THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Case no: DA25/24
In the matter between:
MONDI SOUTH AFRICA (PTY) LTD Appellant
and
NATIONAL BARGAINING COUNCIL FOR THE First Respondent
WOOD AND PAPER SECTOR
MF KHAWULA N.O. Second Respondent
NTOKOZO E. ZUNGU Third Respondent
MLONDI S. MTETWA Fourth Respondent
THABO M. MABUZA Fifth Respondent
MFUNDO MANQELE Sixth Respondent
KP DUMAKUDE Seventh Respondent
CEPPWAWU Eighth Respondent
(1) Reportable: NO
(2) Of interest to other Judges: Yes
___________ __________
Signature Date
2
Heard: 24 March 2026
Delivered: 06 May 2026
Coram: Nkutha-Nkontwana JA, Tokota AJA et Collis AJA
Summary: Sanction review - strike misconduct – armed picket – peaceful strike
conceded – no evidence of violence or intimidation - exceptional circumstances justify
reinstatement – retrospective back pay equivalent to 12 months denied - Pailprint and
Pailpac distinguished.
JUDGMENT
NKUTHA-NKONTWANA JA
Introduction
[1] The Constitutional Court has consistently recognised that the right to strike is not
merely derivative or residual, but a fundamental constitutional right and a central
pillar of the collective bargaining system envisaged by section 23 of the
Constitution.
1 However, the exercise of the right to strike is not unfettered .
Peacefulness is not optional, the Constitutional Court instructs ; a strike action
characterised by violence, intimidation, or damage to property falls outside the
scope of constitutional protection.
2
[2] In the present case, the parties accept the above tenet s. The dispute, however,
lies in whether it admits the qualification contended for by the eighth respondent
(CEPPWAWU) and its members, the third to seventh respondents (respondent
employees). CEPPWAWU and the respondent employees are collectively
1 See: SATAWU v Moloto and Another N.N.O. [2012] ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR
1177 (CC) (Moloto) at para 44.
22 See: SATAWU and Another v Garvas and Others 2013 (1) SA 83 (CC) at paras 51-53; see also
ILO, Freedom of Association: Digest of decisions and principles of the Freedom of Association
Committee of the Governing Body of the ILO (5th rev. ed. 2006) at para 651.
3
referred to as the respondents. Their case is that , while armed picketing
constitutes grave misconduct, dismissal could not have followed as a matter of
course. The arbitrator considered the mitigating factors and reasonably
concluded that they collectively constituted exceptional circumstances justifying a
lenient sanction, so the argument further went. These arguments must be
measured against the settled jurisprudence of this Court. In Pailprint (Pty) Ltd v
Lyster N.O and Others ,3 this Court addressed the legal consequences of armed
picketing during an otherwise protected strike, an approach subsequently
confirmed in Pailpac (Pty) Ltd v De Beer N.O and Others .
4 It is to the tenet it
establishes that this appeal, which is by leave of this Court, turns.
Background
[3] The respondent employees were employed by the appellant ( Mondi South
Africa). The respondent employees had participated in a protected strike called
by CEPPWAWU, which commenced on 5 October 2020. The picketing was
regulated by picketing rules agreed upon by Mondi South Africa and
CEPPWAWU, which expressly prohibited the carrying of weapons. The
respondent employees were charged and found guilty of "acting wrongfully and
unlawfully and in breach of clause 22 of the picketing agreement by carrying a
weapon whilst engaging in the strike”.
[4] The CEPPWAWU successfully challenged the dismissal of the respondent
employees, a dispute that was arbitrated under the auspices of the first
respondent. The second respondent (arbitrator) found the respondent employees
guilty of brandishing weapons during a strike picket in breach of the picketing
agreement. Notwithstanding a finding of guilty, the arbitrator was not convinced
that the sanction of dismissal was appropriate , making the following
observations:
3 [2019] ZALAC 43; (2019) 40 ILJ 2047 (LAC); [2019] 10 BLLR 1139 (LAC) (Pailprint)
4 [2021] ZALAC 3; (2021) 42 ILJ 1038 (LAC); [2021] 6 BLLR 570 (LAC) (Pailpac)
4
'40. In respect of the appropriateness of the sanction of dismissal, I am of the
view that there are mitigating factors against the sanction of dismissal in
that on their first days of carrying weapons, when they were told to put them
away, either by fellow employees or Police Officers, they complied and that
they had clean disciplinary records and as much as their length of service
varies but they have been with the respondent for a longer period. Those
who were carrying branches of trees can be given a benefit of doubt that it
was not their intention to bring weapons to the strike.
