IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR628/22
In the matter between:
PHINDILE RAYMOND MSAULE Applicant
and
UNIVERSITY OF LIMPOPO First Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION (CCMA) Second Respondent
COMMISSIONER MAFA-CHALI N.O Third Respondent
Heard: 23 November 2025
Delivered: 17 April 2026
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TSHISEVHE, AJ
Introduction
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
2
[1] This is an application for review in terms of Section 145(1) (a) of the Labour
Relations Act1 (LRA).
[2] This is an application to review and set aside the arbitration award made
under case number LP6302-21 dated 10 February 2022 in terms of which the
Third Respondent found that the conduct of the First Respondent did not
constitute an unfair labour practice.
Material background facts
[3] The Applicant ( Phindile Raymond Msaule) was employed by the First
Respondent since 1 August 2013, occupying the position of Lecturer.
[4] On 10 October 2021, Prof essor SL Rapulana, the Head of Department (the
HOD) of Jurisprudence, Legal Pluralism, Criminal Law and Procedure, as a
person responsible for module allocation, advised all staff members of module
allocations in his department.
[5] The HOD allocated General Principles of Criminal (CJUA021) to the Applicant
and himself as co-lecturers of the module.
[6] On 16 February 2021, the Applicant wrote an email to the HOD asking him
what aspects of the module would he (the HOD) be lecturing on since he had
allocated himself the module as a co-lecturer.
[7] The HOD advised the Applicant that he will only intervene when necessary
and contribute when it comes to assessment papers ; however, the Applicant
will remain the primary facilitator.
[8] The HOD further indicated that the module has previously been flagged due
to poor performance by the students , and that is the reason behind the
intervention, so that he can oversee it.
[9] On 19 February 2021, the Applicant then reported the matter to the Director of
the School, Adv . Rapatsa, who is also the direct supervisor of Prof essor
1 Act 66 of 1995, as amended.
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Rapulana, asking that he be removed from lecturing the module and Adv
Rapatsa indicated that there is nothing wrong with the intervention.
[10] On 28 February 2021, the Applicant reported the matter to the Dean,
Professor O. Sibanda who according to the Applicant he did not respond
despite several reminders.
[11] On 16 March 2021, the HOD asked the Applicant to provide him with
complete assessment papers for the module, but the Applicant indicated that
he would not participate in the activities of the module because he had
escalated his grievance to the Dean.
[12] On 25 March 2021, Professor Rapulana provided the Applicant with a
summative assessment and accompanying memorandum , also ask ing the
Applicant to make the necessary changes should he deem it appropriate.
[13] Professor Rapulana also asked the Applicant to provide him with the
supplementary exam so that he could make inputs, but nothing happened.
[14] The Applicant at the hearing indicated that he cannot be charged because he
lodged a grievance, and as per the disciplinary code, he cannot be charged
on the same facts, as the code does not permit.
[15] The Applicant requested a postponement so that he could call Prof . Sibanda
and Adv. Rapatsa as witnesses to demonstrate that he lodged a grievance, as
he is of the view that he cannot be charged if he lodged a grievance on the
same facts.
[16] It was alleged that he refused to take a reasonable instruction from his
supervisor and neglected his duties.
[17] The Applicant disputed all the allegations ; however, he was summoned to a
hearing where he was found guilty of all the charges and a sanction of 2
months suspension without pay was meted out, which was increased to 3
months suspension without pay, including a final written warning on appeal.
[18] The Third Respondent dismissed the Application, citing that it lacked merit.
4
[19] Aggrieved by the dismissal, the Applicant referred a dispute of unfair
dismissal to the Second Respondent with the Third Respondent as an
arbitrator.
The arbitration award
[20] The Third Respondent in her arbitration award set out the evidence adduced
by the witnesses, which is well documented therein and therefore, there is no
need to burden this judgment with a repetition of same.
[21] In her analysis of the evidence and arguments, the arbitrator identified the
issue to be decided, which was whether the First Respondent committed acts
of unfair labour practice against the Applicant in terms of section 186 (2)(b) of
the LRA.
[22] The Third Respondent found that the Applicant failed to comply with a
reasonable and lawful instruction from his supervisor and the sanction was
appropriate under the circumstances.
[23] The Third Respondent found that the Applicant did not lodge a grievance in
terms of the grievance policy.
[24] The Third Respondent further found that there are no procedural defects in
the disciplinary hearing.
[25] The Third Respondent found that the Applicant failed to discharge his onus of
proof that the employer committed acts of labour practice against him , and
she dismissed the claim.
The Issue to be decided
[26] I am required to determine whether the finding of the Third Respondent that
the Applicant failed to discharge his onus of proof on his allegations that the
First Respondent committed acts of unfair labour practice against him is a
reasonable one.
