THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
case No: JR1736/23
In the matter between:
DEPARTMENT OF ROADS AND TRANSPORT
GAUTENG PROVINCIAL GOVERNMENT Applicant
and
NATALIE GOVENDER First Respondent
GENERAL PUBLIC SERVICE SAFETY AND SECURITY
SECTORAL BARGAINING COUNCIL (‘THE COUNCIL’) Second Respondent
COMMISSIONER ELAINE MOLEKO N.O Third Respondent
Heard: 27 NOVEMBER 2025
Delivered: 20 March 2026
JUDGMENT
TSHISEVHE, AJ
Introduction
[1] The Applicant herein (Department of Roads and Transport , Gauteng
Provincial Department) lodged an application to review the arbitration award
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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under case number GPBC 1729/2018 dated 24 July 2023 in terms of section
145(1)(a) of the Labour Relations Act1 (LRA).
[2] The Applicant was ordered by the Third Respondent to reinstate the First
Respondent, Natalie Govender, to her position, with effect from 1 September
2018, with a month backpay amounting to R120 400,00. The First
Respondent was ordered to report for duty on 1 September 2023.
[3] The Applicant was ordered to comply with the award by 15 August 2023. This
is after the dismissal of the First Respondent was found to have been
substantively unfair but procedurally fair.
[4] I should hasten to state that the award is a vague and confusing in many
material respects when it comes to the orders of the arbitrator.
[5] The review application is opposed by the First Respondent herein.
Material background facts
[6] The First Respondent was employed by the Applicant on 5 September 2012
as a Chief Finance Officer (CFO), whose duties included amongst others, to
oversee various functions in finance, providing strategic and operational
direction for the G-fleet when it comes to finance.
[7] The First Respondent as at the time of her dismissal was earning an amount
of R124 764. The first Respondent was hauled before a disciplinary hearing
on account of misconduct facing 10 charges of misconduct.
[8] The First Respondent was found guilty of four charges being, 4, 5, 7 and 10
and a sanction of dismissal was meted out. The Applicant herein did not
pursue charge 7 at the arbitration proceedings.
[9] The charges were as follows:
9.1 ‘Charge 4
1 Act 66 of 1995, as amended.
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It is alleged that you, being the C hief Financial Officer: G -fleet
Management, and in that capacity being charged with the
responsibility to ensure the correct and accurate preparation and
presentation of financial statements of the employer, have committed
an act of gross misconduct, alternatively, gross negligence, in that
dung 2013/2014 and 2014/2015 financial periods you failed to prepare
the financial statements of the employer in accordance with the
prescribed financial reporting framework which, prejudice or had the
effect of potentially prejudicing the administration or efficiency of the
employer.
9.2 Charge 5
It is alleged that you, being the Chief Financial Officer: G -fleet
Management, and in that capacity being charged with the
responsibility to ensure all f ull and proper financial records of all
transactions of the employer are kept, have committed an act of gross
misconduct, alternatively gross negligence, in that during or around
2013/2014 and 2014/2015 financial periods you failed to ensure that
full and proper records of the financial affairs of the employer were
kept and maintained, which conduct prejudice or had the effect of
potentially prejudicing the administration or efficiency of the employer.
12.3 Charge 10
It is alleged that you, being the Chief Financial Officer: G -fleet
Management, and in that capacity being charged inter alia with the
responsibility to ensure compliance with all applicable legal and
regulatory prescripts, have committed an act of gross misconduct,
alternatively, gross negligence, in that during or around 2013/2014
and 2014/2015 financial periods you failed to safeguard and maintain
the employer’s assets, which conduct contravened the Public Finance
Management Act, 1999 and Treasury Regulations.’
Arbitration proceedings
[10] The Third Respondent found that the dismissal of the First Respondent was
substantively unfair on the following grounds:
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10.1 That in charge 4 she was found guilty after it was alleged that she
committed misconduct in that she neglected to prepare financial
statements in accordance with prescribed financial reporting
framework. That she failed to keep the records and contracts properly.
10.2 The arbitrator found that evidence before her, the SOP proved that it
was the responsibility of P ermanent Fleet and VIP/ Pool Directorate to
safeguard and maintain the records/ contracts of the employer.
