THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case No: DA16/2024
In the matter between:
JABULANI BASIL BASI Appellant
and
DEPARTMENT OF CORRECTIONAL SERVICES First Respondent
BHEKI MTHETHWA N.O Second Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL Third Respondent
Z D ZULU AND OTHERS Fourth to Eleventh Respondents
Heard: 11 September 2025
Delivered: 04 November 2025
Coram: Mahalelo ADJP, Nkutha-Nkontwana JA et Basson AJA
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NKUTHA-NKONTWANA, JA
2
Introduction
[1] This appeal turns on a crisp issue of whether Ms Basi qualified for an
appointment to the ungraded post of Chairperson of the Correctional
Management Committee (CMC) , a unit with in the first respondent’s (DCS)
operational structure. He was appointed as a Senior Correctional Officer
(SCO) in 2015. At about the same time, he was also appointed as the
Chairperson of CMC, a pos t he held until it was upgraded and advertised. He
duly applied for the upgraded post but was not shortlisted, a decision he
challenged at the third respondent ( GPSSBC) as an unfair labour practice in
terms of section 186(2)(a) of the Labour Relations Act
1 (LRA).
[2] The appellants’ case at the GPSSBC was bifurcated into two separate claims.
First, he contended that he should have been absorbed or appointed to the
ungraded post of Chairperson of the CMC (impugned post) in accordance
with the provisions of Regulation 45 of the Public Service Regulations of
2016.
2 Second, and alternatively, he contended that he should have been
shortlisted and appointed to the advertised upgraded post.
Factual background
[3] Mr Basi commenced his employment with the DCS as a correctional officer in
the CMC unit and has been in that unit for about 20 years. The CMC is
responsible for the admission of offenders, addressing their day -to-day needs,
and managing overcrowding in the prison. The structure of the CMC is not in
dispute and has always consisted of a chairperson, a clerk, and a secretary. Mr
Basi initially worked as a clerk and later became a secretary.
[4] Mr Basi testified that in December 2014, he successfully applied for the post of
Chairperson of the CMC , which was at the salary level CB4. On 1 February
2015, he received an appointment letter from the Head of the Correctional
Centre. His job description clearly stated his position as t he Chairperson of the
CMC. Furthermore, his job performance was evaluated based on the job
CMC. Furthermore, his job performance was evaluated based on the job
description of a Chairperson of the CMC . It is common cause that Mr Basi
1 Act 66 of 1995, as amended.
2 GNR.877 of 29 July 2016: Public Service Regulations, 20161 (Government Gazette No. 40167)
as amended by Notice Government Gazette Date 11 April 2019.
3
received a satisfactory review in all his performance evaluations, including the
one that was conducted during the financial year 2018/2019.
[5] Mr Basi further testified that in January 2019, he learned with surprise that the
DCS advertised several upgraded posts of Chairperson of the CMC. He applied
for the impugned post out of caution. At the time, he did not have a copy of his
Diploma in Business Management because he had returned it to the institution
that issued it to correct an error in his identity number. He , nonetheless,
attached all other certificates that demonstrated that he had met the
requirements for a diploma. Still, he was not shortlisted. He challenged the
decision not to shortlist and/or appoint him , contending that he ought to have
been appointed without the post being advertised in accordance with
Regulation 45,
3 as he was an incumbent in the impugned post.
[6] The DCS opposed Mr Basi’s claim, and the nub of its defence was that the
impugned post did not exist on its organogram before 19 November 2018. It
contended that Mr Basi had always been appointed to a post of a Senior
Correctional Officer at the salary level CB4. The impugned post was created
and graded at salary level CB5 consequent to the national circular that
communicated the National Commissioner’s decision to approve funding for ,
inter alia, filling vacant pos ts. Therefore, the DCS was adamant that no post
was upgraded to trigger Regulation 45. Alternatively, the DCS contended that
Mr Ba si did not possess the requisite qualification, and if he did, it was
fraudulently acquired. Hence, he was not shortlisted.
3 Regulation 45 provides:
‘Undegraded posts.
(1) If the job weight demonstrates that a post is undegraded and the department's budget and the
medium-term expenditure framework -
(a) provides for sufficient funds, an executive authority shall increase the grade of the
post to a higher salary level; or
post to a higher salary level; or
(b) does not provide for sufficient funds, an executive authority shall redesign the job to
equate with the grade of the post prior to regrading.
