IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No:C604/2020
In the matter between:
EKAPA MINERALS (PTY) LTD
(PREVIOUSLY KIMBERLY EKAPA MINING JV) Applicant
and
NUM OBO STALIN LINKS First Respondent
COMMISSION FOR CONCILIATION
MEDIATION & ARBITRATION Second Respondent
COMMISSIONER MARTIN RABIE N.O Third Respondent
Heard: 18 September 2025
Delivered: Judgment was handed down electronically by circulation to the
parties’ representatives by email .The date and time for hand -down is deemed
on 2 December 2025.
_________________________________________________________________________
JUDGMENT
_________________________________________________________________________
GURA, AJ

2
Introduction
[1] This is an application for review, setting aside and or correcting the arbitration
award issued by the Third Respondent, acting under the auspices of the
Second Respondent, under CCMA Case Number: NC 3068/19 on or about 24
November 2020. The review application is opposed by the First Respondent.
The Applicant admits to having received the Award on 30 November 2020
wherein the Applicant only filed the Review Application on 12 January 2021,
wherein they filed the Review on 12 January 2021.
[2] The Applicant herein was represented at all material times by JJ Grundlingh
from Bloemfontein Chambers, whilst the First Respondent was represented
by Mr Goldberg of Goldberg Attorneys Incorporated. The proceedings of 18
September 2025 were held via a virtual platform. Upon commencement of
same, it became apparent and or evident that the First Respondent’s Heads
had not reached the Court File in chambers. Same as confirmed by Mr
Goldberg were emailed at around 12:56 to the Judge’s Secretary , who had to
accordingly print and bring same to me in chambers. Mr Goldberg had placed
on record that he had actually emailed the Heads on Monday of the Thursday
of the sitting of the court. The Applicant’s Counsel took offence at the First
Respondent amending Heads of Argument, on the day the matter is to be
heard. Mr Goldberg placed on record that same was not amending but was
correcting and or corrections of the Heads. The agreed corrected parts
included the heading of Mr Goldberg’s papers to not read Applicant’s Heads
of Argument on Review but to read First Respondent ‘s Heads on Review.
Further, that the Heads with 29 paragraphs and not the Heads with 30
paragraphs must be the Heads that the Court considers.
Background
[3] Subsequent to the First Respondent having given Notice of Intention to
Oppose, the First Respondent had failed to file an Answering Affidavit, having
only filed same four hundred and seventy -five 474 days late. As per the

only filed same four hundred and seventy -five 474 days late. As per the
Applicant. Furthermore, the First Respondent had also delayed in seeking
condonation for such late filing, the application for condonation only having

3
been made around 16 months after the filing of the answering affidavit. Thus,
the Applicant opposes condonation for the late filing of the answering affidavit.
Late filling of the Review Application
[4] Common cause that the Award is dated 24 November 2020. Applicant admits
to having received the Award on 30 November 2020. The Third Respondent
delivered an Arbitration Award in terms of which the dismissal of the First
Respondent was found to be procedurally fair, but substantively unfair.
Further common cause that the Applicant brought an application for review
around 11 January 2021, in terms of section 145 of the Labour Relations Act
66 of 1995 (herein the LRA).
[5] The First Respondent’s argument is that the R eview Application is filed late
and condonation is not sought , and further that the Arbitration Review
Application should be dismissed with costs. Rule 7 A (5) was issued on 18
January 2020, but the record was only collected on 2 March 2021, which was
meant to have been collected within 5 days of the party being notified that it is
ready for collection. The First Respondent , in their Heads of Argument ,
argues that the Review Applicant , being the erstwhile employer, fails to
explain this delay.
1
First respondent’s dismissal
[6] The First Respondent was in the employ of the Applicant for a period of
around four (4) years at the time of his dismissal. As per the First
Respondent’s employment, as per his employment agreement, was that the
First Respondent must undergo and pass a yearly security vetting process,
which involved inter alia the passing of a polygraph test. The First
Respondent – Employee failed such a polygraph test, which constitutes a
breach of his employment agreement with the Applicant – Employer. The
Employer thus subsequently dismissed the First Respondent after the latter

1 Page 2 at para 5.

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failed a second polygraph test, after due consideration and after having been
placed on precautionary suspension.2

