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[2026] ZALCCT 58
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Matthee v Oudtshoorn Local Municipality and Others (C25/2023) [2026] ZALCCT 58 (27 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no:
C25/2023
(1)
Reportable Yes: Yes
(2)
Of interest to other Judges: Yes
(3)
Revised: yes
In
the matter between:
THOMAS
MATTHEE
Applicant
and
OUDTSHOORN
LOCAL MUNICIPALITY
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
COMMISSIONER
W RIEKERT
Third Respondent
Heard
:
11 March 2026
Delivered
:
27 March 2026
Summary:
(Review and condonation application - whether this Court differs with
the outcome or the finding of fact or law made by
the arbitrator is
not sufficient for the Court to interfere, something more is required
for thus is the dividing line between the
Court’s powers on
review versus appeal – If there are two competing constructions
of the evidence that are both plausible
and reasonable, the
arbitrator’s choice of one of them cannot give rise to a
review)
JUDGMENT
MAY,
AJ
Introduction
[1]
This
is an opposed application to review and set aside an arbitration
award in which the third respondent (the arbitrator) determined
that
the Applicant’s dismissal was fair. The application is brought
in terms of section 145 of the Labour Relations Act
[1]
(LRA) which requires that an application of this nature be brought
within six weeks of receipt of the award. The application was
due on
or before 26 December 2022. The application was delivered on 18
January 2023 and filed on 20 January 2023 and is therefore
filed 17
days late.
[2]
The Applicant seeks condonation for the late filing which is not
opposed by the First Respondent.
Condonation
[3]
This
Court must consider the well-known principles laid down in
Melane
v Santam Insurance Co Ltd
[2]
and
Grootboom
v National Prosecuting Authority and Another
[3]
.
[4]
In
the exercise of its discretion, a Court cannot consider a delay in a
vacuum but in light of all of the relevant facts including
the
prejudice to the parties, the possible consequences of granting, or
of not granting the relief sought in respect of the merits,
the
prospects of success and ultimately the interests of justice.
[4]
[5]
Even
in circumstances where a delay has not been adequately explained,
such a delay cannot be evaluated in a vacuum but must be
evaluated
taking into account the potential prejudice to the parties, the
possible consequences of granting the relief sought or
not granting
it or not dealing with the matter on its merits. The nature of the
application and the strength of the merits may
also either favour or
not favour overlooking a delay.
[5]
[6]
In other words, and whilst not necessarily being a closed list, the
factors a Court must consider are:
6.1
the length of the delay;
6.2
the explanation for, or cause for, the delay;
6.3
the prospects of success for the party seeking condonation;
6.4
the importance of the issue(s) that the matter raises;
6.5
the prejudice to the other party or parties in granting or not
granting
the relief requested and not considering the merits of the
dispute;
6.6
the effect of the delay on the administration of justice;
6.7
the litigant’s rights in terms of section 34 of the
Constitution
of the Republic of South Africa, 1996, to have any
dispute that can be resolved by the application of law decided in a
fair public
hearing before a Court; and ultimately
6.8
the interests of justice.
[7]
Sight
also cannot be lost of the fact of the now trite proposition that
where there is a flagrant or gross failure to comply with
the rules
of court condonation may be refused without considering the prospects
of success.
[6]
In addition, it
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case
entitling it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for
the non-compliance
with the rules or court’s
directions.
Of great significance, the explanation must be reasonable
enough to excuse the default
[7]
.
Period
of delay and explanation
[8]
The Applicant advises that he was represented by his Union, IMATU, at
the time that the award was handed down. He met with his
Union
representative on 24 November 2022 to discuss challenging the award.
He was advised at this meeting that approval from IMATU’s
head
office would need to be sought. He was only advised on 13 January
2023 that IMATU would not be assisting him and met with
his current
attorneys of record on 16 January 2023 who shortly thereafter
launched the application.
[9]
The Court is therefore satisfied that the explanation for the delay
is satisfactory and covers the entire period of the delay.
