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[2026] ZALCCT 10
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IMATU obo Sauls v City of Cape Town and Others (C485/2024) [2026] ZALCCT 10 (22 January 2026)

THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
C
ase
No:
C485/2024
In
the matter between:
IMATU obo YANNICK
SAULS

Applicant
and
THE
CITY OF CAPE
TOWN
First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL (SALGBC)
Second Respondent
COMMISSIONER ELVISO
ADAMS N.O.
Third Respondent
Heard
:
15
October 2025
Delivered
:
22
January 2026
Summary: Review
application - off duty misconduct - sanction.
JUDGMENT
MKHATSHWA, AJ
Introduction
[1]
This is an
opposed review application in terms of section 145(2) of the Labour
Relations Act
[1]
. The Applicant
seeks the following order:
1.1.
reviewing
and setting aside the award of the Third Respondent issued under case
number WCM 022408 dated 4 November 2024 and delivered
on 6 November
2024 (the award).
1.2.
substituting
the award with a finding that the Applicant’s dismissal was
substantively unfair and
1.3.
granting
the Applicant the primary remedy of retrospective reinstatement
without any loss of remuneration or benefits.
Background
facts
[2]
The
Applicant started his employment with the First Respondent on 19
December 2019 on the Extended Public Works Programme. He occupied
the
position of a Learner Law Enforcement Officer, earning an annual
salary of R206 075.00 per annum.
[3]
He
was charged with the following counts of misconduct:
‘
Charge 1 -
It is alleged that on or about 30 June 2023, whilst off duty, you
committed an act of gross misconduct when you got arrested
at the
corners of Mike Pienaar and Tienie Meyer Roads, for driving your
private vehicle whilst being under the influence of alcohol.
Charge 2 - It is alleged that on or
about 30 June 2023, whilst off duty, you committed an act of gross
misconduct when you failed
to act in the best interests of the
municipality when you brought the name of the City of Cape Town into
disrepute when you mentioned
to the SAPS member(s) during your arrest
that the traffic officers who affected your arrest are doing so to
one of their own.’
[4]
Following
on a disciplinary hearing, the Applicant was found guilty on both
counts. He was issued with a sanction short of dismissal
in respect
of charge 2 (failing to act in the best interests of the
municipality), and he was given a 3 days suspension without
pay as a
sanction. He was dismissed on 23 November 2023 in respect of charge 1
(driving his private vehicle whilst being under
the influence of
alcohol).
[5]
He
challenged the substantive fairness of his dismissal on the basis
that the sanction was too harsh for an off-duty incident, coupled

with the fact that another official in similar circumstances was
reinstated through an arbitration award that was not taken on
review
by the First Respondent.
[6]
The
Third Respondent found that the dismissal of the Applicant was
substantively fair, and he dismissed the Applicant’s unfair

