IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
Case NO: JR 1689/20
Not Reportable
In the matter between:
SAMWU OBO LILLIAN KOMAPE Applicant
and
SALGBC First Respondent
THE CITY OF JOHANNESBURG Second Respondent
TIMOTHY BOYCE N.O. Third Respondent
Heard: 12 June 2025
Judgment delivered: 6 October 2025
JUDGMENT
WHITCHER J
[1] This is a review application in terms of section 145 of the Labour Relations Act,
1995. The applicant also seeks condonation for the late filing of the review
application. Given the extent of the delay, which was not excessive, the matter
falls to be determined on the merits of the review.
[2] The applicant was employed as a F ire Fighter Emergency Technician by the
second respondent (the respondent). She was dismissed for failing to conduct
herself with honesty and integrity. The particulars of the charges are that she
“intended to sell fraudulent qualifications to a friend and/or associate for her
personal gain” and “took a decision to offer and/or influence other staff
members to obtain employment for a friend and/or associate for fiscal benefit.”
[3] The matter went to arbitration whereupon an award was issued upholding the
fairness of the dismissal. The arbitrator found that:
The essence of the second part of the applicant’s alleged misconduct was that she
solicited a bribe of R3000 from [Phumzile Khoza] in return for promising her a job as
a firefighter at the City. The applicant admitted that, when she attended her
disciplinary hearing and when she attended the arbitration, she was well aw are that
her alleged misconduct was promising [Phumzile Khoza] a job in return for a bribe of
R3000.
[4] After considering the evidence in detail, the arbitrator concluded:
In the circumstances, it is abundantly clear that the applicant did, i ndeed, solicit a
bribe of R3000 from [Phumzile Khoza] in return for undertaking to making
arrangements for her to be given a job as a firefighter at the City. The applicant’s
conduct was thoroughly dishonest and she can consider herself fortunate that she
has not been criminally prosecuted for her nefarious activities. The applicant’s
aforementioned dishonesty has completely destroyed the relationship of confidence
and trust which ought to exist between an employer and an employee. The
respondent, consequently, discharged the onus on it to prove that there was a fair
reason for the applicant’s dismissal.
[5] The review lies against that finding.
[6] The test in Sidumo dictates the resolution of the controversy, i.e. (is) was the
arbitrator’s decision one to which no reasonable arbitrator could come.1
arbitrator’s decision one to which no reasonable arbitrator could come.1
[7] In delivering his minority judgment, Ngcobo J held:
It follows, therefore, that where a commissioner fails to have regard to material facts,
the arbitration proceedings cannot, in principle, be said to be fair because the
1 Whether the commissioner’s conclusion was one that a reasonable decision-maker could not reach; whether
the decision reached by a commissioner is one which a reasonable decision-maker could not reach.
commissioner fails to perform his or her mandate. In doing so, in the words of Ellis 2,
the commissioner’s action prevents the aggrieved party from having its case fully and
fairly determined. This constitutes a gross irregularity in the conduct of the arbitration
proceedings, as contemplated in section 145(2)(a)(ii) of the LRA. And the ensuring
award falls to be set aside not because the result is wrong but because the
commissioner has committed a gross irregularity in the conduct of the arbitration
proceedings.
[8] Ngcobo J’s gross irregularity dictum accordingly, sets a lower threshold for
review than Sidumo , by defining gross irregularity as the failure by a
commissioner to apply his mind to a material fact, which would warrant the
setting aside of the order.
[9] However, in the subsequent Labour Appeal Court judgment in Fidelity Cash
Management Service v CCMA & Others 3, Zondo JP held that the Sidumo test
“is a stringent test that will ensure that…awards are not lightly interfered with.”
The went on to hold that, as per Sidumo, in order to succeed with a review, the
applicant must demonstrate that the award is incapable of justification on all the
material before the commissioner, including for reasons that were not
considered by the commissioner. The Court put it as follows:
Whether or not an arbitration award or decision or finding of a CCMA commissioner
is reasonable must be determined objectively with due regard to all the evidence that
was before the commissioner and what the issues were that were before him or her.
There is no reason why an arbitration award or a finding or decision that, viewed
objectively, is reasonable should be held to be unreasonable and set aside simply
because the commissioner failed to identify good reasons that existed which could
demonstrate the reasonableness of the decision or finding or arbitration award.
[10] The Labour Appeal Court in Khambule v National Union of Mine Workers and
others (2019) 40 ILJ 2505 (LAC) (24 July 2019) similarly held:
others (2019) 40 ILJ 2505 (LAC) (24 July 2019) similarly held:
It needs to be restated that when considering a review, the reasoning of a
commissioner is no guiding light in determining whether the decision or more
particularly the “order” handed down is reasonable. Put differently, a court reviewing
an award need not consider the commissioner’s reasoning to determine whether or
not his/her reasoning justifies the award. The reviewing court, as has been
2 Ellis v Morgan: Ellis v Desai 1909 TS 576.
3 [2008] 3 BLLR 197 (LAC).
repeatedly held, must consider all the evidence led at the arbitration and in the light
of that evidence determine whether the award is one which any commissioner in the
position of the commissioner, who determined the arbitration, could reasonably
make. If the answer is in the positive, then there must be no interference with the
award.
