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[2026] ZALCCT 24
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IMATU obo Fortuin v City of Cape Town and Others (C419/2024) [2026] ZALCCT 24 (19 February 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no:
C419/2024
In the matter between:
IMATU obo BRONWIN
FORTUIN
Applicant
and
THE
CITY OF CAPE TOWN
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
COMMISSIONER
F VAN DER MERWE N.O.
Third Respondent
Heard
:
6 November 2025
Delivered
:
19 February 2026
Summary:
(Review application -
whether this Court
differs with the outcome or the finding of fact or law made by the
arbitrator is not sufficient for the Court
to interfere, something
more is required for thus is the dividing line between the Court’s
powers on review versus appeal
– where the result can
reasonably be reached by the route followed by the arbitrator, the
Court cannot intervene
– arbitrator’s award
reasonable and 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 Applicant’s member, Bronwin Fortuin’s (Fortuin),
dismissal was substantively and procedurally fair.
Background
[2]
Fortuin was employed with the First Respondent as an Administrative
Officer within the Library and Information Services
Department,
Community services Directorate since January 2023. On 16 November
2023 she was served with a notice of a disciplinary
hearing related
to an alleged charge of dishonesty in terms of which it was alleged
that she had lied when asked whether she had
ever been convicted at a
disciplinary hearing when she allegedly answered in the negative and
when her SAP record reflects that
she was in fact disciplined and
found guilty during June to October 2019 of serious misconduct
relating to gross insubordination,
insubordination and/or the abuse
of sick leave.
[3]
She was found guilty after the disciplinary hearing and dismissed on
5 March 2024. She subsequently instructed her Union,
IMATU, to refer
the matter to the Second Respondent who appointed the Third
Respondent to arbitrate the dispute.
The
award
[4]
At the arbitration, as with the Disciplinary hearing, the material
issue in dispute was whether Fortuin had disclosed
her previous
disciplinary infraction to the interviewing panel. She maintained
consistently that she had disclosed it with a clear
memory of what
had transpired whilst the First Respondent contended that she had
answered no to the question posed whether she
had previously faced
disciplinary action.
[5]
The First Respondent called Ms Annelie Scholtz as their relevant
witness in this respect. She is employed in the Human
Resources
Department, recruitment and selection. She is assigned to library and
information service who is her client and she does
the human
resources function for them. She was the human resources practitioner
assigned to the post in question and she interviewed
the candidates
for the position including Fortuin. She interviewed her on 2 November
2002 via Skype.
[6]
She testified that she asked Fortuin whether she was ever convicted
at a disciplinary hearing or whether she had ever
faced any
departmental action against her that they should be aware of, then
she wrote down the answer and then she asked, do you
have a criminal
record. She wrote down as answers to the questions no and no meaning
no to any disciplinary actions and no to criminal
record.
[7]
During cross-examination, she confirmed that there is no recording
available of the interview and that the only record
of the interview
is her notes. The other panellists, Tania Alcox Smith and Malusi
Radebe, didn’t keep record of Fortuin’s
answers to the
standard questions as they thought it was an HR function. It was put
to her that she had no independent recollection
of the answers given
by Fortuin but that she solely relied on her notes as a recollection
of what was said. It was further put
to her that Fortuin disputes
that she had answered no but that she in fact did disclose that she
had been through a previous disciplinary
hearing but that she
couldn’t recall the date and that she had asked her for the
details. Ms Scholtz disputed this and said
that if this was so, both
she and Ms Smith, who was Fortuin’s direct supervisor, would
have had follow up questions the answers
to which would have been
recorded by both.
[8]
Fortuin’s evidence was that she answered the question posed in
the positive and that the answer was followed with
follow up
questions by Ms Scholtz in terms of her asking around the time
period.
[9]
The arbitrator concluded that it is more probable than not that the
applicant had committed the misconduct complained
of, that it
constituted dishonesty, that the penalty of dismissal falls within a
band of reasonableness and consequently held the
dismissal to be
substantively and procedurally fair.
Grounds
of review and evaluation
[10]
Applicant contends that the award is reviewable on the basis that the
Commissioner committed gross irregularities in
that he was faced with
two mutually destructive versions and did not weigh up the evidence
as is required, he ignored vital and
material successful challenges
to the evidence especially the handwritten notes of Ms Scholtz, he
failed to consider that material
witnesses were not called, he made
biased and predetermined findings regarding Fortuin’s
credibility, he failed to apply
his mind to the applicable legal
standard when dealing with the standard or onus in unfair dismissal
matters and his overall conclusion
was one that no other reasonable
decision maker would have reached.
[11]
The First Respondent, on the other hand, contends that the arbitrator
duly and correctly, after consideration of all
the evidence
presented, weighed up the versions proffered by the respective
parties when making a determination as to the issue
of the second
question in the interview process and had due regard to the two
mutually destructive versions when assessing the
evidence of Scholtz
against Fortuin’s. They contend therefore that the arbitrator’s
reasoning was sound.
[12]
In assessing the conduct of the
arbitrator, the Court is enjoined to ask:
12.1
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?
12.2
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)?
