IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 2882/19
In the matter between:
SOLIDARITY obo FREDERICK
JOHANNES DU PLESSIS Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First
Respondent
TREVOR DENNIS WILKES N.O. Second
Respondent
ESKOM HOLDINGS SOC LTD Third
Respondent
Heard: 6 June 2024
Delivered: 26 November 2025
JUDGMENT
KUMALO AJ
2
Introduction
[1] The applicant, Solidarity, acting on behalf of its member, Mr Johannes du Plessis
(employee), approached this Court seeking an order reviewing and setting aside
the arbitration award under case number GAJB 4860- 19 dated 30 October 2019
issued by the second respondent (Commissioner) acting under the auspices of
the first respondent, the Commission for Conciliation, Mediation and Arbitration
(CCMA). The Commissioner found that the dismissal of the employee by the
third respondent, Eskom Holdings SOC Ltd (Eskom), was substantively and
procedurally fair.
[2] Eskom opposed the review on the basis that the award is reasonable and lawful.
It assert ed that the employee, though not formally appointed, acted as the de
facto contract manager for Task Order 480 (TO480) and bore accountability by
virtue of seniority. Eskom contended that the employee dishonestly influenced
the technical evaluation, promoted services beyond the scope, procured
additional resources, and negligently certified fraudulent payments, causing
substantial financial loss.
[3] It was argued that these acts contravened Eskom policies and the Public Finance
Management Act
1 (PFMA), resulting in an irretrievable breakdown of trust.
Eskom further maintained that the disciplinary process was procedurally fair, with
delays justified by a whistleblower investigation, and that dismissal was
warranted given the gravity of the misconduct and lack of contrition.
[4] On 24 January 2022, the Court struck the review application from the roll for want
of jurisdiction due to the applicant’s failure to comply with Rule 7A(6) and Rule
7A(8) by filing the record and supplementary affidavit late without condonation.
On 27 July 2022, the Court reinstated the review application, condoned the non-
compliance, and directed the Registrar to re- enrol the matter on the opposed
motion roll.
1 Act 1 of 1999.
3
Background
[5] The employee was employed by Eskom from 1 January 2007 as the Operating
Manager (M18) at Matla Power Station. In February 2015, he requested a
demotion and was seconded to the Outage Commissioning Centre as the
Outage Commissioning Manager (M16) to assist with outages at multiple power
stations. During this secondment, he reported to Senior Manager Joe Koeberg
and was tasked with drafting technical specifications for the TO480 contract, a
professional services contract intended to address Eskom’s shortage of
commissioning resources.
[6] The allegations were that the employee prepared technical specifications and
participated in evaluating technical proposals alongside two other Eskom
employees. He only assessed technical aspects, not financial or commercial
elements, and recommended ACBO Services CC as the preferred supplier. The
procurement process and contract award were handled by Eskom’s Commercial
Department. The TO480 contract was valued at R60,041,120 (excluding VAT),
scheduled for 15 September 2015 to 31 March 2018, but was terminated early on
31 December 2016 due to budget depletion. The employee signed the task
order as the “Requesting Manager,” while the official contract manager was listed
as Nomvula Dikgale or her assistant, Mduduzi Nene.
[7] Furthermore, a conflict of interest was declared in November 2015 when it
emerged that Mr Koeberg Senior (employee’s line manager) was the father of the
ACBO’s director. Ms Carel Cronje replaced Mr Koeberg Senior as Cost Centre
Owner in April 2016. After his secondment ended in May 2016, the employee
returned to Matla but later secured a CCMA settlement, upgrading him to M16
and placing him permanently in Outage Management by September 2016.
[8] Budget issues arose when the TO480 contract funds were exhausted
prematurely. The employee requested additional funds in October 2016 but was
denied. On 11 July 2018, he was served with a notice to attend a disciplinary
denied. On 11 July 2018, he was served with a notice to attend a disciplinary
hearing, found guilty on all charges on 29 January 2019, and dismissed on
4
15 February 2019. He then referred the matter to the CCMA. The impugned
arbitration award is a consequence of the arbitration proceedings on that
dismissal dispute referred to the CCMA and served before the Commissioner.
The arbitration award
[9] The Commissioner noted that the dispute arose from the TO480 contract, a
professional services contract valued at approximately R60 million, awarded to
ACBO Services CC for outage- related consulting services between
15 September 2015 and 31 March 2018, but which was terminated prematurely
on 31 December 2016 after the funds were depleted. The employee, who was
seconded to Eskom’s Outage Commissioning Centre in February 2015, was
accused of acting as a de facto contract manager despite not being formally
appointed.
