THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 2539/21
In the matter between:
MATSHELISO BUTHELEZI AND 4 OTHERS Applicants
and
RAND WATER – ZUIKERBOSCH WATER First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
COMMISSIONER MOHAMMED JASSAT N.O. Third Respondent
Heard: 13 November 2025
Delivered: 3 February 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HOLMES, AJ
Introduction
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] This is an application in terms of section 145 of the Labour Relations Act 1
(LRA), wherein the Applicants seek to review and set aside an arbitration
award issued under the auspices of the Second Respondent, the Commission
for Conciliation, Mediation and Arbitration ( the CCMA) by the Third
Respondent, Commissioner Mohammed Jassat (the Commissioner), dated 28
October 2021, under case number GVL1813 – 20.
[2] The Commissioner found the dismissal of the Applicants to be substantively
fair.
Background
[3] The First Applicant is Matsheliso Buthelezi, the Second Applicant is Neo
Tshabalala, the Third Applicant is Sarah Mphuthi, the Fourth Applicant is
Cathrine Mukatoni, and the Fifth Applicant is Alinah Sekeleme ( hereinafter
collectively referred to as “ the Applicants”). At the time of the termination of
their employment, the Applicants were employed by the First Respondent in
its kitchen section as kitchen aides, cooks, and a kitchen supervisor.
[4] Following an investigation conducted by the First Respondent, the First,
Second, Fourth and Fifth Applicants were charged with two counts of
misconduct, as set out in the charge sheet as follows:
“Charge 1: Schedule B, paragraph 1.22 (Serious transgression of Rand
Water’s Code of Ethics)
Failure to report fraudulent activities pertaining to your overtime claims
between the period 2017-2018, and
Charge 2: Schedule B, paragraph 1.18 (Any deliberate act which causes real
or potential prejudice to the employer) in that:
You intentionally colluded with a supervisor to tamper with timesheets by
claiming overtime you have not worked between the period of 2017 and 2018,
and your action as stated resulted in you being unduly benefited to a total
amount of [different amounts per individual applicant].”
1 66 of 1995, as amended.
3
[5] The Third Applicant, Sarah Mphuthi, who was employed as a kitchen
supervisor, was charged with two counts of misconduct, as reflected in the
charge sheet as follows.
“Charge 1 : You failed to report fraudulent reports from your subordinates to
temper (sic) with their time sheets and allocate them overtime not worked
during the period 2017 and 2028; and
Charge 2 : You intentionally colluded with your subordinates to temper (sic)
with their timesheets by claiming overtime for the period not worked during
2017 to 2018 and your actions as stated above resulted in them being unduly
benefitting the total amount of R53 654,54.”
[6] The Applicants pleaded guilty to the misconduct.
[7] The Applicants were dismissed on or about 4 December 2019. Following their
dismissal, the Applicants referred an unfair dismissal dispute to the CCMA,
challenging only the consistency of the sanction. Relying on the parity
principle, the Applicants argued that the sanction of dismissal was unfair
because two comparators, Messrs Naidoo and Jacobs (“ the comparators ”),
had previously received a final written warning for an offence committed under
Schedule B, paragraph 1.8 of the First Respondent’s disciplinary code. The
comparators had likewise pleaded guilty to, inter alia, submitting fraudulent
travel claims.
[8] The Commissioner found that the dismissal of the Applicants was
substantively fair on the basis that the Applicants’ misconduct was
distinguishable from the comparators and the seriousness of the misconduct.
The review test
[9] In terms of section 145(1) of the LRA, a party may review an arbitration award
if the party alleges that the arbitration award is defective. Section 145(2) then
goes on to state that a ‘defect’ referred to in sub-section (1) means.
“(a) that the Commissioner –
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(i) Committed misconduct in relation to the duties of the
commissioner as an arbitrator;
(ii) Committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii) Exceeded the commissioner’s powers; or
(b) that an award has been improperly obtained.”
[10] Rule 7A(2)(c) of the Rules for the Conduct of Proceedings in the Labour Court
(the Rules applicable at the time) provided as follows:
“(2) The notice of motion must—
…
(c) be supported by an affidavit setting out the factual and legal
grounds upon which the applicant relies to have the decision or
proceedings corrected or set aside.”