[11] And, in Makuleni v Standard Bank of South Africa Ltd and Others4 that:
…At the heart of the exercise is a fair reading of the award, in the context of the body
of evidence adduced and an even-handed assessment of whether such conclusions
are untenable. Only if the conclusion is untenable is a review and setting aside
warranted.
[12] The applicant has dismally failed to demonstrate that the award falls to be set
aside in terms of the Sidumo test.
[13] The pleadings amount to allegations that the arbitrator failed to apply his mind
to the applicant’s version and ignored contradictions in the respondent’s
evidence. The allegations are based variously on bald statements,
unsubstantiated versions of the evidence adduced during the proceedings ,
selective and irrelevant threads of the evidence and a misrepresentation of the
evidence.
[14] The pleadings also refer to evidence not placed before the arbitration in relation
to the applicant’s allegation that the executive head of the department
(Emergency Management Services) had no authority to institute disciplinary
action against her.
[15] The pleadings also claim the applicant was unlawfully entrapped (entrapment),
when no admissibility issue in this regard was raised during the arbitration
proceedings. In any event the alleged facts relied upon did not amount to the
police or the employer inducing the applicant into carrying out misconduct that
she would not have carried out but for the ensnaring methods of the police or
employer. Moreover, the applicant denied she committed the misconduct in
question.
4 (2023) 44 ILJ 1005 (LAC).
[16] As to the arbitrator’s findings, the record reveals that Khoza tendered a
straightforward consistent version which w as subjected to a sterile cross -
examination.
[17] The essential features of her evidence were that she desired employment as a
firefighter but did not have all the required certificates. She did not have a
Hazmat certificate.
[18] In conversion about this with Patrick Modaga who she knows from her
neighbourhood, he gave her the contact number of the applicant and advised
her that the applicant could assist with the outstanding certificate and
employment.
[19] She contacted the applicant who told her to deposit R1000 into an ABSA bank
account, which she did. This was in late 2014.
[20] Thereafter she heard nothing from the applicant.
[21] However, on or about 29 May 2015, the applicant called her . The applicant
advised her that posts for firefighters have been advertised and that Khoza
must meet her and bring with her a CV, certificates she has, a copy of her ID
and R3000 cash.
[22] Khoza asked her ‘ sister’5 to accompany her because she was growing
suspicious of the applicant because she had already given her R1000 but with
no results and now she was asking for R3000.
[23] The applicant arranged to meet her at a post office in Small Street , but when
they met the applicant there, the meeting was moved to a KFC.
[24] During the meeting at a KFC, her sister questioned the applicant about the
request for a further R3000 and asked whether Khoza will get the promised
certificate. The applicant told them Yes, “Meneer” will fix it. She did not explain
who “Meneer” is.
[25] Her sister excused herself to purportedly make copies of Khoza’s ID because
the applicant asked for a copy.
5 Sister in the sense that they grew up together.
[26] When her sister returned, they counted out the money , placed it in an envelope
with the certificates she had brought with her and handed the envelop to the
applicant, who put it inside her jacket.
[27] Thereafter they were approached by police who retrieved the envelop from the
applicant and arrested her.
[28] It turned out that Khoza’s sister had called the anti -corruption unit who in turn
had dispatched the police to the scene. According to Khoza, her sister did not
bring this into her confidence before the events of 1 June.
[29] Crucially, it was put to Khoza that she was giving evidence against the
applicant because she “was bitter about the R1000.00”. The adverse
implication of this for the applicant is self-evident
[30] It was also put to Khoza, with no explanation, that she was “used to set [the
applicant] up so she can lose her job”.
[31] It was also put to Khoza that a witness will testify that Patrick [Modaga] gave
Khoza R3000 to pass to the applicant for stokvel, to which Khoza replied:
That is not true. I need to ask a question: would they give me money to hand over to
Lillian whilst I did not know her?”
[32] Khoza indicated (essentially) that she would be glad to challenge Patrick on
that. She stated: “I would be glad if I can speak to Patrick whilst he is present”.
[33] Under cross-examination, Khoza explained why she had not brought proof of
the R1000 deposit. She said the transaction was in 2014, and she did not think
of keeping the receipt. She said the police later told her that they could only get
proof of it if the applicant allows them access to her bank account. She
expressed it so: “They said they do not have proof until she agrees that she
allows them to go to the bank”. When applicant’s counsel again brought up the
matter, she said: “Let her [the applicant] allo w us to go to her bank which is
ABSA.”
