THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no:JR430/22
In the matter between:
MOBILE TELEPHONE NETWORKS PROPRIETARY
LIMITED Applicant
and
COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION First Respondent
COMMISSIONER XOLANI NYAMEZELE N.O Second Respondent
NEO THLAME Third Respondent
Date of Hearing: In chambers
Date of Judgment: 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 of handing down judgment is deemed to be 2 4 April
2026.
JUDGMENT IN THE LEAVE TO APPEAL APPLICATION
(1) Reportable: No
(2) Of interest to other Judges: No
______________ ______________
Signature Date
GANDIDZE, J
Introduction
[1] Mobile Telephone Networks Proprietary Limited (MTN) seeks leave to appeal
against the judgment and order of this Court delivered on 10 November 2025,
which partially reviewed and set aside an award in favour of a former
employee, Neo Thlame (Thlame). The order found that Thlame was guilty of
misconduct, as the commissioner had not expressly ruled on this issue in the
award. It also reduced the back pay payable to Thlame to six months.
[2] Thlame opposed the application, and although the submissions made on his
behalf have not been referred to in this judgment, they were taken into
account.
Leave to appeal grounds
[3] MTN submits that the court failed to consider, or to consider appropriately, the
factors that render dismissal the only appropriate sanction. The factors not
considered or properly considered are (i) that Thlame showed no remorse,
which the court acknowledged, and that it is trite that an employer is not
expected to reinstate an employee who lacks remorse; (ii) the gravity of the
misconduct, namely absence from work and defiance of a manager's
instruction to report for duty; and (iii) that Thlame was a repeat offender
despite that progressive discipline had been applied.
[4] The second ground on which leave to appeal is sought is that no back pay
ought to have been awarded to Thlame.
[5] MTN submits that there is a reasonable prospect that another court will come
to a different conclusion on the above issues
The test in applications for leave to appeal
[6] Section 17(1) of the Superior Courts Act 1 sets out the only grounds on which
leave to appeal may be granted. These include, inter alia , a prospect of
1 Act 10 of 2013.
success and a compelling reason for the appeal to be heard. MTN relies
solely on its prospects of success in the Labour Appeal Court (LAC) finding
that Thlame deserved to be dismissed, and if that fails, that he should not
have been awarded any backpay.
[7] In considering whether an appeal would have prospects of success, the court
a quo must consider whether the LAC could reasonably reach a different
conclusion from its decision and whether there is a realistic prospect of the
appeal succeeding.2
Discussion
[8] The applicant submitted that a judgment reinstating an employee who has
been counselled and is already on a final written warning has a ‘chilling
effect’, in that it sends a message that an employee who repeats the same
misconduct cannot be reinstated. The main judgment did not and could never
have established such a principle.
[9] The submission that it is ‘ trite tha t an employer cannot be expected to
reinstate an employee who is not remorseful ’ was not supported by case
authorities establishing such a principle . De Beers Consolidated Mines Ltd v
Commission for Conciliation, Mediation and Arbitration and Others3 which was
relied upon, does not lay down a principle that an employee who shows no
remorse must automatically be dismissed. MTN’s own submission is that , in
De Beers, the court found that a lack of remorse makes reinstatement difficult.
That is very different from saying that an employee who shows no remorse
can never be reinstated. In De Beers, the employees were charged with fraud,
which was considered serious. The misconduct committed by Thlame cannot,
by any stretch of the imagination, be compared to what the employees in De
Beers were charged with.
2 S v Smith 2010 (1) SACR at 576 (SCA).
3 (2000) 21 ILJ 1051 (LAC).