Late filing of the answering affidavit by the third respondent on review
[7] The common cause is that on 15 April 2021, the record was filed and the
Applicant delivered its Notice in terms of Rule 7A (8)(a), pursuant to the
Review Application. Further common cause that the First Respondent filed his
Answering Affidavit on 20 March 2023. The Applicant ‘s bone of contention
thus being that, the Answering Affidavit by the Third Respondent was filed
around 475 days late, condonation for such late filing only applied for a further
16 months later
3.Counsel for the First Respondent placed on record that their
client-employee has applied for condonation for the late filing of the
Answering Affidavit on Review and that a separate Application for
Condonation has been filed and is Opposed.
4
[8] Third Respondent further conceded that the reasons for the de lay are set out
and further concedes that the length of the delay is long and that the
explanation fails to cover some of the periods of delay. Despite same, the
Third Respondent has excellent prospects of success, thus condonation
should be granted.
Requirements for condonation argued by the applicant in relation to third
respondent’s application for condonation for late filing of answering affidavit
[9] The Applicant went into length in their Heads of Argument in relation to the
Condonation application, which the Third Respondent is to bring. 5 That the
court has a wide discretion whether condonation should be granted and has a
wide discretion which should be exercised judicially , on the consideration of
each and every case. 6 That condonation is not merely there for the asking. 7

2 Page 3 at para 13 of Applicant’s Heads of Argument.
3 Page 3 at para 16 of Applicant’s Heads of Argument.
4 Footnote 2 at page 3 of Third Respondent’s Heads of Arguments.

4 Footnote 2 at page 3 of Third Respondent’s Heads of Arguments.
5 Page 4 of the Applicant’s Heads of Argument at paras 17 until 56.
6 S v Yusuf 1968 (2) SA 52 (A) at 53.

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The court’s discretion is furthermore not absolute or unqualified and must be
exercised in accordance with certain recogniz ed principles. What is mainly
required for the Applicant is to show good cause when applying for
condonation.
[10] The Applicant then proceeded to list factors, although not exhaustive, which
have been identified as being relevant to the consideration of whether or not
an Applicant for condonation has succeeded in showing good cause f or
condonation8. The application must be made bona fide, and the Applicant
must show that it has reasonable prospects of success .9 The degree of non-
compliance and the explanation for the delay.10 The importance of the case.11
The nature of the relief sought .12 The other party’s interest in finality .13
Prejudice to the Respondent which cannot be compensated for by a suitable
costs order.14 The convenience of the court . The avoidance of unnecessary
delay in the administration of justice, and the degree of negligence of the
persons responsible for the non- compliance.15 Willful default or gross
negligence will preclude a finding of good cause.16
[11] The Applicant argued that what is clear from the First Respondent’s
Answering Affidavit in the condonation application is that the delay was solely
the result of gross negligence by the First Respondent and his erstwhile
representatives. Further that despite the contrary being clear from the papers,
the First Respondent alleges that his former attorneys were never served with

7 Uitenhage Transitional Local Council v South African Revenue Service [2003] 4 All SA 37 (SCA),
2004 (1) SA 292 (SCA) at 6.
8 TLE (Pty) Ltd v The Master of the High Court and Others 2012 (2) SA 502 (GSJ); [2011] ZAGPJHC
at para 12; Express Model Trading 289 CC V Dolphin Ridge Body Corporate [2014] 2 All SA 513
(SCA); [2014] ZASCA 17 at paras 11 and 19; Subramanian v Standard Bank Ltd [2013] JOL 30321
(KZP) at para 12; See also Gumede v Road Accident Fund 2007 (6) SA 304 (C).