10.3 That for the First Respondent to access such information, she relied on
the two Directorates, VIP/Pool and Permanent Fleet to provide the
records.
10.4 That if the two Directorates fail ed to maintain and keep safe those
records, then the First Respondent would not be in a position to submit
same to the Auditor General (AG).
10.5 As a result, it was impossible and impractical for the First Respondent
to submit the records and contracts required in that financial year.
10.6 That PWC was appointed as an external service provider to assist in
preparing the financial statements of 2014/15 financial years. This was
done because no one was able to access the records and contacts as
required by the AG.
10.7 That it was unreasonable to expect the First Respondent to look for
non-existent items hence the reason to source a service provider. That
the First Respondent was expected to provide documentation which
could not be found internally and the MEC, HOD, CEO, COO and all
Directors were in agreement that those documents are not available in
their filing system in order to submit to the AG.
10.8 That the employer did not even call any official of PWC to testify during
the arbitration proceedings, which would have enabled him to
understand if PWC ever obtained those records, including ascertaining
if the Frist Respondent was to blame. Not even the records or contracts
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were presented during arbitration proceedings. That it was never
presented to her if the First Respondent is the one who lost the records
or contracts or how she lost them.
10.9 That the Applicant herein referred to the CFO Handbook at length
arguing that she was responsible for ensuring that annual financial
statements are prepared and submitted in accordance with Standards
of Generally Recognised Accounting Practice (GRAP), Public Finance
Management Act 2 (PFMA) and Treasury Regulations. That the First
Respondent was not charged for failure to submit financial statements
but was charged for the fact that the financial statements submitted
was not in accordance with GRAP, PFMA and Treasury Regulations,
as there were no records available on the system and neither was any
on the filing cabinets.
10.10 That after the PWC had furnished the G -fleet with the prepared
statement, then the First Respondent passed them to the AG after the
accounting officer had signed them acknowledging that it was accurate
and in compliance with the financial reporting framework. That the
Accounting Officer was aware that there were no records and contracts
to attach to that financial statement because they had nothing to
submit.
10.11 That the First Respondent never failed to prepare the financial
statement but that responsibility was handed over and paid for by the
employer.
10.12 That the chairperson of the hearing testified that the employee was
dismissed for misconduct that occurred in 2013/14 financial year. That
it was unreasonable to dismiss the employee on a finding that was
already closed and the corrections were made long ago in May 2015.
10.13 That it was never disputed that the 2014/15 findings were associated
with, amongst other things, insufficient appropriate audit evidence with
2 Act 1 of 1999.
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regard to the revenue from lease, trade and other receivables from
exchange transactions and property plant and equipment.
10.14 That according to her findings, after assessing all the evidence, all the
findings for 2014/15 financial year relates to the insufficient appropriate
evidence, e.g. contracts and record, vehicles and the responsibility to
keep this ty pe of evidence vested with the VIP and P ermanent Pool
Directorate, sections which do not fall within the CFO.
10.15 That Chikane testified that because the system was not working, G -
fleet had to do manual recalculation as far back as the past seven
years in 2007/8 financial year, which required vehicle contract
documentation related a period of to the First Respondent’s
appointment in September 2012, this evidence was never challenged.
10.16 The safeguarding of contract information and vehicle file management
does not reside within the First Respondent’s area of responsibility but
instead that such function falls under the responsibility of the COO’s
units which is Permanent Fleet and VIP Pool/ Fleet. The records were
kept by the COO, contracts were under the care and control of
Directors Permanent Fleet and VIP Pool/ Fleet, not with the First
Respondent. The Applicant never challenged this evidence save to just
say that it was the First Respondent’s responsibility and they produced
the Handbook.
10.17 Therefore, it was implausible that the First Respondent was expected
to submit the records/contracts which were nowhere to be found.
10.18 That Mr Mongwe testified that the reason why records/contracts could
not be found, was as a result of striking employees who removed them
and that was a period before the First Respondent was appointed at G -
fleet.
10.19 Therefore, it was clear that G -fleet submitted financial statements
which did not have contracts or records because they could not be
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found. The said records and contract’ safe keeping is the duty of
Permanent Fleet and VIP Pool/ Fleet directorate.
