THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
CASE NO: JR193/2022
In the matter between:
SIYANDA BAKGATLA PLATINUM MINE Applicant
and
COMMISSION FOR CONCILIATION, First Respondent
MEDIATION AND ARBITRATION
MOLOKO EPHRAIM PHOOKO NO Second Respondent
SIBUSISO NHLABATHI Third Respondent
Heard: 17 February 2026
Delivered: 20 April 2026
Summary: Application to review and set aside an arbitration award. Outcome
unreasonable. Application successful. Dispute referred to CCMA for
rehearing.
2
JUDGMENT
DANIELS J
Introduction
[1] This is an application brought to review and set aside an arbitration
award issued by the second respondent (hereafter the “commissioner”).
In an arbitration award under case reference NWRB1751-21, the
commissioner found that the dismissal of the third respondent, by the
applicant, was substantively unfair1 and reinstated him.
Reinstatement of the matter
[2] The review was launched on 25 January 2022. The reconstructed record
was filed on 21 February 2023, the answering affidavit on 21 April 2023,
and the replying affidavit on 17 July 2023. It is clear there was non-
compliance with clause 11.2.7 2 of the Practice Manual which requires
that all the necessary papers in the review must be filed within 12 months
of the launch of the review, and the Registrar must be advised that the
matter is ready for hearing.
[3] The applicant applied for the reinstatement of the review, which was
unopposed. The applicant explained that the delay was caused by the
CCMA, which failed to file the complete record when it was required to
do so. Ultimately it was necessary to reconstruct part of the record. It is
1 Third respondent abandoned his challenge to procedural fairness. See Transcript p141 lines
14 - 17
2 Clause 11.2.7 requires no action on the part of the Registrar. The court file is automatically
archived when there is non-compliance. See Gololo v Limpopo Department of Economic
Development, Environment & Tourism & others (2025) 46 ILJ 1895 (LAC) at para 8
3
unnecessary to traverse all the details of the application. It suffices to
state that the explanation was comprehensive, and the prospects of
success were properly canvassed, and were reasonable. The delay, it
seems clear, was due to no fault of the applicant or its representatives. In
the circumstances, the application is granted and the review is
reinstated.
Application for postponement
[4] When the matter was heard, the applicant ’s representative sought a
postponement from the bar. She stated that her colleague, who had been
dealing with the matter, had handed her the file about an hour earlier and
she was unprepared. She stated that her colleague decided to attend to
another matter and their counsel was sick. This was the full extent of the
reasons for the request . Third respondent’s representative vigorously
opposed any postponement, on the basis that the hearing was long
overdue, and third respondent would be prejudiced by further delay s. It
must be noted that the parties were notified of the hearing date on 23
June 2025.
[5] In Lekolwane and Another v Minister of Justice 3 the Constitutional Court
stated “An applicant for a postponement seeks an indulgence from the
court. A postponement will not be granted, unless this Court is satisfied
that it is in the interests of justice to do so. In this respect the applicant
must ordinarily show that there is good cause for the postponement.”
[6] Having considered all the relevant factors particularly the paucity of the
explanation and the prejudice to the third respondent, I found that the
applicant had not shown good cause and it was not in the interest of
justice to grant a postponement. Accordingly, the review proceeded.
3 2007 (3) BCLRA 280 (CC)
4
Background facts
[7] The third respondent was appointed by the applicant (hereafter “the
Mine”) as a section engineer on 1 August 2018.
[8] During late March 2021, the Mine gave to the applicant a document titled
“notification of alleged transgression”, in which it alleged that the
applicant had committed the following offices:
“
(i) gross negligence in that he appointed a company / supplier to perform the
crucial job underground and the said company / supplier did not meet the
safety requirements i.e. no training / induction and no safety file 4 to work
underground,
(ii) corrupt / fraudulent practices in that he appointed incompetent suppliers to
do the belt splicing which was substandard at inflated rates.”
(own emphasis)
[9] Further details of the alleged misconduct were provided through a
document titled “Charge Sheet” , which contained a summary of the
incident. It read:
(a) Conduct unbecoming of an official: in that you became involved in
appointing a company / supplier to perform the crucial job underground and
the company / supplier did not meet the safety requirements which includes
training and no induction to go underground.
(b) Acting against company regulations: in that you failed to adhere to company
policies and procedure by not following the procurement policy when you
appointed Fikra to do the load testing underground at Richard Shaft.
(c) Gross negligence: in that you took suppliers to work underground without
shaft induction and training which is a safety risk to the company, you
4 The safety file must include inter alia a certificate of competence to do the job and a list of
employees and their qualifications. See Record Bundle p190
5
compromised the values of the company and that could (sic) had potentially
serious consequences to the company if any safety incident should occur
underground to the supplier.
