THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 2610/19
In the matter between:
ALMAR INVESTMENTS (PTY) LTD Applicant
and
FRANCE GLADNESS MATSEMELA First Respondent
COMMISSION FOR CONCILIATION, Second Respondent
MEDIATION AND ARBITRATION
FOSTER MALULEKE N.O. First Respondent
Heard: 22 January 2026
Delivered: 11 May 2026
JUDGMENT
BRITZ, AJ
(1) Reportable No
(2) Of interest to other Judges: No
(3) Revised
TDM 2026-05-11
Signature Date
Introduction
[1] This is a review application in terms of section 145 of the Labour Relations
Act1 (LRA) to set aside an arbitration award issued by the Third Respondent
under case number NWFB 1733/19.
[2] The sole issue is whether the commissioner committed a reviewable
irregularity which rendered the outcome unreasonable.
Attendance
[3] The Applicant was represented by Mr . Henk Wissing. The First Respondent
did not attend. Proof of transmission of the hearing link to the address utilised
in the pleadings was furnished.
[4] The Court is satisfied that the First Respondent had proper notice and that the
matter may proceed in their absence.
The review test
[5] The test is whether the decision reached by the commissioner is one that a
reasonable decision -maker could not reach. In Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others2 it was held:
‘Is the decision reached by the commissioner one that a reasonable decision -
maker could not reach?’
[6] In Herholdt v Nedbank Ltd3 the Supreme Court of Appeal held:
‘For a defect in the conduct of the proceedings to amount to a gross
irregularity… the arbitrator must have misconceived the nature of the enquiry
or arrived at an unreasonable result.’
[7] The Labour Appeal Court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine)
v CCMA and others4 stated that what is requires is to:
1 Act 66 of 1995, as amended.
2 [2007] 12 BLLR 1097 (CC) at para 110.
3 2013 (6) SA 224 (SCA) at para 25.
4 (2014) 35 ILJ 943 (LAC) at para 15.
‘consider the totality of the evidence and then decide whether the decision by
the arbitrator is one that a reasonable decision-maker could make.’
[8] It is further established that:
‘A decision-maker must consider all the relevant facts… If he or she fails to do
so, the decision is liable to be set aside on review.’5
Material facts
[9] The First Respondent was employed in a supervisory capacity and bore
responsibility for ensuring that operational processes were completed. It was
common cause that:
9.1 both pits required cleaning;
9.2 only one was cleaned; and
9.3 the second was left incomplete.
[10] The First Respondent admitted that the work was not completed and
attributed this to time constraints.6 The objective evidence established that the
required tasks could be completed within approximately three hours and 10
minutes in an 8-hour shift.
[11] The evidence further established that failure to complete the process affected
production and operational continuity.
Evaluation
Failure to consider material evidence
[12] The commissioner failed to engage with:
12.1 the First Respondent’s admissions;7
12.2 the objective time evidence;8 and
5 CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 68.
6 Record pages 22 – 23.
7 Record pages 22 – 23.
12.3 the operational consequences of the failure.9
[13] This constitutes a failure to consider material evidence. In Gold Fields 10 the
Labour Appeal Court cautioned that:
‘The review court must ascertain whether the arbitrator considered the
principal issue before him… evaluated the facts presented… and came to a
conclusion that is reasonable.’
[14] The commissioner did not do so.
Misconception of the enquiry
[15] The commissioner accepted that operational difficulties justified the failure.
This reflects a misdirection.
[16] The enquiry was whether the First Respondent discharged their duties. In
Herholdt it was held that a gross irregularity arises where: ‘ the arbitrator must
have misconceived the nature of the enquiry…’11
[17] This is precisely what occurred.
Outcome unreasonableness
[18] The uncontested facts are that ; (a) the work was not completed; 12 (b)
sufficient time existed; 13 and (c) the First Respondent was responsible for
ensuring completion.14
[19] On these facts, the conclusion that dismissal was substantively unfair falls
outside the band of reasonableness.
Substitution
8 Record pages 59 – 50.
9 Record pages 16 – 18.
10 Gold Fields, supra at para 20.
11 Herholdt, supra at para 25.
12 Record pages 84 – 86.
13 Record pages 96 – 97.
14 Record pages 13 – 14.
[20] The Court must determine whether to remit or substitute. In Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South Africa
Ltd and another15 the Constitutional Court held:
‘A court must be satisfied that it G would be just and equitable to grant an
order of substitution … and whether the Court is in as good a position as the
administrator to make the decision…’
[21] The record is complete. The dispute turns on evaluation, not credibility.
[22] Remittal would serve no purpose and would prolong a matter that has been
pending since 2019, therefore substitution is appropriate.
Procedural fairness
[23] The record reflects that the First Respondent was afforded an opportunity to
be heard. No procedural irregularity was established.
Conclusion
[24] The commissioner failed to consider material evidence and misconceived the
enquiry. The outcome is unreasonable.
[25] In the result the following order is made:
Order
15 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and
Another 2015 (5) SA 245 (CC) at paras 35 and 47.
1. The arbitration award issued by the Third Respondent under case number
NWFB 1733/19 is reviewed and set aside.
2. It is substituted with the following: ‘The dismissal of the employee was
substantively and procedurally fair.’
3. There is no order as to costs.
_______________________
C. Britz
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Mr. Wissing of Henk Wissing Attorneys
For the Respondent : No appearance