[11] It is trite that an applicant for review must identify and articulate the grounds of
review upon which reliance is placed in the founding (and, where applicable,
supplementary) affidavit. A reviewing court is confined to those grounds in
determining the application and may not formulate or advance a case for
review that has not been pleaded.
[12] As set out in Mpe v Polokwane Local Municipality and Others:
2
“[10] Rule 7A(2)(c) provides that the notice of motion must be supported by
an affidavit setting out the factual and legal grounds upon which the
applicant relies to have the decision or proceedings corrected or set
aside. As to the requirement of setting out the legal grounds upon
which the applicant relies in the founding affidavit, this requires the
applicant to set out, with sufficient precision and detail, the ground of
review and the bases on which the ground are relied upon.
[11] …
2 (JR101/2023) [2024] ZALCJHB 426 (7 November 2024) at paras 10 to 14.
5
[12] …
[13] The role of the reviewing Court is limited to deciding issues that are
raised in the applicant’s founding (and supplementary) affidavit. This
was confirmed by the Constitutional Court in Commercial Workers
Union of SA v Tao Ying Metal Industries and Others3 (Tao Ying) where
it was held that:
‘…the role of the reviewing court is limited to deciding issues that are
raised in the review proceedings. It may not on its own raise issues
which were not raised by the party who seeks to review an arbitral
award. There is much to be said for the submission by the workers
that it is not for the reviewing court to tell a litigant what it should
complain about. In particular, the LRA specifies the grounds upon
which arbitral awards may be reviewed. A party who seeks to review
an arbitral award is bound by the grounds contained in the review
application. A litigant may not on appeal raise a new ground of review.
To permit a party to do so may very well undermine the objective of
the LRA to have labour disputes resolved as speedily as possible.’
[14] A party who seeks to review an arbitration award is bound by the
grounds for review contained in the review application, subject to one
qualification, namely that the Court is obliged to deal with a point of
law apparent from the papers.”
[13] The Applicants have not, as required in terms of section 145 of the LRA read
together with Rule 7A, identified any ground of review including any failure or
error on the part of the Commissioner in their founding papers. Instead, the
Applicants have merely rehashed the background facts and arguments
presented at arbitration and asked this court to find that the dismissal of the
Applicants was unfair.
[14] The Applicants’ attorney attempted, belatedly, to submit from the bar that the
award is reviewable because (a) the Applicants did not act in unison,
alternatively (b) that the comparators must likewise have conspired with other
alternatively (b) that the comparators must likewise have conspired with other
persons in the organisation otherwise they would not have been paid for travel
6
claimed. These submissions are not helpful as these grounds of review are
not articulated in the Applicants’ papers nor are they supported by the record.
[15] As set out by this Court in Northam Platinum Ltd v Fganyago NO and Others:3
“[27] … In my view the law is very clear that a ground for review raised for
the first time in argument cannot be sustained. The basic principle is
that a litigant is required to set out all the material facts on which he or
she relies on in challenging the reasonableness or otherwise of the
commissioner’s award in his or her founding affidavit. In Country Fair v
CCMA & Others [1998] 6 BLLR 577 (LC), at page 580 paragraph 8 the
Court in dealing with this issue held that a party that relied on the
provisions of section 145 of the Labour Relations Act 66 of 1995, in its
notice of motion and founding affidavit could not invoke the provisions
of section 158 (1) (g) of the same Act as a ground for review during
argument.
[28] The principle that a litigant cannot seek to introduce a new ground for
review having failed to do so in the founding or supplementary papers
is set out succinctly in Director of Hospital Services v MISTRY 1979
(1) SA 626 ) at 635A — 636F (AD), where the Court in dealing with
this issue had this to say:
“When as in this case, the proceedings are launched by way of notice
of motion, it is to the founding affidavit which a Judge will look to
determine what the complaint is. As was pointed out by KRAUSE J in
Pountos’ Trustees v Lahanas 1924 WLD 67 at 68 and as has been
said in many other cases:
“… an applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible to supplement
the allegations contained in the petition, still the main foundation of the
application is the allegation of facts stated therein, because those are
the facts which the respondent is called upon to confirm or deny.”
