THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C521/2020
In the matter between:
GAYE URSULA RAUBENHEIMER Applicant
and
WESTERN CAPE EDUCATION DEPARTMENT First Respondent
JACOBUS DU PLESSIS NO Second Respondent
EDUCATION LABOUR RELATIONS COUNCIL Third Respondent
Heard: 10 September 2025
Delivered: 2 December 2025
Summary: Review of award, criteria met, award set aside. Award substituted
- dismissal substantively unfair - applicant reinstated.
JUDGMENT
2
DANIELS J
Introduction
[1] This application is brought under section 145 of the Labour Relations Act
No. 66 of 1995 to review and set aside the arbitration award (“award”) of
the second respondent issued on or about 30 September 2020 , under
case number PSES320 -19/20 WC . The applicant seeks an order
reviewing and setting aside the award, substituting the award with a
finding that her dismissal was substantively unfair and ordering her
reinstatement.
1
Material facts
[2] The facts are largely common cause:
2.1 The applicant was an educator, in the employ of the first respondent
(the “Department”) and has been an educator for thirty -three years.
Prior to her dismissal, the applicant was the deputy principal of the
Pacaltsdorp Senior Secondary School, Western Cape.
2.2 On Friday 25th May 2018, Mr Ronaldo Mostert (“Mostert”) one of the
learners taught by an educator, Ms Letitia Steenkamp (“ Ms
Steenkamp”) approached Ms Steenkamp with other learners to
recover the cellular phone, Ms Steenkamp had confiscated from
another learner, Mr Leroy Herman. Ms Steenkamp was reluctant to
release the phone and instead handed the learners letters addressed
to their parents.
2.3 The first respondent alleges that the applicant asked Ms Steenkamp
to identify Mostert, who had accused her husband of forcing him out
1 Pleadings, p42, para 10
3
of the classroom. The first respondent alleges that the applicant said
to Mostert : “jy is ‘n skeelgat en dis hoekom j y so dom is ”. It is
common cause that Mostert has a squint in one eye.
2.4 The applicant was charged with using degrading language directed
at a learner, in breach of section 18(1) of the Employment of
Educators Act, alternatively conducting herself in an improper,
disgraceful, or unacceptable manner by insulting a learner. The
applicant pleaded not guilty to the charge.
2.5 A disciplinary hearing was held, at which the Department called
numerous witnesses to prove its case. It called several learners who
were allegedly present at the time of the incident to confirm its
version that the applicant had insulted Mostert in their presence.
However, Mostert was not called.
2.6 During the disciplinary hearing, allegations were made that the
principal and Steenkamp had fabricated the case against the
applicant to get rid of her. Further allegations were made that the
applicant had attempted to interfere in the disciplinary process to
have the charges against her dropped.
2.7 The applicant was found guilty, and dismissed, on or about 24 April
2019. The applicant appealed, and when that was unsuccessful, she
referred a dispute concerning the substantive fairness of her
dismissal to the Education Labour Relations Council (“ELRC”).
2.8 The arbitration was conducted at the ELRC between September
2019 and September 2020. In the arbitration:
4
2.8.1 The Department called as its witnesses Ms Steenkamp, Mr
Clifton Titus (the principal), Mr Deon Rowland Achilles (the
presiding officer of the disciplinary hearing) and Ms Gersham
Pick. Again, the Department did not call the complainant,
Mostert. Nor did it did call the learners which had supported
its version at the disciplinary hearing.
2.8.2 In addition to two staff members, the applicant called three
learners, Ms Jaydene Morris (“Jaydene”), Mr Chad Morris
(“Chad”) and Mr Hendrico Stuurman (“Stuurman”). The
learners all testified that it was Steenkamp who had uttered
the offensive comments and not the applicant.
2.9 The commissioner noted, in para 61 of the award, that the applicant’s
representative had informed the arbitration that he would be
consulting the learners before they testified. Accordingly, so the
commissioner reasoned, it is likely and probable that the learners
were coached to suit the applicant’s case.
2.10 The commissioner noted, in para 62 of the award, that the applicant
had actively tried to influence the complainants to withdraw the case
against her . This, reasoned the commissioner, is inconsistent with
someone who wants to defend themselves honestly.
2.11 The commissioner, in para 63 of the award, in sweeping terms,
states that the evidence of the learners has no credibility. However,
thereafter, he only addresses the evidence of Jaydene and why he
does not accept her evidence. He mentions that Chad and Stuurman
both testified that Jaydene was not present during the incident. He
provides no basis to reject the evidence of Chad and Stuurman who
testified that the offensive comments were made by Steenkamp and
not the applicant.
5
2.12 The commissioner found that the Department had proven its case on
a balance of probabilities , and the applicant’s dismissal was
substantively fair.
