THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR2929/2019
In the matter between:
S & D PLANTS (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER MATLHODI MOLEBOGENG MOLEKE N.O.
(Cited in her capacity as Commissioner for the Commission
for Conciliation, Mediation and Arbitration) Second Respondent
MEDWUSA obo UNARINE MANYAMA & 3 OTHERS Third
Respondent
Heard: 20 January 2026
Delivered: 13 February 2026
JUDGMENT
MUNSAMY, AJ
Introduction
(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] This is an application to review and set aside the Arbitration Award of the
Second Respondent under the auspices of the First Respondent dated the
25th of November 2019.
[2] The Applicant instituted an application to review and set aside the Arbitration
Award of the Second Respondent insofar as the Second Respondent ordered
that the dismissals were procedurally unfair.
[3] The Third Respondent filed a “ cross-review” on the 6
th of May 2020. In that
application it seeks condonation for the late filing of the cross-review, granting
the Third Respondent leave to file the “cross- review” and that the Arbitration
Award of the Second Respondent be reviewed and set aside insofar as she
found that the dismissals were substantively fair.
[4] It is necessary to set out the consolidated facts of this matter prior to dealing
with the individual applications. The “cross-review” was not filed as a separate
case but under the same case number and will be determined accordingly.
Brief Background
[5] The Applicant operated a wholesale nursery business and employed
approximately 100 employees. The Third Respondents ’ members were
employed by the Applicant . No recognition agreement existed between the
Applicant and the Third Respondent . Prior to the issues which arose in the
current proceedings, the individual respondents were dismissed and
reinstated by way of a settlement agreement on the 26
th of June 2019 with
final written warnings. The final written warnings were for similar misconduct,
that is, unauthorised absence from the workplace.
12 August 2019
[6] The individual Respondents were notified on the 8 th of August 2019 that the
short time would no longer apply from the 12 th of August 2019 onwards. The
individual Respondents decided that they would not work the full hours as
instructed on the basis that a dispute had been referred to the CCMA
regarding a unilateral change to terms and conditions of employment , which
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was set down for conciliation on the 15 th of August 2019. In that referral , the
relief sought was to “restore their normal working hours and or reinstate back
to normal working hours”. The individual respondents did not work the full
hours prescribed for the 12th of August 2019 and left the workplace at 15h00.
13 August 2019
[7] On this date, the individual Respondents left the workplace, again, at
approximately 15h00, prior to the end of the working day , which ordinarily
concluded at 16h30.
[8] The Applicant regarded this conduct as a failure to comply with a lawful and
reasonable instruction to remain at work until the end of the shift.
[9] The individual Respondents contended that they were unaware that they were
required to remain at work beyond 15h00 and disputed that they had acted
without authorisation.
14 August 2019
[10] The individual Respondents reported for duty as usual.
[11] They were issued with final written warnings for leaving the workplace early
on the 12
th of August 2019 and notices to attend disciplinary hearings for their
misconduct on the 13 th of August 2019, the hearings were scheduled for 19th
of August 2019.
[12] The charge sheets were for gross insubordination, in that the individual
Respondents had failed to obey a lawful and reasonable instruction to work
until 16h30 on 13 August 2019 and had left the workplace without permission.
[13] On the same day, the individual Respondents were also issued with final
written warnings and/or suspension notices.
[14] A dispute arose during the arbitration proceedings as to the sequence, timing
and purpose of these documents, including whether the warnings were issued
before or after the notices of disciplinary hearing.
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16 August 2019
[15] The Third Respondent addressed correspondence to the Applicant , indicating
that it intended to represent the individual Respondents at the disciplinary
hearings scheduled for 19 August 2019.
19 August 2019 – Disciplinary Hearings
[16] Disciplinary hearings were convened on this date before an appointed
chairperson. The individual Respondents sought representation by
MEDWUSA officials. The chairperson ruled that, in the absence of a
recognition agreement, the individual Respondents were not entitled to
external union representation. The chairperson advised the individual
Respondents that they were entitled to representation by a fellow employee or
shop steward.
