THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 1260/24
In the matter between
TSHOKOLO PAULOS LEKHOABA Applicant
and
COMMISSION FOR CONCILIATION MEDIATION First Respondent
AND ARBITRATION
COMMISIONER: MASHOODA PATEL Second Respondent
SOUTH AFRICAN POLICE SERVICES Third Respondent
Heard: 04 December 2025
Delivered: 20 April 2026
JUDGMENT
___________________________________________________________________
MONONYANE, AJ
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] This is a review application launched in terms of section 145 of the Labour
Relations Act 1 (the LRA) to have the arbitration award issued under case:
PSSS 23-17/18 dated 02 May 20 24 reviewed and set aside. The award was
issued by the Second Respondent, M Patel (the commissioner), acting under
the auspices of the First Respondent, the Commission for Conciliation,
Mediation and Arbitration (the CCMA).
Background facts
[2] The Applicant’s promising career as a police officer, was torpedoed for
appropriating a meagre R50.00 which was a part of the change due to one
Mr. Jonker who gave the Applicant R300 .00 as an admission of guilt fine for
his arrested employee, Mr Bushy Pone.
[3] Here follows the anecdote. Mr. Pone was arrested for planting dagga on his
employer’s farm. Empathising with him, Mr. Jonker, went to the police station
to pay the acknowledgement of guilt fine for him.
[4] Mr. Jonker found no joy at the police station. Frustrated by the inefficiency at
the police station or being a victim of his impatience for not wanting to wait for
his turn at the queue, he ended up quarrelling with one Constable Biko. To
defuse the situation, t he Applicant stepped in and assisted Mr. Jonker . The
importance of this will be clearer later in this judgment.
[5] Mr. Jonker then gave the Applicant R300 towards Mr. Pone’s admission of
guilt fine a nd left without the receipt as he was allegedly in a hurry. The
Applicant noted the R300 payment on a piece of paper.
[6] The Applicant released Mr. Pone on the admission of guilt fine of R200.
[7] Upon his arrival at the farm, Mr. Pone gave Mr. Jonker the R50 change and
the fine receipt. When asked about the other R 50, he explained, in a
1 Act 66 of 1995.
3
statement made under oath before Col onel Theunissen, that the Applicant
gave him only R50 as change and kept the other R50 for himself.
[8] Infuriated, Mr. Jonker then called Colonel Theunissen who was off duty . Upon
his arrival at the farm, the Colonel took down a statement from Mr. Pone. It
was done under oath.
[9] Mr. Pone testified in the disciplinary hearing but unfortunately passed on
before the arbitration could sit. May his soul rest in peace.
The arbitration award
[10] The commissioner found the Applicant’s dismissal substantively fair. She
found the misconduct serious and the Applicant’s long service as an
aggravation. She accepted the evidence of Mr. Pone as reasonable. In her
reasoning, it was improbable that Mr. Pone would have cheated himself of the
R50. About the Colonel, she found that he had no personal vendetta against
the Applicant and thus had no basis to testify against the Applicant.
Grounds of review
[11] Dissatisfied with the award, the Applicant launched a review application, citing
several grounds, which are summarized as follows:
11.1 that the commissioner r ejected the Applicant’s version and accept ed
the untested and contradictory hearsay evidence in the form of a
deceased’s statement.
11.2 that the commissioner accepted Mr. Pone statement as t ruthful even
when it was probable that Mr. Pone used the money for himself
knowing that it will be deducted from his salary.
11.3 that she accepted the evidence of Col. Theunissen without considering
the close relationship Col. Theunissen has with Mr. Jonker.
11.4 that the matter be remitted to the CCMA due to the incomplete record.
The test for review
4
[12] The test for review is settled. In Sidumo and Another v Rustenburg Platinum
Mines Limited and Others 2 the Constitutional Court held that the review
grounds set out in section 145 of the LRA have been suffused by the standard
of reasonableness, and that an arbitration award of the CCMA / a bargaining
council is reviewable if the decision reached by the commissioner was one
that a reasonable decision-maker could not reach.
Analysis
[13] This review application engages two types of grounds: the external ( post-
award) and internal grounds. The external grounds in that the Applicant seeks
this court to remit the matter to the CCMA to be hear d afresh because the
CCMA filed an i ncomplete arbitration record and that a reconstruction of the
missing record, in the circumstances, was impossible.
