TEMPLATE JUDGMENT
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case no: D744/2021
In the matter between:
THE MEC, DEPARTMENT OF ECONOMIC DEVELOPMENT,
TOURISM AND ENVIRONMENTAL AFFAIRS Applicant
and
LG NAIDU First Respondent
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL Second Respondent
P JAIRAJH Third Respondent
Heard: 19 August 2025
Delivered: 13 November 2025
Summary: Review application – duty of proper consideration – ill treatment
of subordinate – lack of authority to recommend appointments.
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JUDGMENT
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MKHATSHWA, AJ
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Introduction
[1] This is an opposed review application for the review and setting aside of the
Award of the Third Respondent under case number GPBC674/2016, and for
the substitution of the award with an order finding that the First Respondent
was fairly dismissed from the Applicant’s employ.
[2] The Applicant further seeks costs of the application by any party who opposes
the granting of the order.
Background facts
[3] At the commencement of the hearing of this application, a substantive
application was brought on behalf of the First Respondent for his substitution
as a party to the review application with Mr Theven Pothraju (ID Number
8912075240083), the Executor of his estate, as the First Respondent , as
sadly, t he First Respondent died on 19 April 2025, after the close of
pleadings.
[4] The Applicant in this matter did not oppose the application for substitution ;
accordingly, the application for substitution was granted before the hearing of
the matter on the merits.
[5] The First Respondent was charged with six counts of misconduct. Initially, it
had been seven counts , two of which were subsequently combined (counts
two and three).
[6] The first two charges related to an incident pertaining to defamation and
intimidation of a junior colleague, Mr Sizwe Dlamini (Dlamini). Charge three
related to fruitless expenditure by the Applicant for not collecting a mobile
phone which he had initially ordered as part of his benefit entitling him to a
work mobile phone. Charges four, five and six related to the First Respondent
submitting a recommendation to his superiors without following the correct
procedures, which resulted in 25 administrative clerks being upgraded from
salary level five to level seven.
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[7] He was found guilty and dismissed (his last pay date being reflected as 15
March 2016) after he failed to attend the disciplinary hearing on the basis that
he had been booked off sick by his psychiatrist. He referred the matter to
arbitration, and the Third Respondent rendered an award dated 15 June
2021, where she found that the dismissal was procedurally and substantively
unfair. She ordered the reinstatement of the Firs t Respondent without any
loss of benefits to his position as HR Manager. She further ordered the
Applicant to pay the First Respondent back pay in the amount of
R4 320 630.09, subject to statutory deductions. She also order ed the
Applicant to pay interest on the above amount from 1 August 2021 to the date
of payment.
Grounds of review
[8] In summary, the Applicant raised the following grounds of review in arguing
that the award of the Third Respondent is one which no reasonable arbitrator
would have made on the evidence before her:
8.1 The Third Respondent failed to follow the correct legal processes in
determining the various disputes of fact and committed errors of fact
and law.
8.2 She relied on hearsay and double- hearsay evidence without any basis
for the receipt of such evidence having been laid and in circumstances
where no weight could have been given to such evidence.
8.3 She failed to grasp the material issues before her, or the nature of the
function she was required to perform.
[9] On the specifics, regarding charges one and two, the Applicant argues as
follows:
9.1 The evidence of Dlamini related to two incidents, one occurred in
December 2013 when the First Respondent became annoyed with
Dlamini because the First Respondent’s mobile phone had not arrived
on time.
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9.2 The second incident occurred when the First Respondent exceeded
the permissible limit placed on his mobile phone usage, resulting in his
mobile phon e being ‘ soft locked’ by the service provider . The First
Respondent had accosted Dlamini , shouted at him, and verbally
abused him in front of a number of people in the foyer of the building
where Dlamini worked.
9.3 The second incident was witnessed by Mabaso, who testified that she
was shocked by the manner in which the First Respondent had
shouted at Dlamini. Mabaso was aware that the First Respondent had
indeed exceeded the usage limit on his mobile phone and confirmed
that neither she nor Dlamini could have done anything until there was
authorisation, from their superior, Mr Chili (Chili), for the limit to be
exceeded and for the mobile phone to be reactivated.