Issues arising
[3] It is necessary to consider the grounds of review raised in the founding
and supplementary affidavits. The applicant alleges that:
3.1 The commissioner committed irregularities in the conduct of the
arbitration, committed irregularities in relation to his duties as an
arbitrator,
3.2 The commissioner failed to apply the normal rules to resolve mutually
destructive factual disputes,
3.3 The commissioner was improperly influenced by what occurred at the
disciplinary hearing and failed to advance a reasonable basis to
either reject the version of the applicant’s witnesses or to accept the
version of the first respondent’s witnesses,
3.4 The commissioner failed to properly consider the evidence of her
witnesses,
3.5 The commissioner arrived at an unreasonable outcome considering
all the evidence.
6
Legal principles and analysis
[4] In relation to awards of the CCMA and Bargaining Councils , the test on
review is settled. The court must ask whether the “arbitration award [is]
one which no reasonable commissioner could reach on the material
before him or her?” The test is known as the ‘ reasonableness test’ or the
‘Sidumo test’ named after the citation.2
[5] What is a reasonable outcome will be determined by the facts of each
case. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism and others3 the Constitutional Court held:
“[45] What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a
fair procedure will depend on the circumstances of each case. Factors
relevant to determining whether a decision is reasonable or not will
include the nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the decision, the
reasons given for the decision, the nature of the competing interests
involved and the impact of the decision on the lives and well -being of
those affected. Although the review functions of the Court now have a
substantive as well as a procedural ingredient, the distinction between
appeals and reviews continues to be significant . The Court should take
care not to usurp the functions of administrative agencies. Its task is to
ensure that the decisions taken by administrative agencies fall within the
bounds of reasonableness as required by the Constitution.”
(own emphasis)
[6] The court on review need not consider every issue raised at arbitration.
Instead, the court must decide whether the commissioner considered the
principal issue before him/her ; evaluated the evidence presented, and
the outcome is reasonable.4
2 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
3 2004 (4) SA 490 (CC) at para [45]
3 2004 (4) SA 490 (CC) at para [45]
4 Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others (2014) 35 ILJ 943 (LAC)
at paras [15] and [16]
7
[7] Provided that the commissioner asks the right question, and applies his
mind to the issues, the award is not reviewable merely because the
outcome is incorrect. The court must guard against using the correctness
test in reviews, except where this is mandated by the nature of the
issue.
5
[8] When applying the review test, the court follows a logical sequence.
8.1 First, it must be determined if there is a failure or error on the part of
the commissioner.
8.2 Second, where there are errors, it must be shown that, but for the
errors, the outcome would have been different. 6 Errors of fact, by
themselves, may not be sufficient to vitiate the award. What matters
is the materiality of the errors.
[9] Importantly, it is only where the award cannot be sustained on any of the
evidence properly before the commissioner that the review will succeed.
7
This principle is recognized in Sidumo at para 119.
[10] More recently, the Constitutional Court, in Vodacom (Pty) Ltd v Makate
and another8 (“Vodacom”) held as follows
“The duty of proper consideration is an integral component of the fair
hearing right. The founding constitutional value of the rule of law and
section 34 of the Bill of Rights require, in my view, that a court should
have regard to all material evidence and all material submissions
bearing on the issues it must decide. And the court must bring its
5 Bestel v Astral Operations Ltd & others [2011] 2 BLLR 129 (LAC) at para [18]
6 Fidelity Cash Management Service (2008) 29 ILJ 964 (LAC) at para [96] ; Head of the
Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) at paras [32] and [33]
7 Campbell Scientific Africa (Pty) Ltd v Simmers and others (2016) 37 ILJ 116 (LAC) at para 32 ;
Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and others (2015) 36 ILJ 1453
(LAC) at para 12.
8 (CCT 51/24) [2025] ZACC 13 (31 July 2025) at para 45
8
reasoning to bear on those material issues and reach a conclusion on
them. The evaluation of the evidence and reasoning may – as I say –
be erroneous, but there cannot be a fair hearing in compliance with the
rule of law and section 34 if proper consideration of the matter before
the court has not occurred
.” (own emphasis)
[11] Given that the reasons included in the award acts as the first indication of
whether the evidence and submissions made by the parties’ received
due consideration, Vodacom held that:
“… the reasons should deal with the substantial points which have been
raised; include findings on material questions of fact; refer to the
evidence or other material upon which those findings are based; and
provide an intelligible explanation of the process of reasoning that has
led the judge from the evidence to the findings and from the findings to
the ultimate conclusion.” (own emphasis)
Analysis of the grounds of review
[12] First a brief recap on the applicable evidential principles. It is trite that, in a
civil case, the question is whether the plaintiff’s evidence is, on the
probabilities, correct. 9 It is only where a consideration of the probabilities
fails to indicate where the truth probably lies, that the court need have
regard to an estimate of relative credibility (of witnesses) apart from the
probabilities.
10 Where the court has regard only to demeanour and not the
probabilities, this constitutes a misdirection. 11 The probabilities must be
assessed inter alia on all the relevant evidence using a blend of common
sense, logic and judicial experience. Though it is correct that two
contradictory versions cannot both be correct, the contradiction itself does
not indicate which version is correct and which not. Minor inconsistencies
9 Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA
11 (SCA) ([2002] ZASCA 98)
10 National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440 – 441
10 National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440 – 441
11 Body Corporate of Dumbarton Oaks v Faiga 1999 (1) SA 975 (SCA) at 979
9
in the testimony is not a basis to reject all the evidence. What matters is
whether the essential features of the story that the witness tells is true.12
[13] The commissioner was required to consider the totality of the evidence
and not merely focus on evidence convenient to the anticipated outcome.
