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THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C155/2024
In the matter between:
NEHAWU obo MNINAWA NTSHONGWANA Applicant
and
DEPARTMENT OF EMPLOYMENT AND LABOUR
(WESTERN CAPE) First Respondent
COMMISSIONER KW SCHOEMAN NO Second Respondent
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL Third Respondent
I DE VLIEGER-SEYNHAEVE N.O Third Respondent
Heard: 11 March 2026
Delivered: 17 March 2026
Summary: A review application to set aside a compensation award on the
grounds that the amount is not linked to monthly remuneration, and therefore
is not just and equitable.
JUDGMENT
GANDIDZE, J
(1) Reportable: No
(2) Of interest to other Judges: No
17 March 2026
Signature Date
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Introduction
[1] The applicant, Mr Ntshongwana, assisted by his trade union, NEHAWU,
seeks an order review ing and setting aside an arbitration award ordering that
he be paid R15,000 as compensation for an unfair labour practice committed
against him by his employer, the Department of Employment and Labour
(Western Cape). The award, dated January 2024, was issued by
Commissioner Schoeman in case number GPBC16/2023, under the auspices
of the General Public Service Sector Bargaining Council. The application was
brought under section 145(1) of the Labour Relations Act 1 (LRA), in
conjunction with section 158(1)(g).
[2] The grounds of review relied upon are that the commissioner committed
misconduct in relation to his duties and committed an irregularity, firstly by
failing to record Ntshongwana’s remuneration, and secondly, by not clarifying
how the R15,000 compensation is linked to Ntshongwana’s remuneration.
Therefore, the submission was that the compensation granted is not just and
equitable as contemplated in section 194(4) of the LRA.
[3] As the review application was filed 44 days late, the applicants also sought
condonation. Having considered the explanation for the delay provided, which
is that the union official who assisted Ntshongwana during the arbitration
proceedings resigned following the award and failed to do a proper handover
of the matter when requested, I am persuaded that Ntshongwana did not lose
interest in the matter and that he took all the necessary steps to ensure the
union was attending to it. Granting condonation will also not prejudice his
employer, as the application must still be determined on its merits.
[4] Although no opposing papers were filed, on the hearing date, Ms Qaba
appeared for the employer, instructed by the State Attorney. She sought a
short postponement of the matter from the bar, submitting that the drafting of
the answering papers and heads of argument was at an advanced stage. The
the answering papers and heads of argument was at an advanced stage. The
employer had had more than enough time since September 2024 to file its
1 Act 66 of 1995, as amended.
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answering affidavit if it had a version in the review application. In the ex
tempore judgment issued in Court, denying the postponement application, I
stated that no notice of opposition had been filed. This is incorrect because
there is a notice of opposition in the Court file. The point is that after filing the
notice to oppose, the employer took no further steps in the matter until the
set-down date. This occurred even though, days before the hearing date, the
employer was contacted regarding its heads of argument, if any. No response
was received to the communication. The employer could not simply appear at
the hearing and seek a postponement. Those are the reasons the
postponement application was refused.
[5] Ms Xaba made submissions on behalf of the employer based on the papers
before the Court, and her submissions regarding facts that were not pleaded
have not been considered in preparing the judgment.
Events post the issue of the award
[6] Before addressing the merits or otherwise of the review application, the Court,
upon perusing the Court file, noted that the award to be reviewed and set
aside is dated 24 January 2025. The review application was filed on 23 April
2025. What the applicant has not disclosed to the Court is that, after the
award was issued and after this review application was launched, he applied
for a variation of the compensation award on the same grounds on which the
award is sought to be reviewed. After considering the c ase authorities relied
upon to challenge the compensation award of R15, 000, the Commissioner
found as follows:
‘I have once again applied my mind to the submissions made by the applicant
and came to the conclusion that R15 000 is just and equitable compensation
for the unfair labour practice dispute which resulted in the applicant not being
shortlisted for an interview.’
[7] The Commissioner dismissed the application in a ruling dated 14 May 2024.
[8] The question is whether the award issued in January 2024 was overtaken by
[8] The question is whether the award issued in January 2024 was overtaken by
the ruling dismissing the application for variation, and whether the applicant
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ought to have filed an application to review the variation ruling, rather than the
January 2024 award.
[9] Nevertheless, the Court proceeds to consider the merits of the review
application for these reasons. First, the Court raised the issue mero motu ,
which had not been addressed in the papers. Had the matter been opposed,
the employer might have raised this issue. Secondly, there was also the
consideration that the Commissioner ought not to have entertained the
variation application as he was functus officio. Lastly, where a party
unsuccessfully applies for rescission of an award, this Court would usually
consider a review application in respect of both the award and the rescission
ruling.
