the Commissioner was unreasonable
10.1 It is the Applicant’s case that he was humiliated by Sulman, and the
Commissioner accepted her version over the version presented by
Gula.
10.2 The Commissioner relied upon hearsay evidence.
10.3 The appointment of William Komane.
10.4 There was no instruction given.
Misconduct in relation to the duties of the Commissioner
10.5 The Commissioner relied upon the disputed minutes of the disciplinary
enquiry.
Gross irregularities in the conduct of the arbitration proceedings
10.6 The Commissioner failed to assist an unrepresented individual.
Failure to apply the principles of probable version
10.7 The Commissioner failed to make an assessment on the probable
version, as he had two mutually destructive versions before him
[11] The grounds for review were largely narrowed at the hearing of the review
application in that the Applicant focused primarily on the theme that the award
rendered by the Commissioner was irrational and unreasonable in that he
failed to consider that:
11.1 Gula was humiliated by his superior shortly prior to the incident;
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11.2 The verbal instruction given to Gula; and
11.3 The legal responsibilities that are contained in the charge.
Gula was humiliated by his superior shortly before the incident:
[12] The Applicant claimed that the Commissioner failed to consider that Gula was
humiliated by Sulman in the presence of his colleagues when Sulman told
Gula that he was ‘ useless’. The Applicant goes further in alleg ing that the
Commissioner failed in his duties to explain to Gula, an unrepresented
individual, that he was required to put t his version to Sulman during cross -
examination.
[13] The First Respondent argued that the Commissioner considered that Gula
was unable to prove that there was some kind of mala fide abuse of position
on the part of Ms Sulman. Gula failed to establish that Sulman embarrassed
him in the presence of his peers, as the allegations were never put to Sulman,
and as such, the evidence of the alleged embarrassment remained untested.
[14] The First Respondent states that the Commissioner did not fail in his duties
and advised Gula that he was obliged to put versions to the witness . This is
evidenced by the following exchange between Gula and the Commissioner:
‘COMMISSIONER: I was under no obligation to go underground you must
put it to her… (intervenes)
MR GULA: Yes Commissioner, I was going to put that on my
closing argument but…. (intervenes)
COMMISSIONER: no but you must allow her to comment ne.
MR GULA: all right.
COMMISSIONER: you must not…. (intervenes) to leave because that
evidence will be unchallenged.’
The verbal instruction:
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[15] Gula contests the fact that there was no written instruction for Gula to proceed
underground, and thus Sulman’s alleged instruction amounts to no instruction
at all.
[16] The First Respondent submits that it is the very function of a shift supervisor
to proceed underground daily and that a written instruction for Gula to have
fulfilled his function is not reasonably necessary or practical under the
circumstances.
[17] The Commissioner found that it would not have been practically possible for
Sulman to have, in every instance, issued a written instruction to her
subordinates and that a verbal instruction given by Sulman to Gula was
indeed an instruction; Gula’s failure to abide by the instruction was illogical.
The legal responsibilities as contained in The Regulation:
[18] As the First Respondent operates a mine, the provisions of the Mine Health
and Safety Act 1, together with its R egulations2, apply to it and its employees.
In terms of Regulation 2.15.5:
‘Each shift boss shall inspect all workings in his section as frequently as he
may deem necessary in the interest of safety and health: Provided that –
a. He shall inspect every working face in his section which has been
blasted and in which persons are working within two working days
of each blast therein;
b. He shall inspect all other workings at least once every week at
intervals not exceeding 10 days; and
c. He shall daily during his shift –
(i) Inspect at least one working of each ganger or miner under
his charge who is directly concerned with current blasting
operations, and
1 Act 29 of 1996.
2 GNR 992 of 1970: Mines and Works Regulations.
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(ii) Satisfy himself by consultation with each such ganger or
miner, or by personal inspection, that work is proceeding
safely and in accordance with the regulations in every
working of such ganger or miner. Each such consultation
shall take place within the area for which the ganger or
miner is responsible.’
[19] The Applicant and the First Respondent differ in their interpretation of the
Regulation:
19.1 The Applicant contends that a shift supervisor is required to proceed
underground ‘as frequently as he may deem necessary ’. Thus, there is
no obligation on the Shift Supervisor to proceed underground daily;
19.2 The First Respondent submits that the Regulation sets out that the shift
supervisor ‘shall daily inspect at least one working each granger or
miner under his charge’ , resulting in an obligation to proceed
underground on a daily basis;
19.3 The First Respondent further submits that the normal and regular
function of a shift supervisor is to proceed underground on a daily
basis.
[20] The Commissioner, in dismissing the unfair dismissal dispute, concludes that
Gula’s absence from the underground constitutes an unauthori sed absence
which essentially left the First Respondent vulnerable to health and safety
risks as well as potential financial and reputational harm.
Analysis
[21] An underlying theme of the dispute before me was whether the Commissioner
erred in finding that Gula was obligated, in terms of his appointment under
Regulation 2.15.5, to proceed underground on 14 and 15 October 2021.
Three themes are common cause between both parties:
21.1 Gula was appointed as a shift boss;
21.2 Gula’s appointment is regulated by Regulation 2.15.5; and
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21.3 Gula did not proceed underground on 14 and 15 October 2022.
[22] Upon interpretation of the R egulation, it is clear that the employee is required
to inspect one ganger or miner and ensure that the mining is being done
safely and in accordance with Re gulations in the area that the ganger or
miner conducts their business. The R egulation clearly states that the
inspection is to be done daily.
[23] As Gula did not proceed underground on 14 October 2021, and in satisfaction
of the Regulation, Sulman was required to appoint Kumane in order to fulfil
the function and comply with safety standards. There would be no reason for
Sulman to have appointed Kumane if there was no need for Gula to have
proceeded underground on that day.
[24] I am of the view that even if the Commissioner were to have accepted that
Sulman embarrassed Gula in the presence of his peers, I do not believe that
this would have taken the dispute any further. Gula was obliged by the
content of the Regulation to proceed underground, regardless of the
interactions and exchange between himself and Sulman. Gula, through his
actions, proved that he had no intention to proceed underground.
[25] I believe that Gula’s interpretation of the Regulation was incorrect and no
more than a convenient way in which to circumvent his obligations to proceed
underground on 14 and 15 October 2022. I believe that Gula was duty -bound
to proceed underground and that his failure to do so not only constitutes a
safety risk but also gross misconduct.
[26] Safety in the mining industry is to be safeguarded at all costs , and any
deviation therefrom is to be considered gross misconduct.
[27] There is no proof before me that the Commissioner deviated from the duties
of a reasonable commissioner. The Commissioner guided Gula in his cross -
examination. In this regard, the record of proceedings speaks for itself.
[28] It is as a result of the above that I do not believe that another decision maker,
[28] It is as a result of the above that I do not believe that another decision maker,
faced with the same facts as the Commissioner, would have arrived at a
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finding substantially different to that of the Commissioner . Accordingly, the
arbitration award of the Commissioner has not met the threshold for this Court
to justify an intervention in the findings of the Commissioner . Accordingly, the
review application must fail.
Costs
[29] I have had regard to the requirements of law and fairness in considering
costs, and having done so, I am of the view that a cost order is not warranted
in this matter.
[30] In the premises, I make the following orders:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
N.S. Musiker
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: C.P Naude
Instructed by: Isaac Teke Mothibe Attorneys
For the Respondent: Victor Mndebele
Instructed by: Webber Wentzel