9.4 Ms Carol Langa (Langa) confirmed in her testimony that she had been
in her office when the First Respondent confronted Dlamini. Further
that she hear d the First Respondent shouting at Dlamini . Her office is
situated in the vicinity of the foyer where the incident occurred. She
had left her office to see what the commotion was about , and she
witnessed the remainder of the conduct of the First Respondent toward
Dlamini. According to Langa, Dlamini appeared shocked and
intimidated, and Dlamini did not respond to the verbal abuse.
[10] Regarding charges four, five, and six, the evidence led showed that:
10.1 The First Respondent signed a memorandum to the M ember of the
Executive (MEC) on 23 April 2014, recommending that administrative
clerks in the Applicant’s employ at salary levels four, five and six be
upgraded to salary level seven. The memorandum claimed, among
others, that the posts in question were in fact being performed at level
seven. It claimed that the Department of Public Service and
Administration (DPSA) and the office of the Premier , KwaZulu-Natal,
had been consulted regarding the upgrades and that the DPSA
had been consulted regarding the upgrades and that the DPSA
Minister had mandated its implementation.
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10.2 The memorandum was subsequently signed by Chili and Mr DK
Golding (Golding) on 6 and 7 May 2013, respectively, approving the
First Respondent’s recommendation. The MEC signed the
memorandum approving the First Respondent’s recommendation on
23 May 2013.
10.3 The result of the above was that 25 administrative clerks , mostly at
level five, were parachuted to level seven. It is Golding who contacted
the DPSA to investigat e the memorandum. An investigation by the
DPSA ensued, and a report was issued in November 2014.
10.4 One of the issues raised by the report was in respect of Circular no.1 of
2013 from the office of the Premier , which had confirmed benchmark
job descriptions to ensure consistency across the public service.
Among the findings in the report were that the MEC was incorrectly
advised, that both the office of the Premier and the DPSA were
consulted (when in fact they were not) , the process deviated f rom the
set principles in the Provincial Job Evaluation Unit without providing
any rationale for such a deviation, notwithstanding that it was a
provision of the policy on job evaluation of the province and that there
was clear evidence of a disjuncture on the equate reports which
seemed to have been completed to mislead the top management and
executive authority.
10.5 The report recommended a reversal of the upgrades and disciplinary
action against those responsible.
10.6 According to the evidence led at the arbitration:
10.6.1 The DPSA is the custodian of job evaluation in the province.
10.6.2 The effect of Circular no. 1 of 2013 was that if any department
felt that there were problems with the job descriptions, such a
department must approach the office of the Premier , which
would coordinate with the Central Job Evaluation Unit and send
such a query to the DPSA.
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10.6.3 Mr Paresh Maharaj (Maharaj), the Deputy Director : Labour
Relations and Ms Deborah Khoathane (Khoathane), who was
involved in the DPSA investigation, confirmed that the provisions
of the Departmental Job Evaluation Policy had to be followed,
and a proper process of job evaluation prior to any decision was
required. According to Maharaj, the First Respondent had
attempted to approve the upgrades through the Departmental
Job Evaluation Unit , which the First Respondent chaired, after
the upgrades had already been implemented. Members of the
Job Evaluation Panel declined to do so. Mahar aj was a member
of the Panel.
10.6.4 According to Ms Babalwa Mapisa (Mapisa) , to whom the First
Respondent reported, she testified that these irregular upgrades
caused chaos, and the Applicant had made attempts to reverse
them. Eventually, this was not done due to threats of industrial
action. Permission was eventually sought from the MEC not to
reverse the upgrades due to the effec t that it would have on a
fragile labour relations environment.
Analysis of the evidence
[11] The First Respondent’s evidence at the arbitration can be summari sed as
follows:
11.1 He sought to argue that there was a conspiracy to get rid of him by ,
among other s, Golding, Dlamini and Mapisa, as he was seen as a
stumbling block to their corrupt endeavo urs. He produced no evidence
to that effect.
11.2 He tried to paint Dlamini as a racist , alleging that Dlamini had used a
racist slur directed at him on the basis of his Indian descent . During his
evidence-in-chief, the First Respondent did not mention this aspect
even when his legal representative attempted to extract it from him.
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11.3 Regarding the memorandum recommending the upgrades, the First
Respondent argued that it was actually the work of a junior colleague,
Mr Thula Lukele (Lukele). Lukele, testifying for the First Respondent
and mentioned that the First Respondent was aware of the
circumstances surrounding the memorandum , including the
representations made in it. The fact of the matter is that the First
Respondent signified his approval of the memorandum that was
prepared by Lukele when he signed it and subsequently sent it to his
superiors. Lukele was no longer in the employ of the Applicant at the
time that he testified.
