(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
04/06/2026
____________ ______________
Signature Date
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR2582/23
In the matter between:
VERNON NAIDOO Applicant
and
PM NGAKO N.O First Respondent
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL Second Respondent
GAUTENG DEPARTMENT OF ROADS AND TRANSPORT Third Respondent
Heard: 28 May 2026
Delivered: 04 June 2026
JUDGMENT
NORVAL AJ
Introduction
2
[1] This is a review application brought in terms of s 145 of the Labour Relations Act 66
of 1995 ( ‘LRA’). The applicant, Mr Vernon Naidoo, seeks an order reviewing and
setting aside the arbitration award issued by the first respondent, Commissioner
P.M Ngako, on 13 November 2023.
[2] The arbitration award was delivered following a s 188A enquiry that was conducted
virtually over approximately 20 days spanning from September 2021 to May 2023.
[3] The applicant further seeks an order substituting the recommendation of the first
respondent and the decision of the third respondent to dismiss the applicant on
27 November 2023, and reinstating him on the same terms and conditions that
applied prior to his dismissal, together with back pay and benefits from the date of
dismissal, and costs.
Background
[4] The applicant was employed by the third respondent as the Director of Supply
Chain Management from 1 September 2016. His duties included, amongst others,
the procurement of goods and services for the third respondent. He reported to
Mr Poobalan Govender, the Chief Director: Financial and Management Accounting,
who was the Head of SCM.
[5] The applicant testified that when he joined the third respondent, the Department
was burdened with in excess of 40 Supply Chain Management audit findings from
the Auditor -General. Within approximately one year, under his stewardship, the
SCM unit managed to clear all those control issues and thereafter received clean
reports with regards to Supply Chain Management. Following his suspension, the
Department received qualified audit opinions, and of the 190 pages of audit
findings, 150 pages related to Supply Chain Management , his area of former
responsibility.
[6] The applicant was charged with misconduct in terms of Chapter 7 of the Senior
Management Services Handbook ('the SMS Handbook'). The first set of charges
(two allegations) were presented on or about 2 November 2020, based on a Public
(two allegations) were presented on or about 2 November 2020, based on a Public
Service Commission ('PSC') Report dated 20 May 2019. The applicant was charged
together with another employee, Mr C Ramoshu, in those initial charges relating to
alleged irregular procurement. Supplementary charges (12 charges) were issued on
3
or about 11 February 2021, and additional supplementary charges (three charges)
on or about 8 March 2021, the latter being charges of insubordination proffered
during the tenure of the Acting CFO, Ms Lesibana Japhatalina Fosu.
[7] The charges broadly fell into two categories: (i) t hose arising from the PSC Report
relating to the procurement of the services of Bosman Giyose Incorporated ('BG
Inc') as chairperson for an internal disciplinary hearing, comprising allegations of
accepting a late quotation, using an incorrect comparative schedule, and incurring
irregular expenditure in the sum of R425 239.75 in contravention of section 217 of
the Constitution, section 45 of the Public Finance Management Act 1 of 1999
('PFMA'), and paragraphs C.4.4, C.4.8 and C.4.9 of the Code of Conduct; and (ii)
those arising from the tenure of Ms Fosu as Acting CFO relating to alleged failures
in the performance of duties, insubordination, and a breakdown in the employment
relationship.
[8] Both the third respondent and the applicant agreed to appoint an independent
external chairperson from the bargaining council to preside over the matter. The
first respondent was appointed as the arbitrator by the GPSSBC. In terms of section
2.7(5)(a) of Chapter 7 of the SMS Handbook, the decision of the arbitrator was to
be final and binding and only subject to review by the Labour Court.