[10]
Mindful, however, of the other factors listed above, especially the
consequences to the parties should the merits not be considered,
this
Court must nevertheless consider the remaining factors including
prospects of success. The Court will accept that the matter
is
important to both parties and takes into account the effects the
delay has had and continues to have on the administration of
justice.
This Court also accepts that both parties stand to be prejudiced with
a finding either way. This Court will weigh those
carefully.
Prospects
of success
[11]
The Applicant was dismissed for failing to disclose the full
particulars of his disciplinary hearing in 2013 at the Drakenstein
Municipality where he had been charged and found guilty of 15 charges
of serious misconduct resulting in the decision by the Chairperson
that his services be terminated with immediate effect. It was
disputed whether the Applicant was aware of the fact that the
disciplinary
process had proceeded in his absence as at the time, the
Applicant, through his legal representative, had raised a point
in
limine
contending that the chairperson had been appointed without
the employer having consulted the Applicant. The applicant’s
contract
was for a fixed term of five years commencing 1 May 2008 and
terminating on 30 April 2013. The disciplinary hearing was set to
proceed on 29 April 2013 when the Applicant’s legal
representative raised the
point in limine
and proceedings were
adjourned. On 30 April 2013 Applicant received notice that his
contract had ended.
[12]
It is common cause that the disciplinary proceedings reconvened
subsequent to 30 April 2013 in the absence of the Applicant. The
Chairperson indicates that he issued a ruling on the point
in
limine
on 11 May 2013 and the hearing was thereafter rescheduled
to proceed on 12 July 2013. The Chairperson noted that notice of the
proceedings
was sent to the Applicant’s legal representative
who did not send notice that he had withdrawn from the matter. On the
contrary,
he addressed a letter to the Chairperson on 6 June 2013 in
which he warned against the continuation of the hearing and the
alleged
unqualified jurisdiction of the disciplinary hearing.
[13]
Inasmuch as the Applicant contends that he had no personal knowledge
of the proceedings continuing and as it is common cause that
he
informed the interviewing panel that he had been suspended, that
disciplinary proceedings ensued but could not conclude due
to his
contract ending, this Court concludes that he does have reasonable
prospects of success and thus that a proper case for
condonation has
been made.
The
award
[14]
At the arbitration, as with the Disciplinary hearing, the material
issue in dispute was whether Applicant had disclosed the extent
and
details of his previous disciplinary proceedings to the interview
panel. As incidated above, it was common cause that he disclosed
that
he had been suspended, that disciplinary proceedings had commenced
but could not be concluded because his contract had come
to and end.
He did not disclose what the nature of the charges were nor did he
disclose that the disciplinary proceedings had continued
on 12 July
2013 or that the Chairperson had recommended that he be dismissed
notwithstanding the fact that his contract had come
to an end.
[15]
The arbitrator’s findings were that the Applicant, as a Senior
Manager, was aware that he had a duty to disclose under Regulation
17
(4)(o) of the Disciplinary Regulations that he had been charged with
serious misconduct and the fact that he had failed to disclose
this
was a deliberate and wilful act, or rather omission. The arbitrator
states, at paragraph 31, that the Applicant had testified
that when
he had raised the disciplinary process in previous interviews, his
applications would inevitably be unsuccesful. The
arbitrator makes
further findings but the aforesaid are what is the nub of the
contentions. This Court agrees with the submissions
of Mr Bosch, who
appears for the First Respondent, that the rest of his findings are
not really relevant for purposes of the award
or this review.
Grounds
of review and evaluation
[16]
Applicant contends that, the award is reviewable on the basis that
the Commissioner committed gross irregularities in that he failed
to
make a finding on whether the Drakenstein Municipality (the erstwhile
employer) was permitted to proceed with the disciplinary
enquiry
after the Applicant’s contract had come to an end, the fact
that the arbitrator found it strange that no one asked
the Applicant
questions about his previous employment, that the arbitrator
continuously referred to the documents that appeared
in the bundle as
the union’s bundle, that the finding that the failure to fully
disclose was a deliberate and wilful act
or omission, the
arbitrator’s finding that it is inconceivable that the
empployer would not have contacted the erstwhile
employer was not
supported by the evidence, that the arbitrator made credibility
findings of Mr Paulse without him having given
evidence, that the
finding that Applicant’s appointment was due to his friendship
with Paulse was without foundation and
that the finding of guilt and
confirmation of the sanction of dismissal was not reasonable and not
based on the evidence before
him.