12.3
Did the arbitrator understand the nature
of the dispute he or she was required to arbitrate?
12.4
Did he or she deal with the substantial
merits of the dispute? and
12.5
Is
the arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?
[1]
[13]
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.
[2]
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.
[14]
The
enquiry into the reasonableness of the decision arrived at by the
arbitrator requires an examination of the merits of the case.
This
task is informed by the standard review test as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
,
as it was explained in
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[4]
in the following terms:
‘…
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be reached
on the
evidence and other material properly before the arbitrator. On this
approach the reasoning of the arbitrator assumes less
importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside. The reasons are still
considered in order to
see how the arbitrator reached the result. That assists the court to
determine whether that result can reasonably
be reached by that
route. If not, however, the court must still consider whether, apart
from those reasons, the result is one a
reasonable decision maker
could reach in the light of the issues and the evidence.’
[15]
The
Court must also be mindful to avoid ‘judicial overzealousness’
in setting aside an award which does not coincide
with its own
views.
[5]
In other words,
whether this Court differs with the outcome or the finding of fact or
law made by the arbitrator is not sufficient
for the Court to
interfere, something more is required for thus is the dividing line
between the Court’s powers on review
versus appeal. It assists
therefore to restate that where the result can reasonably be reached
by the route followed by the arbitrator,
the Court cannot intervene.
If not, however, the court must still consider whether, apart from
those reasons, the result is one
a reasonable decision maker could
reach in light of the issues and the evidence. In other words,
whether the result reached falls
within the so-called band of
reasonableness. Differently put, whether the outcome accords with the
material properly before the
arbitrator.
[16]
As
far as assessing probabilities, in
Solidarity
obo Van Zyl v KPMG Services (Pty) Ltd and Others
[6]
,
Fourie JA held that:
“
While
arbitrators should always aspire to meet the exacting standard set by
the Supreme Court of Appeal in
Stellenbosch
Farmers’ Winery
for
the proper assessment of conflicting versions by a finder of fact, an
arbitration award that does not live up to this
standard will not
automatically be subject to review. Arbitrators are empowered to deal
with the dispute with a minimum of legal
formalities, their decisions
are immune from appeal, and the legislature has set a high bar for
reviewing arbitration awards. Errors
committed by an arbitrator in
the assessment thereof will not necessarily vitiate an award.’
[17]
In
adopting this approach to the merits before it the Court found that,
by failing to assess the credibility of any of the witnesses,
the
arbitrator
in
Solidarity
fell
short of the standard aspired to in
Stellenbosch
Farmers Winery Group Limited and other v Martell et Cie and
others
[7]
.
However, this alone did not render the award reviewable without first
considering whether his decision fell within the band of
reasonableness. Further to this it was not necessary for the
arbitrator to have found the applicant and his or her witnesses
unreliable
for him or her to find their version improbable.
[8]
[18]
The
Court ultimately held that the arbitrator’s findings, despite
the shortcomings in the award, were findings that a reasonable
commissioner could make on the totality of the evidence before him
and for that reason the Court was barred from intervening.
[9]
Application
[19]
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 probabilities favoured the
evidence of the employer or the employee 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 one that a reasonable
decision-maker could reasonably have arrived at.
[20]
In the Court’s view, it is apparent that the arbitrator was
acutely aware of his duties. He assessed the evidence
before him in
its totality; he considered the reliability and credibility of each
witness as well as the probabilities of their
versions
.
Whether
this Court agrees with those findings or not, is not sufficient for
this Court to interfere. After all this is a review
and not an appeal
and the Court on review is not concerned with factual or legal
findings unless the outcome reached by the arbitrator
was not one
that could reasonably be reached on the evidence and other material
properly before the arbitrator. There is a material
connection
between the evidence and the result, and the result is reasonably
supported by some evidence. As such the award is reasonable
and the
application for review falls to be dismissed.
Costs
[21]
The most appropriate order as to costs is that both parties remain
responsible for their own costs.
[22]
In the premise the following order is made:
Order
1.
The application is dismissed.
2.
Each party will pay their own costs.
C.
May
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Ms N
Weber (Union Official – IMATU)
For
the first respondent:
Adv
Ayden Jansen
Instructed
by:
Regan
Brown Inc, Cape Town
[1]
See:
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
(2014)
35 ILJ 943 (LAC)
at
para 20.
[2]
See:
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[2012] 11 BLLR 1074
(SCA) at paras 12 and 13.
[3]
(2007) 28 ILJ 2405 (CC).
[4]
[2012] 11 BLLR 1074
(SCA) at paras 12.
[5]
See also:
Assmang
Limited (Assmang Chrome Dwarsriver Mine) v Commission for
Conciliation Mediation and Arbitration and Others
[2015] 6 BLLR 589
(LC) at para 54.
[6]
(2014)
35 ILJ 1656 (LC) at para 17.
[7]
2003
(1) SA 11
(SCA).
[8]
See:
Transnet
Ltd v Gouws and Others.
Unreported
decision. Case no: JR206/09. Delivered on 25 April 2012 at paras 11
to 20.
[9]
See:
Transnet
(ibid)
at paras 19 to 21.