THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR377/23
In the matter between:
TWO RIVERS PLATINUM (PTY) LIMITED Applicant
and
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION (AMCU) OBO THABO MECWI First Respondent
HERALD NTALE-MATSEPE N.O. Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Third Respondent
Heard: 11 September 2025
Delivered: 10 December 2025
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JUDGMENT
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RAJAH, AJ
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Introduction
[1] This is a review application brought in terms of section 145 of the Labour
Relations Act 1 (LRA). The applicant seeks to review and set aside the
arbitration award issued by the second respondent under case number
LP7385-22 on 30 January 2023.
Factual background
[2] The first respondent, Mr Thabo Mecwi , represented by the Association of
Mineworkers and Construction Union (AMCU), was employed by the applicant
as an electrician at the mine’s main shaft.
[3] He was dismissed on 12 August 2022, having been employed by the applicant
since 14 April 2010. On 23 June 2022, the charge related to an incident on 23
June 2022, where he clocked in but failed to proceed to his workplace. He
was found guilty and dismissed for gross insubordination or insolence.
[4] He then referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration (CCMA). The second respondent,
acting as commissioner, issued an arbitration award on 29 January 2023.
[5] The applicant now seeks to review and set aside that award. In particular, the
applicant requests this Court to substitute the arbitration award with a finding
that the dismissal of Mr Mecwi was fair. In the alternative, the applicant seeks
an order remitting the dispute to the CCMA for a hearing de novo. No order as
to costs is sought.
[6] The commissioner and the CCMA abide by the decision of this Court.
Grounds for review
[7] The grounds for review are set out in paragraphs 24 to 42 of the founding
affidavit, which highlight four areas. In summary, the applicant contends as set
out below.
1 Act 66 of 1995, as amended.
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[8] First, the commissioner failed to apply his mind to the material facts before
him. In particular, he disregarded the testimony of Mr Mmadi , who instructed
Mr Mecwi to proceed underground after he had finished eating, as they had to
follow up on deviations.
[9] In his analysis of the evidence, the commissioner further failed to consider Mr
Mmadi’s challenge to Mr Mecwi’s version. While Mr Mecwi testified that he did
not attend to his workplace underground because he was not feeling well, the
commissioner failed to resolve this contradiction.
[10] That t he commissioner went so far as to ask Mr Mecwi’s representative to
provide a version as to whether Mr Mecwi was medically fit or not, thereby
straying beyond his role as arbitrator.
[11] That although the commissioner was aware that Mr Mecwi had received a
medical certificate indicating that he was fit to work, he nevertheless accepted
the employee’s explanation without subjecting it to scrutiny. The applicant
contends that this constituted a material misdirection, especially given that the
medical evidence was said to be unchallenged.
[12] That the commissioner committed a material error of fact , which rendered the
proceedings irregular. It was never testified by Mr Nalane, the charge hand,
that Mr Mecwi was instructed not to go underground. In essence, the
commissioner failed to address why Mr Mecwi had disregarded the instruction
of his supervisor.
[13] The applicant further submits that Mr Nalane was not the only person entitled
to give instructions to Mr Mecwi, and that this fact was disregarded by the
commissioner in his analysis.
[14] That the commissioner failed to properly assess the probabilities of the
respective versions and to identify contradictory testimony given by Mr Mecwi.
Despite Mr Mecwi’s admission that he had his radio in his possession at all
times and was available to work if required, the commissioner chose to ignore
this aspect of the evidence.
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[15] In addition, Mr Nalane testified that Mr Mmadi reprimanded Mr Mecwi for not
reporting that he had completed his medical review. This evidence, the
applicant contends, should have been considered by the commissioner. Mr
Mecwi’s version on this issue was inconsistent with his other testimony.
[16] In essence, the applicant argues that there were several conflicting
contradictions in the testimony which the commissioner failed to recognise or
weigh properly, and that this failure materially affected the reasonableness of
the award.
