THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C232/2024
In the matter between:
MANGAUNG METROPOLITAN MUNICIPALITY Applicant
and
MOTLOHI TSHEDISO SAMUEL RAMOSHEBI First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
DAVID PIETERSEN N.O. Third Respondent
Heard: 28 January 2026
This judgment was handed down electronically by circulation to the parties ’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 13
April 2026.
______________________________________________________________________
JUDGMENT
2
DE KOCK, AJ
Introduction
[1] This matter comes before the Labour Court as a review application in terms of
section 145 of the Labour Relations Act 66 of 1995 (“the LRA”). The Applicant,
Mangaung Metropolitan Municipality (“Mangaung”), seeks an order reviewing and
setting aside the arbitration award issued by the Third Respondent, Advocate
David Pietersen N.O. (“the Commissioner”), acting under the auspices of the
South African Local Government Bargaining Council (“the SALGBC”) on 15 May
2024 under case number FSD122305 (“the Award”). The arbitration award is
dated 13 May 2024 but on the last page of the award it is stated that the award
was signed on 15 May 2024. Nothing turns on this discrepancy, and this court
accepts that the award was signed on 15 May 2024.
[2] In the Award, the Commissioner found that Mangaung committed an unfair
labour practice against the First Respondent, Mr Motlohi Tshediso Samuel
Ramoshebi (“Ramoshebi”), in contravention of section 186(2)(b) of the LRA by
subjecting him to an unjustified and prolonged precautionary suspension. The
Commissioner ordered the immediate upliftment of the suspension and awarded
Ramoshebi compensation in the amount of R749, 394.16 as solatium for the
continued unfair suspension.
[3] The SALGBC filed a notice of filing of the record and has indicated it will abide by
the decision of this Court. The Commissioner takes no active part in the
proceedings, having been cited in his nominal capacity as the official who issued
the Award.
[4] Before turning to the substance of the review, I deal briefly with a condonation
application by Mangaung for the late filing of its Heads of Argument. The Heads
were delivered thirteen days after the prescribed deadline of 6 January 2026.
The delay is explained by the fact that the notice of s et down was served on a
municipal official at Mangaung’s principal place of business and not on its
3
attorneys of record, PH Attorneys, who had briefly withdrawn as attorneys of
record in December 2024 before re-appointing themselves in February 2025. The
attorneys became aware of the set -down date only when Kramer Weihmann
Incorporated, representing Ramoshebi, drew it to their attention on 26 November
2025. The First Respondent had consented to the receipt of the Heads in
January 2026. I am satisfied that the explanation is adequate, the delay was not
wilful, no prejudice accrues to Ramoshebi, and the int erests of justice favour
hearing the matter on its merits. Condonation is accordingly granted.
Background
[5] The relevant background facts are largely common cause. They are supported
throughout by the documentary record, which this Court has read in its entirety,
and by the common cause facts recorded in the pre- arbitration conference
minutes signed by both parties’ representatives.
[6] At all material times, Mangaung was under a National Cabinet Intervention
proclaimed by Government Notice No. 2044, published in Government Gazette
No. 46287 on 28 April 2022, signed by the then Minister of Finance, the
Honourable Enoch Godongwana (“the Government Notice”). The intervention
was effected in terms of sections 139(5)(a) and (c) of the Constitution of the
Republic of South Africa, 1996, read with section 146(3)(b) of the Local
Government: Municipal Finance Management Act 56 of 2003. In terms of the
Government Notice, a National Cabinet Representative (“NCR”) was installed
with oversight authority over all decisions made by delegated authority within the
Municipality. Clause 1.1(h) of the Government Notice requires all reports for
decision-making by any delegated authority , including the Municipal Council and
the Executive Mayor , to be processed by the Accounting Officer with the
concurrence of the NCR. Clause 1.1(q) directs the NCR to ensure and oversee
the execution by the Accounting Officer of functions under section 67(1)(h) of the
the execution by the Accounting Officer of functions under section 67(1)(h) of the
Local Government: Municipal Systems Act 32 of 2000, which expressly includes
disciplinary functions. Clause 1.1(r) requires the NCR to assist the Executive
4
Mayor and the Accounting Officer in the development of human resource
capacity. The NCR concurrence requirement therefore extends, on the plain
wording of the Government Notice, to all disciplinary decisions , including
decisions to place an employee on precautionary suspension.
