THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case Numbers: JR 2129 / 23
JR 1544 / 23
JR 160 / 24
JR 1879 / 23
JR 1595 / 23
Case no: JR 2129 / 23
In the matter between:
DEPARTMENT OF AGRICULTURE, LAND REFORM,
AND RURAL DEVELPMENT Applicant
and
WILLIAM RICHARD PRETORIUS N.O. First Respondent
PSA obo XOLISWA MZILIKAZI AND MOJALEFA
SEETSE Second Respondent
PUBLIC SERVICE COORDINATING BARGAINING
COUNCIL Third Respondent
Case no: JR 1544 / 23
In the matter between:
DEPARTMENT OF HOME AFFAIRS Applicant
and
PUBLIC SERVICE COORDINATING BARGAINING
COUNCIL
First Respondent
(1) Reportable Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
2
MBULAHENI NETSHIFHEFHE N.O. Second Respondent
JURGEN VON WIELLIGH Third Respondent
THOBELA MANGE Fourth Respondent
MAANDA MUANGWE Fifth Respondent
ELMON MNDAWE Sixth Respondent
Case no: JR 160 / 24
In the matter between:
DEPARTMENT OF AGRICULTURE, LAND REFORM,
AND RURAL DEVELPMENT Applicant
and
MINETTE VAN DER MERWE N.O. First Respondent
PSA obo SIVIWE SHWABABA Second Respondent
PUBLIC SERVICE COORDINATING BARGAINING
COUNCIL Third Respondent
Case no: JR 1879 / 23
In the matter between:
DEPARTMENT OF HOME AFFAIRS Applicant
and
PUBLIC SERVICE COORDINATING BARGAINING
COUNCIL
First Respondent
MINETTE VAN DER MERWE N.O. Second Respondent
LINDA BRIAN SIBISI Third Respondent
NJABULO MTHEMBU Fourth Respondent
Case no: JR 1595 / 23
3
In the matter between:
DEPARTMENT OF HOME AFFAIRS Applicant
and
PUBLIC SERVICE COORDINATING BARGAINING
COUNCIL First Respondent
MBULAHENI NETSHIFHEFHE N.O. Second Respondent
WISEMAN BHEKUMUSA KUBHEKA Third Respondent
This j udgment was handed down electronically by circulation to the parties and
legal representatives by email. The date and time for hand -down is deemed to
be 5 March 2026.
Summary: Bargaining council arbitration proceedings – Review of awards of
arbitrators on interpretation of collective agreement (Resolution 1 of 2003) – Test
for review – Section 145 / 158 (1)(g) of LRA – issue concerns material error of law
– application of review test set out
Collective agreement – bargaining council collective agreement relating to
disciplinary code and procedure – interpretation thereof – principles relating to
interpretation of collective agreement considered – in addition to ordinary
principles of interpretation proper consideration of objectives / purpose of LRA
essential
Collective agreement – provisions relating to external legal representation and
appointment of external chairperson considered – text of agreement appears to
prohibit such appointments – such interpretation however contrary to purpose /
objectives of LRA – LRA requires overall fairness of process – to ensure such
fairness interpretation may go beyond text of agreement – chairperson retains
discretion to allow legal representation – employer retains discretion to appoint
external chairperson – exceptional circumstances however required in both
instances
Collective agreement – appointment of external chairperson – no express
prohibition in agreement (Resolution) – overall consideration for such
appointment is fairness and justice – employer rema ins entitled to make
4
appointment of external chairperson – however exceptional circumstances must
justify it – employee may raise concerns regarding appointment before
chairperson to decide
Collective agreement – Resolution 1 of 2003 considered – overall considered
Resolution constitutes disciplinary code to be interpreted and applied in line
with LRA – residual discretion always contemplated under LRA – any exclusion
of discretion under Resolution would be unfair
Review application – arbitration awards set aside – awards substituted with
determination that employer entitled to appoint external chairpersons – whether
discretion properly exercised by employer to be decided by appointed
chairperson – relief afforded accordingly
JUDGMENT
SNYMAN, AJ
Introduction
[1] I must confess, at the outset, that this has been a difficult judgment to write, and
both sides of the dispute have arguable points of law. None theless, it is an
important issue that concerns an essential component in the internal disciplinary
processes in the Public Service. I am compelled to say that the conundrum has
been caused by the fact that the instrument forming the very basis of this case,
being PSCBC Resolution 1 of 200 3 (the 2003 Resolution) was adopted as far
back as 2003, and has not been change d since. There have been many
operational developments and challenges since then which would make it
necessary to be revisited. What forms the subject matter of this judgment should
far more preferably have been dealt with by all the parties to the Public Service
Coordinating Bargaining Council (PSCBC) in order to clarify the position . As
pertinently expressed in Department of Public Works and Another v Vukela and
Others1:
1 (2022) 43 ILJ 2319 (LC) at para 2.
5
‘… What has developed over the years in the public sector is what this court
has referred to as a ‘yawning gap’ between the respective rights of employees
in the public and private sectors, and the injustice that is occasioned. Ironically,
the multiplicity of laws and the consequent complexity, inconsistency,
duplication of resources and jurisdictional confusion are all problems that the
LRA sought to address. Perhaps the tim e has come for there to be a formal
enquiry into why workplace discipline and dispute- resolution procedures
(especially in the public sector) remain out of step with legislative intent, and for
the legislature to consider how the agreed goal of efficient, expeditious and
inexpensive procedures might be better achieved.
’
[2] In my view, and in agreement with what was expressed in Vukela supra ,
disciplinary proceedings in the Public Service have developed to be overly
complicated and unduly formalistic . Whilst I ap preciate that there is historical
context to this, I believe the time has come to revisit all these provisions to bring
the same in line with what the Labour Relations Act (LRA) 2 really envisages
where it comes to internal dispute resolution proceedings in any employer,
including the Public Service. What is in reality envisaged by the LRA in this
respect was aptly articulated as far back as 2006 in Avril Elizabeth Home for the
Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration
and Others3, where the Court said:
‘… The balance struck by the LRA thus recognizes not only that managers are
not experienced judicial officers, but also that workplace efficiencies should not
be unduly impeded by onerous procedural requirements. It also recognizes that
to require onerous workplace disciplinary procedures is inconsistent with a right
to expeditious arbitration on merits. … ’
[3] Returning to all the abovementioned cases at hand, each of the individual cases
[3] Returning to all the abovementioned cases at hand, each of the individual cases
concern a challenge by each of the applicants concerned, of determinations
made by various arbitrators appointed by the PSCBC , concerning the
interpretation and application of clause s 7.3(b) and 7.3(f) of the 2003
Resolution, in individual matters , where employees of the applicants were
sought to be disciplined for misconduct. In some of the cases, the appointment
by the applicants of external legal representatives as initiators was in issue, but
2 Act 66 of 1995 (as amended).
3 (2006) 27 ILJ 1644 (LC) at 1652A-B.
6
in all of the cases the appointment by the applicants of an external chairperson
was in issue. The pertinent question placed before the arbitrators was whether
such appointments were prohibited by the 2003 Resolution, and in each of these
cases, the question was answered by the arbitrators against the applicants. The
current challenges brought by the applicants to this Court have been brought in
the form of five individual review applications , in terms of section 145 as read
with section 158(1)(g) of the LRA. Each of the applications have been opposed
by the employee party respondents, and contrary to what is normally the case,
was also opposed by the PSCBC itself.
[4] As the core legal issues in each of these applications are identical, and it
became apparent that there were in reality no individual disputes of fact to be
decided. As a result , application was brought to consolidate all five these
individual applications so that they could be heard simultaneously. On 13 June
2025, Tlhotlhalemaje J granted an order to this effect, thus consolidating all five
review applications.
[5] The consolidated review applications came before me for argument on 29
January 2026. On that date, after hearing argument from all parties and
considering the pleadings and records , a s well as submissions filed by the
parties, I reserved judgment. I now hand down judgment by commencing with a
brief exposition of the applicable factual matrix.
The relevant background
[6] In setting out the factual background, I will refer to each of the individual
employee respondents in each of the matters by name. But where I refer to all
the respondents collectively, I will simply refer to them as ‘the respondents ’.
Where it comes to the Department of Agriculture, Land Reform and Rural
Development and the Department of Home Affairs as applicants in each of the
review applications, I will refer to them jointly as ‘the Departments’ whilst I will
review applications, I will refer to them jointly as ‘the Departments’ whilst I will
refer to the Department of Agriculture, Land R eform and Rural Development
individually as ‘the Agriculture Department’, and to the Department of Home
Affairs as the ‘Home Affairs Department’.
[7] Xolisa Mzilikazi (Mzilikazi) and Mojalefa Seetse (Seetse) were charged by the
Agriculture Department with mis conduct charges, emanating from a forensic
7
investigation commissioned by the Minister at the time, into allegations of
financial mismanagement. This investigation was carried out by an independent
third-party forensic investigation service provider, being Morar Inc . This
investigation culminated in a written report issued by Morar Inc, and according
to the Agriculture Department, that report implicated Mzilikazi and Seetse in
wrongdoing. The actual charges were presented to Mzilikazi and Seetse on 7
March 2023, with the disciplinary hearing set to t ake place on 14 to 17 March
2023. The Agriculture Department appointed an external legal representative to
act as initiator in the disciplinary hearing, and also appointed an external legally
qualified person as chairperson of the disciplinary hearing. The reasons
provided for such appointments was, in short, that the matter was very complex,
and involved several other employees in t he Agriculture Department, thereby
severely compromising such Department’s ability to conduct the proceedings
internally. In short, it was explained that the Department did not have ability or
capacity to conduct the disciplinary proceedings internally.
[8] When the disciplinary hearing convened on 14 March 2023, Mzilikazi and
Seetse raised an objection in limine to the effect that the Agriculture Department
was not permitted to appoint external legal persons as initiator and chairperson,
as it was prohibited by the 2003 Resolution. The point was argued before the
chairperson, who ruled in favour of the Agriculture Department, deciding that
such representation / appointment was not prohibited by the 2003 Resolution.