Here, the commissioner failed to consider the evidence of two learners
who testified that the applicant had not made the offensive comment s.
These witnesses explained why they had testified to the contrary at the
disciplinary hearing. Their evidence was of key importance and required
proper consideration. Their evidence could not simply be swept aside as
the commissioner did when he stated: “ I have absolutely no credibility in
the evidence by the learners ”. The duty of proper consideration, as
articulated by Vodacom , required a reasonable explanation for the
rejection of their evidence.
[14] The commissioner failed to consider the implications of Mostert’s failure to
testify. In my view, this failure is significant . When a material witness, who
is available, is not called, the question arises whether an adverse
inference should be drawn. In Brand v Minister of Justice &
another
13 Ogilvie Thompson JA (as he then was) stated: “Now where a
witness, who is available and able to elucidate the facts, is not called by a
party such failure ‘leads naturally to the inference that he fears that such
evidence will expose facts unfavourable to him ’.” That the commissioner
failed to apply this trite principle is irregular.
[15] The commissioner failed to consider the evidence from Stuurman that the
principal had offered him inducements to implicate the applicant. A lthough
this evidence is summarised by the commissioner in para 50 of the award,
it play ed no role at all in the evaluation of the evidence. This omission
12 Santam Bpk. v Biddulph 2004 (5) SA 586 (SCA) at 592
13 1959 (4) SA 712 (A) at 715
10
indicates that the commissioner failed to properly apply his mind to the
issues and failed to apply the normal principles to resolve disputes of fact.
[16] The first respondent bore the onus of proving the misconduct and,
thereafter, proving that the sanction of dismissal was appropriate and fair .
The commissioner was required to consider the probabilities of the
mutually destructive versions. He ought to have considered if the principal
was ‘threatened’ by the applicant as deputy principal, as suggested by at
least one witness, he ought to have considered if the circumstances of the
learners during 2018, and 2020, differed and whether this could have
accounted for the change in their versions , he ought to have considered
whether it was more probable that Steenkamp uttered the offensive
comments given that she ( Steenkamp) had clashed with the learners a
short while earlier.
[17] The commissioner, when evaluating the evidence, must take into
consideration inter alia whether the witness has an interest in the subject
matter of the evidence and the outcome of the matter. This consideration
should have been considered in relation to all the witnesses whether they
be the learners (or former learners), the educators, or the principal.
[18] The commissioner should have resolved the factual dispute as to whether
Ms Pick was present when the incident occurred. Ms Pick testified that she
was, but the applicant denied this, as did Jaydene. This was important
because Ms Pick was the only staff member who could have corroborated
Steenkamp.
[19] The commissioner placed significant emphasis on the applicant’s attempt
to end the disciplinary process . However, the commissioner failed to
consider that the applicant invited a witness to accompany her when she
met Mostert at his house. Further , she met Mostert in the presence of his
family and requested him to withdraw the case. The commissioner did not
11
consider that the applicant did not attempt to cover up her approach to
Mostert. While the evidence suggests that the applicant did attempt to
influence the disciplinary process, this is no indication that the applicant
was untruthful in her version of the events.
[20] The commissioner’s statement that the learners who testified were likely
coached is, with respect, bizarre. It is customary to consult with your
witnesses before they testify. If the evidence of those witnesses is
consistent, this is no indication that such consistent is artificial, false or
constructed.
[21] Given the materiality of the errors in the award, and the commissioner’s
irregular approach to the evidence, the award is one that no reasonable
decision maker could reach. In the circumstances, the award falls to be
reviewed and set aside.
[22] Absent the evidence of the complainant, proving the misconduct on a
balance of probabilities was always going to be a challenging task . The
educators, such as Steenkamp, were subordinates of the applicant and
their own interests were at play . Their evidence must be viewed in that
prism. The evidence of the learners however, particularly if they are no
longer being schooled, was more likely to be trustworthy and reliable. I
believe an adverse inference should be drawn from the first respondent’s
failure to call the complainant. In the circumstances, having considered the
evidence, where there are contradictions with the first respondent’s
witnesses, I accept the version of Stuurman and Chad.
Conclusion
[23] In the circumstances, I make the following order:
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23.1 The arbitration award issued by the second respondent, under ELRC
case reference PSES320-19/20WC, is reviewed and set aside,
23.2 The award is substituted with a ruling that the dismissal of the
applicant is substantively unfair,
23.3 The first respondent is ordered to reinstate the applicant, on the
same terms and conditions of employment , without loss of benefits,
with effect from the date of her dismissal,
23.4 There is no order as to costs.
RN Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant
Adv DM Nyathi
Jansen Inc Attorneys
For the First Respondent
Adv R Nyman SC
State Attorney