THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR1770/23
In the matter between:
NTEBALELE NYAKA First Applicant
THABO TLAKA Second Applicant
TABANG TANGI Third Applicant
And
S J LOMBARD NO First Respondent
GENERAL PUBLIC SERVICE SECTORAL Second Respondent
BARGAINING COUNCIL (GPSSBC)
LIMPOPO DEPARTMENT OF TRANSPORT Third Respondent
& COMMUNITY SAFETY
Heard: 27 March 2025
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email and publication on the Labour
Court’s website. The date and time for hand- down is deemed to be on 20
October 2025
2
JUDGMENT
MAFA-CHALI, AJ
Introduction
[1] The Applicants seeks to review and set aside an arbitration award issued on
20 July 2023, under case number GPBC1684/2022 wherein the first
Respondent (arbitrator) dismissed their unfair labour practice dispute.
[2] The Third Respondent has opposed the review application but did not file the
answering affidavit on time and therefore filed the condonation application in
that regard. T he Applicants have opposed the Third Respondent’s
condonation application.
[3] I will therefore consider the condonation application first before enter taining
the merits of the review application, which is also opposed by the Third
Respondent.
Condonation Application
Third Respondent’s Submissions
[4] The Third Respondent submitted that it was served with the review application
by the Applicants on 11 September 2023.
[5] The first consultation was done on 24 November 2023, and it was postponed
until the Applicants provided the records. On 6 June 2024, after the receipt of
records, the second consultation was held, and it was realized that there was
other information needed from the offices in the Third Respondent’s college.
The consultation was postponed again until receipt of the supplementary
affidavit.
3
[6] The supplementary affidavit was received on 6 June 2024, and the third
consultation was held on 21 June 2024. The application is not late by 114
days. The only delay was when the Third Respondent’s Counsel sent the
affidavit through an email that was not knowing.
[7] The Applicant s’ appealed against their dismissal san ction and the dismissal
was suspended pending the appeal . The Applicants were then placed with
other colleagues as traffic officers while waiting for the appeal to be finalized.
[8] The Applicant s admitted that they committed an offence when they took
alcohol on the way to the college and there was no need to ask for the
witness.
[9] The Third Respondent prioritized the matter . The Third Respondent took 5
days to file the affidavit after it was signed, as the person who was to sign the
affidavit was at the time not in Polokwane.
[10] The delay is only 58 days from the date of filling the answering affidavit.
Counsel miscalculated the days by mentioning that it is late by 114 days, as
she calculated from the first consultation not from the date of the submission
of the supplementary affidavit. The delay in the adjudication of the matter was
caused by the absence of the records’ bundles.
[11] The answering affidavit was supposed to be filed on or before 2 December
2024, but it was only received from Third Respondent to Counsel on 28
February 2025.
[12] After consultation on 6 March 2025, Counsel was admitted at the hospital and
was discharged on 9 March 2025 and medical certificate was submitted.
There is a further seven days’ delay in filing the replying affidavit, whic h
cannot prejudice the Applicant s. The delay was caused by service through
email.
Submissions by Applicants
[13] The Third Respondent submitted that the consultation meeting took place on
8 October 2023 as the main witnesses were not available. It was asserted that
4
a follow-up consultation meeting took place on 6 July 2024. This consultation
meeting took place eight months and eight days later. If the Third Respondent
had prioritized this matter, such a long lapse of time from the first consultation
on 28 October 2023 to the second consultation on 6 J uly 2024 would have
been avoided no matter any form of situation that may seem to be out of
control as claimed by the Third Respondent.
[14] The Third Respondent further asserted that on 11 July 2023, an answering
affidavit was sent by Counsel for pre -processing but due to the recipient’s
email, which was out of order, caused lack of delivery of same. It was
submitted that a continuous engagement in relation to the answering affidavit
among handlers of same would have averted an unnecessary and untenable
situation.
[15] But the update and discussion of whether the answering affidavit was sent
and received started only in the beginning of August 2024 only when those
involved in the matter accidentally met in court. This can only be described as
lack of urgency in the matter which has caused unnecessary delays to get the
matter litigated in court on time, although the Third Respondent admitted that
it was a cause of delay on their side.
[16] As an act of collegiality, the Third Respondent never reached out to the
Applicants to request an extension of time for filing an already extremely late
answering affidavit , hence the Applicants opposed the condonation
application. I t is also noted that each aspec t of the Third Respondent’s
answering affidavit was delayed for one reason or another which cannot be
validly substantiated. The affidavit was commissioned on 15 August 2024 and
forwarded to the attorney of records of the Third
Respondent on 20 August
2024. A signed a ffidavit does not have days before it gets filed on notice to
parties. A total of six days had lapse in this case to file the answering affidavit.