10.20 That the First Respondent was dismissed for failure to safeguard the
Applicant’s assets. The so- called assets are said to be contracts.
According to the a rbitrator’s findings, contracts are not assets as
defined in the Asset Management policy because they do not have
value.
10.21 According to witnesses testimony such as Mr Chikane, t he contract’s
price do not have a cost price of more than R500 or 5000, therefore
they cannot be assets.
10.22 That in terms of section 38 of the PFMA, the person that must
safeguard the assets of the Applicant herein is the Accounting Officer
and there is no delegation in writing from the HOD to the First
Respondent.
10.23 That the CFO Handbook makes provision of a list of the responsibilities
of the CFO and issues raised were that she failed to carry out her
duties as outlined in the CFO Handbook.
10.24 The recalculation exercise was done as a result of the systematic
malfunctions and even Senior Officials were, aware as a result, the
Applicant cannot be blamed.
10.25 That the First Respondent adhered to her job responsibilities but was
failed by the non- availability and non- existence of the supporting
documents which were missing long before she was employed.
10.26 Further that it was not part of her responsibilities to safeguard and
ensure safe keeping of the lease agreement entered into by other
directorates, who are supposed to safeguard same as it is their duties.
Grounds for review
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[11] The Applicant raised several grounds of review and the salient ones are
summarised below as follows:
11.1 That the award is unreasonable based on the totality of evidence
before the arbitrator especially evidence of the Applicant ’s witnesses
that explains why the First Respondent should be held responsible for
failing to prepare the financial statements in terms of the relevant
financial reporting framework and she had a duty to safeguard
Applicant’s assets, not other directorates, in compliance with the PFMA
and Treasury regulations.
11.2 That the First Respondent was bound by the CFO handbook and
section 45 of the PFMA.
11.3 That the contracts/records constitute assets as defined in the
Departmental assets Management Policy.
11.4 That the Third Respondent ignored the evidence of her own witnesses
from National Treasury, who testified that the First Respondent is
bound by the provisions of the CFO Handbook, PFMA, and National
Treasury Regulations.
11.5 That the Third Respondent found that it was the duty of other
Directorates to ensure that full and proper records are kept as well as
being maintained whereas those were the functions of the First
Respondent.
11.6 That the fact that the Applicant appointed external service providers to
ensure that financial statements are prepared in line with the relevant
framework, it does not excuse her from discharging her duties as a
CFO.
11.7 That the arbitrator concurred that contracts contained valuable
information of the Applicant, therefore, it became her duties to ensure
that they are safeguarded and the internal records are maintained.
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11.8 As a result of the above, the Applicant submits that the award is
unreasonable.
11.9 That the Third Respondent misconducted herself in relation to her
duties as an arbitrator.
11.10 That the Third Respondent committed gross irregularities and
exceeded her powers when she ruled that the First Respondent should
report for work on 1 September 2023, while on the other hand, the
Applicant was ordered to comply with the Award by 15 August 2023.
11.11 That the award does not say anything about the period in between the
compliance and the reporting by the First Respondent.
11.12 That the arbitrator committed gross irregularity and/or exceeded her
powers as a commissioner when she ordered the reinstatement from 1
September 2023 with a backpay of one month.
11.13 That from the reading of the award, it is not clear if the First
Respondent is reinstated with retrospective effect from 1 September
2023 and one month backpay constitute a compensation.
The Issue to be decided
[12] I am required to determine if the finding of the arbitrator that the dismissal of
the First Respondent was substantively unfair is a reasonable one.
[13] If I find that it was unreasonable, I am required to interfere with such a
decision and substitute it with an appropriate one, otherwise, it will mark the
end of the matter.
Test for review
[14] The test that the Labour Court is required to apply in a review of an
arbitrator’s award is to determine whether the decision reached by the
commissioner is one that a reasonable decision maker could not reach within
the totality of evidence at his disposal.
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[15] In order for me to make a determination regarding the fairness of the
dismissal, I must first be satisfied that the decision of the arbitrator is outside
the band of reasonableness if not, the application stands to be dismissed.
