THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C213/2023
In the matter between:
CITY OF CAPE TOWN METROPOLITCAN MUNICIPALITY Applicant
and
SAMWU OBO VUYANI SILIMELA First Respondent
SA LOCAL GOVERNMENT BARGAINING COUNCIL Second Respondent
ANNE ERWIN N.O. Third Respondent
Heard: 23 July 2025
Delivered: 14 November 2025
Review of arbitration award: unfair labour practice (benefits). Such disputes vindicate
the right to fair labour practices. A dispute concerning a benefit is not a claim to the
benefit itself but to the fair employer conduct. Commissioner found the City’s conduct
unfair and awarded compensation. A review cannot succeed on the basis that the
commissioner sanctioned conduct allegedly ultra vires the employer’s policies, since
the focus is on conduct, not entitlement. Review dismissed, award upheld.
VARIATION: JUDGMENT
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HARVEY AJ
Introduction
[1] This case arises from a promotion that took something away. For years, while
employed in the City of Cape Town’s Solid Waste Directorate, Mr Silimela used
a City vehicle to travel safely between his home in Parow and his shifts. When
he was promoted and transferred to the Safety and Security Directorate, that
transport was withdrawn. He found himself walking, hitchhiking, and relying on
friends while others in similar posts continued to drive City vehicles. He referred
an unfair labour practice dispute to the bargaining council , where the City’s
defence was that his use of its vehicles was not lawfully authorised.
[2] The commissioner agreed that the City’s conduct was unfair and ordered that
Silimela be provided transport in accordance with the criteria of the City’s now -
current transport directive, together with compensation of R50 000.
[3] The City challenges the award on several grounds, alleging gross irregularities
and errors of law , and contending that the commissioner unreasonably
validated unlawful conduct. Those contentions go to the merits of the review,
but before turning to them I must first deal with three preliminary applications:
for reinstatement, for condonation for the late filing of the review application,
and for leave to file additional affidavits.
Preliminary matters
Reinstatement
[4] A portion of the record was discovered to be missing due to the parties’ mutual
oversight. Once identified, the parties acted with haste to locate and deliver the
missing material. Whilst under clause 11.2 of the Practice Manual then in force
the review was deemed withdrawn, under the present Rule 37(13) the applicant
would not be sanctioned in such circumstances. There was no prejudice to
either party and the application is not opposed. T he application for
reinstatement is granted.
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Condonation
[5] The review application was filed 21 calendar days late. The delay arose from
the City’s internal processes to obtain the necessary authorisation and to brief a
legal representative. The delay, whilst not insignificant , is satisfactorily
explained, and caused no prejudice. The employee does not oppose the
application for condonation. Condonation is granted.
Leave to file additional affidavits
[6] Following the late discovery and filing of the missing portion of the record, the
parties agreed to deliver an additional set of affidavits so that the review could
be determined on a set of papers addressing all the material before the
commissioner. The application to file the additional affidavits is , like the others,
unopposed and granting it is in the interests of justice. Leave is accordingly
granted under Rule 41(1).
Background
[7] The first respondent employee, Mr Silimela, has been employed by the City of
Cape Town since 2011. He initially served in the Solid Waste Directorate and,
in August 2021, was promoted to the post of Inspector within the Safety and
Security Directorate. The promotion, however, coincided with the withdrawal of
the transport benefit he had utilised in his former post.
[8] Silimela resides in Parow and he had been travelling to and from work using a
City vehicle. After his promotion, however, he was required to make alternative
arrangements. His new duties required him to work irregular hours, including
midnight shifts , leaving him to navigate a public transport system which was
unreliable and unsafe at those hours. He often had to hitchhike while in
uniform, or rely on friends or family for lifts.
[9] Silimela observed that many other employees continued to use City vehicles to
travel between home and work. He considered this differential treatment to be
unfair and, in December 2021, he lodged a grievance. His supervisor and
several colleagues supported his grievance, acknowledging his safety concerns
several colleagues supported his grievance, acknowledging his safety concerns
and the operational need. The Executive Director nevertheless declined the
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request on the basis that he had no delegation of authority to approve such
transport for Silimela’s personal use.
[10] In May 2022, the City issued a directive requiring staff to apply for transport on
the basis of operational necessity. Mr Silimela submitted applications under this
directive, but they were not successful . He inferred that his grievance had
triggered a stricter application of the policies , and that he had been singled out
for harsh treatment.
[11] He referred a dispute to the CCMA, alleging that the City was treating him
unfairly, amounting to an unfair labour practice relating to benefits. At
arbitration, he and several witnesses testified that other employees in
comparable roles continued to use City transport notwithstanding similar
working patterns and risks. The City maintained that the facility had always
been restricted to ‘ operational’ use and that no lawful delegation authorised
home-to-work travel.
The Arbitration Award
[12] The commissioner found that the City’s refusal to provide the employee with
transport between his home and workplace constituted an unfair labour practice
relating to benefits. She reasoned that the employee had previously enjoyed
the use of City transport and that other employees in comparable positions
continued to do so. She accepted that the employee had no contractual
entitlement to the benefit, but was nevertheless satisfied that the City’s conduct
in treating him differently was inconsistent and unfair.