[9] The inquiry was held virtually via Microsoft Teams over a period of approximately
20 days spanning from September 2021 to May 2023. The employer was
represented by Mr Anton Roskam (Attorney) and the employee was represented by
Mr Joey Govender (Fellow Employee). The employer called two witnesses:
Advocate Lawrence Cronje, who conducted the PSC investigation, and Ms
Lesibana Japhatalina Fosu, the former Acting CFO, having been employed at the
Department from approximately August 2020 to February 2021 on a six -month
contract. The applicant testified on his own behalf and called Mr Pule Sekawana,
contract. The applicant testified on his own behalf and called Mr Pule Sekawana,
who was the Acting Deputy Director-General for Corporate Services.
[10] On 31 July 2023, the first respondent delivered his findings. The applicant was
found guilty on six charges/sub -charges, namely charges 4.1, 4.1.3, 5.1, 5.2, 6.9
and 6.11. He was found not guilty on 16 charges/sub- charges, namely charges
4.1.2, 4.1.4, 6.1, 6.2 (read with 6.2.1 and 6.2.2), 6.3, 6.7, 6.8, 6.10, 6.12, 2.1 (read
4
with 2.2, 2.2.1, 2.2.2), and 2.3. Three charges (6.4, 6.5 and 6.6) were withdrawn by
the third respondent in its written closing arguments.
[11] On 13 November 2023, the first respondent issued an arbitration award in which he
recommended a sanction of dismissal on charges 4.1.1, 4.1.3, 5.1 and 5.2 relating
to procurement irregularities, a final written warning on ‘charge 2.9’, and dismissal
on ‘charge 2.1’ for insubordination. The first respondent stated: ‘I have
recommended a sanction of dismissal on the Employee Mr. Naidoo on charges
4.1.1, 4.1.3, 5.1, and 5.2 relating to procurement irregularities, I have further
recommended a sanction of a final written warning on charge 2.9 for the Employee,
Mr Naidoo for failing to put measures in place to monitor the validity period of bids
and recommended a sanction of dismissal on charge 2.1. for insubordination.’
[12] On 27 November 2023, the Head of Department, Dr Thulani A. Mdadane, issued a
termination letter, dismissing the applicant with effect from 30 November 2023. The
applicant was directed to return his laptop, accessories, office keys, and confidential
information by 30 November 2023 at 12h00. The letter advised the applicant of his
right to take the matter up for review in the Labour Court.
Condonation application
[13] Before turning to the grounds of review, the Court must address the third
respondent's application for condonation for the late filing of its answering affidavit,
which was filed on 5 August 2025 and is supported by the affidavit of Ms Sindiswa
Jane Manitshana, an admitted legal practitioner employed at the State Attorney,
Johannesburg.
[14] The chronology of the delay is as follows. The review application was launched on
20 December 2023. The third respondent filed a Notice of Intention to Oppose on
8 January 2024. Counsel was formally briefed on 30 January 2024. The applicant
filed his Notice of Amendment and Supplementary Affidavit on 1 February 2024.
filed his Notice of Amendment and Supplementary Affidavit on 1 February 2024.
The third respondent's answering affidavit was due by approximately 15 February
2024, in accordance with the applicable rules. Despite this, a protracted dispute
about the completeness of the record ensued from 29 March 2024 to 6 May 2024 ,
with the State Attorney contending that the record was incomplete and the
5
applicant's attorneys maintaining that the relevant portions had been furnished. The
State Attorney however agreed on 6 May 2024 that the record was complete.
[15] Ms Manitshana's explanation for the delay may be summarised as follows: counsel
was out of town and only received the brief on 14 February 2024; the record was
considered incomplete; Ms Manitshana fell ill from 20 May to 22 May 2024 and her
leave was extended until 3 July 2024 with a recommendation to work from home;
counsel faced ‘severe capacity constraints’ during July 2024 and only delivered the
updated draft answering affidavit on 2 August 2024; and the answering affidavit was
finally served on or about 16 September 2024, approximately seven months late.
Five months if taken from when Ms Manitshana returned to work from her illness.