[16] The Constitutional Court settled the issue of test for review of an arbitration
award in the case of Sidumo and Another v Rustenburg Platinum Mines Ltd
and Others 3 (Sidumo). The court held that the test on review is whether the
decision reached by the Commissioner is one that a reasonable decision
maker could not reach in relation to the evidence before him or her.
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[17] The test to be applied is one that recognises and reinforces the distinction
between a review and an appeal. This court is entitled to intervene if and only
if the arbitrator’s decision is one that falls outside of a band of decisions to
which a reasonable decision- maker could come to on the available material
before him. The locus classicus remains Head of Department of Education v
Mofokeng and others
5 (Mofokeng), where the Labour Appeal Court (LAC) said
the following:
‘The failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be an irregularity.’
[18] However, the Supreme Court of Appeal in Herholdt v Nedbank (Congress of
the South African Trade Unions as amicus curiae) 6 (Herholdt) summarised the
review test as follows:
‘…[T]he position regarding the review of CCMA awards is this: A review of a
CCMA award is permissible if the defect in the cusa v proceedings falls within
one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of
the proceedings to amount to a gross irregularity as contemplated by s
145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry
or arrived at an unreasonable result. A result will only be unreasonable if it is
3 2008 (2) SA 24 (CC) at para 110.
3 2008 (2) SA 24 (CC) at para 110.
4 In CUSA v Tao Ying Metal Industries and others [2009] 1 BLLR 1 (CC) (Tao Ying) at paras 76 and
134, the Constitutional Court held that it is now axiomatic that a commissioner of the CCMA (or an
arbitrator of a bargaining council) is required to apply his or her mind to the issues before him or her
and that failure to do so may result in the ensuing award being reviewed and set aside. The
irregularity must however result in an unreasonable outcome or misconception of the true enquiry
resulting in no fair trial of the issues. See also Sidumo (id fn 3).
5 [2015] 1 BLLR 50 (LAC) at para 30.
6 2013 (6) SA 224 (SCA) at para 25.
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one that a reasonable arbitrator could not reach on all the material that was
before the arbitrator.’
[19] In a further explication of the review test, the LAC in Gold Fields Mining South
Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others 7 held that in assessing
whether the result of an award is unreasonable, the reviewing court should
not adopt a piecemeal approach, and must further enquire whether:
‘…(i) In terms of his or her duty to deal with the matter with the minimum of
legal formalities, did the process that the arbitrator employed give the parties
a full opportunity to have their say in respect of the dispute? (ii) Did the
arbitrator identify the dispute he or she was required to arbitrate? (This may in
certain cases only become clear after both parties have led their evidence)
(iii) Did the arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv) Did he or she deal with the substantial merits of the
dispute? (v) Is the arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?’
[20] In the case of Mofokeng8, the court further held that:
‘[32] …Mere errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: flaws in the reasoning of the
arbitrator, evidenced in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material factors etc. must
be assessed with the purpose of establishing whether the arbitrator
has undertaken the wrong enquiry, undertaken the enquiry in the
wrong manner or arrived at an unreasonable result. Lapses in
lawfulness, latent or patent irregularities and instances of dialectical
unreasonableness should be of such an order (singularly or
cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the material
that was before him or her.
[33] Irregularities or errors in relation to the facts or issues, therefore, may
[33] Irregularities or errors in relation to the facts or issues, therefore, may
or may not produce an unreasonable outcome or provide a compelling
indication that the arbitrator misconceived the inquiry. In the final
7 [2014] 1 BLLR 20 (LAC) at para 20.
8 Mofokeng (Id fn 5) at paras 32 – 33.
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analysis, it will depend on the materiality of the error or irregularity and
its relation to the result. Whether the irregularity or error is material
must be assessed and determined with reference to the distorting
effect it may or may not have had upon the arbitrator's conception of
the inquiry, the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity a different outcome
would have resulted, it will ex hypothesis be material to the
determination of the dispute. A material error of this order would point
to at least a prima facie unreasonable result. The reviewing judge
must then have regard to the general nature of the decision in issue;
the range of relevant factors informing the decision; the nature of the
competing interests impacted upon by the decision; and then ask
whether a reasonable equilibrium has been struck in accordance with
the objects of the LRA. Provided the right question was asked and
answered by the arbitrator, a wrong answer will not necessarily be
unreasonable...’