(d) Corrupt / fraudulent practices: in that incompetent suppliers were appointed
to do the belt splicing which was substandard and other suppliers had to
redo the same job.
(own emphasis)
[10] At the bottom of the charge sheet, the Mine stated: “Disciplinary action to
be taken as per above”.
[11] In summary, the case of the applicant was as follows . The third
respondent submitted to it a ‘single source motivation’ and a motivation
to create a vendor (“the motivation”). In essence, the applicant motivated
for the appointment of a new vendor, a company named Fikra, to do load
testing. In his motivation, the third respondent indicated to it that Fikra
complied with the directives issued by the SANS and the Department of
Mineral Resources.
5 At that time, the applicant already had a supplier
which was doing load testing, Premier Load Testing (“Premier”). Fikra
quoted lower than Premier and was appointed. Ultimately, however,
Fikra charged significantly more than Premier. The work done by Fikra
was substandard and another supplier was appointed to redo the work.
The third respondent was instrumental in ensuring the appointment of
Fikra despite not checking that it had a safety file. The third respondent
did not ensure that the new supplier was put through the mandatory
safety and induction processes. When appointing new suppliers there
must be at least three quotes from different suppliers and the third
respondent was aware of this requirement in the procurement policy.
5 Documents Bundle p27
6
[12] For the applicant, there were five witnesses. Mr Kgomotso Itumeleng
(“Itumeleng”), Mr Palane Morwana (“Morwana”), Mr Kopano Tau (“Tau”),
Mr Thulasizwe Mlambo (“Mlambo”), and Ms Tsholofelo Maimela
(“Maimela”).
12.1 Itumeleng was employed by the applicant as an investigator. He
testified that the third respondent’s motivation to appoint Fikra was
misleading because it suggested that it related to safety. 6 Mlambo
was disciplined for the same issue, but his conduct was different and
that is why he was not dismissed.
12.2 Morwana was employed by the applicant as a foreman. Morwana
testified that he had signed the forms motivating for the appointment
of Fikra but he did so on instructions from the third respondent . Fikra
did not comply with the safety and induction processes of the
applicant.
12.3 Tau testified that Fikra was introduced to him by the third respondent
who informed him that he would be working with Fikra from that time
onwards. Tau testified that , as a rigger, he is a relatively junior and
didn’t check whether Fikra had been through the safety induction
because he did not expect them to be introduced to him without them
having gone through the safety induction.
12.4 Mlambo was a section engineer. Fikra was introduced to him by the
third respondent. Mlambo was told by the third respondent that he
wished to bring Fikra onboard because he was experiencing
problems with his equipment.
7 Mlambo testified that the end user
6 Transcript, p16, lines 14 – 25, see ‘Single Source Motivation’ at Document Bundle, p24
7 Transcript p75 lines 1 – 5
7
motivates for the appointment of a vendor and is responsible for
checking that their safety file is in order.8
12.5 Maimela was a shaft accountant employed by the applicant . She
testified about the procurement processes. Maimela was approached
by the third respondent who enquired about how to go about
appointing new vendors or suppliers. Maimela testified that the
appointment of Fikra proved costly , but conceded that she could not
prove that their rates were inflated. Maimela testified that Fikra did
substandard work.
[13] The case for the third respondent was, in brief, as follows.
13.1 He wanted to achieve savings through the appointment of Fikra. He
testified that he needed to change the vendor “due to the scope of
work”.
9
13.2 He was unaware of how to treat contractors for the purposes of
training or induction.10
13.3 He was aware of Fikra because he had previously been employed by
it. He was not aware of the procurement policy and had requested a
copy but never received it.
8 Transcript p77 lines 14 - 22
9 Transcript p152 lines 5 - 9
10 However the documentary evidence before the commissioner demonstrated that he had been
taken through a health and safety training course by the applicant. Mr Nhlabathi confirmed his
earlier written statement which stated that he was the legal appointee and had certain safety
functions delegated to him by the employer under the Mine Health and Safety Act (MHSA).
Section 5(2)(b) of the MHSA states that as far as reasonably possible every employer “must
ensure that persons who are not employees, but who may be directly affected by the activities
at the mine, are not exposed to any hazards to their health and safety.”
8
13.4 Mlambo was also charged for negligence, in relation to the same
incident, but was not dismissed. This suggested that the applicant
applied discipline inconsistently.
Arbitration award
[14] The commissioner made the following findings:
14.1 The applicant did not prove the charges against the third respondent.
There is insufficient evidence that Fikra inflated prices or performed
substandard work. There was no evidence of corruption on the part
of the third respondent. The supply chain office was the responsible
functionary to appoint vendors and suppliers. Although the third
respondent played a crucial role in bringing Fikra to the Mine,
someone else made the appointment.
14.2 The applicant did not act inconsistently in its application of discipline.
14.3 The dismissal of the third respondent was substantively unfair , and
he must be reinstated with effect from May 2021. He must be paid
backpay for the period between May and December 2021.