[10] The Commissioner found that although Eskom failed to formally appoint the
employee as contract manager, his seniority and active involvement in managing
the TO480 contract rendered him accountable under Eskom’s policies and his
duty of good faith. The Commissioner concluded that the evidence had
established that the employee dishonestly influenced the technical evaluation
between August and September 2015 by favouring ACBO, permitted services
outside the contract scope during 2016, played a role in sourcing additional
resources, and negligently certified fraudulent payment assessments, causing
significant financial loss.
[11] This was because, first, between August and September 2015, the employee
dishonestly influenced the technical evaluation by favouring ACBO, awarding full
marks despite their resources lacking the required qualifications, and permitting
outsourcing to Dunamis Power, an unapproved supplier. Second, during the
contract period, he allowed ACBO resources to be deployed for normal
commissioning at Komati Power Station, outside the contract scope, contributing
to early budget exhaustion.
5
[12] Third, he played a material role in sourcing additional resources, including
administrative staff, contrary to the agreed scope. Fourth, he negligently certified
payment assessments containing fraudulent claims, such as inflated
accommodation costs and hours not worked, resulting in irregular expenditure
exceeding R341,000. The fifth charge alleged a contravention of the PFMA by
approving payments for Foreign Material Exclusion (FME) work outside the
scope; however, the C ommissioner found FME essential for outage
recommissioning and ruled this charge unproven. This was because Foreign
Material Exclusion was found to be essential for outage recommissioning and not
wasteful expenditure.
[13] The Commissioner held that Eskom failed to follow its own appointment protocols
but emphasised the applicant’s seniority and duty of good faith. Furthermore, the
Commissioner noted that although a delay occurred in initiating discipline,
charges were only served on 11 July 2018 following a whistleblower -triggered
forensic investigation; the delay was justified and did not render the process
unfair.
[14] The hearing was procedurally sound, and the applicant’s persistent denial
indicated a lack of contrition . The Commissioner found that the delay did not
prejudice the applicant’s ability to defend himself. The disciplinary hearing was
fair, and the applicant , in his defence, persisted in his denials, which Eskom
considered. Given the seriousness of the misconduct, the financial impact, and
the irretrievable breakdown of trust, dismissal was deemed an appropriate and
reasonable sanction, and no relief was granted. Accordingly, the Commissioner
concluded that the dismissal was both procedurally and substantively fair.
Grounds of review
[15] The applicant contends that the Commissioner committed misconduct and gross
irregularities under section 145(2)(a) of the Labour Relations Act
2 (LRA) by failing
to consider the uncontested evidence that the employee was never formally
to consider the uncontested evidence that the employee was never formally
2 Act 66 of 1995, as amended.
6
appointed as the contract manager and lacked authority and requisite training in
terms of Eskom policy. The applicant submits that the award is reviewable on
grounds of unreasonableness and material misdirection, alleging that the
Commissioner misconstrued material evidence and failed to apply his mind to
uncontested facts, including that the employee was neither formally appointed
nor met Eskom’s prescribed training requirements for the role.
[16] Further, Eskom’s own witnesses conceded that no written appointment existed,
and documents identified the employee only as the “Requesting Manager.”
Despite this, it was contended that the C ommissioner found him to be the de
facto contract manager and accountable. Despite Eskom’s own witnesses
conceding that no written appointment existed, the Commissioner erroneously
inferred accountability solely from the a pplicant’s seniority and participation as a
requesting manager. This inference disregarded Eskom’s policies and
procedures, which require formal designation and training to assume contract
management responsibilities.
[17] The applicant further highlights inconsistencies in the Commissioner’s reasoning
regarding training, accountability, and sanction, contending that dismissal was
disproportionate compared to lighter sanctions imposed on other employees for
similar misconduct. The Commissioner also contradicted himself by
acknowledging that the employee was unaware of relevant policies and training
requirements, yet holding him accountable for breaches of those same policies.
[18] The applicant further contends that the award contains internal inconsistencies
regarding sanction, noting that dismissal was not a decision that a reasonable
decision-maker would have reached, followed by a conclusion that dismissal was
fair. It was contended that t he Commissioner failed to weigh inherent
probabilities between the applicant’s version and Eskom’s version and
probabilities between the applicant’s version and Eskom’s version and
disregarded evidence that other accountable role players were neither disciplined
nor called to testify, resulting in an inconsistent application of discipline.