[21] It is important to reiterate that, irregularities or errors in relation to the facts or
issues, may or may not produce an unreasonable outcome or provide a
compelling indication that the arbitrator misconceived the inquiry.
[22] Perhaps somewhat at variance with the Constitutional Court in CUSA v Tao
Ying Metal Industries and others 9 (Tao Ying), the Supreme Court of Appeal in
Herholdt10 was of the opinion that:
‘…Material errors of fact, as well as the weight and relevance to be attached
to particular facts, are not in and of themselves sufficient for an award to be
set aside, but are only of any consequence if their effect is to render the
outcome unreasonable.’
[23] In the case of Tao Ying, the Constitutional Court seemed to take the view that
a factual or legal error would be reviewable if it were material to the
determination of the dispute submitted to arbitration.
[24] The Labour Appeal Court in Mofokeng,11 held that:
[24] The Labour Appeal Court in Mofokeng,11 held that:
9 [2009] 1 BLLR 1 (CC).
10 Herholdt (id fn 6) at para 25.
13
‘An irregularity or error material to the determination of the dispute may
constitute a misconception of the nature of the enquiry so as to lead to no fair
trial of the issues, with the result that the award may be set aside on that
ground alone. The arbitrator however must be shown to have diverted from
the correct path in the conduct of the arbitration and as a result failed to
address the question raised for determination.’
[25] It is therefore clear from the above judgements that there must be a
connection between the error and the fairness of the trial which should be
proven by the Applicant in an application for review , failing which the review
application stands to fail.
Analysis of submissions and the applicable legal framework
[26] The law justif ies setting aside an award on review if the decision is “ entirely
disconnected with the evidence ” or is “unsupported by any evidence” and
involves speculation by the commissioner.
[27] It is the finding of the arbitrator that the duty of maintaining and safeguarding
the records/contracts was vested on the Directorates being the VIP/Pool and
Permanent Fleet who had to make them available for the First Respondent to
access such information, she relied on the two to provide the records.
[28] The arbitrator found that the above two Directorates failed to maintain and
safeguard the records, as a result, it was impractical for the First Respondent
to submit same to the Auditor General.
[29] The First Respondent was dismissed for failure to safeguard the Applicant’s
assets. The so- called assets are contracts or records. According to the
arbitrator’s findings, contracts are not assets as defined in the Asset
Management Policy because they do not have value. The arbitrator further
found that the First Respondent is not bound by the CFO Handbook.
11 Id fn 5 at para 33. See also Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) at
paras 52-78, 85-88.
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[30] On the other hand, it is the Applicant’s case that the First Respondent is
bound by her contract of employment /performance agreement , CFO
Handbook, PFMA and National Treasury Regulations.
[31] This Court was referred to the First Respondent’s performance contract which
sets out her duties and responsibilities. This Court ’s view upon a cursory look
at the contract of employment/performance agreement, CFO Handbook,
PFMA and National Treasury Regulations, i t is apparent that the First
Respondent has a duty to ensure that financial statements are prepared in
accordance with the relevant prescripts.
[32] This Court was further referred to pages 71A of the bundle of evidence which
page contained the First Respondent’s performance agreement. The said
agreement further makes it clear that asset management is part of her duties.
[33] According to the CFO Handbook, core responsibilities of the CFO are
prescribed in part 2 of Chapter 5 of the Act.
[34] In terms of the CFO Handbook, PFMA, contract of employment/performance
agreement and the National Treasury Regulations, it was the duties of the
First Respondent to establish and maintain appropriate internal records and
reporting systems in order to meet performance expectations.
[35] This Court further concurs with the Applicant’s argument that section 38 of the
PFMA applies to the First Respondent in that, in terms of the Gauteng
organisational structure, the CFO has a duty to support the CEO and other
Senior Management in the execution of the functions in terms of the PFMA.
[36] The same organizational structure as referred to by the Applicant’s Counsel,
further describes the duties of other Directorates such as Permanent
Fleet/VIP Pool.
[37] This Court perused same in an attempt to find any ambiguity in the duties if
any, with no success. All the duties are very clear and in the issues in
disputes, there are no duties and/or responsibilities that overlaps where
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maybe one may say, the First Respondent would have expected other parties
to carry out those duties.