dismissal claim.
Grounds of review
[7]
The
Applicant seeks to review the award on the following grounds:
7.1.
The dismissal was too harsh on the facts in that:
7.1.1.  No
reasonable arbitrator could have concluded that dismissal was an
appropriate sanction where the evidence showed
that such conduct
occurred in the Applicant’s private life, after hours, off duty
and in his own vehicle and in civilian
clothing.
7.1.2.  There was no
justification for a zero-tolerance approach to be taken by the First
Respondent or the Third Respondent,
in respect of first-time conduct
of this nature.
7.1.3.  The outcome
is unreasonable on account of the harshness of the sanction alone, as
no reasonable arbitrator could have
found that dismissal was
appropriate on these facts.
7.2.
Misunderstanding the legal principles for discipline for off-duty
conduct in that:
7.2.1.  The Third
Respondent committed an error of law when he found that the First
Respondent was entitled to discipline and
dismiss the Applicant for
conduct that took place whilst he was off duty. That there was no
sufficient nexus established between
the off-duty conduct and a
continued employment relationship, and the
7.2.2.  The Third
Respondent found that there was sufficient nexus established solely
by virtue of the fact that the Applicant
was employed as a Learner
Enforcement Officer.
7.3.
Taking irrelevant ‘aggravating’ factors into account:
Alleged attempt to evade detection in that:
7.3.1.  The Third
Respondent misconducted himself when he held that the circumstances
surrounding the Applicant’s arrest
had aggravated his
misconduct
7.3.2.  The Third
Respondent embarked on a lengthy analysis of the Applicant’s
explanation for the reason he travelled
after having two beers, how
he selected the route and how he may have acted at the traffic light
at a certain point.
7.3.3.  He concluded
that he preferred a version of the arresting officers over that of
the Applicant on the probabilities.
7.3.4.  The sequence
of events leading up to the Applicant’s arrest were not in
issue before him, yet he came to the
conclusion that the Applicant
had apparently attempted to evade detection.
7.4.
Taking irrelevant ‘aggravating’ factors into account:
Operational Risk, the ability to drive
an employer vehicle and the
Applicant’s ability to apply his mind to issues of criminality
in that:
7.4.1.  The Third
Respondent held that the Applicant’s having driven his own
vehicle under the influence raised the possibility
that it could also
happen during working hours, “
despite no such incident
having happened in the past
”.
7.4.2.  He strayed
into the realms of the Applicant’s general character when he
held that the matter was in fact about
the Applicant’s ability
to drive or to be sober while on duty, but rather about the Applicant
being able to “
apply his mind to situations of criminality
as a law enforcement officer”
.
7.4.3.  He held that
the Applicant’s failure to acknowledge that his actions were
connected to the workplace and his
failure to allegedly be upfront
about the sequence of events formed part of the reason why the First
Respondent could not take
the risk of retaining the Applicant.
7.5.
Taking irrelevant ‘aggravating’ factors into account:
Failure to admonish Officer Delport for
his comment in that:
7.5.1.  The Third
Respondent found that when Officer Delport made the utterance about
law enforcement officers arresting one
of their own, the Applicant
ought to have spoken up instead of making a shrugging gesture.
7.5.2.  He strayed
from the issue before him when he stated in his analysis that the
Applicant should, in fact, have spoken
up and praised the officers
for arresting him and doing their job, instead of making a shrugging
gesture at Delport’s comment.
7.6.
Finding lack of remorse as an aggravating factor, contrary to the
evidence in that:
7.6.1.  The Third
Respondent erred when he held that the Applicant had not accepted
accountability for his actions, that in
fact the Applicant testified
that he had learned valuable lessons from what happened.
7.7.
Error in finding that reputational damage was proven in relation to
Charge 1.
7.7.1.  The Third
Respondent found in his analysis that reputational harm was committed
during the Applicant’s arrest,
despite the fact that the matter
was not reported by the public, nor witnessed by the public, and it
was not circulated in any
media.
7.7.2.  There was no
evidence before the Third Respondent to prove that the Applicant’s
arrest for driving under the
influence of alcohol had caused
reputational harm to the First Respondent.
7.7.3.  The issue of
bringing the First Respondent’s name into disrepute had been
dealt with internally by the First
Respondent in relation to charge
2.
7.7.4.  The
allegation of disrepute was therefore not an issue for determination
before the Third Respondent.
7.8.
Relying on contentions and evidence pertaining to a charge not before
him for determination & misunderstanding
the relevance of
Delport’s evidence in that:
7.8.1.  The Third
Respondent erred in relying on evidence that was not material to the
issue before him and then also misunderstood
the evidence entirely.
7.8.2.  Whilst the
sequence of events of the evening was mainly undisputed, there was a
dispute during the arbitration whether
or not the Applicant had made
the comment about the arresting officers having “
arrested
one of their own”
as alleged in charge 2.
7.8.3.  Whilst this
dispute did arise during the oral evidence, it was not in fact a
material issue before the Third Respondent
for determination, as he
was not mandated to consider the Applicant’s innocence or guilt
on charge 2.
7.9.
Failing to apply his mind appropriately or at all to the principle of
progressive and corrective discipline
in that:
7.9.1.  Nowhere in
his analysis does the Third Respondent consider and apply his mind
properly to the concept of corrective
and progressive discipline,
especially considering that the Applicant was still a Learner Law