If I find that it was unreasonable within the totality of evidence before her, I am
required to interfere with such a decision and substitute it with an appropriate
5
one. On the other hand, if I find it to have been a reasonable decision, that will
be the end of the matter.
Grounds for review
[27] The Applicant’s grounds of review are essentially that the arbitrator:
27.1. Mischaracterised the issues before her, she was also selective in her
approach to evidence and in many respects , her reasoning does not
accord with the evidence led at the arbitration hearing.
27.2. That he challenged both the fairness of the verdict and the sanction,
however, the arbitrator mischaracterised the issues and only dealt with
the sanction.
27.3. The arbitrator found that he was charged with gross insubordination,
whereas the charge is only insubordination , and this error influenced
her determination of the sanction.
27.4. The arbitrator was wrong in finding that he did not lodge a grievance
against his supervisor.
27.5. That the arbitrator’s finding that the Applicant was not entitled to a
postponement was wrong, as it was the only way he could prove that
he lodged a grievance. Therefore, she failed to determine if the
Applicant was given a fair opportunity to prove that he lodged a
grievance.
27.6. That the arbitrator accepted the evidence of the First Respondent
witnesses, which was full of contradictions.
27.7. That the arbitrator failed to consider that the grievance policy only
requires a formal grievance at stage (4) , where he ought to have
completed a grievance form and just concluded that there was no
grievance lodged, but merely an employment dissatisfaction query.
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27.8. That the fact that he sent several emails to Prof essor Rapulana, Adv.
Rapatsa and Prof essor Sibanda should be considered as a grievance
in an informal stage, as defined by the grievance policy.
27.9. That the Applicant ought to have known that there is a difference
between a query and a grievance, since he is a law lecturer.
27.10. That the arbitrator was wrong in concluding that he did not lodge a
grievance because Prof essor Sibanda regarded his emails as a
grievance and he promised to address same. She was also wrong in
concluding that the issue of calling the query a grievance was an after
thought.
27.11. That the instruction of Professor Rapulana was unreasonable, as he
ought to have allocated the module to him alone or to both of them ,
where he was to contribute to teaching.
27.12. That the arbitrator ignored his clean record until he was found guilty.
[28] On the other hand, the First Respondent submitted that the award is
reasonable and the Third Respondent did not commit any reviewable
irregularity, as a result the application be dismissed.
Test for Review
[29] 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 .
2 The C ourt at para graph 110 held that the test for review is
whether the decision reached by the Commissioner is one that a reasonable
decision maker could not reach in relation to the totality of evidence before
him or her.
3
2 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC) at para 110.
3 In CUSA v Tao Ying Metal Industries and others [2009] 1 BLLR 1 (CC); [2008] ZACC 15 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
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 and Another v Rustenburg Platinum Mines Ltd
2008 (2) SA 24 (CC).
7
[30] The test that the Labour Court is required to apply in a review of an
arbitrator’s award is, “is the decision reached by the commissioner one that a
reasonable decision-maker could not reach within the totality of evidence at
his disposal?”.
[31] 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
evidence before him.
[32] As the Court rightly pointed out in t he National Commissioner of the South
African Police Service v Myers and Others:4
‘whatever one’s personal view may be, the test as set out in Sidumo... is
whether or not the arbitrator’s decision that dismissal is an appropriate
sanction is a decision that a reasonable decision-maker could reach.’
[33] Pursuant to the above case law, in order for this Court to interfere with the
decision of the arbitrator, I must be convinced that such decision is
unreasonable based on the totality of material evidence before her. If such
decision falls outside the band of reasonableness, this Court would therefore
be left with no option but to correct it.
[34] In Telcordia Technologies Inc v Telkom SA Ltd,
5 the Supreme Court of Appeal
(SCA) held that:
‘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.’
4 (Myers) [2012] ZALAC 4; [2012] ZALAC 4 at paras 103-104.
5 2007 (3) SA 266 SCA; [2007] 2 All SA 243 (SCA) at paras 52-78 and 85-88.
8
[35] The fact that the arbitrator erroneously referred to the charge as gross
insubordination instead of an ordinary insubordination does not negate her
findings, more so considering that there is still another charge where the
Applicant was found guilty of neglecting his duties.
[36] In Gold Fields Mining S outh Africa (Pty) Ltd (Kloof Gold Mine) v C ommission
for Conciliation, Mediation and A rbitration and Others
6, the Court rejected a
piecemeal or fragmented approach to reviews, where each factor that the
commissioner failed to consider is analysed individually and independently,
for principally two reasons. The first is that it “assumes the form of an appeal”
and not a review, and the second is that it is mandatory for the reviewing court
to consider the totality of the evidence and then decide whether the decision
made by the arbitrator is one that a reasonable decision- maker could make.
