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[2025] ZALCJHB 539
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Eskom Holdings Soc Limited v National Union of Mineworkers obo Ngwenya and Others (JR1958/22) [2025] ZALCJHB 539 (13 November 2025)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No:
JR1958/2022
In
the matter between:
ESKOM HOLDINGS SOC
LIMITED
Applicant
and
NATIONAL UNION OF
MINEWORKERS
OBO
NONTOBEKO NGWENYA
First Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
& ARBITRATION
Second Respondent
THABE
LAZARUS NKADIMENG N.O.
Third Respondent
Heard
:
2 September 2025
Delivered
:
13 November 2025
Summary:
Condonation
– cynical explanation of delay – admission of late papers
– costs.
Material
error of law – unreasonable decision based on inconsistency –
misunderstanding parity principle.
Procurement
misconduct at state-owned entity – lack of oversight amounts to
misconduct depending on extent of non-compliance
– pattern of
behaviour – dismissal fair.
JUDGMENT
RAMJI, AJ
Introduction
[1]
The first respondent (the employee) joined the applicant (Eskom) in
2004 as a procurement officer at the now closed Komati
Power Station
(Komati). Prior to her dismissal, the employee would serve as Acting
Procurement Manager from time to time.
[2]
On 15 January 2021, Eskom dismissed the employee for misconduct
relating to the procurement of jacking oil pumps and separate
procurements of DTS relays.
[3]
For the oil pumps procurement, the employee was Acting Procurement
Manager at the time. She was found guilty of gross
negligence for
approving ‘
an inflated and exorbitant quotation for
[a]
stock item that had
[a]
history.’
Her misconduct
was therefore an alleged failure in managerial and oversight duties
in what was a grossly flawed procurement process,
explained below.
[4]
For the DTS relays procurement, the employee was serving in her
ordinary capacity as a procurement officer. She was found
guilty of
misconduct for a failure to keep procurement records in relation to
items for which she issued excessively priced purchase
orders on four
occasions. Her misconduct was therefore a failure to comply with
administrative procedures as a functionary in the
procurement
department at Komati.
[5]
The employee referred an unfair dismissal dispute to the third
respondent (the CCMA). The second respondent (the Commissioner)
made
an award in favour of the employee on 26 July 2022, finding that her
dismissal was procedurally fair but substantively unfair.
The
Commissioner awarded reinstatement with backpay.
[6]
This is an application by Eskom to review and set aside the award.
Eskom alleges that the Commissioner committed several
gross
irregularities, including disregarding relevant evidence and failing
to apply his mind to the case, particularly when weighing
up evidence
of the opposing parties. As a result, Eskom argues, the Commissioner
made an unreasonable award.
[7]
There is no cross-review by the employee on procedural fairness.
[8]
I deal with matters in the following order:
8.1.
The application for condonation for the late filing of the employee’s
answering affidavit.
8.2.
A short background to the procurements.
8.3.
The Commissioner’s award.
8.4.
The reasonableness of the award.
8.5.
Relief.
8.6.
Costs.
Condonation
for the late filing of answering affidavit
[9]
The first respondent is the National Union of Mineworkers (NUM), who
acts on behalf of the employee, its member. It has
not acted
diligently in this matter.
[10]
Eskom filed its rule 7A(8) notice on 23 April 2023, after filing the
record. It did not hear from NUM and proceeded to
file heads of
argument on 13 March 2024. Eskom then set the matter down on the
unopposed roll.
[11]
At the hearing on 19 March 2024 (which did not proceed), NUM took
advantage of the opportunity afforded by the presiding
judge having
to recuse herself from the matter, and on 26 March 2024 filed an
answering affidavit.
[12]
NUM filed an application for condonation for its late answering
affidavit only after Eskom objected to this late filing.
[13]
NUM’s delay is excessive, its explanation poor, and its
argument on prejudice cynical:
13.1.
The delay is ten months.
13.2.