(KZP) at para 12; See also Gumede v Road Accident Fund 2007 (6) SA 304 (C).
9 Marco Fishing (Pty) Ltd v Gemfarm Investments (Pty) (Ltd) and [2003] 4 All SA 614 (C) at paras 31-
33; See also Kgantsi v S [2012] JOL 29402 (SCA) at para 7.
10 Laerskool General Hendrik Schoeman v Bastian Financial Services (Pty) Ltd [2009] ZACC 12; 2009
(10) BCLR 1040 (CC) at paras 15 and 16.
11 Kgobane v Minister of Justice 1969 (3) SA 365 (A) at 369.
12 See Maloney’s Eye Properties BK en ‘n ander v Bloemfontein Board Nominees BPK 1995 (3) SA
249 (O) 253.
13 Van Wyk v Unitas Hospital (Open Democratic Cent re as Amicas Curiae ) 2008 (2) SA 472 (CC),
2008 (4) BCLR 442 at para 31; See also Laerskool General Hendrick Schoeman v Bastian Financial
Services (Pty) Ltd [2009] ZACC 12; 2009 (10) BCLR 1040 (CC) at para 16.
14 Long v Appeal Authority iro Ndlambe Municipality and o thers [2024] 1 All SA 364 (ECG) ; [2023]
ZAECMKHC 131 (ECG) at para 29.
15 Ibid.
16 Securiforce CC v Ruiters 2012 (4) SA 252 (NCK); [2011] ZANCHC 36 at para 12.

6
the papers filed pursuant to the review application. 17 First Respondent further
alleges that his former attorneys , Mohale Incorporated, seemed to not take
the matter seriously .18 The Applicant’s Attorneys argued that the allegation
was never served on the First Respondent or his former attorneys is
irreconcilable with the allegation that the former attorneys had not taken the
matter seriously. Applicant thus submitting that a clear cause of the delay lies
solely with the First Respondent and his former attorneys.
[12] Applicant submitted further that the First Respondent fails to show that he has
reasonable prospects of success. Mr Golberg argued that the First
Respondent was awarded the Award in his favor and thus have excellent
prospects of success. The Applicant argued that where there is no sufficient
prospect of success for lateness to be condoned, the interest of justice is not
served by condoning lateness.
19 That the explanation for the delay must cover
the entire period for the delay.20
[13] The Applicant conceded that the First Respondent’s explanation for the delay
constitutes the following time periods
21: 29 April 2021 - December 2021.
[14] January 2023 - December 2023, as well as the period for bringing the
condonation application the Applicant was still not convinced. Thus ,Applicant
argued that despite the Answering Affidavit indicating that the explanations
provided for the abovementioned periods cover the whole of said periods,
from a reading of the Answering Affidavit it is clear that only minute portions of
said periods are covered, notwithstanding the headings contained in the
Answering Affidavit . Thus, Applicant arguing that First Respondent having
failed to place before court sufficient facts to properly consider whether there
is good cause for the granting of the condonation.

17 Paragraph 32 of the founding affidavit in the condonation application at Page 10 of the condonation
bundle.
18 Ibid at para 43 at page 11.

bundle.
18 Ibid at para 43 at page 11.
19 Princeton Protection Services (Pty) Ltd v Western Cape Provincial Government and o thers and
related matters [2024] 3 All SA 301 (WCC) at paras 29-30.
20 eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC) ;[2013] JOL30162 (CC) at para
28; Pangbourne Properties Ltd v Pulse Moving CC and Another 2013 (3) SA 140 (GSJ); Van Heerden
and another v Master of Eastern Cape High Court , Port Elizabeth and o thers [2023] 4 All SA 875
(ECP) at para 36.
21 Paras 25-77 supra note 12 at page 8-18.

7
[15] The Applicant cited and relied on the case of Melane v Santam Insurance 22,
wherein the court held that a slight delay and a good explanation may help
compensate for prospects of success which are not strong. Argued further
that the First Respondent’s delay is by no means slight and fails to provide a
proper explanation for the delay. That the First Respondent cannot use his
lawyer’s lack of diligence as an excuse not to be penali zed by courts
23.
Further argued that where a litigant relies on the ineptitude or negligence of
his lawyer, he should show that it is not to be imputed to him.
24
[16] The Applicant further argued that some allowance must be made for bona fide
errors and omissions, and fault can only preclude relief in the event of
intentional disregard, indifference or gross negligence.25 Applicant argued that
the First Respondent argues that Review Application were not served on him ,
nor his former attorneys but appears to rely on the failures or negligence of
his former attorneys. However, Applicant argued that First Respondent cannot
simply rely on the failures or negligence of his former attorneys as there is a
general duty on a litigant to ensure that the matters in which they are involved
are properly attended to. Furthermore, the failures by his former attorneys to
properly attend to this matter do not constitute mere bona fide errors and
omissions but is tantamount to gross negligence. Thus, Applicant argued that
First Respondent cannot just sit back and do nothing and thereafter place the
blame on his former attorneys . Thus , First Respondent’s conduct with
particular reference to the delay in the filing of the Answering Affidavit , also
constitutes a gross negligence. Thus, Applicant argued that First Respondent
has not furnished the court with a reasonable explanation and cannot
reasonably expect this Court to grant him an indulgence without having
properly satisfied the requirements for condonation.
26

