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[2026] ZALCCT 23
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City of Cape Town v South African Municipal Workers Union (SAMWU) obo Mantis and Others (C396/24) [2026] ZALCCT 23 (19 February 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no:
C396/2024
(1)
Reportable No
(2)
Of interest to other Judges: No
(3)
Revised
19/02/2026
In the matter between:
CITY
OF CAPE TOWN
Applicant
And
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
(“SAMWU”)
OBO KEEGAN MANTIS
First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL (‘SALGBC”)
Second
Respondent
ORLANDO
MOSES N.O.
Third
Respondent
Heard
:
6 November 2025
Delivered
:
19 February 2026
Summary:
(Review application - A court is entitled on review to determine
whether an arbitrator in fact functioned as arbitrator
in the way
that he upon his appointment impliedly undertook to do, namely by
acting honestly, duly considering all the evidence
before him and
having due regard to the applicable legal principles. If he does
this, but reaches the wrong conclusion, so be it.
But if he does not
and shirks his task, he does not function as an arbitrator and
reneges on the agreement under which he was appointed.
His award will
then be tainted and reviewable– commissioner’s award
unassailable, application dismissed)
JUDGMENT
MAY,
AJ
Introduction
[1]
This is an opposed application to review and set aside an arbitration
award in which the third respondent (the arbitrator)
determined that
the First Respondent’s member’s, Keegan Mantis (Mantis),
dismissal was substantively unfair and ordered
the Applicant to
reinstate Mantis retrospectively from the date of dismissal on 31
October 2023, that he report for duty on 1 September
2024 and that he
be paid the sum of R197 548.20 in backpay by 1 September 2024.
Background
[2]
Mantis was employed with the Applicant as a Learner Law Enforcement
Officer in its Law Enforcement Department. His post
was classified as
high-risk, given that law enforcement officers may at any time be
required to carry firearms, drive official
vehicles or respond to
emergencies demanding split-second decisions. In light of these
operational demands, the Executive-Director:
Safety and Security
issued a circular in terms of which a policy was formulated where a
zero-tolerance approach is taken for law
enforcement officers found
guilty of testing positive for being under the influence of drugs and
alcohol, submitted on 8 March
2022.
[3]
The
Applicant led the evidence of a Mr Wayne Dyason, a Principal
Inspector and head of the Marine and Environmental Unit as its
witness. He testified that the Applicant has a Substance Abuse System
and Procedure which also prohibits employees from being under
the
influence of intoxicating substances while on duty. The policy also
aligns with the Firearms Control Act
[1]
which makes it an offence to handle a firearm whilst under the
influence of such substances.
[4]
On 3 February 2023, Mantis was subjected to a random workplace drug
test which returned positive for THC (cannabis). He
was charged with
misconduct for testing positive whilst on duty in breach of the
Substance Abuse System and Procedure.
[5]
A disciplinary hearing followed where Mantis was found guilty and
subsequently dismissed on 31 October 2023. Dissatisfied
with the
outcome, SAMWU on behalf of Mantis referred the matter to the Second
Respondent who appointed the Third Respondent to
arbitrate the
dispute.
The
award
[6]
At the arbitration, Mantis pleaded guilty to the charge of misconduct
that he failed a random drug test on 3 February
2023. The only issue
was therefore whether dismissal was an appropriate sanction for the
misconduct committed.
[7]
The
arbitrator assessed the evidence led and determined that even though
the employer had adopted a zero-tolerance policy to employees
testing
positive for having alcohol or drugs in their system, the Labour
Appeal Court (LAC) in
Enever
v Barloworld Equipment South Africa, A Division of Barloworld South
Africa (Pty) Ltd
[2]
reiterated that the law does not allow an employer to adopt a
zero-tolerance approach to all infractions, regardless of the
appropriateness
or proportionality of the offence and then expect the
commissioner to fall in line with such an approach. He confirmed that
the
Court’s position was that a valid benchmark for the
zero-tolerance policy should be intoxication and whether the employee
was impaired and could not perform his duties. He found that the
employer did not lead any evidence showing that the employee was
in
fact intoxicated or that he was in any way unable to perform his
duties assigned on the particular day or any additional functions
given to him.
[8]
He held further that it was common cause that the employee at the
time was not required to perform any tasks which had
any implication
of risk, he was not required to wear a firearm at the time and also
not required to drive a vehicle. The commissioner
found, perhaps
incorrectly in my view, that the fact that he could be asked to carry
the firearm or drive the vehicle could not
be considered high-risk.
[9]
The commissioner also considered that using cannabis (dagga) is not
unlawful. Using cannabis could therefore not be in
conflict as his
duties as a law enforcement officer.