[16] On 27 September 2024, the applicant filed a Notice of Objection to the late filing. It
was only on 5 August 2025, approximately eleven months after the Notice of
Objection, that the condonation application was filed.
[17] In the answering affidavit to the condonation application, the applicant opposes
condonation. He submits that: (i) he has been unemployed for a period nearing two
years as a result of his unfair dismissal and has been severely prejudiced by the
delay; (ii) the third respondent was, at all material times, in possession of the very
records it claimed were incomplete; (iii) the third respondent has on multiple
occasions promised that an answering affidavit was forthcoming (on 29 February
2024 and 16 May 2024) but failed to deliver; (iv) the third respondent has also failed
to file its Heads of Argument despite a directive from the Registrar compelling it to
do so by 26 March 2024; and (v) the condonation application itself was filed eleven
months after the Notice of Objection, which is 'patently unreasonable'.
[18] The Court has also noted from the State Attorney's letter dated 30 April 2024 that
the commissioner recorded in the award that the proceedings spanned
the commissioner recorded in the award that the proceedings spanned
approximately 20 hearing days, whereas the transcripts provided cover only ten
days. The State Attorney identified the following dates for which transcripts were
missing: 22 September 2021; 18, 19 and 20 May 2022; 15 August 2022; 22, 23 and
26 September 2022; and 24 and 26 October 2022. However, it appears that the
transcript is complete in relation to the charges for which the applicant was found
guilty, and this much was eventually accepted by the State Attorney.
6
[19] In determining whether to grant condonation, the Court must weigh the following
factors: the degree of lateness; the reasonableness of the explanation; the
prospects of success on the merits; the prejudice to the applicant; and the interests
of justice. Under Rule 42(3), this Court may condone non- compliance with time
frames if good cause is shown.
[20] The delay is substantial. The answering affidavit was at best approximately five
months late and the condonation application itself was a further eleven months late.
The explanation, whilst containing legitimate elements such as Ms Manitshana's
illness and the dispute regarding the completeness of the record, is taken as a
whole, as unsatisfactory. The dispute about the completeness of the record does
not explain the entire delay. Counsel's ‘severe capacity constraints’ and the
bureaucratic process for briefing counsel are not extraordinary circumstances but
rather the ordinary challenges of litigation, and the State Attorney's office bears the
responsibility of managing its workload. More troubling is the fact that even after the
answering affidavit was belatedly served on 16 September 2024, the condonation
application was not filed until 5 August 2025, with no explanation whatsoever for
this further eleven-month delay.
[21] In all the circumstances, the third respondent's conduct in this matter has been
lamentable, and the Court records its displeasure. This pattern of persistent non -
compliance with the rules of this Court, weighs heavily against the grant of
condonation.
[22] However, the Court is mindful that the interests of justice require that matters be
determined on their merits wherever possible, and that refusing condonation has
the drastic consequence of depriving a party of the opportunity to ventilate its case.
Rule 42(3) affords this Court a broad discretion. The subject matter of this review ,
the dismissal of a senior public servant following a disciplinary inquiry that spanned
the dismissal of a senior public servant following a disciplinary inquiry that spanned
approximately 20 hearing days , is not trivial. There are matters of public interest at
stake, including the integrity of procurement processes in the public service.
[23] Accordingly, and with considerable reluctance, condonation is granted for the late
filing of the third respondent's answering affidavit. The Court does so solely in the
interests of justice.
7
[24] The granting of condonation nonetheless comes at a price. In Passenger Rail
Agency South Africa v CCMA and Others 1 (‘PRASA’), Tlhotlhalemaje J granted
condonation for the late filing of an answering affidavit in review proceedings in the
interests of justice, but held that:
‘[24] The granting of condonation nonetheless comes at a price. The third and
fourth respondents had clearly been remiss and negligent in not
delivering the answering affidavit when required to do so, compelling
PRASA to file an objection... PRASA as a consequen ce of the third and
fourth respondents' dilatoriness was also compelled to oppose the
condonation application in circumstances which the third and fourth
respondents could have avoided. In the circumstances, considerations of
law and fairness dictate that the fourth respondent be burdened with the
costs of this application.’