[7] Ramoshebi was employed by Mangaung as General Manager: Human
Resources Management within the Directorate: Corporate Services since
1 September 2016. His gross annual remuneration was R1, 798,546.00
(R149,878.83 per month). His employment was governed by, among other
instruments, the Disciplinary Procedure Collective Agreement (“DPCA”)
concluded between the South African Local Government Association, the
Independent Municipal and Allied Trade Union (“IMATU”) and the South African
Municipal Workers Union.
[8] On 19 April 2022, an incident occurred at the Municipality’s offices. It is alleged
that Ramoshebi conducted himself in a rude, abusive, intimidatory and
aggressive manner towards the Head of Department of Metro Police,
Commissioner K. Kgamanyane, in the course of preventing the former Acting
City Manager, Mr Mzingisi Nkungwana, from entering the municipal offices , that
being the instruction of the former Executive Mayor, Councillor Siyonzana. The
incident was digitally recorded and broadcast on social and digital media.
[9] On 3 May 2022, Mangaung served Ramoshebi with a Notice of Intent:
Suspension in respect of the April 2022 incident. He submitted written
representations. Mangaung accepted those representations and took no further
disciplinary steps. He was neither suspended nor charged. It is clear that
Mangaung abandoned the April 2022 allegations entirely at that point.
[10] Approximately sixteen months later, on 4 September 2023, Mangaung served
Ramoshebi with a fresh Notice of Intent: Pre -Cautionary Suspension. This notice
bore no resemblance to its predecessor. The allegations were entirely different ;
they concerned his alleged failure to execute lawful administrative instructions
they concerned his alleged failure to execute lawful administrative instructions
relating to his day -to-day HR duties, including the review of human resource
5
policies, employment contracts, staff establishment documents, audit reports,
internal HR strategies, metro police application forms, and the Q -link contract.
Ramoshebi made oral representations on 11 September 2023 addressing the
September 2023 administrative allegations and not the April 2022 conduct.
[11] On 13 September 2023, the Suspension Determination was issued and signed
on behalf of the City Manager, witnessed by Mr Diratsagae Maoke. Ramoshebi
was placed on precautionary suspension from 14 September 2023 to
12 December 2023. The Suspension Determination cited four grounds: the
potential to jeopardise any investigation, to commit further acts of misconduct, to
be detrimental to the stability of the Municipality, and to damage or tamper with
evidence. The Suspension Determination bore no signature of, or concurrence
from, the NCR.
[12] On 9 November 2023, Mangaung served Ramoshebi with a Notice of
Misconduct: Charges containing four charges. Each charge related exclusively to
the events of 19 April 2022: Gross Insubordination, Bringing the Municipality into
Disrepute, Intimidation, and Insolence. Not a single charge concerned the
administrative dereliction alleged in the September 2023 suspension notice. The
presiding officer appointed was Mr Mbulelo Jafta. The hearing was postponed
twice, on 16 and again on 20 November 2023, before commencing on
12 December 2023. On that same date, the suspension was extended to
13 March 2024, without NCR concurrence.
[13] At the 12 December 2023 sitting, IMATU raised a point in limine challenging the
charges on the ground of undue delay. On 11 January 2024, Mr Jafta issued a
written in limine ruling of six pages. Applying the principle established in Bothma
v Els
1 that delay is not inherently unfair and must be assessed on a case-by-case
basis, Mr Jafta had regard to the factors propounded in Sanderson v Attorney -
General, Eastern Cape 2 and endorsed in Bothma v Els , considering holistically
General, Eastern Cape 2 and endorsed in Bothma v Els , considering holistically
the length of the delay from April 2022 to November 2023, far exceeding the
1 [2009] ZACC 27; 2010 (2) SA 622 (CC); 2010 (1) SACR 184 (CC); (2010) (1) BCLR 1 (CC).
