THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR25021/21
In the matter between:
ROSE SIMANGELE MALATSI Applicant
and
NATIONAL PROSECUTION AUTHORITY First Respondent
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL (GPSSBC) Second Respondent
ADVOCATE ITUMALENG KGATLA Third Respondent
Heard: 20 July 2025
Delivered: 10 November 2025
Summary: The Court dismissed the applicant's review application to set
aside an arbitration award upholding a final written warning
issued by the National Prosecuting Authority for alleged
misconduct, ruling that the matter was not moot, the
Commissioner's findings on procedural fairness were reasonable,
substantive fairness was not at issue, and no costs order was
warranted.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
2
COOK, AJ
Introduction
[1] The Applicant seeks to review and set aside the arbitration award dated 27
September 2021 ( award) issued by the Third Respondent ( Commissioner)
under the auspices of the Second Respondent, the General Public Service
Sector Bargaining Council (GPSSBC), in terms of Section 158(1)(g) read with
Section 145 of the Labour Relations Act1.
[2] The Applicant seeks to substitute the order that the final written warning
issued against the A pplicant on 11 February 2020 by the First Respondent,
the National Prosecution Authority ( NPA), is procedurally and substantively
unfair and therefore constitutes an act of unfair labour practice short of
dismissal. The Applicant also seeks costs as the matter is opposed.
[3] The NPA seeks that the review application be dismissed with costs.
Background
[4] The Applicant is currently employed as the Regional Court Control Prosecutor
at Boksburg Magistrates' Court.
[5] On 8 April 2019, the NPA addressed a notice to the Applicant informing her
that the NPA intends to take disciplinary action for:
5.1 failure to comply with the NPA Policy and Procedure in terms of the
Prosecution Policy Directives, Part 4(d), relating to Section 204
witnesses as stated in paragraph 1;
5.2 failure to comply with clause 2.3.1 and 3.3 of the NPA media policy;
5.3 failure to comply with clause 7.7 of the NPA social media policy and
1 Act 66 of 1995, as amended.
3
bringing the name of the NPA into disrepute;
5.4 abuse of sick leave and temporary incapacity leave.2
[6] The Applicant provided her written submissions in response to the allegations
levelled against her on 17 April 2019.
[7] On 11 February 2020, the NPA issued a sanction of a final written warning
against the Applicant, valid for six months.
[8] In terms of the final written warning, it was recorded:
‘The final written warning will be placed in your personal file and will remain
valid for a period of six months from the date of the final written warning. After
six months, the final written warning will be removed from your personal file
and will be destroyed.’3
[9] On 17 February 2020, the Applicant filed an internal appeal with the NPA
challenging the sanction and the manner in which it was imposed against her.
The Applicant contended that ‘the NPA could not issue a sanction in an
instance where I was never charged with any misconduct and/or found guilty
of any misconduct’.
[10] On 8 July 2020, the appeal upheld the sanction.
[11] Consequently, the Applicant referred a dispute of unfair labour practice for her
dismissal to the GPSSBC (the dispute).
[12] On 27 September 2021, the Commissioner issued the award, finding that the
NPA had followed a fair procedure in deciding to impose a final written
warning.
Analysis
2 pages 30 and 31 of the indexed pleadings “RA2”
3 page 33 of the indexed pleadings
4
[13] The Court must determine whether the Commissioner’s award is reasonable.
[14] To determine this, the Court must determine if the award is one a reasonable
decision-maker could have reached, given the evidence and material
presented to him during the arbitration.
[15] To determine this, the Court must assess whether the award is one that a
reasonable decision-maker could have reached, considering the evidence and
material presented during the arbitration.
Mootness
[16] The NPA raised a point in limine that the matter is moot.
[17] The NPA argues that the final written warning, which was valid for six months,
lapsed in January 2021. Further , the NPA has removed and expunged the
final written warning from the Applicant’s records. Accordingly , it is argued
that the relief by the Applicant in her review application will not be practical as
the final written warning against the Applicant has been removed from the
Applicant’s disciplinary records and will not affect the Applicant in future
hearings.
[18] The Constitutional Court in National Coalition for Gay and Lesbian Equality
and Others v Minister of Home Affairs and Others
4 remarked:
‘A case is moot and therefore not justiciable if it no longer presents an
existing or live controversy which should exist if the Court is to avoid giving
advisory opinions on abstract propositions of law.’