properly satisfied the requirements for condonation.
26

22 Melane v Santam Insurance Co. Ltd 1962 (4) SA; [1962] 4 All SA 442 (A) at 532 B-E.
23 Salojee and another, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138;
South African Express Limited v Bagport (Pty) Ltd [2020] JOL 47309 (SCA), 2020 (5) SA 404 (SCA):
where an attorney breaches court rules in flagrant and continual fashion, the attorney’s negligence is
inexcusable and condonation will not be granted.
24 Louw v Louw 1965 (3) SA 750 (E),1965 (3) SA 852 (E); Cairns’ Executors v Gaarn 1912 AD 181 at
184; Service Motor Supplies (1956) (Pty) Ltd v Fouche 1960 (3) SA 672 (W); Van Asgewen v Kruger
1974 (3) SA 204 (O) at 205; Ford v Groenewald 1977 (4) SA 224 (T).
25 Burton v Barlow Rand Ltd, t/a Barlow Tractors and Machinery Co; Burton v Thomas Barlow & Sons
(Natal) Ltd 1978 (4) SA 794 (T).
26 Page 10 at para 44 of Applicant’s Heads of Argument.

8
[17] The Applicant thus argued that the First Respondent‘s application for
condonation ought to be dismissed with costs considering the extended
period of delay. The Applicant conceded and it was further common cause
that in applications for condonation for non observance of court procedure, a
litigant is obliged to seek the indulgence of the court and whatever the attitude
of the other side and would thus have to pay for latter’s costs if it does so
oppose, unless the opposition was unreasonable.
27
[18] The issue this Court must decide on , is as to whether to grant the First
Respondent’s condonation for the late filing of their Answering Affidavit.
Latter offered costs for the day and emphasized on prospects of success and
thus, the Review must be heard as same will have been cured by a costs
order. Further that this matter has long been on the court roll as the erstwhile
employee waited for three years and the next court dates for reviews are in
2028. Rule 7 (4)(b) of the Labour Court Rules
28 states that a Notice of
Opposition and an A nswering Affidavit must be delivered within 10 days from
the day on which the application is served on the party opposing the
application. Rule 12(1) further states that The court may extend or abridge
any period prescribed by these rules on application, and on good cause
shown, unless the court is precluded from doing so by any Act. The Applicant
quoted Rule 11.6.2 of the Practice Directives which state that t hus, the First
Respondent‘s application for condonation of the late filing of the Answering
Affidavit, is hereby granted and latter is also ordered to pay costs. Thus, the
Court proceeds on the Review Application as argued by both parties on their
Heads of Arguments.
Grounds for review
[19] First Respondent’s point of departure is that the Applicant sets out various
issues with the Award but fails to set out or solidify the grounds for review.
Thus, the grounds for review varied and are not easy to follow. At paragraph

Thus, the grounds for review varied and are not easy to follow. At paragraph
52 of the Applicant’s Founding Affidavit, the latter sets out that after receipt of

27 Premier, Western Cape v Lakay 2012 (2) SA 1 (SCA) at 25; Long v Appeal Authority iro Ndlambe
Municipality and Others [2024] 1 All SA 364 (ECG); [2023] ZAECMKHZ 131 (ECG) at para 110.
28 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.