[14] The interior grounds are the irregularities and/or misconduct the Applicant
alleged the commissioner committed in the determination of the dispute
before her. I will start with the post-award grounds
The incomplete record
[15] In his supplementary grounds of review, the Applicant relied extensively on
the incomplete record to have the matter remitted to the CCMA for a fresh
hearing. He contended that Mr. Jonker’s evidence was missing and only his
summary of evidence is captured in the award. He could not reconstruct the
missing record because the matter was apparently inherited from the
bargaining council by the CCMA and that the commissioner who heard the
matter is no longer with the council.
[16] Ex facie, the record is indeed incomplete as the award clearly states that the
Third Respondent led evidence of two witnesses, viz Mr. Jonker and Colonel
Theunissen.
2 2008 (2) SA 24 (CC)
5
[17] However, the remittal of the matter to the CCMA due to the incomplete record
engages, at the least, two substantive factors. First, the arbitration record
must be incomplete and second, the missing record must me material to the
case. In other words, it is not in all cases that the matter will be remitted to the
CCMA or bargaining council simply because the arbitration record is missing.
[18] I am mindful of the procedural r oute the A pplicant should have traversed of
approaching the Judge President for a directive on the way forward in respect
of the incomplete record. I do not think , however, for the interest of justice, to
lament the Applicant’s failure to have traversed that route at this stage of the
proceedings. In any event, as it will be apparent shortly, the Applicant failed to
meet the substantive threshold set out above.
[19] Most importantly, i n dealing with the question, I am alive to the general rule
expounded in Pap ane v van Aarde NO and Others
3 that the court would not
ordinarily allow a review application to be considered on the merits without a
complete record of the evidence that had been before the arbitrator whose
award was sought to be reviewed. This is because the missing parts of the
record could well throw light , one way or another , on the material question
properly before the presiding judge.
[20] In Doornpoort Kwik Spar v Odendaal and Others4 the court held:
“An applicant has a right to a reasoned award in respect of the dispute that
was adjudicated before the CCMA. When an award is the subject of a review
application, the record of the proceedings before the statutory body will also
become important. In fact, once a party had filed its Notice of Motion and
founding affidavit, he or she has the right to the record of the proceedings in
so far as it may be necessary for the purposes of the review.”
[21] The authorities are telling. There is, however, also clear authority to the effect
[21] The authorities are telling. There is, however, also clear authority to the effect
that the mere fact that there is no complete record does not necessarily imply
that the matter should, as a matter of course, be remitted to the CCMA. Even
3 (2007) 28 ILJ 2561 (LAC) (20 March 2007) par. 3 & 4
4 (2008) 29 ILJ 1019 (LC) at para 4
6
where parties have endeavored to reconstruct the record and it is not
possible, the Court will , likewise, not as a matter of course, remit the dispute
back to the CCMA if the review can be determined with the existing record.
[22] In Nathaniel v Northern Cleaners Kya Sands (Pty) Ltd and Others5 the court
declined to remit the matter to the CCMA but decided to proceed to determine
the case on all the available evidential material before the court. The court
said:
“I agree with Mr Barrie that it is not legally permissible in the circumstances of
the present case to remit the matter to the CCMA for a rehearing due to the
defective record. The applicant cannot contend that the award of the
commissioner is not rationally justifiable merely because the evidence which
was adduced before him (and which presumably influenced him in his
decision) cannot be placed before this court. In the present circumstances,
then, the court must look at the award of the commissioner together with all
the documentary and other evidence before him (including a clandestine tape
recording of certain important discussions between the employee and
employer's representatives) as well as the available transcript of
proceedings, and then decide whether the award passes muster in
accordance with the jurisprudence set out in para 9 above.”
[23] In Fidelity Cash Management Services (Pty) Ltd v Muvhango NO and Others6
the Applicant contended, in the first instance, that the award should be set
aside and referred back to the CCMA on the ground of the incomplete record
alone. The court, however, relying on Kya Sands (supra), was disinclined to
refer the matter back simply because of the record being incomplete.
[24] As adumbrated in the above judgments, incomplete record does not
automatically result in remittal.
[25] I was able to glean, among others, from the award itself and the existing
record, especially the Applicant’s own testimony , the r ole Mr. Jonker’s
record, especially the Applicant’s own testimony , the r ole Mr. Jonker’s
evidence would have played to assist in the fair and proper determination of
5 (2004) 25 ILJ 1286 (LC) at para 16.
6 (2005) 26 ILJ 876 (LC).
7
this review application. It would have been negligible. No so much would have
tilted on it.
[26] Hereunder is the summary of the Applicant’s testimony in relation to Mr.
Jonker:
Mr. Lekhoaba: On that particular morning…I was officially on dut y as
assistant to Const… So De Jonker came to… as he as
already furious because he had an altercation with Const.
