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[2026] ZALCPE 10
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Algoa Bus Company v South African Road Passenger Bargaining Council and Others (PR61/2024) [2026] ZALCPE 10 (16 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Case
No: PR 61/2024
1)
Reportable:
NO
(2)
Of interest to other Judges: Yes
16/03/2026
In
the matter between:
ALGOA
BUS COMPANY (PTY) LTD
Applicant
And
SOUTH
AFRICAN ROAD PASSENGER BARGAINING COUNCIL
First
Respondent
HENK
JACOBS
N.O.
Second
Respondent
GERHARD
GOOSEN
Third
Respondent
Heard:12
March 2026.
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email and
publication on the
Labour Court’s website. The date for hand-down is deemed to be
on 16 March 2026.
Summary:
(Review – dismissal for gross negligence – major
damage to bus gearbox following an oil service – expert report
on cause of damage uncontested – arbitrator discounting report
by speculating about other causes of the damage – not
advanced
by employee nor put to witnesses – arbitrator avoiding the most
plausible and natural inference from the evidence
and preferring to
speculate about other explanations to account for damage –
award set aside )
JUDGMENT
LAGRANGE,
J
Nature
of the application
[1]
This is an opposed the review application of an arbitration award in
which the arbitrator found that the dismissal of
the fourth
respondent (‘Goosen’) by the applicant (‘ABC’)
was procedurally fair but substantively unfair.
[2]
Goosen was dismissed for gross negligence arising from internal
damage caused to a bus gearbox after he had serviced the
gearbox. The
cost of repairing the gearbox was in the region of R 490, 000.
[3]
Goosen was a qualified service mechanic with approximately 30 years’
service with the company at the time of his
dismissal.
Events leading to the
dismissal
[4]
The sequence of events is summarised briefly below.
[5]
It is common cause is that after servicing the gearbox with two
members of his team, Goosen took the bus for a short test
drive of
about two kilometres within the premises of ABC. At some time during
the drive, the bus stalled. Shortly thereafter he
drove it to the
service pit where he parked it. Thereafter, it could not be driven
because of a problem with the gearbox.
[6]
Prior to the service there had been no complaints from any drivers
about the bus and it had done roughly 2000 kilometres
since the last
service. No problems were identified on the previous two occasions
when the bus had been service. Goosen confirmed
his evidence at his
disciplinary enquiry that there had not been any issues raised
concerning the transmission when it was brought
in for service, and
it was only after the service of the gearbox and the test drive that
the problem arose.
[7]
A total quantity of 24 litres of oil was requisitioned from the store
by Goosen for the service. When the gearbox was
drained following the
damage, 23 litres of oil was recovered. A critical point of
contention was whether the oil was put in the
gearbox before or after
the test drive. Goosen testified that, after draining the oil and
replacing the oil filter, the gearbox
was refilled with 20 litres of
oil before he took the bus on the test drive. A pneumatic pump
was used to do the refilling.
[8]
After the test drive, the oil level was checked again and another
three litres of oil was added to the gearbox to top
it up according
to Goosen.
[9]
The bus could not be driven thereafter because of a problem with the
gearbox and the gearbox was sent to specialists,
ZF Services (Pty)
Ltd, to investigate the cause of the damage.
[10]
A ‘failure report’ was provided by ZF Services, together
with repair quotation for approximately R 483 000.
The report
recorded a finding that ‘…
the primary failure is
that the A clutch discs have overheated. This failure can cause the
transmission to slip gears.’
It also recorded that ‘
(a)ll
the clutch discs have been worn due to lack of lubrication.’
It concluded that the possible cause of the failure was: ‘
1.
Stall speed. 2. Lack of lubrication.
’
[11]
The reference to “stall speed” was a reference to a stall
test which is conducted on some vehicles. However,
it was common
cause that no stall test was conducted in this instance.
[12]
The arbitrator noted in his award that the contents of the failure
report from the gearbox company were not placed in
dispute nor was
its authenticity contested.
[13]
ABC, relying on the report of the gearbox specialists on the damage
done to the gearbox, contended that the gearbox had
been damaged
because it did not have lubricant in it when it was taken on the test
drive.
[14]
It is common cause that when the damaged gearbox was drained it
contained 23 litres of oil which Goosen claimed had been
pumped into
the gearbox during the service.
