THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C633/2022
In the matter between:
MANDLA JULY MJEZU Applicant
and
FIDELITY SECURITY SERVICES First Respondent
NATIONAL BARGAINING COUNCIL FOR
THE ROAD FREIGHT AND LOGISTICS INDUSTRY Second Respondent
DIPHOKO SAME NOMINE OFFICII Third Respondent
Heard: 20 March 2026
Delivered: 20 March 2026
Summary: A review application to set aside an award which found that a dismissal
was substantively and procedurally fair. Also, an application for condonation for the
late filing of the review application, and the correction of the citation of the employer
party.
(1) Reportable: NO
(2) Of interest to other Judges: No
20 March 2026
Signature Date
JUDGMENT
GANDIDZE, J
Introduction
[1] This is an application, brought in terms of section 145 of the Labour Relations
Act1 (LRA), to review and set aside an arbitration award that found the
dismissal of Mr Mandla Mjezu, to be both substantively and procedurally fair.
[2] The application was opposed by the first respondent , the applicant's former
employer, which also filed heads of argument. No heads of argument were
filed on behalf of the applicant.
[3] The matter first came before the Court on 26 February 2026, and on that day,
the applicant’s attorneys of record informed the Court that they had filed a
notice of withdrawal days before the hearing due to difficulties with legal fees.
The matter was postponed to 20 March 2026 to allow the applicant to indicate
how he wished to proceed. On 20 March 2026, the applicant informed the
Court that he would represent himself, and the hearing proceeded
accordingly.
Preliminary issues
[4] After the applicant filed the review application in December 2022, the first
respondent filed a Notice under Rule 30(1) of the Uniform Rules of Court,
stating that the application was an irregular proceeding. The first ground was
that the review application was filed late and was not accompanied by a
condonation application. The second point raised was that the applicant's
former employer was Fidelity Cash Solutions (Pty) Ltd (FSC), not Fidelity
Security Services (Pty) Ltd (FSS). The third preliminary issue was that , given
that the arbitration proceedings were held in Bloemfontein, the applicant ought
1 Act 66 of 1995, as amended.
to have filed the review application in the Johannesburg Labour Court, and
not the Cape Town Labour Court.
[5] The applicant did not react to the above application, prompting FSC to file an
application in January 2023 to strike out the review application.
[6] On 31 January 2023, the applicant filed an application seeking condonation
for the late filing of the review application. It was explained that the award was
dated 7 October 2022, but it was only received on 20 October 2022. The
review application was lodged on 7 December 2022, which was six days after
the six -week deadline. The delay was caused by the applicant losing his
employment and then securing a position in a rural area, where he had no
access to email and faced communication difficulties with his a ttorneys.
Ultimately, between 1 December and 6 December 2022, the applicant and his
attorneys managed to communicate, and the signed affidavit was returned by
the applicant on 6 December 2022. The current application was then filed on
7 December 2022. The applicant argued that he would be prejudiced if
condonation was not granted, as review proceedings are his only way of
challenging the award. He also stated that his prospects of success in the
review application were favourable.
[7] FSC filed a notice indicating that it does not oppose condonation and will
abide by the Court’s decision on the condonation application.
[8] A six -day delay is not significant, and an acceptable explanation has been
provided. It is in the best interests of the parties for the matter to be decided
on its merits, which relates to the prospects of success —an issue that I will
consider when examining the grounds of review. Therefore, condonation is
granted for the late filing of the review application.
[9] A second issue was that an order was sought to substitute FCS as the
employer. FCS did not oppose the application. I am satisfied that the order
sought should be granted. The error in citing FSS began when the matter was
sought should be granted. The error in citing FSS began when the matter was
referred to the Commission for Conciliation, Mediation, and Arbitration
(CCMA). When the CCMA was alerted that the employer was, in fact, FCS
and not FSS, it referred the matter to the National Bargaining Council for the
Road Freight and Logistics Industry (the Bargaining Council), under whose
auspices the award sought to be set aside was issued. The correction of the
error in the citation should have occurred at the Bargaining Council. FCS
participated in the arbitration proceedings as it knew that it was the correct
employer. The substitution does not prejudice FCS, and an order as sought
will be granted.