7
[19] It was contended that t hese errors and irregularities materially distorted the
enquiry and produced an outcome falling outside the band of decisions a
reasonable arbitrator could reach based on the evidence presented. Lastly, the
applicant persisted with the contention that the delay in charging the employee
(from 2015 to 2018) constituted procedural unfairness, even though the
Commissioner accepted Eskom’s explanation that the delay was due to a
whistleblower-triggered forensic investigation.
Discussion
[20] The applicant contends that the Commissioner’s findings are vitiated by material
irregularities and that these alleged errors permeate all charges and taint the
outcome. It is argued that, had the Commissioner properly applied his mind, he
would have concluded that the employee lacked both authority and requisite
training for contract management and therefore could not reasonably be held
liable for related breaches. It was argued that without these irregularities, a
different result would have ensued, rendering the award unreasonable and
susceptible to review.
[21] The Labour Appeal Court has held that irregularities in arbitration proceedings
render an award unreasonable only if they are material and affect the outcome.
A material error is one that, but for the mistake, would have produced a different
result, indicating prima facie unreasonableness. In review proceedings, the court
must assess the nature of the decision, relevant considerations, and competing
interests to determine whether a fair balance was achieved under the LRA.
While posing the correct question is essential, an incorrect answer alone does
not render the award unreasonable. However, where an error distorts the inquiry
or impedes a fair trial of issues, the award may be set aside.
3 The Labour
Appeal Court in Gold Fields Mining held as follows:
3 Head of the Department of Education v Mofokeng and Others [2014] ZALAC 50; [2015] 1 BLLR 50
3 Head of the Department of Education v Mofokeng and Others [2014] ZALAC 50; [2015] 1 BLLR 50
(LAC); (2015) 36 ILJ 2802 (LAC) at para 31- 33; see also Gold Fields Mining South Africa (Pty) Ltd (Kloof
Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others [2013] ZALAC 28; [2014]
1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at 20.
8
Where the arbitrator fails to have regard to the material facts , it is likely that he or
she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow
proper process, he or she may produce an unreasonable outcome (see Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2)
SA 311 (CC)). But again, this is considered on the totality of the evidence, not on
a fragmented, piecemeal analysis. As soon as it is done in a piecemeal fashion,
the evaluation of the decision arrived at by the arbitrator assumes the form of an
appeal. A fragmented analysis rather than a broad-based evaluation of the
totality of the evidence defeats review as a process. It follows that the argument
that the failure to have regard to material facts may potentially result in a wrong
decision has no place in review applications. Failure to have regard to material
facts must actually defeat the constitutional imperative that the award must be
rational and reasonable- there is no room for conjecture and guesswork.
4
[22] The Court held that an error of fact or the weight accorded to a fact does not, in
itself, justify interference. The decisive question is whether the error results in an
unreasonable outcome. The review test remains whether the award falls within a
range of decisions that a reasonable decision- maker could reach. Process-
related irregularities, including factual mistakes, only warrant setting aside the
award if they distort the inquiry or prevent a fair trial of issues.
5 As aptly stated in
the South African Rugby Union,6
…The test is not whether the arbitrator’s award meets the precision that might be
expected from a judgment of the Labour Court. It is one thing to argue that such
a mistake justifies a different result on appeal, but a very different approach must
be taken, when in a case such as the present, the decision of third respondent is
the subject of a review.
the subject of a review.
[23] The applicant’s criticism to the effect that the Commissioner’s conclusion
regarding the employee’s knowledge of the applicable rule lacks foundation. It
4 Gold Fields Supra at para 20.
5 Nyathikazi v Public Health and Social Development Sectoral Bargaining Council and Other 5 [2021]
ZALAC 11; [2021] 8 BLLR 778 (LAC) at para 21.
6 South African Rugby Union v Watson and Others [2018] ZALAC 57; (2019) 40 ILJ 1052 (LAC); [2019] 7
BLLR 638 (LAC) at para 33.
9
must be accepted that, as the Commissioner found, the employee, as a senior
official within a parastatal, must have been aware of procurement prescripts,
arguendo including those derived from section 217 of the Constitution and given
effect through the PFMA and related statutes. Even in the absence of formal
training, it should have been apparent that fair, equitable, competitive, and cost -
effective procurement processes do not permit favourable remarks towards one
bidder over others on the technical evaluation template without a justified basis.