A sense of urgency would have necessitated a quick release of an already
A sense of urgency would have necessitated a quick release of an already
late commissioned affidavit.
5
[17] The Rules of the Labour Court1 are explicit that any person wishing to oppose
the granting of the order prayed for in the notice motion must within ten days
after receipt of the notice of amendment or notice that the Applicants stand by
their notice of motion, deliver an affidavit in answer to the allegations made by
the Applicant. The submission of the Third Respondent is demonstrative that
the Third Respondent does not admi t that filing of an answering affidavit was
done late.
[18] It was submitted that 114 days is to the extreme, and the C ourt cannot be
expected to accept such reason which will be a travesty of justice and cannot
even be subst antiated in every respect. There is absolutely no good cause
advanced by the Third Respondent which may warrant any condonation.
[19] The submission that the situation of the Third Respondent was not
uncontrollable, is without any substance, as it was self-created. The witnesses
of the Third Respondent are in the control of the Third Respondent at all
material times as it is its own employees. It is clear that the Third Respondent
did not identify people with knowledge relating to all egations in preparation of
consultation, and such consultation can also not be far from each other, as it
has happened with the Third Respondent in this case taking eight (8) months.
[20] It is trite to do due diligence to ident ify such witnesses for meaningful
consultation to avoid futile exercise of consultation which may result in long
delay in litigation, but Third Respondent failed dis mally to do such due
diligence.
[21] It was also submitted that the process of requesting quotation, approval and
appointment of Counsels for State matters even though sometimes it may be
a laborious process, but such cannot in whatever situation cause a length
delay of 114 days for late filing of the answering affidavit . To claim the
situation is due to unforeseen circumstances by Third Respondent has an
situation is due to unforeseen circumstances by Third Respondent has an
element of a misleading connotation because the situation w as a self-created
one, which should not be used to legitimize reasons for condonation.
1 GN 4775 of May 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court
(effective 17 July 2024).
6
[22] Since 28 October 2024 when the Third Respondent had a futile exercise for
failing to secure main witnesses, it was a threshold of beginning of a destined
prejudice against the Applicants to obtain their relief in the main matter, as the
Third Respondent was expected to file the answering affidavit in March 2024
but filed it on 30 August 2024. The matter would have long been ventilated in
Court and Applicant s obtained judgment and without such it is prejudicial to
the Applicants.
[23] Justice unnecessarily delayed as a result of the conduct of the party to
litigation undoubtedly causes prejudice to the other litigant of the case. Finality
of the case is an important part of litigation without which the party who did
not cause the delay suffers prejudice not only on the delay for relief but, also
being denied to put the matter to rest on time and more with the challenges of
life.
[24] The Third Respondent suggested that as long as cost order will ameliorate
the prejudice already suffered, it reduces this matter to an issue of costs over
the imperative and or desire need of finality to rest the matter, and the
Applicants will continue to suffer regardless of being awarded costs.
[25] No articulation of prospects of suc cess has been made in this application.
Therefore, the Third Respondent does not have any prospects of success in
the matter and has not shown any good cause was warranting condonation of
the filing of the answering affidavit. The Third Respondent did not account for
prospects of success nor valid reasons for delay. The Labour Appeal Court in
the case of NUM v Council for Mineral Technology 2 ruled that without an
acceptable and reasonable explanation for the delay , the prospects of
success are immaterial and without prospects of success, no matter how
good the explanation for the delay, the application must be refused.
[26] The Courts have endorsed the principle that where there is a delay with no
[26] The Courts have endorsed the principle that where there is a delay with no
reasonable satisfactory and acceptable explanation for such delay ,
condonation may be refused without considering prospects of success.
2 [1999] 3 BLLR 209 (LAC).
7
Therefore, the Applicants prayed t hat condonation application of the Third
Respondent be dismissed with costs.
Evaluation
[27] The requirements that must be satisfied to succeed in an application for
condonation are well -known3. An applicant in a condonation application must
set out the degree of the delay and show good cause for the delay; further,
the applicant must deal with the prospects of success on the merits and
prejudice to the R espondent. It is trite that condonation is not for the mere
asking. An applicant for condonation seeks an indulgence from the Court and
is to show sufficient cause to succeed in the grant of condonation by the
Court.
[28] The answering affidavit was filed extremely late by the Third Respondent.
Regardless of whether it was 114 days or 58 days late as it was submitted
that the Counsel did not calculate the days of lateness correctly , it is
nevertheless late and it required condonation. The Third Respondent has not
3 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). In Grootboom v National Prosecuting
Authority and another (2014) 35 ILJ 121 (CC) at para 50, the Constitutional Court stated that the
factors that are to be considered, in the interests of justice, in determining a condonation application
include the following:
‘(a) the length of the delay;
(b) the explanation for, or cause for, the delay;
(c) the prospects of success for the party seeking condonation;
(d) the importance of the issue(s) that the matter raises;
(e) the prejudice to the other party or parties; and
(f) the effect of the delay on the administration of justice.’