[16] Having carefully considered the Applicants’ founding papers, it is apparent
[16] Having carefully considered the Applicants’ founding papers, it is apparent
that no reviewable defect as envisaged in section 145 of the LRA has been
3 (JR233/07) [2009] ZALCJHB 55 (26 August 2009) at paras 27 and 28.
7
pleaded or established. The Applicants have not alleged misconduct, gross
irregularity, excess of powers, or any impropriety in the procurement of the
award. Rather, the application amounts to an attempt to persuade this Court
to substitute its own view for that of the Commissioner, which is impermissible
in review proceedings. In these circumstances, there exists no basis for this
Court to interfere with the arbitration award, and accordingly the review
application must be dismissed.
Consistency
[17] For the sake of completeness, I will nonetheless address the issue of
consistency:
[18] The Commissioner addressed the issue of inconsistency based on, firstly the
factors differentiating the Applicants from the comparators, and secondly the
seriousness of the misconduct.
[19] Central to the Commissioner’s finding that the Applicants’ misconduct was
distinguishable from that of the comparators was the conclusion that the
Applicants had acted in unison with their supervisor in a deliberate scheme to
defraud the First Respondent. The Commissioner described the fraud as
“well-orchestrated, planned and deviously thought out ”, and found that it had
“undeniably caused an impact on the Respondent’s business ”. In these
circumstances, the Commissioner concluded that the Applicants’ misconduct
was materially distinguishable from that of the comparators.
[20] This Court had regard to the test to be applied in Southern Sun Hotel Interests
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others,
4
and held as follows:
“[10] The courts have distinguished two forms of inconsistency - historical
and contemporaneous inconsistency. The former requires that an
employer apply the penalty of dismissal consistently with the way in
which the penalty has been applied to other employees in the past;
the latter requires that the penalty be applied consistently as between
4 (2010) 31 ILJ 452 (LC) para 10.
8
two or more employees who commit the same misconduct. A claim of
inconsistency (in either historical or contemporaneous terms) must
satisfy a subjective element - an inconsistency challenge will fail
where the employer did not know of the misconduct allegedly
committed by the employee used as a comparator (see, for example,
Gcwensha v CCMA & others [2006] 3 BLLR 234 (LAC) at paras 37-
38). The objective element of the test to be applied is a comparator in
the form of a similarly circumstanced employee subjected to different
treatment, usually in the form of a disciplinary penalty less severe than
that imposed on the claimant. (See Shoprite Checkers (Pty) Ltd v
CCMA & others [2001] 7 BLLR 840 (LC) at para 3.) Similarity of
circumstance is inevitably the most controversial component of this
test. An inconsistency challenge will fail where the employer is able to
differentiate between employees who have committed similar
transgressions on the basis of inter alia differences in personal
circumstances, the severity of the misconduct or on the basis of other
material factors.’
[21] In Association of Mineworkers and Others v Opsicol Mining Services CC,5 this
Court held that:
“[15] I deal first with the applicants’ submissions regarding what it contends
was the inconsistent application of discipline. The test to be applied to
determine inconsistent conduct in the form of contemporaneous
inconsistency on the part of an employer is objective, to the extent that
the comparator must necessarily be a similarly circumstanced
employee subjected to different treatment. Thus, in Southern Sun
Hotel Interests (Pty) Ltd v CCMA & others [2009] 11 BLLR 1128 (LC),
this court noted that an inconsistency challenge will fail if the employer
is able to differentiate between employees who have committed
similar transcriptions on the basis of amongst other things, differences
in personal circumstances, the severity of the misconduct or any other
material factors.” [Own emphasis added]
material factors.” [Own emphasis added]
[22] Having regard to the Commissioners’ reasoning and relevant authorities, the
conclusion that the Applicants’ misconduct was distinguishable from that of
5 (JS703/2018) [2023] ZALCJHB 177 (5 June 2023) at para 15.