[17]
The First Respondent, on the other hand, contends that the award is
not reviewable and that the grounds raised by the Applicant
do not
constitute reviewable irregularities.
[18]
In assessing the conduct of the arbitrator, the Court is enjoined to
ask:
18.1
In terms of his or her duty to deal with the matter with the minimum
of legal formalities,
did the process that the arbitrator employ give
the parties a full opportunity to have their say in respect of the
dispute?
18.2
Did the arbitrator identify the dispute he was required to arbitrate
(this may in certain
cases only become clear after both parties have
led their evidence)?
18.3
Did the arbitrator understand the nature of the dispute he or she was
required to arbitrate?
18.4
Did he or she deal with the substantial merits of the dispute? and
18.5
Is
the arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?
[8]
[19]
Our
courts have repeatedly stated that in order to maintain the
distinction between review and appeal, an award of an arbitrator
will
only be set aside if both the reasons and the result are
unreasonable. In determining whether the result of an arbitrator’s
award is unreasonable, the Labour Court must broadly evaluate the
merits of the dispute and consider whether, if 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. The result will, however, be unreasonable if it is
entirely disconnected with the evidence, unsupported by any
evidence
and involves speculation by the arbitrator.
[9]
An award will no doubt be considered to be reasonable when there is a
material connection between the evidence and the result or,
put
differently, when the result is reasonably supported by some
evidence.
[20]
The
enquiry into the reasonableness of the decision arrived at by the
arbitrator requires an examination of the merits of the case.
This
task is informed by the standard review test in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[10]
,
as it was explained in
Herholdt
[11]
in the following terms:
‘…
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be reached
on the
evidence and other material properly before the arbitrator. On this
approach the reasoning of the arbitrator assumes less
importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside. The reasons are still
considered in order to
see how the arbitrator reached the result. That assists the court to
determine whether that result can reasonably
be reached by that
route. If not, however, the court must still consider whether, apart
from those reasons, the result is one a
reasonable decision maker
could reach in the light of the issues and the evidence.’
[21]
The
Court must also be mindful to avoid ‘judicial overzealousness’
in setting aside an award which does not coincide
with its own
views.
[12]
In other words, whether this Court differs with the outcome or the
finding of fact or law made by the arbitrator is not sufficient
for
the Court to interfere, something more is required for thus is the
dividing line between the Court’s powers on review
versus
appeal. It assists therefore to restate that where the result can
reasonably be reached by the route followed by the arbitrator,
the
Court cannot intervene. If not, however, the court must still
consider whether, apart from those reasons, the result is one
a
reasonable decision maker could reach in the light of the issues and
the evidence. In other words, whether the result reached
falls within
the so-called band of reasonableness. Differently put, whether the
outcome accords with the material properly before
the arbitrator.
[22]
Mr
Bosch referred to the decision by Sutherland JA in
Makuleni
v Standard Bank of South Africa Ltd and Others
[13]
that
puts the standard required aptly:
“
The
court asked to review a decision of a commissioner must not yield to
the seductive power of a lucid argument that the result
could be
different. The luxury of indulging in that temptation is reserved for
the court of appeal. At the heart of the exercise
is a fair reading
of the award, in the context of the body of evidence adduced and an
even-handed assessment of whether such conclusions
are untenable.
Only the conclusion is untenable is a review and setting aside
warranted.”
[23]
Further:
“
To
meet the review test, the result of the award has to be so egregious
that, as the test requires, no reasonable person could reach
such a
result.”
