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[2025] ZALCJHB 590
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SAMWU obo Scheepers v Mangaung Metro Municipality and Others (JR2709/21) [2025] ZALCJHB 590 (23 December 2025)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No:
JR2709/21
(1)
Reportable: No
(2)
Of interest to other Judges: No
(3)
Revised
23/12/2025
In
the matter between:
SAMWU obo TS
SCHEEPERS
Applicant
and
MANGAUNG
METROPOLITAN MUNICIPALITY
First Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
TL
MABUSELA
N.O.
Third Respondent
Heard
:
2 September 2025
Delivered
:
23 December 2025.
Summary:
An application to review and set aside an award issued in the absence
of
viva voce
evidence and which incorrectly recorded a
disputed issue as common cause. The award is reviewable because
evidence was required
to resolve the disputed facts regarding the
inconsistent application of discipline.
JUDGMENT
GANDIDZE, J
Introduction
[1]
This is an
application in terms of section 145 of the Labour Relations Act
[1]
(LRA), to review and set aside an arbitration award issued by the
third respondent commissioner, under the auspices of the second
respondent, the South African Local Government Bargaining Council
(SALGBC), in case number FSD031716, dated 25 October 2021. The
arbitration award found that the dismissal of the applicant employee,
Ms TS Scheepers (Scheepers), represented herein by her union,
the
South African Municipal Workers Union (SAMWU), was substantively
fair. The award is sought to be reviewed and set aside, and
substituted with an order that the dismissal was substantively unfair
for failure to apply discipline consistently, and that Scheepers
be
reinstated with full retrospective effect, or that Scheepers be
awarded the maximum compensation of 12 months. In the alternative,
the applicants seek an order remitting the matter to the SALGBC for a
de novo
hearing.
[2]
The first respondent, Mangaung Metropolitan Municipality (the
Municipality), filed an answering affidavit but failed to file heads
of argument in accordance with this Court’s directive dated 3
September 2024. On the hearing date, there was no appearance
for the
Municipality. Mr Du Preez, for the applicants, informed the Court
that contact had been made with the Municipality’s
attorneys of
record, Molefi Thoabala Attorneys, and that the telephonic feedback
was that the attorney who had been dealing with
the matter had left
the firm and that no one knew the status of the file. In
circumstances where Molefi Thoabala Attorneys did
not file a notice
of withdrawal as attorneys of record, and the notice of set down for
the hearing of the review application was
served at the email address
reflected in the notice of opposition, I was satisfied that the
Municipality’s attorneys were
properly notified of the hearing.
[3]
The review application was filed two weeks late, and the applicants
sought condonation, which was not opposed. The delay is attributed
to
a SAMWU union official who has since left SAMWU. The delay was not
excessive, and the explanation is reasonable.
Prima facie
, the
applicants have prospects of success, and accordingly, condonation
for the late filing of the review application is granted.
Background
facts
[4]
The applicant’s papers do not set out the background to the
matter, and the background facts below have been extrapolated
from
the court file.
[5]
Scheepers
and another employee, T Mkhonto (Mkhonto), both cashiers, were
dismissed on 3 February 2017 for breaching Schedule 2:
Code of
Conduct for Municipal Staff Members, issued under the Local
Government: Municipal Systems Act
[2]
.
That Schedule provides that a staff member of a municipality must at
all times perform the functions of office in good faith,
diligently,
honestly and in a transparent manner. More specifically, both
Scheepers and Mkhonto under-banked the Municipality’s
money,
which they took for themselves.
[6]
Initially, their arbitration proceedings were consolidated, and the
parties signed a pre-arbitration minute setting out,
inter alia
,
the common and disputed facts.
[7]
The common cause facts include the charges against Scheepers and
Mkhonto, their being found guilty by the chairperson of the
disciplinary
inquiry, and their admissions of misconduct. The facts
in dispute were whether, at the disciplinary hearing, Scheepers and
Mkhonto
pleaded guilty to the charges, whether they had acted
dishonestly, and whether the Municipality had consistently applied
the rule
and the appropriate sanction for the misconduct. The
pre-arbitration minute also records the only issues the commissioner
was required
to decide, namely, whether dismissal was the appropriate
sanction and, if not, the relief.
[8]
On 2 July 2021, Commissioner Van Wyk recused herself from Scheepers’
matter after it emerged that, on a previous occasion,
Scheepers had
lied about her mother’s passing to secure a postponement of the
matter, thereby committing contempt of the
SALGBC. She continued with
Mkhonto’s matter and found her dismissal substantively fair.