[17] The disciplinary hearings proceeded on this basis.
[18] Evidence was led by the Applicant in support of the charges of gross
insubordination.
[19] The individual Respondents were afforded an opportunity to state their case,
call witnesses and make submissions. Save for one individual respondent, the
rest of the individual respondents elected to walk out of the proceedings.
21 August 2019
[20] Following the conclusion of the disciplinary hearings, the chairperson found
the individual Respondents guilty of gross insubordination.
[21] The sanction of dismissal was imposed, and the individual Respondents’
employment with the Applicant was terminated with effect from this date.
[22] The Third Respondent referred an unfair dismissal dispute to the Commission
for Conciliation, Mediation and Arbitration (CCMA) on behalf of the individual
Respondents. The arbitration proceedings commenced before the Second
Respondent (the Commissioner). Evidence was led by both parties, including
testimony from the Applicant’s representatives, the chairperson of the
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disciplinary hearings, and the individual Respondents. On the 25 th of
November 2019, the Second Respondent issued an arbitration award in which
she found that that the dismissals of the individual Respondents were
substantively fair but were procedurally unfair, primarily arising from concerns
relating to representation being during the disciplinary hearings and the
resultant effect it had on the employees ability to proceed with the matter
thereafter.
[23] Compensation was awarded to the individual Respondents in respect of the
procedural unfairness finding.
“Cross-review”
[24] The Labour Court has long since determined that there is no such “animal” as
a cross-review. In SABC Limited v Grogan NO and Another 1, the Labour
Court held:
‘Rule 7A makes no provision for an animal such as a “counter review”. This is
in contradistinction to Rule 5(5) of the Rules of the Labour Appeal Court, that
provides for a Notice of Cross Appeal to be delivered within ten (10) days, or
such longer period as may on good cause be allowed close, after receiving
Notice of Appeal from an Appellant. The absence of a similar provision in
Rule 7A relating to a counter -review does not, to my mind, mean the
Respondent in the review application can sit on his hands and then, only after
the Applicant has filed a Rule 7A(8) Notice, file a counter -review without
further ado. On the contrary, it appears to me that what is styled as a
“counter-review” is simply an application for a review by a different name. The
Second Respondent seeks to review different aspects of the findings of the
Arbitrator, and on different grounds. That would usually be the case where a
Respondent seeks to bring an application for a counter -review. He has to file
a proper application for review and has to do so within six (6) weeks after
publication of the Award.’
[25] Whilst the Third Respondent has sought condonation for the late filing of its
cross-review its explanation for the delay consists of two paragraphs:
cross-review its explanation for the delay consists of two paragraphs:
1 [2006] 2 BLLR 207 (LC) paras 15 to 16.
6
‘14. The Third Respondent on the 20 th April 2020, served the Applicant
with notice in terms of Rule 7A(8)(a) with attachment, including the
transcribed record of Arbitration. Having read the transcribed record
and together with CCMA content of documents, I submit to the above
Honourable court that the Applicant to be granted leave to brought
(sic) this cross-review application.
15. Under this affidavit I attach the condonation application in terms of
section 145(1A) read together with Rule 12 of Labour Court Rules of
which the Applicant seeks the Honourable Court to condone the late
filing of applicant’s leave for application for cross -review.’ (Own
emphasis)
[26] It is concerning that there is no attached condonation application in terms of
Section 145(1A) of the LRA. Be that as it may, the Notice of Motion does seek
condonation, and the Court is obliged to determine such application based on
the Supporting Affidavit.