The employee disregarded these policies, and no legitimate basis for the
comments exists. The Commissioner cannot be faulted for inferring that the
employee was aware of the obligations governing public procurement,
particularly in light of his seniority, which rendered such an inference plausible.
[24] In the present matter, the contention advanced is that, although the
Commissioner acknowledged that the employee did not formally occupy the
position of contract manager, Eskom’s non- compliance with its own internal
policies did not preclude the attribution of accountability to him. The
Commissioner, relying on the employee’s seniority and experience, inferred that
he assumed responsibility for the management of the contract. In the absence of
evidence indicating instructions from an appointed contract manager, the
Commissioner concluded that the employee acted as the de facto contract
manager, notwithstanding the absence of a formal appointment.
[25] The applicant argues that the Commissioner’s reasoning is unreasonable. This
is because Eskom’s policies require formal training for contract managers, which
the employee never completed, making it impossible for him to assume that role.
By inferring that the employee was the de facto contract manager solely based
on seniority, the Commissioner disregarded clear evidence of Eskom’s systemic
non-compliance and unfairly shifted accountability. The contention was that t his
non-compliance and unfairly shifted accountability. The contention was that t his
inference was speculative and ignored the fact that other designated role players,
who bore direct responsibility, were not disciplined, resulting in inconsistency and
a failure to apply fairness. It was argued that t hese errors render the award
reviewable.
10
[26] It must be accepted that Eskom correctly contended that the applicant pursued
this review in a piecemeal fashion, contrary to repeated cautions by the Labour
Appeal Court, including in Gold Fields , which emphasises a holistic assessment
of the award rather than isolating individual errors. 7 The fixation on whether the
employee was a de facto contract manager is immaterial to these review
proceedings. Eskom correctly assert ed that the employee discharged all
responsibilities associated with that role, including completing the technical
evaluation template, authorising payment to ACBO Services CC by signing off on
invoices and time sheets submitted by the contractor.
[27] Additionally, he served as the contact person for ACBO Services CC and was
aware of the budget status, including its depletion, and applied for its
modification. Eskom correctly argues that the employee’s lack of formal training
does not absolve him, as he performed duties inherent to a contract manager.
Compliance with material policies and the PFMA was therefore required, and the
absence of training can only operate as a mitigating factor. The Commissioner
further noted that no evidence implicated the alleged official contract managers ,
Messrs Bhima, Sihole, or Dikgale, in any transaction related to the TO480
contract.
[28] It is reasonable to conclude that any individual engaging in the transactions
attributed to the employee is bound by the provisions of the PFMA, as well as by
a duty of good faith and adherence to ethical standards. An assertion of
inadequate training cannot excuse the failure to exercise due diligence in matters
affecting the employer. Accordingly, the Commissioner’s finding that the
employee acted as a de facto contract manager, or that he owed a duty of good
faith to Eskom irrespective of his designation, is justified in light of his conduct
throughout the duration of the TO480 contract.
[29] The applicant maintains that the lack of training for contract management
[29] The applicant maintains that the lack of training for contract management
responsibilities impacts accountability, citing common cause evidence that the
7 Gold Fields supra f(n) 3.
11
employee had no prior knowledge of technical evaluation before the TO480
contract and misunderstood the scoring methodology. Eskom correctly argued
that this review conflates appeal and review, as the Commissioner expressly
acknowledged the employee’s lack of training. However, as Eskom rightly
contends, that factor did not absolve the employee from complying with the
prescripts; it can only serve as mitigation.
[30] The applicable prescripts were intended to prevent the very irregularities that
occurred, including manipulation of technical evaluations to favour ACBO,
authorising work beyond contractual scope, procuring additional resources
contrary to the agreement, certifying fraudulent claims, incurring irregular
expenditure, and approving payments for work not performed. Such conduct is
wrongful and cannot be excused by an alleged lack of training. This is more so
because, despite being ill -equipped, the employee assumed and executed
functions consistent with those of a contract manager. It is untenable for an
employee to unilaterally undertake responsibilities with statutory implications and
subsequently plead immunity based on inadequate training.