Dissatisfied with this ruling by the chairperson, a dispute concerning the
interpretation / application of a collective agreement (the 2003 Resolution), was
referred by the employees to the PSCBC , ultimately for arbitration. The
arbitration proceedings were presided over by arbitrator Pretorius, and in an
arbitration award dated 11 September 2023, such arbitrator decided that:
‘
arbitration award dated 11 September 2023, such arbitrator decided that:
‘
Legal representation by the respondent, through the use of legal
representatives, either as initiator or chairperson, in the pending disciplinary
matter against the applicants, is contrary to Resolution 1 of 2003 in respect of
clause 7.3(f)(i)(ii) as well as clause 7.3(b) read with 7.3(c) respectively.’
[9] In the case of the disciplinary proceedings against Jurgen Von Wiell igh (Von
Wielligh), Thobela Mange (Mange), Maanda Mutangwa (Mutangwa) and Elmon
Mndawe (Mndawe), were instituted by the Home Affairs Department . It was
explained that such Department was experiencing an inordinate and
8
disproportionate number of disciplinary disputes and matters it had to attend to,
and it simply did not have the capacity, resources or expertise to deal with the
same internally. With the approval of the Portfolio Committee for Home Affairs,
it was decided that legal services, which included legal representation where it
came to initiating disciplinary proceedings, as well as external legal ly qualified
chairpersons, would be put out to tender. Pursuant to this tender, a panel of
legal professionals were appointed, and initiators and chairpersons could then
be appointed from this panel in respect of internal disciplinary proceedings
against employees . T his would alleviate all the challenges the Home Affairs
Department was experiencing. It is in this context that the employees referred
to earlier were then charged for misconduct, and an external legal professional
was appointed to preside over their disciplinary hearing, set to take place from
13 to 15 February 2023.
[10] When the disciplinary hearing convened, Von Wielligh, Mange, Mutangwa and
Mndawe raised an objection in limine to the appointment of the external legal
professional as chairperson, which objection was to the effect that the Home
Affairs Department was not permitted to appoint external legal persons as
initiator and chairperson due to the provisions of the 2003 Resolution. On this
occasion, the chairperson declined to determine this objection in limine. Instead,
he decided that he will only proceed with presiding over the disciplinary hearing
once a competent forum decided that it was lawful for him to do so. This resulted
dispute concerning the interpretation / application of the 2003 Resolution being
referred to the PSCBC , ultimately for arbitration. The arbitration proceedings
were presided over by arbitrator Netshifhefhe, and in an arbitration award dated
25 July 2023, the arbitrator decided that:
‘
Respondent incorrectly interpreted clause 7.3(b) of Resolution 1 of 2003, when
‘
Respondent incorrectly interpreted clause 7.3(b) of Resolution 1 of 2003, when
it appointed a person from outside the employment of the respondent to preside
over the applicant disciplinary hearing.’ (sic)
[11] The next case is that of Siviwe Shwababa (Shwababa), also disciplined by the
Agriculture Department in 2023. The disciplining of Shwababa resulted from the
same Morar Inc investigation report , which according to the Agriculture
Department implicated him in misconduct . Whilst it is true that the Agriculture
Department appointed an external chairperson to preside over the disciplinary
9
hearing of Shwababa and an external legal representative to act as initiator, it
turns out on the facts that Shwababa is a senior manager in the Department ,
and as such, the 2003 Re solution would not apply to him, and instead his
disciplinary proceedings would resort under what is commonly known as the
SMS Handbook. In short, the 2003 Resolution does not apply in his case, which
will be further dealt with later in this judgment. But nonetheless, the issue of the
appointment of the external chairperson was r eferred to the PSCBC and
ultimately came before arbitrator Van D er Merwe as a dispute concerning the
interpretation and application of the 2003 Resolution. In an arbitration award
dated 28 November 2023, the arbitrator decided:
‘The Respondent, the Department of Agriculture, Land R eform and Rural
Development, has contravened of Resolution 1 of 2003 in the disciplinary
hearing of the Applicant, Se viwe S hwababa, by unilaterally appointing legal
practitioners as Chairperson and Initiator respectively in the disciplinary hearing
of the Applicant.’ (sic)
[12] The next matter is that of Linda Brian Sibisi (Sibisi) and Njabulo Mthembu
(Mthembu). These two employees were also disciplined by the Home Affairs
Department for misconduct. The same considerations where it came to the
appointment of the external initiator and external chairperson for their
disciplinary hearings, as those applicable to such appointments in the cases of
Von Wielligh, Mange, Mutangwa and Mndawe referred to above , equally
applied. In this instance, the disciplinary hearing against Sibisi and Mthembu
was convened for 3 to 5 April 2023, and an independent legal practi tioner was
appointed to preside over the hearing. Another legal practitioner was also
appointed as initiator.
[13] When the disciplinary hearing convened on 3 April 2023, Sibisi and Mthembu
raised an objection in limine to the effect that the Home Affairs Department was
raised an objection in limine to the effect that the Home Affairs Department was
not permitted to appoint external legal persons as initiator and chairperson, due
to the provisions of the 2003 Resolution. The point was argued before the
chairperson, who ruled in favour of the Home Affairs Department, and decided
that such Department retained the discretion, even under the 2003 Resolution,
to make such external appointm ents. As in the other cases, and being
dissatisfied with this ruling by the chairperson, a dispute concerning the
interpretation / application of the 2003 Resolution was referred by these two
10
employees to the PSCBC, ultimately for arbitration. The arbitration proceedings
were presided over by arbitrator Van Der Merwe, and in an arbitration award
dated 31 August 2023, such arbitrator held as follows:
‘The Respondent, the Department of Home Affairs, has contravened Resolution
1 of 20023 in the disciplinary hearings of the Applicants, Linda Brian Sibisi and
Njabulo Mthembu.’
[14] The final case to refer to is that of Wiseman Kubeka (Kubeka). He was also
disciplined by the Home Affairs D epartment for misconduct. The issue at hand
concerned the appointment by the Home Affairs Department of an external legal
professional to preside over the disciplinary hearing, again in terms of the
disciplinary panel established following the Portfolio Committee approval and
tender process referred to earlier. The disciplinary hearing convened on 26
January 2023.
[15] When the disciplinary hearing convened, Kubheka moved a point in limine . He
objected to the appointment of the external legal representative to preside over
the disciplinary hearing, again based on the 2023 Resolution . After hearing
submissions from the parties, and on the same day, the chairperson refused the
objection raised, and directed that the hearing proceeds . This led to a dispute
relating to the interpretation and application of the 2003 R esolution being
referred to the PSCBC, ultimately for arbitration. This dispute also came before
arbitrator Netshifhefhe, who in an arbitration award dated 27 July 2023, decided
that:
‘The respondent incorrectly interpreted clause 7.3(b) of PSCBC Resolution 1 of
2003, when it appointed a legal practitioner from outside the employment of the
respondent to preside over the applicant disciplinary hearing.’ (sic).
[16] The above being a summary of all the individual disciplinary proceedings
brought against each of the individual employee respondents, and their ultimate
arbitration outcomes, I now turn to the real issue at hand. It must be emphasized
arbitration outcomes, I now turn to the real issue at hand. It must be emphasized
that for the purposes of deciding this matter, it is not necessary to delve into the
particulars of the alleged misconduct of, and the charges then brought against,
the individual employee respondents. What is important to consider is that they
were all charged in terms of clause 7.1 of the 2003 Resolution, and the
11
disciplinary proceedings were convened in terms of clause 7.3 of the 2003
Resolution.
[17] Although strictly speaking not necessary to decide the current case, and simply
for the purposes of being complete on the facts, according to both the
Agriculture Department and the H ome Affairs D epartment, they lacked the
necessary resources and capacity, and in particular the skills and ability, to
conduct the disciplinary proceeding against the various employees concerned.
In some of the cases, it was contended that the issues were so complex that it
required external handling. And where it came to the Home Affairs Department
in particular, it was compelled , due an inordinate number of disputes and a
complete lack of capacity, and with approval fr om the Portfolio Committee, to
establish a panel of legal practi tioners to assist it in conducting internal
discipline. The explanations provided w ere not really in contention, but it is
nonetheless not required at this juncture to decide the veracity or merits of the
same.
[18] It was never suggested by any of the respondents that the D epartments
somehow acted with malice or with the intent to prejudice the employees, in
doing what they ultimately did in convening and then appointing external
representation / chairpersons in the various disciplinary hearings. There is also
no case made out, nor is it suggested, that the appointment of external initiators
and chairpersons would compromise the employees’ rights to a fair hearing.
What the respondents complained about was that the 2003 Resolution simply
did not permit external initiators or external chairpersons being appointed in
their respective disciplinary proceedings, as a matter of principle and per se.
Each of the employee respondents, in their respective disciplinary hearings,
raised points in limine to this effect, but were not successful in raising those
points, leading to the various disputes being referred to the PSCBC, and the n
points, leading to the various disputes being referred to the PSCBC, and the n
culminating in the arbitration awards as set out above.
[19] All the aforesaid arbitration awards having been made, the various review
applications then followed. I n essence, the review applications all concern
whether the arbitration awards made by the various arbitrators concerning
clauses 7.3(b) and 7.3(f) of the 2003 Resolution were materially in error, and an
12
unreasonable interpretation of the provisions of the 2003 Resolution.4 I will now
turn to deciding these very questions, starting with identifying the proper test for
review.
The test for review
[20] It is obvious that in this case, the main pleaded ground of review raised by the
Departments is that the various PSCBC arbitrators erroneously interpreted and
applied the provisions of the 2003 Resolution, and in particular, clauses 2.8 as
well as 7.3(b) and 7.3(f) thereof. Or in other words, the Departments are saying
that that these arbitrators committed a material error of law in this regard. If an
error of law is committed by an arbitrator, and that error of law is material, it has
been said that this in itself would render the award arrived at to be
unreasonable, and thus subject to being reviewed and set aside. 5 But
developing this basis for review even further, it can now with confidence be said
that an award based on a material error of law can be legitimately challenged
not only on the basis of it being unreasonable, but also on the basis that the
award would be incorrect. 6 The simple point is that a reasonable arbitrator will
not commit a material error of law. The Court in Herbert v Head of Education:
Western Cape Education Department and Others 7 articulated the following
apposite summary:
‘In MacDonald’s Transport it was found that the LRA did not contemplate that a
CCMA or bargaining council arbitrator, both statutory roles, would have the last
word on the proper interpretation of an instrument as this would mean that a
patently wrong interpretation would be left intact, which ‘would be absurd’. The
4 There were also issues of condonation for the late filing of pleadings and alleged misconduct by one
of the arbitrators raised in some of the review applications, but after ventilating these issues with the
parties in the course of argument , all the parties were ad idem that it was important for everyone
concerned that this matter rather be decided purely on the merits. It is accordingly not necessary to
decide any of these ancillary issues. And insofar as any party sought condonation where it came to the
filing any process, it must be considered to be granted.