[10] Regarding the Court where the review application should have been
instituted, this was raised for the first time during oral argument. In any event,
the review application was submitted in December 2022, prior to the Rules
Regulating the Conduct of the Proceedings of the Labour Court
2 (Labour
Court Rules) coming into effect. Rule 3 of the Labour Court Rules, which
states that ‘Unless the Judge President directs otherwise, proceedings must
be initiated at the seat of the court nearest the place where the dispute that is
the subject of the proceedings arose’, only became effective on 17 July 2024.
Before that, parties could file proceedings in any Labour Court, although in
practice they were usually instituted in the Court closest to where the dispute
arose or where the parties were located.
[11] Returning then to the review application, I will briefly outline some background
facts relevant to the dispute.
Facts
[12] At the time of his dismissal in January 2022, the applicant had been employed
by FCS since 2001. He worked as a Crewman in the Cash- in-Transit (CIT)
division, but occasionally, when there was a shortage of drivers, he was
assigned driving duties. The incident that led to his dismissal happened when
he was driving a CIT vehicle. He was charged and dismissed for deviating
from a designated route by stopping at Ultra Liquor (Ultra) to buy alcohol while
on duty and/or ‘deselecting duties’.
3
2 GN 4775, G. 50608 of 3 May 2024.
3 In oral argument Mr Atcheson for the first respondent confirmed that this must be a typing error and
that the correct word should have been ‘neglecting or dereliction of duties’.
[13] He referred an alleged unfair dismissal dispute to the National Bargaining
Council for the Road Freight and Logistics Industry (Bargaining Council).
[14] During the arbitration proceedings, it was established as common cause that
the applicant was travelling with two colleagues. He admitted to stopping at
Ultra, claiming he urgently needed to use the toilet. While the applicant was in
the toilet, one of his two colleagues also left the vehicle to buy liquor. The third
colleague remained in the vehicle. When the colleague returning with the
liquor arrived, he knocked on the CIT vehicle window, and the applicant
received the liquor and placed it inside the vehicle. According to the applicant,
he did not question bringing liquor into the vehicle because the colleague was
more senior than he was. FCS relied on undisputed video footage of the CIT
vehicle at Ultra.
[15] When the applicant returned to ‘base’, he was observed parked in the area
designated for regular cars, not in the parking area reserved for CIT vehicles.
It appears they were transferring the liquor from the CIT vehicle into a private
vehicle.
[16] The applicant and the colleague who purchased liquor at Ultra were charged.
The same colleague, who bought the liquor, testified at the applicant’s hearing
that the applicant had given him the money to do so.
[17] The commissioner at the Bargaining Council ruled that the applicant’s
dismissal was both procedurally and substantively fair, and it is this decision
that is now being challenged on review.
Applicant’s case on review
[18] On review, the applicant argues that the stop at Ultra did not constitute a
deviation from the route because no policy defined a specific route. He also
admits he should have notified the control room about the stop but maintains
that stopping was not a risk since there was no cash in the CIT vehicle, which
had been dropped off at SBV, another client.
[19] The applicant also states that at Ultra, he stopped at a secure location with
gates that automatically close behind the vehicle.
[20] In his submission, he argued that a dismissal for failing to report the stop to
the control room was harsh, especially since there was no cash in the CIT
vehicle and it was never left unattended. He also highlights his long service
and his clean disciplinary record.
[21] He concludes by arguing that the Commissioner failed to identify the disputes
he was meant to resolve, failed to properly evaluate and consider the
evidence before him, and failed to apply his mind to whether the sanction of
dismissal was justified. For these reasons, he contends that the award is
unreasonable.
[22] In the supplementary affidavit filed nearly two years later, and in October
2024,
4 the applicant supplemented his grounds of review.
[23] He argued that Henning Venter (Venter), who testified about the rule on no
deviation from the route, did not work in operations and was therefore not
qualified to testify on the matter. He also highlights that Rudolf Delport
(Delport) and Wyne Blignaut (Blignaut), who were familiar with the operations,
confirmed that there were no designated routes. Furthermore, the submission
was that, despite the commissioner having found that there were no
designated routes, he still found him guilty based on unsupported
assumptions.