(2) If an executive authority increases the grade of a filled post as provided under subregulation
(1) (a), he/or she shall continue to employ the incumbent employee in the higher -grade post
without advertising the post if the incumbent –
(a) already performs the duties of the post;
(b) has received a satisfactory rating in his or her most recent annual moderated and
approved performance assessment in the post , and where the incumbent has not
yet been assessed, his or her performance shall first be assessed to determine
whether the performance is satisfactory;
(c) meets the inherent requirements of the post; and
(d) has been in the post for at least twelve calendar months.’ (Own emphasis)
4
Arbitrator’s findings
[7] The arbitrator found in favour of Mr Basi for the following reasons:
‘(a) the Public Service Regulations of 2016, Regulation 45 sub-regulation
2 obliges the executive authority to absorb an employee to a post that
had been graded higher should she/he meets the minimum
requirements of the occupied post; (b) in this matter ; the Applicant met
all the requirements of the Chairperson of the CMC post when it was
advertised on 2 January 2019; (c) he had obtained a relevant three
year diploma in 2018; (d) prior to the upgrading of the Chairperson of
the CMC position the Applicant had been performing all the duties of
this post since 1 February 2015; (e) he had been in the post for more
than twelve calendar months when the post was created and funded;
and/or upgraded to salary level CB5. The Applicant had received [a]
satisfactory rating for his performance assessment for the financial
year 2018/2019 after it had been moderated and approved as the
Chairperson of the CMC. The First Respondent did not dispute that
the job description of the Applicant had not changed since he was first
appointed as the Chairperson of the CMC on 1 February 2015.’
[8] Consequently, the matter was disposed of based on Regulation 45, and the
arbitrator deemed it superfluous to deal with Mr Basi’s alternative claim. The
DCS was ordered to absorb or appoint Mr Basi to the impugned post at salary
level CB5 retrospectively to 2 January 2019.
At the Court a quo
[9] The DCS was disgruntled and sought to review the award on various grounds,
which in essence impugned the reasonableness of the outcome reached by
the arbitrator. Mr Basi opposed the review application in defence of the award.
[10] The Court a quo endorsed the arbitrator’s findings that Mr Basi had been an
incumbent in the impugned pos t since 2015 and that, based on the objective
or undisputed facts, his job performance was rated as satisfactory for the
financial year 2018/2019.
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[11] Yet, contrary to the arbitrator, the Court a quo found that Mr Basi did not have
the requi site RQV13 qualification in Correctional Services Management to
trigger Regulation 45. The award was consequently found to be vitiated by
unreasonableness, set aside, and substituted with an order dismissing Mr
Basi’s claim.
In this Court
[12] Discontented with the outcome, Mr Basi took the matter on appeal. The
appeal is solely against the Court a quo's finding that Mr Basi did not possess
a requisite qualification to trigger Regulation 45 successfully.
[13] Mr Basi submits that the Court a quo erred in its finding that he did not have
the requisite qualification, as it was common cause that he holds a Diploma in
Business Management ; a copy thereof was submitted during the arbitration
proceedings. Furthermore, although the advertisement did not explicitly state
that equivalent qualifications would be considered, the shortlisting notes
clearly indicate that the shortlisting committee did consider and shortlist the
candidates with equivalent qualifications.
[14] Mr Randal Kumar Somaru (Mr Somaru), the only witness for the DCS,
conceded under cross -examination that, had Mr Basi shown that he had a
three-year diploma, he would have met the requirements for the impugned
post. Mr Ba si’s counsel referred us to the transcript to underscore his
submission that it was not the DCS’s case that Mr Ba si did not possess a
relevant or equivalent qualification. Instead, the DCS’s case turned on the
denial that the impugned post existed before 19 November 2018.
[15] The DCS defends the impugned findings of the Court a quo. While it
concedes that , de facto, Mr Basi may have performed some duties as
Chairperson CMC since 2015, it persisted with the submission that the post
did not formally exist before 19 November 2018. The newly created post was
upgraded, requiring an RVQ13 qualification in Correctional Services
Management, which Mr Basi did not possess. Furthermore, it contends that a
Management, which Mr Basi did not possess. Furthermore, it contends that a
Diploma in Business Management is not an equivalent qualification in the
context of the Correctional Services environment, considering the seniority of
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the impugned post, the related qualification, and the importance of completing
a learnership. It was submitted that the Court a quo was correct in its finding
that there was no reasonable basis for the arbitrator to conclude that Mr Basi
met the inherent requirements of the impugned post as set out in Regulation
45(2)(c).
Discussion
[16] The enquiry into whether Mr Basi met the inherent requirements of the
impugned post per Regulation 45(2)(c) must commence with the definition of
‘inherent requirements of the job’ . The Public Service Regulations define
‘inherent requirements of the job’ as the competency, experience,
qualifications and any other requirement that an employee needs to perform a
job.
[17] The DCS’s case during the arbitration proceedings was articulated by its
representative (Mr Shope) in his opening statement. Mr Shope submitted that
DCS would show that Mr Basi misrepresented his CV, as he had not acquired
a Diploma in Business Management, or that it was obtained fraudulently . That
was so, he further submitted, because to be awarded a Diploma in Business
Management, a student had to complete a two- year in-service training in a
business environment.
[18] The cross-examination of Mr Basi was accordingly focused on the legitimacy
of his qualification. Mr Basi was adamant that he had legitimately obtained his
qualification and that he had completed his in-service training after hours
when he was off duty. The DCS failed to adduce any evidence in rebuttal of
Mr Ba si’s evidence, despite having had the opportunity to request
authentication of the qualification from the awarding institution.