Legal principles
[15] The arbitration process and the resulting arbitration award both constitute
administrative action. Accordingly, section 33(1) of the Constitution
requires that the process and the outcome must be lawful, reasonable,
and procedurally fair. It is in this context that the review test
11 applicable
to arbitration awards issued by the CCMA and Bargaining Councils, was
formulated, as follows: is the arbitration award one which no reasonable
11 Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) at
para [110]
9
commissioner could reach on the material before him or her ? It is known
as the “reasonableness test.”
[16] As to what is reasonable, this must be determined by the circumstances
of each case. It is important to remember that reasonableness embraces
a wide range of outcomes several of which may be reasonable. 12 Our
courts have warned that the award, or outcome, must not be evaluated
on a piecemeal basis, but on the totality of all the evidence.
[17] Where a commissioner fails to apply his mind to the material issues, this
will usually indicate that the outcome is unreasonable or that the nature
of the enquiry was misconceived. When a mistake of fact or law occur s,
what matters is its materiality – and whether it had a distorting effect on
the outcome.13
Analysis of the grounds of review
[18] The applicant alleges that the award is unreasonable. The primary
contention is that the commissioner irregularly adopted a strict
interpretation of the charges when he was required to take a more
flexible and nuanced approach. As a result, the commissioner did not
consider whether the applicant had committed any misconduct which
was not expressly foreshadowed in the charges.
[19] In Woolworths (Pty) Ltd v CCMA and others
14 the Labour Appeal Court
stated that —
‘[t]he misconduct charge on and for which the employee was arraigned and
convicted at the disciplinary enquiry did not necessarily have to be strictly
framed in accordance with the wording of the relevant acts of misconduct as
12 Goldfields Mining SA (Pty) Ltd v CCMA and others (2014) 35 ILJ 943 (LAC) at para [14]
13 Head of the Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) at para
[33]
14 (2011) 32 ILJ 2455 (LAC) at 2467
10
listed in the appellant’s disciplinary codes, referred to above …. It was sufficient
that the wording of the misconduct alleged in the charge-sheet conformed, with
sufficient clarity to be understood by the employee, to the substance and import
of any one or more of the listed offences.’
(emphasis added)
[20] Thus, provided that the employee knows that which conduct allegedly
constitutes misconduct and is not significantly prejudiced by an incorrect
characterization of the offence, discipline may be imposed appropriate to
the misconduct.
[21] As previously explained, through the “Charge Sheet” , the applicant
clarified the full extent of the alleged misconduct. The third respondent
could have been under no illusion as to the misconduct he allegedly
committed. The commissioner was required to decide whether the third
respondent committed the alleged misconduct described in the ‘notification
of alleged transgression’ and the ‘charge sheet’.
[22] Among other things, the applicant alleged that the third respondent
“became involved in appointing” a supplier who did not meet safety
requirements. Although the commissioner accepted that the third
respondent played a crucial role in the appointment of Fikra, he did not
consider whether such conduct was negligent.
[23] There are several other important disputes which the commissioner failed
to resolve. The commissioner failed to consider whether Fikra failed to
meet the applicant’s safety requirements and, if so, whether the third
respondent was negligent in that respect . The commissioner did not
consider whether the third respondent failed to follow procurement policy.
And finally, the commissioner did not decide whether the third respondent
took suppliers to work underground without shaft induction and training.
11
[24] The abovementioned omissions are glaring and indicate that the
commissioner failed to apply his mind to the issues . These errors were
material and had direct bearing on the outcome. This suffices to render the
award unreasonable. Th us, the award falls to be reviewed and set aside.
In my view, given that a significant part of the evidence had to be
reconstructed, and there are many instances where the audio record was
inaudible, it is appropriate to refer the dispute back for hearing de novo.
[25] As an aside, I note that the commissioner failed to consider the different
explanations by the third respondent as to why he motivated for the
appointment of a new vendor. In the motivation, he mentioned safety. He
also talked about cost savings. He told his colleagues he was concerned
about his equipment. In evidence, he talked about the scope of the work.
[26] The applicant has been successful, but costs do not follow the result in
this court. There being no reason in law and fairness to award costs, I
make no order as to costs.
Conclusion
[27] In the circumstances, for the reasons set out above, I make the following
order:
27.1 The review application is reinstated,
27.2 The arbitration award issued by the second respondent under case
reference NWRB1751-21 is reviewed and set aside,
12
27.3 The dispute concerning the fairness of the third respondent’s
dismissal is referred to the CCMA for arbitration de novo before a
commissioner other than the second respondent.
Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances:
For Applicant:
Ms K Mogale
Khanyisa Mogale Attorneys
For Third Respondent:
Mr C Goosen
Parsons Inc