To evaluate every factor individually and independently, it observed, is to
defeat the requirements in s 138 of the Labour Relations Act
7 in terms of
which the arbitrator is required to deal with the substantial merits of the
dispute between the parties with the minimum of legal formalities, albeit
expeditiously and fairly.In the matter in casu, that is not the case, the decision
of the First Respondent falls within the ambit of reasonableness and
therefore, there is no need to interfere with it.
[37] On this approach, therefore, the failure of a commissioner “to mention a
material fact in his or her award”, or “to deal in his/her award in some way with
an issue which has some material bearing on the issue in dispute” , or
“commits an error in respect of the evaluation or consideration of facts
presented at the arbitration”
8 would not, in itself, render the award reviewable.
Having considered the evidence at arbitration, the Court held “….I cannot
accept that the arbitrator’s decision fell outside of the band of decisions to
which reasonable people could come”.9
which reasonable people could come”.9
6 [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC).
7 Act 66 of 1995, as amended.
8 2008 (2) SA 24 (CC) at para 110.
9 National Commissioner of the South African Police Service v Myers and Others (CA 4/09)
(unreported) [2012] ZALAC 4; (2012) 33 ILJ 1417 (LAC), Labour Appeal Court, Cape Town (2 March
2012) at paras 103-104, (Myers).
9
[38] It is my considered view that arbitrators are human, they may also commit
errors or irregularity, however, in order for the said error or irregularity to
constitute reviewable conduct, such error has to be material.
[39] The critical approach to reviews that turn on 'unreasonableness' was
articulated by Murphy AJA in Head of the Department of Education v
Mofokeng and Others10 at paragraphs 30 to 33. The significant passages are
emphasised:
‘[30] 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.
However, the Supreme Court of Appeal ( “the SCA”) in Herholdt v
Nedbank Ltd11 and this court in Gold Fields Mining S outh Africa (Pty)
Ltd (Kloof Gold Mine) v C CMA and others12 have held that before
such an irregularity will result in the setting aside of the award, it must,
in addition, reveal a misconception of the true enquiry or result in an
unreasonable outcome.
[31] The determination of whether a decision is unreasonable in its result is
an exercise inherently dependent on variable considerations and
circumstantial factors. A finding of unreasonableness usually implies
that some other ground is present, either latently or comprising
manifest unlawfulness. Accordingly, the process of judicial review on
grounds of unreasonableness often entails examination of inter -
related questions of rationality, lawfulness and proportionality,
pertaining to the purpose, basis, reasoning or effect of the decision,
corresponding to the scrutiny envisioned in the distinctive review
grounds developed casuistically at common law, now codified and
mostly specified in section 6 of the Promotion of Administrative Justice
Act (“PAJA”); such as failing to apply the mind, taking into account
irrelevant considerations, ignoring relevant considerations, acting for
an ulterior purpose, in bad faith, arbitrarily or capriciously, etc. The
court must nonetheless still consider whether , apart from the flawed
court must nonetheless still consider whether , apart from the flawed
reasons of or any irregularity by the arbitrator, the result could be
reasonably reached in the light of the issues and the evidence.
10 [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC).
11 (2013) 34 ILJ 2795 (SCA); 2013 (6) SA 224 (SCA).
12 [2014] 1 BLLR 20 (LAC); [2013] ZALAC 28.
10
Moreover, judges of the Labour Court should keep in mind that it is not
only the reasonableness of the outcome which is subject to scrutiny.
As the SCA held in Herholdt, the arbitrator must not misconceive the
inquiry or undertake the inquiry in a misconceived manner. There
must be a fair trial of the issues.
[32] However, sight may not be lost of the intention of the legislature to
restrict the scope of review when it enacted s ection 145 of the LRA,
confining review to “defects ” as defined in section 145(2) being
misconduct, gross irregularity, exceeding powers and improperly
obtaining the award. Review is not permissible on the same grounds
that apply under PAJA. 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 enquiry or a dec ision
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
or may not produce an unreasonable outcome or provide a compelling
indication that the arbitrator misconceived the i nquiry. 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
effect it may or may not have had upon the arbitrator's conception of
the i nquiry, 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 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
11
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.
By the same token, 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.’
Analysis of submissions
[40] The Sidumo test, however, justify 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.
[41] The Applicant’s verbosity in the grounds for review made it difficult to
comprehend, more especially considering the test for review. This is not to
say that the grounds for review have to be laconic but just succinct and well
thought.
[42] The Applicant in this matter did not challenge the charge where he is alleged
to have neglected his duties and only challenged the insubordination charge.
