THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
Case No: JR1721/22
In the matter between:
PUBLIC PROTECTOR OF SOUTH AFRICA Applicant
and
SAMUEL, SPHELO HAMILTON First Respondent
COMMISSION FOR CONCILIATION, Second Respondent
MEDIATION AND ARBITRATION
COMMISSIONER JAMES MATSHEKGA N.O. Third Respondent
Heard: 17 February 2026
Delivered: 18 February 2026
Summary: Review of arbitration award of third respondent dismissed. Criteria
not satisfied. Award is reasonable considering the evidence and
material presented to the third respondent.
2
JUDGMENT
DANIELS J
Introduction
[1] The applicant is the Office of the Public Protector, an institution
established by virtue of Chapter 9, section 182, of the Constitution of the
Republic of South Africa. The Office of the Public Protector is critical to
the functioning of our constitutional democracy , and its primary function
involves the investigation any conduct in the State, or public
administration, alleged or suspected to be unlawful or improper.
[2] Until his dismissal, the first respondent was engaged by the Office of the
Public Protector as Senior Manager: Provincial Representative, Free
State Province. The first respondent referred a dispute about the fairness
of his dismissal to the Commission for Conciliation, Mediation and
Arbitration (the “CCMA”) and the third respondent (the “commissioner”)
found that his dismissal was substantively unfair. The commissioner
reinstated the first respondent into his former position, but limited
backpay to twelve months’ remuneration.
[3] The applicant brings this application to review and set aside the
arbitration award, delivered on or about 24 June 2022, under case
number GATW1336-22. In argument, the first respondent abandoned the
preliminary issue it raised regarding the authority of the chief executive
officer to depose to the founding affidavit.
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Material facts
[4] On or about 11 February 2020, the first respondent addressed a request
to the Speaker of the National Assembly (“the Speaker”) requesting that
she investigate the conduct of Advocate Busisiwe Mk hwebane
(“Mkhwebane”), who held the office of Public Protector then. The first
respondent lodged his request with the Speaker without attempting to
resolve his complaint through the internal grievance process. In an
affidavit, attached to the request, the first respondent indicated that he
wished to rescue the institution from the ‘ tyranny’ of Mkhwebane who
was engaged in an ‘orchestrated plan to destroy the institution’. The first
respondent identified a litany of complaints, some of which are recorded
below. The first respondent suggested that Mkhwebane had terminated
internal consultative structures because of her inadequate intellectual
and legal knowledge. The first respondent suggested that this resulted in
reckless litigation, at enormous cost to the institution, in defence of
reports that she had authored. The first respondent contended that
Mkhwebane neglected certain investigations related to politicians whom
she favoured and appointed compromised individuals into positions of
authority, including the former chief executive officer, who had been
dismissed by the Department of Rural Development and Land Affairs.
[5] On or about 17 February 2020, the first respondent was interviewed on
SABC and Radio 702 in which he explained the contents of his complaint
to the Speaker. The applicant contends that the interview was
unauthorised and conducted in breach of the media policy and
communications policy.
[6] Soon after the complaint and the media interviews, the first respondent
was charged with misconduct, on or about 6 March 2020. Among other
things, the first respondent was charged with bringing the Office of the
Public Protector into disrepute. The charges included several alternative
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charges which are omitted from what follows, given that the first
respondent was not dismissed for the alternative charges.
[7] In brief, the applicant alleged that:
7.1 The first respondent refused to immediately attend to a complainant,
Mr Peter Seabi, thereby contravening the Code of Conduct policy
(charge 1),
7.2 The first respondent assaulted Mr Peter Seabi by pushing him to the
ground in contravention of the Code of Conduct policy (charge 2),
7.3 The first respondent brought the organisation into disrepute because
he was convicted of assaulting Mr Peter Seabi, because of which the
organisation faced a civil suit for damages (charge 3),
7.4 The first respondent failed to follow the grievance procedure and
instead transmitted his complaint to the Speaker and to the media
(charge 4),
7.5 The first respondent participated in media interviews in breach of the
applicant’s policies and procedures (charge 5),
7.6 The first respondent participated in media interviews during which he
made disparaging remarks about Mkhwebane with the intention of
bringing the organisation into disrepute (charge 6),
7.7 The first respondent participated in media interviews during which he
disclosed confidential , and misleading, information relating to the
usage of the budget of the organisation (charge 7),
5
7.8 The first respondent participated in media interviews in which he
leaked confidential information, about financial expenditure, without
permission to do so, in contravention of his Declaration of Secrecy,
the Code of Conduct policy, and his conditions of employment
(charge 8),
7.9 The first respondent participated in media interviews during which he
incited other employees to challenge the fitness of Mkhwebane to
hold office as Public Protector (charge 9).