5 See Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at paras 32
– 33; Democratic Nursing Organisation of SA on behalf of Du Toit and Another v Western Cape
Department of Health and Others (2016) 37 ILJ 1819 (LAC) at paras 21 – 22; Civil and Power
Generation Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others
(2019) 40 ILJ 2055 (LC) at para 33.
6 In National Union of Metalworkers of SA v Assign Services and Others (2017) 38 ILJ 1978 (LAC) at
para 32, it was held: ‘… An incorrect interpretation of the law by a commissioner is, logically, a material
error of law which will result in both an incorrect and unreasonable award. Such an award can either be
attacked on the basis of its correctness or for being unreasonable … ’. This judgment of the LAC was
upheld by the Constitutional Court in Assign Services (Pty) Ltd v National Union of Metalworkers of SA
and Others (Casual Workers Advice Office as Amicus Curiae) (2018) 39 ILJ 1911 (CC).
7 (2022) 43 ILJ 1618 (LAC) at para 24.
13
wrong interpretation of an instrument by an arbitrator could therefore constitute
a reviewable irregularity as envisaged by s 145 of the LRA, in the sense that a
reasonable arbitrator does not get a legal point wrong. The court concluded that
either ‘the reasonableness test is appropriate to both value judgments and legal
interpretations. If not, “correctness” as a distinct test is necessary to address
such matters’. This view was echoed in NUMSA, in which it was stated that an
incorrect interpretation of the law by a commissioner constitutes a material error
of law which ‘will result in both an incorrect and unreasonable award’, which
‘can either be attacked on the basis of its correctness or for being
unreasonable’
.’8
[21] The Court in National Bargaining Council for the Road Freight and Logistics
Industry v Deysel NO and Others 9 specifically considered the aforesaid
reasoning in Herbert supra, and then decided as follows:
‘What this approach recognises is that the right to review established by s 145,
where the applicant seeks to review an arbitration award on the basis of a
material error of law committed by an arbitrator, is not limited to circumstances
where the alleged error resulted in an unreasonable award. A material error of
law is a discrete, substantive ground for review under s 145 of the LRA. It follows
that a reviewing court, when faced with what is alleged to be an error in law in
relation to the interpretation of an instrument, is empowered to interpret the
relevant text itself, rather than assessing whether the arbitrator’s decision was
reasonable.
In short: although a material error of law may previously have been viewed as
no more than a side car on the motorcycle of reasonableness, the constitutional
right to administrative action that is lawful requires that the grounds for review
established by s 145 of the LRA be understood as admitting a material error of
law as a discrete, legitimate ground for review.’
law as a discrete, legitimate ground for review.’
[22] A final apposite refence regarding the appropriate review test, in the specific
instance of an error of law in the context of interpreting and applying a collective
agreement, can be found in the recent judgment of National Union of
Metalworkers of SA v Motor Industry Staff Association and Others10. The Court
in such instance considered the argument that was advanced by the review
8 The Court was referring to MacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers
and Construction Union and Others (2016) 37 ILJ 2593 (LAC) at para 29, and Assign Services (supra).
9 (2025) 46 ILJ 1679 (LAC) at paras 42 – 43.
10 (2025) 46 ILJ 109 (LAC).
14
applicant that the arbitration award was unreasonable because a material error
of law was committed. The Court decided as follows:11
‘The review application was argued in the Labour Court on the basis of an
application of the reasonableness threshold, in circumstances where the
unreasonableness of the arbitrator’s award was attacked on the basis that the
arbitrator was alleged to have committed a material error of law. As will appear
from the authorities referred to below, where alleged imputed tacit terms are in
issue, these terms are based on a legal fiction. Their existence or otherwise is
thus a question of law. The issue before us t hen is whether the conclusion to
which the arbitrator came to was correct, given that ‘a reasonable arbitrator
does not get a legal point wrong’.
’
[23] Against the above principles and test, I will now proceed to consider the review
applications brought by the Departments to review and set aside the arbitration
awards by the various arbitrators in each of the review applications referred to
above.
Analysis
[24] In deciding this matter, the case of Shw ababa under case number J R160 / 24
must first and separately be dealt with. Shwababa was employed as Chief
Environmental Specialist. As such, he qualifies as a senior manager as
contemplated by the Senior Management Service Handbook (Disciplinary Code
and Procedures), commonly known as the ‘SMS Handbook’. In argument before
me, the PSCBC in fact conceded that Shwababa was a senior manager and not
subject to the 2003 Resolution, and then further conceded that the arbitration
award where it comes to the external appointments made in his disciplinary
hearing should be reviewed and set aside on this basis . The concession was
properly and responsibly made. The SMS Handbook contains an entirely
different dispensation where it comes to appointment of chairpersons in
disciplinary proceedings of senior managers. In fact, and in clause 3(b) of t he
disciplinary proceedings of senior managers. In fact, and in clause 3(b) of t he
Introduction to the 2003 Resolution, it is recorded that: ‘… the provisions of the
amended disciplinary procedure remain applicable to members of the Senior
Management Service of the public service until such time as the Minister for the
Public Service and Administration issues a directive to cover the disciplinary
11 Id at para 28.
15
matters of this group of employees …’, this being a reference to the SMS
Handbook. The disciplinary enquiry in the case of the SMS H andbook is
regulated in clause 2.7 thereof. This clause to large extent is quite similar to
clause 7 of the 2003 Resolution, however, where it comes to the issue of a
chairperson, it materially differs. In particular, clause 2.7(3)(b) provides that:
‘The employer must appoint a person, from within or from outside the public
service, as chairperson of the disciplinary hearing’. The provisions in the SMS
Handbook relating to representation i n the disciplinary hearing, as found in
clause 2.7(3)(e), is more or less the same as the provisions of clause 7.3(f) of
the 2003 Resolution, and can be considered and dealt with in the same way .
But the simple point where it comes to the case in respect of Shwababa, is that
the wrong legal provisions have been applied, and for that reason alone, the
arbitration award of arbitrator Van Der Merwe must be reviewed and set aside.
[25] I will now proceed to the pertinent question to be answered in this judgment .
First and foremost, the nature of the 2003 Resolution must be considered. It is
trite that the 2003 Resolution is collective agreement concluded between all the
parties to the PSCBC. In this collective agreement, the parties seek to regulate
the conducting of discipline of employees in all the Public Service employers
that are subject to the scope and jurisdiction of the PSCBC12. But all considered,
it is nothing else but a disciplinary code and procedure13, which is commonplace
in virtually all employers, and in this case is just sanctioned by agreement. This
disciplinary code was first brought into being by way of Resolution 2 of 199 9
(the 1999 Resolution ) concluded in the PS CBC, and the current 2003
Resolution was adopted to enhance it. This is evident from clause 2 of the
Introduction to the 2003 Resolution, which reads: ‘… the Disciplinary Code and
Introduction to the 2003 Resolution, which reads: ‘… the Disciplinary Code and
Procedures for the Public Service has been in existence since 1 July 1999
and that there is a necessity to streamline the Code, remove certain
ambiguities and effect certain technical changes ’. Clause 2.4 of the 2003
Resolution records the following primary objective:
‘A disciplinary code is necessary for the efficient delivery of service and the fair
treatment of public servants, and ensures that employees:
12 Clause 3 of the 2023 Resolution reads: ‘This Code and Procedure apply to the employer and all
employees falling within the registered scope of the Public Service Co-ordinating Bargaining Council’.
13 Clause 1 of the 2023 Resolution reads: ‘Parties to the PSCBC adopt the attached Disciplinary Code
and Procedures for the public service’.
16
(a) have a fair hearing in a formal or informal setting;
(b) are timeously informed of allegations of misconduct made against them;
(c) receive written reasons for a decision taken; and
(d) have the right to appeal against any decision.’
In the above respect, the 2003 Resolution is identically worded to the 1999
Resolution.
[26] Specific mention must be made to clause 4.1 of the 2003 Resolution which
provides that: ‘The Code of Good Practice contained in Schedule 8 of the
Labour Relations Act, 1995, insofar as it relates to discipline, constitutes part of
this Code and Procedure. The 1999 Resolution contained an identical provision.
[27] Another important provision at stake in ca su is clause 2.8 of the 2003
Resolution. In this respect, there appears to be a material amendment made by
the 2003 Resolution of the predecessor clause 2.8 of the 1999 Resolution.
Clause 2.8 of the 1999 Resolution reads: ‘The Code and Procedures are
guidelines and may be departed from in appropriate circumstances ’. As
opposed to this, clause 2.8 in the 2003 Resolution now reads: ‘The Disciplinary
Code and Procedures constitutes a framework within which departmental
policies may be developed to address appropriate circumstances, provided
such policies do not deviate from the provisions of the framework ’. The effect
this amendment may have on disciplinary proceedings in the Departments will
be specifically dealt with later in this judgment, and was the subject of some
debate between the respective parties when the matter was argued.
[28] The next clause of relevance for consideration is clause 6 of the 2003
Resolution. In this respect there has been no change in respect of this clause
as found in the 1999 Resolution. Clause 6 reads: If the alleged misconduct
justifies a more serious form of disciplinary action than provided in paragraph 5,
the employer may initiate a disciplinary enquiry. The employer must appoint a
representative, who as far as possible should be the manager for the employee,
representative, who as far as possible should be the manager for the employee,
to initiate the enquiry’.
[29] That brings me to clause 7, which then specifically deals with disciplinary
hearings. Clause 7.1 of the 2003 Resolution sets out the requirements where it
comes to giving notice of the disciplinary hearing . Again, it is identical to the
17
corresponding clause in the 1999 R esolution. The provision in this clause that
may have relevance to deciding the matter in casu is clause 7.1(c)(iii), which
provides that: ‘The written notice of the disciplinary meeting must use the form
of Annexure D, and provide: … information on the rights of the employee to
representation by a fellow employee or a representative or official of a
recognised trade union, and to bring witnesses to the hearing’.