[10] As I recorded above, the award is sought to be reviewed on the grounds that
the Commissioner did not know the applicant’s remuneration and that the
compensation award is not linked to it.
The commissioner did not know the applicant's remuneration
[11] It is evident that nowhere in the review record is the applicant’s remuneration
reflected. If anyone is to blame for this state of affairs, it is the applicant's
representative in those proceedings. That information ought to have been
presented to the Commissioner, but this did not happen.
[12] Perhaps more troubling is that the founding affidavit states that, because the
issue of the applicant’s remuneration was not addressed during the arbitration
proceedings, the Commissioner telephoned him afterwards to inquire about it.
If there is any truth to the allegation, then on the face of it, this appears
irregular. The information should have been requested through the union
official who represented the applicant, and the employer’s representatives
should have been copied. I will return to this issue when I discuss the second
ground of review.
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Should compensation be linked to monthly remuneration?
[13] The applicants’ main submission is that unless an award for compensation is
linked to monthly remuneration, it is neither just nor equitable as outlined in
section 194(4) of the LRA, which states as follows:
‘194 Limits on compensation
(4) The compensation awarded to an employee in respect of an unfair
labour practice must be just and equitable in all the circumstances, but
not more than the equivalent of 12 months remuneration.’
[14] Section 194(4) does not specify the minimum compensation that may be
awarded to an employee if it is found that an employer committed an unfair
labour practice against such employee. However, the provision limits the
maximum compensation to 12 months' remuneration. Does this imply that a
compensation award must be based on the employee's remuneration?
[15] In Minister of Justice & Constitutional Development & another v Tshishonga
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(Tshishonga), the employee was awarded com pensation equivalent to 12
months’ remuneration, after the Court found that he had been subjected to an
unfair labour practice for making protected disclosures , as contemplated in
the Protected Disclosures Act , 26 of 2000. The employer appealed against
the compensation award, arguing that it was excessive . The Labour Appeal
Court stated this:
‘[15] In summary, once it has been found that an employee has been
subjected to an occupational detriment on account of having made a
protected disclosure, a court must determine what compensation is
just and equitable in the circumstances, which amount is capped at 12
months' remuneration. In the present case the judge in the court a quo
appeared to conflate the award of compensation with an amount of
remuneration. As already noted s 194(4) of the LRA employs
remuneration purely as a means of capping the amount of the award
2 (2009) 30 ILJ 1799 (LAC); [2009] ZALAC 5.
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so ordered. By contrast, the court a quo employed remuneration as
the basis for the quantification of the award. Accordingly, the court a
quo erred in its interpretation of s 194(4) of the LRA and this court is
thus at large to determine the appropriate amount of compensation.
(Own emphasis)
[16] Therefore, even though section 194(4) of the LRA refers to remuneration, this
is solely for the purpose of capping the amount to be awarded, and
remuneration is not a basis for determining the quantum of the award. When a
Commissioner or this Court determines the compensation award, it need not,
and should not, refer to remuneration to determine the quantum of
compensation, but must ensure that the award does not exceed an
employee’s 12 months' remuneration. The applicants are challenging the
award on the same basis that the Labour Appeal Court identified as the wrong
basis for determining the compensation award.
[17] In addition, in Tshishonga, the Court held that compensation includes both
patrimonial and non- patrimonial loss. Patrimonial loss is that which can be
quantified, whereas non- patrimonial loss is a solatium. For the non-
patrimonial loss suffered by Mr Tshishonga, the Court reduced the
compensation award from 12 months' remuneration of a Director -General to
R100,000 for non- patrimonial loss plus R177,000 for patrimonial loss (legal
fees).
[18] R egarding a compensation award for non- patrimonial loss, the Court stated
that the actual amount to be awarded is a discretionary decision of the Court
(or Commissioner) , and that “t here is no tariff to which recourse can be
made”
3. Therefore, an employee’s remuneration is not a tariff that should be
used to determine the quantum of compensation to be awarded.
[19] The unreported decision of this Court in South African Post Office Ltd v
Soman NO and Others4, which the applicants relied upon,5 stated this:
3 Ibid at para 20.
4 (JR1368/12) [2016] ZALCJHB 68 (25 February 2016).
3 Ibid at para 20.
4 (JR1368/12) [2016] ZALCJHB 68 (25 February 2016).