9
the record, it will address grounds of review and provide amplification.
However, the Applicant failed to file Supplementary Papers and stood by its
Notice of Motion. Argued by the First Respondent, the Applicant failed to set
out its grounds for review in any particularity , to show that the Award is one
that is susceptible to review. First Respondent argued that the Application
fails to set out why the application by the Commissioner that the sanction of
dismissal is not an appropriate sanction ,is reviewable. The First Respondent
thus argued that, in short, there are no grounds of review raised in the papers,
upon which this Court could find in the Applicant’s favor. Further in the Heads
of Argument, the Applicant solidifies the issue as whether the sanction of
dismissal is appropriate where the employee fails to obtain the necessary
vetting status .29 First Respondent argues further that it is trite that an
Applicant on Review cannot put its grounds of review in its Heads of
Argument.30
[20] It is common cause that the First Respondent failed two polygraph tests and
was dismissed for misconduct. The First Respondent argued that t he
Commissioner found that only one of the tests was legitimate and that Links
broke a known rule, in that he failed to maintain an approved vetting
clearance, and as such, he is in breach of the rule.
31 The Commissioner then
considered the sanction and found that the sanction of dismissal was
inappropriate in the circumstances . Further, the charge did not relate to any
wrongdoing by Links , but to his failure to maintain an approved security
vetting status .32 The Commissioner sets out that in such circumstances,
alternatives to dismissal would have been advisable. The Applicant submitted
that the Third Respondent has erred in its interpretation of the facts and
evidence in coming to a decision that the dismissal of the First Respondent
was substantively unfair. Applicant’s case is thus that it was justified to

was substantively unfair. Applicant’s case is thus that it was justified to

29 Applicant’s Heads of Argument page 10 at para 48.
30 Grounds of Review cannot be formulated for the first time in Heads of Argument. In Northam
Platinum Ltd v Kganyago NO and Others [2009]ZALCJHB 55, it was held that; “In my view, the law is
very clear that a ground of review raised for the first time in argument cannot be sustained. The basic
principle is that a litigant is required to set out all the material facts on which he or she relies in
challenging the reasonableness or otherwise of the commissioner’s award in his or her founding
affidavit”.
31 Pleadings Bundle page 24 – Award at para 32.
32 Pleadings Bundle page 24-Award at Para 33.

10
terminate Link’s employment , based on that there was a breach of the terms
of the employment contract. As argued by the Applicant and placing same on
record, is that the crux of the issue as regards the substantive fairness of the
dismissal ,revolves around whether or not the fact that the First Respondent
did not have the necessary approved security vetting status. As a result of his
failure to pass multiple polygraph tests successfully constitutes a basis for
termination33. Applicant cites clause 23.1 of the Employment Code and
maintains that the failure to retain an approved security vetting status whilst in
the employ of the company, is a serious breach of the Employment
Contract
34.The Third Respondent thus not in agreement that the only
appropriate sanction for failing to maintain an approved security vetting status
is dismissal, as per the Applicant.
[21] As per clause 23.1 of the Employment Agreement, it is an express condition
hereof that : “It is a condition of employment that the Employee is security
vetted by the Company prior to and during employment with the Company
and that he/she retain an approved security vetting status whilst in the employ
of the Company. Failure to retain an approved security vetting status during
employment with the company will be regarded as a serious breach of his
employment contract”. Clause 23.1 further states that:
‘The employee is required to immediately supply the Company with any
information that may negatively influence his/her security vetting status as per
the policy prior to and during employment with the company.’
Enumerated in Clause 23.1 further that:
‘The Company relies on the integrity of its employees in order to achieve its
objectives through creating an environment which is not conducive to crime…
The responsibility for the protection of the Company’s assets and interests
rests with every employee.’
[22] Applicant argued that failure to retain an approved security vetting status

[22] Applicant argued that failure to retain an approved security vetting status
constitutes the wrong and is a direct breach of the Employment Agreement.

33 Page 10 Paragraph 48 of the First Respondents Heads of Arguments.
34 Page 5 Paragraph 22 of the First Respondent’s Heads of Arguments.

