THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1179/19
In the matter between:
ERGO MINING (PTY) LTD Applicant
and
UASA obo SIBONGISENI BLESSING NGCOBO First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
& ARBITRATION Second Respondent
DUMISANI JOHANNES NGWENYA N.O &
SUZAN SELZER N.O Third Respondent
Decided in Chambers
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the P arties / their
legal representatives by email. The date for hand-down is deemed to be 28 May
2026.
LEAVE TO APPEAL JUDGMENT
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MOSIKILI, AJ
Introduction
[1] The applicant, ERG O Mining (Pty) Ltd , seeks leave to appeal against my
order in the above matter , whereby I reviewed and set aside the third
respondent’s award dated 23 April 2019 with case number GAEK2629, under
the of the Commission for Conciliation, Mediation & Arbitration “CCMA”. While
the applicant was partially successful in the reviewing and setting aside the
award, the applicant has qualms with the remedy (the order) because I
remitted the matter back to the CCMA for a fresh hearing of the matter , de
novo, before a commissioner other than the second respondent.
[2] It has been at times difficult to discern the basis on which leave to appeal has
been sought, primarily because the grounds of appeal appear to be directed
at the dissatisfaction with only the remedy of remittal and not the core
reasoning behind the judgment.
[3] In essence, the employee was faced with three(3) charges of misconduct
before the CCMA , and he was exonerated on chargers 1 and 2, and only
found guilty on charge 3. The applicant brought a review because they were
not satisfied with the not guilty verdict on charges 1 and 2. It is th is award; I
reviewed and set aside and remitted the matter.
The Merits
[4] The applicant accept s, as it should, that once the award is reviewed and set
aside, the issue of the remedy is a discretionary one. In the judgment, this
Court critiqued the award on how the second respondent misdirected herself
in applying the incorrect legal principles while evaluating the evidence put
before her. Something the applicant agrees with. However, the applicant
wants approbate and reprobate. At one hand, it contends that I must not
interfere with part of the award that it agrees with(charge3) and only
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substituted the ones that they have targeted in review application ( charge 1
and 2). The real concern for the applicant is that remitting the matter has a
net-effect of upsetting the second respondent ’s guilty finding on charge 3. No
legal authority has been furnished as to why I should prefer this narrow
approach and not consider the conduct of the second respondent in totality in
dealing with the evidence before her , and part of her incompetence in
handling the matter in toto. Applying criminal standard in labour matter, as
opposed to a civil standard by the second respondent , does demonstrate an
element of incompetence and renders the award reviewable.
[5] In the circumstances, it is apparent that leave to appeal is not pointing at the
errors of law and/ or errors of facts committed. It is not clear what basis, if at
all, is it suggested that I failed to exercise my discretion judiciously in deciding
the just and equitable remedy in remitting the matter . There is no suggestion
that this Court exercised the discretion capriciously or arbitrarily.
[6] The apogee of the applicant’s case is that because I have found the decision
of the arbitrator wanting and reviewable, therefore it is a foregone conclusion
that the first respondent must be found guilty on the two charges, which are a
bone of contention, charges 1 and 2.
[7] In essence, having found that the commissioner's award was reviewable, the
this Court had to exercise its discretion in determining whether to substitute the
award or remit it to the CCMA for a rehearing.
The law
[8] In Trencon Construction (Pty) Ltd v Industrial Development Cooperation of
South Africa Ltd and Another
1, the Constitutional Court held that the factors to
1 2015] ZACC 22; 2015 (5) SA 245 (CC) at para 47.
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take into account in considering whether to exercise the discretion to substitute
the decision of an administrator are the following:
“ To my mind, given the doctrine of separation of powers, in concluding
this inquiry there are certain factors that should inevitably hold greater
weight. The first is whether a court is in as good position as the
administrator to make the decision. The second is whether the decision of
an administrator is a foregone conclusion. These two factors must be
considered cumulatively. Thereafter, a court should still consider other
relevant factors. These may include delay, bias or the incompetence of an
administrator. The ultimate consideration of fairness to all implicated
parties. It is pr udent to emphasise that the exceptional circumstances
enquiry requires an examination of each matter on case- by-case basis
that accounts for all facts and circumstances”.