The explanation for the delay is that the present attorneys received
a large file handover from NUM,
their new client, and only received
instructions to oppose this application on 4 September 2023. The firm
then suffered three resignations
and assumed that the now former
employees had “
attended to
” these matters. They do
not say when they realised that the instructions were not “
attended
to”
.
13.3.
There is no explanation for NUM’s delay before 4 September
2023.
13.4.
To argue that a ten-month late answering affidavit should be admitted
and does not cause an applicant
prejudice because “
the
Labour Court would still have to assess the merits of the review
based on more than just the applicant’s notice of motion”,
as NUM does in this case, is to argue that filing deadlines can
be ignored entirely.
13.5.
It is also a matter of fact that Eskom has been prejudiced. Eskom
believed that the matter was unopposed
and correctly set the matter
down on the unopposed roll for hearing. By this time, NUM had not
filed an answering affidavit.
13.6.
At the hearing on 19 March 2024, NUM’s attorneys appeared and
were most fortunate that the presiding
judge recused herself on the
day and that no allocation to another judge could be made. They used
this opportunity to file an answering
affidavit and turned this into
an opposed matter well beyond the filing deadlines.
[14]
I have decided, however, to permit NUM’s answering affidavit
purely because the damage of the delayed action has
been done, and
Eskom has waited for a date on the opposed roll.
[15]
The prejudice to Eskom is dealt with in costs.
Background
The
oil pumps procurement
[16]
During 2019, when the employee was serving as Acting Procurement
Manager, a member of the technical team (the end user)
at Komati
determined that Komati needed six new jacking oil pumps.
[17]
The end user was largely excluded from the process and was ultimately
shocked to find out the high price paid for the
pumps, compared to
previous payments as recently as one year earlier. He discovered the
payment when conducting a quality control
check in the final stage of
the procurement process.
[18]
Eskom charged the following employees with misconduct:
18.1
The refurbishment controller (RF controller) who works in the stores
unit and received
the request from the end user and was largely
responsible for driving the improper process.
18.2
The buyer, a procurement officer, who was responsible for preparing
the request for quotations
(RFQs) and evaluating the quotations.
18.3
Finally, it charged the employee for failing as a manager in a
process that caused the
business loss, and which was patently flawed
in many respects.
DTS
relays procurement
[19]
DTS relays were procured at excessive prices on four occasions
between 2017 and 2018. There was no record of RFQs having
been
issued, and there was no paper trail as there ought to have been.
Instead, the only documents on Eskom’s system were
the purchase
orders showing the excessive prices paid for the DTS relays on the
occasions in question.
[20]
The employee was the procurement officer responsible for issuing all
four purchase orders.
[21]
The employee was charged with misconduct in respect of this
procurement.
The
Commissioner’s award
[22]
The Commissioner framed the test in an unfair dismissal referral as
follows:
‘
The Respondent
must prove that [the employee’s] dismissal is substantively and
consistently fair – section 192(2) of
the LRA, The Respondent
must also prove that the sanction of dismissal imposed on Ngwenya is
an appropriate one – Item 7
of the Code of Good Practice:
Guidelines in Dismissals for Misconduct.’
[23]
The Commissioner focused on the RF controller’s misconduct,
including that the RF controller –
23.1
excluded the end-user from the procurement process and signing the
evaluation report as
the end-user;
23.2
omitted the oil pumps’ material number from the RFQ; and
23.3
advised the procurement officer to create the RFQ ‘
because
the estimated price was just a thumb suck.
’
[24]
The Commissioner rejected the following evidence from one of Eskom’s
witnesses as hearsay evidence:
‘
[The oil pumps
investigator] testified that she engaged [the end user] who stated he
requested services as per R14, completed the
RFC form and submitted
it to stores, provided [the RF controller] with further information,
scope of work and what needed to be
done before awarding the order.’
[25]
This is proof that the end user told the oil pumps investigator of
his conversations with the RF controller, but it is
not proof of what
transpired between the two employees. This is not, however, material
to the issues at arbitration, and it is
not evident why the
Commissioner chose to focus on this insignificant aspect of Eskom’s
case.