2 [1997] ZACC 18; 1997 (12) BCLR 1675 (CC); 1998 (2) SA 38 (CC); 1998 (1) SACR 227 (CC).
6
three-month limit in clause 7.4 of the DPCA , the employer ’s inadequate
explanation, the absence of any dilatory conduct by Ramoshebi, the prejudice
occasioned, and the nature of the alleged offences. The ruling, drawing on
Stokwe v Member of the Executive Council: Department of Education, Eastern
Cape and Others
3 and further authorities, ordered that the charges against
Ramoshebi be dismissed and that his suspension be lifted immediately.
[14] Clause 8.5 of the DPCA provides, unam biguously, that the determination of the
presiding officer is final and binding on the employer and the employee, subject
only to remedies permitted in law and the DPCA. Mangaung neither complied
with the ruling nor applied to review it. On 15 January 2024, a Labour Relations
official emailed IMATU stating: “The Municipality is of the view that the Presiding
Officer has made an error and has instructed their Lawyers to review the ruling
on an urgent basis. The status quo therefore remains regarding the suspension
of both your members, they are thus not to report for duty.” No review was ever
launched.
[15] On 1 February 2024, Mangaung served Ramoshebi with a further Notice of
Misconduct: Charges containing seven charges (with one alternative). The
second charge sheet combined the same April 2022 conduct already dismissed
by Mr Jafta with entirely new allegations dating to 3 June 2021, namely gross
dishonesty, alternatively gross negligence, and financial misconduct under the
Municipal Finance Management Act 56 of 2003, all relating to the authorisation of
payments to 93 alleged ghost employees. A second presiding officer,
Dr Molefinyane Phera, was appointed. A third suspension extension was issued
on 15 March 2024, extending the suspension to 13 June 2024, again without
NCR concurrence. Dr Phera was subsequently also removed by the City
Manager, necessitating the appointment of yet a third presiding officer.
The Arbitration Proceedings
The Arbitration Proceedings
3 [2019] ZACC 3; (2019) 40 ILJ 773 (CC); 2019 (4) BCLR 506 (CC); [2019] 6 BLLR 524 (CC).
7
[16] Ramoshebi referred an unfair labour practice dispute to the SALGBC on
19 December 2023. Conciliation on 19 January 2024 failed and a certificate of
non-resolution was issued. The arbitration was conducted in two sittings on
26 March and 6 May 2024 at IMATU’s offices in Bloemfontein, with both parties
legally represented throughout. Ramoshebi called three witnesses: himself,
Mr Tankiso Mea (former City Manager) and Ms Denise Retsinas (IMATU’s Senior
Labour Relations Officer). Mangaung called one witness: Mr Diratsagae Maoke.
[17] On 2 May 2024, four days before the second sitting, Mangaung delivered a
recusal application against the Commissioner. The basis was that the
Commissioner had previously issued an award in a related matter (the “Motheke
matter”) involving Mangaung and IMATU on essentially the same DPCA issues,
and that a reasonable objective person would apprehend that he might not bring
an impartial mind to the present dispute. At the commencement of the second
sitting, the Commissioner dealt with the condonation applicati on for the late filing
of the recusal application. Mangaung’s representative confirmed the delay was
caused by a “change in legal strategy,” described it as “excessive” on the
Municipality’s own version, and conceded that the Commissioner “was never
biased in this case.” The Commissioner refused condonation and the arbitration
proceeded. The Award was issued on 15 May 2024.
The Award
[18] The Commissioner identified three issues for determination: whether Mangaung
had waived its right to institute disciplinary proceedings against Ramoshebi;
whether Mangaung had contravened the DPCA; and whether Mangaung had
committed an unfair labour practice within the meaning of section 186(2)(b) of the
LRA.