[17] The applicant takes issue with the commissioner’s acceptance of the version
of the second witness, who was the direct report of the supervisor. By
contrast, the testimony of the first witness was not corroborated by anyone on
the issue that there were tasks allocated to the applicant.
[18] The applicant submits that the commissioner’s approach was contradictory:
while he accepted the second witness’s version, he simultaneously stated that
he could not take such evidence at face value.
[19] The applicant further argues that the commissioner speculatively preferred the
version that Mr Mecwi had not assumed that Mr Mmadi had given him the
relevant instruction. On this basis, the commissioner concluded that he could
find no fault with the employee’s conduct under the circumstances. The
applicant contends that this reasoning amounted to pure speculation,
unsupported by the evidence, and therefore constituted an irregularity.
Applicable legal principles
[20] Section 188 of the LRA provides that a dismissal is unfair if the employer fails
to prove that the reason for dismissal is a fair reason related to the
employee’s conduct or capacity, or based on the employer’s operational
requirements, and that the dismissal was effected in accordance with a fair
procedure.
[21] In review proceedings under section 145 of the LRA, the Court does not
enquire into the correctness of the commissioner’s decision but into its
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reasonableness. The test, as formulated in Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others ,2 is whether the decision reached by the
commissioner is one that a reasonable decision- maker could not reach on the
material before him.
Evaluation
[22] From the facts , it can be deduced from the evidence of the second witness,
Mr Patrick Nalani, that the commissioner considered aspects of his testimony
in the arbitration award. The employee, Mr Mecwi, Mr Nalani, acting as charge
hand, assisted the foreman, and they knew their line of instructions well.
[23] The record shows that there was communication between Mr Nalani, in his
capacity as charge hand, and Mr Mecwi regarding the latter’s whereabouts on
the day in question. This aspect of the evidence forms part of the Court’s
overall assessment of whether the commissioner’s findings were reasonable,
as explained below.
Oral submissions
[24] This Court had the benefit of hearing argument from Mr Van As , who
appeared for the applicant, and Mr Cook , who appeared for the first
respondent. Both counsel relied on their comprehensive heads of argument,
which they referred to in oral submissions.
[25] In essence, Mr Van As submitted that there was no merit in the
commissioner’s decision. The central issue, he argued, was that the
employee had failed to report underground where he was required to be.
Counsel further contended that the employee’s conduct gave the impression
of belittling his supervisors and loitering rather than attending to his duties as
an electrician.
[26] Mr Cook, on the other hand, emphasised that there was no work to be
performed at the time in question. He pointed out that witnesses had testified
to the effect that no instruction had been given to the employee to proceed
2 [2007] 12 BLLR 1097 (CC).
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underground. Counsel urged the Court to bear in mind that arbitration
proceedings are not conducted by lawyers, and that the commissioner’s
approach must be assessed holistically rather than technically.
[27] Mr Cook further submitted that the commissioner properly considered that the
employee had been performing other functions, and that this Court, sitting as
a review court, ought not to interfere with the commissioner’s factual findings.
In reply, Mr Van As maintained that the employee was not paid to do union
work but to perform his duties as an electrician, and that, at the very least, he
should have sought out work to do.
Conclusion
[28] Having considered these submissions in the context of the record and the
award, I am not persuaded that the applicant has demonstrated reviewable
irregularities sufficient to vitiate the commissioner’s award. None of the
grounds advanced establish that the commissioner’s decision is one that a
reasonable decision-maker could not have reached.
[29] In the result, the review application must fail.
[30] In the premises, the following order is made:
Order
1. The application to review and set aside the arbitration award issued
under case number LP7385-22 is dismissed.
2. There is no order as to costs.
_____________________
S Rajah
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: AJ Van As
Instructed by: Cliffe Dekker Hofmeyr Inc
For the First Respondent: AL Cook
Instructed by: LDA Incorporated