THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Case no: DA11/2025
In the matter between:
THE PASSENGER RAIL AGENCY OF
SOUTH AFRICA (PRASA) Appellant
and
R. C BLOM First Respondent
B.J. DAVIDS Second Respondent
R.I. NTHULANE Third Respondent
S.C. KHATHI Fourth Respondent
Heard: 26 February 2026
Delivered: 26 March 2026
Coram: TOKOTA AJA; COLLIS AJA and MOSHOANA AJA
JUDGMENT
MOSHOANA, AJA
(1) Reportable No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
LABOUR APPEAL COURT
2
Introduction
[1] This is an appeal against the judgment and order of the Labour Court. The
appeal comes before this Court following an order of the Labour Court dated
18 February 2025 granting the appellant leave to appeal. The four
respondents oppose the appeal namely; Mr RC Blom; Mr BJ Davids; Mr RI
Nthulane; and Mr SC Khathi. On 06 November 2024, the Labour Court
reviewed and set aside the arbitration award that found that the dismissal of
the respondents was fair and replaced it with an order that their dismissals
were procedurally and substantively unfair. The Labour Court also ordered the
appellant, Passenger Rail Agency of South Africa ( PRASA) to reinstate the
respondents retrospectively. The Labour Court directed the respondents to
report for duty within seven days of its order. The issue of the quantum of the
backpay was remitted to the Commission for Conciliation, Mediation and
Arbitration for determination.
Background Facts
[2] Briefly, the respondents were full time trade union representatives of two trade
unions namely; United National Transport Union (UNTU) and South African
Transport and Allied Workers Union (SATAWU). They were employed by
PRASA in various positions. Since November 2011, NGM Consultants and
Actuaries (Pty) Ltd (NGM) was appointed by PRASA as a medical aid broker
for the employees of PRASA.
[3] Over the years, complaints were raised against NGM. During November
2016, it was agreed that other medical aid brokers must be invited to the Joint
Bargaining Forum (JBF) to allow them to make representations with a view to
replace NGM. Indeed, two firms were invited; namely, MOSO Consulting
Services (MOSO) and Classique Medical Aid Consultants (Classique) to
make presentations. The trade union formation at JBF proposed that NGM be
replaced by MOSO and Classique as medical aid brokers. The management
formation was opposed to the proposal. There was a deadlock over the issue.
LABOUR APPEAL COURT
3
[4] A dispute of mutual interest was referred to the Commission for Conciliation,
Mediation and Arbitration ( CCMA) for resolution. The dispute was not
resolved and no strike action was called in support of the dispute. However,
an agreement was reached as part of wage negotiations on 19 May 2017 that
MOSO and Classique be appointed as brokers. Prior to the conclusion of the
wage agreement, there were road shows that were embarked on in Cape
Town and the respondents were part of tho se road shows . Later on,
allegations emerged that the respondents, particularly Mr Davids and Mr Blom
received bribes in the amount of R10 000 each in November 2016 in order to
influence the appointment of MOSO and Classique as medical aid brokers.
Various other allegations of receiving bribes were made against the
respondents.
[5] The respondents were hauled before a disciplinary enquiry to answer to
various allegations of misconduct. Advocate Cassim S C chaired the
disciplinary enquiry. Ultimately, the respondents were found guilty as charged
and were all dismissed on 19 November 2018. Aggrieved by their dismissals,
they approached the CCMA and alleged that their dismissals were both
procedurally and substantively unfair. The CCMA appointed Madam
Commissioner Navie Green- Thompson to resolve the dispute of unfair
dismissal through arbitration. The arbitration proceedings were conducted
over a lengthy period. The parties to the arbitration proceedings were all
legally represented. They concluded an extensive pre- arbitration agreement
on 18 June 2019, where certain facts were agreed to be common cause.
Those common cause facts are neatly set out by the Commissioner in her
arbitration award and do not merit repetition herein.
[6] On 14 April 2021, the Commissioner issued a detailed award and concluded
that the dismissals of the respondents were both procedurally and
substantively fair . She dismissed their respective claims. The respondents
substantively fair . She dismissed their respective claims. The respondents
were aggrieved thereby and launched an application in the Labour Court
seeking to review and set aside the award. As already indicated, the award
was reviewed and set aside, hence this appeal.
