IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 2690/21
In the matter between:
NYIKO B. BALOYI Applicant
and
MEC: DEPARTMENT OF EDUCATION
GAUTENG PROVINCE First Respondent
EDUCATION LABOUR RELATIONS COUNCIL Second Respondent
THEMBA MANGAYI N.O. Third Respondent
Heard: 28 August 2024
Delivered: 6 November 2025
JUDGMENT
KUMALO, AJ
Introduction
[1] In these proceedings, the applicant seeks an order to review and set aside an
arbitration award dated 20 July 2021, issued under case number ELRC641 -
20/21. The award was made by the third respondent (the Arbitrator), acting
under the auspices of the second respondent, the Education Labour Relations
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Council (ELRC). In the arbitration award, the Arbitrator found that the
applicant’s dismissal was both procedurally and substantively fair. Although
the first respondent filed a notice of intention to oppose the review application,
they failed to submit any further documents and did not attend the hearing.
[2] The applicant also seeks condonation for the late filing of the review
application. In considering this application, the Court evaluated several
factors, including the length of the delay, the reasons provided for the
lateness, the applicant’s prospects of success in the review, the significance
of the matter, and any potential prejudice to the parties. After weighing these
considerations, the Court found that the applicant had shown good cause for
the delay. Consequently, the interests of justice support the granting of
condonation, and the late filing of the review application is accordingly
condoned.
Background
[3] The applicant also seeks condonation for the late filing of the review
application. In considering this request, the Court evaluated several factors,
including the length of the delay, the reasons provided for the lateness, the
applicant’s prospects of success in the review, the significance of the matter,
and any potential prejudice to the parties. After weighing these considerations,
the Court found that the applicant had shown good cause for the delay.
Consequently, the interests of justice support the granting of condonation, and
the late filing of the review application is accordingly condoned.
[4] On 12 August 2019, the applicant submitted representations to the District
Director regarding the allegations against him. Subsequently, on 10 October
2019, he was formally notified of an inquiry into the alleged misconduct.
Following the disciplinary inquiry, the applicant was dismissed from his
employment on 14 December 2020. Dissatisfied with the outcome, the
applicant referred the matter to the ELRC for conciliation. When the
applicant referred the matter to the ELRC for conciliation. When the
conciliation process failed to resolve the dispute, the matter proceeded to
arbitration, resulting in the issuance of the arbitration award that is now being
challenged in these review proceedings.
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Arbitration award
[5] The Arbitrator recorded that the evidence presented by the first respondent
revealed a concerning incident involving the complainant and the applicant.
According to the testimony, the complainant was accompanied by two
colleagues when the applicant approached her and requested assistance with
proofreading letters. After completing the task in the applicant’s office, he
allegedly asked the complainant for a hug. The complainant obliged, but
during the hug, the applicant reportedly squeezed her tightly to the extent that
she could feel his erect body. He then attempted to kiss her forcefully. When
the complainant objected to his conduct, the applicant allegedly responded by
saying he could settle for a "baby kiss."
[6] The complainant’s mother, who worked as a general worker at the school,
witnessed the incident through the window of the applicant’s office. Her
testimony indicated that the complainant was facing the applicant, while the
applicant’s face was turned toward the window. From her vantage point, she
observed the applicant leaning in toward the complainant in an apparent
attempt to kiss her. Alarmed by what she saw, the mother rushed to the office
but encountered the complainant in the administration office instead. She then
urged her daughter to leave the premises. The mother also confirmed that two
other colleagues were present in the administration office at the time.
[7] Upon returning home, the complainant’s mother sent a text message to the
applicant, informing him that the complainant intended to open a case of
sexual harassment. However, the case was subsequently put on hold due to
allegations that the applicant had explicit photographs of the complainant.
Additionally, it was alleged that the applicant’s wife had offered to send uncles
to pay damages for the alleged misconduct. The mother and the applicant
had a close relationship, which included the applicant assis ting in securing a
volunteer position for the complainant at the school.
volunteer position for the complainant at the school.
[8] The Arbitrator further noted that, according to the applicant’s version, the
complainant served as his personal assistant, and they shared a strong
working relationship. He stated that they often worked late into the evenings,
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including weekends, and he would occasionally give her a lift home. The
applicant alleged that the complainant’s mother had influenced the allegations
against him, claiming that she had previously made sexual advances toward
him, which he had rejected.