[31] The Commissioner correctly acknowledged both the employee’s inadequate
training and Eskom’s failure to comply with its PFMA obligations. However, as
affirmed by the Labour Appeal Court in Makuleni ,
8 the proper inquiry in review
proceedings is not whether the reasoning was correct, but whether the outcome
is one that a reasonable decision -maker could reach. This means that errors or
imperfections in reasoning do not, in themselves, warrant interference unless
they render the result unreasonable. The Labour Appeal Court held as follows:
…demands reflection in order to digest the essence of the exercise that a
commissioner embarks upon. The court asked to review a decision of
commissioner must not yield to the seductive power of a lucid argument
commissioner must not yield to the seductive power of a lucid argument
that the result could be different. The luxury of indulging in that temptation
is reserved for the court of appeal. At the heart of the exercise is a fair
8Makuleni v Standard Bank of South Africa Ltd and Others [2023] ZALAC 4; (2023) 44 ILJ 1005 (LAC);
[2023] 4 BLLR 283 (LAC) at para 4.
12
reading of the award, in the context of the body of evidence adduced and
an even-handed assessment of whether such conclusions are untenable.
Only if the conclusion is untenable is a review and setting aside
warranted.9
[32] In the present matter, the applicant accepts the Commissioner’s findings that the
employee lacked adequate training, performed the relevant duties, and that such
duties carried statutory obligations. The applicant, however, disputes the
Commissioner’s evaluation of evidence concerning the employee’s annotations
on the Technical Evaluation Template, which were central to the awarding of the
contract to ACBO. Although the employee asserted that assigning a score of 10
to all bidders was an honest misunderstanding, his written remarks indicated that
ACBO’s project manager possessed “precisely the expertise required,” while
observing that a competing bidder’s equivalent resource “would require extensive
training.”
[33] As held by the Labour Appeal Court in Mofokeng, defects in an arbitrator’s
reasoning, such as failure to apply the mind, reliance on irrelevant
considerations, or omission of material factors , do not automatically render an
award reviewable. Such flaws must be assessed to determine whether they
disclose a misconception of the true inquiry or culminate in an unreasonable
outcome. The governing test remains whether the decision falls within a range of
outcomes that a reasonable decision-maker could reach:
.…If but for an error or irregularity a different outcome would have resulted, it will
ex hypothesi be material to the determination of the dispute. A material error of
this order would point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the decision in issue; the
range of relevant factors informing the decision; the nature of the competing
interests impacted upon by the decision; and then ask whether a reasonable
interests impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the LRA. Provided
9 Makuleni ibid at para 4.
13
the right question was asked and answered by the arbitrator, a wrong answer will
not necessarily be unreasonable…10
[34] Accordingly, since an error that materially affects the outcome may indicate prima
facie unreasonableness, however, where the arbitrator posed and answered the
correct question, an incorrect answer alone does not render the decision
unreasonable. The applicant concedes the significance of the remarks on the
Technical Evaluation Template yet seeks to challenge the Commissioner’s
findings. In this regard, Eskom correctly asserts that the Commissioner
addressed the proper question, whether the comments constituted dishonesty,
given that both bidders proposed the same individual, yet the employee’s
remarks unjustifiably favoured ACBO Services CC.
[35] It must be accepted that the allegations concern unethical and unlawful conduct.
Conduct such as manipulating technical evaluations to favour ACBO, authorising
work beyond contractual scope, procuring additional resources contrary to
agreement, certifying fraudulent payment claims, incurring irregular expenditure,
and approving payments for work not performed are patently irregular . As the
Commissioner observed, the employee’s seniority imposed a duty to appreciate
the consequences of such conduct, which cannot, by any stretch, be justified,
particularly during a period marked by systemic malfeasance within parastatals in
the Republic. Accordingly, such conduct cannot be countenanced.
[36] The employee could not approve invoices while simultaneously disregarding the
prescripts governing such conduct. He had the option to decline approval and
escalate the matter to the managers he now asserts were the appropriate
contract managers and could have deferred the request for budget modification
to the rightful contract manager. Instead, as Eskom contended, he
recommended ACBO Services CC as the preferred bidder, approved defective
invoices, and sought budget expansion. The employee cannot thereafter claim
invoices, and sought budget expansion. The employee cannot thereafter claim
10 Mofokeng supra f(n) 3at para 33.
14
immunity based on ignorance. It follows that the breaches were deliberate and
were uncovered years later through the intervention of a whistleblower.