Enforcement Officer at the very start
of his career.
7.9.2.  The Third
Respondent found that because the Applicant faltered in his personal
life on one occasion by driving whilst
over the legal limit (which
was never in dispute), there was absolutely no chance for a continued
employment relationship, and
that trust had been destroyed beyond
repair.
7.10.
Misconduct/error when considering the relevance of the arbitration
outcome in a similar case, in that:
7.10.1. The Third
Respondent acknowledged that there was a similar case in 2019 where a
Law Enforcement Officer employed by the
First Respondent had been
dismissed for driving whilst under the influence of alcohol whilst
off-duty.
7.10.2. Whilst the
employee concerned had been dismissed by the First Respondent, the
arbitrator in that case held that it was unfair
to have disciplined
and dismissed him for conduct perpetrated outside of the employment
relationship.
7.10.3. The employee
concerned was reinstated by the Second Respondent, and the First
Respondent accepted the order of reinstatement.
7.11.
Misidentifying the true issue before him in that:
7.11.1. The Third
Respondent was tasked to determine whether it was appropriate to have
dismissed the Applicant for driving whilst
under the influence of
alcohol, off duty, in civilian clothing, in his own vehicle and where
he did not have a criminal record.
7.11.2. The Third
Respondent departed from the crisp issue before him, expressing a
clear desire to hear about the events of the
night the Applicant was
arrested, despite the Applicant not being dismissed for any conduct
around the arrest.
7.12.
Suggesting to the First Respondent what arguments it could make on
trust in that:
7.12.1. The Third
Respondent dictated that the arresting officer should be called to
testify, when she could do nothing more than
add aggravating fodder
to the proceedings that fell outside of the reasons for the
Applicant’s dismissal.
7.12.2. Any reliance on
evidence pertaining to charge 2 i.e., the alleged engagements with
South African Police Service (SAPS) officials,
was not before the
Third Respondent and ought not to have been used by him in the
arbitration in any form.
7.13.   Failure
to make any adverse finding on the lack of corroboration by the
Employer, where corroboration was possible
in that:
7.13.1. How it came to be
that the Applicant caught the attention of the arresting officers was
not a material issue in dispute
before the Third Respondent.
7.13.2. The Third
Respondent’s final outcome relied heavily on the Applicant’s
behaviour before arrest, the interactions
with the arresting officers
and the Applicant’s conduct at SAPS as justifications for
finding against the Applicant.
7.13.3. The Third
Respondent’s finding that the Applicant had attempted to avoid
detection was one of the primary aggravating
factors in his mind that
led him to find that the Applicant could never be trusted by the
First Respondent.
7.14.   Failure
to make any adverse credibility or reliability findings against
Makaka in that:
7.14.1.   In
addition to Makaka’s evidence not being corroborated by any
witness, tracker report or dashcam footage,
her evidence in relation
to what the Applicant said at the SAPS was also contradicted by the
evidence of Delport.
7.14.2.   The
Third Respondent did not mention the fact that Delport’s
evidence stood in stark contrast to the picture
Makaka had attempted
to create about the Applicant allegedly telling everyone that Makaka
was arresting one of their own.
7.14.3.   The
version of Makaka that the Applicant reversed, despite there being no
vehicle in front of the Third Respondent,
is improbable, yet the
Third Respondent preferred her version over the Applicant’s,
thus leading to the conclusion that the
Applicant had attempted to
avoid detection.
7.15.
Concluding that the Applicant’s alleged “attempt to avoid
detection” was an aggravating factor
justifying dismissal in
that:
7.15.1. Questions about
what road the Applicant was pulled off in or whether he was going
straight over Voortrekker, or had made
the turn into Voortrekker were
not material issues in dispute before the Third Respondent, yet he
turned them into a major issue,
he stated that: “
the failure
to be upfront with the truth and the sequence of events
”
meant that the Applicant was too much of an operational risk.
7.15.2. Had he not
incorrectly considered this an aggravating factor that damaged the
employment relationship, he would not have
concluded that the
Applicant’s dismissal was appropriate.
7.16.   Relying
on the Applicant’s 10-28 comment as an aggravating factor and
failing to resolve the dispute about
the “
one of them”
comment during the arrest in that:
7.16.1. The Third
Respondent found that it is reasonable to infer that the Applicant
had told officers that they could do a 10-28
so that they would know
the Applicant was one of them to solicit a different approach. He
also states that the Applicant “
asked the officers to breach
their legal duties”.
7.16.2. The Applicant
admitted that he used the term 10-28, meaning that the arresting
officers could verify that the vehicle belonged
to him, but he denied
telling them that he was one of them during the arrest.
[8]
The
above grounds are summarised into four main arguments in the
Applicant’s heads of argument as follows:
8.1.
No
sufficiently close nexus to justify discipline and dismissal for
off-duty conduct.
8.2.
Reputational
damage is not the reason for dismissal and not proven - wrong issue
considered.
8.3.
Misconduct/errors
in evaluating evidence impacting the trust relationship.
8.4.
Dismissal
too harsh on the facts – failure to consider corrective
sanctions and progressive discipline.
Award
[9]
The
Third Respondent identified the issue that he needed to decide as
follows: “
I
must decide whether the applicant’s dismissal was substantively
fair”.
[10]
In
the initial stages of the award, the Third Respondent seems to
understand the issue that he needed to decide, as he clearly records