9
the comparators falls within the band of decisions a reasonable decision-
maker could reach.
[23] The Commissioner further found that, having regard to the seriousness of the
misconduct, the Applicants could not escape the sanction of dismissal simply
on the basis of the parity principle.
[24] It is well- established that consistency is merely an element of fairness, and
ought not to be implemented in such a way as to permit employees who
commit serious misconduct to escape the consequences thereof. This
principle was expressed as follows by the Labour Appeal Court ( LAC) in
ABSA Bank Ltd v Naidu and others:
6
“[36] However, it ought to be realised, in my view, that the parity principle
may not just be applied willy -nilly without any measure of caution. In
this regard, I am inclined to agree with Professor Grogan when he
remarks as follows:
‘[T]he parity principle should be applied with caution. It may well be
that employees who thoroughly deserved to be dismissed profit from
the fact that other employees happened not to have been dismissed
for a similar offence in the past or because another employee involved
in the same misconduct was not dismissed through some oversight by
a disciplinary officer, or because different disciplinary officers had
different views on the appropriate penalty.”
[37] In SACCAWU and Others v Irvin and Johnson (Pty) Ltd, this Court
(per Conradie JA) stated:
‘In my view too great an emphasis is quite frequently sought to be
placed on the principle of disciplinary consistency, also called the
‘parity principle’ … There is really no separate principle involved.
Consistency must be measured by the same standards … Discipline
must not be capricious. It really is the perception of bias inherent in
selective discipline that makes it unfair. Where, however, one is faced
with a large number of offending employees, the best one can hope
for is reasonable consistency. Some inconsistency is the price to be
6 (2015) 36 ILJ 602 (LAC) at paras 36 to 42.
10
paid for flexibility, which requires the exercise of a discretion in each
individual case. If a chairperson conscientiously and honestly, but
incorrectly, exercises his or her discretion in a particular case in a
particular way, it would not mean that there was unfairness to the
other employees. It would mean no more than his or her assessment
of the gravity of the disciplinary offence was wrong. It cannot be fair
that other employees profit from that kind of wrong decision. In a case
of plurality of dismis sals, a wrong decision can only be unfair if it is
capricious, or induced by improper motives or worse, by a
discriminating management policy … Even then I dare say that it
might not be so unfair as to undo the outcome of other disciplinary
enquiries. … If, for example, one member of a group of employees
who committed a serious offence against the employer is, for improper
motives, not dismissed, it would not … necessarily mean that the
other miscreants should escape. Fairness is a value judgment.’”
…
[42] Indeed, in accordance with the parity principle, the element of
consistency on the part of an employer in its treatment of employees
is an important factor to take into account in the determination process
of the fairness of a dismissal. However, as I say, it is only a factor to
take into account in that process. It is by no means decisive of the
outcome on the determination of reasonableness and fairness of the
decision to dismiss. In my view, the fact that another employee
committed a similar transgression in the past and was not dismissed
cannot, and should not, be taken to grant a licence to every other
employee, willy-nilly, to commit serious misdemeanours, especially of
a dishonest nature, towards their employer on the belief that they
would not be dismissed. It is well accepted in civilised society that two
wrongs can never make a right. The parity principle was never
intended to promote or encourage anarchy in the workplace. As stated
intended to promote or encourage anarchy in the workplace. As stated
earlier, I reiterate, there are varying degrees of dishonesty and,
therefore, each case will be treated on the basis of its own facts and
circumstances…”
(Own emphasis added)
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[25] The LAC in Nyathikazi v Public Health and Social Development Sectorial
Bargaining Council,7 amplified on the above decision as follows:
“[26] In short, the parity principle may well mean that in the previous case
which is invoked in support of the application of an argument
concerning discriminatory discipline, then the gravity of the initial
disciplinary offence had not been properly appreciated. In such
circumstances, it may be unjustified to invoke the parity principle,
where an employee has committed a serious offence against the
employer and the only defence raised is that in a previous case a
wrong decision had been arrived and so that the employee’s
misconduct in the subsequent case can be overlooked. In the present
case, the egregious misconduct of the appellant in two cases, justifies
the application of the caution adopted by Ndlovu JA in the Absa case.