[26]
The following passage suggests that the Commissioner’s decision
was based on his outrage at the fact that the RF
controller had
escaped with a lesser sanction in her disciplinary hearing:
‘
I do not accept
any logic in Eskom’s version that because [the employee] was
the Acting Manager, she should bare the sole
responsibility and blame
and [the RF controller] was sanctioned with a final written warning
and [the procurement officer] was
found not guilty. I am not
convinced that the chairpersons exercise their discretion not Eskom
policy.
[The RF controller]
signed the evaluation report as the end user. [The RF controller]
played a major role by creating the [purchase
requisition] and giving
wrong advice to both [the employee] and [the procurement officer].
Has [the RF controller] not created
the [purchase requisition] and
gave ill advice, Eskom would have incurred fruitless and wasteful
expenditure.
It was [the employee’s]
testimony that [the RF controller] had hidden the material number by
inserting it under the scope
of work. If there was one person Eskom
had to held solely responsible for the fruitless and wasteful
expenditure, it was [the RF
controller].’ (sic)
[27]
The Commissioner found the decision inconsistent.
[28]
Regarding the DTS relays procurement, the Commissioner found that
Eskom ought to have ensured that its electronic system
was properly
maintained, and did not apportion blame to the employee for failing
to keep physical records, as is required. The
Commissioner further
noted that the employee’s manager at this time did not testify.
The employee testified that all DTS
relays were procured with the
approval of her manager.
Review
grounds and reasonableness of the award
[29]
The Commissioner incorrectly framed the test when arbitrating an
unfair dismissal dispute.
[30]
Strictly speaking, when an employer is being challenged on the
substantive fairness of a dismissal, it must prove that
the dismissal
is fair on a balance of probabilities, and factors that form part of
the substantive fairness inquiry are consistency
in the application
of discipline and the appropriateness of dismissal as a sanction in
the circumstances of the case. Consistency
and appropriateness of
sanction are not separate causes of action. An employee’s only
cause of action is unfairness.
[31]
This would not have been necessary to nitpick, but the Commissioner’s
misconstruction of the inquiry led him to
commit the gross
irregularities pleaded by Eskom.
The
Commissioner’s failure to apply his mind to the law on
consistency
[32]
It is established that inconsistency in the application of discipline
generally requires that employees who have committed
similar
misconduct should not be treated differently. This is a principle of
equity.
[33]
The rationes from
Absa
require a nuanced approach to the
principle:
33.1.
The
principle “
may
not just be applied willy-nilly without any measure of caution”
.
[1]
33.2.
The instant that an inconsistency in the application of discipline
between employee who commit similar
offences is shown, it does not
automatically exonerate the aggrieved employee.
33.3.
Instead,
“
it
is only a factor to take into account in that process. It is by no
means decisive of the outcome on the determination of reasonableness
and fairness of the decision to dismiss”.
[2]
33.4.
The
principle should not be used to effectively sanction a misconduct by
a subsequent employee, allowing them to profit from an
employer’s
previous approach to discipline against another employee.
[3]
[34]
The LAC in
Absa
also cited with approval its previous decision
in
SA Commercial Catering & Allied Workers Union & others
v Irvin & Johnson Ltd (SACCAWU)
, which makes its position on
inconsistency clear, and which recognises the constraints imposed on
employers when they follow the
recommendations of different
chairpersons of separate disciplinary hearings:
‘
Some inconsistency
is the price to be paid for flexibility, which requires the exercise
of a discretion in each individual case.
If a chairperson
conscientiously and honestly, but incorrectly, exercises his or her
discretion in a particular case in a particular
way, it would not
mean that there was unfairness towards the other employees. It would
mean no more than that his or her assessment
of the gravity of the
disciplinary offence was wrong. It cannot be fair that other
employees profit from that kind of wrong decision.’
[4]
[35]
The Commissioner’s approach and fixation on the comparatively
mild disciplinary action recommended against the
RF controller
misunderstands the import of both LAC decisions. He elevated
inconsistency to more than just a factor to be considered
and turned
it into the sole factor for consideration, to the exclusion of all
other factors and the related evidence. As a result,
the lesser
sanction recommended against and imposed on the RF controller,
whether an indiscretion by the chairperson of her disciplinary
hearing, became the employee’s gain in this case. This is the
type of result that the LAC sought to prevent in
Absa
and in
SACCAWU.
