THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR1947/23
In the matter between
EXXARO COAL MINE MPHMALANGA (PTY) LTD Applicant
(MATLA COAL MINE)
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER S.K. GUMEDE N.O. Second Respondent
NUM Third Respondent
B.T. SHONGWE Fourth Respondent
Heard: 15 July 2025
Delivered: 10 March 2026
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date for hand-down is deemed to be on 10 March
2026.
JUDGMENT
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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SAUNDERS, AJ
Introduction
[1] This is an application where the applicant (the employer/the mine) seeks to
review and set aside t he arbitration award issued by the second respondent,
and substitute it with an order that the fourth respondent’s dismissal was fair,
alternatively referring the matter back to the first respondent for a hearing de
novo. There is no cross review by the third respondent (NUM) and fourth
respondent (Mr Shongwe).
[2] The dispute relates to a misconduct dismissal of Mr Shongwe for alleged
gross negligence on 9 May 2022. Mr Shongwe was employed as a fitter
artisan and had been in the employ of the mine for a period of approximately
12 years. During a routine inspection of the work area by three superiors ,
Keorapetse Malomane, Peter Toli (Mr Toli) and Vasie Leope (Mr Leope), Mr
Shongwe was allegedly found on top of a feeder breaker which had not been
isolated and locked out in accordance with the m ine’s Lock out Procedure.
The misconduct charges relate to the purported failure to lock out the machine
and for allegedly working on a machine in the absence of isolating and locking
out that machine. Simply put, isolation requires removing a machine from a
source of power and locking out requires the additional step of placi ng a
personally issued padlock to ensure that the machine remains without power
and no colleague can erroneously turn the machine back on and endanger
the lives of anyone in the vicinity.
[3] Mr Toli and Mr Leope gave evidence on behalf of the mine, stating that it was
apparent that the feeder breaker was not isolated or locked out because the
lights were on. The evidence from both witnesses was that Mr Shongwe was
standing on top of the feeder breaker putting oil into the gearbox. In the event
that Mr Shongwe was working on the feeder breaker the feeder breaker was
required to be isolated and locked out in accordance with mine procedure. In
the event that he was not working on the feeder breaker and was simply
the event that he was not working on the feeder breaker and was simply
conducting a visual inspection it was not necessary for the feeder breaker to
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be isolated and locked out. Mr Shongwe’s version was that he was not
working on the machine and was simply conducting a visual inspection.
[4] The commissioner found that the dismissal of Mr Shongwe was procedurally
and substantively unfair and ordered re- instatement and backpay in the sum
of R277 360.00. The applicant seeks to review this award and set aside the
findings of unfairness in totality.
Grounds of Review
[5] With regards to the substantive fairness of the dismissal, t he applicant argues
that the commissioner committed gross misconduct , alternatively a gross
irregularity in his determination of the dispute. The commissioner was faced
with two conflicting versions regarding the central issues which led to the
dismissal of Mr Shongwe. These were:
5.1 Whether the feeder breaker was on at the time in question (if so, it was
not locked-out); and
5.2 Whether Mr Shongwe was working on the feeder breaker (which
requires that the feeder breaker be locked out) or whether he was
conducting a visual inspection.
[6] The commissioner was required to assess credibility and probabilities, and in
failing to do so, it was argued that he:
6.1 Failed to apply his mind to evidence,
6.2 Misapplied the test relating to mutually destructive versions and
enquiries held in absentia;
6.3 Failed to adjudicate the probabilities;
6.4 Failed to give detailed and cogent reasons for rejecting versions;
6.5 Made findings not supported by evidence.
[7] The supplemented grounds of review relate to the commissioner’s credibility
findings, and the two material facts in dispute being:
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7.1 Whether Mr Shongwe was on top of the feeder breaker filling it with oil?
7.2 If so, whether the feeder breaker lights were on, indicating that it was
connected to a power source and had not been isolated and locked
out?
[8] The ancillary questions supporting the assessment of evidence in this respect
are set out by the applicant as follows:
8.1 Whether welding was taking place in the section on the day ? This was
the defence put forward by Mr Shongwe, in which case was the feeder
breaker power cable was being used for the welding machine and
therefore could not have been connected to the feeder breaker?
8.2 Whether the Mine’s lockout procedure required “isolate and lockout” or
“isolate or lockout”?
8.3 Whether there were bystanders ? (who may or may not have been
close to the feeder breaker and who may or may not have been having
a conversation with Mr Shongwe?);
8.4 Whether it is possible to fill the feeder breaker ’s gear box with oil
without assistance? The argument by the applicant was that no
assistance is required to fill a feeder breaker with oil. Mr Shongwe
argued that it was a two man job and therefore the version of the
applicant was improbable because he would have required help to fill
the feeder breaker with oil;
8.5 Whether job cards are required to perform any or all tasks on the
feeder breaker?