[8] Following the disciplinary process, on or about 18 December 2020, the
chairperson found the first respondent guilty of the charges and
dismissed him with immediate effect.
[9] The chairperson consolidated the nine charges in the following manner :
the original charges 1, 2 and 3 were consolidated into a new charge 1,
the original charge 4 became charge 2, original charges 5 and 6 became
charge 3, original charges 7 and 8 became charge 4 and original charge
9 became charge 5.
New charge 1
[10] The applicant contends that the commissioner erred by finding that it was
impermissible to discipline the first respondent for the incident between
himself and Mr Seabi, which had occurred almost nine years earlier . The
commissioner found that the applicant waived it’s right to discipline the
first respondent because the delay was unreasonable, there was no
reasonable explanation for the delay, and first respondent suffered
prejudice as a result. The applicant contends that, because the first
respondent did not testify, there was no evidence of any prejudice that he
had suffered because of the delay.
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[11] The commissioner found that, even if there was no waiver, there was no
substance to the charge because the applicant presented insufficient
evidence of the assault. The first respondent challenged the finding of
the Magistrates Court that he assaulted Mr Seabi and, at the time of the
arbitration, the appeal was pending.
[12] It appears that the applicant’s sole witness on the issue accepted that Mr
Seabi was the aggressor. Ms Tebogo Nkuna (“Nkuna”) testified that Mr
Seabi angrily barged into her office and then left just as abruptly without
introducing himself or greeting her. Nkuna witnessed Mr Seabi and the
first respondent “holding each other by the collars of the shirt” in the first
respondent’s office. Nkuna witnessed them “going at each other” and
they were “… like pulling each other by the collars of their shirts”.
New charge 2
[13] The commissioner noted that the applicant’s witnesses could not say
whether the first respondent had transmitted his complaint to the media,
and they conceded that the first respondent was entitled to submit a
complaint to the Speaker. The commissioner found that the first
respondent’s complaint to the Speaker contained no disparaging remarks
about Mkhwebane - apparently because she did not testify.
New charge 3
[14] The commissioner found that the first respondent had not violated the
grievance policy by participating in media interviews because the
grievance policy did not deal with media interviews. The commissioner
further that the first respondent did not participate in the interviews as a
spokesperson of the Public Protector . The commissioner found that the
first respondent was exercising his fundamental right to freedom of
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expression, which is necessary for the free and open exchange of ideas.
The commissioner noted, once again, that Mkhwebane did not testify
about why the first respondent’s remarks were disparaging or derogatory.
New charge 4
[15] The commissioner found that use of public money by a public institution
could not be considered confidential and, accordingly, first respondent
cannot be found guilty of disclosing confidential information or violating
his Declaration of Secrecy.
New charge 5
[16] The commissioner found that the media interviews could not amount to
incitement by the first respondent because, in context, ‘incitement’ refers
to the encouragement of others to behave unlawfully . Instead, the
commissioner found that the disciplinary action against the first
respondent constituted retribution for disclosures he made.
Grounds of review and analysis
Legal principles
[17] Our Constitutional Court
1 fashioned the test on review applicable to
arbitration awards of the CCMA as follows: is the arbitration award one
which no reasonable commissioner could reach on the material before
him or her ? A review will succeed only where the outcome is
unreasonable based on all the evidence before the commissioner even
where this is for different reasons to those contained in the award.
2
1 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
2 See Fidelity Cash Management Service v Commission for Conciliation, Mediation & Arbitration
& others (2008) 29 ILJ 964 (LAC) at para 96.
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[18] The Supreme Court of Appeal clarified in Herholdt v Nedbank Ltd
(COSATU as Amicus Curiae) 3 that the review test did not extinguish the
procedural grounds for reviews contemplated in section 145(2) (a) of the
LRA. However, the procedural defects alleged must indicate that the
arbitrator misconceived the nature of the enquiry or arrived at an
unreasonable result.
[19] In Head of the Department of Education v Mofokeng and others
4 the
court confirmed that when a n error of fact or law occurs, what matters is
its materiality - whether the error had a distorting effect on the outcome.
Grounds of review
[20] The applicant contends that the commissioner’s finding that the applicant
had waived its right to discipline was irregular primarily because the first
respondent failed to testify about the prejudice he suffered because of
the delay.