[15]
Immediately after Goosen arrived at the service pit after the test
drive, he claimed he topped up the oil in the gearbox
with four more
litres of oil. As I understand it, the explanation for doing so was
that the original oil put in before the test
drive had been
thoroughly distributed throughout the gearbox during the drive, so
the oil level had dropped. There was video evidence
showing members
of his team boarding the vehicle immediately after he parked the bus
at the service pit and going to the section
of the bus when the
gearbox could be accessed.
[16]
Although Goosen had no alternative explanation of how the damage to
the gearbox arose, he was adamant that it had been
refilled with oil
before he took it on the test drive. Therefore, he reasoned that the
damage could not have been caused by lack
of lubrication because the
gearbox had more than enough oil in it.
[17]
Video footage from a bus camera showed that immediately on arriving
at the service pit and switching off the engine,
Goosen made a throat
cutting gesture and indicated to his team who were at the service pit
that the oil level needed to be checked.
He denied that it appeared
from the video that he seemed to want this done urgently. The oil
check was normally done after the
test drive.
[18]
He explained that he and his two assistants spent time inside the bus
around the gearbox when the oil was topped up,
because they normally
sat and chatted there.
The arbitrator’s
reasoning
[19]
Accepting that the expert report identified two possible causes of
the damage, but that speed stalling was ruled out,
the arbitrator
concluded that the only possible cause of the damage was lack of
lubrication. He also noted that no mechanical problems
with the bus
had been reported prior to the service.
[20]
He then approached analysis on the basis that he was faced with two
contradictory versions and needed to assess issues
of credibility and
probabilities to determine the facts.
[21]
He then
went on to consider the evidence of the Goosen and his apprentice
mechanic, Mr K Makhunga
[1]
(‘Makhunga’). Makhunga could not exactly remember what
transpired and what the oil level in the gearbox was when he
was
instructed to check the oil after the bus returned to the service
pit. The arbitrator accepted the evidence that Makhunga and
Goosen
had been present when the oil was poured into the gearbox. Taking
further account of the fact that 23 litres of oil was
drained from
the gearbox after the damage had been done, and that 24 litres had
been ordered from the stores, he found Goosen’s
version that
they had filled the gearbox with oil before the test drive more
probable.
[22]
The arbitrator found that the evidence of employer’s witnesses
who relied on the report could not go beyond what
was in the report
itself as they were not present when the gearbox was examined.
[23]
The arbitrator found that it was common cause that the report was
accepted into the record and the contents and authenticity
were not
placed in dispute. Ms Human, the workshop foreman, who testified for
the company confirmed that ZF Services were gearbox
specialists.
[24]
He further found that the report was not conclusive because it did
not exclude other possibilities, such as drivers of
the bus
inadvertently doing a a stall test, which Human had mentioned. He
concluded that without the existence of other objective
facts to
‘
confirm
’ the lack of lubrication as the cause of
the damage, it remained mere speculation as the explanation for the
damage. For
example, if the company had done an oil test to prove
that the oil which was drained showed characteristics of being
overheated
that would have supported its version. He also noted that
the engineering manager, Mr T Botha (‘Botha’) had
testified
that the broken main housing appearing in the report could
have resulted in a water leak. The arbitrator inferred that this
could
also have been a cause of overheating.
[25]
He found that the applicant had discharged the burden of proving that
oil had been put in the gearbox. He found that
the probabilities in
favour of either party’s version were equally balanced and
accordingly the company had failed to discharge
the onus.
The review
[26]
Essentially, the applicant contends that the award is reviewable on
the basis that the arbitrator committed a gross irregularity
in his
assessment of the evidence for one or more reasons
[27]
ABC’s primary ground of review is that the arbitrator avoided
what it claims is an inescapable inference that the
damage to the
gearbox resulted from it having insufficient oil in it prior to the
test drive.
[28]
Secondly, having elicited the evidence of the video footage, the
arbitrator made no mention of it whatsoever. Had he
done so he would
have had to consider the fact that immediately on parking the
vehicle, Goosen indicated that the oil needed to
be checked and he
and his colleagues spent some time in the vicinity of the gearbox
suggesting that they had filled it with oil
at that stage.