[30] As intimated earlier, deciding this matter however centres on clause 7.3 of the
2003 Resolution. As such, I will specifically quote the relevant parts of this
clause, which read as follows:14
‘(a) The disciplinary hearing must be held within ten working days after the no-
tice referred to in paragraph 7.1(a) is delivered to the employee.
(b) The chair of the hearing must be appointed by the employer and be an
employee on a higher grade than the representative of the employer.
(c) The employer and the employee charged with misconduct may agree that
the disciplinary hearing will be chaired by an arbitrator from the relevant sectoral
bargaining council appointed by the council. The decision of the arbitrator will
be final and binding and only open to review in terms of the Labour Relations
Act, 1995. All the provisions applicable to disciplinary hearings in terms of this
Code will apply for purposes of these hearings. The employer will be
responsible to pay the costs of the arbitrator
.
(d) If the employee wishes, she or he may be represented in the hearing by a
fellow employee or a representative of a recognised trade union.
(e) If necessary, an interpreter may attend the hearing.
(f) In a disciplinary hearing, neither the employer nor the employee may be
represented by a legal practitioner, unless –
(i) the employee is a legal practitioner or the representative of the employer is a
legal practitioner and the direct supervisor of the employee charged with
misconduct; or
legal practitioner and the direct supervisor of the employee charged with
misconduct; or
(ii) the disciplinary hearing is conducted in terms of paragraph 7.3.c.
For the purposes of this agreement, a legal practitioner is defined as a per-son
who is admitted to practice as an advocate or an attorney in South Africa.’
14 Save for clause 7.3(e) which was added by the 2003 Resolution, the entire clause 7.3 is identically
worded to the corresponding clause 7.3 in the 1999 Resolution.
18
[31] Having due regard to all the aforesaid quoted provisions of the 2003 Resolution,
what is then the respective cases advanced by the parties? First, according to
the Departments, the amendments to clause 2.8 of the 2003 Resolution was
never intended to completely remove the discretion the employer may have to
appoint external representatives or chairpersons, but rather to narrow the
discretion to prevent ‘wholescale discretionary departures’ and limit the same to
particular and specific circumstances within the various Public Service
departments. The Departments further argued that the entire clause 7 of the
2003 Resolution must be interpreted having due regard to all the provisions of
the Resolution, and the objectives of the LRA itself, meaning any interpretation
could not just be limited to the text of clause 7. According to the Departments,
the real test is whether there exists fairness in the disciplinary proceedings, and
any provision in clause 7 should be applied to give effect to such fairness . And
finally, it has been contended by the Departments that irrespective of how the
2003 Resolution may read, the notion of fairness in disciplinary proceedings
requires at last some flexibility on the issues in contention, and an absolute
prohibition would be irreconcilable with such notion of fairness. In short, the
2003 Resolution must be considered and applied so as to allow at least a
residual discretion in this regard, as far as the Departments are concerned.
[32] The respondent parties obviously disagree with all the notions propagated by
the Departments. According to the respondents , the language of the 2003
Resolution is clear, and the text of it can only be consistent with an absolute
prohibition on the kind of discretion s contended for by the Departments. It is
argued by the respondents that the 2003 Resolution is the product of collective
bargaining under the LRA, and it is an imperative that effect must be given, in
bargaining under the LRA, and it is an imperative that effect must be given, in
all respect s, to such product , without effectively seeking to rewr ite the
agreement for the parties. Or in other words, it cannot be up the Court to make
a different contract for the parties because the Court may believe different terms
are more appropriate. It is further argued that there exists nothing where it
comes to prohibiting the appointment of an external chairperson that could
render the disciplinary process to be unfair, and it simply cannot be treated the
same as the situation where it comes to possibly permitting external legal
representation in the hearing. The respondents also contend that if the
Departments may experience resource difficulties, they could avail themselves
of clause 7.3(c). In particular, it is said by the respondents that when the 2003
19
Resolution is interpreted and applied as a whole, it can only lead to a conclusion
that the external appointments are completely and unambiguously prohibited ,
and even clause 2.8, as it currently reads, emphasises that internal Department
policies may not deviate from what is specifically regulated in the 2023
Resolution. In the end, it is said that ‘framework’ is different from a ‘guideline’
as was the case in the 1999 Resolution, with ‘framework’ emphasising the
binding nature of the 2003 Resolution.
[33] When next deciding the respective cases of the parties, it is appropriate to first
establish the principles applicable to the interpretation of written instruments,
such as the 2003 Resolution in casu. These principles are by now fairly trite. In
Natal Joint Municipal Pension Fund v Endumeni Municipality 15 the Court held
as follows:
‘... The present state of the law can be expressed as follows: Interpretation is
the process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument, or contract, having regard to the
context provided by reading the particular provision or provisions in the light of
the document as a whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration must be given
to the language used in the light of the ordinary rules of grammar and syntax;
the context in which the provision appears; the apparent purpose to which it is
directed and the material known to those responsible for its production. Where
more than one meaning is possible each possibility must be weighed in the light
of all these factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document. Judges must be alert to,
and guard against, the temptation to substitute what they regard as reasonable,
and guard against, the temptation to substitute what they regard as reasonable,
sensible or businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between interpretation and
legislation; in a contractual context it is to make a contract for the parties other
than the one they in fact made. The 'inevitable point of departure is the language
of the provision itself', read in context and having regard to the purpose of the
provision and the background to the preparation and production of the
document.
’
15 2012 (4) SA 593 (SCA) at para 18.
20
[34] The approach established in Endumeni supra has been consistently applied
since.16 Because it is in my view of importance to the decision to be made in
casu, some specific refences to the application of the Endumeni principles, for
the want of a better description, is necessary. In Capitec Bank Holdings Ltd and
Another v Coral Lagoon Investments 194 (Pty) Ltd and Others 17 the Court had
the following to say:
‘Endumeni simply gives expression to the view that the words and concepts
used in a contract and their relationship to the external world are not self -
defining. The case and its progeny emphasise that the meaning of a contested
term of a contract (or provision in a statute) is properly understood not simply
by selecting standard definitions of particular words, often taken from
dictionaries, but also by understanding the words and sentences that comprise
the contested term as they fit into the larger structure of the agreement, its
context and purpose. Meaning is ultimately the most compelling and coherent
account the interpreter can provide, making use of these sources of
interpretation. It is not a partial selection of interpretational materials directed at
a predetermined result.
Most contracts, and particularly commercial contracts, are constructed with a
design in mind, and their architects choose words and concepts to give effect
to that design. For this reason, interpretation begins with the text and its
structure. They have a gravitational pull that is important. The proposition that
context is everything is not a licence to contend for meanings unmoored in the
text and its structure. Rather, context and purpose may be used to elucidate the
text.
’
And in University of Johannesburg v Auckland Park Theological Seminary and
Another18 it was held:
‘The approach in Endumeni 'updated' the previous position, which was that
context could be resorted to if there was ambiguity or lack of clarity in the
context could be resorted to if there was ambiguity or lack of clarity in the
text. The Supreme Court of Appeal has explicitly pointed out in cases
16 See Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA
494 (SCA) at para 12; Unica Iron and Steel (Pty) Ltd and Another v Mirchandani 2016 (2) SA 307 (SCA)
at para 21 and all the authorities cited there; Nel v De Beer and Another 2023 (2) SA 170 (SCA) at paras
22 – 23.
17 2022 (1) SA 100 (SCA) at para 50- 51. See also Sugar Berry CC t/a Horison Staff Solutions v Motor
Industry Bargaining Council and Others (2026) 47 ILJ 188 (LAC) at para 13.
18 2021 (6) SA 1 (CC) at para 66.
21
subsequent to Endumeni that context and purpose must be taken into
account as a matter of course, whether or not the words used in the
contract are ambiguous. A court interpreting a contract has to, from the
onset, consider the contract's factual matrix, its purpose, the
circumstances leading up to its conclusion, and the knowledge at the time
of those who negotiated and produced the contract
[35] A final reference is to Association of Mineworkers and Construction Union and
Others v Chamber of Mines of SA and Others
19, where the Court applied the
aforesaid dictum in Endumeni supra specifically in the context of interpreting a
collective agreement, and decided as follows:
‘All interpretations of law are themselves in a sense ‘factual’: certain textual and
other sources (for example, statutes, common and customary law) are
excavated and marked out as factually ‘law’, in contradiction to non-law. But this
process itself involves a contextual analysis of those sources. See in this regard
Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13;
2012 (4) SA 593 (SCA) at para 18. Indeed, interpretation and application are
simultaneous and intricated. The most imaginative exponent of this insight is
Ronald Dworkin. See Dworkin Law’s Empire (Harvard University Press
Cambridge 1986) at vii: ‘legal reasoning is an exercise in constructive
interpretation’, in which we advance ‘the best justification of our legal practices
as a whole’.’
[36] The aforesaid general principles of interpretation duly considered, something
more must however be said where it comes to the interpretation and application
of collective agreements in particular. This is because of the very nature of
collective agreements, how they come about, and the primacy afforded to these
kinds of agreements by the LRA itself. It is therefore a very important
consideration, when interpreting and applying collective agreement s, that
consideration, when interpreting and applying collective agreement s, that
proper regard is had and proper effect is given to the objects and purpose of the
LRA itself. In this context, the C ourt in eThekwini Municipality (Health
Department) v Independent Municipal and Allied Trade Union on behalf of
Foster and Others
20 said that that a collective agreement must be interpreted:
‘… in such a manner as to ensure effective and sound industrial relations …’.
19 (2017) 38 ILJ 831 (CC) at fn 28.
20 (2012) 33 ILJ 152 (LAC) at para 27.