[37] Having considered all these factors, it is immaterial whether this Court would
have reached a different conclusion on the facts. The proper inquiry is whether
the Commissioner identified the dispute for arbitration, understood its nature,
addressed the substantial merits, and rendered a decision that a reasonable
decision-maker could reach on the evidence. Apart from the applicant’s
disagreement with the Commissioner’s treatment of the remarks and ultimate
conclusions, his conduct cannot be faulted. The Commissioner’s findings were
based on his assessment of the remarks, and as emphasised in Mofokeng, the
correctness of that assessment is inconsequential in review proceedings.
Accordingly, t he applicant has effectively blurred the distinction between an
appeal and a review, and its contentions are without foundation.
[38] Lastly, regarding the sanction, the applicant alleged an inconsistency in
challenging the fairness of dismissal. The Commissioner addressed this
contention, noting that the applicant referred to two employees, Wannenburg and
Koekemoer, who were not dismissed but received short, unpaid suspensions
despite charges involving dishonesty. The Commissioner found these cases
distinguishable from the present matter and observed that no evidence was
adduced regarding mitigating or aggravating factors in those instances. He
concluded that there was no inconsistent appli cation of discipline, although he
remarked that Eskom does not generally apply the principle that dishonesty
automatically destroys the trust relationship. Ultimately, he held that the
differences in circumstances justified the divergent sanctions.
[39] In this regard, the Commissioner reiterated that the employee acted as a de facto
contract manager and, by virtue of his seniority and experience, bore significant
contract manager and, by virtue of his seniority and experience, bore significant
responsibility for the administration of the contract. The misconduct in question
encompassed dishonesty, irregular expenditure, and negligence, conduct which
the Commissioner correctly regarded as serious and fundamentally inconsistent
15
with Eskom’s values and ethical standards. The Commissioner further accepted
Eskom’s evidence that the trust relationship had irretrievably broken down,
rendering the continuation of the employment relationship untenable.
[40] The employee maintained his denial of wrongdoing throughout, which the
Commissioner regarded as an aggravating factor precluding rehabilitation. The
misconduct carried financial implications and reputational risks for a state- owned
entity, reinforcing the need for severe sanctions . The Commissioner concluded
that the combination of seniority, proven dishonesty, lack of contrition, and the
breakdown of trust justified dismissal as appropriate and proportionate. These
reasons are significant, as inconsistency is not a standalone ground for unfair
dismissal; rather, it is one of several factors considered in assessing overall
fairness.
11
[41] In this case, the Commissioner considered both mitigating and aggravating
circumstances, assessed the gravity of the misconduct and the employee’s
seniority, and concluded that dismissal was fair. This determination was based
on the facts and the Commissioner’s finding that similarities in misconduct
among other employees did not outweigh the relevant distinguishing factors.
Overall, the Commissioner evaluated all circumstances relating to the
appropriateness of the sanction and determined that dismissal was justified.
[42] This issue is inextricably linked to the question of contrition. The applicant
contends that the employee’s persistent denial of culpability ought not to be
regarded as an aggravating factor in assessing fairness. This argument is
manifestly self-serving. The employee has demonstrably failed to appreciate the
seriousness of the misconduct, thereby rendering the application of progressive
discipline inappropriate. He has not acknowledged that his conduct, namely,
making unsolicited annotations on the technical evaluation template, authorising
making unsolicited annotations on the technical evaluation template, authorising
payment for work not performed, and requesting an extension of the TO840
contract, constituted a breach of established public procurement standards.
11 South African Commercial Catering and Allied Workers Union and others v Irving & Johnson Limited
[1999] ZALAC 7; 2002 (3) SA 250 (LAC) at para 29.
16
Such conduct is particularly egregious given the seniority of his position. In these
circumstances, the Commissioner’s finding that the employee exhibited a lack of
remorse is beyond reproach.
[43] Lastly, the applicant contends that the dismissal was procedurally unfair due to
Eskom’s delay in instituting disciplinary proceedings. He argues that fairness
requires disciplinary steps to be taken without undue delay and that the
prolonged lapse compromised his ability to prepare a proper defence, causing
material prejudice, particularly regarding the first charge. The applicant submits
that Eskom’s explanation for the delay was inadequate and that the
Commissioner erred in failing to accord proper weight to this factor. In his view,
the delay compromised the integrity of the process and should have led to a
finding of procedural unfairness.