11.4 The Third Respondent makes the point in the analysis of the evidence
that there were contradictions from witnesses (she doesn’t mention
those witnesses), but she accepts that memory fades over time.
Procedural fairness
11.5 Regarding procedural fairness, the Third Respondent accepts
(correctly) that the onus to provide an affidavit from his medical doctor
rested with the First Respondent. Further that the fact that the First
Respondent sent a medical certificate did not mean that his
representatives would not also attend the hearing to make
representations.
11.6 However, the Third Respondent bas es her finding of procedural
unfairness on the length of time it took to charge the First Respondent.
The upgrades were implemented in the middle of 2013. Golding
contacted the DPSA in September 2014 for the purposes of
investigating the memorandum and the circumstances of the upgrades.
The investigation report by the DPSA was released in November 2014.
Regarding the incident when the First Respondent took a mobile phone
that did not belong to him (and did not collect the mobile phone that
was ordered for him) , and the incident of the verbal abuse of Dlamini
took place in December 2013 and early in 2014, respectively. The First
Respondent was served with the initial charges in June 2015. While the
above timelines may appear to be long, considering the steps taken by
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the Applicant to process the disciplinary hearing against the First
Respondent, the nature of the charges against the First Respondent
and his level of seniority , they cannot be considered to be inordinately
long so as to have resulted in procedural unfairness against the First
Respondent.
Substantive fairness
[12] The Third Respondent starts by referring to item 2 of Schedule 8 of the
Labour Relations Act
1. She also makes the point that the First Respondent
put various versions to the witnesses , which differed from his evidence- in-
chief. Further that , throughout the First Respondent’s testimony , his various
versions were not put to the Applicant’s witnesses. At this point, it should have
been apparent to the Third Respondent that the untested versions of the First
Respondent ought to have been rejected.
[13] Regarding charges one and two, the Third Respondent acknowledges that
Wust testified that it was frustrating , and it got tense when he and the First
Respondent could not get their phones. She also accepts that the First
Respondent banged Dlamini’s table and pointed his fingers ; she, however,
takes issue with the fact that Dlamini did not report Wust. She also takes
issue with the fact that two witnesses stated that the First Responde nt told
Dlamini that he would ‘crush’ him, and therefore it is improbable that Dlamini
would have forgotten the word. The charge itself does not refer to the word
‘crush’, but Dlamini also said that he could not remember everything.
[14] It begs the question, why would two witnesses choose the same word which
they said they heard ? The third Respondent refers to the security guards
having been in the vicinity, but that would not be proof that Dlamini was not
verbally abused by the First Respondent , considering there was no physical
violence involved. The Third Respondent , while accepting that there was an
altercation in the corridor, seems to find its justification by finding that Chili
altercation in the corridor, seems to find its justification by finding that Chili
had given Dlamini an instruction to remove the soft lock and when Dlamini did
not lift the soft lock, that then led to the altercation. This cannot be an excuse
1 Act 66 of 1995, as amended.
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for the First Respondent’s conduct as des cribed by Dlamini and those who
witnessed the incident.
[15] In respect of charge three, the Third Responden t finds that evidence was not
presented of the actual fruitless expenditure. In a single short paragraph in the
Award, she basically found that the First Respondent was not guilty on this
charge. Two issues arise on this charge. Firstly, the First Respondent was not
entitled to the phone that he took . Even if he paid the amount of R1 100, the
fact of the matter is that he took a phone he was not entitled to. Secondly and
most importantly , the First Respondent misled his superior, Chili, by saying
that he qualified for the phone that he took, when he did not qualify for it. Last
but not least, having taken someone’s phone would mean that the other
person would have needed to have another Galaxy Note 3 phone ordered for
him/her.
[16] Regarding c harges four, five and six, the Third Respondent accepts that
Maharaj and Persad testified that at the Job Evaluation Meeting, there was no
decision as to the upgrades and that the panel was of the view that there was
nothing that could be done as the MEC had approved the upgrades, a version
that the First Respondent initially challenged but eventually agreed to.
