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THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: JA 128/24
In the matter between:
SIMON MASHELE Appellant
and
SOUTH AFRICAN RESERVE BANK First Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
VUYOKAZI MAY N.O. Third Respondent
Heard: 18 September 2025
Delivered: 21 October 2025
Coram: Van Niekerk JA, Djaje AJA et Chetty AJA
JUDGMENT
2
VAN NIEKERK, JA
Introduction
[1] This is an appeal against a judgment delivered by the Labour Court (per Mabaso
AJ) on 15 August 2024, in which the Court dismissed an application to review
and set aside an arbitration award issued by the third respondent ( the arbitrator).
The arbitrator had found that the appellant’s dismissal by the first respondent
(SARB) was substantively and procedurally fair.
Background
[2] The appellant was employed by SARB in 2015 as a specialist legal counsel . At
the time of his dismissal, the appellant was a divisional head, reporting to the
head of the legal department. On 17 December 2019, a co-employee, Ms L[...]
S[...] (S[...]), lodged a formal grievance in which she complained about persistent
comments of a sexual nature made by the appellant, her direct superior. S[...]
testified that she had told a co- employee, Ms Simp hiwe Mukhari,1 a personal
assistant in the legal services department, that she intended to file a complaint of
sexual harassment against the appellant . Mukhari also levelled accusations of
sexual harassment against the appellant. In the result, SARB convened a
grievance hearing, chaired by a member of the Johannesburg Bar, the late Adv
Afzul Mosam SC.
[3] Adv Mosam interviewed S[...] and Mukhari and also Ms Demi Matubathuba, a
lead legal counsel in t he legal services department. Adv Mosam engaged with
the appellant and reviewed a written response prepared by him. On 5 May 2020,
Adv Mosam issued a report recommending that disciplinary steps be taken
against the appellant.
1 In the Labour Court judgment, reference is made to ‘Simpiwe Mokhare’. In the arbitration hearing, the
witness spells her name as ‘Simphiwe Mukhari’.
3
[4] On 21 May 2020, SARB convened a disciplinary hearing on two char ges of
sexual harassment. The charges against the appellant read as follows:
‘Charge 1
You are herewith presented with two charges of misconduct, in that you
allegedly, over a period of time, engaged in incidents of sexual harassment
towards:
• L[...] S[...]; and
• Simphiwe Mokhare,
by acting in a manner described herein below through verbal and physical
interactions:
That –
1. With reference to L[...] S[...]-
1.1 In January 2019, you requested from L[...] S[...] as part of a
greeting and put your hand on her bum(s) during such hug;
1.2 On Monday, 7 October 2019, after L[...] S[...] went for a
gynecologist appointment, you insisted that she “had not gone to
the doctor but had made other arrangements” and upon being
presented with the gynecologist’s script you sent “you mean were
naked. You were naked in the doctor’s room”.
1.3 Sometime in 2019 when you encountered L[...] S[...] near your
office on the 19 th floor at the Head Office building in the Legal
Services Department, you made a comment about her “ size” to
the effect that “ it is a good size”. You said “ unlike some woman,
the size of Thabiso and Poppy. When they undress , your
manhood refuses to stand because they are so big”.
1.4 At a time when L[...] S[...] was on her way to the ladies’ room and
encountered you in the foyer area on the 19 th Floor of the H ead
4
Office building (apparently on the way to the men’s room) you
made a comment to the effect that “she could go in with you”.
Charge 2
with reference to Simphiwe Mokhare-
2.1 you from time to time made comments like “ you have a beautiful
body” which made her feel uncomfortable;
2.2 during June/July 2017 when she had to attend at your office you
asked her to come around the table to where you are sitting “i n
order for her to be closer to you”.
2.3 at times when she visited to office you made comments such as
“you have a beautiful body” and “are these your real legs”.
2.4 that you offered for her to go on a vacation trip “ in order to take
photographs of herself”.
[5] The disciplinary enquiry was chaired by Adv Michael van As of the Johannesburg
Bar and continued for several days. Adv van As found the appellant guilty on
both charges and on 8 September 2020, SARB dismissed the appellant.
[6] The appellant disputed the fairness of his dismissal, a matter that was ultimately
referred to an arbitration hearing before the arbitrator.
Arbitration award
[7] The arbitration hearing continued over some eleven days. The arbitrator’s award
summarises the evidence given by S[...] and Mukhari, and also a Mr Lekhooe, a
SARB employee and a Ms Phehlukwayo, the senior human resources business
partner. The appellant then testified, after which closing arguments were
submitted.
5
[8] On 7 April 2022, the arbitrator issued a 24-page award in which the appellant’s
dismissal was found to be substantively and procedurally fair. In her award, the
arbitrator dealt with the appellant’s submissions regarding what he contended to
be the bias of the chairperson of the disciplinary hearing and noted that the
appellant had led no evidence to substantiate this allegation. T he arbitrator held
that the averment of bias had not been established and that the appellant’s
dismissal was procedurally fair.
[9] In regard to substantive fairness, the arbitrator recorded that it was not in dispute
that SARB had in place workplace rules regarding sexual harassment, and that
the appellant was aware of the rule. What was in issue was the existence of the
misconduct alleged – put another way, whether the appellant had sexually
harassed S[...] and Mukhari. As will appear from the discussion below, the
arbitrator was required to determine a dispute of fact. SARB’s case was that the
appellant had committed the acts of misconduct recorded in the charges and that
his dismissal was fair; the appellant denied having committed any of the acts
concerned and alleged that S[...] had led a conspiracy to fabricate the charges
against him in order to escape performance management processes that he had
initiated. After a summary of the evidence, the arbitrator said the following:
2
‘[56] In weighing the two contrasting ver sions, I took a couple of things into
account. Firstly, the evidence lead as to the motive the complainant
possibly had in making such an allegation. The R espondent argued that
the Applicant had no reason to lie about an allegation a s serious a s that
against her manager. The Applicant on the other side argued that the
motive was to sway the Applicant away from continuing with performance
assessment which was underway. Evidence was led that the Applicant’s
performance needed improvement during 2016/2017 period, from the
performance needed improvement during 2016/2017 period, from the
time Jonathan was still her manager. Jonathan even made comments to
this effect on page 69 of the Applicant’s bundle. The question is, if the
complainant was trying to avoid her performance being dealt with; why
2 The numbering of the paragraphs in the arbitration award is inaccurate. The reference is to paragraph
56 and following as reflected on page 20 of the award and onwards.