11
Further, as regards whether dismissal is an appropriate sanction, regard must
be had to the reasoning behind it , being an express requirement that an
approved security vetting status be retained. Thus, failure of retaining an
approved security vetting status, brings into question whether the First
Respondent could fulfill his responsibility to protect the Company’s assets and
interests. Thus, Applicant’s case being that the only reasonable appropriate
sanction for failing to maintain an approved security vetting status was the
dismissal of the First Respondent . Further, the First Respondent cannot
continue to be entrusted with the responsibility to protect the Company’s
assets and interest, without such approved security vetting status.
[23] The Third Respondent further argues that the Applicant provides no basis as
to why it had to dismiss the Applicant , as there should always be an
alternative to dismissal , and it cannot be set out that the Applicant had no
choice but to dismiss the First Respondent , cannot be.
35 Links was not
notified to the extent he breached the employment contract, nor was he given
a chance to correct the breach. First Respondent placed on record in Link’s
Heads of Argument the case of Nongcantsi v Mnquma Local Municipality and
Others
36.
[24] The argument of the appellant’s counsel is ultimately premised on the view
that the production of a negative vetting result was tantamount to an
allegation of misconduct in respect of which the appellant, ( in terms of the
LRA and in terms of section 23(1) of the Constitution which grants to
everyone a right to fair labour practices) was entitled to a fair hearing. The
premise is fallacious. It is not misconduct because there is no breach or
alleged breach of a term of the employment agreement, which is what
misconduct, in the final analysis , constitutes. A condition is not a term of a
contract. While a condition is an external fact on which the existence of an

contract. While a condition is an external fact on which the existence of an
obligation depends, a term relates to the nature of the obligation.
37

35 Applicant’s Heads of Argument page 12 at para 58.
36 [2016] ZALAC 60.
37 See Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A); Premier of the
Free State v Firechem Free State (Pty) (Ltd) 2000 (4) SA 413 (SCA) , [2000] 3 All SA 274 (A) ; LTC
Harms “Amler ‘s Precedence of Pleadings “ (LexisNexis Butterworths; 6th Edition ) at 89.

12
[25] The Applicant argued that in considering whether a dismissal is substantively
fair the following factors are to be considered as set out in Parmalat South
Africa (Pty) Ltd v Commission for Conciliation , Mediation and Arbitration and
Others :38 In dealing with substantive fairness the respondent has to prove
inter alia the following: (a) that there is a rule in the respondent’s company
prohibiting particular behavior or offence, (b) that the applicants knew about
the said rule or could reasonabl y be expected to have known about the said
rule when the offence was committed, (c) that the said rule is legitimate and
reasonable, (d) that the said rule has been consistently applied (e) that the
applicant indeed breached the said rule, and (f) that the sanction imposed by
the employer to the applicant was appropriate under the circumstances.
[26] Further that in considering the above requirements that clause 23.1 of the
Employment Agreement states that the First Respondent must retain an
approved security vetting status , which the latter failed to do. The First
Respondent was or should reasonably have been aware of the requirement to
retain an approved security vetting status , since it was an express term of his
employment agreement. The First Respondent argued that, while the need to
pass the security vetting is part of the Employment Contract and same sets
out that failing the security vetting will constitute misconduct and the
applicable sanction is dismissal, this does not mean that the only sanction is
dismissal. The Applicant fails to set out in which circumstances the sanction of
dismissal will be appropriate. The First Respondent submitted further that the
Commissioners held that Link’s dismissal was unfair , as Applicant’s reliance
on the C ode means that the hearing and the need for mitigation were
unnecessary. Meaning, the Applicant would have just notified Links that he
failed the polygraphs, failed to maintain his vetting status and was accordingly

failed the polygraphs, failed to maintain his vetting status and was accordingly
dismissed, thus unfair . The First Respondent thus submits that the award is
reasonable and thus not reviewable; thus, the Review Application stands to
be dismissed with costs.
[27] The Applicant argued that there is a sound justification for the requirement to
retain an approved security vetting status. Thus, the rule is therefore

38 [2009] ZALC 6; [2009] 6 BLLR 558 (LC) at para 20.