[24] The applicant also argues that there wa s no evidenc e that he purchased
alcohol or that he gave his colleague money to buy it. Regarding the fact that
the colleague gave this version during the disciplinary hearing, the applicant
contended that FCS could not rely on the evidence presented at the
disciplinary hearing, which was not testified to during the arbitration
proceedings.
4 It is unclear whether by the time the supplementary affidavit was filed, the review application was
deemed to have been withdrawn in terms of the Practice Manual of the Labour Court, April 2013,
deemed to have been withdrawn in terms of the Practice Manual of the Labour Court, April 2013,
which applied at the time. As the first respondent did not raise the point, the Court did not investigate
this any further.
[25] He also contends that no evidence was presented to the commissioner
showing that the trust relationship had been broken.
FCS’s opposition to the review application
[26] FCS raised concern that the record filed only includes the transcript of the
arbitration proceedings and excludes documents and video footage. The
argument is that, unless a complete record is provided, the Court cannot
properly assess whether the award is one that a reasonable decision- maker
could not have reached.
[27] The second issue raised is that no grounds of review were pleaded, yet it was
argued that three grounds of review exist, but no context for them had been
provided.
[28] A further point raised was that new grounds of review were introduced in the
supplementary affidavit, which is not permitted under the Labour Court Rules.
[29] On the merits, it was submitted that the evidence demonstrated there were no
designated routes for drivers, but that Ultra was not an authorised stop. It was
noted that the applicant accepted that the schedule of stops complied with
management's instructions, and that he should have used the ablution
facilities at SBV, where he dropped off the cash.
[30] The further submission was that the absence of cash in the CIT vehicle was
irrelevant, as CIT vehicles are always targeted by people who would not know
whether they have cash. It was also argued that even if the third colleague
remained in the CIT vehicle, the rule was always to have someone in the
driver's compartment, and that no one was in the driver's compartment when
the applicant was using the toilet facilities.
[31] Regarding the liquor, it was submitted that the commissioner’s finding that the
colleague bought alcohol for ‘them’ was reasonable.
[32] Finally, it was submitted that the applicant sought to appeal the award he was
dissatisfied with.
Analysis
[33] In review applications where the award is challenged on the grounds that the
outcome is one no reasonable decision- maker could have reached, a
complete record must be presented to the Court. A complete record includes
the transcript and all evidence given to the commissioner, in any form. The
reasonableness of the award can only be assessed by considering all the
material that was before the commissioner.
[34] Rule 37(12) of the Labour Court Rules provides as follows:
‘…If the applicant contends that the decision under review should be set
aside because it is unreasonable or irrational in relation to the evidence that
served before the decision-maker, the complete record must be transcribed.’
[35] In the present case, a complete transcript was filed, but neither the
documents nor the video footage were filed . This issue was raised in FCS’s
answering affidavit, and one might have expected that the oversight in not
filing the documents and video footage would be corrected. It was not
suggested that the Bargaining Council failed to file a complete record. At the
relevant time, the applicant was legally represented, and therefore, his
attorneys would have known that a complete record needed to be filed. This
was not done, and it remains unclear why. It would have been pointless to
raise this issue with the applicant during oral argument, as he would not have
been able to respond.
[36] The applicant denied any involvement in purchasing the alcohol. The video
footage was crucial for the review because FCS relied on it to demonstrate
that the applicant did not appear upset or concerned when his colleague
returned to the vehicle with the alcohol and asked the applicant to keep it. The
commissioner who viewed the footage agreed with FCS’s observations.
[37] In Baloyi v Member of the Executive Committee for Health & Social
Development, Limpopo & others56 (Baloyi), the Constitutional Court stated
this:
‘[1] … The applicant also complains that he has been unjustly dismissed
and that the arbitrator's decision confirming his dismissal should in any
event be reviewed and set aside on the merits. But, logically, that
assertion can only be determined if an accurate record of the
arbitration proceedings is available.’
[38] Similarly, in Francis Baard District Municipality v Rex NO & others 7, the Court
stated:
‘[24] The grounds of review are inter alia that the factual findings of the
commissioner did not correspond with the evidence and documents
placed before the commissioner, and that he did not apply his mind
properly and rationally to the facts and the law.