LABOUR APPEAL COURT
4
Judgment of the Labour Court
[7] The Labour Court judgment appears to have engaged in an appeal process
as opposed to a review. It speculated that if bribes were to be paid in order to
facilitate the appointment of MOSO and Classique, those would have
predated the process that commenced early in 2016. The Labour Court also
concluded that to the extent that Khumalo and Ndwandwe admitted that they
had secured bribes for themselves as a result of the appointment of the
brokers that did not necessarily impute guilt per se on the respondents.
[8] The Labour Court went on to conclude that by accepting the evidence of self -
confessed liars and in weighing that evidence against the denial of such
corrupt activities by the respondents despite the onus lying with the appellant,
the Commissioner did not act reasonably and failed to reach a conclusion that
another Commissioner could have reached given the evidence before her. In
a manner suggestive of an appeal process, the Labour Court concluded that
whatever suspicions that may have been held by the Commissioner regarding
the participation of the respondents in the “so- called” corrupt activities, it was
unreasonable for her to have concluded that the respondents on the
probabilities misconducted themselves based on the evidence before her.
Carefully considered, this finding of the Labour Court suggests that the
Commissioner was wrong when she concluded that the probabilities
demonstrated that the respondents were involved. It is difficult to understand
what the Labour Court means by the suspicions of the Commissioner.
[9] A Commissioner cannot hold suspicions. A Commissioner , as a trier of facts
would, applying the applicable standard of proof , conclude whether a party
who bears the onus, discharged that onus. This Court fails to understand why
the Labour Court resorted to label the corrupt activities testified to as the so -
called. The phrase so-called, is used to express one’s view that such a term is
called. The phrase so-called, is used to express one’s view that such a term is
inappropriate. The phrase is a modifier used to express doubt, scepticism ,
LABOUR APPEAL COURT
5
irony, or disapproval regarding accuracy or appropriateness. The corrupt
activities were testified to, and there was no objective basis for the Labour
Court to have labelled them as the so-called. The evidence of the self -
confessed liars, as the Labour Court labels them , suggests corrupt activities.
The fact that the respondents and the Labour Court considered them to be
liars does not and cannot change the texture of their evidence to a point of the
evidence being referred to as the so-called. The Commissioner accepted their
evidence, as she should have, and weighed that evidence, as she should
have, together with other available evidence. Such conduct is to be expected
from any trier of facts. It is difficult for this Court to appreciate any doubt the
Labour Court could have had to the corrupt activities evidence. Unless if the
review was treated as an appeal, contrary to the provisions of the LRA.
[10] Regarding procedural unfairness, the Labour Court reached a conclusion that
there was procedural unfairness simply because the Commissioner
overlooked the impact of the refusal of Advocate Cassim SC to recuse
himself. It is unclear what impact is the Labour Court referring to. There is
unambiguous evidence in the body of the award that the Commissioner gave
attention to the recusal challenge and with reference to binding authorities ,
she rejected that basis of procedural challenge. Again, it is apparent to me
that the Labour Court is suggesting that the Commissioner was wrong in
rejecting the challenge. That remains a wrong approach adopted by a Court
determining a review of a decision.
[11] A startling finding is one where the Labour Court decided to remit the backpay
issue for determination by the CCMA. Concerned by this startling finding, t his
Court afforded both parties an opportunity to make further submission on the
question whether the order made by the Labour Court was competent. Both
question whether the order made by the Labour Court was competent. Both
written submissions were received by the Court on 10 March 2025. This Court
extends its gratitude to both counsel for the well -researched and dextrous
submissions. The appellant correctly submitted that the order is not
competent. On the other hand, the respondent wrongly submitted that the
order was competent arising from the powers in section 145(4) of the LRA.
LABOUR APPEAL COURT
6
[12] This finding is startling in that section 193(1) of the LRA refers to three types
of re medies; namely (i) reinstate; (ii) re -employ; and (iii) compensation.
Nowhere in the LRA is there a power approbated to an arbitrator to order
payment of a backpay. According to Equity Aviation Services (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others 1, backpay
would arise from a reinstatement order. In any event, a backpay claim is a
contractual one that will be available once a reinstatement order is complied
with2. The CCMA having not made a finding that the dismissal is unfair , it
does not have statutory powers to order any of the remedies mentioned in
section 193(1). It was the Labour Court that made a finding that the dismissal
of the respondents is unfair – the jurisdictional requirement in section 193(1) -
then it would be within the powers of the Labour Court to exercise a discretion
on the remedies issue. Having chosen to reinstate, if so empowered, the
Labour Court ought to have ordered payment of backpay itself and not shift
responsibility, as it were, to the CCMA.