[19] The Labour Appeal Court in N ational Employers’ Association of SA v M etal &
Engineering Industries Bargaining Council & Others5 embraced this principle,
stating:
4 2000 (2) SA 1 (CC) at para 21, fn 18.
5 (2015) 36 ILJ 2032 (LAC) at para 7.
5
‘In my view, the mootness of this appeal is clear. The interdictory relief sought
has been overtaken by events. The action which it was formulated to prevent
has occurred. The relief which was sought is now perfectly academic.’
[20] A final written warning constitutes a serious sanction short of demotion or
dismissal, implying a finding of guilt for serious misconduct.
[21] Although the warning has expired and been expunged, this does not establish
that its issuance was procedurally or substantively fair.
[22] This situation is analogous to the expungement of a criminal conviction, which
does not equate to an acquittal. The Applicant thus risks ongoing prejudice,
including stigma, as an employee who has previously been sanctioned with a
final written warning.
[23] A live controversy persists regarding the reasonableness of the
Commissioner’s award. If the award is found unreasonable, the Court may
grant substantive relief by declaring the issuance of the final written warning
an unfair labour practice. Such relief is not academic.
[24] The Court therefore finds that the matter is not moot and dismisses the point
in limine.
Substantive unfairness
[25] The Applicant submits that the Commissioner, if acting reasonably, ought to
have evaluated all evidence, determined her guilt on the accusations, and
assessed the fairness of the sanction. His failure to do so renders the award
unreasonable and subject to review.
[26] However, these submissions are unsupported by the arbitration record.
[27] During the arbitration, the Commissioner clarified the scope of his enquiry:
Commissioner: So the issue that I must determine here without going
6
into details, I do not decide what would have been
decided in the disciplinary hearing if it was held. The
issue before me is whether it was fair or unfair for the
employer to issue a notice requesting a response, and
the response was given when they issued a sanction
without a disciplinary process. So going into the merits
of what would have happened during the disciplinary
hearing, and response that would have happened
together with the supporting document is not going to
assist the process. As I understand the dispute before
me, it is based on the procedure, whether a correct
procedure was followed or not, and if it was not
followed, is it justifiable in the circumstances . If it is
justifiable then it is fine, if it is not justifiable then it
amounts to an unfair labour practice. But getting into
the merits of the allegations as the Applicant would be
more like this arbitration process now is assuming the
role of the disciplinary hearing that ought to have taken
place if it was orientated in the circumstances.
…
So any evidence that was taken into account or had
relating to the merits of what ought not to have been
ventilated in the disciplinary hearing is not going to be
considered. Therefore, there is no need to entertain it.
Yes, Sir? Before you ... [interjects].
Magoshi: No, commissioner, I think you have clarified that part
and I want to say what the dispute is all about, which
you clarified it is as to what are we dealing with here.
Commissioner: Okay no, that is fine. That is in essence that is the
merits of what ought to have transpired during the
disciplinary hearing if it was orientated or not is what
the dispute to be is before us. Then the rest of the
7
things will just be nosy if you want to entertain them
because they do not concern us.
…
Netangaheni: Yes, I do not have any further questions.
…
Magoshi: But as far as I remember, this matter is not concerned
with the merits of the possible allegations of the
[inaudible].
…
We are not even dealing with whether she is guilty or not guilty of any
charges.’ (Own emphasis)
[28] Accordingly, the Commissioner recorded in his award:
‘Briefly, I am required to determine whether or not the conduct of the
Respondent to issue the Applicant with a final written warning without a
formal disciplinary hearing was in line with a fair procedure, and if not,
whether or not such conduct amounts to Unfair Labour P ractice.’ (Own
emphasis)
[29] The NPA correctly submits:
‘It is important to note that the Third Respondent was not faced and required
to deal with the merits of the case in respect of misconduct that was
committed by the Applicant but to deal with whether the notice that was
served on her, the written submissions she made in response thereto and the
subsequent final written warning issued against her was procedurally fair .’
(Own emphasis)
And
8
‘It was clear to all parties that the Third Respondent was not required to deal
with the substantive fairness in the matter but the procedural aspect. ’ (Own
emphasis)
[30] In these circumstances, the Commissioner was not required to determine the
Applicant’s guilt, but only whether the NPA’s procedure in issuing the final
written warning was fair. The Commissioner did not err in declining to assess
guilt, as he was not called upon to do so.
[31] The Commissioner did not commit any reviewable misconduct, gross
irregularity, or exceed his powers. Thus, the award is not reviewable on
substantive fairness grounds.