[38] In this regard, the First Respondent’s performance agreement makes it clear
that her duties includes amongst others,
‘assist the Accounting Officer in discharging all duties and responsibilities
imposed on him as prescribed in part 2 of Chapter 5 of the PFMA to support
the Accounting Officer as well as other Senior Managers of the department
through the provision of timely and accurate asset management including
operational information necessary for strategic decision making and for
assessing/managing of overall performance of the department.’
[39] In terms of section 40 of the PFMA, the Accounting Officer is required to:
‘(a) keep full and proper records of the financial affairs of the trading
entity,
(b) prepare financial statements for each financial year in accordance with
Generally Recognized Accounting Practice;’
[40] These are the duties to be discharged by the CFO in supporting the CEO or
the Accounting Officer and therefore, there was no need for any other
delegation.
[41] The arbitrator’s finding that the First Respondent ought to have been
delegated these duties by the Accounting Officer is not a perspicacious one
which does not sagaciously arrive.
[42] If there was a need for a delegation, the arbitrator should have found that the
First Respondent was not supposed to have prepared the financial statements
since there is equally no ‘written’ delegation in those duties too.
[43] The performance agreement further states her job functions amongst others
at paragraphs b, f and j as:
‘b. establish appropriate asset management and inventory management
procedure manuals including the related processes flows.
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f. to ensure asset management functions of the department are
executed appropriately and the maintenance of an accurate, complete
and reliable fixed asset register.
j. to ensure that all systems of internal control are adequate, efficient
and effective to safeguard the assets of the department.’
[44] The fact that the First Respondent was issued with a written warning in 2014
and a disclaimer 2015 for the same or similar misconduct speaks volume.
[45] The First Respondent would have raised the defenses that she raised during
the arbitration proceedings.
[46] Nevertheless, in terms of the findings of the Auditor General, they could not
find records/contracts due to deficiencies in the internal control and same was
attributed to the First Respondent as it is her duty as per the performance
agreement.
[47] The Auditor General found that there was an improper record keeping of
supporting documents, which resulted in complete, relevant and accurate
information not to be accessible and available to support the financial
reporting.
[48] The witnesses from National Treasury called by the arbitrator also testified
that it was the duty of the First Respondent to ensure that contracts/records
are safeguarded. However, the arbitrator seem s to have missed these pieces
of evidence.
[49] Therefore, the finding of the Third Respondent that those powers were not
delegated to her is unmeritorious.
[50] Furthermore, it is very strange that there is an argument whether a contract is
an asset.
[51] The arbitrator found that contracts or records are not assets because they do
not have value. I find this reasoning to be abhorrent in all material respects ,
the Departmental Assets Management Policy distinguishes between different
types of assets.
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[52] The Applicant referred this Court to the evidence of the First Respondent
which is found on page 375 of the transcribed record of arbitration where she
read page 569 of the bundle which deals with section 1 of the Departmental
Asset Management Policy, the section defines key terms of the policy.
[53] Assets are defined as:
‘assets are resources controlled by an entity as a result of past events and
from which future economic benefits or service potential are expected to flow
to the entities.’
[54] The Applicant further referred this Court to a Concise Oxford English
Dictionary which defined ‘assets’ as:
‘asset is a useful or valuable thing or person. Property owned by a person or
a company regarded as having value and being available to meet debts,
commitments or legacies.’
[55] It is therefore apparent that contracts or records are assets. I am in
agreement with the Applicant that a contract is an asset because a
contract can provide financial benefit, either now or in the future.
[56] This Court is struggling to understand as to how the arbitrator missed this
point in the policy because it is very clear.
[57] The First Respondent urged this Court not to have regard to the contract of
employment or performance agreement because no one testified about them
in the arbitration proceedings. I am not convinced that this argument is based
in law because a contract is a legal binding document. Even though I do not
agree that no witness testified or referred to it, the document cannot be
ignored as it is a point of law.
[58] As stated above, t his Court is not persuaded by the arbitrator’s decision that
the CFO Handbook does not apply to the First Respondent, in that she was
the only CFO and the above prescripts are legal binding document s which
states that she was responsible for those duties.