[13] The commissioner ordered the City to apply its current transport policy (a new
policy had been issued dated 1 August 2022) to the employee, and to
compensate him for the unfairness he had suffered in the amount of R50,000,
being roughly equivalent to two months’ remuneration.
Review grounds
[14] The review grounds, though variously framed, share a common theme: the City
argues that the award is unreasonable because it validates conduct that the
City could not lawfully authorise.
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[15] The first ground is an alleged error of law: it challenges the commissioner’s
reference to the night -work provisions in the Basic Conditions of Employment
Act when it comes to transport, pointing out that the employee earned above
the Ministerial earnings threshold. The argument is that by relying on the
BCEA the commissioner introduced an error of law that distorted the outcome.
Secondly, the City contends that t he commissioner overlooked the absence of
a contractual or delegated entitlement to the use of City vehicles for home-to-
work travel, and that the dispute arose before the later transport directive. The
further grounds attack her reference to that directive, claim that she ignored the
City’s statutory and delegation framework thereby legitimising an unlawful
claim, and attack the award of compensation on the basis that it irrationally
validates an unlawful benefit and was arrived at without evidentiary basis and
without inviting submissions on quantum. In essence, the City’s case is that a
benefit which cannot lawfully be granted cannot give rise to an unfair labour
practice.
[16] The employee, on the other hand, maintains that the commissioner correctly
characterised the dispute as one concerning unfair conduct rather than any
contractual or statutory entitlement, and that she properly applied the approach
as clarified by the LAC in Apollo Tyres South Africa (Pty) Ltd v CCMA and
Others.
1 The reference to the nightwork and transport provisions in the BCEA,
he says, provided relevant context underscor ing the social importance of the
operational and safety risks that motivated his request for transport , rather than
the source of a right. The commissioner correctly looked to the later transport
directive in order to craft a pra gmatic and valid remedy, not to determine
unfairness. As to the evidence, he maintains that the commissioner evaluated it
fairly: he was required to work irregular and night shifts in unsafe conditions ,
fairly: he was required to work irregular and night shifts in unsafe conditions ,
while others in comparable positions continued to receive transport. The
employee submits that the award is reasonable and within the commissioner’s
discretion, and that the compensation granted in the exercise of the
commissioner’s discretion reflects a proportionate and equitable remedy for
unfair conduct, not for any unlawful benefit.
1 Apollo Tyres South Africa (Pty) Ltd v CCMA and Others (2013) 34 ILJ 1120 (LAC) (Apollo Tyres).
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Legal Framework
[17] Section 186(2)(a) of the Labour Relations Act provides that an unfair labour
practice is an unfair act or omission that arises between an employer and an
employee involving unfair conduct by the employer relating to (among others)
the provision of benefits. The focus of the provision is on the fairness of the
employer’s conduct, rather than on the source of any entitlement.
[18] In Apollo Tyres
2 the Labour Appeal Court confirmed that , for purposes of an
unfair labour practice dispute, it is not necessary to show an entitlement to a
benefit arising from contract or statute. The enquiry is rather whether the
employer’s conduct in granting or withholding the benefit was unfair, including
whether it was arbitrary, capricious, or inconsistent. Lawful conduct may
nevertheless be unfair; lawfulness is not a defence to unfairness.
[19] The review test, likewise, is well established. The Labour Court will not interfere
merely because the commissioner erred in law or fact, but only where such
error results in an outcome that a reasonable decision -maker could not reach
on the material before her. The focus is on the reasonableness of the result
rather than on the commissioner’s reasoning process and individual
misdirections are of no moment unless they led directly to an unreasonable
result.
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Evaluation
[20] The City’s review grounds, considered individually or collectively, rest on a
misconception of the unfair labour practice and the commissioner’s task . The
question before the commissioner was not whether the employee had a lawful
or contractual entitlement to use a municipal vehicle, but whether the City’s
conduct in refusing him transport while others continued to receive it was unfair.
That is the distinction drawn in Apollo Tyres : the fairness enquiry concerns the
2 ApolloTyres note 1 above.
3 Herholdt v Nedbank Ltd and Another (Congress of South African Trade Unions as Amicus Curiae)
[2013] 11 BLLR 1074 (SCA).
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employer’s conduct, not the existence of a legal right. That principle is by now
trite.
[21] It follows that the City’s reliance on the absence of lawful delegation, or the
potential irregularity of past practices, could not justify its unfair conduct or
dispose of the dispute. Lawfulness and fairness are not interchangeable
concepts. A municipality must act within the limits of its statutory powers, but
considerations of internal policy do not immunise its conduct qua employer from
being evaluated for fairness – policy decisions are themselves vulnerable to
scrutiny. An employer may act lawfully , yet still unfairly , especially where
similarly placed employees are treated differently without rational justification.
[22] The award demonstrates that the commissioner appreciated this distinction.