[9] The Arbitrator observed that the applicant recalled the incident differently from
the complainant and her mother. According to the applicant, the complainant
entered his office around 14:30 to offer assistance. He then gave her two
letters to proofread. After completing the task, the complainant allegedly
remarked that she deserved a hug and placed her hands around his neck
while he was seated, with his hands resting on her waist. The applicant
denied attempting to kiss the complainant, arguing that the school was busy
that day due to the issuing of school reports. He further contended that the
apology he sent to the complainant’s mother via text message was solely in
reference to keeping the complainant at school beyond normal working hours.
[10] The Arbitrator held that, in line with the applicable prescripts, the first
respondent bore the burden of proving the allegations against the applicant.
In evaluating the nature of the alleged misconduct, the Arbitrator referred to
the Code of Good Practice on sexual harassment to define and contextualise
the conduct in question. Faced with two mutually destructive versions, one
from the complainant and the other from the applicant, the Arbitrator applied
the legal principles established in the case of Stellenbosch Farmers Winery
Group Limited and Another v Martell Cie and Others
1 to assess credibility
and probabilities. He considered the conflicting versions to the effect that the
complainant alleged that the applicant hugged firmly and forcefully kissed her ,
against the applicant’s version that the complainant offered the hug and had
her hands around his neck while he was seated.
[11] The Arbitrator ultimately found the complainant’s evidence to be more credible
[11] The Arbitrator ultimately found the complainant’s evidence to be more credible
and reliable than that of the applicant. This conclusion was based on several
factors, including corroboration by an eyewitness —the complainant’s
1 Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others [2002] ZASCA
98; 2003 (1) SA 11 (SCA) at para 5.
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mother—and an inspection in loco, which confirmed that the events inside the
office could be clearly observed through the window blinds. Additionally, the
complainant’s version was supported by a text message exchange between
her mother and the applicant following the incident. The Arbitrator rejected the
applicant’s explanation that the phrase “when you are stressed” referred to
the mother, finding this claim to be a fabrication. The mother’s message was
consistent with the account provided by both her and the complainant, and the
applicant had an opportunity to rebut this version but failed to do so
convincingly. This, in the Arbitrator’s view, reinforced the credibility of the
allegations against the applicant.
[12] The Arbitrator also found that the applicant failed to provide the complainant’s
mother an opportunity to respond to the serious allegation that she had made
sexual advances toward him. Additionally, the applicant did not disclose or
produce the alleged explicit photographs of the complainant, which were
central to the delay in pursuing the sexual harassment case. The Arbitrator
emphasized that, as a senior official, the applicant should have known that
accepting a hug from a female subordinate was inappropriate and that he had
a duty to discourage such conduct rather than reciprocate by placing his
hands on her waist. Even based on the applicant’s own version of events, the
Arbitrator concluded that the conduct was inappropriate and unacceptable.
[13] The Arbitrator further reasoned that if the allegations contained in the mother’s
text message were false, the applicant —as a senior school official —would
have found them highly inappropriate and taken disciplinary action against
her. His failure to do so lent credibility to the complainant’s version of events
as reflected in the message. While the applicant’s wife provided credible
testimony, particularly in denying that she had contacted the complainant’s
testimony, particularly in denying that she had contacted the complainant’s
family to arrange the payment of damages, her evidence did not assist in
resolving the conflicting accounts between the complainant and the applicant.
[14] In conclusion, the Arbitrator found the complainant’s version of events,
corroborated by her mother, to be credible, reliable, and the most probable
under the circumstances. He noted that section 17(1)( b) of the Employment
of Educators Act prescribes dismissal as the appropriate sanction for sexual
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harassment. As such, the Arbitrator held that the first respondent’s decision to
dismiss the applicant could not be interfered with, rendering the dismissal
substantively fair. Furthermore, there was no evidence of any procedural
irregularities in the dismissal process, and the Arbitrator therefore concluded
that the dismissal was also procedurally fair.
Discussion
[15] The law governing the review of arbitration awards is well -established. The
central question in such proceedings is whether the decision reached by the
arbitrator is one that a reasonable decision- maker could not have made. This
standard ensures that the review process does not simply substitute the
court’s view for that of the arbitrator, but rather assesses whether the
arbitrator’s conclusions fall within the bounds of reasonableness. .