The Constitutional Court went on further to state at para 51 that : ‘The interests of justice must be
determined with reference to all relevant factors. However, some of the factors may justifiably be left
out of consideration in certain circumstances. For example, where the delay is unacceptably
excessive and there is no explanation for the delay, there may be no need to consider the prospects
of success. If the period of delay is short and there is an unsatisfactory explanation but there are
reasonable prospects of success, condonation should be granted. However, despite the presence of
reasonable prospects of success, condonation may be refused where the delay is excessive, the
explanation is non- existent and granting condonation would prejudice the other party. As a general
proposition the various factors are not individually decisive but should all be taken into account to
arrive at a conclusion as to what is in the interests of justice.’
8
at any stage requested the Applicant an indulgence to file the answering
affidavit late.
[29] In Allround Tooling (Pty) Ltd v NUMSA and others 4, the Labour Appeal Court
(LAC) restated the well -established principle that a condonation application
must be filed without delay and/or as soon as an applicant becomes aware of
the need to do so. This did not occur in the present case.
[30] The reasons advanced by the Third Respondent for failure to file the
answering affidavit clearly demonstrated that the Third Respondent did not
take the matter serious ly and did not prioritize it as correctly argued by the
Applicants. From 11 July 2023 to August 2024, when the Third Respondent’s
representative coincidentally met with the Counsel at Court, it was only
realized that the answering affidavit had been sent to the wrong email
address. This is one year later after the Third Respondent had already
delayed the filing of the answering affidavit with postponed consultations.
[31] The manner and the time taken to do the consultation to draft the answering
affidavit are also indicative that the Third Respondent did not deal with the
matter with the urgency it deserved. The first consultation was on 28 October
2023. The second consultation was on 6 June 2024, eight months later. The
third consultation was on 21 June 2024. This is another two weeks later. But
even after the records were received from the Applicants , the Third
Respondent still delayed to consult for the filing of the answering affidavit. The
answering affidavit was only filed by the Third Respondent on 30 August
2024, when the records were filed on 27 May 2024 and this was after the
Applicants have requested the Court to set down the matter . The delay and
every period of the delay remain unexplained.
[32] The issue of arranging witnesses is a very lame excuse by the Third
Respondent as it cannot clearly take such a long period to identify and
arrange a consultation with appropriate witnesses in a matter that is already
arrange a consultation with appropriate witnesses in a matter that is already
under litigation with timeframes set by the Court to file the ans wering affidavit.
The Applicants are correct that the situation was not an unforeseeable one
4 [1998] 8 BLLR 847 (LAC) at para 8.
9
but a self -created one. There are no valid reasons advanced by the Third
Respondent to file the answering affidavit so extremely late.
[33] Review applications are urgent applications. The delay in filing the answering
affidavit is excessive taking into consideration all the unjustified reasons
advanced for the delay by the Third Respondent. The Third Respondent was
very well aware all the time that it was required to launch an application for
condonation. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration 5, the Constitutional Court stated that one of the
purposes of the LRA is expeditious dispute resolution and this must be borne
in mind when considering the reasonableness of delay in a condonation
application.
[34] The Third Respondent has failed dismally in its founding affidavit in the
condonation application to make out a case for condonation and to show good
cause for the delay. The reasons for the delay are unsound and amount to no
reasons. It is now accepted that in the absence of any reasons for the delay,
the prospects of success are immaterial.
[35] The prejudice to the Applicant s is obvious. Following their dismissals for
allegations of misconduct relating to drinking alcohol in a taxi whilst on the
way to the traffic training college in October 2019, the Applicants who were
learner traffic officers at the time lodged their appeals immediately thereafter.
The Third Respondent issued a demotion sanction for the Applicants on 16
September 2022, almost three years later after the receipt of the appeals. It is
now six years down the line and the Third Respondent has been tardy in the
manner in which it has proceeded with this review application.
[36] In view of the afore- going, condonation application for the late filing of the
answering affidavit is dismissed.
[37] The review application shall be entertained on an unopposed basis.
Review application
5 (2016) 37 ILJ 313 (CC).
10
[38] The Applicants were appointed in the positions of Learner Traffic Officers at
the Limpopo Traffic College at Mutale, Vhembe District , Limpopo for a period
of 12 months from 7 January 2018. Their learner contracts were extended for
a further eight months in 2019. They were charged for misconduct of
consumption of alcohol while on duty travelling to Limpopo Provincial Training
College in Venda on 20 May 2019. The charge is in relation to contravention
of the Road Traffic Standing Order as per clause 8.3.3.7.3 in terms of the
provisions of the Public Service Regulation 16 as well as the provisions of the
PSCBC Resolution 1 of 2003.