[27] The test for condonation is set out in Melane v Santam Insurance Co Ltd 2 as
follows:
‘In deciding whether sufficient cause has been shown, the basic principle is
that the Court has a discretion, to be exercised judicially upon a consideration
of all the facts, and in essence it is a matter of fairness to both sides. Among
the facts usually relevant are the degree of lateness, the explanation therefor,
the prospects of success, and the importance of the case. Ordinarily these
facts are interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion, save of course that if
there are no prospects of success there would be no point in granting
condonation. Any attempt to formulate a rule of thumb would only serve to
harden the arteries of what should be a flexible discretion. What is needed is
an objective conspectus of all the facts. Thus a slight delay and a good
explanation may help to compensate for prospects of success which are not
explanation may help to compensate for prospects of success which are not
strong. Or the importance of the issue and strong prospects of success may
tend to compensate for a long delay. And the respondent’s interest in finality
must not be overlooked.’
2 1962 (4) SA 531 (A) at 532 B-F.
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[28] In Independent Muncipal & Allied Trade Union obo Nathan v Polokwane Local
Municipality3 it was held that:
‘[15] The Constitutional Court has developed this test and has ruled that in
determining an application for condonation, what must be considered
is whether or not it is in the interests of justice that condonation be
granted. In doing so, various factors must be taken into account. The
Constitutional Court held as follows in Grootboom v National
Prosecuting Authority & another:4
“[22] [T]he standard for considering an application for condonation is
the interests of justice. However, the concept “interests of
justice” is so elastic that it is not capable of precise definition.
As the two cases demonstrate, it includes: the nature of the
relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and other litigants;
the reasonableness of the explanation for the delay; the
importance of the issue to be raised in the intended appeal;
and prospects of success . It is crucial to reiterate that both
Brummer and Van Wyk emphasise that the ultimate
determination of what is the in the interests of justice must
reflect due regard to all the relevant factors but it is not
necessarily limited to those mentioned above. The particular
circumstances of each case will determine which of these
factors are relevant.
[23] It is now trite that condonation cannot be had for the mere
asking. A party seeking condonation must make out a case
entitling it to the court’s indulgence. It must show sufficient
cause. This requires a party to give a full explanation for the
non-compliance with the rules of court’s directions. Of great
significance, the explanation must be reasonable enough to
excuse the default”.’5
3 (2020) 41 ILJ 937 (LC); [2019] ZALCJHB 290.
4 2014 (2) SA 68 (CC) at paras 22-23.
5 In Grootboom v National Prosecuting Authority and another 2014 (2) SA 68 (CC) at para 51 it was
held that: “The interests of justice must be determined with reference to all relevant factors. However,
some factors may justifiably be left out of consideration in certain circumstances. For example, where
the delay is unacceptably excessive and there is no explanation for the delay, there may be no need
8
[29] As pointed out by the Applicant, the Third Respondent’s cross-review was one
hundred and twenty-one (121) days late without any explanation for the delay.
Furthermore, it did not inform this Court of the extent of the delay. Absent a
clear indication of the duration of the delay and an explanation provided to the
Court, such delay is considered egregious and fatal to the condonation
application.
[30] In NUM v Council for Mineral Technology
6, the Labour Appeal Court held as
follows:
‘…without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial and without prospect of success, no
matter how good the explanation for the delay, an application for condonation
should be refused.’
[31] Section 145 of the Labour Relations Act 7 (LRA) clearly stipulates that any
party seeking to bring a review application under this section is required to do
so within a six -week period. If this deadline is missed, the party must then
apply to the Labour Court and demonstrate good cause why a delay should
be condoned. Given that it has long since been held that “cross -reviews” do
not exist within the Labour Court, the conduct of the Third Respondent is
inexcusable.
[32] Therefore, where the aforementioned explanation for the delay is non-
existent, it is not relevant to consider the Applicant’s prospects of success. In
any event, the individual Respondent’s conduct in this matter, being of such a
nature that they were on perpetual warnings for their misconduct and
continued to commit misconduct of a similar nature, the prospects of success
are minimal insofar as this Court would be required to set aside the
reasonableness of the Second Respondent’s award.
to consider prospects of success. If the period of delay is short and there is unsatisfactory explanation
but there are reasonable prospects of success, condonation should be granted. However, despite the
presence of reasonable prospect of success, condonation may be refused where the delay is
presence of reasonable prospect of success, condonation may be refused where the delay is
excessive, the explanation is non-existent and granting condonation would prejudice the other party.