22
This was followed by the judgment in Western Cape Department of Health v
Van Wyk and Others21 where the Court added the following pertinent
considerations:
‘In interpreting the collective agreement the arbitrator is required to consider the
aim, purpose and all the terms of the collective agreement. Furthermore, the
arbitrator is enjoined to bear in mind that a collective agreement is not like an
ordinary contract. Since the arbitrator derives his/her powers from the Act
he/she must at all times take into account the primary objects of the Act. The
primary objects of the Act are better served by an approach that is practical to
the interpretation and application of such agreements, namely, to promote the
effective, fair and speedy resolution of labour disputes. In addition, it is expected
of the arbitrator to adopt an interpretation and application that is fair to the
parties.’
[37] More recently, and in Motor Industry Staff Association supra22 the Court once
again recognised the aforesaid imperative, and held as follows:
‘What these decisions make clear is that when a collective agreement is
interpreted, in contrast to a commercial contract, a more normative approach is
required. In the case of commercial contracts, a degree of primacy is placed on
contractual autonomy, in the form particularly of the intention of the parties.
When a collective agreement is interpreted, values based on the social
character of the agreement are relevant. To this end, the common -law canons
of interpretation of contracts offer obvious guidance but must necessarily be
tempered, where appropriate, with a consideration of the statutory context in
which a collective agreement is concluded and specifically, the objects and
purposes of the LRA.
’
And in Sugar Berry CC t/a Horison Staff Solutions v Motor Industry Bargaining
Council and Others23, with reference to the same earlier decided authorities, the
Court also decided:
Court also decided:
21 (2014) 35 ILJ 3078 (LAC) at para 22. See also Health and Other Services Personnel Trade Union of
SA on behalf of Naidoo and Others v Member of the Executive Council, Department of Health, KwaZulu-
Natal and Others (2025) 46 ILJ 933 (LAC) at para 30; SA Police Service v Solidarity on behalf of Gibbons
and Others (2025) 46 ILJ 985 (LC) at para 15; Mvelatrans (Pty) Ltd t/a Bojanala Bus Services v
Democratic Municipal and Allied Workers Union of SA and Others (2025) 46 ILJ 2702 (LC) at para 9.
22 Id at para 32.
23 (2026) 47 ILJ 188 (LAC) at para 38.
23
‘It must be emphasised that, when interpreting a collective agreement, one must
bear in mind that it is not like a commercial contract where a degree of primacy
is placed on contractual autonomy, in the form particularly of the intention of the
parties. When a collective agreement is interpreted, values based on the social
character of the agreement are relevant. To this end, the emphasis is always
on the objects and purposes of the LRA
.’
[38] This brings me neatly back to the 2003 Resolution. As said, it is a disciplinary
code and procedure. In interpreting this kind of cade and procedure, all the LRA
requires is disciplinary proceedings that are fair. What is fair, in general, can be
found in the Code of Good Practice as set out in Schedule 8 to the LRA (the
Code). In fact, the 2003 R esolution itself suggests that it incorporates the
provisions of the Code by making reference thereto in that context . The
aforesaid being the case, what the parties may have intended plays second
fiddle to an interpretation that accords with the standards of fairness
contemplated by the LRA. Considering that the matter in casu specifically
concerns the provisions of the 2003 Resolution relating to representation of the
parties and the appointment of chairpersons, item 11(4)(c) of the Code provides
that: ‘Usually, before a decision is taken to dismiss, the employee should be- …
allowed the assistance of a fellow employee or trade union representative …’.
Nothing is said about the appointment of a chairperson, or about external legal
representation. Further, and in terms of item 11(6) of the Code, it is provided
that: ‘In exceptional circumstances, if the employer cannot reasonably be
expected to comply with these guidelines, the employer may dispense with
some or all of them. … ’.
[39] Against the above basic tenets of fairness, the applicable provisions of the 2003
Resolution must now be considered. Where a disciplinary hearing against an
Resolution must now be considered. Where a disciplinary hearing against an
employee is contemplated, two appointments, for the want of a better
description, must be made by the employer. First, an initiator must be appointed,
which is referred to in clause 6 as the employer representative in the
proceedings. This repre sentative should as far as possible should be the
manager of the employee, or at least an employee of a grade higher than the
employee. Second, a chairperson must be appointed. In terms of clause 7.3(b),
this appointment must be made by the employer and be an employee on a
higher grade than the representative of the employer . But where it comes to
external legal representation of either party in the disciplinary hearing, clause
24
7.3(f) prohibits it, recording that neither the employer nor the employee may be
represented by a legal practitioner. The only exception to this principle is where,
considering that in the broad spectrum of the P ublic Service, the employee or
the initiator may turn out to be legal representatives themselves. In that case,
legal representation of both parties will be allowed in the disciplinary
proceedings, and any party who is not a legal representative may appoint one
in terms of this clause.
[40] In sum, the structure of the 2003 Resolution as it reads , seems clear. The
employer initiates disciplinary proceedings against an employee by serving the
employee with notice to attend a disciplinary hearing, and further appoints an
initiator and chairperson for the disciplinary hearing. This is all part of the same
prescribed process. It also appears clear that the initiator and the chairperson
must be appointed from amongst the employees of the employer, pursuant to
the stipulated levels of authority . And lastly, as a matter of general principle
external legal representation is not allowed in the proceedings.
[41] But is th e aforesaid textual reading and interpretation the end of the enquiry ?
Or should these provisions nonetheless be measured against the yardstick of
fairness and what is intended by the LRA where it comes to the notion of fair
disciplinary proceedings? Based on all the principles and considerations
elaborated on above, I believe a purely textual interpretation is not appropriate.
In my view, the 2003 Resolution must be interpreted and applied having full and
proper regard to the objectives and provisions of the LRA where it comes to the
notion of procedural fairness required for internal disciplinary hearings. I f such
an interpretation necessitates some departure from the text of the 2003 as it
reads, then so be it.24 As said in Potgieter v National Commissioner of the SA
Police Service and Another25:
Police Service and Another25:
‘There is authority in our law that disciplinary codes, including those set out in
collective agreements, are guidelines that should generally be followed unless
there are valid reasons for failing to do so. In general the courts have adopted
24 As an example, and in instance concerning the text of the LRA itself, being the use of the word ‘despite’
in section 158(1)(g), the Court Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC)
at para 28 dealt with this as follows: ‘It is necessary to attempt to interpret s 145 in a manner which
is consistent with the Constitution … It is capable of such an interpretation. If the result means that the
word 'despite' in s 158(1)(g) should be read as 'subject to', then so be it. It is a lesser evil than ignoring
the whole of s 145, including its sensible provisions relating to time limits … ’.
25 (2009) 30 ILJ 1322 (LC) at para 60.
25
a holistic approach in dealing with this issue and have emphasized that the
guiding principle should be whether the principles of justice are upheld.’
[42] Turning next to the specific provisions in clause 7.3, it is perhaps appropriate to
start with the issue of representation in the disciplinary hearing. As said, the
2003 Resolution allows only representation by an employee or trade union
representative. As discussed above, and in this respect, the provisions of the
1999 Resolution and the 2003 Resolution are identical. In MEC: Department of
Finance, Economic Affairs and Tourism, Northern Province v Mahumani26 the
Court had specific regard to clause 7.3(e) of the 1999 Resolution, which as said
is identical to the current clause 7.3(f) of the 2003 Resolution. The Court
reasoned as follows as to how this clause should be applied, despite its clear
text:27
‘… clause 7.3 (e) is a fundamentally important provision of the agreement and
that it should not lightly be departed from. But, there may be circumstances in
which it would be unfair not to allow legal representation
In terms of our common law a person does not have an absolute right to be
legally represented before tribunals other than courts of law ( Dabner v SA
Railways & Harbours 1920 AD 583 at 598; and Hamata at para 5). However, it
does require disciplinary proceedings to be fair and if 'in order to achieve such
fairness in a particular case legal representation may be necessary, a
disciplinary body must be taken to have been intended to have the power to
allow it in the exercise of its discretion unless, of course, it has plainly and
unambiguously been deprived of any such discretion' (per Marais JA
in Hamata at para 23).
The parties, who agreed on the code, were intent on devising a fair procedure
(see clause 2.4) and it is reasonable to assume that they also knew that there
may be circumstances in which it would be unfair not to allow legal
may be circumstances in which it would be unfair not to allow legal
representation. In these circumstances it is likely that they would have intended
the presiding officer to have a discretion to allow legal representation in
circumstances in which it would be unfair not to do so. I can find no indication
in the code to the contrary. There is, therefore , no justification for interpreting
'appropriate circumstances' in clause 2.8 so as not to include circumstances
26 (2004) 25 ILJ 2311 (SCA).
27 Id at paras 10 – 13.
26
which would render it unfair not to allow legal representation at a disciplinary
enquiry.
It follows that, if, on a conspectus of all the circumstances, it would be unfair not
to allow legal representation the provisions of clause 7.3 (e) may in terms of
clause 2.8 be departed from. The presiding officer erred in holding that he had
no discretion to allow such a departure.’ (emphasis added)
[43] It is important to appreciate that the Court in Mahumani supra, in inter preting
clause 7.3(e) had due regard to all the other provisions in the 1999 Resolution
which dealt with the tene ts of what would be a fair hearing under such
Resolution. I have quoted all those provisions earlier in this judgment, and none
of these provisions have been changed as they stood in the 1999 Resolution,
by way of the current 2003 Resolution. It must follow that generally speaking, it
may be considered necessary to ensure a fair d isciplinary hearing that it be
inferred that the chairperson still has a discretion to allow legal representation,
no matter what the 1999 Resolution provided.
[44] But it cannot be ignored that clause 2.8 as it read in the 1999 Resolution played
an important part in the reasoning of the Court in Mahumani. In th e 1999
Resolution, it was specifically provided the provisions therein were only
guidelines and could be depart ed from in appropriate circumstances. That
provision, as it read, could thus be said to provide for the kind of discretion as
envisaged by the Court in Mahumani. However, the 2003 Resolution expressly
amended clause 2.8. It now provides that the provisions of the 2003 Resolution
constitutes a framework within which internal policies in each and every
employer may be developed to address appropriate circumstances, provided
such policies do not deviate from the provisions of the framework. The question
now is whether this amendment was intended to pertinently expel any possibility
of a discretion where it comes to appointments of external legal representatives
of a discretion where it comes to appointments of external legal representatives
in the disciplinary hearing.