6
did she not do the same w ith Jonathan? He was also not happy with her
performance in that he went as far as putting her on N eeds Assessment
Program, just like the Applicant did. The Applicant submitted that it was a
norm to hug and greet each other. The Applicant was part of the legal
department before he led the team. The inference that can be drawn from
such statement is that this custom of hugging each other has been in
existence in this department. Why would the Applicant then, out of all the
males she shared hugs with as part of the custom; choose to make such
a serious allegation against the Applicant only; when Jonathan did the
same thing about her performance, but there was no such allegation
raised.
[57] Mention was made at some stage, though not interrogated in depth by the
parties, that the concern surrounding the complainant’s performance were
issues that did not only begin in 2016; when the Applicant took up
employment with the Respondent; mention was made that the
complainant’s probation was even extended. She gave evidence in March
2021 that she joined the bank six years earlier. It was also common
cause that the Applicant found the complainant already in the employ of
the Respondent. In my view, if she was a person who would go to those
lengths to avoid being her performance issues being dealt with; she
would have done so way before the Applicant joined the bank but she did
not. I’m not persuaded by such defence.
[58] Again on the issue of motive; the second witness of the R espondent,
Mokhare, did not have any performance issues to avoid; in fact, the
evidence from the Applicant was that the only reason she made such
allegations was because she was recruited by the complainant to li e. To
check the credibility of the evidence of M okhare; I considered the
possibility that she was emotional during the proceedings to try and get
sympathy from the Commissioner. I weighed that against the way her
sympathy from the Commissioner. I weighed that against the way her
defence was tested during cross -examination; and I found that the only
contradiction there was, was the fact that she stated during cross -
examination that she cried during the disciplinary hearing; and later
remembered she was reminded during re - examination that she was not
7
emotional. All the other evidence she led, in my view, withstood the test of
cross-examination in that there were no material contradictions in her
evidence.’
[10] The arbitrator dismissed the appellant’s submission that the complainants had
delayed reporting the allegations of harassment as indicative of the fact that they
were false. The arbitrator noted that both S[...] and Mukhari had testified that they
were afraid that they would not be believed, and because they were aware that
the experience would be emotionally draining. T he arbitrator similarly dismissed
the appellant’s submission that SARB had failed to call certain witnesses, and
that an adverse inference should be drawn from this fact. The arbitrator found
that none of the witnesses concerned were in a position to prove or corroborate
any relevant fact. The arbitrator came to the following conclusion:
‘[66] On the basis of the aforesaid; I hereby find on the balance of probabilities,
that the applicant did harass the two employees; L[...] S[...] and Simphiwe
Mokhari that the Applicant’s conduct in that regard was sexual in nature in
that they were directed to people of different gender and the innuendos
and conduct were sexual in nature. The Applicant was in a position of
authority and his conduct was directed at people who were subordinate to
him. Evidence was led that he was reprimanded, told to stop, and that at
some stage, the employees would walk away; clearly indicating that the
conduct was unwelcome. As a person in a position of authority; the
Applicant is reasonably expected to have known better than to use his
position of power in an abusive way. His conduct clearly had a negative
impact on the complainant and the witness; Mokhari. The Respondent’s
duty to keep her safe working environment for its employees also
weighed heavily in support of the R espondent’s case. Owing to the
seriousness of the allegations against the Applicant, I am therefore
seriousness of the allegations against the Applicant, I am therefore
persuaded that the Respondent acted fairly in its attempt to protect its
employees. I therefore find that the Respondent has discharged the onus
to prove fairness of the dismissal on substantive grounds.’
8
[11] On 20 May 2022, the appellant filed an application to review and set aside the
arbitrator’s award.
Labour Court
[12] In his notice of motion, the appellant sought to have the arbitrator’s award
reviewed and set aside and substituted with an order “to t he effect that the
Applicant’s dismissal is procedurally and substantively unfair, sanction imposed
is harsh and ordering the South African Reserve Bank to reinstate him with effect
from the date of his dismissal, and without loss of income or benefit thereof”. The
appellant’s founding affidavit makes clear that his attack on the award went
beyond the severity of sanction – he disputed the arbitrator’s assessment of the
evidence and her conclusion that no reasonable decision- maker could have
reached the conclusion that he had committed the misconduct for which he was
dismissed.
[13] The appellant’s case on review was thus that the arbitrator had misdirected
herself both by making a decision as to the existence of misconduct that no
reasonable decision-maker could have reached on the evidence led, but also that
the sanction of dismissal was too harsh in circumstances where the appellant
described himself as ‘a first-time offender’.
[14] In his supplementary affidavit, the appellant more closely disputed the arbitrator’s
assessment of the evidence, and her conclusions that S[...]’s version was more
probable. The appellant also disputed the arbitrator’s conclusion that SARB had
discharged the onus of proving the allegations of sexual harassment, bullying
and intimidation brought against him. Similarly , in respect of M ukhari’s evidence,
the appellant averred that the arbitrator had misdirected herself by not rejecting
her evidence.
[15] The appellant further submitted that there was no evidence on the record o f any
breakdown in the employment relationship between him and SARB. He stated:
9
‘In present case, the First Respondent has failed to lead any evidence to
demonstrate that the Applicant has committed [ a] misconduct which is so
intolerable that the relationship between him and the employer is not capable of
being restored.’