that the dismissal was in respect of charge 1. He also makes it clear
that the Applicant challenges the substantive fairness of
his
dismissal on the basis that the sanction was too harsh for an
off-duty incident, coupled with the fact that another official
in
similar circumstances was reinstated through an arbitration award
that was not taken on review by the First Respondent.
[11]
Simply
put, the two legs of his enquiry were the harshness of the sanction
of dismissal and the fact that another official in similar

circumstances was reinstated through an arbitration that the First
Respondent never challenged.
[12]
At
no stage in the initial stages of the award does the Third Respondent
venture into the details of charge 2. Advisably so.
[13]
It
is in the analysis by the Third Respondent of the evidence that
things started taking a rather weird turn. He makes the statement

that the fact that the Applicant successfully submitted
representations for conversion away from the implications of the
provisions
of the Criminal Procedure Act did not mean that he did not
drive under the influence of alcohol, which was conduct of a criminal

nature and serious. This finding runs counter to the understanding
that this factor should serve as mitigation in deciding on the

appropriate sanction that the First Respondent ought to have
considered. It cannot be dismissed in a flippant fashion as an
irrelevance.
[14]
The
Third Respondent makes the point that the First Respondent is a local
authority who correctly argued that policing of the National
Road
Traffic Act and its by-laws were part of its general service delivery
obligations to the public and local residents. Further,
that Traffic
Officers, Law Enforcement Officers and Metro Police Services are
viewed by the public as one and the same, in the
enforcement of laws.
The laws that applied to its employees while on duty must apply
equally to members of the public and to fellow
employees when they
fell foul of it. Two issues arise from the above finding. The
Applicant was processed criminally for his driving
under the
influence of alcohol. He was granted a conversion, and he completed a
National Institute for Crime Prevention and the
Reintegration of
Offenders (NICRO) course. That is as far as the criminal justice
system dealt with him, and accordingly, he should
be regarded as
having paid his dues to society for his criminal conduct. Secondly,
and more troubling, is the fact that the Third
Respondent refers to
laws that applied to the First Respondent’s employees while on
and off duty. If that reference is to
the country’s laws, then
that part has already been addressed by the conversion program that
the Applicant underwent. But
if the reference is to internal rules
that the Applicant ought to have adhered to, then the Third
Respondent ought to have stated
which laws those are. For instance,
the Third Respondent does not say, and he does not find that the
First Respondent has a policy
that deals with this type of off-duty
misconduct. In that case, the issue would have been put to bed once
and for all, whether
or not the Applicant ought to have been
disciplined in the first place and most importantly, what kind of
sanction would have been
appropriate had he been found guilty in
accordance with the First Respondent’s policy.
[15]
The
Third Respondent makes the troubling finding that the fact that
Delport made the utterances of the First Respondent, “
arresting
one of their own
”,
is proof that the First Respondent’s reputation was indeed
tarnished and at risk. Again, two issues arise from the
above
finding. Firstly, accepting that it is Delport who made the
utterance, as argued on behalf of the Applicant, it supports
the
Applicant’s version that he never made such an utterance. A
point that the Third Respondent misses completely. Secondly,
the
issue of the tarnishing of the reputation of the First Respondent is
a charge 2 matter and not charge 1. Charge 2 was not part
of the
issue(s) that the Third Respondent was required to decide.
[16]
The
next point that the Third Respondent gets wrong is the finding that
the Applicant did not have a criminal record because of
driving under
the influence arrest on 30 June 2023. He calls this a concession made
in terms of the Criminal Procedure Act after
considering numerous
factors. Although the Third Respondent does not mention those
factors, it is a well-established principle
that deviation programs
apply to less serious offences. Had the criminal charge of driving