[44] The Commissioner correctly found that the dismissal was procedurally fair,
observing that any prejudice occasioned was confined to a single charge and
was immaterial, as it related to information already within the applicant’s
knowledge. Moreover, it was noted that Eskom provided a cogent explanation
for the delay, namely that the misconduct only came to light following a whistle-
blower disclosure and that a comprehensive investigation was required
thereafter.
[45] It is well established that, in assessing the fairness of a delay, the inquiry must be
holistic and context sensitive, and such an assessment requires consideration of
multiple factors, including the duration of the delay, the explanation proffered, the
assertion of rights, the extent of any material prejudice, and the seriousness of
the misconduct. It has been reiterated that the evaluation of the delay is not a
mechanical exercise, but a value judgment informed by fairness. These factors
must be weighed collectively, recognising that the gravity of the offence and the
explanation for the delay may justify its length in appropriate circumstances.
12
explanation for the delay may justify its length in appropriate circumstances.
12
12 See Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others
[2019] ZACC 3; (2019) 40 ILJ 773 (CC); 2019 (4) BCLR 506 (CC); [2019] 6 BLLR 524 (CC) ; see also
17
[46] Applying these principles to the present matter, the Commissioner accepted
Eskom’s explanation and correctly concluded that the delay did not vitiate the
fairness of the process. There exists no basis upon which to interfere with the
Commissioner’s findings. On the objective facts, the bulk of the misconduct only
emerged following a whistle-blower disclosure, rendering it impossible for Eskom
to initiate an investigation at an earlier stage. It is common cause that the whistle-
blower’s evidence substantiated the majority of the charges, and the necessity to
address such conduct arose only thereafter. In these circumstances, the review
application is devoid of merit on all grounds and falls to be dismissed.
[47] In conclusion, having considered the totality of the evidence and the applicable
legal principles, this Court is satisfied that the Commissioner correctly identified
the dispute, applied the appropriate test, and arrived at a decision that falls within
the range of outcomes that a reasonable decision- maker could reach. The
applicant’s grounds of review amount to an impermissible attempt to convert a
review into an appeal. There is no material irregularity that has been
established, nor has unreasonablenes s been demonstrated. The review
application is accordingly without merit and falls to be dismissed.
Costs
[48] The determination of costs must be made considering both statutory provisions
and the principles of fairness. This Court cannot allow its court roll to be
encumbered by matters that, in substance, constitute appeals masquerading as
reviews. In the present case, the applicant, a registered trade union represented
by legal practitioners, seeks to impugn the commissioner’s findings in a
piecemeal fashion without demonstrating any procedural irregularity or
unfairness. This is in circumstances where t he Commissioner duly evaluated all
evidence presented and, notwithstanding the length of the award, complied with
evidence presented and, notwithstanding the length of the award, complied with
Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited [2019] ZACC 15; 2019 (6) BCLR
661 (CC); 2019 (4) SA 331 (CC); Altech Radio Holdings (Pty) Limited and Others v City of Tshwane
Metropolitan Municipality [2020] ZASCA 122; 2021 (3) SA 25 (SCA).
18
the requirements of section 138(1) and (2) of the LRA, thereby reflecting a
comprehensive and reasoned approach.
[49] A review application instituted after a full and fair arbitration hearing, where the
evidence was properly ventilated, and the Commissioner delivered a reasoned
award, undermines the principle of finality envisaged in section 143 of the LRA.
Manifestly, such conduct frustrates the statutory objectives of expeditious and
cost-effective dispute resolution. An applicant who persists in litigation despite
these safeguards warrants censure through an appropriate costs order to deter
similar abuse of process.
[50] In the present matter, Eskom was compelled to defend an ill -founded application
notwithstanding its full participation in the arbitration proceedings.
Considerations of fairness, legal principle, and the integrity of the arbitration
system therefore justify the imposition of costs against the applicant.
Accordingly, the applicant, Solidarity, is ordered to pay the costs of opposing the
review application.
[51] In the premises, the following order is made:
Order:
1. The application to review and set aside the arbitration award under case
number GAJB 4860-19 dated 30 October 2019 issued by the second
respondent is dismissed with costs.
___________________
M. Kumalo
Acting Judge of the Labour Court of South Africa
19
APPEARANCE:
For the applicant: W.P. Bekker SC, instructed by Serfontein Viljoen &
Swart Attorneys.
For the third respondent: Z. Ngwenya, instructed by Magagula George
Mcetywa Incorporated.