[16] The Labour Court delivered an ex-tempore judgment. The Court made specific
reference to the disti nction between a review and an appeal , and set out the
proper test to be applied on review . In particular, the Court recalled the approach
set out by this Court in Gold Fields Mining South Africa (Kloof Gold Mine) (Pty)
Ltd v C ommission for C onciliation, Mediation and A rbitration and others3 an
approach that discourages a piecemeal, nit -picking approach to the arbitrator’s
assessment of the evidence and requires that the arbitrator appreciate the nature
of the dispute, allow the parties a full opportunity to have their say, deal with the
substantive merits of the dispute, and arrive at a decision that falls within a band
of decision that a reasonable decision maker could reach on the available
evidence.
[17] The Labour Court concluded:
‘As much as I have indicated, during oral submissions by the parties, that if one
looks at the evidence of Ms S[...] in isolation, there are questions therein. But two
things that prevent this court from even interfering with such is that number one,
this is a reviewing court, it is not an appeals court. Number two, the
Commissioner did deal with this evidence, as I have indicated that she said she
accepts the evidence of the First Respondent, and that piggyback point in
respect of the second one, is that Ms S[...] was not the only one who testified
against the applicant, Ms Mokhare also testified and accused the applicant of
sexual assault. The evidence of Ms Mokhare confirms the culture of sexual
harassment perpetrated by the Applicant, as concluded by the Commissioner.
There also are other witnesses, which I would say are formal witnesses, but the
two main witnesses seem to confirm this culture.
two main witnesses seem to confirm this culture.
3 [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC).
10
Consequently, this Court has considered all the grounds that have been raised
as indicated earl ier and with respect to the inference, the inferential reasoning, I
must indicate that this matter was not decided on that basis only. There was
direct evidence for this misconduct. The inference that the Commission is talking
about has to be married with direct evidence of Ms S[...] and Ms M okhare.
Therefore, the point that Mr Mathevula has raised to say that this Court must look
at paragraph 5 of South African Post Office v De Lacy and Another it is my
conclusion that it is not applicable in this matter.’
[18] The Labour Court was consequently satisfied that the arbitrator had not
committed any material irregularity in relation to her assessment of the evidence,
the primary basis of the appellant’s attack on the award and further, that the
award fell within the bounds of reasonableness. The Court accordingly dismissed
the application, with no order as to costs.
Grounds of appeal
[19] In hi s application for leave to appeal, the appellant contends that the Labour
Court erred by finding that the arbitrator considered all the evidence and
upholding her conclusion that there was direct evidence to the effect that the
appellant had committed acts of sexual harassment . The appellant contended
that in the present case, there was no direct evidence of misconduct , given the
contradictions in the evidence of SARB’s witnesses . This being so, the appellant
contends that the arbitrator’s findings were unreasonable and that no reasonable
arbitrator could have reached the conclusion that she did based on the same
evidence. Further, the appellant contends that the Labour Court is in finding that
the evidence of S[...] was corroborated by that of Mukhari, and that in the
circumstances, SARB was required to present direct evidence in the form of
either video or photographic evidence, alternatively an independent witness to
either video or photographic evidence, alternatively an independent witness to
the incidents that form the subject of the charges against the appellant. In the
absence of such evidence, the court is required to uphold the arbitrator’s factual
findings. In particular, the appellant disputes that there is any evidence in the
record to support the conclusion that the incidents that form the subject of the
11
charges against him ever took place. The appellant considers that the evidence
given by S[...] and Mukhari remained to be confirmed by other SARB employees,
who were never called to give evidence, a matter that ought to have been the
subject of an adverse inference drawn by the arbitrator, particularly since there
was an indication at the outset of the hearing that these witnesses would be
called. Finally, the appellant contends that the court erred by upholding the
arbitrator’s finding that SARB’s witnesses were credible, and her rejection of the
appellant’s evidence, given that there were no contradictions in that evidence.
[20] Distilled to their essence, the appellant’s grounds of appeal are his contention
that the arbitrator placed the onus on him to prove the fairness of his dismissal,
that the arbitrator misdirected herself in relation to her findings that he was guilty
of the misconduct for which he was dismissed. Here, the appellant relies on what
he contends is an inference drawn by the arbitrator in the face of contradictory
evidence by SARB’s witnesses. Further, the appellant contends that the
arbitrator failed properly t o assess the evidence in relation to the delay in
reporting the allegations of sexual harassment, that she ignored the
complainants’ alleged motive for lodging the sexual harassment complaints, and
that she erred by failing to draw an adverse inference given SARB’s decision not
to call witnesses that it had indicated would be called to give evidence. Finally, in
the heads of argument submitted on his behalf, the appellant records that SARB
failed to lead any evidence of any breakdown in the relationship between him
and SARB and makes reference to authorities that concern remedy and in
particular, the appellant’s desire to be reinstated to his position.
[21] When pressed on the issue of the appel lant’s contention on review that the
arbitration award ought to be set aside on the basis that dismissal was too harsh
arbitration award ought to be set aside on the basis that dismissal was too harsh
a penalty , counsel submitted that some form of warning in relation to future
misconduct in the form of sexual harassment was appropriate. This submission
was made in the face of a concession by t he appellant in cross -examination that
the charges disclosed serious misconduct that , if proven, would constitute
grounds for dismissal. When the i ncongruity of a defence of a blanket denial of
12
the charges of misconduct and the pleaded ground for review that dismissal was
too harsh a sanction was put to counsel , he abandoned this ground of appeal
and pursued those submissions that concern what he contended to be a material
irregularity on the part of the arbitrator in her assessment of the evidence.
Evaluation
[22] The relevant regulatory framework encompasses international labour standards,
the Constitution,4 the Employment Equity Act ,5 and the Code of Good Practice
on the Prevention and Elimination of Harassment in the Workplace (Code).6 All of
these instruments take as their point of departure the values of personal integrity,
dignity, equality , and the necessity for the working environment to be free of
sexual harassment.