under the influence of alcohol by the
Applicant at the level he was
caught driving at (i.e., 0.13 grams per 100ml), a more severe
sentence would have been imposed on
him. It was not in his case. This
ought to have alerted the Third Respondent to the fact that, firstly,
this was not a serious
offence, but secondly that the Applicant did
not end up with a criminal offence after all.
[17]
A
rather unusual finding is made by the Third Respondent when he states
that not everybody with a driver’s license is allowed
to drive
an official vehicle. The fact that the Applicant was caught driving
under the influence of alcohol “
way
over the legal limit
”
raised the possibility that it could also happen during working
hours, “
even
though no similar incident happened in the past”
.
The problem with this finding is that the Third Respondent, without
any evidence comes to the conclusion that there is a possibility
that
the Applicant could drive under the influence of alcohol during
working hours. This conclusion is baseless. What makes it
worse is
that the Third Respondent goes further and states that “
no
similar incident happened in the past
”,
namely that the Applicant never drove under the influence of alcohol
during working hours in the past. This is a factor
that ought to have
been in mitigation of the sanction against the Applicant instead of
being the proverbial stick that the Third
Respondent uses to beat the
Applicant with in the form of aggravation of sanction. The Third
Respondent goes on to find that it
was reasonable of the First
Respondent to doubt the Applicant’s ability to act when a
similar issue might occur with an erratic
driver, as he himself
engaged in similar behaviour when off duty. Further that the issue
was not about his ability to drive or
being sober while on duty, but
to applying his mind to situations of criminality as a law
enforcement officer while being beyond
reproach himself. Having said
that the Applicant has never driven under the influence of alcohol
while on duty, it boggles the
mind why the Third Respondent still
believed that the Applicant would be unable to execute his duties
when dealing with “
an
erratic driver”
.
There is no evidence and the Third Respondent does not rely on any
evidence to suggest that because the Applicant drove under
the
influence of alcohol while off duty, therefore he will act
differently when faced with an erratic driver or situations of
criminality while executing his duties.
[18]
In
trying to find a
nexus
,
the Third Respondent concludes that in his analysis, it was clear
that the First Respondent had a direct interest in the fact
that the
Applicant as one of its law enforcement officers were arrested by its
own traffic officers for driving his vehicle on
a public road under
the influence of alcohol, therefore it follows, there was a causal
link between the Applicant’s conduct
and his employment with
the First Respondent as a law enforcement officer. As shown in the
preceding paragraphs, the Third Respondent
made a number of glaring
errors in his analysis. Therefore, his attempt at finding a
nexus
falls flat because of the incorrect analysis of the evidence. In
addition, the
nexus
that he tries to find does not exist in the manner he seeks to create
it. The Applicant was arrested while off duty, the fact that
he
occupied the position of a Learner Law Enforcement Officer does not
automatically create a
nexus
between his off duty criminal offence and his employment by the First
Respondent. This point is dealt with in more detail below
in the
analysis of the legal principles.
[19]
In
dealing with the question whether the Applicant’s misconduct
had the effect of destroying or seriously damaging the relationship

of employer and employee. The Third Respondent finds that what
aggravated the Applicant’s misconduct was the surrounding

circumstances at the time of his arrest. At this point the Third
Applicant opened an avenue that was not within his remit. The

circumstances of the arrest had nothing to do with whether the
Applicant ought to have been dismissed. According to the submissions

on behalf of the Applicant it was the Third Respondent who called for
the evidence of Makaka, even though the First Respondent
had
indicated a lack of interest in that evidence. In this regard the
Third Respondent dedicates a fair amount of time analyzing

circumstances surrounding the arrest, the conduct of the Applicant
during the arrest and his interactions (which were in dispute)