[10]
The arbitrator ultimately held that dismissal as a first offence was
too harsh under the circumstances, accordingly,
found that the
dismissal was substantively unfair and ordered his reinstatement from
31 October 2023 by 1 September 2024 and ordered
that he be paid full
backpay.
Grounds
of review and evaluation
[11]
Applicant contends that, the award is reviewable on the basis that
the Commissioner committed misconduct in relation
to his duties
and/or committed a gross irregularity in the conduct of the
arbitration proceedings. Applicant asserts that
the arbitrator
committed a gross irregularity in the conduct of his assessment of
the evidence, which led to findings that are
unsustainable and
irregular.
[12]
Applicant argues that the arbitrator ignored material evidence placed
before him. Applicant alleges that the parties
accepted that the
offence is dismissible as a first offence and that the arbitrator’s
role was to decide whether the sanction
imposed was fairly imposed,
that it was not a factor whether the employee was required to perform
a hazardous task at the time
but that he could be called upon to do
so when a need arises, that no tangible evidence was led to support a
claim of inconsistency
and no evidence was led that the employee used
cannabis in his private time as opposed to having done so on duty. As
a result,
the arbitrator’s decision is not one that another
reasonable decision-maker could reach.
[13]
The Court must ask:
13.1
In terms of his or her duty to deal with
the matter with the minimum of legal formalities, did the process
that the arbitrator employed
give the parties a full opportunity to
have their say in respect of the dispute?
13.2
Did the arbitrator identify the dispute
he was required to arbitrate (this may in certain cases only become
clear after both parties
have led their evidence)?
13.3
Did the arbitrator understand the nature
of the dispute he or she was required to arbitrate?
13.4
Did he or she deal with the substantial
merits of the dispute? and
13.5
Is
the arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?
[3]
[14]
Our
courts have repeatedly stated that in order to maintain the
distinction between review and appeal, an award of an arbitrator
will
only be set aside if both the reasons and the result are
unreasonable. In determining whether the result of an arbitrator’s
award is unreasonable, the Labour Court must broadly evaluate the
merits of the dispute and consider whether, if the arbitrator’s
reasoning is found to be unreasonable, the result is, nevertheless,
capable of justification for reasons other than those given
by the
arbitrator. The result will, however, be unreasonable if it is
entirely disconnected with the evidence, unsupported by any
evidence
and involves speculation by the arbitrator.
[4]
An award will no doubt be considered to be reasonable when there is a
material connection between the evidence and the result or,
put
differently, when the result is reasonably supported by some
evidence.
Application
[15]
There is no doubt that both parties had the chance to have their say
in relation to the matter, the arbitrator correctly
identified the
dispute as determining whether the sanction of dismissal was too
harsh and the arbitrator understood the nature
of the dispute
clearly, as is apparent from the award, The applicant challenges the
fact and disputes that the arbitrator dealt
with the substantial
merits of the dispute and accordingly challenges that the decision is
not one that a reasonable decision-maker
could reasonably have
arrived at.
[16]
In
assessing sanction, as set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[5]
the arbitrator’s task was to:
“
take into account
the totality of circumstances. He or she will necessarily take into
account the importance of the rule that had
been breached. The
commissioner must of course consider the reason the employer imposed
the sanction of dismissal, as he or she
must take into account the
basis of the employee’s challenge to the dismissal. There are
other factors that will require
consideration. For example, the harm
caused by the employee’s conduct, whether additional training
and instruction may result
in the employee not repeating the
misconduct, the effect of dismissal on the employee and his or her
long-service record. This
is not an exhaustive list.”
[17]
In
Enever
the LAC
distinguished
SGB
Cape Octorex (Pty) Ltd v Metal and Engineering Industries Bargaining
Council and others
[6]
and
Marasi
v Petroleum, Oil and Gas Corporation of South Africa (SOC) Ltd
[7]
on the
basis that in
Marasi
the employee was required to operate heavy and dangerous equipment
and in
SGB
the employee smoked cannabis whilst on duty
[8]
.
[18]
The
consideration was whether the employee concerned was stoned
(intoxicated) at work and thus impaired. In
Enever,
the
court held that
[9]
:
“
Although no
medical evidence was led, the Respondent conceded that, unlike
alcohol, cannabis stays in the blood system for longer
than is the
case with alcohol. This underscores the point that a mere positive
test for cannabis does not address the sobriety
of the user or
indicate whether they are impaired from carrying out their duties. A
further consideration, as pointed out above,
is that the Appellant
does not operate or work with any heavy or dangerous machinery. Her
job is plainly an office desk job. I
do not accept that because the
Respondent has a generally dangerous workplace the rule is justified
or that, that is an inherent
requirement of the job.”