[23] ILO Convention 2019 (No 190) concerning the Elimination of Violence and
Harassment in the World of Work was ratified by South Africa on 29 November
2021. The Convention obliges member states that ratify the Convention to adopt
measures to prevent and eliminate violence and harassment (defined to include
a range of unacceptable behaviours and practices) in the world of work.
[24] The Code was adopted in fulfi lment of international law obligations consequent
on the ratification of Convention 190 and regards all forms of workplace
harassment as acts of unfair discrimination. Item 5 of the Code deals specifically
with sexual harassment, defined as a form of unfair discrimination on the grounds
of sex, gender or sexual orientation. ‘Sexual harassment’ is broadly defined to
4 Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).
5 Act 55 of 1998.
6 GG No 1890, 18 March 2022. The Code is published in terms of s 54 (1)(b) of the Employment Equity
Act, 1998, and replaces the Code issued on 4 August 2005.
13
encompass a range of behaviour and conduct. The Code provides that conduct
amounting to sexual harassment may include:
‘5.2.5.4 sexual attention, advances or proposals; or other behaviour ,
whether explicit or implicit, including suggestions, messages,
advances, attention or proposals of a sexual nature;
…
5.2.5.6 verbal conduct such as innuendos, suggestions, hints, sexual
advances, comments with sexual overtones, sex -related jokes or
insults, graphic comments about a person’s body, inappropriate
enquiries about a person’s sex life, whistling of a sexual nature
and the sending by electronic means or otherwise of sexually
explicit text;’
[25] The Code recognises that all forms of harassment in the workplace have their
roots in an abuse of power. In McGregor v Public Health & Social Development
Sectoral Bargaining Council & others 7, the Constitutional Court noted that
“[S]exual harassment occurs at the intersection of gender and power, producing
a potent stench of subordination, disempowerment and inequality that so seeps
through the fabric of our society that it stains its core” . In Campbell Scientific
Africa (Pty) Ltd v Simmers and others8 this Court (per Savage AJA) referred to
the role of power dynamics in enabling workplace sexual harassment:
‘At its core, sexual harassment is concerned with the exercise of power and in
the main reflects the power relations that exist both in society generally and
specifically within a particular workplace. While economic power may underlie
many instances of harassment, a sexually hostile working environment is often
“… less about the abuse of real economic power and more about the perceived
societal power of men over women. This type of power abuse often is exerted by
a (typically male) co-worker and not necessarily a supervisor”.
7 (2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC).
8 [2016] 1 BLLR 1 (LAC); [2015] ZALAC 51.
14
And:
‘By its nature such harassment creates an offensive and very often intimidating
work environment that undermines the dignity, privacy and integrity of the victim
and creates a barrier to substantive equality in the workplace. It is for this reason
that this Court has characterised it as “the most heinous misconduct that plagues
the workplace”.’9
[26] In the present instance, the arbitrator correctly distilled the dispute to one of fact .
In the face of the denial by the appellant that he had sexually har assed either
S[...] or Mu khari, the single issue to be decided by the arbitrator was thus
whether the appellant had committed the misconduct for which he had been
dismissed. In these proceedings, the appellant disputes that the Labour Court
was correct to uphold the arbitrator’s finding that, on a balance of probabilities,
the appellant had harassed both S[...] and Mukhari, and that his innuendoes and
conduct had been of a sexual nature, thus warranting the appellant’s dismissal.
[27] As the Labour Court correctly observed, t he LRA draws a firm distinction
between a right of review and a right of appeal . The statutory right of recourse
against an arbitration award is confined to the narrower remedy of review on the
grounds established by section 145 of the LRA, suffused as that section is by a
reasonableness standard. 10 This requires that the review court i n Duncanmec
(Pty) Ltd v Gaylard NO & others,11 the Constitutional Court stated:
9 Ibid at paras 20-21.
10 Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC); (2007) 28 ILJ
2405 (CC) at para 106.
11 (2018) 39 ILJ 2633 (CC); [2018] 12 BLLR 1137 (CC) at paras 42-43. See also Quest Flexible Staffing
Solutions (A Division of Adcorp Fulfillment Services (Pty) Ltd v Lebogate) (2015) 36 ILJ 968 (LAC), where
this Court said the following:
‘[12] … Our courts have repeatedly stated that in order to maintain the distinction between
‘[12] … Our courts have repeatedly stated that in order to maintain the distinction between
review and appeal, an award of an arbitrator will only be set aside if both the reasons and
the result are unreasonable. In determining whether the result of an arbitrator's award is
unreasonable, the L abour Court must broadly evaluate the merits of the dispute and
consider whether, if the arbitrator's reasoning is found to be unreasonable, the result is
nevertheless capable of justification for reasons other than those given by the arbitrator.
The result will, however, be unreasonable if it is entirely disconnected with the evidence,
unsupported by any evidence and involves speculation by the arbitrator.
[13] An award will no doubt be considered to be reasonable when there is a material
connection between the evide nce and the result or, put differently, when the result is
15
‘This test means that the reviewing court should not evaluate the reasons
provided by the arbitrator with a view to determine whether it agrees with them.
That is not the role played by court and review proceedings. Whether the court
disagrees with the reasons is not material.
The correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there are reasons
supporting it. The reasonableness requirement protects parties from arbitrator
decisions which are not justified by rational reasons.’
[28] In the application of the reasonableness threshold, as the Labour Court correctly
pointed out, it is not the function of a review court to adopt a piecemeal approach
in relation to the award under review; the court must necessarily consider the
totality of the available evidence.12 Put another way, it is not open to an applicant
in a review application, nor is it the function of the review court, to microscopically
analyse the evidence presented at the arbitration hearing in an attempt to
demonstrate that the award under review is incorrect and that it should therefore
be set aside. This approach invites an evaluation of the correctness of the award
and thus invite an appeal in the guise of a review.