[45] As touched on earlier in this judgment, it was certainly an important part of the
case presented by the Departments that clause 2.8 of the 2003 Resolution still
envisaged such a discretion, or at least certainly did not permanently and
completely dispel it . And on the other hand, the respondent parties argued it
was an express amendment to dispel any such notion, and even internal policies
27
adopted in individual Departments could not depart from it. So, and in short, has
the discretion been retained? For the reasons to follow, I believe the answer to
this must be in the affirmative.
[46] Clause 2.8 as it stood in the 1999 Resolution refers to it as a ‘guideline’. Clause
2.8 in the 2003 Resolution refers to it as a ‘framework’. It there really a material
difference between these two concepts ? In general, a framework is a real or
conceptual structure intended to serve as a support or guide for the
establishment of something else or further , such as a procedure, policy or
process, that then expands the structure into something useful or appropriate.
In simple terms, the very concept of a framework contemplates something more
being envisaged than just what is contained in the framework. As opposed to
this, the concept of a ‘guideline’ has a very similar consequential meaning, even
if it is not as forceful as a framework . A guideline also contemplates the
development of something further where required or appropriate, and serves as
an indication how this should be developed. I may also mention that item 11 of
the Code refers to the provisions relating to a fair procedure therein as
‘guidelines’. In the end, and even when considering ‘framework’ in this particular
context, it cannot be said to be entirely rigid.
[47] In my view, what was intended by the amendment of clause 2.8 was something
entirely different to what is contended for by the respondents . Even under the
1999 Resolution, an employer was compelled to adhere to such Resolution and
the prescripts relating to legal representation therein, despite being called a
‘guideline’, barring the existence of something exceptional to indicate otherwise,
which was specifically recognised in Mahumani. So, the manner in which the
Court applied ‘guideline’ in Mahumani was quite comparable to how one would
apply a framework. Importantly, clause 2.8 is always a general provision
apply a framework. Importantly, clause 2.8 is always a general provision
applicable across a large number of P ublic Service D epartments where
exceptional circumstances and occupational necessities may differ from
Department to Department . A uniform standard in this regard may not be
appropriate. It is in this context that the amendment to clause 2.8 makes sense,
as it the n allows individual D epartments to develop policies in this regard for
themselves, provided that these policies r emain within the confines of the
framework of the 2003 Resolution. It is not a clause intended to completely
dispel any discretion. It is a clause intended to rather specifically regulate it.
28
[48] I therefore believe that the framework of the 2003 Resolution is not intended to
place an absolute prohibition on any external legal representation. The basic
provisions in this regard as found in the current clause 7.3(f) of the 2003
Resolution were considered in Mahumani supra, and Court made it clear that
despite this wording, a discretion in this regard must always remain, in order to
ensure that, in appropriate circumstances, effect is given to the requirements of
a fair hearing under the LRA. An example of where the framework as envisaged
by the 2003 Resolution would not be able to be departed from by way of
Department policy is where the employee is called to a disciplinary hearing
without being presented with charges, where the employee is deprived of a right
to appeal
28, or where the employee is not allowed any representation at all. The
point is that under the LRA and then also the 2003 Resolution, the employee is
entitled to representation in the internal disciplinary hearing. That is the basic
tenet of fairness. In general, representation that would be considered fair is
internal (by a fellow employee) or trade union representation. But exceptional
circumstances may require such representation to be external legal
representation in order to be considered fair representation . The chairperson
must be entitled to consider this issue, and make a determination accordingly.
Anything else would not be fair. As succinctly held in Highveld District Council v
Commission for Conciliation, Mediation and Arbitration and Others29:
‘Where the parties to a collective agreement or an employment contract agree
to a procedure to be followed in disciplinary proceedings, the fact of their
agreement will go a long way towards proving that the procedure is fair as
contemplated in s 188(1) (b) of the Act. The mere fact that a procedure is an
agreed one does not however make it fair. By the same token, the fact that an
agreed one does not however make it fair. By the same token, the fact that an
agreed procedure is not followed does not in itself mean that the procedure
actually followed was unfair … ’
[49] But even if a more restrictive interpretation is placed on clause 2.8 in the 2003
Resolution, it must be remembered that the Resolution itself makes it an
imperative that the Code must be applied when interpreting its provisions. And
28 The right to appeal is prescribed in clause 8 of the 2003 Resolution.
29 (2003) 24 ILJ 517 (LAC) at para 15. See also Ekurhuleni Metropolitan Municipality v SA Municipal
Workers Union and Others (2018) 39 ILJ 546 (LAC) at 15, which Court called the ‘ marginality’ of a
collective agreement in determining unfair dismissal matters. See further Lebaka and another v Road
Traffic Management Corporation [2017] JOL 36764 (LC) at para 17; Greater Letaba Local Municipality
v Mankgabe NO and Others [2008] 3 BLLR 229 (LC) at para 26.
29
I believe this is where item 11(6) of the Code is decisive. It provides that in
exceptional circumstances, if the employer cannot reasonably be expected to
comply with the guidelines under item 11, it may be department from. This is
quite similar to how clause 2.8 of the 1999 Resolution had read. It effectively
duplicated item 11(6) of the Code. When the clause was amended by way of
the 2003 Resolution, it was never provided that the employer may not in any
circumstances depart from the framework, despite what item 11(6) of the Code
allows for. If that is what was intended, especially considering the objectives of
the LRA, it needed to be specially provided to that effect. Thus, clause 2.8 must
always be considered in conjunction with item 11(6) of the Code. That allows
for the concept of fairness even under the 2003 Resolution to also be informed
by exceptional circumstances outside the ordinary. The 2003 Resolution must
therefore always be interpreted and applied with that in mind. As pertinently said
in Dukada v M EC: Department of Provincial Planning and Treasury, Eastern
Cape and Others
30, albeit in the context of interpreting virtually identical
provisions found in the SMS Handbook:
‘The above decisions demonstrate the necessity for the parties at least to
request legal representation. A literal interpretation of clause 2.7(3)(e) may find
parties having to represent their own cases in circumstances where they lack
the necessary ability, leading to a miscarriage of justice. The ruling reflects that
the third respondent based his decision not only on a few clauses of the
handbook but on the entire relevant chapter, a proper reading of which
justifies the ruling. The third respondent's interpretation that a proper
construction of clause 2.7(3) (e) does not obliterate his discretion to determine
legal representation is consistent with the spirit of the handbook, the
Constitution and decisions of our courts.
’
Constitution and decisions of our courts.
’
[50] In summary, and where it comes to the issue of legal representation of any of
the parties before an internal disciplinary hearing convened under the 2003
Resolution, the default position is that external legal representation is not
allowed, however the chairperson of the disciplinary hearing will always retain
the discretion to allow legal representation where exceptional circumstances
may justify the same. Importantly, a party does not have the right to such legal
representation. The chairperson has a wide discretion to allow it.
30 (2013) 34 ILJ 3220 (LC) at para 17.
30
[51] So, what is then the position where it comes to appointment of an exter nal
chairperson? As touched on above, clause 6 relating to the appointment of an
initiator in the disciplinary hearing and clause 7.3(b) relating to the appointment
of the chairperson in the same proceedings are quite similarly worded, and part
and parcel of the same process of appointment . It has been established, by
virtue of the reasoning set out above, that despite what clause 6, as read with
clause 7.3(f) may provide for , there is still a residual discretion that the
chairperson can exercise to allow external legal representation. It must follow
that surely the same considerations would apply to the appointment of an
external chairperson. Simply put, the appointment of a chairperson is an integral
part of the exact same process, and must thus be subject to the exact same
discretion, where of course it is appropriate based on exceptionality.
[52] But nonetheless, there is something different where it comes to exercising a
discretion in respect of the appointment of an external chairperson . Obviously,
and where the situation involves a chairperson exercising the discretion to allow
external legal representation, both the parties would have the opportunity to
ventilate and argue their respective cases in this regard before the chairperson,
and the chairperson then is able to such discretion in a judicial manner based
on what was placed before him or her by the parties in this respect . But that
obviously cannot happen where it comes to the appointment of a chairperson in
the first place. How would the parties make submissions in this regard, and to
whom would it be made. The employee can hardly make submissions to the
employer itself, as the employer is the very party that is seeking to appoint the
external chairperson. In my view, it is an untenable proposition to have some
kind of pre-process relating to the appointment of a chairperson in which parties
kind of pre-process relating to the appointment of a chairperson in which parties
participate. To describe it simply, it would be silly to appoint a pre- chairperson,
so to speak, to decide on the appointment of an external chairperson. Rather, I
believe, the answer lies in a subsequent challenge in the convened disciplinary
proceedings based on what is fair or unfair, as I will discuss below.
[53] As a matter of law and fairness , the only requirements for a chairperson of a
disciplinary hearing is that such chairperson must be neutral, impartial,
unbiased, and have no ex parte knowledge of the events giving rise to the
disciplinary proceedings, which is in any event presumed to be case where it
31
comes to a legally qualified external chairperson.31 In particular, there is no right
on the part of employees to insist on an external chairperson, and this remains
a decision entirely up to the employer .32 In this respect, appointing an external
chairperson would therefore be better than what the requirements of fairness
under the LRA dictates. That being the case, I find it difficult to comprehend how
the appointment of an external chairperson can even be said to be unfair or
prejudicial toward the employee party. That is why I say the attack on such
appointment can only be based on fairness, for example that the chairperson is
not neutral, because that chairperson gave advice to the employer on the merits
of the matter beforehand. But absent these kinds of anomalies, there can be no
cause or prejudice to an employee to object to such an appointment. So, and at
least, let’s call what happens in these cases a prima facie appointment of the
external chairperson by the employer, acting unilaterally, as being justified and
permitted. But as I will discuss further below, there is a check and balance that
can be applied to ensure the requirements of exceptionality is satisfied.