However, as no cross -appeal was lodged by the third respondent
against this part of the finding of the second respondent which, in turn,
was confirmed on review by the court a quo, the appellant can
therefore count herself fortunate in this regard. In Assmang (Pty) Ltd
t/a Khumani Mine v Commission for Mediation, Arbitration and
Conciliation and Others the Labour C ourt criticized the
Commissioner’s findings on inconsistency as follows:
‘The arbitrator in this case clearly did consider the issue of
consistency to be dispositive of the issue of substantive fairness. It is
perhaps this underlying misconception coupled with his single-minded
focus on the failure to initiate disciplinary action against the members
of the third respondent’s team which resulted in the arbitrator failing to
address important factors which did distinguish why it was justified in
dismissing the third respondent, even if it should not have simply
failed to make an effort to also charge his subordinates.”
(Own emphasis added)
[26] In Nedbank Ltd v Commission for Conciliation Mediation and Arbitration and
[26] In Nedbank Ltd v Commission for Conciliation Mediation and Arbitration and
Others,8 the Labour Court noted that:
7 (2021) 42 ILJ 1686 (GJ) (26 May 2021) at para 26.
8 (JR 3166/10) [2013] ZALCJHB 226 para 12.
12
“[12] The purpose of requiring employers to enforce discipline consistently
is mainly to protect employees against discrimination. The parity
principle does not require employers to mete out the same treatment
to employees who have committed the same misconduct. In Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others the court adopted the following approach in applying the parity
principle:
“When deciding the issue of parity, the gravity of the misconduct of the
employee who seeks to rely on that principle should receive serious
attention’. Where the employee’s actions breached the trust
relationship the parity principle cannot rescue an employee.”
[Own emphasis added]
[27] The Applicants’ misconduct involved dishonesty going to the heart of the
employment relationship. As set out in the record, the trust relationship had
broken down, and operationally the First Respondent cannot be expected to
continue employing persons it does not trust. As stated by the LAC in
Shoprite Checkers (Pty) Ltd v CCMA and Others:
9
“[16] In brief, this court has consistently followed an approach, laid out early
in the jurisprudence of the Labour Court in Standard Bank SA Limited
v CCMA and others [1998] 6 BLLR 622 at paras 38 - 41 where Tip AJ
said: ‘It was one of the fundamentals of the employment relationship
that the employer should be able to place trust in the employee… A
breach of this trust in the form of conduct involving dishonesty is one
that goes to the heart of the employment relationship and is
destructive of it.’”
[28] In light of the serious and deliberate nature of the misconduct to which the
Applicants pleaded guilty, their reliance on the parity principle to avoid
dismissal is misplaced. This Court has repeatedly emphasised that the parity
principle should be applied with caution and is not intended to shield
employees from the consequences of dishonesty. Where, as in this case, the
employees from the consequences of dishonesty. Where, as in this case, the
dishonesty is such that the continuation of the employment relationship would
9 (2008) 29 ILJ 2581 (LAC) para 16.
13
be intolerable, the Commissioner’s conclusion that dismissal was an
appropriate and fair sanction is reasonable and falls within the band of
decisions a reasonable decision-maker could reach.
[29] The issue of costs is regulated by section 162 of the LRA, and the Court has a
discretion to make such an order. This is not a matter warranting a departure
from the trite legal principle that costs do not follow the result in this Court.10
[30] In the result, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
___________________
K. Holmes
Acting Judge of the Labour Court of South Africa
10 Zungu v Premier of the Province of KwaZulu- Natal and Others (2018) 39 ILJ 523 (CC); See also
National Union of Mineworkers on behalf of Masha and others v Samancor Ltd (Eastern Chrome
Mines) and others (2021) 42 ILJ 1881 (CC).
14
Appearances:
For the Applicant: N Thejane
Instructed by: Stephina Motlhamme Attorneys Inc.
For the Respondent: LK Siyo
Instructed by: Salijee Govender van der Merwe Inc.