[19] On waiver, the Commissioner found that Mangaung accepted Ramoshebi’s
May 2022 representations and abandoned the April 2022 allegations. The
September 2023 suspension notice concerned entirely different administrative
September 2023 suspension notice concerned entirely different administrative
conduct and bore no connection to the subsequent charge sheet, which charged
8
only the April 2022 conduct. The Commissioner found that Mangaung had
fabricated the September 2023 allegations as a pretext to reopen the stale 2022
matter, conduct he characterised as contra bonos mores and an abuse of power
and process.
[20] On the contraventions of the DPCA, the Commissioner made the following
findings. First, no evidence was led to justify the suspension under clause 16.1 of
the DPCA on the grounds of jeopardising an investigation, interfering with
witnesses, or committing further misconduct ; “nothing whatsoever” was
presented in that regard. Second, the suspension notices were not signed with
NCR concurrence as required by the Government Notice, rendering the
suspension void ab initio. Third, Mangaung’s failure to comply wit h the in limine
ruling of 11 January 2024 violated clause 8.5 of the DPCA. Fourth, the re -
charging of Ramoshebi on 1 February 2024 with the same charges dismissed by
the chairperson violated clause 8.6, which prohibits re- charging for the same
alleged misconduct. Fifth, the third suspension extension of 15 March 2024
violated clause 16.4 in the absence of any justification.
[21] The Commissioner ordered that Mangaung’s conduct be declared an unfair
labour practice, that the suspension be lifted with immediate effect, and that
Mangaung pay Ramoshebi compensation of R749, 394.16, being five months’
remuneration at R149, 878.83 per month, as solatium for the continued unfair
suspension.
Grounds of Review
[22] Mangaung identifies four grounds of review:
22.1 The Commissioner committed a gross irregularity and misconceived the
nature of the enquiry in that he determined the issue of waiver , a doctrine
said to be applicable only to dismissal disputes , in the context of an unfair
labour practice dispute concerning suspension.
9
22.2 The Commissioner committed a gross irregularity and/or material error of
law in the determination of the recusal application, in that he refused to
engage with the merits thereof and determined it solely on the basis of a
condonation application, contrary to the principle that a recusal application
may be brought at any stage.
22.3 The Commissioner erred in finding that Mangaung committed an unfair
labour practice by ignoring relevant evidence, specifically the justification
for the extension of the suspension under clause 16.4 of the DPCA and
the relevance of the February 2024 charges to Ramoshebi’s continued
presence in the workplace.
22.4 The Commissioner erred in finding the suspension void ab initio, having
misconstrued the Government Notice and conflated it with the in limine
ruling on delay.
[23] Ramoshebi opposes the review application in its entirety. He contends that it is
conceptually flawed as a disguised appeal, that all four grounds are without
merit, and that the Award, viewed holistically, is one that a reasonable decision-
maker could have reached on the evidence. He seeks dismissal with costs.
Review Test
[24] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 4, the
Constitutional Court held that the reasonableness standard should suffuse
section 145 of the LRA and that the threshold test is: “… Is the decision reached
by the commissioner one that a reasonable decision maker could not reach?…”
In Herholdt v Nedbank Ltd 5 the Court applied this reasonableness consideration
as follows:
“In summary, the position regarding the review of CCMA awards is
this: A review of a CCMA award is permissible if the defect in the
4 [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2)
BCLR 158 (CC) at para 110.
5 [2013] ZASCA 97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA) at
para 25.
10
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 one
that a reasonable arbitrator could not reach on all the material that
was before the arbitrator. 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.”
[25] This test has been applied as a two- stage review enquiry. First, the review
applicant must establish that a failure or error on the part of the arbitrator exists.
If this cannot be shown, that is the end of the matter. Second, if a failure or error
is shown to exist, the applicant must further demonstrate that the outcome
arrived at by the arbitrator was unreasonable. If the outcome is nonetheless
reasonable, despite the error, that is equally the end of the review application. In
short, the error or failure must affect the reasonableness of the outcome to the
extent of rendering it unreasonable.