[54] Therefore, and in my view, based on all the above considerations where it
comes to the appointment of an external chairperson, the proper interpretation
to be attached to clause 7.3(b) is that as a general principle, the employer must
appoint a chairperson which is an employee of the employer, and where that
chairperson is a fellow employee, that chairperson must be of a higher rank than
the initiator. The purpose of this qualification is clear, namely to ensure neutrality
and impartiality. It will ensure that the chairperson cannot be unduly influenced
by an initiator that is his or her superior. But I do not believe clause 7.3(b)
envisages that the chairperson appointed by the employer must only be a fellow
employee and no one else. The general principle must be subject to a discretion
employee and no one else. The general principle must be subject to a discretion
informed by exceptionality. If a complete prohibition was envisaged, it needed
to have been specifically determined in the clause, and in the absence of that
being done, the objectives of the LRA, as discussed earlier, must prevail. If this
is not done, unfairness may result. It must be remembered that fairness applies
31 In Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC) at para 41, it was said: ‘There is a presumption
in our law that judicial officers are impartial when adjudicating disputes and, as it was noted by this court
in Irvin & Johnson, the threshold a litigant would have to meet to establish a reasonable apprehension
of bias is high … ’..
32 Compare RCL Foods Consumer (Pty) Ltd v National Union of Food Beverage Wine Spirits and Allied
Workers and Others (2018) 39 ILJ 2318 (LC) at para 22; Mkhize v Antrobus NO and Another (2013) 34
ILJ 2893 (LC) at para 9.
32
to both employer and employee.33 In particular circumstances, such as where a
case might be extremely complex, an y internal employee may not have the
ability to decide the case. It would be unfair to expect the employer under such
circumstances to push through with a chairperson that may not be competent,
nonetheless. And in any event, the residual discretion to ensure fairness in the
process, as discussed above, always remains. The following dictum in Khula
Enterprise Finance Ltd v Madinane and Others34 is apposite:
‘The arbitrator does not appear to have considered at all the reasons why an
independent advocate was appointed to chair the enquiry. There were sound
reasons for doing so, in particular that the most senior levels of management
were personally involved in the complaints and allegations against Dr Madinane
and it was simply unrealistic to appoint anybody within management. None was
available or able to handle a disciplinary enquiry with any level of detachment
and objectivity in the circumstances. The code serving merely as a guideline,
the employer was entitled to look outside the organization for somebody with
appropriate expertise and objectively to chair the enquiry. This served the
interests of both sides receiving a fair hearing. There is no basis for Dr
Madinane's objection in this regard. His reliance on the provision of the code
was misplaced. It did not provide that an employee had to approve the
appointment of any person to chair the disciplinary enquiry. It merely provided
that enquiries would ordinarily be chaired by a member of management, the
level of which 'would be acceptable to both parties'. In this case no level H of
manager was acceptable to management, fo r sound reasons as discussed
above. There could be no reasonable objection to appointing an outsider in
these circumstances. …
’
[55] In summary, and as I see it, where it comes to the appointment of the
chairperson, the employer has the discretion to decide whether or not to appoint
chairperson, the employer has the discretion to decide whether or not to appoint
33 In Anglo American Platinum (Rustenburg Platinum Mines) v Beyers and Others (2021) 42 ILJ 2149
(LAC) at para 25, it was pertinently said that: ‘The concept of fairness applies to both the employer and
the employee. It involves the balancing of competing and sometimes conflicting interests of the employer
on the one hand and the employee on the other hand. The weight to be attached to those respect ive
interests depends largely on the overall circumstances of each case …’. And in National Union of
Metalworkers of SA v Vetsak Co- operative Ltd and Others (1996) 17 ILJ 455 (A) at 593G-H, albeit in
the context of the LRA, 1956; it was held: ‘… The fairness required in the determination of an unfair
labour practice must be fairness towards both employer and employee. Fairness to both means the
absence of bias in favour of either. In the eyes of the LRA of 1956, contrary to what counsel for the
appellant suggested, there are no underdogs …’. See also Steenkamp and Others v Edcon Ltd (National
Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC) at para 116.
34 (2004) 25 ILJ 535 (LC) at para 11 . Also compare Public Servants Association of South Africa
obo Dodo v Minister of Home Affairs and Others [2024] JOL 64748 (LC) at paras 42 – 43.
33
an external chairperson, if exceptional circumstances dictate. The employer
unilaterally makes such appointment if it believes there are such exceptional
circumstances. If the employee believes such an appointment could lead to an
unfair disciplinary hearing or that there actually exists no exceptional
circumstances to justify such appointment, then that is an issue than can be
raised with the appointed chairperson to decide. That is the check and balance
I referred to earlier in this judgment. It is surely best for such an external
independent chairperson to decide if he or she as external chairperson is
competent to proceed with the disciplinary hearing, on the basis that exceptional
circumstances exist. It is a wide discretion and can only be attacked if it is
exercised in a manner that is not judicial. But it is not appropriate nor permitted
to challenge the appointment of the external chairperson on the basis that the
2003 Resolution completely prohibits it. Such a challenge is not legally
competent, as the 2003 R esolution allows for such an appointment , once
interpreted and applied as a whole, and in line with the objectives of the LRA.
[56] This question of the appointment of an external chairperson was pertinently
dealt with in the judgment of Public Servants Association of South Africa obo
Dodo v Minister of Home Affairs and Others35. The Court relied on the aforesaid
quoted reasoning in Mahumani supra, and held:36
‘Inasmuch as it is appreciated that clause 7.3 (b) of the Code was not an issue
before the SCA, the principles emanating therein in the interpretation of clause
7.3 (e) are in my view, equally applicable to clause 7.3.(b) of the Code. This is
so in that fundamental to that interpretation was a requirement for disciplinary
proceedings to be fair. It is trite that fairness applies to both the employer and
the employee. In Anglo American Platinum Ltd v Beyers and Others, it was held
the employee. In Anglo American Platinum Ltd v Beyers and Others, it was held
that the concept of fairness applied to both the employer and the employee, and
that it involved the balancing of competing and sometimes conflicting interests
of the employer on the one hand and the employee on the other hand. The
weight to be attached to those respective interests depends largely on the
overall circumstances of each case.
The Court accepts that there is a lacuna in both the Resolution and the Directive
in regards to the process to be followed when a department seeks to appoint an
external chairperson who is a legal practitioner. The Directive at its clause 7.1
35 [2024] JOL 64748 (LC).
36 Id at para 39 – 41.
34
merely refers to the parties having first to obtain the chairperson’s ruling prior to
appointing legal representatives. This obviously created an invidious position
for departments where they seek to engage the services of legal practitioners
as chairpersons, especially in circumstances such as in this case.
In my view however, the solution is to be found in the principles of fairness as
already pointed out in Mahumani and Anglo American Platinum Ltd v Beyers
and Other. Thus, if it means that the employer in order to ensure that it gets a
fair hearing in pursuing allegations of serious misconduct against an employee,
fairness dictates that it should be allowed deviation from the provisions of clause
7.3 (b) of the Code, p rovided that it demonstrates exceptional circumstances
necessitating the deviation. …
’
[57] In summary therefore, I find that where it comes to the appointment of a
chairperson under clause 7.3(b) of the 2003 Re solution, the default position is
that such chairperson to be appointed must be a fellow employee, of a rank
higher than the initiator of the disciplinary hearing. However, this default position
is always subject to the entitlement of the employer to appoint an external
chairperson, provided that exceptional circumstances justify such appointment.
It is the employer that makes such a decisi on to appoint such chairperson,
pursuant to what it believes to be exceptional circumstances. This entitlement
to appoint an external chairperson on such basis is t hen tempered by a
corresponding entitlement on the part of the employee to challenge the
appointment before the chairperson himself or herself , on the basis that
exceptional circumstances do not justify the appointment. Where this challenge
is made, the chairperson exercises a wide discretion, conducts a fairness
evaluation based on the submissions by both parties, and decides whether he
or she is competent to preside over the disciplinary hearing. All this considered,
or she is competent to preside over the disciplinary hearing. All this considered,
a complete prohibition on the appointment of an external chairperson is not what
is envisaged nor contemplated by the 2003 Resolution, properly considered and
applied in accordance with the objectives of the LRA. Any finding to the contrary,
as is the case where it comes to the findings of the various arbitrators in casu ,
is therefore materially in error, and constitutes an error of law.
[58] The respondent parties have suggested that instead of adopting an approach
as I have summarized above, the answer for any predicament the Departments
may have is to use clause 7.3(c) of the 2003 Resolution , which allows for the
35
parties to agree that the disciplinary hearing will be chaired by a bargaining
council arbitrator, with the decision of the arbitrator then being final and binding.
This clause is however no solution at all. First and foremost, it requires an
agreement from the employee. Without such an agreement, the employer would
still be stuck. And secondly, what this clause in reality does is just to incorporate
section 188A of the LRA, which provides for pre- dismissal arbitration, thereby
entirely skipping the internal disciplinary process and resorting immediately to
final arbitration.37 This cannot resolve any issue relating to what is permissible
in an internal disciplinary hearing. And in any event, it is not appropriate to
effectively deprive the Departments of their right to internal disciplining of
employees, which is what this argument in fact contemplates . Therefore, any
reliance on clause 7.3(c) of the 2023 Resolution is misplaced, and no answer in
casu.
[59] All considered, the arbitration awards issue d by the various arbitrators in this
consolidated matter, to the effect that the appointment by the Department s of
the external chairpersons concerned is not permitted by the 2003 Resolution
and contrary to clause 7.3(b) of such resolution, constitutes a material error of
law, and falls to be reviewed and set aside. The same applies to any
determination relating to external legal representation of any of the parties in
terms of clause 7.3(f).
Conclusion
[60] With the arbitration awards of the various arbitrators having been reviewed and
set aside, where to now? The answer lies in section 145(4) of the LRA. 38 In
General Motors SA (Pty) Ltd v National Union of Metalworkers of SA and
Others39 the Court held that:
37 See SA Transport and Allied Workers Union and Others v MSC Depots (Pty) Ltd and Others (2013)
34 ILJ 706 (LC) at para 11 , where the Court held: ‘Section 188A (despite its unfortunate title which on
the face of it, assumes the outcome of the arbitration hearing) has as its purpose a means of expediting
dispute resolution by avoiding duplication between internal and external hearings. In effect, in t erms of
a tripartite agreement between the employee, the employer and the CCMA, an arbitrator steps into the
shoes of the employer and assumes the right normally considered a sacrosanct element of the
managerial prerogative — the right to exercise discipli ne, including the right to dismiss. The benefit for
all is the elimination of the duplication that inevitably occurs when court -like in -house hearings are
inevitably followed by an arbitration hearing conducted on a de novo basis …’. See also Msagala v
Transnet SOC Ltd and Others (2018) 39 ILJ 259 (LC) at para 7.