Biko. I do not know what they talked about, but they
exchanged some other words7.
…
Mr. Lekhoaba: … I then enquired to help Mr. Jonker. He then insisted t o
leave the money and said, I think he had other errands to run
at the farm. So, by the time I did not know how much he can
leave, then I just checked that … be up to R300. He left
R300, then I made him a note… 8
…
Mr Lekhoaba: I think he came earlier when I heard about that matter, by the
time he was already angry and aggressive with the Const .
Biko… had maybe interacted some other ways, but there were
an exchange of words, because he was already angry and
fuming by that time. So, I calmed him down, I said, explain
the situation, because already by that time, he had called the
Station Commander. I could hear that he called the S tation
Commander.
…
Mr Lekhoaba: The reason to come to this police station, as he explained to
me, it was to come to hear what is happening to the accused
who was arrested last night, … which is the employee of his 9.
7 Page 24 lines 17 -22 of the Transcribed record.
8 Page 25 lines 17-21 of the Transcribed record.
9 Page 28 lines 11-23 of the Transcribed Record.
8
…
Col Satsetsi: And did you assist him with admission, the guilty admission?
Mr Lekhoaba: Yes, I did assist. As I acknowledged that I took the money,
insisted on leaving the money, because he has going
somewhere, he was in a rush already, so he insisted that I
must take the money so that when the officer comes to
charge him, he must use that money for admission of guilt.”10
[27] Axiomatically, Mr. Jonker played a very little role in the determination of the
core issue that was before the commissioner. He gave the Applicant R300
and left. And later , as explained by Col. Theussen, Mr. Jonker reported the
incident to Col. Theunissen after receiving a change short of R50 from Mr.
Pone.
[28] The Applicant tried to make a mountain out of the mole hill about Mr. Jonker’s
temperament on the day in question. It is misplaced. An altercation was with
the Applicant’s colleague and not him. From the Applicant’s own version, he
was the interven or. He defused the situation by assisting Mr. Jonker.
Therefore, it would be unprecedented for Mr. Jonker , out of nowhere, to now
aim at the Applicant who came to his aid when he did not find joy, rightfully or
wrongly so, from Const. Biko.
[29] It is on this background that I find that there is enough evidence to determine
this review application notwithstanding the truncated record.
[30] I proceed to deal with the inherent irregularities and/or misconduct as
contended by the Applicant.
Inherent irregularities and/or misconduct
[31] This is a review application and not an appeal. The dividing line is at times
overstepped. I find it important to state right away what I am expected to do
10 Page 29 lines7-13 of the Transcribed Record.
9
and not to do in my determination whether grounds raised in this review
application are sustainable.
[32] The Constitutional Court in Duncanmec (Pty) Ltd v Gaylard NO and others 11
held as follows:
“Sidumo cautions against the blurring of the distinction between appeal and
review and yet acknowledges that the enquiry into the reasonableness of a
decision invariably involves consideration of the merits. So as to maintain the
distinction between review and appeal this Court formulated the test along the
lines that unreasonableness would warrant interference if the impugned
decision is of the kind that could not be made by a reasonable decision-
maker.
This test means that the reviewing court should not evaluate the reasons
provided by the Arbitrator with a view to determine whether it agrees with
them. That is not the role played by a court in review proceedings. Whether
the court disagrees with the reasons is not material.
The correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there are reasons
supporting it. The reasonableness requirement protects parties from arbitrary
decisions which are not justified by rational reasons.”
[33] In D Lund Farm (Pty) Ltd v FAWU and Others12 this Court pointed out that:
“The reasonableness consideration envisages a determination, based on all
the evidence and issues before the arbitrator, as to whether the outcome the
arbitrator arrived at can nonetheless be sustained as a reasonable outcome,
even if it may be for different reasons or on different grounds. This
necessitates a consideration by the review court of the entire record of the
proceedings before the arbitrator, as well as the issues raised by the parties
before the arbitrator. In the end, it would only be if the outcome arrived at by
the arbitrator cannot be sustained on any grounds, based on that material,
and the irregularity, failure or error concerned is the only basis to sustain the
and the irregularity, failure or error concerned is the only basis to sustain the
outcome the arbitrator arrived at, the review application would succeed. The
11 [2018] 12 BLLR 1137 (CC) at paras 41 to 43. (Footnotes omitted).
12 (JR1119/21) [2023] ZALCJHB 337 (22 November 2023) at para 32.