[21] In Moroenyane v Station Commander of the SAPS – Vanderbijlpark
(“Moroenyane”) [2016] ZALCJHB 330 (26 August 2016) Snyman AJ
stated:
“
[38] In deciding whether a delay could possibly serve to render the institution
or continuation of disciplinary proceedings unreasonable and unfair,
guidance in be found in referring to the issue of a stay in criminal
proceedings due to an undue delay in such proceedings. In Bothma v Els
and Others the Court considered the question of a permanent stay of a
private prosecution due to a delay in the bringing of the prosecution.
Sachs J said: ‘…. the delay in the present matter must be evaluated not
3 (2013) 34 ILJ 2795 (SCA)
4 [2015] 1 BLLR 50 (LAC)
9
as the foundation of a right to be tried without unreasonable delay, but as
an element in determining whether, in all the circumstances, the delay
would inevitably and irremediably taint the overall substantive fairness of
the trial if it were to commence.’
[39] In then considering whether a delay would taint overall substantive
fairness, Sachs J referred with approval to the following dictum from the
judgment in Sanderson v Attorney-General, Eastern Cape:
‘…. The critical question is how we determine whether a particular
lapse of time is reasonable. The seminal answer in Barker v
Wingo is that there is a `balancing test' in which the conduct of both
the prosecution and the accused are weighed and the following
considerations examined: the length of the delay; the reason the
government assigns to justify the delay; the accused's assertion of
his right to a speedy trial; and prejudice to the accused.’
Sachs J then added the following:
‘A word of caution: these four factors should not be dealt with as
though they constitute a definitive check list. A balancing test
necessarily compels courts to approach speedy trial cases on an ad
hoc basis…. ’
(own emphasis)
[22] In Moroenyane the court highlighted the factors to be considered in
relation to waiver of the right to discipline: the length of the delay (which
must be unreasonable) , the explanation for the delay (which must be
poor or non- existent), whether the employee took steps to ensure a
speedy process, whether there was material prejudice to the employee,
and the nature of the offence. These factors are to be considered and
balanced holistically. It is of course important not to lose sight of the fact
that employees have a right to a speedy disciplinary process, and
employers have a duty to take speedy disciplinary action.
10
[23] In Stokwe v Member of the Executive Council, Department of Education,
Eastern Cape & others5 the Constitutional Court accepted that there may
well be instances where an employer has waived it’s right to take
disciplinary action . E ach case must be assessed on their own merits.
The Constitutional Court noted that: “The requirement of promptness not
only extends to the institution of disciplinary proceedings, but also to their
expeditious completion. If an employee is retained in employment for an
extended period after the institution of disciplinary action, it may indicate
that the employment relationship has not broken down.” (own emphasis)
[24] In National Union of Metalworkers of SA v Intervalve (Pty) Ltd & others 6
Cameron J held as follows:
“[60] ... Waiver is the legal act of abandoning a right on which one is otherwise
entitled to rely. It is not easily inferred or established. The onus to prove it
lies with the party asserting waiver. That party is required to establish that
the right-holder, with full knowledge of the right, decided to abandon it.
[61] So waiver depends on the intention of the right-holder. That can be proved
either through express actions or by conduct plainly inconsistent with an
intention to enforce the right. It may be inferred from the outward
manifestations of the right-holder's intention: 'The outward manifestations
can consist of words; of some other form of conduct from which the
intention to waive is inferred; or even of inaction or silence where a duty to
speak exists’.
(own emphasis)
[25] The commissioner cannot be faulted for finding that the applicant waived
it’s right to take disciplinary action in relation to an incident that occurred
approximately nine years earlier. The applicant gave no indication during
this period that it intended to take disciplinary action. The applicant’s
5 (2019) 40 ILJ 773 (CC) at para [67]
6 (2015) 36 ILJ 363 (CC)
11
inaction was inconsistent with an intention to enforce its right to
discipline. With a delay of approximately nine years, the overall
substantive fairness of the disciplinary process is inevitably and
irremediably tainted. It is inescapable that, with a delay of approximately
nine years, necessary witnesses are no longer available, or their
memories would have faded.
7 On the facts, the first respondent
discharged the onus of proving waiver. However, even if this is incorrect ,
the commissioner explained that there was insufficient evidence to justify
a guilty finding. A conviction in a criminal court cannot, by itself, suffice to
prove misconduct in a different tribunal. More is required. The finding that
the alleged misconduct was not proven by the applicant is reasonable on
all the evidence. In any event, the applicant, as employer, can hardly
contend that, after nine years of knowledge of the alleged assault, the
employment relationship had irretrievably broken down.