Substance on Review
[9] The applicant correctly sets out that the commissioner identified three
questions for consideration. These were:
9.1 Was the machine isolated?
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9.2 Was the machine locked out?
9.3 Was there a need for either or both?
[10] It is trite that the employer bears the onus to prove the case against Mr
Shongwe. Regarding the first question, the applicant gives evidence that the
machine could not be isolated because the lights were on. Both Mr Toli and
Mr Leope confirm that the lights of the machine were on. This illustrates, on
the applicant’s version, that the machine was not isolated.
[11] The commissioner rejects this evidence on the basis that the witnesses were
obliged to check the source of the power to ensure that the feeder breaker
was connected.
[12] This is an unreasonable rejection of evidence. The commissioner does not
reject the evidence on the basis that the witnesses were unreliable, or
contradictory or even that it is unlikely that the lights were on for a specific
reason. He rejects the evidence on the basis that the witnesses did not
perform a fundamentally unnecessary task, which was to check that power
was connected or not connected when it was clear that the power must have
been connected if the lights were on.
[13] While it is an unreasonable rejection of the evidence, it is not necessarily fatal
to the outcome of the arbitration award, because the resolution of the question
may be largely irrelevant if it is established that Mr Shongwe was simply
conducting a visual assessment and not working on the machine as alleged.
[14] In the answering papers t he union argues that the Electrical Lock out
Procedure states that only authorised electricians may isolate transformers.
Mr Mo tau gave evidence for Mr Shongwe that he, as an electrician, was
permitted to isolate and he did so. On this basis , Mr Shongwe would not have
been allowed to isolate the feeder breaker as he was not an electrician. Mr
Shongwe would, however, have been permitted and able to lock -out. The
union argues that “it is common cause that there is no need to lock -out if the
union argues that “it is common cause that there is no need to lock -out if the
machine is already isolated because isolation turns the power off.”
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[15] The union further argues that on either version (whether Mr Shongwe was
conducting a visual inspection or whether he was refilling the oil), this conduct
did not constitute electrical work and therefore there was no need to isolate
the feeder breaker from the power.
[16] This is not common cause. This does not appear to be the case of the
applicant at all. T he lock out step of the “isolation and lock out” procedure is
an essential pre- requisite to ensure that the machine cannot be erroneously
turned on again, risking the safety of other workers.
[17] The commissioner states that it was not sufficient for Mr Shongwe to simply
rely on the say so of Mr M otau that the machine had been isolated. Having
rejected the evidence of the employer that Mr Shongwe w as negligent
because he had not isolated the feeder breaker, the commissioner indirectly
finds that he was negligent because he had simply accepted for himself the
say so of Mr M otau that the machine had been isolated, and that he was
obliged to check that for himself. The commissioner also criticizes Mr
Shongwe for not putting on his padlock. This too, is a finding which speaks to
an element of negligence.
[18] The commissioner then finds that it is common cause that the lock -out
procedure had not been utilised because both parties agreed that Mr
Shongwe had not placed his padlock on the feeder breaker. It was also
common cause that Mr Shongwe had his own padlock to perform lock -out
functions and he had worked on the feeder breakers in the past and knew
how to work on the feeder breakers.
[19] The commissioner was required to make a finding in respect of both questions
because a failure to isolate or a failure to lock out would each constitute a
breach of the policy and therefore a form of misconduct, given that the rule
requires one to isolate and lockout.
[20] It was therefore common cause that at least 50% of the requisite process had
not been completed (that of the lock out). The remaining question then, is
not been completed (that of the lock out). The remaining question then, is
whether there was just reason to isolate and lockout. There would be no basis
to isolate and lock out if Mr Shongwe was not on the machine in the first place
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and was merely conducting a visual inspection. There is no need to isolate
and lock out a machine if no one is working on it.
[21] The two disputed versions are quite simple. The applicant states that Mr
Shongwe was standing on top of the feeder breaker and was filling it with oil.
Mr Shongwe state s that he was conducting a visual inspection and was not
standing on top of the feeder breaker.
[22] The applicant’s version was that Mr Toli and Mr Leope approached the feeder
breaker and saw Mr Shongwe on the feeder breaker. Both witnesses
corroborate this version. Mr Mudau and Mr Bhembe were described as being
close to the feeder breaker. One witness described them as being three
meters away and the other did not specify a distance. The commissioner finds
that the distance of the other parties to Mr Shongwe is significant and that it
was likely too noisy for Mr Shongwe to be able to talk to bystanders w ho were
three meters away. On that basis it warrants the rejection of the applicant’s
evidence.
