THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No. C413/24
In the matter between:
SAMWU o.b.o. R. WILLIAMS Applicant
and
CITY OF CAPE TOWN METROPOLITAN MUNICIPALITY First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (SALGBC) Second Respondent
EDWARDS, G N.O. Third Respondent
Heard: 11 February 2026
Delivered: 19 February 2026
Labour law - Review of arbitration award – Misconduct - Alleged breach of workplace
rule – Failure to report incident – Commissioner’s duties – Material errors – failure to
consider existence and reasonableness of rule, and appropriateness of sanction –
Award unreasonable and set aside.
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
MAKHURA, J
Introduction
[1] The South African Municipal Workers’ Union (SAMWU or union) act s in these
proceedings on behalf of its member, Ryan Williams (Williams or individual
applicant). Collectively, they are referred to as the applicant. They seek to review
and set aside an arbitration award in which the third respondent commissioner
dismissed Williams’ unfair dismissal claim. The first respondent opposes the
application.
Material facts and evidence
[2] Williams was employed as Senior Superintendent: High Voltage Overheads with
over 25 years of service at the time of dismissal , having held h is position since
2021.
[3] On 28 July 2022, the first respondent charged Williams with six allegations of
misconduct, which included gross dereliction of duties, victimisation and causing
a disharmonious workplace. On 22 June 2023, following a disciplinary hearing
that started in August 2022 , Williams was dismissed for one allegation of gross
dereliction of duties, which was:
‘You misconducted yourself in t he gross dereliction of your duties as a Senior
Superintendent on the 2 March 2021 whereby you failed to address and report
the matter to your line manager when Mr Avontuur and Mr Malibo informed you
that Mr Roberts had removed copper from Acacia HV Yard and transported the
said copper off the City of Cape Town property by means of his personal vehicle.’
[4] Following his dismissal, the applicant referred an unfair dismissal dispute to the
second respondent (SALGBC), challenging the dismissal on substance and
procedure. Williams also sought to be reinstated.
[5] At arbitration, the first respondent called three witnesses, namely Ver non
Avontuur (Avontuur) and Jacob Malibo (Malibo) , who were employed as a
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handyman and special workman respectively. These two employees reported to
Michael Roberts (Roberts), who was employed as an artisan. The third witness
was Raphael Swinny (Swinny), employed as Manager: High Voltage
Circuit/Overhead Lines/Underground Cables and Williams’ line manager.
[6] On 24 February 2021, Avontuur and Malibo accompanied Roberts to Acacia
Park, where Roberts instructed them to strip copper cables from a substation.
After they removed the cables, they loaded them onto the first respondent ’s
bakkie and later drove to the Ndabeni Overheads depot. Once there, they
transferred the copper from the bakkie into Roberts’ private vehicle. According to
their testimony, Roberts told them he would take the copper to the first
respondent’s reclamation centre.
[7] Avontuur was not at work on Thursday, 25 February 2021, but reported for duty
on Friday, 26 February 2021. Roberts slipped an envelope containing R500.00
into Avontuur’s arm before going to look for Malibo. Roberts later instructed both
Malibo and Avontuur to follow him to his residential place. At his residential
place, Avontuur enquired from Roberts what the money was for. Roberts
explained that it was for the copper removed on 24 February 2021, which he had
sold to a friend. Upon hearing this, Avontuur returned the money to Roberts.
[8] On 26 February 2021, Avontuur and Malibo decided that they needed to report
the theft. They approached Williams on 2 March 2021 and relayed the incident to
him in his office, in the presence of Roberts. According to Avontuur, Williams did
not appear surprised when hearing their account.
[9] Williams, so Avontuur testified, told all three employees that they would face
disciplinary action and could potentially lose their jobs. Avontuur further testified
that this response left him devastated because he had expected William s, as a
manager, to be someone they could trust and confide in. He testified:
‘I felt devastated because here my colleague and I are coming to what is
‘I felt devastated because here my colleague and I are coming to what is
supposed to be a trustworthy person, a manager, where you can put your trust
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in. Whenever something happens on site, you can go to somebody at least,
where you can go and rely on that person and tell that person what actually
happened. But, at the end this person that you are supposed to be trusting is
telling you, you are going to lose your job for doing something right and I was so
devastated and heartbroken just to hear what a managerial person is telling you
at the end of the day.’