As a general proposition the various factors are not individually decisive but should all be taken into
account to arrive at a conclusion as to what is in the interests of justice”.
6 [1999] 3 BLLR 209 (LAC); [1998] ZALAC 22 at para 10.
7 Act 66 of 1995, as amended.
9
[33] It is for the aforementioned reasons that the cross -review is dismissed with
costs.
The Review Application
[34] The review application is on one point , that being whether or not the Second
Respondent’s finding that the dismissals were procedurally unfair should be
reviewed and set aside.
[35] In this regard, the material facts as summarised above are applicable.
[36] Notably, the finding in respect of Manyama being immediately reviewable in
circumstances where her case was dealt with identically to that of
Netshivhazwaulu, Tsikundamalema and Netshiheni, who did not participate in
their hearing. As recorded above, the other three individuals elected not to
participate in their disciplinary hearing, whereas Manyama was represented
by Netshiheni and participated fully in her disciplinary hearing. Even though
the Second Respondent did not distinguish between these individuals it is not
the most pertinent reason insofar as the challenge to the procedural
unfairness finding itself.
[37] The Commissioner’s findings in relation to procedural fairness are recorded in
the Arbitration Award as follows:
‘53. The period for preparation or that the applicants understood the
allegations put against them has not been disputed. The applicants
have however disputed that they were allowed to present their version
and allowed to call a representative. It is common cause that the
applicants had applied to have MEDWUSA to represent them and Ms
Kotze ruled that the MEDWUSA was an external party and did not
have a recognition agreement with the respondent and on this basis
ruled that it could not represent the applicants. Given that the Union
10
was not allowed to represent the applicant and the applicants’ were to
be given an opportunity to find an alternative representative and
prepare with the representative, I do not believe that a reasonable
chairperson would have not adjourned the matter for the day, to allow
the applicants an opportunity to find someone else to assist them. The
respondent version is that the applicants should have requested a
postponement in this regard but given that it was clear that the
Applicants were not comfortable with proceeding with the hearing, this
should have been taken into consideration.
54. The principle of equity and justice is paramount to all employee
relations dispute, especially those resulting to the dismissal of
employees. It is not merely a requirement of ensuring that it is a tick
box exercise but requires that the procedure followed is fair. Having
taken into consideration the respondent’s version that the respondent
did not allow MEDWUSA to represent the applicant despite their plea
that there was a language barrier, an inability to proceed without a
representative, a short adjournment would not have sufficed to bring a
new representative up to board in order to adequately represent the
applicants. I therefore find that the dismissal was not procedurally fair.’
[38] It is accepted that the Award of the Second Respondent warrants interference
insofar as she reached a decision that no reasonable decision maker could
have reached.
[39] Given that the Third Respondent did not have Section 14(4)(a) 8 rights to
represent the employees in internal disciplinary proceedings. It did not have a
recognition agreement and was aware of this throughout the preceding
months, during which it had been at loggerheads with the Applicant. It should
not have taken the risk of being prepared to represent the individual
Respondents only, who should have been well aware that in the event that the
application is refused for representation by the Third Respondent , they would
application is refused for representation by the Third Respondent , they would
be required to proceed with the hearing. This was not their first issue of
misconduct in the preceding months.
8 Labour Relations Act No. 66 of 1995
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[40] The Second Respondent could not come to the aid of the Third Respondent
and individual Respondents who did not apply for a postponement after being
denied representation. They elected to proceed with the disciplinary hearing
of Manyama. They then decided not to participate in the enquiry any further
after the proceedings, as Manyama had concluded.