[43] I find it abhorrent that a lecturer can refuse to carry out his lecturing duties to
the detriment of students , well knowing that “ time wasted never regain” and
therefore the finding of the arbitrator cannot be out of kilter in that regard.
[44] The Applicant refused to carry out an instruction, and on the other hand, he
expects not to be punished for that.
[45] Counsel for the First Respondent argued that the Applicant refused to carry
out his duties for a period of three (3) months, being February, March and
April 2021.
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[46] I am convinced that the finding of the arbitrator is a reasonable one which a
reasonable decision maker could have arrived at within the totality of evidence
before him.
[47] This court further agrees with the finding of the arbitrator that even if the
Applicant could have lodged a grievance, which he did not do, he ought to
have carried out his duties and continued to have his issues addressed in any
manner he deems appropriate, whilst working.
[48] This court does not wish to imagine the frustration caused to student s as a
result of the Applicant withdrawing his services. The Applicant argues that he
could not have lodged a formal grievance because the informal grievance
process was inchoate, which reasoning is unmeritorious.
[49] In terms of the Sidumo test, the Applicant is not only required to prove a
defect in arbitration proceedings as set out in section 145, but also to prove
that the decision in itself was unreasonable, which this Court is not convinced
that he has done so.
[50] 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 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.
13 The result will, however, be unreasonable if it is entirely
disconnected from the evidence, unsupported by any evidence and involves
speculation by the arbitrator.
[51] This court cannot find any irregularity or misconduct to have been committed
by the Third Respondent that warrants interference with her award/decision.
In this regard, the Applicant failed to buttress his application.
[52] As stated above, this court , in concurring with the finding of the arbitrator as
well as an argument by Counsel for the Respondent , it is pernicious for a
lecturer to withdraw his services in an academic institution where there is
lecturer to withdraw his services in an academic institution where there is
13 See National Union of Mineworkers and Another v Samancor Ltd (Tubatse Ferrochrome) and
Others [2011] ZASCA 74; (2011) 32 ILJ 1618 (SCA) (25 May 2011).
13
limited time for teaching and learning, more especially where the reason for
same is to ensure that a dispute about co-lectureship is resolved.
[53] In casu, the Applicant refused to lecture as instructed, but complained when
suspended for 3 months without pay. The Applicant is a very lucky employee,
if it were another employer, he would have been dismissed due to the
prejudice his conduct caused or likely to be suffered. The Applicant refused to
carry out his duties for a period of three (3) months, being February, March
and April 2021.
[54] As stated above, the Applicant’s conduct is inexcusable under the
circumstances, even if it could have been found that he lodged a grievance.
[55] The employer cannot be expected to pay an employee who refuses to
discharge his duties , and as a result , the Applicant failed to discharge his
evidentiary burden.
[56] There is no reason to interfere with the decision of the arbitrator, which
appears to be sagaciously arrived at.
Conclusion
[57] 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, this Court find that the arbitrator ’s award is reasonable under the
circumstances.
[58] The reasons provided by the arbitrator are, in my view, correct and certainly
substantiated by evidence in the transcript, as well as the law.
[59] Having due regard to the reasoning of the arbitrator on the evidence before
him at the arbitration, it is clear from an analysis of the award that the
arbitrator properly weighed up all the evidence before her, the totality of the
circumstances, in the parlance of Sidumo , and it is in the light of all those
circumstances that she found that dismissal was a fair sanction, more so, also
considering the charge that the Applicant did not challenge.
14
[60] There are no grounds or reasons for me to interfere with the decision of the
arbitrator, as it falls within the band of reasonableness.
Costs
[61] The last issue to be decided is the issue of costs. This Court has a wide
discretion in respect of costs, considering the requirements of law and
fairness.
[62] In Zungu v Premier of the Province of KwaZulu- Natal and Others ,14 the
Constitutional Court confirmed that the rule that costs follow the result does
not apply in labour matters.
[63] The Court should seek to strike a fair balance between unduly discouraging
parties from approaching the Labour Court to have their disputes dealt with
and, on the other hand, allowing those parties to bring to this Court cases that
should not have been brought to Court in the first place.
[64] This is a case where the Court must strike a balance, and in my view, the
interest of justice would be best served by making no order as to cost.
[65] In the premises, I make the following orders:
Order
1. The application for review is dismissed.
2. No order is made as to costs.
_______________________
N Tshisevhe
Acting Judge of the Labour Court of South Africa
14 (2018) 39 ILJ 523 (CC); [2018] ZACC 1 at para 24.
15
Appearances
For the Applicant: Mr Phindile Raymond Msaule
Self-representing
For the Respondent: Adv A Ngidi
Instructed by: Mokgara Attorneys