13 What the reasonable ness
threshold entails was recently explained by t his Court (per Sutherland JA) in
Makuleni v Standard Bank of SA Ltd & others 14 (Makuleni) where the Court
warned against a review court yielding “ to the seductive power of a lucid
argument that the result could be different”. The Court went on to state:
‘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 tenable. Only if the conclusion is untenable is a review and
setting aside warranted’.15
reasonably supported by some evidence. Unreasonableness is, thus, the threshold for
interference with an arbitrator's award on review.’
interference with an arbitrator's award on review.’
12 Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation
and Arbitration and others (Gold Fields) [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC).
13 See Cox v CCMA & others [2001] 2 BLLR 141 (LC); (2001) 22 ILJ 137 (LC).
14 (2023) 44 ILJ 1005 (LAC); [2023] 4 BLLR 283 (LAC).
15 Ibid at para 4.
16
[29] This approach f inds particular application where the review court is required to
evaluate factual findings made by the arbitrator. Where, as in t he present
instance, the arbitrator is confronted with two competing versions or factual
constructions of t he evidence, whether an award is susceptible to review is
dependent primarily on the plausibility and reasonableness of those
constructions. Where both constructions are plausible and reasonable, this Court
has held that the arbitrator’s choice of one of them cannot give rise to a review -
the award will be reasonable provided it is based on “acceptable evidence upon
which t he arbitrator could safely rely ”. In circumstances such as the present
where one of the versions before the arbitrator is obviously implausible (or, to
use this Court’s words in Mak uleni, it is simply untenable) and the other version
not, the arbitrator is obliged to reject th e untenable version. A failure to do so
would ordinarily render the award reviewable, since the acceptance of an
untenable version of the facts would inevitably result in a conclusion or result that
is unreasonable when the totality of the evidence is considered.16
[30] It follows from this analysis that intervention by a review court to disturb factual
findings made by an arbitrator ought to be exceptional, and that the court should
be “extremely hesitant” to do so. 17 A review court must therefore accord the
arbitrator a margin of error in any enquiry into the factual matrix – errors of fact
and any assessment of the weight and relevance to be attached to particular
facts are not in and of themselves sufficient for an award to be set aside. 18 While
the reasonableness of the outcome of the proceedings remains the threshold, as
I have indicated above, a factual finding made by an arbitrator that is simply
16 See Head of the Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) ; (2015) 36
ILJ 2802 (LAC) where this Court adopted a two stage test ; the first is to determine any distorting effect
that an error of fact may have had on the ultimate outcome, with a material error (one found to have
caused the applicant to lose the arbitration) constituting on a prima facie basis, an unreasonable result.
The second stage is to determine whether the prima facie case is confirmed or rebutted by on a
consideration that make up the enquiry into reasonableness. (See Myburgh and Bosch Reviews in the
Labour Courts LexisNexis 2016 at 244-5.)
17 Mbeje & others v Department of Health, KwaZulu -Natal & others (2024) 45 ILJ 2681 (LAC); [2024] 11
BLLR 1111 (LAC) at para 21.
18 A J Charnaud & Co v SA Clothing & Textile Workers Union on behalf of Members & others (2024) 45
ILJ 2257 (LAC); [2024] 10 BLLR 1016 (LAC) at para 24.
17
untenable having regard to the evidence, will inevitably fail to meet that
threshold.
[31] On appeal, the appellant persists with his attack on the arbitrator’s assessment of
the evidence before him, and submits that the Labour Court was incorrect to
conclude both that the arbitrator had committed no material irregularity in her
assessment of the evidence and that the outcome of the proceedings under
review fell within a band of decisions to which a reasonable decision-maker could
come on the evidence. In doing so, the appellant misconceives the nature and
limitations of the remedy of review and seeks to adopt the piece- meal approach
specifically rejected by this Court in Gold Fields.
[32] Turning to the appellant’s first ground for appeal, he submits that the Labour
Court ought to have concluded that SARB failed to discharge its burden to
establish, on a balance of probabilities, that the appellant committed the offences
for which he was dismissed. In particular, the appellant submits that the arbitrator
drew inferences f rom the evidence that had the effect of shifting the burden of
proof to the appellant . In support of this submission, the appellant submits that
the arbitr ator drew an inference from the body of evidence that is inconsistent
with all the proved facts. In this regard, counsel relied on S outh African Post
Office v De Lacy and Another 19 in which the Court held that when a court draws
an inference, what is required is an evaluation of all the evidence and not merely
selected parts , and that the inference drawn be consistent with all the proved
facts.
[33] The appellant’s submissions are predicted on the contention that S[...]’s evidence
was ‘marred with contradictions ’ to the extent that there was no direct evidence
that the appellant was guilty of the misconduct for which he was dismissed. As I
understand the submission, the appellant contends that in these circumstances,
by finding that there was direct evidence against the appellant, the arbitrator
by finding that there was direct evidence against the appellant, the arbitrator
placed the onus of proving the fairness of his dismissal on the appellant. T here is
19 (2009) (5) SA 255 (SCA); [2009] 3 All SA 437 (SCA).
18
no merit in this submission. To the extent that the appellant contends that there
was no direct evidence to support the evidence of both S[...] and Mukhari and his
submission that their testimony ought to be rejected on that basis, the
submission is misconceived. Inferential reasoning is ordinarily relied on in the
absence of direct evidence, where inferences are sought to be drawn from such
objective facts as are available.20
[34] S[...] testified that she regarded the appellant’s conduct and comments as
degrading, and that she felt disempowered as a result . Discussions with the
appellant were sexualised “… the minute you start engaging with him it’s like
he’s, he’s seeing a sexual object ”. S[...] gave direct evidence regarding the four
separate incidents of sexual harassment that formed the subject of the charges
against the appellant , in relation to her. She testified that in January 2019, after
her return to work following the December holidays, the appellant asked her for a
hug. She stated that as she hugged the appellant, he touched her buttocks with
his hand. In his evidence, the appellant did not deny that he hugged S[...], but he
denied that he touched her buttocks. Under cross -examination, the appellant
conceded that he might have touched S[...]’s buttocks while he hugged her but
denied that he had any intention to sexually harass her. When pressed during
cross-examination on the discrepancy between the version previously proffered
(i.e. that he did not touch S[...]’s buttocks) and the version that he may have done
so but without any intention to harass, the appellant could not offer an acceptable
explanation. S[...] also gave evidence concerning an incident that occurred on 7
October 2019 where after a consultation with her gynaecologist , she met the
appellant who inquired as to the whereabouts. The appellant remarked that S[...]