The entire transcript of Mkhonto’s
matter, the commissioner’s
handwritten notes, and the award in Mkhonto’s matter formed
part of the review record. In
oral argument, Mr Du Preez, for the
applicants, submitted that the court should not have regard to the
contents of that transcript,
as it was irrelevant to the issues to be
decided. This raises the question of why those documents formed part
of the record when
only the record relevant to determining a review
application must be placed before the Court.
[9]
Be that as it may, Scheepers’ matter was allocated to
Commissioner Mothusi Maje (Maje), who issued an award dated 17 July
2017, dismissing Scheepers’ dismissal claim. The award was
successfully challenged on review, as per the order of Mahosi
J dated
25 November 2020 (without reasons). It was explained that the award
was reviewed because Scheepers’ representative
was refused an
opportunity to challenge evidence introduced by the Municipality’s
witness in reply. The matter was remitted
to SALGBC for a
de novo
hearing.
[10]
Commissioner Mabusela, the third respondent in these proceedings, was
assigned the matter, and it is his award that is sought to
be
reviewed and set aside.
The
award by Commissioner Mabusela
[11]
The award records that the parties agreed that the facts were common
cause, that no
viva voce
evidence was necessary, and that the
commissioner may base his award on the evidence in the bundle of
documents and the heads of
argument. The Municipality’s heads
of argument formed part of the review record, but the applicants’
heads of argument
did not, despite the applicants being
dominis
litis.
Fortunately, the Municipality attached the applicants’
heads of argument to their answering affidavit.
[12]
The award records the issues for determination as (i) whether, in
dismissing Scheepers, the Municipality acted inconsistently,
having
regard to how Portia Rapudi (Rapudi), who committed similar
misconduct, was treated; (ii) whether Scheepers and Rapudi committed
the same misconduct; and (iii) the relief to be granted to Scheepers.
[13]
After recording the ‘common cause facts’, the
commissioner distinguished Scheepers’ case from Rapudi’s
on the basis,
inter alia
, that (i) while Scheepers took money
from the Municipality, Rapudi took money from a member of the public,
and (ii) while Rapudi
pleaded guilty to the charge at the
disciplinary hearing and was therefore remorseful, Scheepers
initially admitted to the offence
but at the disciplinary hearing
pleaded not guilty and was therefore not remorseful. The conclusion
was that Scheepers’ dismissal
was fair.
Grounds
of review
[14]
It was submitted that, in dismissing Scheepers, the Municipality
acted inconsistently, as Rapudi, who had similarly kept for herself
money received from a member of the public for municipal services and
later reversed the transaction in the system, had not been
dismissed.
It was also said that Scheepers intended to repay the R3500, or that
the amount was subsequently paid. Submissions were
also made that the
award is reviewable, as the commissioner decided the matter without
the benefit of oral evidence and in the
absence of a stated case, and
that the commissioner’s finding that it was common cause that,
in the disciplinary hearing,
Scheepers pleaded not guilty is
incorrect. Finally, it was further submitted that no evidence was
placed before the commissioner
supporting the conclusion that there
had been a breakdown of the trust relationship, rendering continued
employment intolerable.
[15]
In the applicants' heads of argument, only two grounds are advanced.
These are addressed next.
No
oral evidence
[16]
The main
ground of review is that the arbitrator issued an award without
requiring the parties to present oral evidence and without
a stated
case setting out the common cause facts. It was submitted that the
award is therefore a nullity, and reliance was placed
on the
decisions in
Kgoale
v Thaba Chweu Local Municipality and Others
[3]
,
SA Social Security Agency v National Education Health & Allied
Workers Union on behalf of Punzi and Others
[4]
and
Arends
and Others v SA Local Government Bargaining Council and
Others
[5]
(
Arends
)
.
[17]
The Labour
Appeal Court has addressed the issue of awards issued in the absence
of
viva
voce
evidence or a stated case. In
Motor
Industry Staff Association & Another v McCarthy Ltd &
Others
[6]
(MISA),
the
Labour Appeal Court referred to three of its earlier decisions.
[18]
The first was
Arends,
which found that the enquiry had been
undertaken in the wrong manner, hence an irregularity, because the
parties required the commissioner
to determine a matter without oral
evidence or a written statement of facts, in circumstances where the
facts were insufficient.
[19]
The other
was
Public
Servants Association and Others v Minister of Correctional Services &
Others
[7]
(PSA),
which
found the award unreasonable because it was issued in the absence of
agreed facts relevant to the determination of the issue.
[20]
The third
was
Intestate
Bus Lines (Pty) Ltd v Phakwe & Others
[8]
(Interstate),
where
the Court found that, in a matter concerning the appropriateness of a
sanction, even though no oral evidence had been led,
the parties
placed the disciplinary record before the arbitrator, which contained
the key evidence, including the aggravating and
mitigating
circumstances and the chairperson’s reasons for imposing the
sanction of dismissal. Therefore, on those facts,
the commissioner
could determine the matter without
viva
voce
evidence or a stated case.