41. During the arbitration, they all appeared apologetic and some literally
apologised and those who were carrying branches of trees did not bring
them from home which shows that they did not have any intention of being
armed during the strike. During the hearing, I had an opportunity to observe
the applicants' demeanour , they did not appear as employees who might
repeat the same misconduct. Some of them participated to the strike for
only one day and either stayed at home or went back to work. I was
therefore convinced that they valued their jobs more than participating in
the strike. According to the CCMA guidelines on misconduct arbitration,
dismissal is not a punishment. It is a rational response to risk management
in the affected enterprise, ... In view of the above, the respondent is not
facing any risk of further instances of such misconduct.
42. I am of the view that in this case, progressive discipline would have been
an appropriate sanction. Had applicants committed violent acts, e.g. literally
intimidating other employees, public or contractors, damage to property or
assault as alleged in one of the court orders. they would have been
charged and disciplined accordingly ... The applicants' only act of
misconduct was that of carrying weapons during the strike. However, I do
accept the argument of the respondent that carrying weapons during the
accept the argument of the respondent that carrying weapons during the
strike has the potential to scare other employees and contractors ... The
fact that the applicants were disciplined only for carrying weapons, tells me
that they were not involved in any other act of misconduct.’
[5] The arbitrator found the dismissal substantively unfair and ordered reinstatement
of the respondent employees without any b ack pay. He opined that , since the
5
respondent employees were not approaching justice with clean hands, denying
them back pay equivalent to 12 months' salary, respectively, ‘[would] send a clear
message to [them] that carrying weapons whilst picketing is prohibited’.
Before the Court a quo
[6] Mondi South Africa impugned the arbitrator's findings on the appropriateness of
the sanction of dismissal in a review application that served before the Court a
quo. The crux of its impugn was that the arbitrator paid no heed to the dictum of
this Court in Pailprint, ratified in Pailpac, that brandishing weapons during a strike
picket is a dismissible misconduct. It further argued that the arbitrator
misconceived the nature of the enquiry and made findings on the
appropriateness of the sanction that are out of kilter with the evidence in the
transcript.
[7] The respondents defended the arbitration award as reasonable. They contended
that, notwithstanding the ratio in Pailprint and Pailpac, brandishing weapons
during a strike picket does not constitute automatic ground for dismissal. On the
facts of the present case, Pailprint and Pailpac are patently distinguishable, so it
was further argued.
[8] The Court a quo took cognisance of the higher threshold for interference in a
sanction review and the fact that the arbitrator was enjoined to consider all
relevant circumstances when determining the fairness of the dismissal of the
respondent employees.
5 It rejected Mondi South Africa’s argument that Pailprint
and Pailpac find application in the present case, as the respondent employees
had been charged solely with carrying weapons.
[9] The Court a quo accordingly refused to interfere with the award for the following
reasons: (i) ‘there were apologies, verbalised in some cases and perceived
(through demeanour) in others, and there is nothing to suggest that they were not
5 See: Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28
ILJ 2405 (CC) paras 78 and 79.
6
genuine’; (ii) ‘there was no evidence of 'intimidating and threatening behaviour',
and it cannot be assumed (given the facts of this matter) that anyone had been
intimidated or threatened by any of the third to seventh respondents ’; (iii) ‘that
lengths of service were considered in mitigation is not … an error of law ’.
Moreover, the respondent employees ’ conduct did not go unpunished, as they
were penalised by being denied back pay equivalent to 12 months' salary.
In this Court
[10] In this Court, Mondi South Africa persists in its attack on the arbitrator’s findings,
which it argues are out of kilter with the evidence in the transcript. It submits that
the respondent employees’ respective versions of defence were patently
dishonest; they never took responsibility for their transgressions ; their apologies
were insincere and opportunistic; and their long services heightened the gravity
of their transgressions . Therefore, Pailprint and Pailpac are in all fours with the
present case.