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[59] Based on the above, it is my finding that the Third Respondent’s decision in
the above matter is unreasonable based on all material evidence before her.
[60] It is this Court’s finding that it was the First Respondent’s duties to prepare
financial statements in accordance with the relevant reporting framework and
she failed to do so.
[61] The arbitrator does not seem to understand the duties of a CFO and the CFO
herself knows what was expected of her, I do not believe that she does not
know that the above prescripts does apply to her , since she is a Chartered
Accountant. Moreover, even if she was not a Chartered Accountant as a
result of her position as a CFO, she ought to have known.
[62] The CFO is there in order to give support to the HOD who is an Accounting
Officer and she is a technocrat who should know better.
[63] It is therefore clear that the arbitrator’s decision is unreasonable based on the
total material evidence before her. The decision of the arbitrator is not only out
of kilter but also out of reality and reasonableness.
[64] In determining whether the result of an arbitrator’s award is unreasonable, I
must broadly evaluate the merits of the dispute and consider whether the
arbitrator’s reasoning is found to be unreasonable, the result is nevertheless
capable of justification for reasons other than those given by the arbitrator.
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[65] In the present instance, in my view, and after a careful perusal of the record,
the arbitrator’s conduct was such that he overstepped the mark. The
transcribed record reflects that the commissioner ignored crucial pieces of
evidence and did not conduct the arbitration hearing in a fair manner.
[66] The arbitrator did not appreciate the true nature of the enquiry.
[67] It is not a requirement that the award must be pristine, but reasonable. The
award will, however, be unreasonable if it is entirely disconnected from the
evidence, unsupported by any evidence and involves speculation by the
evidence, unsupported by any evidence and involves speculation by the
12 See: National Union of Mineworkers and another v Samancor Ltd (Tubatse Ferrochrome) and
others [2011] 11 BLLR 1041 (SCA).
19
arbitrator just like when he speculated on the duties of a CFO and applicability
of financial prescripts.
[68] I am convinced that the award is entirely disconnected from the evidence
before the arbitrator , as the arbitrator seems to have adopted a piecemeal
approach, which has been discouraged or shunned as improper in Gold
Fields Mining case.
[69] In relation to all the charges, the arbitrator unreasonably found the First
Respondent not guilty and such a finding is not supported by any evidence
but mere speculations.
[70] This Court was left dumbfounded by the arbitrator’s finding that the Applicant
herein should comply with t his award by no later than 15 August 2023.
However, the First Respondent was ordered to report for duty by 1 September
2023. What is to happen to the period in between the compliance on 15
August 2023 and 1 September? Is the First Respondent given leave of
absence?
[71] It is only the arbitrator who can explain this pell-mell of an award.
[72] This Court agrees with the Applicant that the award is unreasonable in all
material respects.
Conclusion
[73] After having considered the evidence adduced at the arbitration proceedings,
the findings made by the arbitrator and the grounds for review as raised by
the Applicant, I find that the arbitrator ’s award is un reasonable under the
circumstances.
[74] This court is therefore, left with no choice but to interfere with the decision of
the arbitrator.
[75] As a result of the above, t he arbitrator’s decision does not pass the Sidumo
test of reasonableness and therefore stands to be reviewed.
Costs
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[76] I have had regard to the requirements of law and fairness in line with Zungu v
Premier of the Province of KwaZulu- Natal and Others ,13 in considering costs
and am of the view that costs should only be awarded where it is warranted.
[77] The First Respondent had to challenge the review since the award was in her
favour.
[78] I am of the view that a cost order is not warranted in this matter.
[79] In the premises, the following order is made:
Order
1. The review application is hereby granted.
2. The finding of not guilty in all the charges is substituted with a finding of
guilty.
3. The finding of reinstatement is replaced with that the dismissal of the
First Respondent was for fair reasons.
4. There is no order made as to costs.
_______________________
N. Tshisevhe
Acting Judge of the Labour Court of South Africa
13 (2018) 39 ILJ 523 (CC).
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Appearances:
For the Applicant: Adv Mashudu Tshivhase
Instructed by: State Attorneys (Mrs Maponya)
For the Respondent: Adv Maake
Instructed by: M Makula Attorney Inc