[25] The court should ideally see all the material that was before the
decision maker so that it can fully and fairly deal with the grounds of
review especially when the grounds of review are dependent on the
factual findings of the commissioner. It goes without saying that there
can, in some cases, be no full and fair review if all the evidence is not
before the court. In this matter, two witnesses' testimonies were not
available. One witness's re-examination and the employee's re -
examination were also not transcribed. Although a lot of documents
were placed before the commissioner, these documents are of no
assistance because their status is uncertain. The appellant alleges
that they were admitted whilst the third respondent points out —
correctly based on the pre-arbitration minute — that the agreement
was just that they are what they purport to be. Most of the documents
were not proven. The documents are also not helpful without the
testimony of the witnesses who testified with regard thereto. It would
have been very difficult, if not impossible, for the court a quo to
5 GN 4775, G. 50608 of 3 May 2024.
6 (2016) 37 ILJ 549 (CC).
7 (2016) 37 ILJ 2560 (LAC).
determine whether a reasonable decision maker could have reached
the conclusion that the commissioner reached. The missing parts
were material.
…
[29] .... The appellant challenged the factual findings of the commissioner;
as such it ought to have been aware that the devil would be in the
detail in this review. Those details could only be in the complete
record containing the testimonies of all witnesses. The significant
parts of this review are definitely in the missing part.’
[39] In the absence of a complete record in this matter, this Court cannot
determine the applicant’s grounds of review that the Commissioner failed to
resolve the disputes he was required to address, failed to properly assess and
consider the evidence before him, failed to apply his mind to the
appropriateness of the sanction of dismissal, and that the outcome is
unreasonable.
[40] The grounds of review were pleaded vaguely, but they were nonetheless
pleaded, contrary to FCS’s submission that no grounds of review were
pleaded.
[41] I reject the submission that the applicant pleaded new grounds of review in
the supplementary affidavit. The supplementary affidavit merely expanded
upon the grounds already pleaded in the founding affidavit, specifically the
ground that the outcome is not reasonable.
[42] The founding affidavit contended that the dismissal sanction was excessively
harsh, and the supplementary affidavit added that there was no evidence of a
broken trust relationship to justify dismissal. Therefore, the case authorities
relied upon in FCS’s heads of argument, some of which address new grounds
of review raised for the first time in legal argument, are not applicable to this
case.
[43] But even if the supplementary affidavit raised new grounds of review, this is
permissible. Rule 38(20) of Labour Court Rules provides as follows;
‘(20) The applicant must within 5 days after the transcribed record has been
filed either:
(a) by delivery of a notice of amendment and supplementary affidavit,
amend, add to or vary the terms of the notice of motion and
supplement the supporting affidavit; or
(b) deliver a notice that the applicant stands by its notice of motion.’
(My underlining)
[44] Therefore, a supplementary affidavit can amend, add, or vary what is
contained in the founding affidavit. Consequently, Rule 38(21) of the Labour
Court Rules cannot be interpreted to mean that a supplementary affidavit
cannot include new grounds of review, as argued by Mr Atcherson. The Rule
states as follows:
‘(21) A supplementary affidavit filed in terms of subrule (20) may do no more
than supplement the grounds for review recorded in the founding
affidavit or abandon any one or more of them. An applicant who abuses
this subrule by including irrelevant or repetitive material in a
supplementary affidavit risks an adverse order as to costs.’
[45] To the extent that there is a conflict between subsections 20 and 21, then
subsection 20 must take precedence. Subsection 21 cannot revoke a right
that subsection 20 has already granted.
[46] Even though the findings about the absence of a complete record are
dispositive of the matter, I nonetheless proceed to address the specific issues
raised by the applicant, in case it is found that the transcript was sufficient to
determine the review application.
[47] Even if the evidence established that there were no designated routes, a fact
accepted by the commissioner, the evidence also showed that stops were
determined by management. The applicant admitted that he should have
informed the control room of the stop. The reason for informing the control
room about a stop was not contested. It was not for the applicant, an
experienced employee, to decide not to inform the control room of the stop
because there was no cash in the CIT vehicle, the vehicle was not left
unattended, and he believed the stop was safe.