[14]
Are the
commissioner's credibility and probability' findings egregious? My
reading of the award is that the references by the commissioner
to
'credibility and probability elides reliability under that rubric, a
not uncommon feature the judgments of the courts, no less
than in
awards. The critical issue in his analysis is what the commissioner
found “acceptable evidence upon which he could
safely rely”.
The high points are addressed.”
[15]
[24]
And finally:
“
The
evaluation of factual disputes is hard work and different
triers-of-fact often have different assessments. The less coherent
the evidence, the more likely it is that there will be divergences in
the assessments. The degree of robustness which characterises
the
reality of CCMA arbitrations is exactly the rationale for subjecting
them to a review and not an appeal. The courts must be
cautious not
to undermine the legislative intent.”
[16]
Application
[25]
There is no doubt that both parties had the chance to have their say
in relation to the matter, the arbitrator correctly identified
the
dispute as determining whether the probabilities favoured the
evidence of the employer or the employee and the arbitrator
understood the nature of the dispute clearly, as is apparent from the
award, The applicant challenges the fact and disputes that
the
arbitrator dealt with the substantial merits of the dispute and
accordingly challenges that the decision is one that a reasonable
decision-maker could reasonably have arrived at.
[26]
In the Court’s view, it is apparent that the arbitrator was
acutely aware of his duties. He assessed the evidence before
him in
its totality; he considered the reliability and credibility of each
witness as well as the probabilities of their versions
.
Whether
this Court agrees with those findings or not, is not sufficient for
this Court to interfere. After all this is a review
and not an appeal
and the Court on review is not concerned with factual or legal
findings unless the outcome reached by the arbitrator
was not one
that could reasonably be reached on the evidence and other material
properly before the arbitrator.
[27]
The arbitrator found that the Applicant, because of the fact that he
had been unsuccesful in so many interviews before, knew that
if he
had disclosed the fact that he had been in a disciplinary process
before, he would likely not be succesful. The arbitrator
therefore
found that he had deliberately concealed the details of the charges.
[28]
If there are two competing constructions of the evidence that are
both plausible and reasonable, the arbitrator’s choice
of one
of them cannot give rise to a review. There is a material connection
between the evidence and the result, and the result
is reasonably
supported by the evidence. As such the award is reasonable.
Conclusion
[29]
It follows therefore that the application should be dismissed. The
most appropriate order as to costs is that both parties remain
responsible for their own costs.
Order
1.
Condonation is granted for the late filing of the application.
2.
The application is dismissed.
3.
Each party will pay their own costs.
C.
May
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr. E Geldenhuys, Macgregor Erasmus Attorneys
For
the first respondent:
C Bosch
Instructed
by:
Ms L Harker, Harker Attorneys, Oudtshoorn
[1]
Act
66 of 1995, as amended.
[2]
1962 (4) SA 531 (A).
[3]
2014 (2) SA 68
(CC)
at
paras 50 and 51
.
[4]
See:
SAMWU
obo Shongwe and Others v Moloi N.O. and Others
[2021]
5 BLLR 464
(LAC) at para 26.
[5]
City
of Johannesburg Metropolitan Municipality and Others v Independent
Municipal and Allied Trade Union and Others
(2017)
38 ILJ 2695 (LAC) at paras 55, 56 and 76.
[6]
Colett
v Commission for Conciliation, Mediation and Arbitration and Others
[2014]
6 BLLR 523
(LAC) at para 38.
[7]
Grootboom
(Id
fn 4) at para 23.
[8]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
(2014) 35 ILJ 943 (LAC) at para 20.
[9]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[2013] 11 BLLR 1074
(SCA) at paras 12 and 13.
[10]
[2007] 12 BLLR 1097 (CC).
[11]
Herholdt
at
para 12
[12]
Assmang
Limited (Assmang Chrome Dwarsriver Mine) v Commission for
Conciliation Mediation and Arbitration and Others
[2015] 6 BLLR 589
(LC) para 54.
[13]
(2023) 44 ILJ 1005 (LAC) at para 4.
[14]
Ibid at para 13.
[15]
Ibid at para 24
[16]
Ibid at paras 30 and 31.