was ‘naked in the doctor’s office’ whereupon S[...] told the appellant to stop and
was ‘naked in the doctor’s office’ whereupon S[...] told the appellant to stop and
walked away. The appellant did not deny that he had met with S[...] on 7 October
2019, or that they discussed her appointment at the gynaecologist . S[...] gave
further evidence regarding an incident where the appellant made inappropriate
comments regarding her body. In particular, she testified that when she was in
20 Briers NO and Others v Salmon NO and Others [2023] ZAWCHC 26.
19
the appellant’s presence, he had s aid to her that she had a good body unlike
Thabiso and Poppy, two employees in the department . The appellant had stated
that they were so big that when they undress, “ your manhood just goes down; it
refuses to stand” . The appellant denied that this incident ever occurred and
contended that it was a fabrication by S[...] . Finally, S[...] referred to an incident
that occurred when t he appellant was going to the bathroom and suggested to
her that she should go with him into the bathroom. Again, the appellant’s v ersion
was one of a bare denial that the incident took place.
[35] The second complainant , Mukhari, testified that in April 2017, she went to the
appellant’s office for him to complete the gift register. When she entered the
office, the appellant called her around his desk and stated that she had a
beautiful body and that she was ‘ portable’. Mukh ari testified that she felt
particularly uncomfortable in the interaction with the appellant as he did not look
at her in the eyes but looked at her midsection and down at her legs. In a second
instance that form ed the subject of Mukhari’s evidence, she testified that when
she visited his office, the appellant again asked her to come around his desk and
after inquiries about the number of children she had, stated that he would make a
good father to her children. In June or July 2017, Mukhari stated that when she
had occasion to attend at the appellant’s office, he again asked her to come
around his desk and continued to look at her and speak about her legs, telling
her that she had nice legs. On occasion, the appellant inquired whether Mukhar i
ever w ore swimwear to which she replied that she did, but only when alone.
Following this, the appellant remarked that he had seen a profile picture when
she was wearing sportswear. The appellant inquired whether he could sponsor a
holiday for Mukhari in return for her sending him pictures of her. Mukhari testified
holiday for Mukhari in return for her sending him pictures of her. Mukhari testified
that the situation made her feel very uncomfortable. M ukhari also gave evidence
concerning an incident that occurred in November 2018 when after using the
bathroom, she sat outside in pain on account of an injury. T he appellant
approached her and after inquiring why she was seated there, he stated that he
could kill her, that she was ‘portable’ and that he could carry her into the
bathroom. Finally, M ukhari testified that during July or August 2018, when she
20
was assisting with the processing of payments for international workshop that the
appellant was to attend, she went to his office to discuss an instruction not to pay
for the workshop until the appellant’s visa had been approved. As she was
leaving the appellant’s office, the appellant told her that he had asked for many
things and that he had just been ignored. T he appellant explained that he had
requested pictures, and she had never provided any. The appellant did not offer
any explanation regarding any of the se events – his defence was that the
incidents complained of had never occurred and that he was the victim of an
elaborate conspiracy led by S[...], and extending to M ukhari, to accuse him
falsely of sexual harassment, a conspiracy motivated ultimately by performance
management processes that he had initiated against S[...] . Other than her
conspiring with S[...] , there was no version put to M ukhari during the arbitration
that she had any motive to falsely accuse the appellant of sexual harassment.
The appellant confirmed as much under cross -examination, when he
acknowledged that he had proffered a different version in his disciplinary hearing,
when he put to M ukhari that the reason that she lodged a complaint of sexual
harassment against him was her desire to have a relationship with them, which
he had rejected.
[36] In regard to the appellant’s submission that the Labour Court ignored that the
arbitrator had no regard to the motive S[...] had in filing a complaint against him
(the appellant had contended that S[...] falsely accused him of sexual
harassment to secure his dismissal and thus prevent him from disciplining her for
poor work performance) , there was no evidence that S[...] was facing any
imminent poor performance proceedings or even counselling for failing to meet
work performance standards. It was also not disputed that S[...] had never been
placed on a performance program. This much was confirmed by the evidence of
Phehlukwayo.
placed on a performance program. This much was confirmed by the evidence of
Phehlukwayo.
[37] There is also no merit in the submission that the arbitrator ought to have drawn
an adverse inference from SARB’s failure to call certain witnesses, in particular,
Mthubathuba, Poppy and Thabiso. The arbitrator found that their evidence
21
“would not tilt the scale in favour of the Applicant” since none of them had been
present during any of the incidents referred to.
[38] In regard to the appellant’s contention that the charges represented a conspiracy
against him, the arbitrator concluded that there was no evidence as to why a
group of junior employees would “ gang up against a senior manager to support
someone whom it is alleged is evading consequences of poor performance when
they themselves had nothing to gain from I”’.
[39] Contrary to the appellant’s submission, t he arbitrator’s award does not disclose
an outcome based on inferential reasoning . The appellant’s submission that the
award fails to meet the criteria established by South African Post Office v Delacy
and Another is simply misplaced.
21 The arbitrator had regard to the direct
evidence of SARB’s witnesses on t he one hand and the appellant on the other,
gave consideration to their respective credibility and found, on a balance of
probabilities that the appellant had committed the misconduct for which he had
been dismissed. Support for the finding that the probabilities favoured SARB’s
version was found in the lack of any motive on the part of either S[...] or Mukhari
to proffer false charges of sexual harassment against the appellant , and also in
the commonality of their experiences in their separate engagements with the
appellant, both in relation to the appellant’s conduct and their responses to it.
There is no material irregularity in the manner or form in which the arbitrator
assessed the evidence, or her determination of where the balance of probabilities
lay.
[40] To the extent that the appellant takes issue with the delay in lodging the
complaints of sexual harassment, the evidence discloses that she decided to file
a grievance after realising that the appellant would persist in sexually harassing
and bullying her. M ukhari stated that this was not the first time that she had
and bullying her. M ukhari stated that this was not the first time that she had
experienced sexual harassment in the workplace, and that consequent on
21 Although the arbitrator refers in para 56 of the award to an ‘inference’ that the custom of hugging
existed in the legal department, especially after a return to work from a period of leave, this is not strictly
an inference, it was a common cause fact.
22
previous experience with a different employer, she felt ashamed and that she
was being victimised for reporting what was happening. Further, M ukhari stated
that she was scared and afraid that she would be accused of lying as the
appellant was a senior manager and she was a new employee at SARB. She
decided to speak out at the grievance hearing convened after S[...]’s complaint.
[41] The appellant’s submission that the arbitrator ought to have regarded the delay
as a factor militating against the probability of the complainant’s version ignores
not only the appellant’s concession under cross -examination that it was difficult
for women to come forward and report sexual harassment, but also the nature
and effect of power dynamics in the workplace. I n the comprehensive judgment
by Tlhotlhalemaje J in Rustenburg Platinum Mines Limited v UASA obo Pietersen
and Others
22, the Labour Court said the following about delays in reporting
incidents of sexual harassment:
‘[50] Common sense however, and a bit of appreciation of the human mind
dictates that one must look deeper and objectively into the reasons
incidents of sexual harassment are not immediately reported…
[51] In most cases, however, it might take ages for the complainant to finally
muster the strength and courage to report the incidents. This could be for
a variety of reasons including but not limited to:
(a) Being ‘frozen’, and disbelieving what they are experiencing, and
not having the human tools to respond immediately. The state of
paralysis may be accompanied by guilt, confusion, self- anger,
self-blame, shame, victimhood, unusual calm, being distraught
and incapable of expression, withdrawal, helplessness , or outright
terror. (The ‘paralysis mode’ syndrome).
(b) Many fear a backlash if they complain, especially where the
incident took place in a power/subordinate relationship…
22 [2018] ZALCJHB 72; (2018) 39 ILJ 1330 (LC).
23
(c) There is a fear of causing a fossil disharmony in the workplace,
with allegations that may not be taken seriously or believed,
especially in the absence of corroborating evidence. (Most
incidents of sexual harassment take place where there are no
witnesses.)
(d) Fear of consequential and negative label ling once an incident is
reported…
(e) Feeling pity for the harasser for whatever reason, irrespective of
the reprehensible conduct.
(f) Enduring the ordeal with the hope that it will go away, or that it
was a once off incidents never to be repeated (the ‘quit or endure’
syndrome), coupled with the carrying of a sense of guilt for not
reporting the matter.
(g) The fear of publicity , and/or having to substantiate the allegations
in public proceedings under relentless and unsympathetic cross -
examination.
[52] the above list of responses is not exhaustive, and will in most instances
obviously require of the complainant/experience to attest to them. What is
of significance though is that the inability to recall events with specifics,
including the timelines within which events or incidents took place, is not
an unusual phenomenon in such cases. Courts and C ommissioners
ought therefore to bear in mind that the fact that the complainant cannot
recall specifics does not imply that the incidents did not take place.’
[42] Mukhari gave evidence as to her reluctance initially to lodge a complaint
regarding the appellant’s conduct. She also testified as to the circumstances that
gave rise to her decision to pursue a complaint against the appellant. She stated
the following:
‘RESPONDENT’S REPRESENTATIVE: So what is it that made you then decide
well, I’m going to have to speak up?
24
MS SIMPHIWE ESTHER MOKHARI: Because I realised that if it happened to
L[...], it might happen to someone else. That’s the first thing. Number 2, it was
that uhm I realised that by not saying something, he is going to continue because
I felt the l ast incident that happened, for me it felt like he was now bullying me.
You know, he’s going to force me into what he wants. For as long as I say
nothing, it’s going to continue and I might… it’s either I’m going to have to give in
or I’m going to have to leave the job and I could not afford to do either of those.
Yes.
RESPONDENT REPRESENTATIVE: Okay.
MS SIMPHIWE ESTHER MOKHARI : I am so sad that I actually felt guilty for
something that he does.’
[43] There is no basis to call the arbitrator’s decision into question on the basis of any
delay in reporting the incidents of sexual harassment or the filing of the complaint
against the appellant.
[44] What the evidence discloses, viewed as a whole, is direct evidence given by both
S[...] and M ukhari as to t he acts of harassment that formed the subject of the
charges against the appellant , the appellant’s bare denial that he committed any
of the conduct alleged and significantly, as the arbitrator pointed out, a n alleged
motive on which the appellant relied (in the form of steps taken to manage S[...]’s
work performance) that did not withstand cross -examination, a conspiracy theory
that made no sense given the nature of the relationship between S[...] and
Mukhari, and certainly no evidence of collusion between them to falsely implicate
the appellant. What the evidence does disclose is a clear pattern of the appellant
objectifying women through explicit sexual language and conduct. That pattern is
both recurrent and similar. Both S[...] and M ukhari testified as to intrusive
personal enquiries; in S[...]’s case, for example, about her visit to the
gynaecologist, in M ukhari’s case her wearing swimwear and requests for
gynaecologist, in M ukhari’s case her wearing swimwear and requests for
pictures. Both women testified that the appellant had inappropriately used
physical proximity and situation control (especially in t he form of repeated
25
requests that they move to his side of the desk) and to place them in positions
where they felt uncomfortable.
[45] In s ummary: the arbitrator took into account all relevant issues, including the
issue of adverse inference and committed no reviewable irregularity in her
assessment of the evidence. In sum, there is nothing in the record to suggest
that the factual findings to whic h the arbitrator came were untenable given the
evidence that served before her . The arbitrator’s decision to uphold the
appellant’s dismissal is clearly one that falls within the bounds of
reasonableness, and the Labour Court was correct not to disturb the arbitrator’s
value judgment. The Labour Court was thus correct to find that the appellant had
failed to make out a case for review , and the order dismissing the application
stands to be upheld.
Costs
[46] Section 179 of the LRA provides that this Court may make an order for costs,
according to the requirements of the law and fairness. This formulation, which
reflects that which applies to the Labour Court, 23 means that the ordinary rule
that applies in civil proceedings, that costs follow the result, does not apply. In
Booi v Amathole District Municipality and others,24 the Constitutional Court said
the following:
‘However, this is a labour matter and this Court’s jurisprudence is settled: the
ordinary rule that costs follow the result does not apply in labou r matters. Rather,
what emerges from the provisions of the LRA and the jurisprudence is that
courts, when awarding costs and labor disputes, must consider what fairness to
amounts and on the side of not discouraging parties from approaching the courts
for the peaceful resolution of labou r disputes. Further, if costs are to be awarded
23 See section 162 of the LRA.
24 [2022] 1 BLLR 1 (CC); (2022) 43 ILJ 91 (CC). See also Zungu v Premier of the Province of KwaZulu-
Natal & others (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC) ; Union for Police Security & Corrections
Organisation v SA Custodial Management (Pty) Ltd & others (2021) 42 ILJ 2371 (CC); 2022 (1) BCLR
118 (CC).
26
labor matters, there must be reasons to justify the court’s decision to depart from
the position that the losing party should not be marketed in costs in labor
disputes.’
[47] This affirmation of the general rule that costs do not ordinarily follow the result
does not preclude the Labour Court, nor this Court, from making an order for
costs where an order of that nature is appropriate or put another way, where
fairness demands that the losing party should be saddled with the burden to pay
the successful party’s costs, either in whole or in part. The demands of access to
justice, as the Constitutional Court has noted, require that aggrieved employees
are not shut out of the statutory dispute resolution system by the prospect of an
adverse order for costs . However , to permit aggrieved litigants to move
mechanically from one level of the dispute level to the next without pause,
undeterred by the potential of an adverse order for costs, can frustrate the right
of access to justice by other , more deserving cases. Cases that lack any
ostensible merit demand administrative resources, time and attention, with the
result that long backlogs continue to plague the Labour Court’s rolls. In these
circumstances, the right of access to justice by those parties who have genuine
cases is compromised, if only because they are forced to wait years for a hearing
date on rolls that are littered with cases that border on the hopeless. An order for
costs is one mechanism to discourage cases that fall into this category, and they
ought to be so discouraged.
[48] The present case is a good example. The complaints against the appellant were
lodged more than five years ago. He had the benefit of a comprehensive
investigation conducted by a senior counsel before charges were even
contemplated by SARB. O n counsel’s recommendation, charges of sexual
harassment were the subject of a hearing before a senior junior counsel . That
hearing endured, we are told, for ‘several days’ before the appellant was
hearing endured, we are told, for ‘several days’ before the appellant was
dismissed. The appellant’s dismissal then became the subject of a lengthy
arbitration hearing extending over eleven days , where the same witnesses who
had testified during the investigation and the disciplinary hearing gave evidence
27
as the same factual circumstances. At an early stage, all that was at issue was a
narrow factual dispute. After a comprehensive arbitration award was issued, the
appellant filed an application for review. Given the narrow grounds for review that
are permitted by the LRA, especially in relation to factual findings made by
arbitrators, the hopelessness of the appellant’s case ought to have been obvious.
[49] In the result, over a period of some five and a half years , an individual dismissal
dispute that turns on a simple factual finding has demanded the attention of two
counsel, a CCMA commissioner, a Labour Court judge and three appeal court
judges, all of whom concur, without hesitation, that the appellant committed an
act of the most serious misconduct that manifestly justified his summary
dismissal. In these circumstances , I would ordinarily have dismissed the appeal
and ordered the appellant to pay SARB’s costs on a punitive scale. With some
reluctance, I take cogni sance of the fact that the Labour Court granted the
appellant’s application for leave to appeal. The appellant’s (misplaced) optimism
in the merits of his case was no doubt fortified when the Labour Court considered
that his appeal would have a reasonable prospect of success. In a case that has
been the subject of a rigorous disciplinary hearing, a protracted and thorough
arbitration hearing and a comprehensive review, recourse to an appeal to this
Court ought to be the exception, particularly where the appeal primarily concerns
factual findings made by an arbitrator . The Labour Court would do well to heed
the words of Davis AJA in Martin & E ast (P ty) Ltd v N ational Union of
Mineworkers & others
25 when the Labour Court was urged to exercise caution
when considering applications for leave to appeal so as to ensure a balance
between the demands of the statutory purpose of expeditious dispute resolution
and the rights of t he party seeking leave to appeal . It is only for th e reason that
and the rights of t he party seeking leave to appeal . It is only for th e reason that
the appellant was successful in his application for leave to appeal that he
escapes an adverse and punitive order for costs.
Order
25 (2014) 35 ILJ 2399 (LAC); [2013] ZALAC 35.
28
1. The appeal is dismissed.
____________________
André van Niekerk
Judge of the Labour Appeal Court
Djaje AJA and Chetty AJA concur.
APPEARANCES:
FOR THE APPELLANTS: Adv RC Mathevula
Instructed by Mohale Inc
FOR THE RESPONDENTS: Adv F Boda SC
Instructed by Pinsent Masons
(Heads of argument drafted by Adv R Itzkin)