[21]
After referring to those decisions, the court in
MISA
stated
this:
‘
[15]
Contrary to what the court a quo might have held, this court did not
contradict in
Interstate
what
it had held in
Arends
and
in
PSA
.
It
is self-evident from all those decisions that the principle remains
the same, but every case has to be decided on its own facts.
What
might be adequate and sufficient in one matter may not be adequate or
sufficient in another, and vice versa. All depends on
the facts and
circumstances of the particular matter that is being dealt with
.
(own underlining)
[16]
In
Interstate
there was an agreement on the factual matrix,
and it was adjudged by this court to have been sufficient in the
light of the facts
of that particular matter. The question the court
a quo had to determine was whether what was put before the arbitrator
by agreement
between the parties, was sufficient and adequate for the
arbitrator to properly and fairly determine the dispute in this
matter.’
[22]
After referring to the parties' cases as set out in the pleadings,
the Court held:
‘
[25]
In the light of those facts, it is unclear how the court a quo could
have come to the conclusion, in
effect, that the parties had agreed
on the factual matrix; or perhaps, more pertinently, that, as
far as the facts were concerned,
the present matter was ‘on all
fours’ with the facts in
Interstate
.
In that matter, in contrast to the present, there
was no dispute about the relevant facts to be utilised or imported to
sustain
the cases made by the parties there.’
[23]
The court also found that the Court
a quo
erred in concluding
that it was open to the arbitrator to extrapolate facts from the
disciplinary record in the absence of the parties'
agreement to that
effect, and that the arbitrator should have refused to determine the
matter solely on the heads of argument,
without agreement on a set of
relevant facts or stated facts, and that agreeing to determine the
matter as per the parties' request
constituted an irregularity.
[24]
Therefore, my understanding of the law, as set out by the Labour
Appeal Court, is that while some cases cannot be arbitrated in
the
absence of
viva voce
evidence or a stated case, others can be
arbitrated without either. The determining factor is whether
sufficient facts are before
the commissioner. Such facts can be
placed before the commissioner by a stated case or a pre-arbitration
minute. The facts can
also be agreed upon before a commissioner. The
question that arises in the present matter is whether sufficient
facts were placed
before the commissioner to enable him to determine
the inconsistency argument.
[25]
The award records that the proceedings were held over two days, on 14
September 2021 and 15 October 2021. The postponement ruling
dated 14
September 2021 records that, on that occasion, the matter was
adjourned to 15 October 2021 because the Municipality’s
representative was indisposed.
[26]
The applicants’ founding affidavit is silent on what happened
on 15 October 2021, except to state that no
viva voce
evidence
was led and that there was no stated case placed before the
commissioner. The applicants’ affidavit also fails to
mention
the pre-arbitration minute I referred to above.
[27]
The Municipality’s answering affidavits record that, according
to Mokhali, who represented the Municipality in those proceedings,
the parties informed the commissioner that ‘
there were (sic)
very little in dispute
’, and that the common cause facts
were as set out in SAMWU’s heads of argument, which the
Municipality attached to
the answering affidavit. The deponent
further states that ‘
I take it that these common cause facts
were recorded by the third respondent also while they were discussing
them as according
to Mr Mokhali, he was writing during the process
and these facts are set out in his judgment. Mr Mokhali indicated
that there was
a recording device in the room, whether the discussion
were (sic) recorded, we do not know. I submit that although there
were (sic)
not a formal document that contained the common cause
facts or bearing the heading ‘stated case’, these common
cause
facts were discussed and agreed upon
.’
[28]
The applicants did not file a replying affidavit addressing the
above, specifically the contention that there was a discussion
and
agreement on the common cause facts, as noted in the award, and that
there was a recording device in the room. One would have
expected the
transcript of those proceedings, as well as the commissioner’s
written notes, to have been filed as part of
the record. For reasons
that are not explained, none of these documents were filed as part of
the review record. Therefore, the
record placed before the Court was
incomplete to that extent.
[29]
Be that as it may, it is common cause that the parties informed the
commissioner that
viva voce
evidence was unnecessary because
there were few facts in dispute. The issue for determination was
whether the Municipality had
been inconsistent in its treatment of
Rapudi and Scheepers.
[30]
SAMWU’s heads of argument in the arbitration proceedings set
out certain facts relating to Rapudi’s matter, which the
commissioner relied on to distinguish Scheepers' case from Rapudi’s.
Whether those facts were sufficient to determine the
matter is
irrelevant, given that the commissioner erroneously found it common
cause that Scheepers pleaded not guilty at the disciplinary
hearing,
when this was not the case, an issue raised as a second ground of
review. This error influenced the commissioner’s
finding that
Rapudi’s case was distinguishable, rendering the award
reviewable.