[36]
This misunderstanding of the law was material. It resulted in the
Commissioner failing to consider a vast amount of evidence
relating
to the wrongdoing, which would have enabled him to decide if the
dismissal was fair or not.
[37]
Without considering the other irregularities that Eskom pleaded, this
is enough to warrant the award being reviewed and
set aside.
[38]
The next question is whether the appropriate remedy is to return this
matter to the CCMA or to substitute the Commissioner’s
decision.
Relief
[39]
There is sufficient evidence on the record, and sufficient
information from the further review grounds pleaded, to avoid
wasting
time and resources by remitting the matter to the CCMA for a fresh
arbitration. It is also approximately three years since
the
arbitration.
The
oil pumps procurement
[40]
The question is whether any blame for the procurement can be
apportioned to the employee in her capacity as the Acting
Procurement
Manager.
[41]
The Commissioner was of the view that the employee’s only duty
was, on receipt of the purchase, to allocate it
to a procurement
officer to prepare and issue the RFQ.
[42]
It obviously cannot be the case that every time a manager’s
suborindates commit misconduct, the manager is responsible
based on a
failure to oversee their subordinates. The extent of the
subordinates’ misconduct and whether their misconduct
was
apparent or could be ascertained with some care and diligence is a
guiding factor. A subordinate who operates in a clandestine
manner to
trick a manager and an employer, and succeeds in doing so, cannot
always take a manager down with him or her. However,
if a subordinate
acts so brazenly that any manager acting with care could have been
alerted to their misconduct, the manager’s
own performance of
her duties should be questioned. This is such a case.
[43]
The non-compliance with Eskom’s Supply Chain Management Policy
(SCMP) in the oil pumps procurement was extensive:
43.1.
The RF controller excluded and took over many of the duties of the
end user, contrary to the prescripts
of Eskom’s SCMP. These
include that the end user should sign the refurbishment control form,
prepare the purchase requisition,
and evaluate quotations with the
procurement officer for purposes of preparing an evaluation report.
The RF controller even signed
in place of the end user in some
instances and removed him from correspondence.
43.2.
When quotations were finally received, there is no record of the
procurement officer conducting a
cost comparison to determine the
historical pricing of the oil pumps, even though this was a stock
item.
43.3.
The evaluation report recommended awarding the tender to a supplier
who had quoted R87,500 per unit,
almost five times the original price
estimate.
43.4.
The oil pumps were bought and paid for in terms of the informal
process, even though the total amount,
following the evaluation
report recommendation, far exceeded the threshold for an informal
tendering process.
[44]
It is difficult to imagine how a procurement manager missed all these
defects.
[45]
Eskom
proved that there is a general duty on an Eskom Procurement Manager,
in her capacity as an ‘
official
in a public entity
’
to: (a) ensure that Eskom’s SCMP is adhered to within her area
of responsibility; (b) ensure the effective, efficient,
economical
and transparent use of financial and other resources within her area
of responsibility; (c) take steps to prevent irregular
and fruitless
and wasteful expenditure; (d) comply with delegations and
instructions; and (e) manage Eskom’s assets and liabilities
within her area of responsibility.
[5]
[46]
Eskom further proved a procurement manager’s ‘
area of
responsibility
’ with reference to the employee’s
letter of temporary appointment to the position, read with the job
profile of a procurement
manager. It includes, among other things:
(a) overseeing the implementation of the procurement of a commodity;
(b) managing the
implementation of procurement activities, including
at valuation; (c) taking responsibility for identifying end user
requirements
and needs; and (d) gathering user requirements and
performing spend analyses and market analyses.
[47]
In her written explanation for the procurement of excessively priced
oil pumps, the employee admitted to not having performed
any of these
functions, and instead, stood by an approach of abdicating
responsibility to the RF controller and procurement officer.