[26] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
6 (Gold Fields ) the Labour
Appeal Court (“LAC”) explained that the review enquiry is holistic and result -
based. A fragmented, piecemeal analysis of individual grounds of review defeats
review as a process and assumes the character of an appeal. The failure to have
regard to material facts must actually defeat the constitutional imperative that the
award be rational and reasonable; there is no room for conjecture and
guesswork.
6 [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para 21.
11
[27] In Head of the Department of Education v Mofokeng and Others 7 (Mofokeng) the
LAC provided the following exposition:
“[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 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 hypothesi be material to the determination of the dispute. A
material error of this order would point to at least a prima facie
unreasonable result… Provided the right question was asked and
answered by the arbitrator, a wrong answer will not necessarily be
unreasonable.”
[28] The court will now proceed to consider the review application against these
principles.
Evaluation of Grounds of Review
[29] A preliminary observation is required. Mangaung invites this Court to dissect the
Award into four discrete fragments and to evaluate each independently. This is
precisely the piecemeal approach that Gold Fields identifies as impermissible.
The question is not whether any isolated strand of the Commissioner’s reasoning
is contestable in the abstract. The question is whether the Award as a whole,
read against the totality of the evidence and the documents in the record, is one
that no reasonable decision-maker could have reached. This court must bear that
overriding principle in mind throughout.
7 [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC) at para 33.
12
[30] The court turns to the first ground. Mangaung submits that the doctrine of waiver
has no application in an unfair labour practice dispute concerning suspension.
This proposition finds no support in the text of the LRA or in the authorities. The
doctrine applies broadly across employment and contractual law: National Union
of Metal Workers of S outh Africa v Intervale (Pty) Ltd and Others
8 and
Moroenyane v Station Commander of the South African Police Services -
Vanderbijlpark9. There is no principled basis to confine it to dismissal
proceedings.
[31] What is determinative on this ground is that waiver was an agreed dispute issue,
expressly recorded in the pre- arbitration conference minutes signed by both
parties’ representatives. Mangaung placed the question before the
Commissioner and invited him to determine it. It cannot now allege that he
exceeded his jurisdiction by answering the question put to him. A commissioner
does not exceed his powers by determining an issue expressly submitted to him
by the parties.
[32] In any event, even if the Commissioner erred in his approach to waiver , which
this court d oes not accept, Mangaung has not demonstrated that this error had
any distorting effect on the outcome of the Award within the meaning of
Mofokeng. The Award does not stand or fall on the waiver finding alone. The
Commissioner’s findings on the multiple independent DPCA breaches and the
void ab initio determination each independently sustain the conclusion of
unfairness. Even if the waiver finding were excised entirely from the Award, the
DPCA violations, each independently dispositive, would sustain the unfair labour
practice finding in full. The first ground fails.
[33] The second ground concerns the Commissioner’s handling of the recusal
application. Mangaung relies on Bernert v ABSA Bank Ltd
10 (Bernert) for the
proposition that a delay in bringing a recusal application does not amount to
proposition that a delay in bringing a recusal application does not amount to
8 [2014] ZACC 35; 2015 (2) BCLR 182 (CC); 2015 3 BLLR 205 (CC); (2015) 36 ILJ 363 (CC).
9 [2016] ZALCJHB 330.
10 [2010] ZACC 28; (2011) 4 BCLR 329 (CC); 2011 (3) SA 92 (CC).
13
acquiescence and that the controlling principle is the interests of justice. This
court does not find that Bernert assists this ground of review. The Constitutional
Court, at paragraph [71], found that it was not open to the applicant to wait for the
outcome of the appeal before pursuing his complaint of bias. The Court held
further that it is highly desirable, if extra costs, delay and inconvenience are to be
avoided, that complaints of this nature be raised at the earliest possible stage. In
essence, the Court found that the conduct of the applicant is simply inconsistent
with a reasonable apprehension of bias.