between the Applicant and Makaka. On the basis of the evidence that
the Third Respondent solicited, he concludes that such conduct
had an
impact on the employment relationship.
[20]
Regarding
the issue of a previous case, the Third Respondent makes short shrift
of this material evidence. He makes the finding
that the previous
case showed that the First Respondent consistently dealt with similar
incidents, even though the arbitrator differed
on the basis that a
law enforcement officer also has lives outside of the employment
relationship. He calls this a narrow approach.
The common cause
evidence pointed otherwise. A fully fledged (as opposed to a leaner)
Law Enforcement Officer was arrested, while
off duty, for driving
under the influence of alcohol at a level (0.18 grams per 100ml)
above that of the Applicant (0.13 grams
per 100ml). That particular
employee had resisted arrest, and had been reinstated at an
arbitration. The First Respondent did not
take the decision of the
arbitrator on review. The employee in question remains employed by
the First Respondent. The Third Respondent
failed to get the point
that had the First Respondent taken the issue of being arrested while
under the influence of alcohol whilst
off duty as seriously as it
seems to portray in the case of the Applicant, it ought to have
reviewed the decision of the arbitrator
and pursued whatever other
legal processes to ensure that its “policy of zero”
tolerance was vindicated. Instead, it
pursued the Applicant with more
vigour than it did the other employee, who was more drunk than the
Applicant, he was senior than
the Applicant and he also resisted
arrest while the Applicant pleaded guilty to his criminal conduct and
underwent a deviation
programme. The Applicant has no criminal
record.
Legal analysis
[21]
The
parties quoted extensively from the judgment in
Hoechst
(Pty) Ltd v Chemical Workers Industrial Union & another
[2]
(Hoechst)
where
the Labour Appeal Court (LAC) held that an employee may, under
certain circumstances, be dismissed for off duty conduct falling

beyond the provisions of a disciplinary code. The LAC opined that
whether the employer may dismiss will depend on an enquiry that

includes: the nature of the misconduct, the nature of the work
performed by the employee, the employer’s size, the nature
and
size of the workforce, the employer’s position in the market
place, the nature of the employer’s business, the
relationship
between the employee and the victim, the impact of the misconduct on
the workforce as well as on the employment relationship
and the
capacity of the employee to perform his or her job. It is a trite
principle on this type of misconduct that a
nexus
must be shown to exist between the employee’s conduct and the
operational requirements of the employer’s business.
[22]
The
above approach was illustrated in
Horn
v Beesnaar NO & others
[3]
(Horn)
,
where an employee assaulted a colleague on the road leading to the
workplace, which was held as having a direct impact on the
employment
relationship and thus constituting a serious act of misconduct. In
the above quoted case, the assault occurred at the
mine gate, there
were other employees present who witnessed the assault. The assailant
knew the victim’s medical condition
and yet he perpetrated the
assault on the victim.
[23]
In
the matter of
SAPS
v Van der Merwe NO & others
[4]
(SAPS)
a
member of SAPS was dismissed for fraud committed outside the course
of his employment. The court accepted that his behaviour breached
the
standard of conduct required of SAPS members outside the workplace
and rendered him unfit for continued employment. In the
SAPS
judgment, Molahlehi J, as he was then, was dealing with Regulation
20(z) of the SAPS regulations, and he held as follows:
‘
The
regulation seeks to raise the standard of conduct of police officers
outside their employment and to bring it into the employment

relationship even when that conduct had nothing do with the
employment issues. In my view what the regulation seeks do is to set

standard of conduct outside the employment relationship. The standard
set by the regulation in general that police officers would
not
engage in conduct or activities that:
1.
would
ordinarily not be expected of a police officer; that is unbecoming,
disgraceful and or improper in the eyes of both the State
as the
employer and the public.
2.
undermines
the confidence of the public in the police.
3.
project
a member as being unfit to be a police officer.’
[24]
The
two judgments quoted above, namely
Horn
and
the
SAPS
judgment, are distinguishable from this matter. In
Horn
,
the assault occurred at the gates of the employer in front of other
employees, where the assailant knew of the health condition
of the
victim. In the
SAPS
judgment, the court was dealing with a regulation that deals with off
duty misconduct.
[25]
The
judgment in
Edcon
Limited v Cantamessa and Others
[5]
is
cited by the First Respondent in its heads of argument. The employee
had posted a comment on Facebook, while on leave and from
a private
computer, criticising the government in racist terms. The court found
that
the
only source for the connection (
nexus
)
lies in the fact that her Facebook page indicated that she worked for
Edcon. However, Edcon is a merchandiser of its various products
in a
competitive industry. Ms Cantamessa, as a Specialist Buyer, played a
pivotal role in the acquisition of such products, including
ladies'
trending styles and fashion for Edcon. The success of its business
depends largely on how it markets itself to the general
public.
Therefore, having a good name is an essential asset or quality of
Edcon to the general public. In as much as Buyers of
Edcon can and
often remain anonymous to the general public, once their identities
are exposed to the general public, it must only
be in a positive and
not negative environment or circumstance, otherwise such disclosure
imposes a risk that the name of Edcon
may be brought into disrepute.
The court found that therein lay the
nexus
between the conduct of Ms Cantamessa and the relationship she had
with her employer. Thus, she had to avoid being a controversial