[10] Avontuur testified that after Williams told them they risked losing their jobs, he
and Malibo waited for about three days , this being the period Williams allegedly
asked for to address with the matter , before approaching Swinny, as they felt
Williams was not taking any steps to deal with the matter. However, on 3 March
2021, Avontuur requested a meeting with Swinny, and they ultimately met with
him and Irwin Oostendorp (Oostendorp), the first respondent’s Labour Relations
Practitioner, on 4 March 2021, whic h was before the end of the three- day period
Williams had supposedly requested.
[11] Meanwhile, on 3 March 2021, Williams asked Aashiq Levy (Levy), employed as a
clerk in his office, to arrange for documents needed for a disciplinary hearing.
The next day, 4 March 2021, at 13h26, Williams sent Levy a WhatsApp reminder
about the “hearing process and associated paperwork ”. A few minutes later, at
13h31, Levy emailed Gary Bradley (Bradley), an administration officer who also
assisted with disciplinary matters, about the documents. At 17h15 that same day,
Levy forwarded the forms to Williams, but Williams later testified that the
documents were the wrong ones. Williams testified that h e left work around
17h45 and phoned Swinny that evening to report the incident. According to him,
Swinny told him that Avontuur and Malibo had already reported it and had been
asked to submit affidavits. Swinny, however, denied this and said that Williams
only spoke to him on the morning of 8 March 2021.
[12] At 7h26 on Monday, 8 March 2021, Williams sent Swinny a WhatsApp message.
[12] At 7h26 on Monday, 8 March 2021, Williams sent Swinny a WhatsApp message.
The message reads that:
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‘morning Raphael I will ask the two gentlemen to write up affidavit at the police
station.’
[13] In response, Swinny wrote:
‘Morning Ryan, the incident has been reported to Irwin by the two individuals
already. Due to the seriousness of the allegations, Vernon has been removed
and placed at Bloemhof.’
[14] The first respondent’s case, throughout the arbitration proceedings, was that
Williams should have reported the incident to Swinny on 2 March 2021. The
commissioner adopted this view, repeatedly stating that the charge implied
Williams had a duty to report the matter immediately on that day. The first
respondent went as far as suggesting that Williams intended to sweep the matter
under the carpet.
[15] At the start of the arbitration, the commissioner questioned the first respondent ’s
representative, Oostendorp, about the specific workplace rule Williams was
alleged to have breached. Oostendorp’s response was that there was no written
policy and that the obligation to report the incident was based on “common
sense”.
[16] During the cross examination of Avontuur, Williams’ representative placed on
record that th e applicant disputed the existence of the rule or policy that
regulates the issue of reporting. He said that the first respondent did not have the
policy or rule. The commissioner said:
‘That’s what the charge says. I don’t make the rules. On the 2nd, when you heard
about this, you had to report it. That is what they say.’
[17] When Williams’ representative later cross-examined Swinny and wanted him to
identify the specific rule the first respondent relied on to charge Williams, t he
commissioner intervened and ruled that this was a legal issue and should be
addressed in closing arguments.
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[18] Williams’ case was that the disciplinary code allowed for a sanction short of
dismissal or dismissal for a charge of gross dereliction of duties. H e argued that,
given his 25 years of clean service and the fact that he continued working for
more than two years after the incident, the sanction of dismissal was too harsh.
His representative cross-examined Swinny as follows:
‘MR HEARNE Your testimony was that the framework in this record
suggests if there’s gross derel iction of duty it can either
amount to sanction short of dismissal , or dismissal. That
was your testimony.
MR SWINNY Correct.
MR HEARNE Ryan will testify that if he’s found guilty… being his first
offense, he had to be given at least a sanction short of
dismissal to correct his behaviour or conduct in future,
make it progressive. What is your comment on that?