[23] The distinction of three meters is not a significant discrepancy. The evidence
of Mr Toli and Mr Leope differed. It did not differ in the sense that it was
contradictory. It differed because one witness gave greater detail as to the
interactions with Mr Shongwe and the distance from the feeder breaker. On
this basis, the exact position of other individuals and whether or not they were
talking to Mr Shongwe cannot be evidence that sw ays the credibility of
versions in either direction. At best it could be neutral evidence.
[24] A further issue raised was the height at which oil would be administered.
Versions vary as to whether it was on top of the feeder breaker, requiring one
to stand on top of the machine, or whether it was elevated to approximately
head height but not on top of the feeder breaker.
[25] The commissioner states that the oil can is clearly light enough for one person
to pick up. On that basis it is possible for one person to perform the function.
to pick up. On that basis it is possible for one person to perform the function.
He then makes a finding on a practice in respect of which insufficient
evidence was led. If it is ordinarily a role for two people to fill the gearbox with
oil, but it is still possible for one person to do it, it was then possible for Mr
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Shongwe to be filling the gearbox with oil. An observation that two people
should perform the task or that it is practice for two people to perform the task
does not justify the rejection of a version simply because one person was
doing it. This appears to be muddled reasoning. If the filling of oil was a two-
man job and Mr Shongwe was doing this on his own, it would compound his
misconduct, not be a basis to prefer one version. The commissioner is not
accepting one version or rejecting one version on the basis of the facts before
him, but simply deferring to one version because it aligned with the factual
matrix put forward by that witness. The reasoning is circular.
[26] In respect of the job cards , the commissioner states that it is common cause
that a job card was required and that there was no job card. This fact is not
common cause. Mr Leope expressly gives the evidence that job cards are not
required for all tasks. This evidence was coupled by the allegation that Mr
Shongwe would sometimes refuse to accept a job card.
[27] It appeared that the feeder breaker was not being used that day because it
was a maintenance day. It appeared to be uncontested evidence that there
was a “no oil” sticker on the machine. If Mr Leope was correct that no job card
was required, it would be a reasonable and sensible task for Mr Shongwe to
attend to the refilling of the oil as a part and parcel of a maintenance task.
[28] In respect of welding, it was argued by Mr Shongwe that there was no power
on the feeder breaker because the cable was being used for welding. While
the intricacies of these versions were not always put to the applicant, the
broad facts were as follows. On the version of Mr Shongwe, the feeder
breaker was isolated because welding was being done in the area and the
power cable which would ordinarily be used for the feeder breaker was used
for the welding. Ordinarily welders would use the cable from the oil tanker but
the oil tanker cable had been damaged some days prior.
the oil tanker cable had been damaged some days prior.
[29] The commissioner rejects the employer’s evidence because one witness
indicates that there was welding and the other does not and that contradiction
is purportedly fatal. This is not the case. The issue of the welding is not
dispositive of the matter. It may determine whether or not the feeder breaker
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was isolated but it does not determine whether Mr Shongwe was working on
the feeder breaker.
[30] One of the key issues in assessing the evidence of the respective witnesses
is the motivation for the applicant to lie. Both of the applicant’s witnesses gave
coherent and largely consistent evidence of Mr Shongwe’s presence on top of
the feeder breaker. The witnesses for the employer and Mr Shongwe agreed
that Mr Shongwe was asked why he was putting oil in the gearbox and why
the feeder breaker had not been locked out. These versions are critical
because they speak to the most important part of the case – whether Mr
Shongwe was pouring oil or performing a visual inspection. These three
corroborating versions at least suggest that the employer believed that Mr
Shongwe was pouring oil, even if Mr Shongwe disputes this version. Why else
would they ask the question? Mr Shongwe disputes that he was pouring oil
and simply stated that they were lying and that these were “blue lies” and that
Mr Toli was probably drunk.
[31] There is no basis for two individual employees to create such a lie for no
apparent reason. This should have been considered by the commissioner
when balancing the various versions and assessing probabilities.
[32] In the matter of South African Revenue Service v National Education, Heal th
and Allied Workers Union obo Kulati and another1, the court held that:
…To determine whether the misconduct was committed, a conventional
process of factual adjudication was to be adopted, while taking into account
the totality of circumstances. As a general rule, the process of factual
adjudication requires that when it is suggested that a witness is not speaking
the truth on a particular point, such imputation be drawn to the attention of the
witness in cross -examination to afford them an opportunity to give an
explanation and defend their character. If a point in dispute is left
unchallenged in cross -examination, the party calling the witness is entitled to
unchallenged in cross -examination, the party calling the witness is entitled to
assume that the unchallenged witness’s testimony is accepted as correct.