[10] Reliance was also placed on Algoa Bus Co (Pty) Ltd v Tirisano Transport &
Services Workers Union on behalf of Mazwi and Others 4. The proper context
of the paragraphs relied upon is that the court was at pains to re- emphasise
the principle that all factors must be considered. It stated this:
‘[13] To the extent that Mr Higgs submitted that the arbitrator had
misdirected himself because the appellant had led no evidence at the
arbitration hearing regarding the seriousness of the accident, or whether
it constituted a major or minor incident, the fact that these factors
receive specific mention in the code does not require evidence to be led
in a mechanistic fashion, in some isolated sense, regarding each of
these factors — they are better considered in the context of the evidence
as a whole. This is precisely what the arbitrator did. The arbitrator
considered the facts before him in a holistic fashion (as he was obliged
to do), and came to the conclusion that, having regard to all the relevant
factors, dismissal was an appropriate sanction. In the course of his
consideration of an appropriate sanction, he clearly had regard to the
seriousness of the employee’s misconduct, the actual and potential
consequences and importantly, the employee’s mendacious denial of
any misconduct. As this court has previously stated, the
acknowledgment of wrongdoing is the first step towards rehabilitation.
In the present instance, the employee refused to take even that first
step. In short: the arbitrator’s assessment of the evidence regarding the
appropriateness of dismissal as a sanction cannot be faulted.’
[11] A lack of remorse does not outweigh all other factors, and whether it justifies
dismissal in a given case is to be decided on the facts of that case.
[12] The further case authorities, which were referenced and, as correctly pointed
out, are binding on this court, namely Western Cape Education Department v
Baatjes & Others5 (Baatjies), and Masscash (Pty) Ltd t/a Jumbo Cash & Carry
Baatjes & Others5 (Baatjies), and Masscash (Pty) Ltd t/a Jumbo Cash & Carry
v Mtsotsoyi & Others 6 (Masscash), do not lay down the principle that
employees who show no remorse must not be reinstated. Instead, they
4 (2025) 46 ILJ 89 (LAC).
5 (2022) 43 ILJ 1353 (LAC).
6 (2023) 44 ILJ 162 (LAC).
reiterate that whether an employee must be dismissed is to be decided by
considering all relevant factors. For instance, in Baatjies, the court listed the
relevant factors that justified dismissal as follows:
‘[64] To the contrary, the nature of the misconduct, which includes two
assaults on a 12- year-old learner and another on the learner’s 56-year-
old elderly petite grandmother over two consecutive days, exacerbated
further by the gravity of the misconduct which includes the unprovoked
manner in which the respondent hit the learner and his grandmother
and the injuries sustained, coupled with the statutory injunction not to
administer corporal punishment against learners, the overriding
constitutional principle of the best interests of the child, as well as the
respondent’s lack of remorse, manifestly justify dismissal as an
appropriate sanction. As such, the dismissal stands to be confirmed.’
[13]
The relevant paragraphs from Masscash , reproduced in MTN’s heads of
argument make the same point that several factors must be taken into
account when deciding whether an employee must be dismissed. The main
judgment sets out the factors th e court considered in concluding that the
commissioner’s decision that dismissal was harsh cannot be interfered with
on review.
[14] The submission that reinstating an employee who shows no remorse runs
counter to the Constitutionally entrenched right to fair labour practices that
MTN, as an employer, enjoys is, in the Court’s view, an exaggeration of the
real issue at hand. The case does not raise a Constitutional issue. It is not in
every case where an employee shows no remorse that the misconduct should
be met with a sanction of dismissal. Thlame’s lack of remorse, together with
the gravity of the misconduct, the fact that he defied a manager’s instruction,
and the previous warnings were all factors considered in reducing his backpay
to six months.
[15] The court’s conclusion that the commissioner was biased against MTN and its
[15] The court’s conclusion that the commissioner was biased against MTN and its
witnesses could not, on its own, lead to a conclusion that the award was
reviewable, an issue dealt with in the main judgment.
[16] There is no prospect that the LAC will reach a different conclusion from the
finding that the dismissal was too harsh. Thlame’s lack of remorse is not a
decisive factor in determining the sanction. Thlame’s back pay was reduced
so that he did not get off scot-free. Leave to appeal on this ground is refused.
That no back pay should have been awarded
[17] This ground of leave to appeal must also fail. The back pay payable to
Thlame was reduced precisely because MTN’s case on review was that the
back pay ought to have been limited. That submission was accepted by the
court, and Thlame’s back pay was reduced. There is no prospect that the LAC
will interfere with that decision on appeal , and find that no backpay ought to
have been awarded.
[18] In the result, the following order is made:
Order
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa