THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 1179/19
In the matter between:
ERGO MINING (PTY) LTD Applicant
and
UASA obo SIBONGISENI BLESSING NGCOBO First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
& ARBITRATION Second Respondent
DUMISANI JOHANNES NGWENYA N.O &
SUZAN SELZER N.O Third Respondent
Heard: 26 June 2025
Delivered: 27 October 2025
Summary: Review application. Commissioner used criminal test in assessing
evidence before her. Material error of law. Award reviewed and set
aside. Matter remitted for fresh determination before a new
commissioner.
JUDGMENT
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MOSIKILI, AJ
Introduction
[1] The applicant seeks to review and set aside an award issued by the third
respondent/s (commissioner /s)1. In the award, dated 23 April 2019, the
commissioner/s held that the dismissal of Mr. Sibongiseni Mazibuko was
unfair, and ordered the applicant to re-employ him from 2 May 2019.
[2] The material facts appear from the award, and do not warrant repet ition here.
For present purposes, it is sufficient to record that the employee commenced
his employment in January 2008 and was dismissed on 6 December 2018 for
misconduct. The employee was charged with three charges of misconduct:
Charge 1: assisting in the possible theft/sale of the company copper and
copper busbars. Charge 2: t heft of company copper and copper busbars.
Charge 3: gross abuse of a company vehicle for private use. While the
employee was found guilty on charge 3, he was exonerated on charges 1 and
2, hence the re-employment award.
[3] The award is premised on the conclusion that the applicant failed to provide
direct evidence to support the two charges relating to theft and/or assisting
and /or selling company copper and copper busbars as all evidence referred
to was circumstantial, as a result , the inferences sought to be drawn from the
facts are not consistent with all the proven facts and not every reasonable
inference was excluded.
[4] In this regard, the commissione r/s held that there is no direct evidence that ,
while the employee admitted to removing the items from the old gold plant
(milling section), there was no direct evidence that there were copper busbars
or copper cables in the black duffel bags he carried, as seen on the video
footage. Furthermore, there is no direct evidence that the employee entered
the building of the scrap yard at Voortrekker Road.
1 For consistency, herein referred as “she” and nothing turning on this.
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[5] The applicant has raised a number of grounds of review, which need no
repeating. In the main, t he applicant complains of the commissioner’s
assessment of the evidence. The applicant contends that the commissioner
failed to properly consider the evidence that served before her , and she came
to a conclusion to which no reasonable decision- maker could have come to.
In particular, the applicant contends that the commissioner failed to consider
the overwhelming fact/evidence that on 24 October 2018, the employee,
without just cause, entered the applicant ’s milling session where copper wa s
stored and left carrying duffel bags with a co- employee, and ultimately, after a
few stops later, dr ove to a scrap yard at Voortrek ker Road. Here, the
irresistible inference is that copper was stolen and sold at the scrap yard by
the employee, so the argument unfolds.
[6] Further, the applicant contends that the commissioner committed an error of
law and/or misconceived the nature of the inquiry when she applied the
criminal standard, as opposed to civil standards, to draw an inference from
the evidence led, and thus she erred in this respect. Herein, upon assessing
all the evidence presented before her, she assessed whether the inference
sought to be drawn wa s the only reasonable inference to be drawn; however,
she ought to have assessed what was the most probable or plausible
inference to be drawn. The commissioner/s , therefore, used the criminal test
as opposed to the civil test. It is argued that, had the commissioner used the
civil test, she would have found that the most probable or plausible inference
on the evidence presented was that the employee is guilty of charges 1 and 2
as well. This is premised on the fact that:
6.1 The employee had no cogent reason to be at the old gold mine plant
(milling section) on the day in question, 24 October 2018. This being the
place where the drums of copper cables and copper plates/busbars were
stored.
place where the drums of copper cables and copper plates/busbars were
stored.
6.2 The video footage showed the employee with a colleague, Lungile,
carrying duffel bags from the milling section, and Lungile’s bag looked
like it carried something significantly heavy as he was leaning to the left
and trying to balance his weight.
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6.3 Additionally, the said duffel bags were put in a vehicle used by the
employee - at the medical gate the employee was physically searched,
however, the vehicle was not searched; he then proceeded to exit the
employment premises .
6.4 Lastly, the same vehicle with duffel bags wa s tracked to have driven off
and later located parked at 421 Voortrekker Road, Brakpan, which was
within proximity of a scrap metal yard and a spares shop. Notably, it was
the same scrap yar d where the applicant’s specifically marked copper
cable had been retrieved and or found to have been stolen on a nother
previous occasion. When asked about this, the employee stated that he
had attended to a nearby spares shop where he went to purchase parts
for a motor vehicle he was re -building. However, no evidence of the
actual purchase at the spares shop on the day in question.
6.5 Furthermore, the company vehicle tracker clearly demonstrated that the
employee had been at or near Voortrekker Road 13 times in the last
three preceding months (August – November 2018) and had the same
explanation that he was purchasing car parts without providing proof for
his transactions.