Adherence to this rule ensures fairness and allows a proper consideration of
the evidence, with findings capable of being made on the disputed issues
1 (2023) 44 ILJ 1929 (LAC) at para 24.
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through a consideration of the credibility of the various factual witnesses, their
reliability and the probabilities.
[33] The commissioner appears to have taken an all or nothing approach to the
applicant’s evidence. Any discrepancies, regardless of how meaningful an
impact such discrepancies would have on the evidence resulted in an outright
rejection of the applicant’s evidence. This is unreasonable.
[34] There are various points at which versions were not put to the applicant’s
witnesses. This hampered the applicant’s ability to refute certain allegations.
Certain of these allegations go to the heart of the case for the applicant and
the defense presented by Mr Shongwe.
[35] The applicant’s ground of review pertaining to the various misdirection s of
evidence has merit. The award is contradictory in certain parts and comes to
conclusions not supported by the evidence. While the commissioner’s
identification of the questions for consideration was clear and succinct, the
reasoning is less so.
[36] The commissioner offered an irrational basis for rejecting the applicant’s
evidence regarding the lights on the feeder breaker. Requiring a physical
check of the plug point in the face of overt power on the machine is
misplaced. However, this is not fatal to the reasonableness of the award.
[37] The commissioner’s finding in respect of the isolation is similarly flawed. He
finds that the feeder breaker was isolated but implied that Mr Shongwe was
negligent for failing to confirm this fact for himself and relying on the say -so of
Mr Mot au. He is also impliedly negligent for failing to use his padlock to
lockout.
[38] The commissioner’s finding that there is no need to lock out the feeder
breaker in circumstances where the machine was already isolated is sim ply
wrong. Both parties canvassed evidence of the need for TPL’s (Tracking Pad
Lamps) which are devices which will warn a worker when they are
approaching a live machine and PDS (Proximity Detection Systems) which
approaching a live machine and PDS (Proximity Detection Systems) which
are put on all machines, to raise an alert that a person is approaching a live
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machine. It was agreed that this was not a substitution for the isolation and
lock out procedure. There is an undisputed emphasis on safety in the
workplace.
[39] The commissioner found that job cards are required for all tasks when this
was not the case. The employer said that Mr Shongwe would refuse to take
job cards and furthermore, they were not a requirement for the task of f illing
oil.
[40] The rejection of the version regarding the distance between Bhembe and
Mudau, and the degree of noise in the environment was equally as flimsy. So
too was the erroneous weighing of the evidence regarding welding. At best,
the existence of the welders would support the version that the feeder breaker
was isolated, but no more than that.
[41] The cumulative effect of this reasoning has a material effect on the outcome
of the award. On this basis, the finding on substantive fairness is
unreasonable and stands to be set aside.
Procedure on Review
[42] In respect of procedural unfairness, t he Commissioner found that Mr
Shongwe’s dismissal was procedurally unfair because the disciplinary hearing
scheduled for 1 November 2022 was heard in absentia after a pattern of three
dates being given to Mr Shongwe and his representatives.
[43] The crux of the finding by the commissioner was that there was an obligation
on the applicant to offer three dates for every proposed hearing date for the
hearing to progress.
[44] Insofar as the procedural unfairness is concerned, there was no evidence led
of an agreement between the parties that three dates should be offered. While
there had been a precedent of sorts, this does not give rise to an obligation to
do so.
[45] This is particularly so when one is cogni sant of the time delay between the
date of the incident , being in May 2022, the various attempts made by the
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employer to engage with a consultation process (despite this not being a pre -
requisite at the time at which the employee was charged) and the fact that Mr
Shongwe was on fully paid suspension and had been for many months.
[46] It was unreasonable for the commissioner to place an obligation on the
employer which does not exist in either law or practice. While a proposal of
three dates may be pragmatic and courteous, this cannot be construed as
either an agreement or an obligation. A finding to this effect was
unreasonable.
[47] In the premise the following order is made:
Order
1. The review is granted and the arbitration award issued under case
number MPEM 646-23 is reviewed and set aside.
2. The arbitration award is substituted as follows:
2.1 “The dismissal of Mr Shongwe was procedurally and
substantively fair.”
3. There is no order as to costs.
________________
S. Saunders
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv M van As
Instructed by: Shepstone & Wylie Attorneys
For the Third and
Fourth Respondents: Mr Siphesihle Sibiya
Instructed by: Cheadle Thompson & Haysom Inc