2 This
principle involves determining whether the arbitrator properly considered the
central issue before them, evaluated the evidence presented during the
proceedings, and ultimately arrived at a reasonable conclusion. It is important
to note that a procedural irregularity on its own may not be sufficient to justify
interference with the arbitration award. The review process focuses on the
overall reasonableness of the arbitrator’s decision rather than isolated
procedural flaws..
3 In Head of the Department of Education v Mofokeng and
Others [2014] ZALAC 16, the Labour Appeal Court clarified the standard for
reviewing arbitration awards. The Court held that the test for review is not
whether the arbitrator’s decision is correct, but whether it is one that a
reasonable decision-maker could reach. This means that even if the arbitrator
made an error, the award will stand if the outcome is supported by the
evidence and falls within the bounds of reasonableness. The judgment
emphasized that a review does not involve a re- evaluation of the merits but
rather an assessment of whether the arbitrator properly applied their mind to
rather an assessment of whether the arbitrator properly applied their mind to
the issues, considered the relevant evidence, and concluded that a
2 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; [2007] 12 BLLR
1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) at para 110.
3 Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation
and Arbitration and Others [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at
paras 16 – 17.
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reasonable arbitrator could have reached. The presence of a procedural
irregularity alone is not sufficient to set aside the award unless it renders the
outcome unreasonable. The Labour Appeal Court held that:
“The determination of whether a decision is unreasonable in its result is an
exercise inherently dependent on variable considerations and
circumstantial factors... The court must nonetheless still consider
whether, apart from the flawed reasons of or any irregularity by the
arbitrator, the result could be reasonably reached in light of the issues
and the evidence. Moreover, judges of the Labour Court should keep
in mind that it is not only the reasonableness of the outcome which is
subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not
misconceive the inquiry or undertake the inquiry in a misconceived
manner. There must be a fair trial of the issues.
However, sight may not be lost of the intention of the legislature to restrict the
scope of review when it enacted section 145 of the LRA, confining
review to “defects” as defined in section 145(2) being misconduct,
gross irregularity, exceeding powers and improperly obtaining the
award.... Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in the reasoning
of the arbitrator, evidenced in the failure to apply the mind, reliance on
irrelevant consi derations or the ignoring of material factors etc. must
be assessed with the purpose of establishing whether the arbitrator
has undertaken the wrong enquiry, undertaken the enquiry in the
wrong manner or arrived at an unreasonable result…
Irregularities or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality of the error or irregularity and
its relation to the result. Whether the irregularity or error is material
its relation to the result. Whether the irregularity or error is material
must be assessed and determined with reference to the distorting
effect it may or may not have had upon the arbitrator’s conception of
the inquiry, the delimitation of the issues to be determined and the
ultimate outcome. If, but for an error or irregularity, a different outcome
would have resulted, it will ex hypothesi be material to the
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determination of the dispute. A material error of this order would point
to at least a prima facie unreasonable result . The reviewing judge
must then have regard to the general nature of the decision in issue;
the range of relevant factors informing the decision; the nature of the
competing interests impacted upon by the decision; and then ask
whether a reasonable equilibrium has been struck in accordance with
the objects of the LRA . Provided the right question was asked and
answered by the arbitrator, a wrong answer will not necessarily be
unreasonable. By the same token, an irregularity or error material to
the determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues, with the
result that the award may be set aside on that ground alone. The
arbitrator, however, must be shown to have diverted from the correct
path in the conduct of the arbitration and, as a result, failed to address
the question raised for determination.”[Own emphasis]
[16] The above ratio reinforces that the principles governing review proceedings
serve a specific statutory purpose: to limit reviews to cases where the right to
a fair trial has been compromised or where the outcome is unreasonable. This
underscores the critical distinction between an appeal and a review as
envisaged in the Labour Relations Act (LRA). While an appeal challenges the
correctness of a decision, a review focuses on the reasonableness of the
decision-making process itself .
4 The distinct must not be blurred. In review
proceedings, it is immaterial whether the reviewing court disagrees with the
arbitrator’s reasoning. What must be established is whether there are rational
and evidentiary grounds supporting the outcome. The test allows for the
possibility that the arbitrator may reach an incorrect conclusion, provided it is
nonetheless supported by the overall evidence. If the outcome is reasonable
nonetheless supported by the overall evidence. If the outcome is reasonable
despite any procedural irregularity, the award must stand.
5 In Makuleni v
Standard Bank of South Africa Ltd and Others, 6 the Labour Appeal Court
(LAC) emphasized the critical distinction between an appeal and a review.