[25] The same considerations apply here. The third respondent's delay was five months
at best if not seven months; its condonation application was a further eleven months
late. It failed to comply with the Registrar's directive. Accordingly, the third
respondent is ordered to pay the costs of the condonation application on Scale B ,
as a mark of the Court's displeasure at the third respondent's persistent failure to
comply with the rules of this Court. Scale B is ordered as it provides enhanced tariff
costs, which are appropriate for conveying the Court’ s displeasure at the way the
third respondent decided to litigate.
[26] Having granted condonation, the Court has had regard to the contents of the third
respondent's answering affidavit, deposed to by Dr Thulani Mdadane (the HOD), in
its consideration of the merits
The grounds of review
[27] The applicant raises several grounds of review, which are addressed in turn below.
These fall broadly under the following headings:
27.1 The first respondent failed to make a binding award as required by the SMS
Handbook, the agreement, and the LRA;
Handbook, the agreement, and the LRA;
1 (JR137/2015) [2018] ZALCJHB 160.
8
27.2 Inconsistency in charging officials for misconduct;
27.3 The sanctions imposed are inconsistent, unfair, and harsh;
27.4 The break in transmission signal affected the virtual arbitration (which was
withdrawn in oral argument);
27.5 The arbitration award and findings are inconsistent, contradictory, and
contain material errors;
27.6 The third respondent waived its right to discipline the applicant; and
27.7 Substantive defects on the six guilty verdicts.
The applicable review test
[28] Before turning to the substantive grounds of review, it is necessary to identify the
correct legal framework. The arbitration in this matter was conducted under the
auspices of the GPSSBC, a bargaining council established in terms of the LRA.
Section 51(8) of the LRA stipulates that ‘ unless otherwise agreed to in a collective
agreement, sections 142A and 143 to 146 apply to any arbitration conducted under
the auspices of a bargaining council.’ Accordingly, this review falls to be determined
in terms of section 145 of the LRA, which provides that an arbitration award may be
set aside if the commissioner committed misconduct in relation to his duties,
committed a gross irregularity in the conduct of the proceedings, exceeded his
powers, or the award was improperly obtained.
[29] The grounds of review in section 145(2) of the LRA were modelled on section 33(1)
of the Arbitration Act 42 of 1965 . However, because CCMA and bargaining council
arbitrations constitute administrative action, the Constitutional Court in Sidumo v
Rustenburg Platinum Mines Ltd
2 held that s 145 must be ‘suffused’ by the
constitutional standard of reasonableness. The test for unreasonableness is: ‘Is the
decision reached by the commissioner one that a reasonable decision- maker could
not reach?’.
[30] Where a commissioner exceeds his or her powers by acting outside of jurisdiction
or ultra vires within jurisdiction, the correctness standard of review applies. The LAC
2 2008 (2) SA 24 (CC)
9
confirmed this principle in Fidelity Cash Management Service v CCMA 3 and others
where the Court held:
‘If the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise. Also if the CCMA made a
decision that exceeds its powers in the sense that it is ultra vires its powers,
the reasonableness or otherwise of its decision cannot arise.’
[31] The correctness standard entails that a decision or conduct by a commissioner is
reviewable if it was incorrect; nothing more needs to be established.
Reasonableness does not enter the equation, and the reviewing court does not
show any deference to the commissioner’s decision.
[32] With this framework in mind, the Court turns to the grounds of review.
Analysis
Jurisdiction — binding award versus advisory recommendation (Ground 1)
[33] Section 2.7(5)(a) of Chapter 7 of the SMS Handbook provides that where the
employer and employee agree that the disciplinary hearing will be chaired by an
arbitrator from the relevant sectoral bargaining council, ‘the decision of the arbitrator
will be final and binding and only subject to review by the Labour Court’. This
provision is clear and unambiguous.
