THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 2294/19
In the matter between:
INNOCENTIA DUDZILE NKAMBULE Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL First Respondent
MOHAU NTAOPANE N.O. Second Respondent
CITY OF MBOMBELA
LOCAL MUNICIPALITY Third Respondent
Heard: 13 June 2025
Delivered: 24 April 2026 (This judgment was handed down electronically
by emailing a copy to the parties. The 24 April 2026 is deemed to be the
date of delivery of this judgment).
JUDGMENT
NHLAPO, AJ
Introduction
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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[1] This is an application for the review and setting aside of an arbitration
award issued by the Second Respondent, Commissioner Mohau
Ntaopane (the Commissioner), under the auspices of the South African
Local Government Bargaining Council (the Council), under case number
MPD051909, dated 21 August 2019. The Commissioner dismissed the
Applicant’s claim that the Third Respondent, the City of Mbombela Local
Municipality (the Municipality), had committed an unfair labour practice
relating to demotion.
[2] The Applicant, Ms Innocentia Duduzile Nkambule, a Senior Clerk
employed by the Municipality, seeks an order reviewing and setting aside
the award and substituting it with a finding that an unfair labour practice
was committed, together with appropriate relief. The Municipality
opposes the application, contending that the award is correct in both fact
and law.
Factual Background
[3] The Applicant commenced employment with the former Umjindi
Municipality on 2 May 1997, initially as a service centre assistant and
subsequently as a cashier, before being appointed as a Senior Operator
in Data Processing in 2002.
[4] At Umjindi Municipality, this position was classified at Post Level 9, with a
salary notch of R173,615.66 per annum. Her duties included collecting
information from meter readers, merging data into systems to generate
consumer accounts, ordering of data, data capturing relating to meter
readings, opening of consumer accounts, income and expenditure
processing, month- end procedures, printing of financial reports, and
control of daily receipts.
[5] On 10 August 2016, the former Umjindi Municipality amalgamated with
the former Mbombela Local Municipality to form the City of Mbombela
Local Municipality. The amalgamation was directed by the Provincial
Premier and Cabinet, with the Department of Cooperative Government
(CoGTA) overseeing the process.
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[6] A placement committee was constituted comprising eight members from
the employer side and eight from labour (SAMWU and IMATU), chaired
by the former General Manager: Corporate Services of the former
Umjindi Municipality. The placement process was guided by four key
documents: the approved organisational structure, the placement policy,
and the HR reports from both former municipalities.
[7] The placement policy, at clause 4.3, set out the close match placement
principle as follows:
“Employees are to be placed in the new structure on a close match
basis. In close matching a post, the job content of the new post is
compared to the existing job content of the employees… Where the
close match cannot be done 100%, the match must be done on the most
matched job content.”
[8] Following this process, the Applicant was placed as a data capturer ,
within the Administration and Customer Care Division (Valuations and
Rating section), Southern Region, at Post Level 10.
[9] The placement letter issued to the Applicant confirmed her new
designation and attached a draft generic job description. That draft
described the job purpose as:
“To perform task activities associated with the processing of data in the
tourism development section, capturing information and assisting with
the administrative functions on an ad hoc basis.”
[10] The Applicant testified that she had no familiarity with the tourism
development section or its duties, and that she had remained in the
Billing and Accounts department performing the same duties as she had
at Umjindi Municipality.
[11] The Municipality’s witness, Ms Tinyiko Predu Thibi (Manager:
Organisational Design), explained that the job description attached to the
placement letter was a draft generic document which employees were
required to peruse, amend to reflect their actual duties, and return signed
to Corporate Services by 31 March 2017.
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[12] She submitted that the correct, system -generated job description for the
data capturer position in the Billing and Accounts section appeared at
page 33 of the respondent’s bundle, and that this was the document
used for close-matching purposes during the placement process.
[13] The Applicant lodged an objection to her placement. The Placement
Objection Committee — which also included union and SALGA
representatives — found that the Applicant had been correctly placed,
recommending reorientation and induction including finalisation of her job
description.
[14] The Applicant subsequently appealed. An independent appeals body,
Emanzini Staffing Solutions, was appointed to hear appeals. The appeal
commissioner found:
“I therefore recommend that the placement of I D Nkambule be
confirmed in terms of the decision of the placement committee, which
was also confirmed by the objections committee.”
[15] Three successive and independent committees — the placement
committee, the placement objections committee, and the appeals
committee — all confirmed that the Applicant had been correctly placed.
[16] Ms Queen Bothma, the Applicant’s second witness, was a Clerk Grade 1
employed in the same billing section. She had also been placed as a
data capturer following the amalgamation, but her appeal against her
placement was successful, resulting in her designation being corrected to
Clerk Grade 1.
[17] She testified that all three employees — herself, the Applicant, and Ms
Retha Phule — were performing the same billing duties, yet only her own
redesignation to Clerk Grade 1 had been approved.