[34] The late request for a recusal of the Commissioner was unacceptable. The
Commissioner’s characterisation of the fourteen-day rule in the SALGBC’s rules
as a jurisdictional bar was, with respect, imprecise. The better analysis is that
lateness is a factor to be weighed in the interests of justice, not a jurisdictional
terminus. That limited concession does not, however, take Mangaung’s case
further. Even on the assumption that the Commissioner erred in his procedural
characterisation, his substantive conclusion that the recusal application had no
prospects of success is amply supported by the record. Mangaung’s
representative described the delay as caused by a “change in legal strategy” and
conceded that the Commissioner “was never biased in this case.” These
concessions are fatal to any genuine claim of apprehension of bias.
[35] The threshold for establishing a reasonable apprehension of bias is demanding,
as confirmed in President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
11 and in Bernert itself. The mere fact
that a commissioner has previously decided a similar dispute on comparable
facts between the same parties does not, without more, ground a reasonable
apprehension of bias. It is further well established that a flawed procedural
apprehension of bias. It is further well established that a flawed procedural
handling of a recusal application does not in itself vitiate an award; the applicant
must demonstrate that the alleged bias actually tainted the outcome. Mangaung
has further failed to demonstrate that the Commissioner’s handling of the recusal
11 [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC).
14
application had any distorting effect on the outcome of the Award. The second
ground accordingly fails.
[36] The third ground alleges that the Commissioner ignored relevant evidence. This
ground is not well taken. Mangaung has not identified, with any particularity,
which specific evidence was ignored. The formulation is no more than a
restatement of its disagreement with the Commissioner’s evaluation of the
evidence, which is the hallmark of an appeal, not a review.
[37] The Commissioner’s finding that “nothing whatsoever” was provided to justify the
suspension under clause 16.1 of the DPCA is firmly supported by the record. A
review court does not re- weigh evidence; the applicant must identify specific
material evidence that was ignored and demonstrate its distorting effect on the
outcome, as required by Gold Fields . Mangaung’s own witness, Mr Maoke,
conceded under cross -examination that no formal investigation was conducted;
that he could not explain the basis for extendi ng the suspension; and that the
charges were unrelated to the suspension notice. An employer who dismantles
the evidentiary foundation for its own conduct through its own witness cannot
credibly allege on review that the commissioner ignored evidence. The third
ground fails.
[38] In any event, even if Mangaung ’s interpretation of clause 16.4 that a suspension
may be extended without limit once a disciplinary hearing has commenced were
accepted, which this court does not find it necessary to determine, the clause
16.4 finding is one of five independent DPCA violations identified by the
Commissioner. The remaining four, the absence of evidentiary justification under
clause 16.1, the void ab initio suspension, the defiance of the binding ruling
under clause 8.5, and the unlawful re- charging under clause 8.6 each
independently sustain the unfair labour practice finding. The excision of the
clause 16.4 finding would not affect the outcome.
clause 16.4 finding would not affect the outcome.
[39] The fourth ground challenges the void ab initio finding. Mangaung contends that
the Government Notice does not specifically require NCR concurrence for
15
precautionary suspensions. This contention cannot withstand scrutiny of the
Government Notice itself. Clauses 1.1(h), (q) and (r) read together expressly
extend the NCR’s oversight mandate to disciplinary functions under
section 67(1)(h) of the Municipal Systems Act , which includes the suspension of
employees. The suspension of Ramoshebi was a decision made by delegated
authority within Mangaung. It required NCR concurrence. The NCR concurrence
requirement is not merely procedural in nature; it is jurisdictional, such that any
suspension decision taken without it is void from the outset and incapable of
subsequent ratification. No NCR signature appears on any of the suspension
notices or on the Suspension Determination. The factual foundation for the void
ab initio finding is unassailable.