[17] She then dedicates a considerable amount of time to the fact that the First
Respondent was charged with 13 counts when the total number of upgrades
was 25. While the Applicant found it difficult to explain this discrepancy, even
at the time of the hearing of this review application, it really comes down to an
administrative oversight. There is no discernible reason why the First
Respondent ended up being charged with 13 instead of 25 upgrades.
[18] The Third Respondent picked up on the inconsistency argument. Namely, that
Lukele and Chili ought to have been charged. An argument that seems to
have been constructed as an afterthought by the First Respondent. In addition
have been constructed as an afterthought by the First Respondent. In addition
to that, both Lukele and Chili no longer work for the Applicant.
[19] She concludes simply by saying that she is not satisfied that the evidence
tendered by the Applicant is more probable than that of the First Respondent
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and that, accordingly, the dismissal of the First Respondent was substantively
unfair.
[20] The evidence in respect of charges one, two and three was overwhelming.
Some of the contradictions (such as whether the word ‘crush’ was used by the
First Respondent ) notwithstanding, the material allegations against the First
Respondent were proven on a balance of probabilities.
[21] Regarding the more serious charges : four, five and six, the First Respondent
did not deny the underlying facts, namely that he signed the memorandum
without ensuring that the job evaluations were done properly. Even if Lukele
prepared the memorandum, the First Respondent was remiss in not verifying
its contents before appending his signature to it. As a subject matter expert,
more was expected of him instead of serving as a post box, with the obvious
consequences that, at a stroke of his pen, 25 upgrades were approved by his
superiors, with the concomitant chaos that was referred to , let alone the
financial implications of the irregular upgrades.
[22] CCMA arbitration s and those of bargaining councils are governed by both
section 33 (right to just administrative action) and section 34 (right to a fair
hearing) of the Constitution. 2 Recently, in Vodacom (Pty) Ltd v Makate and
Another3, the Constitutional Court held that ‘the duty of proper consideration is
an integral component of the [section 34] fair hearing right ’, and that, in order
to acquit itself of this duty, a court ‘should have regard to all material evidence
and all material submissions bearing on the issues it must decide ’ (own
emphasis)4. CCMA commissioners and bargaining council arbitrations are
governed by section 34; consequently, the same applies to them.
[23] In reference to section 34 of the Constitution, Ngcobo J found in Sidumo &
another v Rustenburg Platinum Mines Ltd & others (in a passage endorsed by
the majority in Commercial Workers Union of SA v Tao Ying Metal Industries
the majority in Commercial Workers Union of SA v Tao Ying Metal Industries
& others) that “the parties to a CCMA arbitration must be afforded a fair trial ”;
that they have “a right to have their cases fully and fairly determined”; and that
2 Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) (Sidumo) at
paras 112 and 124.
3 2025 (10) BCLR 1174 (CC).
4 Ibid at para 45.
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‘where a commissioner fails to apply [their] mind to a matter which is material
to the determination it can hardly be said that there was a fair trial of issues ’
(own emphasis). 5 Following on this, Ngcobo J found that ‘ it follows therefore
that where a commissioner fails to have regard to material facts , the
arbitration proceedings cannot in principle be said to be fair because the
commissioner fails to perform [their] mandate’ (own emphasis). 6 This all
accords with Vodacom’s articulation of the duty of proper consideration.
[24] It is evident from the above that the Third Respondent did not properly
consider the evidence before her, she overlooked material evidence proving
the allegations against the Fi rst Respondent, she gave undue weight to
matters that were of little or no significance, she misconstrued the enquiry that
she ought to have conducted in the matter, and as a result she reached a
decision that a reasonable commissioner faced with the same evidence would
not have reached. Accordingly, her award cannot stand.
[25] In the premises, the following order is made:
Order
1. The First Respondent , as a party to the review application, is
substituted with Mr Theven Pothraju (ID Number 8912075240083) , the
Executor of the First Respondent’s estate.
2. The award of the Third Respondent is reviewed and set aside, and it is
substituted with the following order:
‘The dismissal of the employee, LG Naidu, is found to be
procedurally and substantively fair.’
3. There is no order as to costs.
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5 Sidumo at para 267; Commercial Workers Union of SA v Tao Ying Metal Industries & others (2008)
29 ILJ 2461 (CC) para 76.
6 Sidumo at para 268.
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M. Mkhatshwa
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr P Schumann
Instructed by: PKX Attorneys
For the First Respondent: Mr M Titus, McGregor Erasmus Attorneys Inc.