[39] The Applicants’ disciplinary hearings were conducted in July and August 2019
and the Applicants were subsequently dismissed. They appealed against the
dismissal sanction in October 2019, and the dismissal sanc tion was reduced
to a sanction of demotion on 16 September 2022 effective 01 December
2022, which demotion the Applicants referred to the GPSSBC for unfair labour
practice in terms of section 186 (1) (a) of the Labour Relations
6 (the LRA). In
terms of the Disciplinary Code and Procedure of 01 of 2003, the appeal mus t
be finalised within a period of 30 days from the date of the lodging of the
appeal. It took the Third Respondent almost three years to finalise the appeal.
[40] On 1 December 2019, the Third Respondent issued Applicants with offers of
permanent contracts in the positions of Provincial Inspectors, and the
Applicants accepted the offers. The Applicant s continued to work and
rendered services to the Third Respondent for a period of two years and ten
months until they were demoted on 01 December 2022. The Applicant’s
demotion referral was heard by the arbitrator under the auspices of the
Second Respondent, and an arbitration award was issued on 20 July 2023,
dismissing the Applicants’ dispute of unfair labour practice.
[41] It is this award that is the subject of review. The Applicants submitted that the
[41] It is this award that is the subject of review. The Applicants submitted that the
arbitrator was mute or never applied his mind to the material facts on whether
the Third Respondent’s decision to demote the Applicants was arrived at with
fair pr ocess given the period of time which lapsed while the Applicants had
already been settled into the position of Provincial Inspector.
6 Act 66 of 1995, as amended.
11
Grounds for review
[42] It was further submitted that due to the effluxi on of time of nearly three years,
the Third Respondent had abandoned its desire to exercise the process of
deciding on the appeal as the Third Respondent continued to benefi t the
labour of service from the Applicants, in the posit ions of Provincial Inspectors,
and the arbitrator ignored that.
[43] The Applicant also argued that the arbitrator never applied his mind to th e
material facts and committed gross irregularity in det ermining whether the
Third Respondent was fair in demoting the Applicants under the
circumstances for which such decision was made. The arbitrator ignored the
provisions of the Disciplinary Code and Procedure 01 of 2003, and in
particular clause 8. 7 which provides that the employer shall immediately
implement the decision of appeal authority where the appeal authority decides
to reduce the sanction. These provisions were presented to the arbitrator at
the arbitration hearing to highlight the importance of facts, but the arbitrator
ignored them.
[44] The arbitrator ignored the Applicants’ evi dence that on 21 May 2019, the
Applicants were called to the office of the col lege manager at the Provincial
Training College in Venda and informed that they were reported to be drunk
on duty on the way to the college which they denied, but they were forced to
make second statements to admit that they were drunk contrary to the first
statements because they were influenced and were told that nothing will
happen.
[45] The Applicants submitted that a reasonable arbit rator could have realized that
they were just interns who could have succum bed to the authorities through
undue influence to have their way as the authorities were in control of the
situation. Ins tead, the arbitrator had the wrong expectation to find that the
Applicants failed to call the person who informed the Third Respondent that
they consumed alcohol, when the duty was on the Third Respondent to call
they consumed alcohol, when the duty was on the Third Respondent to call
the person as a witness as its informer. The arbit rator believed this person
was a key witness for the applicants which m ay never have been. This led to
12
the arbitrator finding that the Third Respondent’s evidence was more
probable, and on that basis the arbitrator committed a gross irregularity and/or
misdirected himself in view of the facts presented to him at the arbitration
proceedings, and the review application must be granted.
The test on review
[46] The legal framework for review of arbitration awards is sourced from s 145(2)
of the LRA. The test for review has been set out in various authorities . As a
general principle, the applicant in a review application must make out his or
her case in the founding affidavit, as may be supplemented in the
supplementary affidavit, if necessary, after the transcribed record becomes
available.
[47] The role of the reviewing Court is limited to deciding issues that are raised in
the applicant’s founding (and supplementary) affidavit. This was confirmed by
the Constitutional Court in Commercial Workers Union of SA v Tao Ying Metal
Industries and Others
7 (Tao Ying) where it was held that:
‘…the role of the reviewing court is limited to deciding issues that are raised in
the review proceedings. It may not on its own raise issues which were not
raised by the party who seeks to review an arbitral award. There is much to
be said for the submission by the workers that it is not for the reviewing court
to tell a litigant what it should complain about. In particular, the LRA specifies
the grounds upon which arbitral awards may be reviewed. A party who seeks
to review an arbitral award is bound by the grounds contained in the review
application. A litigant may not on appeal raise a new ground of review. To
permit a party to do so may very well undermine the objective of the LRA to
have labour disputes resolved as speedily as possible.’