Her
approach, reflected in her statement, is at odds with her prescribed
duties:
‘
The market was
tested three times without responses and when responses were received
on the fourth attempt they
were forwarded to Stores [which
includes the RF controller] because we also had doubts in terms of
their estimate. An instruction
to go ahead was received from Stores
and it is only then that I approved the transaction
and an order
was placed by [the procurement officer]… Over and above that,
this [purchase requisition] was on production
and that is the reason
why
we did not wait for an end user to change the price on the PR
.
We
acted on [the RF controller’s] confirmation that the
estimate was just a thumb suck
. I hope this addresses your
concern’ (own emphasis)
[48]
The employee’s position at the arbitration was that this level
of management and oversight on her part was adequate
and proper. It
was not. The employee was not permitted to simply rely on the RF
controller’s assurances. It is worse that
the employee did so
knowing that the price estimate was a wild guess. This is because the
SCMP does not allow for wild guesses:
it provides that a procurement
pack submitted to the delegated authority (in this case, the
procurement manager) must set out the
process followed to determine
the estimated market-related price.
[49]
The employee also testified at the arbitration that the material
number on the RFQ sent to her by the procurement officer
was blocked
from her sight, and so she missed it and was therefore prevented from
becoming aware that this was a stock item for
which a cost comparison
had to be done. Eskom, however, proved that –
49.1.
the material number appeared at various places in the pack, so even
if the employee had not seen it
on the front of the pack, had she
properly reviewed the pack, she ought to have seen the material
number; and
49.2.
even if this had been a non-stock item, the SCMP mandated a market
analysis by stating that ‘
Eskom will not award a contract or
a purchase order if the price is not market-related’,
and
set out various methods for determining a market-related price where
a comparison on Eskom’s internal system could not
be done.
[50]
Finally, the employee’s written explanation and her case at the
arbitration, in which she refused to accept that
she had failed to
perform her managerial and oversight duties, showed a lack of remorse
and no sense of the seriousness of her
general duties under the PFMA,
her duties as a procurement practitioner, and her specific duties
when acting as the procurement
manager.
[51]
Next, I consider the procurement of the DTS relays.
The
DTS relays procurement
[52]
The Commissioner did not meaningfully consider the DTS relays
procurement.
[53]
The employee’s conduct and explanation for her conduct relating
to the procurement of excessively priced DTS Relays
four times show a
similar nonchalant attitude to her responsibilities, especially when
errors in her work are pointed out.
[54]
The employee was charged with failing in the administrative aspects
of her duties as a procurement officer, in relation
to the
procurement of excessively priced DTS relays. The administrative
failures are, however, significant. The employee did not
upload the
RFQ on Eskom’s electronic system, which would have contained
the price estimate that was issued. Eskom proved
that it is a
required procedure for a procurement officer to upload all tender
process documents onto Eskom’s electronic
system, and the
employee failed to upload a document that could have assisted her.
Alternatively, it could have shown, to her detriment,
that she issued
an RFQ with inflated prices for the DTS relays.
[55]
The employee’s response was very similar to the case presented
to defend the procurement of overpriced oil pumps:
55.1.
First, the employee said to the investigator that ‘
it must
have been a situation where… she sent out for the cheaper
prices but she probably did not get a response, hence she
had to take
the high value responses.’
55.2.
A lack of care was also evident: in response to questions posed to
the employee as part of Eskom’s
investigation, she stated that
she did not look at the price history report before creating the
purchase orders, though she knew
how to do this and ‘
normally
looks at the report
.’
55.3.
At arbitration, the employee’s case was that there were price
fluctuations for the item over
time and that the price never stayed
the same. However, Eskom proved, using the price history report, that
the four purchase orders
in question were far above the median price
for the DTS relays over time.
[56]
As detailed
above, the employee’s approach to state funds and her
responsibilities in managing them is at odds with her
responsibilities
under the PFMA – responsibilities which derive
from the Constitution of the Republic of South Africa, 1996.