[40] Mangaung’s counter -interpretation that clause 1.1(q) is merely supervisory and
that section 67(1)(h) concerns systems development rather than individual
decisions does not survive scrutiny of clause 1.1(h), which Mangaung does not
address. Clause 1.1(h) expressly requires all reports for decision- making by any
delegated authority to be processed by the Accounting Officer with the
concurrence of the NCR. A precautionary suspension of a senior municipal
manager is precisely such a decision made by delegated authority. To read
clause 1.1(q) in isolation, as Mangaung invites, would render clause 1.1(h)
redundant, a result that no proper interpretation of the Government Notice can
support. The clauses are complementary, not competing.
[41] The question whether a commissioner has jurisdiction to determine the validity of
an employer decision incidental to a main unfair labour practice dispute is
answered in the affirmative by Cook4Life CC v Commission for Conciliation,
Mediation and Arbitration and Others
12. The Commissioner was entitled to make
this finding. Moreover, cross -examination of Mr Maoke established that the
this finding. Moreover, cross -examination of Mr Maoke established that the
person who signed the original suspension notice was not the Acting City
Manager as Mangaung claimed, but Advocate Mpangane, the Acting HOD who
was an official who lacked the authority to sign suspension notices under any
12 [2013] ZALCJHB 10; (2013) 34 ILJ 2018 (LC).
16
version of the applicable delegations. Mangaung tendered no delegation
documents to rebut this. The void ab initio finding thus rests on two independent
and converging foundations. The fourth ground fails.
[42] Having regard to the totality of the evidence, the Award is one that a reasonable
decision-maker could have reached. On the evidence in this record, it is difficult
to conceive of a different outcome. Mangaung abandoned disciplinary
proceedings against Ramoshebi in 2022, resurrected them sixteen months later
under different allegations, issued a suspension notice bearing no connection to
the charges ultimately brought, allowed those charges to be dismissed by a
binding ruling it then defied, issued further charges and extensions without NCR
concurrence, and throughout could offer no coherent justification through its own
witness. The Commissioner identified the right questions, addressed the
substantial merits of the dispute, and arrived at an outcome rationally and firmly
connected to the evidence before him. The review application is without merit.
Conclusion
[43] For the reasons set out above, all four grounds of review fail. The Award is
reasonable and falls well within the band of decisions open to a reasonable
decision-maker. The review application stands to be dismissed.
Costs
[44] This Court considered the provisions of section 162 of the LRA and finds that it is
in the interests of law and fairness to make a costs order in favour of Ramoshebi.
Both parties were legally represented. The primary documents in the record
plainly supported the Commissioner’s findings before this review was launched.
Mangaung’s own witness dismantled its case in cross -examination. The
launching and prosecution of the review application, in the face of that record,
constitutes an improvident use of public resources and has subjected Ramoshebi
to the unnecessary expense of opposing proceedings that were, at best, fragile
to the unnecessary expense of opposing proceedings that were, at best, fragile
from the outset. The pattern of conduct observable throughout, i.e., the deliberate
17
defiance of a binding ruling, the serial replacement of presiding officers, the
recycling of previously abandoned and dismissed charges, and the repeated
issuing of suspension notices without NCR authority , reflects an institutional
disregard for lawful process that this Court is obliged to mark. This is not a case
of mere legal error; it reflects a sustained institutional pattern of non- compliance
that goes beyond the bounds of legitimate review litigation. The Applicant is
ordered to pay Ramoshebi’s costs.
Order
[45] In the premises the following order is made:
1. Condonation for the late filing of the Applicant’s Heads of Argument is
granted.
2. The review application is dismissed.
3. The Applicant is ordered to comply with the Award within 14 days from the
date of receipt of this judgment. The compensation of R749,394.16
attracts interest at the prescribed legal rate from 31 May 2024.
4. The Applicant is ordered to pay the First Respondent’s costs.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv Z Ngwenya
Instructed by: PH Attorneys (T Mokwayi)
For the First Respondent: Adv T du Preez
18
Instructed by: Kramer Weihmann Incorporated (CA Kramer),
Bloemfontein