Procedural fairness
[32] Resolution 1 of 2003 of the PSCBC, Amendments to Resolution 2 of 1999:
Disciplinary Code and Procedures For The Public Service:
‘…
2.1 Discipline is a corrective measure and not a punitive one.
2.2 Discipline must be applied in a prompt, fair, consistent and
progressive manner.
2.3 Discipline is a management function.
…
5. PROCEDURES DISCIPLINARY ACTIONS
…
5.4 Final written warnings. In cases where the seriousness of the
misconduct warrants a final written warning, the manager may
give the employer a final written warning ...
9
…
d. A final written warning remains valid for six months. At
the expiry of the six months, the final written warning
must be removed from the employee's personal file and
destroyed.
5.5 For less serious forms of misconduct no formal enquiry shall
be held.
…
6. SERIOUS MISCONDUCT
If the alleged misconduct justifies a more serious form of disciplinary
action than provided in paragraph 5, the employer may initiate a
disciplinary enquiry. The employer must appoint an employee as a
representative, who as far as possible should be the manager of the
employee, to initiate the enquiry.’
[33] The code establishes that discipline is a management function, corrective in
nature, and must be applied progressively. Where misconduct warrants a final
written warning, the manager may issue one without a formal enquiry. A
disciplinary enquiry is required only for misconduct justifying sanctions more
serious than a warning.
[34] Here, the NPA exercised its discretion and determined that the misconduct
warranted a final written warning, obviating the need for a formal enquiry.
[35] The Commissioner reasonably found:
‘It is apparent in my view from this provision that, the employer has a wide
discretion on the manner and form which a disciplinary process may take. I,
however, find that such discretion was exercised reasonably by the
Respondent.’
10
[36] The Com missioner relied on Avril Elizabeth Home for the Mentally
Handicapped v Commission for Conciliation, Mediation and Arbitration &
Others6, which sets out what is required for procedural fairness:
‘It follows that the conception of procedural fairness incorporated into the LRA
is one that requires an investigation into any alleged misconduct by the
employer, an opportunity by any employee against whom any allegation of
misconduct is made, to respond after a reasonable period with the assistance
of a representative, a decision by the employer, and notice of that decision.’
[37] In this case, the NPA investigated the alleged misconduct, afforded the
Applicant a reasonable opportunity to respond in writing, considered her
representations alongside the allegations, made a decision, notified her, and
allowed an appeal. The Applicant thus had a fair opportunity to defend herself.
[38] The Commissioner reasonably found:
‘[62] It is common cause that the final written warning imposed by the
Respondent against the Applicant has already expired and has been
expunged and removed from the Applicant’s disciplinary record;
consequently, the warning will not be considered in future disciplinary
actions against the Applicant by the Respondent.
[63] I find that the procedure followed by the respondent in arriving at a
decision to impose the sanction of a final written warning was in line
with well- established rules of the South African Labour Law and the
interpretation of such procedure is supported by case law decided
prior to and during the era of Constitutional democracy, and after the
enactment of the Labour Relations Act 66 of 1995.’
[39] The Commissioners’ award is not unreasonable in respect of the procedural
fairness finding.
Costs
6 (2006) 27 ILJ 1644 (LC) at 1651F – G.
11
[40] In labour matters, costs do not necessarily follow the result. An order of costs
is determined by considering whether it would be fair to award such costs in
accordance with law and fairness.
[41] Although the review application lacked merit, it cannot be said that the
Applicant was unreasonable in approaching this Court . In these
circumstances, fairness dictates that the Applicant should not be further
burdened with a costs order.
Conclusion
[42] T he review test is a stringent and conservative test of reasonableness. The
Court can only interfere with the award if the result is untenable. 7 The
Commissioner did not misconceive the nature of the enquiry, nor did he arrive
at an unreasonable result.8
[43] The Commissioner's award is not one a reasonable decision- maker could not
have reached under the circumstances.9
[44] In the premises, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
__________________
A.L. Cook
Acting Judge of the Labour Court of South Africa
7 Makuleni v Standard Bank of South Africa (Pty) Ltd & others (2023) 44 ILJ 1005 (LAC) at para 4.
8 Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795
(SCA).
9 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC).
12
13
Appearances:
For the Applicant: W P Scholtz, Scholtz Attorneys
For the Respondent: Advocate R Ramatselela
Instructed by: H Maponya, State Attorney