MR SWINNY That was part of the disciplinary process.
MR HEARNE You also stated and testified that the relationship between
yourself and Ryan, you lost faith, trust and [inaudible]
because you need to act decisively. Ryan will testify, I can
be trusted. I attempted to act decisively but I was stopped
in the process, because I was informed that the matter is
with Irwin and HR, and I could not continue with the
process. Do you want to comment on that?
MR SWINNY My comment is that he had sufficient time with the
seriousness of the case to act decisively and to take
disciplinary action in the matter.’
The arbitration award
[19] The commissioner started his analysis by noting that the alleged misconduct
occurred on 2 March 2021, meaning Williams was expected to report the incident
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to Swinny on that same day. He accepted that Williams met with Avontuur,
Malibo, and Roberts that afternoon and was told about the theft but did not report
this to Swinny. He highlighted the dispute over whether Williams had phoned
Swinny on the evening of 4 March 2021 and criticised Williams for making an
after-hours call instead of reporting it earlier on 2 March 2021. He also criticised
Williams for contacting Levy and Bradley about disciplinary documents but not
contacting Swinny, concluding that this s upported the view that Williams was
trying to hide the incident.
[20] The commissioner found that:
‘… the Applicant, by virtue of his very Senior position, ought to have realised the
gravity of what had been reported to [him] by Messrs Avontuur and Malibo and to
have informed Swinny.
The Applicant however, notwithstanding not having had time to contact Mr
Swinny however had time to try and contact Mr Bradley instead, lending
credence to the version of Messrs Avontuur and Malibo that the Applicant did not
want anyone to know other than the four people who had been in the room on
the 2nd March 2021 and/or the Applicant was desirous to embark on a process
other than having to inform his Superior, as was enjoined by the workplace rules.
That itself had made the Applicant guilty of Charge 1 given how the Charge had
been framed, i.e. “You have misconducted yourself in the gross dereliction of
your duties as a Senior Superintendent on the 2 nd March 2021 and should be the
end of the enquiry by the Bargaining Council in that on the version of both
Parties, the Applicant had not done as was enjoined to do, i.e. to have let Mr
Swinny know immediately, or at least as per Mr Swinny ’s unchallenged evidence
of the Applicant having been enjoined to have informed Mr Swinny immediately.’
[21] The commissioner accepted the version that Williams wanted to conceal the
matter. He crit icised Williams for reporting the incident six days (including
matter. He crit icised Williams for reporting the incident six days (including
weekend) after the incident was reported to him. He concluded:
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‘In summary then, given how the Charges had been framed, with specific
reference to the misconduct having been commissioned on the 2 nd March 2021,
and Mr Swinny’s uncontested evidence of the Applicant having been enjoined by
the workplace rules to have reported the matter “immediately”, the Applicant had
made [himself] guilty of having breached a workplace rule in that [he] had been
enjoined to report the matter on having learned [about it]. The Applicant’s refuge
of not having had the time to report the matter is not credible in… having had
time to try and contact Mr Bradley and having contacted Mr Levy, as evidenced
by Mr L evy’s e-mail of the 4 th March 2021 and after the fact of the Applicant
having contacted Mr S winny on the 4 th March 2021, on the Applicant’s own
version, at 17h45.
The latter facts raise the red flag as to why the Applicant had not put in the same
effort to have contacted Mr Swinny as was enjoined by the workplace rules. In
the premise, the Applicant had made [himself] guilty of having breached a
workplace rule, more so given the Applicant’s position of Seniority.’
The review grounds
[22] The applicant contends that the award is unreasonable, that the commissioner
committed gross irregularities and material errors of law and fact , and that the
finding that Williams breached a workplace rule was unsubstantiated. The
applicant also challenges the appropriateness of the sanction.
Evaluation
[23] The review test 1 is tr ite. Arbitration awards would be reviewable when the
commissioner’s decision is one that a reasonable decision- maker could not
reach.2 This principle has been repeatedly confirmed by the Constitutional Court
and consistently applied in later judgments of the Labour Appeal Court (LAC) and
this Court.