38 Section 145(4)(a) reads: ‘If the award is set aside, the Labour Court may – (a) determine the dispute
in the manner it considers appropriate … ’.
39 (2018) 39 ILJ 1316 (LC) at para 26
36
‘In successful review applications, this court ordinarily exercises a discretion to
either remit the matter to the CCMA for rehearing or substitute the
commissioner’s finding for one that is appropriate. The source of this discretion
is s 145(4) of the LRA, which provides that this court may either ‘determine the
dispute in the manner it considers appropriate’ or ‘make any order it considers
appropriate about the procedures to be followed to determine the dispute’. The
court ordinarily takes into account whether the result is a foregone conclusion,
whether any prejudice would be caused to the applicant by any further delay,
whether the decision maker has exhibited bias, and whether the court is in as
good a position to make the decision itself.
’
[61] In this case , the determination of the review applications hinges on what is
quintessentially a legal question. That is the kind of question that can
competently be finally decided by this Court without the need to refer it back to
the PSCBC to decide. Further, this judgment may then serve as precedent for
all the further cases on this issue to come, as I am quite certain that there will
be many more instances where employers in the P ublic Service will seek to
appoint external chairpersons, and where the issue of legal representation in
these internal disciplinary proceedings may come up. A final determination of
these questions is thus in the interest of all parties to the PSCBC, and essential
for certainty to be established. I shall thus substitute the findings made in each
of the awards at stake in this consolidated matter, by way of a determination
that the 2003 Resolution does not prohibit the appointment of an external
chairperson by employers and that such appointment i s not contrary to clause
7.3(b) thereof , provided proper excepti onal circumstances exist for such
appointment to be made. I shall similarly substitute findings relating to external
appointment to be made. I shall similarly substitute findings relating to external
legal representation with a determination that the 2003 Resolution does not
abolish a residual discretion in this regard.
[62] However, and as I have dealt with e arlier, the various arbitrators decided that
the 2003 Resolution does not contemplate the appointment of external
chairpersons / representatives, and effectively prohibits it, per se. There was
never any consideration nor determination made by any of these arbitrators as
to whether exceptional circumstances justifying such appointment s exist. This
was also not the cases these arbitrators were actually called on to decide. Even
37
though the submissions on the facts by the Departments why it was necessary
to make such external appointments currently stand as undisputed, it remains
the prerogative of each appointed chairperson, as I have discussed above, to
determine whether his or her appointment is justified and substantiated by
exceptional circumstances, and whether it would be competent for him or her to
continue to preside over the disciplinary hearing on such basis . Similarly, the
chairperson must decide if external legal representation is permitted, also on
such basis. It appears from the points in limine raised in all of the individual
disciplinary hearings that the only issue was whether the appointment of t he
chairpersons was competent under the 2003 Resolution, per se . Exceptional
circumstances and the cause for such appointment s was not properly
ventilated, nor decided. It is not for this Court to make such decision at this
stage. I would therefore consider it appropriate to refer this issue back to the
various chairpersons for determination, when the individual disciplinary
hearings of the employee respondents reconvene before each of them.
Costs
[63] This then leaves only the issue of costs. In terms of the provisions of section
162(1) of the LRA, I have a wide discretion where it comes to the issue of costs.
I am aware of what the Constitutional Court said with regard to costs in
employment disputes as expressed in Zungu v Premier of the Province of Kwa-
Zulu Natal and Others40. In exercising this judicial discretion, the same Court in
Long v South African Breweries (Pty) Ltd and Others41 re-affirmed the principle
set in Zungu supra and stated that ‘when making an adverse costs order in a
labour matter, a presiding officer is required to consider the principle of fairness
and have due regard to the conduct of the parties’. Even though the applicants
were successful, I do not believe that this will ever be a case where a costs
were successful, I do not believe that this will ever be a case where a costs
order in their favour would be justified and fair. The issue placed before this
Court was an important legal question extending beyond the parameters of only
this case, and it was in the interest of all the parties to the PSCBC that the issue
be decided. And as I have already touched on, all parties certainly had an
arguable case. The parties also have an ongoing relationship in the PSCBC,
40 (2018) 39 ILJ 523 (CC) at para 25.
41 (2019) 40 ILJ 965 (CC) at para 30.
38
which mitigates against any costs award. I can therefore see no reason to depart
from the general principle that costs do not follow the result in an employment
dispute such as the one in casu. Coupled with an overall consideration of
fairness to all parties, l am convinced that it would be appropriate and fair to
make no order as to costs.
[64] For all the reasons as set out above, I hereby make the following order:
Order
Case Number JR 2129 / 23
1. The applicant’s review application is granted.
2. The arbitration award of the first respondent, arbitrator William Richard
Pretorius, dated 11 September 2023 and issued under case number
PSCBC 95-23/24, is reviewed and set aside.
3. The arbitration award is substituted with an award and determination that
clause 7.3(b) of Resolution 1 of 2003 does not contemplate nor prescribe
that the applicant is prohibited from appointing any person as the
chairperson of the disciplinary hearing in respect of the second
respondents, other than a person specifically employed as an employee
of the applicant, as the applicant under clause 7.3(b) retains the
discretion to appoint an external chairperson in exceptional
circumstances.
4. The arbitration award is further substituted with an award and
determination that clause 7.3(f) of Resolution 1 of 2003 does not
contemplate nor prescribe that the applicant is prohibited from appointing
an external legal representative to act as initiator in the disciplinary
hearing in respect of the second respondents, as the applicant under
clause 7.3( f) retains the discretion to appoint an external legal
representative as such an initiator in exceptional circumstances.
39
5. The determination of whether exceptional circumstances exist as
contemplated by paragraphs 3 and 4 of this order is remitted back to the
appointed chairperson for decision and determination.
6. There is no order as to costs.
Case Number JR 1544 / 23
1. The applicant’s review application is granted.
2. The arbitration award of the second respondent, arbitrator Mbulaheni M
Netshifhefhe, dated 25 July 2023 and issued under case number PSCBC
378-22/23, is reviewed and set aside.
3. The arbitration award is substituted with an award and determination that
clause 7.3(b) of Resolution 1 of 2003 does not contemplate nor prescribe
that the applicant is prohibited from appointing any person as the
chairperson of the disciplinary hearing in respect of the third, fourth, fifth
and sixth respondents, other than a person specifically employed as an
employee of the applicant, as the applicant under clause 7.3(b) retains
the discretion to appoint an external chairperson in exceptional
circumstances.
4. The determination of whether exceptional circumstances exist as
contemplated by paragraph 3 o f this order is remitted back to the
appointed chairperson for decision and determination.
5. There is no order as to costs.
Case Number JR 160 / 24
1. The applicant’s review application is granted.
2. The arbitration award of the first respondent, arbitrator Minette Van der
Merwe, dated 28 November 2023 and issued under case number PSCBC
568-23/24, is reviewed and set aside.
40
3. The arbitration award is substituted with an award and determination that
Resolution 1 of 2003 does not find application in this instance as the
second respondent is a senior manager as contemplated by the SMS
Handbook, in terms of which the applicant is entitled to appoint an
external chairperson in respect of the disciplinary hearing of the second
respondent.
4. There is no order as to costs.
Case Number JR 1879 / 23
1. The applicant’s review application is granted.
2. The arbitration award of the second respondent, arbitrator Minette Van
der Merwe, dated 31 August 2023 and issued under case number
PSCBC 62-23/24, is reviewed and set aside.
3. The arbitration award is substituted with an award and determination that
clause 7.3(b) of Resolution 1 of 2003 does not contemplate nor prescribe
that the applicant is prohibited from appointing any person as the
chairperson of the disciplinary hearing in respect of the third and fourth
respondents, other than a person specifically employed as an employee
of the applicant, as the applicant under clause 7.3(b) retains the
discretion to appoint an external chairperson in exceptional
circumstances.
4. The arbitration award is further substituted with an award and
determination that clause 7.3(f) of Resolution 1 of 2003 does not
contemplate nor prescribe that the applicant is prohibited from appointing
an external legal representative to act as initiator in the disciplinary
hearing in respect of the third and fourth respondents, as the applicant
under clause 7.3(f) retains the discretion to appoint an external legal
representative as such an initiator in exceptional circumstances.
5. The determination of whether exceptional circumstances exist as
contemplated by paragraphs 3 and 4 of this order is remitted back to the
appointed chairperson for decision and determination.
41
6. There is no order as to costs.
Case Number JR 1595 / 23
1. `The applicant’s review application is granted.
2. The arbitration award of the second respondent, arbitrator Mbulaheni M
Netshifhefhe, dated 27 July 2023 and issued under case number PSCBC
001-22/23, is reviewed and set aside.
3. The arbitration award is substituted with an award and determination that
clause 7.3(b) of Resolution 1 of 2003 does not contemplate nor prescribe
that the applicant is prohibited from appointing any person as the
chairperson of the disciplinary hearing in respect of the third respondent,
other than a person specifically employed as an employee of the
applicant, as the applicant under clause 7.3(b) retains the discretion to
appoint an external chairperson in exceptional circumstances.
4. The determination of whether exceptional circumstances exist as
contemplated by paragraph 3 of this order is remitted back to the
appointed chairperson for decision and determination.
5. There is no order as to costs
42
____________________
S Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
Case numbers JR 1544 / 23, JR 1879 / 23 and JR 1595 / 23
For the Applicant: Mr S July of Werksmans Attorneys Inc
For the First and Second
Respondents: Mr L Frahm-Arp of Fasken Inc Attorneys
For the Third and Fourth
Respondents (JR 1879/23): Advocate W K Mphahlele of the Public Servants
Association
For the Third to Sixth
Respondents (JR 1544/23): Advocate C Sihlali
For the Third Respondent
(JR 1595/23): Advocate C Sihlali
Case numbers JR 2129 / 23 and JR 160 / 24
For the Applicant: Advocate S Mahlangu together with Advocate B
Maphosa
Instructed by: Vuma Attorneys
For the First and Third
Respondents: Mr L Frahm-Arp of Fasken Inc Attorneys
For the Second Respondents
(JR 2129/23): Advocate K Mahapa of the Public Servants
Association