[29]
In favouring the version of Goosen and the apprentice mechanic, the
arbitrator completely failed to consider that their
claim to have
filled the gearbox before the test could not be reconciled with what
happened immediately afterwards.
[30]
ABC also claims that the video evidence showed that something, which
Goosen could not explain, caused him to put his
head out the window a
number of times and it was not disputed that he had immediately
identified oil as an issue that needed to
be checked when he parked
the vehicle, coupled with the fact that he and his colleagues spent
some time inside the next to the
gearbox. The company argued that he
put his head out of the window after an audible ‘kadoef’
sound had been heard,
which was also shortly before the bus stalled.
Had the arbitrator taken this evidence into account, he would have
found it to be
consistent with the company’s explanation of
what transpired, rather than Goosen’s version. Goosen claimed
he had no
recollection why he put his head out the window and
explained the length of time spent at the gearbox was owing to him
and his
subordinates sitting and chatting.
[31]
Goosen argued that the ZF report, being hearsay evidence, could not
carry much weight. Secondly, Makhunga’s
evidence
corroborated G’s version that the gearbox was filled with oil
before the test drive corroborated each other. The
expert report
could not shed any light on their version because their version was
not taken account of in drawing up the report.
Goosen also argues
that there was no evidence he had failed to exercise reasonable care
or that actual loss was suffered by the
company. In the
circumstances, he argues that the award was not only reasonable, but
correct.
Evaluation
[32]
The critical factual question the arbitrator had to decide was: What
was the most probable reason for the gearbox being
damaged to such an
extent that the bus could not be driven after it was parked following
the test drive?
[33]
The arbitrator had the report from a gearbox specialist firm
providing two possible reasons for the damage. In his award,
the
arbitrator accepted that no stall test had been done, which left one
possible cause of the damage, namely lack of lubrication.
[34]
Goosen argued that little weight could be attached to the report
because it was hearsay. It is correct that the report
does constitute
hearsay evidence. However, firstly it was accepted prior to the
arbitration that the documents used were what they
purported to be.
It follows that, for the purposes of evidence, it was not in dispute
that the report was issued by the firm ZF
Services and that it was an
analysis of the damage done to the gearbox of the bus that was
brought in for service. Moreover,
Human’s testimony that
ZF Services were gearbox experts was not contested.
Additionally, the correctness of its contents
were not disputed. It
was never suggested to the company’s witnesses that the
analysis and findings were contested.
It was only when Goosen
was asked under cross-examination if he knew of any instance in which
a report from the firm had been wrong.
He disclaimed any
knowledge of previous reports and said there could always be a first
time a report was wrong. The arbitrator
confirmed the status of the
report in his award, but then struggled with the implications which
flowed from it.
[35]
The catastrophic damage occurred in a situation in which the bus,
with no reported problem had been brought in for a
regular gearbox
service. The damage was sustained between the time it was brought in
for the service and the time it was parked
in the service pit after
the test drive. The only intervention affecting the gearbox during
that period was that the oil was drained,
the filter was replaced and
then, on Goosen’s version, it was refilled with oil before the
test drive was undertaken.
[36]
A video of the test drive showed, and this was not disputed, that at
a late stage in the short test drive, something
caused Goosen to put
his head out the window a few times and the bus stalled. The
arbitrator did not deal with this.
[37]
Be that as it may, the arbitrator decided that the inescapable
inference of the report, to the effect that lack of lubrication
caused the damage, had to be measured against the evidence of Goosen
and Makhunga that the gearbox had been refilled before the
test drive
with more than sufficient oil to prevent heat damage to the gearbox.
The immediate difficulty this presents, which the
arbitrator was
obviously aware of, is that another explanation had to be found for
the heat damage caused.
[38]
He found support for this in the possibility that one or more drivers
of the bus before it was brought in for service
might have
inadvertently stall tested the bus, which could have caused the
damage. Alternatively, he extrapolated from Botha’s
evidence about the cracked housing causing a water leak, that this
could have caused the dramatic overheating. These were speculative
explanations of the arbitrator himself and were not advanced by
Goosen.