She acknowledged that the employee had no contractual right to the use of a
vehicle, but found that the City’s inconsistent application of its transport
arrangements, coupled with the very real operational and safety difficulties
faced by the employee, rendered its conduct unfair. She crafted a pragmatic
remedy, incorporating the current transport directive and awarding reasonable
compensation for the unfairness. The commissioner did not compel the City to
act outside of its lawful powers ; she directed that Silimela be treated in
accordance with the same criteria as others.
[23] The City’s further review grounds, relating to the alleged absence of evidence,
the use of irrelevant material, and the quantum of compensation, do not
disclose any irregularity that lead directly to an unreasonable outcome. The
evidence before the commissioner included the employee’s testimony about his
working hours, the safety risks he faced, and the continued provision of
transport to others. The compensation of R50 000, roughly equivalent to two
months’ salary, was justified, and falls within the broad discretion afforded by
section 194 . Compensation for unfair labour practices does not address
section 194 . Compensation for unfair labour practices does not address
patrimonial loss, but redresses the impact of unfair treatment.
[24] On the totality of the record, I am satisfied that the award is one that a
reasonable decision-maker could reach. The commissioner applied the correct
test, considered the relevant facts, and fashioned a fair remedy within her
discretion. The review application must therefore fail.
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Costs
[25] Counsel for Mr Silimela sought a costs order against the City, noting that his
legal expenses would likely exceed the compensation awarded to him. In
argument, counsel pressed for a limited costs order from 23 April 2025, prior to
which the employee had alternative and union representation. The City
contended that no order as to costs should be made, in line with the general
approach in employment matters.
[26] Section 162 of the Labour Relations Act empowers the Court to make orders
for costs according to the requirements of law and fairness. In Zungu
4 the
Constitutional Court confirmed that the ordinary rule that costs follow the result
does not apply in labour matters, endorsing the principle in MEC for Finance,
KwaZulu-Natal v Dorkin NO 5 that costs should be awarded only where fairness
so requires. This approach seeks to balance, as Zondo JP put it, the need to
discourage frivolous or vexatious litigation against the risk of deterring parties
from approaching the Labour Court to vindicate their rights.
[27] In Mugavazi
6 the Court ordered costs limited to the interlocutory stage because
the respondents had raised meritless preliminary points, reasoning that the
employee should not be left out of pocket for having had to defend such
unnecessary points. In Masinga 7 the Court granted fifty per cent of the
employee’s costs where the employer’s unfounded defences had compelled
him to litigate to secure payment of his salary, observing that fairness cannot
mean a litigant must redirect a large portion of his legitimate claim towards legal
fees. In Brandt v Quoin Rock Wines
8 the Court awarded full costs because a
dismissal for reasons related to pregnancy was egregiously unfair.
[28] These decisions affirm that, while the norm remains that in labour disputes
each party usually bears its own costs, fairness may justify a limited or
4 Zungu v Premier of the Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC) at 23-24.
4 Zungu v Premier of the Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC) at 23-24.
5 Member of the Executive Council for Finance, KwaZulu-Natal & another v Dorkin NO &
another [2007] ZALAC 41; (2008) 29 ILJ 1707 (LAC) (Dorkin) at para 19. See also Vermaak v MEC
for Local Government & Traditional Affairs, North West Province [2017] ZALAC 2.
6 Mugavazi v SAA Technical SOC Ltd (2024) 45 ILJ 2597 (LC).
7 Masinga v Almar Investments (Pty) Ltd (2025) 46 ILJ 379 (LC).
8 Brandt v Quoin Rock Wines (2023) 44 ILJ 309 (LC).
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proportionate award where the litigation has imposed unjust and avoidable
expenses on a party who acted reasonably.
[29] This dispute concerned one of the most basic employment rights: the right to
fair labour practices, guaranteed by section 23 of the Constitution and given
effect through section 186 of the LRA. Mr Silimela approached the bargaining
council to vindicate that right in a forum intended to provide free, fast and final
resolution of such disputes. He did not initiate the proceedings in this Court –
however he was ultimately obliged to defend a justified arbitration award
against a review that lacked merit , the principles established in Apollo Tyres
and Herholdt being, by now, trite.
[30] The compensation awarded to Mr Silimela is modest, and it would offend
fairness were it to be consumed by his legal costs. Having regard to the
arguments presented, and to the requirements of law and fairness, I am
satisfied that it is just and equitable to direct the City to pay fifty percent of the
employee’s legal costs incurred after 23 April 2025 on the party -party scale,
with fees of counsel on scale A.
[31] In the result, the following order is made:
Order
1. The review application is reinstated.
2. Condonation is granted for the late filing of the review application.
3. The application for the filing of additional affidavits is granted.
4. The review application is dismissed.
5. The City must pay 50% of the first respondent’s legal costs, limited to those
incurred after 23 April 2025, including costs of counsel on scale A.
_______________________
SJ Harvey
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Ms September instructed by Mosdell Pama & Cox
For the Respondent: Mr Lawrence instructed by SchoemanLaw