[41] Absent an application for a postponement, it is wholly unreasonable for a
Commissioner to find that an internal Chairperson should independently
adjourn proceedings. While the Chairperson may possess the authority to do
so, it would be highly prejudicial to the Applicant, who was given five (5) days’
notice of the hearing and adequate time to prepare to face the charges. The
charges themselves were straightforward, pertaining to the decision to refuse
work during the period from 15h00 to 16h30. The individual Respondents
were required to provide an explanation for their decision to do so. This
determination should have been carefully evaluated by the Second
Respondent, but she failed to do so.
[42] The Second Respondent also accepted evidence from the individual
Respondents that was never put to the Applicants when their witnesses
testified, this evidence being that:
42.1 Kotze chased Shabalala out of the hearing, and therefore there was
nothing that they could say as they did not understand English; and
42.2 Kotze informed them that they could stand up and leave if they had
nothing to say.
[43] The aforementioned version was never put to the Applicant ’s witnesses. It is
trite that in order for a party to rely on a version and for a presiding officer to
determine the issue of fairness based on such version, it must be put to the
Applicant’s witnesses in order t o have responded. Against this, the Second
Respondent found that there was a language barrier and an inability to
proceed without a representative. Therefore , the Second Respondent found
that a short adjournment would not have sufficed to bring a new
that a short adjournment would not have sufficed to bring a new
representative. However, I must accept the Applicant ’s version that this was
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never an issue properly raised before the Second Respondent and she ought
not to have relied on same in coming to her findings.
[44] I have considered the decision and principles set out by the Constitutional
Court in Sidumo and Another v Rustenburg Platinum Mines Limited and
Others9. In particular, the Court held that:
‘[110] …s 145 of the LRA was suffused by the then constitutional standard
that the outcome of an administrative decision should be justifiable in
relation to the reasons given for it. The better approach is that s 145 is
now suffused by the constitutional standard of reasonableness. That
standard is the one explained in Bato Star: Is the decision reached by
the commissioner one that a reasonable decision maker could not
reach? Applying it will give effect not only to the constitutional right to
fair labour practices, but also to the right to administrative action which
is lawful, reasonable and procedurally fair.’
[45] In assessing the reasonableness of the Second Respondent’s finding, I am of
the view that she reached a decision based on an issue and evidence that
was not before her; that is, there was no application to postpone the internal
disciplinary proceedings. Further, she relied on the individual Respondent’s
utterances regarding the internal proceedings , which were never put to the
Applicant’s witnesses.
[46] It is for these reasons that the Second Respondent reached a decision that no
reasonable decision-maker could have reached.
Costs
[47] Whilst the Applicant sought costs only in the event of any of the Respondents
opposing this application, I have considered the Third Respondent ’s
opposition and do not believe that it was of such a nature so as to warrant an
adverse costs order. Fairness and equity dictate in this matter that , in respect
of the Applicant’s review application, there is no order as to costs . However,
as pointed above and for the reasons stated in the reasons for dismissing the
as pointed above and for the reasons stated in the reasons for dismissing the
application itself, the Third Respondents’ cross review stands to be dismissed
9 [2007] 12 BLLR 1097 (CC); [2007] ZACC 22.
13
with costs on the basis of its complete disregard for the rules and procedures
of this Court.
[48] It is hereby ordered as follows:
Order
1. The Third Respondent’s cross review application is dismissed with
costs on a party and party scale C;
2. The Applicant’s review application is granted. The arbitration award
issued by the Second Respondent under GAJB21601- 19 is hereby
reviewed, set aside and replaced with the following order:
2.1 The dismissals of Unarine Manyama, Reginah Netshiheni,
Mulalo Netshivhazwalu and Sylvia Tsikundamalema were
procedurally fair.
3. There is no order as to costs in respect of the review application.
K. R. Munsamy
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: J. Du Randt
DDP Attorneys
For the Respondent: G.Sebola (Union Official)
Instructed by: MEDWUSA