Breach of the workplace rule
1 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; (2007) 28 ILJ 2405
(CC).
2 Ibid at para 110.
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[24] The applicant’s case is that there was no workplace rule. In its opening address ,
the first respondent’s case was that it relied on a “common -sense rule”. During
cross-examination, Williams’ representative made it clear that they disputed the
existence of any policy or rule requiring such reporting and emphasi sed that no
rule had been produced. The commissioner, however, treated the charge itself as
if it reflected the applicable rule, and later ruled that identifying the rule was a
legal issue to be addressed in argument rather than through evidence.
[25] The commissioner did not identify or discuss any specific rule or policy in his
award. Yet he concluded that Williams was guilty of breaching the workplace
rule. The commissioner had seemingly accepted the existence of a supposed
“common-sense” rule requiring Williams to report the incident immediately,
without examining where such a rule came from or whether it was reasonable ,
alternatively, he considered the charge sheet itself to contain the rule. Since no
policy or rule was presented at arbitration, the finding that Williams breached the
workplace rule requiring him to report the matter on 2 March 2021 or immediately
is unsustainable, untenable and irrational.
[26] In these proceedings, the first respondent, for the first time since Williams was
charged, relied on the Code of Conduct for Municipal Staff Members , contained
in schedule 2 of Local Government: Municipal Systems
3. Clause 9 prohibits
employees from unlawfully using or benefiting from any property of the
municipality. Clause 13, which the first respondent relies on, provides that:
‘Whenever a staff member of a municipality has reasonable grounds for believing
that there has been a breach of this Code, the staff member must without delay
report the matter to a superior officer or to the speaker of the council.’
[27] The case has now developed to be that Williams should have reported the
[27] The case has now developed to be that Williams should have reported the
incident “without delay” in terms of the Code. Ms Daniels for the first respondent
submitted that the delay of six calendar days or four working days from 2 to 8
March 2021 to report the incident to Swinny wa s unreasonable. This argument is
3 Act 32 of 2000.
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without merit. The first respondent never relied on this Code during arbitration,
depriving Williams of an opportunity to respond. Moreover, the charge against
Williams never alleged that he was required to report “immediately” or “without
delay”. Even assuming such an obligation existed, Williams ’ overall conduct
since the day the incident was reported to him was reasonable and therefore
reporting the matter on 8 March 2021 per Swinny’s version was not
unreasonable.
[28] Williams was a senior superintendent, a position described by the commissioner
and the first respondent , as a managerial role. After the incident was reported to
him on the afternoon of 2 March 2021, he began process of initiating the
disciplinary process against the three employees on 3 March 2021, as it should
be expected from a person in his position. That he had the authority to initiate
disciplinary process was not seriously disputed by the first respondent.
[29] Accordingly, the commissioner’s finding that Williams broke the rule is untenable
and unreasonable. Having found that Williams did not break any workplace rule,
the award falls to be reviewed and set aside on this basis alone. As Williams is
not guilty, meaning he should never have been dismissed, he is entitled to
reinstatement with full backpay.
Appropriateness of sanction
[30] Even if Williams had in fact breached a workplace rule and that rule was
reasonable, the commissioner misconstrued the enquiry and committed a
material error of law . He treated the mere breach of the rule as the end of the
enquiry, without considering whether the rule itself was reasonable or whether
dismissal was an appropriate sanction. Had he properly assessed whether the
supposed breach destroyed the trust relationship, he would have concluded that
it did not, especially given the strong mitigating factors, as discussed below.
[31] First, the commissioner’s conclusion that Williams wanted to conceal the incident
[31] First, the commissioner’s conclusion that Williams wanted to conceal the incident
is entirely unsupported by the evidence. From the moment the matter was
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reported to him, Williams made it clear that the employees would face
disciplinary action, and he immediately began taking steps to initiate that
process. Although the first respondent may have preferred that he reported the
matter to Swinny on 2 March 2021, the fact that he reported it on 8 March 2021
does not suggest any intention to hide the incident. Even if he were found to
have breached a rule, dismissal would not have been inappropriate.