[18] The Chief Financial Officer of the Municipality, through the Senior
Manager: Revenue (Mr Pumula Mathebula), addressed a memorandum
to the General Manager: Corporate Services recommending that the
Applicant, Ms Bothma, and Ms Koening be:
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“…placed in line with their functions currently performed at the level of
clerk grade 1.”
[19] However, this memorandum was never signed or approved by the
General Manager: Corporate Services, who was the responsible
authority for placements.
[20] Ms Thibi testified that the memorandum therefore did not carry
institutional authority, as the decision- making authority for placements
vested in the General Manager: Corporate Services alone.
The Arbitration Award
[21] The Commissioner made the following material factual findings:
21.1 The Applicant’s salary had increased twice since the
amalgamation and she was not financially worse off.
21.2 All witnesses confirmed that the Applicant continued to perform
the same duties as she had at Umjindi Municipality, and remained
senior to her two colleagues.
21.3 The allegation that the position of data capturer did not exist on
the organogram was not convincingly substantiated; Ms Bothma
appeared to speculate on this point, while the Municipality
produced documentary evidence showing the position in the
southern region organogram.
[22] The fact that Ms Bothma’s appeal succeeded did not mean that the
Applicant’s appeal should similarly have succeeded, as placement was
determined per individual and the two employees presented different
cases to the appeals body.
[23] The unapproved CFO memorandum was “ problematic” precisely
because the person on whose behalf it was written — the General
Manager: Corporate Services — did not endorse it, suggesting divergent
institutional views on the matter.
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[24] If the Applicant had been asked to act in a Clerk Grade 1 position when
she threatened to stop performing billing duties, this indicated that the
Clerk Grade 1 position was a higher position than the one she occupied
— thereby contradicting her assertion that she was demoted.
[25] The Commissioner concluded that the Applicant’s status had not been
diminished relative to her status at Umjindi Municipality, and her salary
had not been reduced. The Commissioner directed that if colleagues
performing similar duties were earning more than the Applicant, the
appropriate remedy would be a dispute of equal pay for work of equal
value, not a demotion claim. The Commissioner held:
“The applicant, Ms Innocentia Nkambule, has not demonstrated that the
respondent, City of Mbombela Local Municipality, committed an unfair
labour practice related to demotion.”
Grounds of review
[26] The Applicant raised the following grounds of review in her founding
affidavit:
26.1. The Commissioner failed to appreciate and give effect to her
powers and duties in terms of section 138 of the Labour Relations
Act1 (LRA).
26.2. The Commissioner adopted an approach unjustified on the facts
and inconsistent with her statutory duty;
26.3. The Commissioner made wrongful and unjustifiable factual findings
against the Applicant.
26.4. The Commissioner did not properly apply her mind in arriving at
her findings.
26.5. The Commissioner considered irrelevant matters and failed to
take proper account of relevant matters.
1 Act 66 of 1995, as amended.
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26.6. The Commissioner arrived at an award that no other reasonable
decision-maker would have made.
[27] The Applicant specifically contended that:
27.1. The Commissioner dismissed her evidence that she was not
performing the duties of the new position and was unfamiliar with
the Tourism Development section.
27.2. The finding that her responsibilities as a data operator and data
capturer were a “close match” was not supported by the totality of
the evidence.
27.3. The Commissioner failed to consider that she had been instructed
to continue her former job post -amalgamation despite her duties
and grade being substantially changed.
27.4. The Commissioner failed to consider that she was performing
work for substantially less remuneration than colleagues in the
same job.
Analysis
[28] The Commissioner correctly applied the tests from Nxele v Chief Deputy
Commissioner, Corporate Services, Department of Correctional
Services2 (that status, prestige and responsibilities are relevant) and
SAPS v Salukazana3 (that movement leading to a reduction of status is a
demotion), and correctly relied on Mangcu v City of Johannesburg 4 for
the proposition that demotion is naturally accompanied by a
commensurate salary reduction.
[29] On the financial element: It is common cause that the Applicant received
an unbroken series of salary increases following placement. This finding
was supported by the Applicant’s own testimony that she received
2 (2008) 29 ILJ 2708 (LAC).
3 (2010) 31 ILJ 2465 (LC).
4 [2017] 10 BLLR 1055 (LC).
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increases of 7.36% in July 2017 and 7% in 2018. There was therefore no
financial loss whatsoever.
[30] On the status element: The Applicant’s own evidence confirmed that she
continued to perform the same billing duties she had always performed,
and remained the senior of the three employees in the section. The
assertion that her status was diminished is difficult to sustain where she
continued performing identical work and remained recognised as the
senior employee.
[31] On the post level element: The Applicant moved from Post Level 9 at
Umjindi to Post Level 10 at Mbombela — a numerical increase. The
Applicant’s own case under cross-examination was that she wished to be
placed at Post Level 11 (Clerk Grade 1), meaning she was aware her
new placement was numerically higher than her Umjindi level.