4 Act 66 of 1995, as amended.
5 Duncanmec (Pty) Limited v Gaylard NO and Others [2018] ZACC 29; 2018 (11) BCLR 1335 (CC);
[2018] 12 BLLR 1137 (CC); 2018 (6) SA 335 (CC); (2018) 39 ILJ 2633 (CC) at paras 41 – 43.
6 Makuleni v Standard Bank of South Africa Ltd and Others [2023] ZALAC 4; (2023) 44 ILJ 1005
(LAC); [2023] 4 BLLR 283 (LAC) at para 4.
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The Court reaffirmed that the test in review proceedings is not whether the
decision was correct, but whether it was one that no reasonable decision-
maker could have reached. This principle ensures that reviews are not used
to reargue the merits of a case, but rather to assess the fairness and
reasonableness of the decision- making process. The Labour Appeal Court
criticised the Labour Court for treating the matter as if it were an appeal,
thereby overlooking the Commissioner’s reasonable findings. It highlighted
that arbitration proceedings are intended to be simple and expeditious, and
that procedural fairness must be upheld. The Court also noted the
importance of considering the employee’s personal circumstances and long-
standing service record. This case serves as a reminder that review
proceedings are not a mechanism for substituting the court’s view for that of
the arbitrator or commissioner, but rather for ensuring that decisions are made
within the bounds of reasonableness and procedural fairness . The Labour
Appeal Court held that:
“…demands reflection in order to digest the essence of the exercise that a
commissioner embarks upon. The court asked to review a decision of
commissioner must not yield to the seductive power of a lucid argument that
the result could be different. The luxury of indulging in that temptation is
reserved for the court of appeal. At the heart of the exercise is a fair reading
of the award, in the context of the body of evidence adduced and an even-
handed assessment of whether such conclusions are untenable. Only if the
conclusion is untenable is a review and setting aside warranted.”
[17] In this matter, the applicant challenged the Arbitrator’s handling of several
procedural and evidentiary aspects. Specifically, the applicant impugned the
Arbitrator’s failure to properly consider contradictions in the testimonies of the
complainant and her mother. He also took issue with how their statements
complainant and her mother. He also took issue with how their statements
were admitted and evaluated during the proceedings. Furthermore, the
applicant criticised the Arbitrator’s refusal to postpone the hearing to allow him
time to obtain WhatsApp messages that he claim ed would support his version
of events.
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[18] The applicant also challenged the Arbitrator’s handling of the inspection in
loco, arguing that it was conducted after the mother had testified, thereby
denying him the opportunity to cross -examine her based on the inspection
findings. He further contended that only the Arbitrator’s own observations
were taken into account, without affording him a fair opportunity to respond to
or challenge those observations. Additionally, the applicant criticised the
Arbitrator’s failure to make credibility findings against the mother, particularly
in light of her contradictory conduct, having bid the applicant farewell and later
sending a text message accusing him of misconduct.
[19] From the outset, it must be acknowledged that while there may be merit in the
applicant’s contention regarding the irregular manner in which the Arbitrator
dealt with the inspection in loco, this irregularity does not render the overall
outcome unreasonable. On a holistic assessment of the issues and evidence
presented in the dispute, the decision remains within the bounds of
reasonableness. This is particularly so given the uncontroverted evidence
that the complainant’s mother confronted the applicant following the incident,
and as the Arbitrator correctly observed, the applicant failed to rebuke her or
initiate any disciplinary proceedings in response to the serious and
demeaning allegations. It is a reasonable inference that, had the applicant’s
version been accurate, that the complainant initiated the hug, he would have
clearly conveyed that explanation in his text message to the mother.
[20] This aspect is significant given that it was common cause that the applicant,
the complainant, and her mother shared a friendly relationship. In light of this,
one would reasonably expect the applicant , when confronted with serious
allegations, to attempt to clarify any misunderstanding. Instead, the applicant
did not deny or protest the accusation but chose to apologise. This response,
did not deny or protest the accusation but chose to apologise. This response,
rather than a denial, strengthens the inference that the applicant had imposed
himself on the complainant. The applicant’s claim that the apology was solely
for keeping the complainant at work beyond normal hours lacks evidentiary
support and is unconvincing.