[39]
Moreover, even if I assume he had been entitled to explore
alternative explanations, the arbitrator never put these to
any of
the company witnesses that an alternative explanation for the damage
might have been inadvertent stall testing by unknown
drivers, nor did
he put it to Botha that the crack might have caused the damage. It
was imperative that he should have done so
because it was common
cause that no problems had been reported with the bus before the
gearbox service, and Botha did testify that
the housing crack would
not have caused a loss of oil.
[40]
The arbitrator was required to assess the probabilities of the
versions contended for by the parties on the evidence
presented, not
to speculate about other scenarios, which had neither been advanced,
nor tested.
[41]
As mentioned, Goosen’s explanation for how the damage occurred
was that gearbox could not have burnt out because
it had been
refilled by him and his team as part of the service before the test
drive. The arbitrator had to weigh that up against
the uncontested
evidence of the specialist report which said that a lack of
lubrication was the most likely cause of the heat damaged
discs, once
the stall test was excluded, which he accepted was the case.
[42]
He ignored the fact that there had been no report of any problem with
the bus, during the last 2000 odd kms it had been
driven before the
service. Human testified that the drivers would have picked those
problems up.
[43]
In
Nkomati
Joint Venture v Commission for Conciliation, Mediation &
Arbitration & others
[2]
the Labour Appeal Court reaffirmed a basic principle in evaluating
evidence, which it held was applicable both to judges and
arbitrators:
‘
[10]
It is a rule of logic, as was stated in R v Blom, that,
when reasoning by inference, the inference
sought to be
drawn must be consistent with all the proved facts. If it is not, the
inference cannot be drawn.
A court is
required to select that inference which is the more plausible or
natural one from those that present themselves
. The
facts before the arbitrator proved that in his role as payroll
supervisor, the employee was required to check
the bonus payment
spreadsheet for errors before sending it on to Mr Packery for
approval. Having reviewed the spreadsheet,
the employee sent it
to Mr Packery. He provided no explanation as to why he had failed to
identify that the formula had been changed
to his benefit alone, more
so when only he and Mr Packery had access to the system to change the
formula.
[11]
Having regard to the proved facts, the more plausible and natural
inference to be drawn is that the employee acted dishonestly by
tampering with the formula on the spreadsheet for his own benefit.
The finding of the arbitrator to the contrary was a decision
that
a reasonable decision maker could not reach on the material
before him and the Labour Court erred in finding differently
.
(emphasis added)
[44]
In this instance, the arbitrator faced with an inescapable inference
that the overwhelmingly most probable cause of the
sudden and major
damage done to the gearbox occurred because there was not enough oil
in it when the bus was taken for the test
drive, sought other reasons
which had not been properly canvassed with witnesses, nor raised by
Goosen.
[45]
In so doing he came to a conclusion no reasonable arbitrator could
have reached and the award falls to be set aside.
[46]
It was argued that negligence was not established on the part of
Goosen. The uncontested evidence was that he signed
off on the job
card, confirming the oil and filter had been replaced. He never
disavowed responsibility for supervising the
refilling of the oil,
nor gave evidence to show that he took reasonable steps to verify
that the gearbox did indeed have sufficient
oil before driving off.
It is true ABC did not give evidence that it had paid the huge repair
bill, but it stands to reason it
would not want to risk exposure to
such a level of damage again. The fact Goosen had long service does
not necessarily count as
a strong mitigating factor. Under the
supervision of someone with his service, something as basic as an oil
change and filter replacement
ought to have been a routine task
performed without complication, which ABC ought to have been able to
rely on being done properly.
[47]
In the circumstances, it cannot be said that dismissal was not an
appropriate sanction.
Order
1. The award dated
08 December 2023 and 12 February 2024 issued under case number
RPNT7741 is reviewed and set aside
2. The arbitrator’s
finding that the Fourth Respondent’s dismissal was
substantively unfair is substituted with
a finding that it was
substantively fair.
3. No order is made
as to costs.
R
Lagrange
Judge
of the Labour Court of South Africa.
APPEARANCES
For the
Applicant:
Adv. Le Roux
Instructed
by
Joubert Galpin & Searle
For the
Respondent:
Adv. Lambrechts
Instructed
by
Kaplan Blumberg Attorneys
[1]
Seemingly incorrectly spelled as ‘Makhulga’ in the award
and transcript.
[2]
(2018) 39
ILJ
2484
(LAC)