[32] On the close match finding: The close match was between the position of
Data Operator (Task Grade 8) at Umjindi and Data Capturer (Post Level
10) at Mbombela. The placement policy expressly provided that “ the
close match is done on job content and not job designation.” The correct
job description for the Data Capturer in the Billing and Accounts section
described duties relating to data capturing in billing, accounts, and meter
reading — substantially aligned with what the Applicant had been
performing at Umjindi. The Commissioner’s finding that the close match
was not unreasonable was supported by the evidence.
[33] On the tourism job description: The attachment of a generic draft job
description referencing tourism development duties to the placement
letter was a logistical shortcoming in the placement process — one that
Ms Thibi candidly acknowledged arose from the challenge of processing
2,013 placement letters. The Applicant was invited to peruse, amend,
and return the job description by 31 March 2017. She did not do so. The
Commissioner’s treatment of this issue — as a draft document that could
not define the placement — was a conclusion open to a reasonable
not define the placement — was a conclusion open to a reasonable
decision-maker.
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Equal pay issue distinguished from demotion
[34] The Applicant’s most compelling factual complaint is not that she was
demoted, but that she is performing work of equal value to Clerk Grade 1
colleagues who are paid more. The Commissioner made the careful and
legally correct observation that this grievance — however meritorious on
its own terms — is a separate cause of action under equal pay for work
of equal value principles, not a demotion claim. The Applicant’s complaint
that she is under remunerated relative to her colleagues is not
synonymous with having been demoted. A demotion requires a
deterioration from a previous position; here, the evidence shows the
Applicant’s position improved financially and in grade from what she held
at Umjindi.
CFO memorandum
[35] The unapproved CFO memorandum recommending Clerk Grade 1
placement for the Applicant cannot be treated as determinative. The
General Manager: Corporate Services was the authority responsible for
placements, and that official never appended a signature approving the
recommendation. The memorandum represents a recommendation —
one that was not acted upon through the correct institutional channels —
and cannot be construed as an admission that the placement was
unlawful or constituted a demotion.
Bothma comparison
[36] Ms Bothma’s successful appeal to Clerk Grade 1 status does not
establish that the Applicant’s placement was incorrect or constituted a
demotion. Ms Thibi testified credibly that placement was determined per
individual, and the appeals body would have considered each case on its
own merits.
[37] The evidence does not disclose what specific grounds Ms Bothma relied
upon in her appeal, nor is it known whether the appeals commissioner
applied different factual considerations to her case. The Commissioner’s
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treatment of this issue — as inconclusive on the question of whether the
Applicant was correctly placed — was reasonable.
[38] The Commissioner’s finding that Ms Bothma “appeared to speculate” in
respect of the organogram is supported by the transcript. In cross -
examination, Ms Bothma conceded that she “could be wrong” about
whether data capture positions appeared on the finance billing section
organogram.
[39] She was also shown to have been confused about whether the
Applicant’s placement letter referred to Tourism Development, ultimately
conceding it did not — it referenced Administration and Customer Care.
A negative credibility assessment of this witness was reasonably
available to the Commissioner on the record.
Conclusion
[40] Applying the test enunciated in Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others 5— whether the decision reached by the
arbitrator is one that a reasonable decision- maker could not have
reached — this court finds that the Commissioner’s award falls squarely
within the bounds of reasonableness, and the following considerations
are determinative:
40.1. No salary reduction: The Applicant’s salary increased consistently
and materially from placement. This is the most fundamental
indicator against a finding of demotion, recognised expressly in
Mangcu v City of Johannesburg.
40.2. No reduction in status or responsibilities: The Applicant continued
to perform the same duties, in the same section, with the same
seniority over colleagues.
40.3. No reduction in post level: The Applicant moved from Post Level 9
to Post Level 10 — a numerical upgrade in grade.
5 (2007) 28 ILJ 2405 (CC).
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40.4. A lawful, representative placement process: Three independent
and jointly constituted committees — including union
representatives — confirmed the correctness of the placement,
with the appeals stage handled by an independent external body.
40.5. The correct job content was applied to close- matching: The
tourism draft was a generic placeholder; the system -generated
billing job description was used for close-matching purposes.
40.6. The distinction between demotion and an equal pay claim was
correctly drawn by the Commissioner. The Applicant’s real
complaint relates to remuneration parity with colleagues — not to
any deterioration from her Umjindi position.
[41] In view of the ongoing employment relationship between the parties, an
adverse costs order is not appropriate.
[42] In the results the following order is made:
Order
1. The review application is dismissed.
2. The Applicant’s claim that the Third Respondent committed an
unfair labour practice relating to demotion is dismissed.
3. No order as to costs.
_______________________
SB Nhlapo
Acting Judge of the Labour Court of South Africa.
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Appearances:
For the Applicant : Doman Weitsz Attorneys
For the Respondent : Msikinya Attorneys & Associates