[26] The applicant alleges that the first respondent ought to have testified that
he acted in self -defence. This misses the point - that the onus is on the
employer to prove the misconduct. The conviction in the criminal court is
not evidence of misconduct. Nkuna’s evidence did not establish that the
first respondent assaulted Mr Seabi n or that he behaved inappropriately.
Clause 3.2.3 of the Code of Conduct states that staff must be “polite,
helpful and reasonably accessible” in their dealings with the public. The
applicant conceded that clause 3.2.3 assumes that the public is not
unreasonable or aggressive. For example, a member of the public who is
threatening to shoot a staff member cannot expect politeness in return.
The applicant conceded further that the evidence was insufficient to find
the first respondent guilty of assaulting Mr Seabi.
7 In Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) Didcott J stated: “Inordinate delays in
litigating damage (sic) the interests of justice. They protract the disputes over the rights and
obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs.
Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By
then witnesses may no longer be available to testify. The memories of ones whose testimony
can still be obtained may have faded and become unreliable. Documentary evidence may have
disappeared. Such rules prevent procrastination and those harmful consequences of it. They
thus serve a purpose to which no exception in principle can cogently be taken.” (own emphasis)
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[27] The applicant alleges that the award is unreasonable because of the
commissioner’s finding that it was necessary for Mkhwebane to testify -
that first respondent’s remarks were disparaging. I agree that this finding
was unreasonable. However, by itself , the error does not render the
outcome unreasonable. The error was not so significant that it materially
affected the outcome. T he commissioner correctly referred to the first
respondent’s right to freedom of expression. The first respondent’s
remarks and opinions were based in personal observations and well
grounded. It is evident, from the contents of the complaint itself , that first
respondent, at personal risk, conduct ed himself in a manner he believed
necessary to preserve the integrity of the Office of the Public Protector.
8
In the complaint, he says so. Even if it is assumed that his remarks about
Mkhwebane were disparaging, it is well established that insolence does
not attract the sanction of dismissal for a first offence unless such
misconduct is serious and wilful.9
[28] The applicant submits that the commissioner failed to apply his mind to
the evidence which showed that the first respondent breached the m edia
policy which prevents the unauthorized release of information “ of any
kind” without the prior consent of the Public Protector. I cannot accept
the submission. Subject to certain procedural limitations, provincial
representatives are permitted to do radio interviews and write articles for
publication on the mandate, role, functions, work and events of the Public
Protector.
10 The first respondent’s letter of appointment 11 indicated that
his duties and responsibilities included section 3(13) of the Public
Protector Act, which required that he act impartially and independently
and perform his functions “in good faith and without fear, favour, bias or
prejudice”. The m edia policy must be understood in that context. One
8 Annexure FA4 to the Founding Affidavit, Pleadings pp95 - 106
8 Annexure FA4 to the Founding Affidavit, Pleadings pp95 - 106
9 See Palluci Home Depot (Pty) Ltd v Herskowitz & others (2015) 36 ILJ 1511 (LAC) at para 22
10 Clause 6.2.8 of the Media Policy, pleadings bundle p113
11 Pleadings bundle p45
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cannot ignore that the Public Protector is a public institution, designed to
protect the public interest in good governance. T he commissioner
carefully balanced the m edia policy against the fundamental right to
freedom of expression. The blanket prohibition envisaged by the media
policy is untenable. Our law protects the disclosure of information by
employees, made in good faith, which reveals or tends to reveal criminal
activity, corruption, or other forms of unlawful conduct . The first
respondent submitted that the remarks cannot be considered disparaging
unless they are false and, with the benefit of hindsight, the court must
accept that his remarks were accurate.
Conclusion
[29] For the reasons set out above, the grounds for review have no
substance. The outcome is reasonable in the context of the evidence
presented to the commissioner. For the sake of completeness, it bears
mentioning that, since the dismissal of the first respondent, Mkhwebane
herself was removed from office, by the President, on 13 September
2023, following an enquiry conducted by the National Assembly under
s194 of the Constitution. It is a matter of public record that many of the
complaints raised by the first respondent featured in the final report of the
National Assembly.
Costs
[30] In this court, costs do not follow the result. There is nothing in law or
fairness which dictates that a cost order should be made.
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Order
[31] In the circumstances, I make the following order:
31.1 The application is dismissed,
31.2 There is no order as to costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Adv Mofokeng
Gildenhuys Malatji Inc
For the First Respondent:
Union Official