[19]
The arbitrator similarly concluded that there was no evidence led
that that the employee acted in any manner which showed
that he was
unable to perform his duties at the time that the test was taken. He
considered the arguments by the employee that
dismissal remains a
measure of last resort and all circumstances should be considered
before a decision is made to dismiss. Also,
that there is no reason
to believe that the employee will repeat the misconduct.
[20]
In the Court’s view, the arbitrator was acutely aware of his
duties. He assessed the evidence before him in its
totality; he
considered the zero-tolerance policy as against the law as it was and
considered the evidence against it to determine
whether dismissal was
appropriate as in the
SGB
matter or whether the facts are
similar to those in
Enever.
[21]
As indicated earlier, the arbitrator may have incorrectly found that
the risk was no longer high. This however is not
sufficient.
[22]
In
Stock
Civils Engineering (Pty) Ltd v RIP NO and another
[10]
,
the Court, after articulating the test for review based on misconduct
says this:
‘
In
my view the following principles emerge: A court is entitled on
review to determine whether an arbitrator in fact functioned
as
arbitrator in the way that he upon his appointment impliedly
undertook to do, namely by acting honestly, duly considering all
the
evidence before him and having due regard to the applicable legal
principles. If he does this, but reaches the wrong conclusion,
so be
it. But if he does not and shirks his task, he does not function as
an arbitrator and reneges on the agreement under which
he was
appointed. His award will then be tainted and reviewable. It is
equally implicit in the agreement under which an arbitrator
is
appointed that he is fully cognizant with the extent of a limits to
any discretion or powers he may have. If he is not and such
ignorance
impacts upon his award, he has not functioned properly, and his award
will be reviewable. An error of law or fact may
be evidence of the
above in given circumstances but may in others merely be part of the
incorrect reasoning leading to an incorrect
result. In short,
material malfunctioning is reviewable, a wrong result per se not
(unless it evidences malfunctioning).
If the malfunctioning is in
relation to his duties, that would be misconduct by the arbitrator as
it would be a breach of the implied
terms of his appointment.’
[23]
Nothing in the pleadings or arguments
suggests that the Arbitrator engaged in improper conduct or acted
with any malfeasance or
dishonesty. There was no material
malfunctioning. The award is in the circumstances unassailable.
[24]
The arbitrator’s outcome therefore is not one a reasonable
decision-maker could not reach. The findings by the
arbitrator are
not divorced from the material before him and he did not misconceive
what was required of him.
Conclusion
[25]
It follows therefore that the application should be dismissed. The
parties will still be in an employment relationship
and therefore the
most appropriate order as to costs is that both parties remain
responsible for their own costs.
[26]
The effect of the application meant an interruption of the period for
the employee to report for duty as well as a provision
for backpay.
This must be remedied. I propose therefore ordering that the employee
reports for duty on 2 March 2026 and ordering
that he be paid backpay
calculated from 31 October 2023 to 2 March 2026, calculated as R
553 153.24 (R19 754.83 x 28
months).
Order
1. The application
for review is dismissed.
2. Each party will
pay their own costs.
3. Mr Keegan Mantis
must report for duty on 2 March 2026.
4. The Applicant
must pay Mr Mantis his full backpay for the period 31 October 2023 to
2 March 2026 calculated at R553 135.24
(five hundred and
fifty-three thousand one hundred and thirty-five rands and
twenty-four cents) by 31 March 2026.
C
May
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. S Khoza
Instructed
by:
Mamatela Inc. Cape Town
For
the first respondent:
Mr E Geldenhuys of
Macgregor Erasmus Attorneys Inc,
Cape Town
[1]
Act
60 of 2000.
[2]
(JA86/22)
[2024] ZALAC 12
;
[2024] 6 BLLR 562
(LAC); (2024) 45 ILJ
1554 (LAC) (23 April 2024)
[3]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
(2014)
35 ILJ 943 (LAC)
at
para 20.
[4]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[2012] 11 BLLR 1074
(SCA) at paras 12 and 13.
[5]
(2007) 28 ILJ 2405 (CC) at para 78.
[6]
(2023) 44 ILJ 179 (LAC).
[7]
[2023]
10 BLLR 1043
(LC); (2023) 44 ILJ 2261 (LC).
[8]
Enever
(id fn
3) a
t
para 43.
[9]
Enever
(id fn
3)
at
para 44.
[10]
(2002) 23 ILJ 358 (LAC) at para 52.