THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 644/21
In the matter between:
MODJODJI BERNARD TEASE Applicant
and
NOMUSA MBHELE N.O. First Respondent
MOTOR INDUSTRY BARGAINING COUNCIL
DISPUTE RESOLUTION CENTRE Second Respondent
MACCARTHY LTD T/A BIDVEST
MACCARTHY TOYOTA BRUMS Third Respondent
Heard: 24 February 2026
Delivered: 30 March 2026
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JUDGMENT
___________________________________________________________________
NAIDOO, AJ
Introduction
[1] The applicant, Mr Modjodji Bernard Tease (Modjodji), seeks to review and set
aside an award dated 21 January 2021, wherein the first respondent
(1) Reportable: NO
(2) Of interest to other Judges: Yes/No
(3) Revised
Signature Date
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(arbitrator) found his dismissal substantively fair.
[2] Modjodji’s review application was filed outside the prescribed time frame. He
has, however, offered a reasonable explanation for the full period of his delay ,
and having regard to the interest of justice, it would be appropriate for this
Court to grant condonation.
Background
[3] Modjodji was dismissed for assaulting a female co- worker, adopting a
threatening attitude towards the same co- worker, and bringing the third
respondent’s name into disrepute.
[4] At arbitration, Modjodji denied assaulting his co- worker and challenged the
third respondent’s version that his co-worker sought medical assistance after
the alleged assault, opened a case of assault at the police station, as well as
the version of another employee who witnessed the alleged assault.
[5] Despite these challenges, the first respondent accepted the above evidence
and found, on a balance of probabilities, that Modjodji was guilty of the
charges he was dismissed for, following which, the arbitrator found his
dismissal was substantively fair.
Grounds on Review
[6] On review, Modjodji submits that the arbitrator erred in that she did not advise
him of his right to;
6.1 Apply for legal representation at arbitration.
6.2 The right to apply for a witness to be subpoenaed, and
6.3 The right to request the arbitrator conduct an inspection in loco.
[7] Modjodji argued that had the arbitrator explained these rights, he would have
sought to subpoena a colleague, who, according to Modjodji, witnessed the
events on the day and would have testified in support of his version.
Additionally, Modjodji would have requested the arbitrator inspect the third
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respondent’s premises to assess whether or not the cameras, which,
according to Modjodji, would have captured the incident and exonerated him,
were inactive as alleged by the third respondent.
Analysis
[8] Modjodji’s grounds on review fall within the ambit of s145(2)(a)(ii) of the
Labour Relations Act1.
[9] If an applicant can establish that an arbitrator conducted the process in a
manner that deprived the applicant of their right to a fair hearing, that in itself
would generally be sufficient to set aside the award on review, without this
Court engaging in the reasonableness test.
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[10] However, in casu, Modjodji’s entire review application was underpinned by his
version that he did not assault his co-worker. Calling a witness and requesting
an inspection in loco would have both been undertaken to establish Modjodji’s
version.
[11] In following this route, Modjodji overlooks the fact that in her award, and in
relation to the second and third charges he was dismissed for, the arbitrator
records the following;
‘The Applicant did not dispute Ms Coetzer’s evidence that he shouted at her,
threatened and that the incident took place in the presence of customers. I
find that the Respondent has proven on a balance of probabilities that the
Applicant is guilty of the charges.’
[12] Modjodji’s representative confirmed that the above specific finding was not
challenged on review and that the review application only addressed the first
charge Modjodji was dismissed for.
[13] For this reason, there is no need for this Court to assess and make any
finding in respect of Modjodji’s grounds on review. Even if this Court were to
find that the arbitrator erred in failing to advise Modjodji of certain of his rights,
1 Act 66 of 1995, as amended.
2 Baur Research CC v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ
1528 (LC).
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the Court must nevertheless accept that Modjodji was guilty of the remaining
charges for which he was dismissed, a finding which has not been challenged
on review. To reiterate, it was never Modjodji’s case in his review application
that the witness he would have called or the footage he avers the third
respondent is withholding, would have exonerated him in relation to the
second and third charges he was dismissed for.
Order
1. The late filing of the applicant’s review application is condoned.
2. The review application is dismissed.
3. There is no order as to costs.
______________________
M Naidoo
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv. Justice Mmaolai
Instructed by: Mawezankogatsi Attorneys
For the Respondent: Av. Lee Masuku
Instructed by: Cliff Dekker Hofmeyer Inc