[48] In Gold Fields Mining South Africa v CCMA and Others 8, the Labour Appeal
Court held that:
7 (2008) 29 ILJ 2461 (CC) at para 67.
8 [2013] ZALAC 28 at para 16.
13
‘a reviewing court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts presented at the hearing
and came to a conclusion that is reasonable’.
[49] The Labour Appeal Court (LAC) in Fidelity Cash Management Services v
CCMA and Others9 (Fidelity Cash) held that:
‘… there can be no doubt now that under Sidumo that the reasonableness or
otherwise of a commissioners’ decision does not depend - at least not solely -
upon the reasons that the commissioner gives for the decision. In many cases
the reasons which the commissioner gives for his decision, finding or award
will play a role in the subsequent assessment of whether or not such decision
or finding is one that a reasonable decision-maker could or could not reach.
However, other reasons upon which the commissioner did not rely to support
his or her decision or finding but which can render the decision reasonable or
unreasonable can be taken into account. This would clearly be the case
where he commissioner gives reasons A, B and C in his award but, when one
looks at the evidence and other material that was legitimately before him or
her, one finds that there were reasons D, E. and F upon which he did not
reply but could have relied which are enough to sustain that decision.’
[50] The LAC in Fidelity Cash concluded that:
‘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 way an arbitration
award or finding or decision that, viewed objectively, is reasonable should he
held to be unreasonable and set aside simply because the commissioner
failed to identify good reasons that existed which could demonstrate the
reasonableness of that decision or finding or arbitration award.’10
[51] It is critical that the factual foundation of the review application, including the
[51] It is critical that the factual foundation of the review application, including the
relevant evidence or reference thereto, be canvassed in the founding or
supplementary affidavit and that it be linked to the applicant’s grounds for
review. In casu, the grounds for review as set out in the Applicant’s founding
9 (2008) 29 ILJ 964 (LAC) at para 102.
10 Ibid at para 103.
14
affidavit are that the arbitrator failed to apply his mind to the facts and
argument presented and that he did not consider relevant material facts, his
reasoning in terms of the factual, legal findings and his assessment of the
facts are inexplicable and as such he had reached a decision that a
reasonable decision maker could not have reached and that he committed a
reviewable gross irregularity.
[52] This matter concerns a referral of an alleged unfair labour practice relating to
the applicant’s demotion. Section 186(2)(a) of the LRA states:
‘Unfair labour practice means any unfair act or omission that arises between
an employer and an employee involving –
‘unfair conduct by the employer relating to the promotion, demotion, probation
(excluding disputes about dismissals for a reason relating to probation) or
training of an employee or relating to the provision of benefits.’
[53] The Applicants were charged and dismissed for alleged acts of misconduct for
drinking on duty whilst on the way to the Traffic Training College. The
Applicants lodged appeals against their dismissal and their dismissals were
suspended pending their appeals. The appeal outcome reversed the
dismissal and imposed the sanction of demotion. It is this demotion that i s
being contested. There is no dispute that the demotion took place. Rather,
there is a dispute over whether the demotion was fair. Demotion in this case
was unilaterally imposed as an alternative sanction to a dismissal.
[54] It is clear from the evidence of the Applicants before the arbitrator , who had
the onus to prove their claim during the arbitration proceedings, that they
denied the commission of the offence and testified that they were called to the
office of the Manager Nthakeni and informed that their colleague Manganyi
was drunk when they arrived at the College, and implicated them by reporting
that they were also drinking with him on the way to the training college.
that they were also drinking with him on the way to the training college.
[55] The Applicants furthermore testified that Nthakeni instructed them to write the
statements that they took a sip of alcohol with Manganyi and must apologize
15
for the misconduct committed. The evidence of the Applicants corroborated
each other in the most material respects in that regard.
[56] The Third Respondent also led evidence trough Nthakeni who testified that he
received a report that the Applicants arrived drunk at the college and their
statements were brought to him by his colleague Tshabuse, and the
Applicants came to his office to offer their apologies for the misconduct and
he was never involved with taking statements; and then escalated the matter
to labour relations based on the contents of the A pplicants’ statements.
Another witness of the Respondent, Mugagadeli also tes tified confirming the
evidence that Manganyi arrived seriously intoxicated at the college and the
following morning he apologized for his drunkenness and reported that he
was drinking with the Applicants on the way to the college; and the Appl icants
subsequently made the statements in Nthakeni’s office being told to admit that
they drank alcohol on the way to the college. Tshubase also testified t hat the
Applicants were brought t o her at her office by Mugagadeli on 21 May 2019
and deposed the statements which she handed over to Nthakeni.