10
task of the reviewing court was succinctly set out in Anglo Platinum (Pty) Ltd
(Bafokeng Rasemone Mine) v De Beer and Others where it was held:
‘…. the reviewing court must consider the totality of evidence with a view to
determining whether the result is capable of justification. Unless the evidence
viewed as a whole causes the result to be unreasonable, errors of fact and
the like are of no consequence and do not serve as a basis for a review.’
[34] Axiomatically, I am not called to evaluate the reasons provided by the
commissioner with a view to determining whether I agree with them. Instead, I
am called to test whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there were cogent
reasons supporting it. It is against these principles that the review application
in casu falls to be determined.
[35] The Applicant lamented the c ommissioner’s admission of the statement of a
witness who did not testify on the contents of the statement. The Third
Respondent, at the start of the arbitration hearing, applied, in terms of Section
3 of the Law of Evidence Amendment Act 13 (LEAA), for the adm ission of Mr.
Pone’s statement. The Applicant protested. He attacked the authenticity of the
signature. He contended that it was not Mr. Pone’s statement taken in 2014.
He also challenged the accuracy of the contents of the statement. Because
the authenticity of the statement was challenged, the commissioner accepted
the statement pending the testimony of the relevant witness who would deal
with the authenticity of the statement.
[36] I can not quarrel with the commissioner for invoking this approach. The
provisions of section 138 of the LRA gives a commissioner a discretion to
conduct an arbitration in a manner that she, or he, considers appropriate to
determine a dispute fairly and quickly, and to do so with a minimum of legal
formalities. This also did not offend Exxaro Coal Pty Ltd v Chipana and
Others
formalities. This also did not offend Exxaro Coal Pty Ltd v Chipana and
Others
14 which directs when and how the hearsay evidence challenged must
be dealt with. As I would show later, the commissioner dealt with admissibility
of the hearsay evidence during the arbitration hearing.
13 Act 45 of 1988.
14 [2019] 10 BLLR 991 (LAC).
11
[37] The provisions of section 3 of the LEAA are readily straightforward and the
factors to be considered under subsection 3 (1) (c) are not a closed list.
Section 3 provides:
‘3 Hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless –
(a) each party against whom the evidence is to be adduced
agrees to the admission thereof as evidence at such
proceedings;
(b) the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person
upon whose credibility the probative value of such
evidence depends;
(vi) any prejudice to a party which the admission of such
evidence might entail; and
(vii) any other factor which should in the opinion of the court
be taken into account, is of the opinion that such
evidence should be admitted in the interests of
justice…”
[38] Although the commissioner did not, blow by blow, deal with each requirement
of the test, her overall conclusion conforms to the test. The statement was
12
relevant as it dealt with issues pertinent to the case. The person who made
the statement is deceased. I do not find her admission of the hearsay
evidence, in the circumstances, unreasonable.
[39] Having dealt with the hearsay evidence, the commissioner turned to deal with
the authenticity of the statement. Colonel Theussen was cross -examined as
follows on the subject:
“Mr. Mampane: “…Now you at that time, as a police commander, a friend of,
you wanted to impress there. Unfortunately, you have to
satisfy…Now paragraph five, you see now, there you are
saying:
“I do not believe that the Constable action was justified and I
am not unders…(indistinct) be paid R50.00”
Do you know that the first three lines, that person there at the
farm, that farm worker, never even have a knowledge to can
even think about what, about justifiable things here. This was
your imagination, as a friend who is a dear friend of that
person. Now, you are talking about justifying actions… that is
why there is no way a …worker will know about the justifiable
story. He was going to put his allegations the way it is. You
want to say something”
…
Mr. Mampane: “…I am the only one, the first person, who is telling you the
truth that these content, the contents’ of this statement, it was
you, it was about you, yourself, not the complainant .15 (own
emphasis)
“Mr. Mampane: Ja. Okay. No, I put it to you that, no your attempts has failed.
Your attempts to assist your friend, that you loved so much,
with this statement to deal with the applicant has drastically
15 Page 16 lines 4-15 of the transcribed record.
13
failed and I appreciate the time you have given us to answer
the question”.16
[40] As adumbrated in the above extracts, it was the gist of the Applicant’s
challenge that the statement was more of Colonel Theussen narration trying
to assist his friend to deal with the Applicant, than Mr. Pone’s narration.
[41] The commissioner dismissed the narrative. Relying on the evidence of the
Colonel, the commissioner accepted the statement as authentic. This is how
the commissioner evaluated and accepted Colonel’s evidence:
“Even if the Colonel is known to the Applicant there has been no indication
that there is any personal vendetta against each other”.