employee in the public's eyes, where she could be associated with
Edcon. In short, Ms Cantamessa publicly outed herself as an employee

of Edcon, and accordingly, she provided the necessary
nexus
justifying her dismissal.
[26]
Returning
to the considerations mentioned in the
Hoechst
judgment:
26.1.
It
is apparent that the criminal charge against the Applicant was not
viewed as serious by the criminal justice system, hence he
was
admitted to a conversion program. He does not have a criminal record
as a result.
26.2.
It
is common cause that the Applicant was a Learner Law Enforcement
Officer at the early stages of his career.
26.3.
The
issue of the size of the First Respondent was not dealt with in
evidence, particularly where the Applicant was employed (in
the
Safety and Security Directorate).
26.4.
There
was “no victim” in the criminal offence that the
Applicant committed.
26.5.
There
was no demonstrable impact on the workforce as well as on the
employment relationship arising from the criminal charge against
the
Applicant. The incident occurred off duty, at night, the only member
of the public present was the Applicant’s passenger
in the
motor vehicle.
26.6.
There
was
no evidence regarding the impact of the criminal charge against the
Applicant on his capacity to perform his job, the evidence
indicated
that the Applicant was reassigned to office duties during the course
of the investigation and his subsequent disciplinary
hearing.
[27]
Regarding
the
nexus,
the
Third Respondent found that
there
was sufficient
nexus
established solely by virtue of the fact that the Applicant was
employed as a Learner Enforcement Officer. That cannot be. There

ought to have been more that the Third Respondent should have found
to come to this conclusion. Following a proper application
of the
nature of the enquiry in
Hoechst
,
the Third Respondent ought to have realized that a
nexus
did not exist between the Applicant’s conduct and the
operational requirements of the First Respondent’s business.
[28]
Last
but not least, the Third Respondent tried to downplay the fact that a
senior colleague of the Applicant had been arrested while
off duty
for driving under the influence of alcohol with a higher alcohol
content than that of the Applicant. He had resisted arrest.
He was
reinstated at an arbitration, which award the First Respondent did
not challenge with a review application. It ought to
have been clear
to the Third Respondent how the First Respondent viewed this type of
misconduct. Namely, that it accepted that
it was not a dismissible
offence had the contrary been true, the First Respondent would have
reviewed the decision in that matter.
[29]
Considering
the totality of the above analysis of the facts of this case, the
Third Respondent made an award that a reasonable arbitrator
presented
with the same set of facts and the same legal framework would not
have made.
[30]
In
the premises, I make the following order:
Order
1.
The
arbitration award of the Third Respondent under case number WCM
022408, dated 4 November 2024 and delivered on 6 November 2024,
is
reviewed and set aside.
2.
The award
is substituted with a finding that the dismissal of the Applicant was
substantively unfair.
3.
The
Applicant is reinstated effective from the date of his dismissal
without any loss of remuneration and benefits.
4.
There is no
order as to costs.
M
Mkhatshwa
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Ms N Geldenhuys
Trade
Union Official
For
the 1st Respondent:  Mr M Mamatela
Mamatela
Attorneys Inc.
[1]
Act 66 of 1995,
as amended.
[2]
(1993) 14 ILJ
1449 (LAC).
[3]
(2022) 43 ILJ 115
(LAC).
[4]
[2013] 3 BLLR 320
(LC).
[5]
[2020] 2 BLLR 186
(LC).