[31]
I also note from the award that the commissioner referred to cases of
other employees dismissed for the same misconduct as Scheepers,
including Mkhonto, but disregarded this information as new evidence
not addressed in SAMWU’s heads of argument, which the
parties
agreed contained the common cause facts. This is another reason why
the matter must be remitted to the SALGBC, so that
all that
information may be placed before a commissioner to determine whether
the Municipality applied discipline inconsistently,
as Scheepers
claimed.
[32]
It is also unclear from the award whether the pre-arbitration minute
filed in respect of the consolidated Mkhonto and Scheepers
matters
was considered, or whether it should have been.
[33]
In my view, all of the above render the award reviewable.
Failure
to determine the dispute between the parties
[34]
I have addressed this issue briefly above, but I address it in more
detail as a separate ground of review.
[35]
In concluding that Scheepers’ dismissal was substantively fair,
the commissioner took into account,
inter alia
, that it was
common cause that, at the disciplinary hearing, Scheepers pleaded not
guilty to the charges, unlike Rapudi, who pleaded
guilty and was not
dismissed. The question is whether the commissioner was correct in
recording the common cause facts, and, if
not, whether, because there
was a dispute on this issue, the commissioner was required to hear
evidence on it.
[36]
The applicants refer to SAMWU’s heads of argument in the
arbitration proceedings, which record one of the issues in dispute
as
‘
whether the applicant (Scheepers) admitted guilt, be it
when she was informed of the discovery of her misconduct or during
the disciplinary
inquiry
.’
[37]
Interestingly, those heads of argument also record that it was
unclear from the chairperson's ruling what Scheepers’s plea
was, but that the ruling indicates that Scheepers admitted her
wrongdoing.
[38]
In its heads of arguments in the arbitration proceedings, the
Municipality submitted that in the disciplinary hearing, Scheepers
pleaded ‘
innocent’
.
[39]
I also note from the pre-arbitration minute, filed when the Mkhonto
and Scheepers matters were to be dealt with together, that
it records
one of the facts in dispute as ‘
Whether the applicants
pleaded not guilty to the charges and/or allegations of misconduct at
their disciplinary hearings
’.
[40]
Therefore, to the extent that the commissioner found it common cause
that Scheeper pleaded not guilty in the disciplinary proceedings,
this finding is incorrect. The parties were in dispute over the
issue, and evidence was required to resolve it.
[41]
The award is reviewable for that reason.
Relief
[42]
The applicants sought an order substituting the arbitration award
with an order that Scheepers’s dismissal was substantively
unfair because Rapudi was not dismissed for similar misconduct. But
to do so would be to fall into the same trap the commissioner
did. It
cannot be said that this court is in as good a position as the
commissioner to make a finding on the substantive fairness
or
otherwise of Scheepers' dismissal when there are disputes of fact
that must still be resolved. It follows that the only appropriate
order is one remitting the dispute to the SALGBC for a fresh hearing
before a commissioner other than the third respondent.
[43]
However, given that this will be the third arbitration hearing, the
issues for determination must be confined to (i) the consistency
issue, specifically whether, in dismissing Scheepers, the
Municipality acted inconsistently with how it had treated other
employees
guilty of similar misconduct, and whether any such
inconsistency renders Scheepers' dismissal substantively unfair, and
(ii) the
relief to be granted to Scheepers, if any.
[44]
In the premises, the following order is granted.
Order
1.
The arbitration award issued by the third
respondent under the auspices of the South African Local Government
Bargaining Council
in case number FSD031716, dated 25 October 2021,
is hereby reviewed and set aside.
2.
The dispute is remitted to the second
respondent for a
de novo
hearing before a commissioner other than the third respondent to
determine whether the Mangaung Metropolitan Municipality applied
discipline inconsistently and, if any, the relief to be granted to TS
Scheepers.
3.
There is no order as to costs.
T Gandidze
Judge
of the Labour Court of South Africa
Appearances
For the
applicant:
Mr T Du Preez
Instructed
by:
Kramer Weihmann Inc
For the first
Respondent: Molefi Thoabala Attorneys (No appearance)
[1]
Act
66 of 1995, as amended.
[2]
Act 32 of 2000.
[3]
(JR
2863/19) [2021] ZALCJHB 224 (11 August 2021).
[4]
(2015)
36 ILJ 2345 (LC)
[5]
(2015)
36 ILJ 1200 (LAC).
[6]
(2021)
42 ILJ 117 (LAC).
[7]
[2017]
4 BLLR 371 (LAC).
[8]
(JA27/15)
[2016] ZALAC 58
(22 November 2016).