[21] Equally, even if the mother’s evidence were to be discounted due to concerns
about credibility and reliability, the applicant’s own version must still be
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assessed in light of his failure to immediately and unequivocally reject the
allegations. Notably, the applicant criticised the Arbitrator for not permitting the
discovery of explicit photographs —images that were also referenced in the
mother’s testimony. This overlap lends further credibility to the assertion that
the applicant was confronted with serious allegations and, rather than denying
them, effectively accepted them through his conduct and lack of protest. Put
differently, the photographs the applic ant sought to discover were the same
ones mentioned in the infamous WhatsApp text, which he failed to rebut and
instead responded to with an apology.
[22] Even without the mother’s testimony, the remaining evidence clearly
establishes the applicant’s culpability. It is undisputed, even on the applicant’s
own version, that he had a cordial relationship with both the complainant and
her mother. The applicant was instrumental in securing the complainant’s
employment at the school and maintained a close relationship with the
mother. Under cross -examination, both the complainant and the mother
confirmed that they had a good relationship with the applicant, a fact the
applicant also acknowledged. Therefore, aside from the retrospective
allegations of sexual impropriety involving the mother, there appears to be no
credible reason why the complainant and her mother would conspire to entrap
the applicant or jeopardise his employment, especially in light of his admitted
acts of goodwill toward them.
[23] The applicant’s claim that he was offered a hug while seated is implausible.
As the Arbitrator noted, the applicant held a senior position and would not
reasonably have permitted or tolerated such conduct from a subordinate.
According to departmental guidelines, the applicant’s responsibilities as a
school principal include actively deterring sexual harassment in the
workplace. This duty implies that, if the allegation were truly unfounded, the
workplace. This duty implies that, if the allegation were truly unfounded, the
applicant would have responded with a firm denial. Instead, he appeared to
downplay the incident, attributing it to stress, which undermines the credibility
of his defence.
[24] Notably, the applicant failed to respond to the allegations from the moment he
was confronted via text message until he received formal notice from the
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Department. As the Arbitrator rightly observed, a reasonable principal would
have initiated disciplinary or other formal processes against the mother if the
content of the text message were untrue. However, the applicant took no
such action until prompted by the Department. This conduct falls short of the
standard expected of someone in his position. The inescapable conclusion is
that the applicant’s version is fabricated. More concerning is that he only
reacted once the allegation was formally raised. Taken together, these factors
strongly suggest that the applicant’s account lacks credibility and reliability.
As the Arbitrator concluded, the applicant’s version is improbable.
[25] Accordingly, applying the principles established in Sidumo , the Court finds no
basis to overturn the Arbitrator’s findings, as they are supported by the
evidence. The Arbitrator was presented with mutually contradictory versions,
applied the appropriate evidentiary rules, and concluded that the
complainant’s account was credible, reliable, and most probable in light of the
circumstances. The award is clearly grounded in a comprehensive
assessment of the evidence and is not vulnerable to being set aside.
Consequently, the application must be dismissed.
[26] Finally, these proceedings exemplify a situation in which the Court must
censure the applicant for pursuing a meritless case. This is particularly so
given that the arbitration award is final and binding on the parties. While the
applicant retains the right to access the courts, this right must be balanced
against the objectives of the LRA, which include the swift resolution of
disputes to ensure certainty in the employer’s operational requirements. .
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This means that, even if the unreasonableness of the award is not
immediately apparent, parties must respect the finality of the arbitration
process as envisaged in the LRA. They should not burden the already
congested court roll with appeals disguised as review applications.
congested court roll with appeals disguised as review applications.
[27] Ordinarily, the Court would have imposed a costs order against the applicant
to reflect its disapproval of the meritless application. However, despite filing a
7 Toyota SA Motors (Pty) Ltd v CCMA and Others [2015] ZACC 40; (2016) 37 ILJ 313 (CC); [2016] 3
BLLR 217 (CC); 2016 (3) BCLR 374 (CC) at para 1.
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notice of intention to oppose, the first respondent did not proceed to oppose
the application. In the absence of active opposition, there is no basis for a
costs order. Accordingly, no order as to costs will be made.
[28] In the premises, the following order is made.
Order:
1. The late filing of the review application is condoned.
2. The application to review and set aside the arbitration award dated
16 September 2021 under case number ELRC641- 20/21 issued by the
third respondent acting under the auspices of the second respondent is
dismissed.
3. There is no order as to costs.
___________________
M. Kumalo
Acting Judge of the Labour Court of South Africa
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APPEARANCES:
For the applicant: S. Mbhalati, instructed by Mahlaule Attorneys
Incorporated.
For the first respondent: No Appearance.