[19] In any event, Mr Somaru conceded during his cross -examination that Mr
Basi’s qualification was a determining factor in his elimination during the
selection process. The essence of his testimony was that, had Mr Basi
submitted a copy of his Diploma in Business Management when shortlisting
was conducted, he could have met the inherent requirements of the impugned
was conducted, he could have met the inherent requirements of the impugned
post. The contention by the DCS that the Diploma in Business Management is
7
not an equivalent qualification in the context of the Correctional Services
environment is therefore untenable.
[20] What is true, though, is that the impugned post existed de facto since 2015,
and that Mr Basi was the incumbent until it was advertised at a higher salary
level as found by the arbitrator. Mr Basi’s job description remained the same
even after the appointment of a new Chairperson for the CMC in 2019.
Interestingly, Mr Basi was appointed as a Deputy Chairperson for the CMC, a
position that was neither advertised nor shown to exist or listed on the DCS
organogram. Quizzed on these issues, Mr Somaru gave a nebulous
explanation. Also, the DCS’s threat in its papers before the Court a quo to
seek leave to file its organogram, which shows the posts as they existed
before and after 2019, was of no avail.
[21] Counsel for Mr Basi implored us not to be charmed by the DCS’s ardent
submissions, as they are not supported by the evidence that was before the
arbitrator. Had the DCS challenged the relevance and suitability of Mr Basi’s
qualification, he could have mounted a different defence. Counsel for the
DCS, on the other hand, was constrained to concede that it was never the
DCS’s case that Mr Ba si’s qualification, a Diploma in Business Management ,
is not equivalent in the context of the correctional services environment or did
not meet the inherent requirements of the impugned post per Regulations
45(2)(c). This line of defence is obviously extraneous to the record of the
arbitration proceedings and only emerged in the DCS review papers and
submissions before the Court a quo.
[22] In Makuleni v Standard Bank of SA (Pty) Ltd & others,4 this Court reasserted
the high threshold for review. It reminded the review court to show fidelity to
the legislative intent and to avoid straddling the line between review and
appeal.5 It also underscored the trite tenet that the review exercise requires
that the award be read and evaluated holistically within the context of the
that the award be read and evaluated holistically within the context of the
4 [2023] 44 ILJ 1005 (LAC); [2023] 4 BLLR 283 (LAC) at paras 3 and 4.
5 Ibid.
8
evidence adduced before the arbitrator to determine whether it falls within the
band of reasonable awards.6
[23] Therefore, the record of the arbitration proceedings is central to determining
whether the award is reviewable. Arguments that emerge for the first time
during the review application will be countenanced only in instances where
they were fully canvassed in evidence during the arbitration proceedings .7
Here, the converse is true. Mr Ba si is correct in his submission that what
constitutes an inherent requirement of the impugned post was not fully
canvassed in evidence before the arbitrator. The DCS impermissibly raised
this issue for the first time before the C ourt a quo, even though it is not a
purely legal issue.8 Judgment by ambush is impermissible.9
[24] It follows that, given the evidence on the record of the arbitration proceedings,
considered in its totality, the arbitrator cannot be faulted in his finding that Mr
Basi met all the requirements to be appointed to the impugned post in
accordance with Regulation 45(2) . Mr Ba si holds a National Diploma in
Business Management, an equivalent qualification, and accordingly me t the
inherent requirements of the impugned post per Regulation 45(2)(c).
[25] The DCS nailed its colours squarely to the mast of an allegation that Mr Basi’s
qualification was fraudulently obtained. Upon the demise of that defence, it did
not avail the DCS to construct a new defence in its a rguments before the
Court a quo that was obviously extraneous to the record of the arbitration
proceedings.
Conclusion
[26] All things considered, the outcome reached by the arbitrator falls within the
band of reasonable outcomes , and the Court a quo erred in upsetting the
6 Ibid, see also Gold Fields Mining S outh Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others [2014] 1 BLLR 20 (LAC) ; (2014) 35 ILJ at paras
18 - 21; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36 ILJ
1453 (LAC) at para 12.
7 See: Coin Security (Pty) Ltd v CCMA & others [2005] 7 BLLR 672 (LC) ; (2005) 26 ILJ 849 (LC) at
para 37.
8 Ibid.
9 See: National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) ; [2009] 2 All SA 243
(SCA) at para 47, though in a context of motion proceedings.
9
award. The appeal is to be upheld, and the order of the Court a quo is to be
set aside and replaced with an order dismissing the review application.
Costs
[27] Turning to costs, the DCS did not act frivolously in defending the judgment of
the Court a quo and cannot, therefore, be saddled with costs. To do so would
not accord with the requirements of law and fairness.10
[28] The following order is made:
Order
1. The appeal is upheld.
2. The order of the C ourt a quo is set aside and replaced with an order
that the review application is dismissed.
3. There is no order as to costs.
_______________________
Nkutha-Nkontwana JA
Mahalelo ADJP et Basson AJA concur.
APPEARANCES:
FOR THE APPELLANT: R B Donachie, Henwood Britter & Caney
FOR THE RESPONDENT: Adv N G Winfred
Instructed by State Attorney Kwazulu-Natal
10 Section 179(1) of the LRA provides: “The Labour Appeal Court may make an order for the payment
of costs, according to the requirements of the law and fairness”.