[6]
A
statement from the transcript
[57]
There is one additional point concerning the DTS relays. It does not
affect the finding on the fairness of the dismissal.
[58]
The employee testified that the procurement manager approved the DTS
relays procurements. Eskom’s witness testified
that finding the
person who approved the purchase orders was not important ‘
because
in any case
[the employee]
recommended these prices to whoever
approved it’.
[59]
This statement undermines the case against the employee for the oil
pumps procurement in her capacity as the Acting Procurement
Manager.
[60]
This does not, however, mean that Eskom acted inconsistently in
charging only the employee in relation to the DTS relays,
and not
also her manager. It is also point that cannot be explored, as NUM
did not put forward any evidence of why the procurement
manager ought
to have been disciplined. This may have been because there was no
such case to be made.
Conclusion
on substantive fairness
[61]
The pattern of conduct and the underlying attitude reflected in the
employee’s actions and her testimony show,
at best, that the
employee did not approach her work with care on at least five
separate occasions. In the light of her statutory
duties and the
serious consequences of her failures, and finally her attitude at the
arbitration when the failures were pointed
out, justify the dismissal
of the employee.
Costs
[62]
Before the presiding judge recused herself on 19 March 2025, the
parties had reached an agreement in terms of which NUM
would pay the
wasted costs occasioned by the late removal of the matter from the
roll. The presiding judge, having recused herself,
naturally could
not make any order in the matter. I see no reason in fairness why
this agreement on costs should not be given effect
to now. It would
also be fair to award Eskom its costs for opposing the condonation
application for the late filing of the employee’s
answering
affidavit.
[63]
NUM argued
that Eskom provided it with the records late. This is correct, but
not a reason for a respondent to rest on its laurels.
If a respondent
intends to be involved in a case, it shares responsibility with the
applicant to ‘
ensure…
the expeditious resolution of finalisation of labour disputes
.’
[7]
In this situation, the problem would have been resolved by NUM’s
representatives writing to Eskom and placing it on terms
to provide
the record,
[8]
instead of
waiting to raise it at another hearing in June, when the matter ought
to have been heard. If necessary, it could have
brought an
application to compel delivery of the completed record.
[9]
[64]
In any event, the answering affidavit was not filed late because NUM
did not have the record. It had in fact filed an
answering affidavit
before raising the issue of the record not having been provided.
[65]
NUM and Eskom have an ongoing relationship, and ultimately NUM was
opposing the review of an award in favour of its member.
It took
advantage of a situation to launch a late opposition, but it has not
abused the court process in a manner that requires
going a step
further into punitive costs – it has not been dishonest or
vexatious.
Order
1.
The review application is granted, and the arbitration award dated 26
July 2021 under case number MPEM 1469-21 is set aside.
2.
The award is substituted with the following finding:
‘
The dismissal was
substantively fair.’
3.
The first respondent shall pay the applicant’s costs limited to
the following:
3.1.
Costs for the appearance on 19 March 2024 and the preparation related
to it,
including the costs of counsel.
3.2.
Costs for opposing the application for condonation for the late
filing of the
employee’s answering affidavit, including the
costs of counsel if any.
B. Ramji
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv.
F Sangoni
Instructed
by:
Madhlopa & Thenga Incorporated
For the First
Respondent: Mr X S Mbhiza, Seleka
Attorneys
[1]
Absa
supra
at
para 36.
[2]
Absa
supra
at
para 42.
[3]
Ibid.
[4]
(1999) 20 ILJ 2302 (LAC) at para 29, cited in
Absa
supra
at
para 37.
[5]
Section 57 of the PFMA.
[6]
Sections 195(1)(b) and 217(1).
[7]
Bezuidenhout
v Johnston NO & others
(2006)
27 ILJ 2337 (LC) at para 26.
[8]
Frans
Meintjies New Tyre Manufacturers v Bargaining Council &
others
(2012)
33 ILJ 1725 (LC) at para 31.
[9]
Maloisane
v Judge President of the Labour Court and Others
(J 2024/19) [2022] ZALCJHB 219 (11 August 2022) (unreported) at para
26.