[11] CEPPWAWU submits that the Court a quo cannot be faulted for its deferential
stance. T he arbitrator reasonably exercised its value judgement based on the
totality of the circumstances, which are distinguishable from those in Pailprint and
Pailpac, and preferred a lenient sanction. However, the arbitrator’s refusal to
award back pay was sufficiently punitive to make a point that carrying weapons
during strike pickets is illegal.
Discussion
[12] The enquiry before this Court is a narrow one. In a sanction review, the issue is
not whether dismissal would also have been an appropriate or reasonable
outcome, but whether the sanction imposed by the arbitrator falls within the
range of decisions that a reasonable arbitrator could reach.
6 It is common cause
that the strike was peaceful and that no actual violence occurred. B ut that does
not detract from the established tenet in Pailprint, affirmed in Pailpac and other
6 See: Sidumo above fn 5.
7
decisions of this Court, that participation in an armed picket constitutes serious
misconduct. It is correct, however , as the respondents argue, that Pailprint does
not establish dismissal as an inflexible or automatic consequence, nor does it
dispense with the requirement that a sanction be determined through a context -
sensitive and proportionate assessment.
Seriousness of the offence
[13] In my view, the approach adopted by t he arbitrator was legally sound. He did not
discount or neutralise the seriousness of the misconduct by his consideration of
mitigating factors, but was expressly recognised and accordingly informed the
outcome and the remedy . What is clear fr om the award is that t he arbitrator
evaluated thirteen mitigating factors cumulatively, not in isolation, and asked
whether dismissal was the only sanction consistent with fairness in the light of
the context and factual matrix. Pointedly , Mondi South Africa confined its
challenge before the Court a quo to only three of those considerations : a finding
on remorse, the absence of evidence of intimidation, and the respondent
employees' length of service. Since the remaining findings were not challenged,
they did not receive the attention of the Court a quo and aptly so.
Remorse
[14] The contention that an absence of genuine remorse renders dismissal inevitable
proceeds from a misconceived understanding of the enquiry in a sanction review.
Remorse is a relevant consideration in the assessment of sanction, but it is not a
dispositive requirement. Contrary to Mondi South Africa's contention, t he
arbitrator did not ignore its criticism regarding accountability and apology.
Instead, he accepted the respondent employees’ evidence that , once they were
instructed not to carry weapons, they complied willingly and never did thereafter
for the duration of the strike. They also expressly apologised and committed not
to repeat the misconduct.
8
[15] Mondi South Africa’s reliance on the respondent employees' alleged dishonest
versions and lack of genuine remorse does not assist its case. The arbitrator did
not accord a significant mitigating weight to remorse but considered all the
mitigating factors cumulatively. In any event, assessments of credibility and
remorse fall within the arbitrator's province. To require a review court to impose
its own assessment of sincerity as decisive would collapse the distinction
between review and appeal and offend the principle of institutional restraint.
Peaceful strike
[16] Mondi South Africa's concession that the strike was peaceful is instructive. The
arbitrator cannot be criticised for refusing to infer intimidation or threats in the
absence of evidence, when the promise to lead that evidence was never made
good. I accept that the harm addressed by the prohibition on armed picketing lies
not only in actual injury, but in the latent threat, intimidation, and erosion of lawful
collective bargaining. However, the absence of violence, viewed in light of the
peculiar context and factual matrix of th is case, was reasonably considered.
That, to me, cannot be viewed as diluting the clear stance this Court has adopted
against armed pickets, but as an exception founded in the peculiar context and
factual matrix.
Long service
[17] Likewise, as correctly found by the C ourt a quo, the consideration of length of
service as a mitigating factor does not constitute an error of law. The arbitrator
did not "place much stock o n the fact that the employees had lengthy service
histories and clean disciplinary records" as contended by Mondi South Africa. On
the contrary, he considered, as he ought to, in the context of all other relevant
factors.