[34] The fact that Khoza did not corroborate her version with a bank receipt did not
ABSA.”
[34] The fact that Khoza did not corroborate her version with a bank receipt did not
render her evidence unsafe. The absence of corroboration does not justify
rejecting the evidence of a good witness . Corroborating evidence merely adds
weight to the evidence of a witness.
[35] Khoza was a good witness , as accounted for above and her version of the
crucial events of 1 June was corroborated by her sister, who also was a good
witness for the reasons discussed further on. The fact that Khoza implicated
herself in the matter with no attempt to downplay or excuse her conduct
underscored her credibility.
[36] Regarding the events of 1 June, Khoza’s ‘sister’
6, Nziyne adduced similar
evidence. At the time she was a chief supervisor at AFCSA.
[37] She informed the hearing that she had caused the police raid. When Khoza
asked her to accompany her and explained why, she c alled the ‘anti-corruption’
unit on 30 May , who in turn alerted the police that arrested the applicant . On 1
June, as directed by them, she kept them abreast with where her sister was to
meet the applicant and when.
[38] She said she questioned the applicant when they met up at the KFC . The
applicant told her that there were posts at the airport and she had a connection
there by the name of Clive Naidoo. She suspected the applicant was lying and
merely extorting money because she worked at the airport and had no
knowledge of the posts.
[39] Before they handed over the money, she excused herself to make copies of
the money because the applicant obviously was not going to give Khoza a
receipt. She also asked the applicant to count the money because she noticed
a camera where they were seated. She did this because she was concerned
the police would not arrive.
[40] Cross-examination also failed to impeach Nziyane’s testimony.
[41] Two police officers testified, one De Beer and one Mabekebeke. Their evidence
essentially was that the applicant was found in possession of a brown envelope
with R3000 which envelope she had under her right armpit and that during
questioning she admitted that she “received money in exchange of documents”.
[42] In contrast to the respondent’s witnesses, the applicant ’s testimony and that of
[42] In contrast to the respondent’s witnesses, the applicant ’s testimony and that of
her witness, Patrick w ere l ittered with implausible statements, contradictions,
6 ‘Sisters’ as in two persons who grew up together.
prior inconsistent statements and material claims not put to the respondent’s
witnesses.
[43] The applicant claimed that Patrick was supposed to meet her on 1 June to
hand over stokvel money. But on 1 June, he called her and said his neig hbour,
one Phumzile [Khoza), will be in town and he will give her the money to give to
her (the applicant).
[44] When Patrick called her, Khoza was with him because she [Khoza] confirmed
the arrangement with her on Patrick’s phone. Crucially, this claim was not put to
Khoza. All that was put to Khoza was a vague statement that a witness will
testify that Patrick [Modaga] gave her R3000 to pass to the applicant for
stokvel.”
[45] As to why the amount was R3000, when it turned out in evidence that the
stokvel contributions w ere R1000, the applicant gave a convoluted often
incomprehensible explanation.
[46] She also failed to properly explain why Patrick could not have deposited the
money into her bank account or sent it via other commonly used electronic
means or given her the money at work ; why for a simple transaction of handing
over money from Patrick which needed no discussion, a sit down at a KFC was
necessary and why was she was happy for Patrick to entrust a stranger to her
to deliver R3000 cash to her.
[47] She testified that the police asked her “where the certificates came from ”,
inadvertently admitting that Khoza handed over certificates to her.
[48] She was unable to explain various prior inconsistent statements , including
claims to the effect that the money was for money she had borrowed Patrick ,
that no money was handed to her and she had no idea what was in the envelop
when she agreed at arbitration that the money was handed to her.
[49] Patrick, in a signed statement admitted that he phoned the applicant “to get her
[Khoza] employment” and further stated that Khoza had reported to him that
she would be meeting the applicant on 1 June in this regard and that Khoza
she would be meeting the applicant on 1 June in this regard and that Khoza
would be giving the applicant her certificates and money. He, however,
implausible claimed that he made these statements under threat of losing his
job.
[50] Finally, the applicant persisted in this review with her unsubstantiated claim at
the arbitration that the executive head of the department (Emergency
Management Services) had no authority to institute disciplinary action against
her, despite written evidence adduced at the arbitration to the effect the City
Manager had sub- delegated that task to the executive head of the department
(Emergency Management Services).
[51] For all the reasons supra, it cannot be said that the findings and conclusion of
the arbitrator were untenable. As to costs, the second respondent was forced to
incur costs to oppose a review application that was obviously an abuse of
process.
[52] I accordingly make the following order:
The review application is dismissed with costs.
________________________________
Benita Whitcher
Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant: Phakedi Attorneys Inc
For the Second Respondent: Mncedisi Ndlovu & Sedumedi Inc. Attorneys