[32] Second, Williams had 25 years of unblemished service and continued working for
over 15 months after the incident , before he was charged. Even once he was
served with the charge sheet, he remained in his position for another 11 months
before being dismissed. These factors demonstrate that the trust relationship had
not broken down and strongly militate against dismissal as an appropriate
sanction.
[33] Third, Williams’ case was that the disciplinary code allowed for a lesser sanction
to dismissal in cases of gross dereliction of duty. Given his long, clean service
record and the fact that he continued working for more than two years after the
incident, dismissal was disproportionate. In my view, t he code required the first
respondent to justify why a lesser sanction would be inadequate and why
dismissal was warranted in the circumstances , something the first respondent
failed to demonstrate, and the commissioner failed to apply his mind to.
[34] Fourth, and strikingly, Avontuur and Malibo, who witnessed the theft on 24
February 2021, participated in removing the copper and only reported it several
days later on 2 March 2021, were never charged with any misconduct and
remain employed. This shows that, even if a reporting rule existed and was
reasonable, any supposed breach by Williams could not realistically be said to
have destroyed the trust relationship.
[35] Ms Daniels submitted that the misconduct was serious and destructive of a trust
relationship and therefore no evidence was necessary. For this submission, she
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relied on two LAC judgments, Hendricks v Overstrand Municipality and Another4
(Hendricks) and Toyota South Africa Motors (Pty) Ltd v Radebe and O thers5.
However, those cases involved employees who had acted dishonestly or made
fraudulent misrepresentations. In contrast, Williams was accused only of gross
dereliction of duty for an alleged failure to report the incident “immediately” or
“without delay” as per the commissioner’s award and the first respondent’s case
in these proceedings . His conduct , if guity, did not involve dishonesty, nor did it
justify an inference that the trust relationship had been irreparably damaged.
Conclusion
[36] The award cannot withstand the scrutiny of this Court. The applicant has made
out a case on review, and the award is liable to be reviewed and set aside. Part
of the oral evidence had been reconstructed, and the parties did not raise any
issue with the record. Considering the issues in this matter , the transcribed and
reconstructed record, and the bundle of documents, I am satisfied that the
relevant or necessary material is before the Court. This Court is therefore in as
good a position as the commissioner to decide the matter. Accordingly, the
award should be substituted with an order that the dismissal was substantively
unfair.
[37] There was no ev idence of a breakdown of the trust relationship, and
reinstatement as a primary remedy must follow a finding of substantive
unfairness. Further, there was no reason advanced why reinstatement should not
operate retrospectively with full backpay.
[38] Having considered the requirements of law and fairness, and the well-established
legal principle that costs do not follow the result, I do not believe that this is a
case that warrants a costs order.
[39] In the premises, the following order is made:
4 [2014] ZALAC 49; (2015) 36 ILJ 163 (LAC).
5 [1999] ZALAC 42; (2000) 21 ILJ 340 (LAC).
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Order
1. The arbitration award issued by the thir d respondent under case number
WCM 072306 dated 19 August 2024 is reviewed and set aside.
2. The award is substituted with the following order:
‘2.1. The dismissal of the individual applicant, Ryan Williams , by the first
respondent on 23 June 2023 is declared substantively unfair.
2.2. The first respondent is ordered to reinstate the indi vidual applicant
retrospectively from the date of his dismissal on the same terms and
conditions of employment that existed prior to his dismissal and without
any loss of benefits.
2.3. The first respondent is ordered to pay the applicant backpay from the
date of dismissal until the date he reports for duty within 21 days of this
order.
2.4 The individual applicant is ordered to report for duty on Monday, 2 March
2026 in terms of his reinstated contract of employment.’
3. There is no order as to costs.
____________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr E. Geldenhuys of MacGregor Erasmus Attorneys
For the First respondent: Ms C.J.M. Daniels
Instructed by: Riley Incorporated