[13] The Labour Court in Department of Public Works v General Public Service
Bargaining Council and others3 had the following to say:
‘[20] It must be remembered that wages are owed because of the
contractual obligation to pay. That being so, the question is on what
basis does a commissioner or a judge for that matter make an order
for the payment of arrear wages when a contract of employment is not
restored by an award or order of reinstatement? Section 193(1)(a)
empowers an arbitrator or a Court to, in the exercise of discretion
order the employer to reinstate the employee from any date not earlier
than the date of dismissal. Nowhere in the section lies the power to
order payment of arrear wages. Thus, on literal interpretation of the
section, the power is that of ordering the employer to reinstate a
section, the power is that of ordering the employer to reinstate a
dismissed employee on a particular date. In other words, for the
purposes of this matter, the power was limited to ordering the DPW to
reinstate Ntwana effective from the date of her dismissal. On
1 (2008) 29 ILJ 2507 (CC).
2 See Kubeka and others v Ni-DA Transport (Pty) Ltd [2021] 4 BLLR 352 (LAC) at para 41.
3 (JR 1483/18) [2021] ZALCJHB 475 (5 March 2021)
LABOUR APPEAL COURT
7
application of the principle of legality a functionary cannot exercise
powers it does not have.’
[14] Therefore, in my considered view, the order made by the Labour Court in
paragraph 3 was incompetent . Section 145(4)(b) of the LRA empowers the
Labour Court to make an appropriate order about procedures to be followed
to determine the dispute. The dispute being one of alleged unfair dismissal.
The order in paragraph 3 is not about the procedure to be followed. It is in the
form of a mandamus, in the circumstances where the CCMA does not have a
statutory duty to determine the issue of backpay. It being a contractual claim,
the respondents could invoke the provisions of section 77(3) of the Basic
Conditions of Employment Act
4 and institute a civil claim.
The Labour Appeal Court
[15] Before us , Mr Schuman repeatedly submitted that the arbitrator was faced
with a situation where somebody was lying. On the question from the bench,
he conceded that in order to resolve the question as to who is lying, the
Commissioner had to apply the principle as set out in Stellenbosch Farmers'
Winery Group Ltd. and Another v Martell and Cie SA and Others
5. In his
submission, the Commissioner improperly applied the principle. On the other
hand, Mr Boda submitted that the Labour Court in interfering with the award of
the Commissioner failed to apply the correct test. He correctly submitted in
our view, that what was required, was to look at the award as a whole, as well
as the evidence holistically , in order to determine whether the reasons
advanced by the Commissioner pass the constitutional muster.
[16] Patently, the respondents effectively contend that the Commissioner was
wrong in concluding that they were guilty as charged. Mr Schuman forcefully
argued that the Commissioner made speculations that were not supported by
the evidence. He was heavily critical of the evidence of Khumalo and
Ndwandwe. In his submission, a reasonable arbitrator would have rejected
Ndwandwe. In his submission, a reasonable arbitrator would have rejected
their evidence as being unreliable and false.
4 Act 75 of 1997.
5 2003 (1) SA 11 (SCA).
LABOUR APPEAL COURT
8
Analysis
[17] Recently, the Constitutional Court reverberated the review test in terms of
Sidumo and another v Rustenburg Platinum Mines Ltd and others 6 in the
matter of Maleka v Boyce N.O and others 7. The majority judgment expressed
the following:
‘[60] It must be emphasised that the purpose of applying the test in Sidumo
is to ensure that administrative action by the CCMA is lawful,
reasonable, and procedurally fair. The test does not concern itself with
whether the award is right or wrong. What is of importance is whether
that decision, objectively viewed, falls within the spectrum of
reasonable decisions that one would make based on the evidence
before the decision maker . The enquiry therefore is focused on the
outcome and an assessment of whether the decision is capable of
reasonable justification. That the decision is unsatisfactory in one or
more respects is not enough to deem it unreasonable. It will, however,
stand to be reviewable and set aside if it is one that a reasonable
decision-maker could not reach.
[Own emphasis]
[18] When regard is had to the judgment of the Labour Court, it is clear that it
subjected the award to a correctness test. The award of the Commissioner is
lengthy. But what accounts for the length is that the Commissioner carefully
recorded each stage of the witnesses that testified before her. The Labour
Court or the respondents did not contend that her careful recordal of the
evidence of the witnesses was wrong and does not accord with the transcript.