[57] Based on the above evidence of the parties, the arbitrator was required to
determine the fairness of the demotion sanction imposed by t he Third
Respondent following the appeal by the Applicants on t heir dismissal. The
arbitrator was not required to determine the parties’ evidence of whether the
Applicant’s dismissal was fair or not. That was not the dispute before the
arbitrator.
[58] The arbitrator in his reasoning in the arbitration award, specifically paragraphs
49 to 55, analysed the version of the parties on whether the Applicant
committed the offence or not. The Commissioner further dealt with the
credibility and probabilities of the parties’ versions, on whether or not the
Applicants drank alcohol on 20 May 2019, and the evidence relating to the
Applicants drank alcohol on 20 May 2019, and the evidence relating to the
Applicants statements. In paragraph 53, the arbitrator said that it was clear
from the testimonies that alcohol was indeed present and consumed in the
taxi which led to the college o n 20 May 2019. The arbitrator further held that
the applicants made no effort to possibly secure the testimony of Manganyi at
16
arbitration which may have offered some justification for possibly concluding
that Manyanyi may have provided a false report.
[59] It becomes inconceivable how the arbitrator arrived at this finding that there
was alcohol consumed by the Applicants and it in the t axi as Manganyi , the
informer was not called as a witness during the proceedings by either the
applicants or the Third Respondent. Indeed, as correctly argued by the Third
Respondent this version remained hearsay evidence in terms of the law of
evidence11, as no justification was given by the Third Respondent why
Manganyi was not called as a witness, and t he Third Respondent bore the
evidentiary burden to prove the Applicants were drunk, not the Applicants; the
Respondent’s witnesses never led evidence that the Applicant s were drunk
and to what extent or level. Their testimonies were purely based on what they
were informed by Manganyi.
[60] The arbitrator furthermore in paragraph 57 of the award stated the following:
‘The content of paragraph 14(o) of the Public Service Regulations as
considered remains uncontested and clearly prohibits the consumption of an y
alcohol whilst on duty. I have also taken note of the initial dismissal sanctions
issued against the applicants issued against the applicants which seem to
have been overturned and replaced with demotion sanctions under
discussion.’
[61] In paragraphs 58 to 60 of the arbitration award, the arbitrator stated:
‘[58] I am effectively required to determine on a balance of probabilities
considered, whether or not the applicants consumed al cohol whilst on
duty on 20 May 2021. The probabilities considered and specifically the
manner in which the applicants deposed to their handwritten
statements only to thereafter reject the contents thereof in toto , is
considered in light of the proven fact that the applicants never
previously complained of, nor reported the alleged threats made by
very Senior Officials to change their statements.
very Senior Officials to change their statements.
11 Section 3 of Law of Evidence Amendment Act 45 1998.
17
[59] I have considered the totality of the evidence presented and conclude
that the applicants most probably consumed alcohol on their way to
the college. Their initial reports made in the form of written statements
are in line with the testimonies presented by the respondent’s
witnesses and I am furthermore satisfied that the misconduct
committed is very serious on nature.
[60] The applicants ultimately failed to shift the required onus in
establishing upon a balance of probabilities considered, that their
written statements were indeed brought by the otherwise inadequately
proven allegations relating to being forced to do so or in further
contradiction, that they changed their statements after Nthakeni
offered the alleged assurance that nothing would happen after
admitting to drinking alcohol in the taxi.’
[62] The arbitrator finally concluded in paragraphs 61and 62 of the arbitration
award as follows:
[61] ‘The aforesaid findings justified a conclusion that the sanctions of
demotion were indeed appropriate in the light of the serious
misconduct committed and that the respondent did not commit an act
of constituting an unfair labour practice by demoting the applicants to
their current posts.
[62] The applicants’ unfair labour practice dispute is dismissed’.
[63] The Courts have clarified the test for review to be based on whether the
decision reached by the commissioner is one that a reasonable decision-
maker could not reach. In applying this test, a reviewing Court will not
interfere with an award easily, but will consider whether the commissioner
considered the principal issue before him/her, whether or not he/she
evaluated the facts presented at the hearing and came to a reasonable
conclusion.
[64] The Supreme Court of Appeal (SCA) in Herholdt v Nedbank Ltd and
Another
12 (Herholdt) concluded as follows:
12 [2013 (6) SA 224 (SCA) at para 25.
18
‘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 s 145 (2) (a) of the LRA. For a defect in the
conduct of the proceedings to amount to a gross irregularity as contemplated
by s 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 material that was
before the arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in and of themselves
sufficient for an award to be set aside, but are only of consequence if their
effect is to render the outcome unreasonable.’
[65] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others13, the
Constitutional Court held that :
“Is the decision reached by the commissioner one that a reasonable decision-
maker could not reach?”
[66] The Constitutional Court in Minister of Health and Another v New Clicks South
Africa(Pty) Ltd and Others (Treatment Action Campaign and Another as amici
curiae)14 held as follows:
“A consideration of the factors that a decision- maker is bound to take into
account is essential to a reasonable decision. If a decision- maker fails to take
into account a factor that he or she is bound to take into consideration, the
resulting de cision can hardly be said to be that of a reasonable decision-
maker.”
[67] It follows, that where a commissioner fails to have regard to material facts, the
arbitration proceedings cannot, in principle, be said to be fair because the
commissioner fails to perform his or her mandate. In so doing, the
commissioner’s action prevents the aggrieved party from having its case fully
and fairly determ ined. This constitutes a gross irregularity in the conduct of
the arbitration proceedings, as contemplated in section 145(2)(a)( ii) of the
the arbitration proceedings, as contemplated in section 145(2)(a)( ii) of the
LRA, and the ensuing award falls to be set aside not because the result is
13 [2007] 12 BLLR 1097 (CC).
14 2006 (2) SA 311 (CC) at para 511.
19
wrong but because the commissioner has committed a gross irregularity in the
conduct of the arbitrat ion proceedings and this in itself serves as a basis to
set aside the award on review, provided only that the applicant establishes
that the result of the award may have been different if the commissioner had
considered the material facts which were ignored, referring to ‘the test for
prejudice’; and, thirdly, a gross irr egularity or act of dialectical
unreasonableness may well culminate in the result of the award being
substantively unreasonable, as per the Sidumo test. But an applicant who
brings a review based on a gross irregularity or act of dialectical
unreasonableness need not go this far in order to succeed.
[68] In casu, it is my view that the arbitrator misconceived the nature of the enquiry
he had to determine. The arbitrator clearly analyzed the evidence of the
parties and made findings on the probabilities and credibility of their evidence
on whether or not the Applicant committed the offence of drinking alcohol on
their way to the college. The arbitrator went to a great extent on assessing the
evidence of whether or not the Applicants made the statements admitting that
they were with their colleague Manganyi and also drank with him, in the taxi.
The arbitrator concluded that the Applicants committed the misconduct and it
was serious in nature. The approach the arbitrator followed is the one to be
used when determining the fairness of a dismissal in terms of section 191 of
the LRA, and theref ore departed from the real nature of the dispute which is
the unfair labour practice challenging the fairness of the demotion sanction.
There were facts which were common cause issued as recorded by the
arbitrator in the background of the award that the appeal outcome took almost
three years to be issued, and that at the time the Applicants were already
promoted to Principal Inspectors some nine months after the alleged incident
promoted to Principal Inspectors some nine months after the alleged incident
had taken place, which evidence the arbitrator ignored and did not deal with at
all. The appeal was lodged in October 2019 against the sanction of dismissal,
and the Third Respondent issued the appeal outcome on 16 September 2022,
almost three years later. A reasonable arbitrator would have applied his mind
to the above facts and considered the principles of fairness in arriving at his
decision.
20
[69] It was important for the arbitrator to have considered such an excessive delay
in issuing an appeal outcome of demotion when the Applicants were already
promoted to traffic officers (Principal Inspectors) on 1 December 2019 when
the appeal outcomes were still pending. The Respondent has not tendered
any evidence on justification for this excessive period.
[70] During the disciplinary hearing the Chairperson was seized with the
determination of whether or not the Applicants committed the offence as
charged and if found guilty to recommend or impose the appropriate sanction,
which was a dismissal. In this matter the challenge by the Applicants is the
fairness of the demotion sanction imposed by t he Third Respondent on
appeal after their promotion, as I indicated above, this fact was a common
cause issue between the parties. The evidence presented by the parti es
before the arbitrator on the commission of the offence, was merely to assist
him in the determination of the demotion dispute but it was not a central issue
for his determination to determine whether or not the sanction was
commensurate to the offences the Applicants were dismissed for initially.
[71] Nevertheless, from the evidence presented by the parties, it is clear that the
Respondent relied largely on the information given by Manganyi to charge the
Applicants without any tangible evidence that the Applicants also drank with
Manganyi on their way to the training college, and another hearsay evidence
presented by Nthakeni, who was not on duty on the date of the incident but
obtained information from the facilitators Mabasa and Tshubase, who also
rendered hearsay evidence based on information they testified was obtained
from Manganyi; yet the arbitrator accepted this piece of evidence by the Third
Respondent and adverse findings against the Applicants. The evidence of
Mabasa, who was also called as a witness for the Third Respondent was
Mabasa, who was also called as a witness for the Third Respondent was
clear that the Applicants did nothing wrong. His testimony was also clearly
reliant on what Manganyi tol d him. Manganyi’s absence in the proceedings
could not be blamed on the Applicants but on the Third Respondent as he
was th e Third Respondent’s main source of information. The arbitrator’s
reasoning in accepting the versions of the Third Respondent regarding the
Applicants being drunk is also very much flawed as he did not consider the
21
contradiction by the Third Respondent’ s witnesses on the issue of how
statements were obtained from the Applicants. It seems the arbitrator was not
alive to these facts and clearly ignored the principles of the law of evidence.
[72] The arbitrator made reference of the provisions of paragraph 14(o) of the
Public Service Regulations that it supports the uncontested version by the
Third Respondent’s prohibiting the consumption of alcohol whilst on duty .
However, the Third Respondent’s witnesses have not led any evidence on the
provisions of the said regulation but the arbitrator without any supporting
evidence made findings in that regard. This is a gross i rregularity on the part
of the arbitrator resulting in an unreasonable decision that a reasonable
commissioner could not have arrived at given the material evidence that was
placed before him.
[73] That test involves the reviewing court examining the merits of the cas e
determining whether, in light of the issues raised by the dispute under
arbitration, the outcome reached by the arbitrator was not one that could
reasonably be reached on the evidence and other material properly before the
arbitrator. The reasons are still considered in order to see how the arbitrator
reached the result. That assists the court to determine whether that r esult can
reasonably be reached by that route. If not, however, the court must still
consider whether apart from those reasons, the result is one that a
reasonable decision maker could reach in light of the issues and the
evidence. Misconceiving the whole enquiry leads to an irregularity on the part
of the arbitrator.
[74] In Assmang Limited v CCMA and Others
15, the Court, per Voyi AJ held that as
the commissioner misconceived the nature of the enquiry and his duties in the
proceeding before him, the outcome of the decision was one that no
reasonable decision maker could have reached.
[75] In Palabora Copper (Pty) Ltd v Motlokwa Transport and Construction (Pty)
Ltd
16, the SCA held that:
Ltd
16, the SCA held that:
15 [2015] 6 BLLR 589 (LC).
16 2018 (5) SA 462 (SCA) at para 8.
22
‘[8] … It suffices to say that where an arbitrator for some reason
misconceives the nature of the inquiry 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.’
[76] Where an arbitrator fails to have regard to the material facts it is likely that he
or she will fail to arrive at a reasonable decision. It is clear that the arbitrator
did not understand the nature of the dispute he was required to arbitrate and
his decision is not one that another decision-maker could reasonably have
arrived at based on the evidence.
[77] It therefore follows that in approaching the dispute as if it was an unfair
dismissal, the arbitrator committed a gross irregularity in the conduct of the
proceedings. The conclusion he arrived at was influenced by his wrong
categorization of the dispute, this led to the arbitrator’s award being one that
could not be made by a reasonable decision- maker. The award is therefore
reviewable.
[78] This matter has taken a number of years and in the interests of justice,
fairness and expeditious dispute resolution, the matter shall not be remitted
back to the Second Respondent for rehearing. The record of the proceedings
was placed before the Court to finalise the dispute and the Court is in as good
a position to make an appropriate order on the merits of the review
application.
Costs
[79] The last issue to be decided is the issue of costs. This Court has a wide
discretion in respect of costs, considering the requirements of law and
fairness. In Zungu v Premier of the Province of KwaZulu- Natal and Others
17,
the Constitutional Court confirmed that the rule that costs follow the result
17,
the Constitutional Court confirmed that the rule that costs follow the result
does not apply in labour matters. The Court should seek to strike a fair
17 (2018) 39 ILJ 523 (CC) at para 24.
23
balance between unduly discouraging parties from approaching the Labour
Court to have their disputes dealt with and, on the other hand, allowing those
parties to bring to this Court cases that should not have been brought to Court
in the first place.
[80] In considering the law and fairness, bearing in mind the provisions of section
162(1) of the LRA, and consideration of the requirements of the law and
fairness no costs order will be made herein.
[81] In the premises, the following order is made:
Order
1. The Third Respondent’ s condonation for late filing of the replying
affidavit is dismissed.
2. The arbitration award is reviewed and set aside.
3. The arbitrator’s award is substituted with an order that the Applicants’
demotion is unfair, and the Applicants must be reinstated in the
promoted positions of Principal Inspectors with immediate effect
without loss of benefits.
4. No order as to costs.
___________________
G. Mafa-Chali
Acting Judge of the Labour Court of South Africa
24
25
Appearances:
For the Applicant : Advocate M Mulovhedzi
Instructed by : Walter Thobejane Attorneys
For the Third Respondent : Advocate E A Thete
Instructed by : State Attorneys