7 In essence, the arbitrator must be understood to be saying that , viewed
contextually, the trust relationship was not impaired to the extent that continued
contextually, the trust relationship was not impaired to the extent that continued
7 See: item 3(5) of the Code of Good Practice: Dismissal; Sidumo above fn 5 at paras 272 and 286
9
employment would be intolerable, if regard is had to the respondent employees’
respective untarnished records of long service.8
Pailprint and Pailpac are distinguishable
[18] The respondents are correct in their submission that Pailprint and Pailpac are
distinguishable. Both decisions are distinguishable on a material basis. In each
case, the Court intervened because the arbitrator had failed to appreciate the
seriousness of carrying weapons during strike action, either by adopting an
unduly technical approach ( Pailprint) or by treating dismissal as disproportionate
without recognising that any reasonable employee would know such conduct to
be impermissible (Pailpac). Neither judgment lays down an inflexible rule that the
mere presence of weapons at a picket invariably renders reinstatement
unreasonable, irrespective of context.
[19] By contrast, in the present case, the arbitrator did not trivialise or excuse the
misconduct. The arbitrator expressly condemned the carrying of weapons,
accepted it as serious misconduct, and imposed a substantial consequence by
denying retrospective back pay. This was done against the uncontested backdrop
of an otherwise peaceful strike, with no evidence of violence, assaults, or actual
intimidation, and in the presence of other compelling mitigating factors.
[20] Given the peculiar circumstances in the present case and the limited scope of
attack mounted against the award, it ca nnot be said that the intolerability of the
continued working relationship is obvious. Even then, in Booi v Amathole District
Municipality,
9 the Constitutional Court emphasised that intolerability constitutes a
high threshold, requiring proof that the employment relationship has become
insupportable. Intolerability cannot be inferred where the evidentiary basis for the
alleged misconduct is tenuous or absent. Where such proof is lacking, as here,
the conclusion that reinstatement is justified cannot be assailed. Moreover, the
8 See: Sidumo above fn 5 at para 286.
8 See: Sidumo above fn 5 at para 286.
9 Booi v Amathole District Municipality & Others (2022) 43 ILJ 91 (CC); [2022] 1 BLLR 1 (CC) (Booi) at
paras 34 – 43.
10
arbitrator concluded that there was no operational risk to Mondi South Africa that
would have justified withholding the primary remedy of reinstatement.10
[21] Therefore, it cannot be true that Pailprint or Pailpac compel interference with a
value judgment, even if the context and factual matrix rationally support it.11 In
Algoa Bus Company (Pty) Ltd v TASWU obo Mzawi and Othe rs,12 this Court
reaffirmed the high threshold for a sanction review, which effectively constrains a
review court (irrespective of whether the arbitrator considered the sanction of
dismissal to be too harsh, as in the present case, or considered the penalty of
dismissal to be fair) from intervening simply because it thinks that the arbitrator
was wrong, or because it would have rendered a different decision on the same
evidence.
Conclusion
[22] The award is unassailable, as it reflects a measured exercise of discretion that
balances deterrence with corrective discipline and falls within the range of
decisions a reasonable arbitrator could reach. Therefore, the Court a quo cannot
be faulted for refusing to upset the award. It follows that the appeal must fail.
Costs
[23] It accords with the requirements of the law and fairness that there should be no
order as to costs.
Order
[24] In the premise, the following order is made:
The appeal is dismissed with no order as to costs.
10 De Beers Consolidated Mines v Commission for Conciliation Mediation and Arbitration and Others
[2000] 9 BLLR 995 (LAC); (2000) 21 ILJ 1051 (LAC) at para 24.
11 See: Duncanmec (Pty) Limited v Gaylard NO and Others 2018 (11) BCLR 1335 (CC); [2018] 12 BLLR
1137 (CC) at para 52.
12 [2024] 12 BLLR 1224 (LAC); (2025) 46 ILJ 89 (LAC) at para 15.
11
_______________________
Nkutha-Nkontwana JA
Judge of the Labour Appeal Court of South Africa
Tokota et Collis AJA concur.
APPEARANCES:
For the appellant : Mr J. Whyte, Norton Rose Fulbright
South Africa Inc
For the third to eighth respondent : Mr J. Phillips of Cheadle Thompson &
Haysom Inc