(footnotes omitted)
[9] In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others 2, the court set out the circumstances in
which the Labour Court would rather correct the decision than refer it back to
the CCMA as being:
“(i) where the end result is a foregone conclusion and it would merely be a
waste of time to order the CCMA to reconsider the matter;
(ii) where a further delay would cause unjustified prejudice to the parties;
(iii) where the CCMA has exhibited such bias or incompetence that it would
be unfair to require the applicant to submit to the same jurisdiction again;
or
(iv) where the court is in as good a position as the CCMA to make the
decision itself”. (footnotes omitted)
2 [2009] ZALC 68; (2010) 31 ILJ 452 (LC) at para 33.
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[10] In Auto Industrial Group (Pty) Ltd and Others v Commission for Conciliation,
Mediation and Arbitration and Others,3 the Court held that:
“A court will ordinarily substitute the decision of a commissioner where all of
the available evidence is before the court and little purpose would be served
in a rehearing.”
[11] The above ratio has been quoted with approval by the Labour Appeal Court in
Phakoago v SANCA Witbank Alcohol and Drug Help Centre and
Others (JA60/23).4
[12] The crux of the matter before the commissioner in the present case was
whether the commissioner had appreciated and applied the correct standard of
proof in evaluating the evidence before her. It must be said that the
commissioner was required to have consideration of the evidence before her
and cast a critical eye over the shortcomings of the evidence presented before
her.
[13] In this case, one of the most important evidence placed before her was a video
footage of the first respondent carrying a duffel bag. This evidence seems to
have been persuasive in her final determination. It is common cause that the
applicant failed to place the relevant video footage before the Labour Court as
part of the review record; no cogent reasons were given why the record was
incomplete. Despite best efforts, the video footage remained un available to the
court to make a determination of the contents or the veracity of the video and
what evidentiary weight, if at all, to place on such evidence.
[14] The upshot of it is that in the absence of a complete review record, it cannot be
seriously suggested that this court was in as good a position as the CCMA to
3 [2018] ZALCPE 41; (2019) 40 ILJ 550 (LC) at para 60.
4 [2024] ZALAC 44; [2024] 12 BLLR 1271 (LAC) (18 September 2024) at para 42 – 44.
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make the decision itself. Differently put, it would rather be amiss of this Court to
make a ruling of substitution whereby it was not presented with a full record of
the evidence that was placed before the commissioner.
[15] In addition to that, it would be remiss of the Court , having exposed elements of
incompetence on the part of the commissioner, to uphold parts of her ruling
simply because there is “ no cross-appeal” on charge 3 . This Court’s ruling is
not concerned with the guilty or not guilty findings, but rather the judgment
rested on the obvious errors of law committed by the commissioner. This is well
articulated in the main judgment and I defer to the reasoning there.
[16] Apropos, I am not persuaded that a Court of Appeal would adopt a different
approach and grant the applicant a license to cherry -pick what good of the
arbitration award to preserve and which to discard, especially where the
ultimate error committed by the commissioner was the very essence (tool) of
evaluating the evidence before her (an error of law ). A piecemeal approach will
only contribute to a further delay in resolving this matter. Further, because the
Court was not presented with the full record that set before the commissioner, I
was not in a position to substitute the award with my own. The only justice this
Court could do is to confine itself to the obvious errors of law and remit the
matter back to the CCMA.
[17] Accordingly, the grounds of appeal are unsustainable. I am disinclined to agree
with the appellant that there are prospects that a Court of Appeal would adopt a
different approach in resolving this dispute.
Conclusion
[18] The test for leave to appeal is whether “the appeal would have reasonable
prospects of success” or whether “there is some compelling reason why the
appeal should be heard…” .I have not been persuaded that a case has been
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made for either. Where a commissioner demonstrated part-incompetence in
applying the obviously incorrect legal principles and an in complete review
record was placed before this Court, I am of the view that the appeal would
have no prospects of success. No exceptional facts have been drawn to my
attention which would constitute compelling reason/s . In the circumstances,
the appeal would have no prospects of success in that respect, as well.
For all these reasons, I make the following order:
1. The application for leave to appeal is dismissed.
2. No order as to costs.
_______________________
T Mosikili
Acting Judge of the Labour Court of South Africa
Submissions:
For the Applicant: Alan Jacobs & Associates Inc
For the First Respondent: S Mabaso Inc Attorney