13
legitimate and reasonable, and was consistently applied, as it is an express
term of the Employment Agreement. Further , the Third Respondent had
breached the rule, as failure to pass the polygraph test constituted a failure to
retain an approved security vetting status. Consequently, argued that the First
Respondent’s dismissal is the only appropriate sanction and substantively fair;
just on this basis alone, dismissal is substantively fair . Thus, Applicant is
praying for an order that reviews, sets aside and or corrects the arbitration
award issued by the Third Respondent, acting under the auspices of the
Second Respondent . CCMA case no. NC 3068/19 heard on or about 24
November 2020, be substituted, the said award for an award with an order for:
That the dismissal of the Applicant, S talin Links, is substantively and
procedurally fair.
[28] Molahlehi J (as he then was) in P rowalco ( PTY )(LTD) v C ommission for
Conciliation, Mediation and A rbitration and Others
39 held “The court is in my
view, without authority to interfere with the factual findings made by the
commissioner if such findings are supported by evidence on the record. The
authority of the court is highly limited in reviewing the fact findings made by
the commissioner in an a rbitration award. If the factual findings made by the
commissioner are prima facie lawful and reasonable, it seems to me that the
court has to defer to the commissioner’s factual findings. The court may only
interfere in a case involving a mistake of fact where it has been shown that
such a mistake is of such a nature that it can be said that it amounted to a
denial of a fair hearing for the a pplicant”. As a matter of principle , the court’s
province in dealing with factual findings of a commissioner is limited to
determining whether such findings can be sustained or supported by evidence
on the record. Put differently, the factual findings made by the Commissioner

on the record. Put differently, the factual findings made by the Commissioner
in an Arbitration Award is final and binding on the reviewing court unless it can
be shown that: (a) there is insufficient evidence on the record to support such
findings or (b) the findings were erroneously made and the error is of such a
nature that it in a material manner deprived the affected party of a fair hearing
or (c) the findings appear to be unreasonable, capricious or arbitrary or (d) the
findings are based on evidence which had inherent contradictions which the

39 [2011] ZALCPE 3 , held at Port Elizabeth P608/09.

14
Commissioner failed to reconcile and deal with. (e) The Commissioner made
the findings without resolving the material contradictions that existed in the
different versions between the parties or even those that are present in the
version of the winning party.
[29] In the present instance, the Commissioner applied his mind to the evidence
which was presented before him and, after properly evaluating it made factual
findings as he did. The findings made by the Third Respondent are not
mistakenly made, are reasonable and supported by the evidence which was
properly before him.
[30] In my view, there is no basis in the light of the above to interfere with the Third
Respondent’s Arbitration Award, and therefore the Applicant’s application
stands to fail. There is also no reason in law and fairness why the costs
should not follow the results.
[31] In the premises, I make the following order:
Order
1. The applicant’s application is dismissed with costs.

_______________________
L. Gura
Acting Judge of the Labour Court

15
TO: MR . P PEYPER
PEYPER LESSING ATTORNEYS
ATTORNEY FOR THE APPLICANT
39C FIRST AVENUE
WESTDENE
BLOEMFONTEIN
TEL : 051 011 3352
FAX :086 2255 614
E-MAIL : pieter@peyperlessing.com
REF :P PEYPER /FP0048

TO : THE REGISTRAR LABOUR COURT
TWINELL HOUSE
1
ST FLOOR
113 LOOP STREET
CAPE TOWN
8001
TEL : 021 424 9035
FAX : 021 424 9059
BY EMAIL : labourcourtcapetown@judiciary.org.za

16

AND TO : MOHALE INC. ATTORNEYS
ATTORNEY FOR THE IST RESPONDENT
389 ALEXANDER STREET
BROOKLYN
PRETORIA
TEL : 012 460 9567
BY EMAIL : grettah@mohaleatt.co.za
AND TO : COMMISSION FOR CONCILIATION ,
MEDIATION AND ARBITRATION
2ND RESPONDENT
CCMA HOUSE
5-13 COMPOUND STREET
KIMBERLY
8301
PRIVATE BAG X6100
KIMBERLY
8300
TEL : 053 831 5947/8
REF : NC3068/2019
By email- kmb@ccma.org.za

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AND TO : MARTIN RABIE N.O
3RD RESPONDENT
C/O COMMISSION FOR CONCILIATION ,
MEDIATION AND ARBITRATION
CCMA HOUSE
5-13 COMPOUND STREET
KIMBERLY
8301
PRIVATE BAG X 6100
KIMBERLY
8300
TEL : 053 836 7300
FAX : 053 831 5947/8
EMAIL : kmb@ccma.org.za
REF :NC 3068/2019
BY EMAIL :kmb@ccma.org.za

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