When she analysed the recorded evidence, she dealt with each contention of
the parties as crystalised in the pre-arbitration minute.
[19] Regarding procedural fairness, she squarely concluded that there was no
evidence to support the contention that the Chairperson of the disciplinary
6 (2007) 28 ILJ 2405 (CC).
7 (CCT 175/23) [2026] ZACC 7 (24 February 2026).
LABOUR APPEAL COURT
9
enquiry ought to have recused himself. She also concluded that the
perception of bias based on sharing of offices between the representative of
the appellant and the Chairperson was not sufficient to justify recusal. She
concluded that both parties were afforded equal opportunity to be heard by an
independent legal practitioner. This Court is perplexed as to why these
findings are not reasonable. The question is not whether she was right that
the Chairperson afforded the parties equal opportunity to be heard. In my
view, on application of the approved test her findings on procedural unfairness
were unassailable. Her decision falls within the bands of reasonableness. In
interfering with that decision, the Labour Court erred and its decision ought to
be set aside by this Court.
[20] Regarding substantive fairness, the nub of the appellant’s allegations was that
the respondents improperly accepted financial and other inducements from
the two brokers. Having analysed the evidence before her, the Commissioner
reached the following reasonable conclusion:
‘If I accept this evidence from the documents before me and the oral evidence
of Mr Khumalo and Mr Ndwandwe, then there exists no reason for me to
reject the balance of Khumalo and Ndwandwe’s overall evidence, subject to
my comments under the subheading credibility below.
[21] When dealing with the credibility issue, she clearly demonstrated that
guidance ought to be sought from the Stellenbosch Farmers Winery decision.
The argument by Mr Schuman that she failed to properly apply the principles
of the SCA decision falls to be rejected. Section 138(1) of the LRA impels
commissioners to resolve the dispute with the minimum of legal formalities.
Whether she misapplied the principles or not, what matters is whether she
reached a reasonable decision or not. In my view, she did.
[22] Her conclusions that the appellant had discharged the statutory onus to prove
[22] Her conclusions that the appellant had discharged the statutory onus to prove
a fair reason related to the conduct of the respondents cannot be assailed. As
an example, t he evidence of Khumalo, even if the Labour Court labels him a
self-confessed liar, was that at Cape Town Southern Sun Hotel, Mr Davids
and Mr Blom received R10 000 each from Classique as a bribe. A further
LABOUR APPEAL COURT
10
R10 000 was given to Mr Davids at the Southern Sun Hotel in Pretoria.
Evidence of this nature proved that the respondents were guilty as charged.
The fact that the Commissioner accepted evidence of this nature cannot be
considered to be unreasonable. She was a trier of facts and the evidence was
admissible, so she had to assess it together with other evidence. The case of
the respondents was that of bare denial. According to them all the witness es
and the documentary evidence lied. It remains the statutory duty of a
commissioner to determine the fairness of a dismissal related to conduct. It is
not the duty of the Labour Court to do so. As confirmed in Maleka, the duty of
the Labour Court is circumscribed. Judicial overzealousness has long been
discouraged by the Constitutional Court.
Conclusion
[23] It is the view of this Court that the Labour Court followed a wrong approach to
the review application. The standard applied by the Labour Court is clearly
one that applies in appeals as opposed to a review. The award of the
Commissioner was well-reasoned, detailed, and easy to follow. It is clear that
she identified the principal issue, assessed that issue, and reached a
reasonable conclusion, which is clearly consistent with the evidence
presented before her. In interfering with her award, the Labour Court erred
and its order is liable to be set aside on appeal.
[24] In the circumstances the following order is made:
Order
1. The appeal is upheld.
2. The order of the Labour Court is set aside, and it is replaced with an
order that:
“The application for review is dismissed.”
3. There is no order as to costs.
LABOUR APPEAL COURT
11
_______________________
G. N. MOSHOANA
Acting Judge of the Labour Appeal Court of South Africa
Tokota AJA and Collis AJA concurring.
APPEARANCES:
For the Appellant : Mr FA Boda SC
Instructed by: Norton Rose Fulbright SA Inc,
La Lucia Ridge.
For the Respondent : Mr. P Schumann
Instructed by: J Phillips Attorneys, Durban.