[7] For its trouble, the applicant contends that the commissioner misconceived
the nature of the enquiry that she had to conduct in order to draw an inference
from the circumstantial evidence. Her misconception is that she held herself
bound to the criminal standard as opposed to the civil standard. This,
accordingly, constituted a material error of law in that she applied the incorrect
legal test and this, had a direct and material impact on the outcome of the
hearing.
Test for review
[8] The test to be applied on review is now axiomatic ; the threshold in a review
application is deliberately stringent for an applicant to surmount; this is
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consistent with the limited scope of judicial intervention. This is so because a
review is not an appeal in disguise. In Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
2, the apex court held that the outcome of
the proceedings under review, in the form of the arbitrator’s conclusion, must
fall within a range of decisions that a reasonable decision-maker could make.
[9] In Duncanmec (Pty) Ltd v Gaylard No and Others 3 the Constitutional Court
held that:
The correct test is whether the award itself meets the requirements of
the reasonableness. An award would meet this requirement if there a re
reasons supporting it. The reasonableness requirement protect s
parties from arbitrary decision s which are not justified by rational
reasons.
[10] In Zono v Minister of Justice and Correctional Services: In re: Minister of
Justice and Correctional Services v Zono and Others
4, it was held that:
“This court is empowered to intervene if and only if the decision to
which the arbitrator came is so unreasonable that no reasonable
decision-maker could come to that decision on available evidence. As
the Labour Appeal Court has often observed, given the threshold that
applies, it is not often that applicants will succeed in a review. In the
present instance, the primary attack on the award is one that goes to
the assessment of evidence. Where review is sought on these grounds,
the court must particularly be cautious not to blur the line between a
review and an appeal. Arbitrators are allowed to be wrong, and a
fragmented, piecemeal analysis of the award should be awarded.”
[11] In Securitas Specialised Services (Pty) Ltd v Commission for the
Conciliation Mediation and Arbitration and Others
5, the LAC buttressed
the test as follows:
2 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 28 ILJ 2405 (CC) , para
110
3 (2018) 39 ILJ 2633, para 42
4 Zono v Minister of Justice and Correctional Services: In re: Minister of Justice and Correctional
Services v Zono and Others [2020] 11BLLR (LC)
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The test for review is this: “is the decision reached by the arbitrator one that a
reasonable decision-maker could have reach? 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 Labour 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
be unreasonable if it is entirely disconnected with the evidence, unsupported
by any evidence and involves speculation by the arbitrator”.
Evaluation, analysis and law
[12] In a case like this, where the main grounds for the review concern the
commissioner’s evaluation of the evidence, the court must be especially
careful to distinguish between a review and an appeal. As demonstrated by
authorities cited above, the court may only intervene if, and only it is apparent
that the commissioner committed a reviewable irregularity and that the
outcome of the proceedings lies outside the range of decisions that a
reasonable decision-maker could have reached based on the evidence.
[13] I with the ground of review relating to material error of law and/or
misconceived nature of the enquiry. Herein, it will be recalled and noted that,
while no direct evidence was linked to the employee in the commission of
charges 1 and 2, accordingly, in dealing with the circumstantial evidence to
reach her outcome, the commissioner/s used the criminal test/standard.
[14] At paragraph 38 of the award, in dealing with the evidence before her, the
commissioner makes specific reference to a case of The State v Ndundula (
CC47/17)[2018] ZAECGHC 99, para 179 with reference to R v Blom 1939 AD
188 at 202 and 203 whereby the principle laid there wa s that inference sought
188 at 202 and 203 whereby the principle laid there wa s that inference sought
to be drawn must be consistent with the proven facts. If not, no inference
5 Securitas Specialised Services (Pty) Ltd v Commission for the Conciliation Mediation and Arbitration
and Others [2021] 5 BLLR 475 LAC
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could be drawn. The proven facts should be such that they exclude every
reasonable inference save the one sought to be drawn. If they do not exclude
reasonable inference, then there must be doubt whether the inference sought
to be drawn is indeed correct.
[15] Manifestly, employment law disputes are not criminal proceedings, but rather
akin to civil proceedings in nature. To underscore this, The Labour Appeal
Court in Combined Transport Services (Pty) ltd v Buhle Zamokwakhe
Miya and others 6, affirmed the applicability of the “balance of probabilities
test” in employment law disputes, when it held that a proper assessment of
evidence requires the attachment of more weight on the evidence that is
consistent and/ or more credible. Further , the test herein is “ balance of
probabilities”, dictating that a more probable version should be accepted, as
opposed to a “ beyond reasonable doubt ” test, which is the test applicable to
criminal cases.
[16] Dealing with the standard of proof, in Govan v Skidmore
7 the Court held that
it was trite law that in finding facts and making inferences in civil proceedings ,
the Court may go upon a mere preponderance of probabilities, even though in
doing so it does not exclude every reasonable doubt, so that one may, by
balancing probabilities, select a conclusion which seems to be a more natural,
or plausible conclusion from amongst several conceivable ones, even though
that conclusion may not be the only reasonable one.
[17] The Constitutional Court in National Union of Metalworkers of South Africa
obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty)
Limited and Others
8 stated that an inference may be drawn from the proven
or uncontested facts. Where there is more than one possible inference, the
most probable and natural one should be accepted.
6 (DA15/2014) [2016] ZALAC 57 (25 November 2016)
7 [1952] (1) SA 732
8 (CCT202/18) [2019] ZACC 25; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ 1957 (CC); [2019] 9 BLLR
8 (CCT202/18) [2019] ZACC 25; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ 1957 (CC); [2019] 9 BLLR
865 (CC) ; 2019 (5) SA 354 (CC) (28 June 2019
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[18] Having entered the incorrect GPS co- ordinates, the commissioner was bound
to end up at the wrong destination like Jonas in Tarshis. I say this because
part of the reason the commissioner came to a wrong conclusion on the
evaluation of the evidence was the postulation of the criminal law standard,
when she said, “in support of the case law below 9, the inference sought was
not consistent with the proven facts and not every reasonable inference was
excluded”.
[19] But in this case, various possibilities existed, including a possibility that:
19.1 When the employee’s vehicle tracker location revealed that on 24 October
2019 (a few minutes having left the milling section with duffel bags) the
vehicle was located and packed at Voortrekker Road - reasonable
inference was that, having left the employment, he went to the scrap yard
to sell the copper/ busbars.
19.2 The employee could have attended the spares shop, albeit he failed to
produce any evidence in support of this allegation.
19.3 The evidence that the applicant’s vehicle was not searched at the medical
gate left a strong probability that he could have left with said copper inside
the duffel bag undetected. And or a possible collusion as testified.
19.4 The uncontested fact is that the employee had no business attending the
milling session on 24 October 2018, where copper is kept; the inference is
that he was there to take the copper.
9 Case law referred to by the commissioner is The State v Ndulula supra
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[20] In addition, in executing her duties, the commissioner ought to have fully
addressed the considerations prescribed by the SCA in Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell ET Cie and Others,
namely:
“To come to a conclusion on the disputed issues a Court must make findings on (a)
the credibility of the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the Court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness. That in turn will depend
on a variety of subsidiary factors, not necessarily in order of importance, such as (i)
the witness’ candour and demeanour in the witness -box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, (v) the probability or improbability of particular
aspects of his version, (vi) the calibre and cogency of his performance compared to
that of other witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend, apart from the other factors mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or observe the event
in question and (ii) the quality, integrity and independence of his recall thereof. As to
(c), this necessitates an analysis and evaluation of the probability or improbability of
each party's version on each of the disputed issues. In the light of the assessment of
(a), (b) and (c) the Court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it.”
[21] A reading of the award makes it pertinently evident that the commissioner
failed to deal fully or at all with factors prescribed by the SCA outlined above.
More specifically, the commissioner failed to:
21.1 Properly analyse and evaluate the probabilities and improbabilities of
21.1 Properly analyse and evaluate the probabilities and improbabilities of
each parties’ witness. This is because she adopted the wrong test.
21.2 Properly asses, the credibility and reliability of the witnesses. For
example, the employee gave two different accounts on what was
contained inside the duffel bags on 24 October 2018. It remains unclear
what the commission made of this inconsistency in her analysis.
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[22] Notwithstanding the above principles, having found the employee guilty on
charge 3 for “ gross abuse of the company vehicle for private use” , the
commissioner failed to adequately evaluate the evidence before her with
specific reference to the employees’ credibility in relation to charges 1 and 2,
and the overall probabilities of his version when determining the explanation
to, inter alia, what was inside the duffel bag, his reasons for being at the
milling section; his presence at Voortreker Road (scrap yard / spare shop) on
24 October 2018 and on other previous occasions.
Conclusion
[23] As a result, I conclude that the commissioner committed a material error of
law by applying the criminal test in assessing the circumstantial evidence
before her. The criminal law test led her astray. This wrong test materially
affected the outcome of the matter.
[24] Informed by the wrong test, the commissioner failed to properly apply her
mind to the evidence and drew conclusions that wer e not sustainable with
reference to the evidence. This had the consequence that her award,
unstained as it wa s by the evidence, fails to meet the reasonableness
threshold.
[25] The applicant sought to have the award set aside and that I make a
substitution. I am disinclined to grant a substitution partly because during the
hearing of the matter, attempts were made to have a video footage which
seems relevant in proving that the applicant or his co-employee left the milling
session with a heavy duffel bags, however, despite concerted effort by both
parties, the video footage could not be played. In the circumstances . Instead,
I intend to refer the matter for a fresh hearing before a different commissioner.
[26] Finally, in so far as costs are concerned, the requirements of the law and
fairness are best satisfied by each party bearing its own costs, including costs
on condonation so granted..
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I make the following order:
Order
1. The award issued by the third respondent on 23 April 2019 under case
number GAEK2629-19 is reviewed and set aside.
2. The matter is remitted to the second respondent for a fresh hearing before
a commissioner other than the third respondents.
_______________________
T Mosikili
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv P Moll
Instructed by: Alan Jacobs & Associates Inc
For the First Respondent: Adv. VW Masinga
Instructed by: Mngqingo Attorneys Inc
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