5 The judgment does not have a paragraph 23, referred to in the applicants’ heads of argument. The
paragraph quoted is from ARB Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989 (LAC),
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‘[10] This judgment indicates to me that the reliance on a salary when
compensation is arrived at is a complex matter. It is merely a guide
but one should not base a review merely because of how a salary has
been used as means of compensation and the complexity involved in
the computation of compensation is clearly indicated in paragraph 24
of this judgment.’
[20] It is clear from the above paragraph that the Court also concluded that using
salary to determine the compensation to be awarded is a complex matter and
that salary is merely a guideline. The law, according to Tshishonga, is not to
use salary to decide the compensation to be awarded, but to use salary to
establish the maximum compensation that can be awarded. As the applicant’s
ground of review is contrary to the LAC's decision in Tshishonga, that should
conclude the review application.
[21] The review application would also fail because this court's powers , when
asked to review a compensation award, are circumscribed. In McGregor v
Public Health & Social Development Sectoral Bargaining Council & o thers6,
the Court outlined the test that applies when an appeal court is called upon to
interfere with the discretion to grant compensation and the amount of the
compensation. The Court stated this:
‘[27] So, when can an appellate court interfere? The department correctly
relies on Kemp as authority on when an appeal court can interfere
with another court’s judicial discretion, in relation to the award and
amount of compensation. In Kemp , the Labour Appeal Court was
faced with the question of whether the Labour Court should have
awarded compensation on establishing the dismissal to be
substantively unfair, and if so, whether the amount awarded was
excessive. The court drew a careful distinction between the discretion
exercised in granting relief in terms of s 193(1) (c) and the discretion
that an arbitrator or the Labour Court has in terms of s 194(1). The
that an arbitrator or the Labour Court has in terms of s 194(1). The
court said that the decision to award compensation (in terms of s
193(1)(c)) is a matter of judicial discretion which means that an appeal
which does not take the applicant’s submission any further than that compensation awarded cannot
be a token amount.
6 (2021) 42 ILJ 1643 (CC); [2021] ZACC 14.
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court’s power to interfere in such an award is not circumscribed: ‘in
such a case an appeal court is at large to come to its own decision on
the merits.’ However —
‘in regard to the determination of the amount of compensation
[in terms of s 194(1)] the Labour Court or arbitrator exercises a
true or narrow discretion… [which means that] this court’s
power to interfere is circumscribed and can only be exercised
on the limited grounds …. In the absence of one of those
grounds this court has no power to interfere with the amount of
compensation’.
Those limited grounds include where the tribunal or court:
(a) did not exercise a judicial discretion; or
(b) exercised its discretion capriciously; or
(c) exercised its discretion upon a wrong principle; or
(d) has not brought its unbiased judgment to bear on the question;
or
(e) has not acted for substantial reasons; or
(f) has misconducted itself on the facts; or
(g) reached a decision in which the result could not reasonably
have been made by a court properly directing itself to all the
relevant facts and principles’.
The distinction between the discretion exercised in terms of ss 193(1) (c) and
194(1) is important as it defines how the reviewing court will consider the
matter.’
[22] Therefore, when this Court is asked to review the amount of compensation
awarded for an unfair labour practice, it can only inter vene if one or more of
the specified errors are present. This Court cannot interfere merely because it
would have reached a different decision. 7 In this case, the applicants argued
that the commissioner committed misconduct and irregularity by awarding
compensation unrelated to Ntshongwana’s remuneration. I have already
established that the Labour Appeal Court found that linking compensation to
7 Edumbe Municipality v Putini & others (2020) 41 ILJ 891 (LAC); [2019] ZALAC 74 at para 51.
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remuneration constitutes an error , and therefore, the Commissioner’s
approach was correct.
[23] In exercising discretion over the compensation to be awarded, the
Commissioner knew Ntshongwana’s remuneration, as Ntshongwana had told
him during the telephone call. Knowing what that remuneration was, the
Commissioner considered that the maximum permissible amount is 12
months' remuneration, noted that the Courts had warned against granting
excessive compensation awards, referred to the decision of the Labour
Appeal Court in Tshishonga, which I have mentioned above, and stated that
the monetary relief granted is a solatium , not payment for the unfair labour
practice. Therefore, the Commissioner was aware of the relevant legal
principles and applied them correctly. He also knew Ntshongwana’s
remuneration. Consequently, there are no grounds for interfering with the
compensation award.
[24] In the result, the following order is made:
Order
1. Condonation for the late filing of the review application is granted.
2. The review application is dismissed.
3. There is no order as to costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Mr T Malulele (NEHAWU Legal Officer)
For the First Respondent : Advocate K Qaba
Instructed by : Ms C Bailey of the State Attorney