[48] In oral argument, the applicant argued that he was employed as a Crewman
rather than as a driver. He contended that, due to his lack of experience as a
driver, he had not been trained on the rules relevant to drivers. He also
claimed that it appeared he had been trapped on the day in question.
Unfortunately, these submissions, which were raised for the first time during
oral argument and not before the commissioner, could not be considered on
review. In any event, during the Court’s engagement with the applicant during
oral argument, he admitted that he had been utilised as a driver from time to
time.
[49] Contrary to his claim, the applicant was not found guilty of deviating from a
route. He was found guilty of stopping at Ultra without informing the control
room, purchasing alcohol whilst on duty, and neglecting his duties. It was not
disputed that he stopped at Ultra, left the driver's compartment, liquor was
bought during that stop, and he transported the liquor in the CIT vehicle.
Whether he gave the colleague the money to buy the liquor was irrelevant.
[50] Based on the video footage, the commissioner concluded that the applicant
and the colleague agreed to buy alcohol at Ultra. The commissioner also
decided that, from the gestures in the video, the applicant went to Ultra solely
to purchase alcohol. This finding cannot be considered unreasonable for a
decision maker, especially because the footage was not included in the
review record.
[51] The applicant also argued that no evidence was provided regarding the
breakdown of the trust relationship. This is incorrect. From the award, it is
clear that Delport testified that CIT's business depended on trust and that he
could no longer trust the applicant. An award is not reviewable simply
because a commissioner did not explicitly mention evidence relevant to the
issues they were asked to decide.
issues they were asked to decide.
[52] The applicant also takes issue with the dismissal sanction imposed,
considering his lengthy service and clean disciplinary record. Delport testified
that he could no longer trust the applicant. The commissioner found that the
misconduct was serious , as it posed a threat to people; that the applicant
showed no remorse; that he acted irresponsibly; and that this was
unforgivable. Against those findings, it cannot be said that long service and a
clean disciplinary record should have saved the applicant. The outcome that a
dismissal was fair cannot be said to be one that no reasonable decision
maker could have arrived at, as per Sidumo & a nother v Rustenburg Platinum
Mines Ltd & others
8.
[53] The review application must be dismissed, as no valid grounds of review were
raised.
Costs
[54] FCS sought costs regarding the application to strike out. I doubt such an
application was necessary simply to highlight that the review application was
filed late and that the incorrect employer had been cited. These issues could
have been addressed in correspondence with the applicant’s attorneys. I also
doubt that Rule 30 of the Uniform Rules of Court could be relied upon to bring
such an application, given that when the review application was filed, and
currently, this Court has its own rules governing litigation. Resorting to the
Uniform Rules of Court was unnecessary, if not incompetent. Therefore, FCS
is not entitled to costs for the application to strike out the review application.
[55] In oral argument, Mr. Atcheson submitted that he had been instructed to
argue for a costs order against the applicant, while conceding that the rule
that costs do not follow the result does not apply in this Court. After the Court
engaged him further on the matter, he contended that if the applicant’s
previous attorneys of record had not withdrawn from the case, he would have
sought a de bonis propriis costs order on the basis that they should have
known the review application would never succeed. The argument was of only
academic interest, as they had withdrawn as the applicant’s attorneys of
academic interest, as they had withdrawn as the applicant’s attorneys of
record. Additionally, the papers did not warn them that a costs order would be
8 (2007) 28 ILJ 2405 (CC) at para 110.
sought against them, which would have been a reason to refuse the request
for a costs order against the applicant’s former attorneys.
[56] The applicant pursued the review application based on the advice of his
attorneys at the time. It cannot be argued that he should have known better
than to pursue a review that was destined to fail. The first respondents raised
unnecessary preliminary points, which have been found to be without merit.
An appropriate costs order is one where each party bears its own costs.
[57] In the result, the following order is made:
Order
1. Fidelity Cash Solutions (Pty) Ltd is substituted as the first respondent.
2. Condonation for the late filing of the review application is granted.
3. The review application is dismissed.
4. Each party pays its own costs.
_______________________
T Gandidze
Judge of the Labour Court of South Africa
Appearances:
For the Applicant : In person
For the First Respondent : Mr Atcheson of Hinrichsen Attorneys