[42] The Applicant laid no basis for Colonel’s and Mr Jonker ’s animosity against
him. I promised elsewhere supra to expand on the assistance the Applicant
gave to Mr. Jonker. This discounts any narrative that Mr. Jonker was out and
about to incriminate the Applicant. From the Applicant’s own testimony , Mr.
Jonker had issues with Const. Biko and not him. The Applicant defused the
situation by stepping in to assist Mr. Jonker.
[43] Likewise, there was also no allegation that the Colonel did not see eye to eye
with the Applicant and appropriated the opportunity to grind the axe with him.
The narrative was, therefore, farfetched and unprecedented.
[44] Axiomatically, the commissioner dealt with both the hearsay evidence and
authenticity issues raised. She did not leap to conclusions. She provided
reasons. Her conclusion is not outside the bands of reasonableness. I find no
cause to interfere with the commissioner’s conclusion in this regard.
[45] The commissioner accepted Mr. Pone’s version that the Applicant released
Mr. Pone on R200 admission of guilt fine and gave him only R50 change and
kept the other R50 for himself.
16 Page 20 lines 22-25 and page 21 line 1
14
[46] This is the same version Mr. Pone gave in the Applicant’s disciplinary hearing
before passing on.
[47] During the Applicant’s cross-examination the following was put:
“Col Satsetsi: You see, the problem is now, this allegation is so, it was so
serious that eventually you were dismissed and these two
people, Mr. Jonker and Mr. Pone testified in your
departmental case. Am I correct?
Mr. Lekhoaba: Yes, they did so.
Col Satsetsi: And the chairperson of that disciplinary hearing accepted
their version of what happened and hence, you were
dismissed.
Mr Lekhoaba: Ja That is how it was… ”
[48] During his examination- in-chief, the Applicant did not testify about the
contradictions in Mr. Pone’s statements. Neither were the alleged
contradictions put to Colonel Theuni ssen who testified at length about the
authenticity of the statement. The challenge appeared to be on the
probabilities of the allegations in the statement.
[49] The commissioner dealt with Mr. Pone’s statement. She stated:
“I find no reason why Mr. Bushy ( the deceased) would falsely accuse the
Applicant of having taken an amount of R100.00. The argument that Mr.
Bushy took the money for his own accord would be improbable and be
completely nonsensical as the amount of the admission of guilt was to be
deducted from Mr. Bushy’s salary. It would thus not make common sense that
Mr. Bushy wanted to cheat himself out of money that he in fact would have to
pay back. The Applicant in fact agreed that he was to charge the person first
and then take the money”.
[50] Clearly, the commissioner was alive to the issues before her. She reasoned
her conclusion which is within the bands of reasonableness. As stated earlier,
15
judges’ roles are somewhat circumscribed when dealing with reviews as
opposed to appeals.
[51] Having found that the Applicant appropriated for himself the R50 that was
meant to be part of the change due to Mr. Jonker, the commissioner found
that the dismissal was substantively fair.
[52] In Sidumo17 the court gave a clear direction to commissioners on their duties
when dealing with the sanction:
"In approaching the dismissal dispute impartially a commissioner will take into
account the totality of circumstances. He or she will necessarily take into
account the importance of the rule that has been breached. The
commissioner must of course consider the reason the employer imposed the
sanction of dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee's conduct, whether additional
training and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee and his or her long-
service record. This is not an exhaustive list…”
[53] In Ikwezi Municipality v South African Local Government and Others 18 this
Court set out what a review court should take into consideration in
adjudicating a penalty review and it is this: whether the commissioner’s
assessment of the sanction was reasonable; the gravity of the misconduct,
the reason the rule was put into place, mitigating factors and balancing of the
parties’ interests. The ultimate test is whether the commissioner applied his or
her mind in determining whether the sanction is appropriate having regard to,
amongst other factors, the misconduct committed.
[54] In response to the call, the commissioner stated:
“The misconduct committed by the Applicant is serious in nature as corruption
has a serious impact on the operations of the Respondent. The Applicant has
a long service record and should be well aware of the im plications of such
conduct”
17 Id fn 2 at para 78.
18 [2012] 4 BLLR 403 (LC).
16
[55] Clearly, the commissioner applied her mind to the pertinent factors in the
determination of the appropriate sentence.
[56] Accordingly, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
___________________
M. S. Mononyane
Acting Judge of the Labour Court of South Africa
17
Appearances:
For the Applicant : Mongei Adoong
Instructed by : Baloyi Attorneys.
Respondent : Unopposed