[34] It is common cause that both the applicant and the third respondent agreed that the
first respondent would chair the disciplinary hearing as an arbitrator from the
GPSSBC. The consent form in the record, signed by the applicant on 6 September
2021, records the applicant's confirmation that he has been advised of the
allegations against him and consents to the process. The request was for the
appointment of a ‘Chairperson to chair the disciplinary hearing’ and the GPSSBC
appointed Commissioner P.M Ngako as the arbitrator. Furthermore, the Code of
Conduct for Conciliators and Arbitrators, as contained in the Dispute Procedures for
the PSCBC, provides at section 5.2 that ‘Arbitrators' awards should be definite,
certain and as concise as possible’.
3 (2008) 29 ILJ 964 (LAC).
10
[35] The third respondent contends in its answering affidavit that the award was
intended to be final and binding, arguing that ‘the essence of an arbitration award's
binding nature is not in the terminology but in its intent and effect.’ The third
respondent submits that the parties engaged in arbitration with the understanding
that the decision would be final and binding, and that the proceedings were
conducted under PSCBC Resolution 1 of 2003. The Court has considered this
submission carefully. However, the Court must have regard to the language of the
award itself, not to the subjective intentions or understandings of the parties. It is
manifest from the face of the arbitration award that the first respondent did not
render a binding decision. Instead, he couched his conclusion in the language of a
recommendation. He stated: ‘I have recommended a sanction of dismissal’ and ‘I
therefore recommend a sanction of dismissal on the Employee, Mr. Naidoo’.
Indeed, the word ‘recommended’ or ‘recommend’ appears no fewer than five times
in the concluding paragraphs of the arbitration award. The use of the word
‘recommended’ rather than ‘imposed’ or ‘ordered’ throughout the sanction phase is
telling. The first respondent failed to exercise the power conferred upon him. Rather
than making a final and binding decision, he deferred the decision -making power to
the third respondent.
[36] The distinction between advisory and binding awards is well recognized in labour
law. Section 135(3) of the LRA envisages advisory arbitration as a form of
conciliation, where the commissioner makes ‘a recommendation to the parties,
which may be in the form of an advisory arbitration award.’ Such awards are
appropriate in the conciliation context, for example, prior to a strike over a refusal to
bargain dispute under section 64(2) of the LRA. They are inappropriate, and indeed
are impermissible, where the parties have agreed to a binding arbitration under the
are impermissible, where the parties have agreed to a binding arbitration under the
SMS Handbook. The first respondent's rendering of an advisory award where a
binding award was mandated represents a fundamental misconception of the nature
of the inquiry and his duties in connection therewith.
[37] The Court must also address the third respondent's alternative submission, namely
that if the award is advisory, it cannot be reviewed under s 145 of the LRA. The
present proceedings were not conciliation proceedings. They were a disciplinary
inquiry conducted under the auspices of the GPSSBC pursuant to an agreement
under s 2.7(5)(a) of the SMS Handbook, which required a binding award. The fact
11
that the first respondent erroneously rendered an advisory recommendation rather
than the binding award that was mandated does not transform the proceedings into
conciliation proceedings. The award remains reviewable under s 145, indeed, the
very defect is that the commissioner f ailed to comply with the terms of reference
under which he was appointed, which constitutes a classic ground of review.
[38] In Telcordia Technologies Inc v Telkom SA Ltd
4, the SCA confirmed that the inquiry
is whether the arbitrator purported to exercise a power which he did not have as
opposed to erroneously exercising a power vested in him.5
[39] By rendering an advisory award rather than a binding one, the first respondent both
exceeded his powers (sec tion 145(2)(a)(iii)) and committed a gross irregularity in
the conduct of the arbitration proceedings (section 145(2)(a)(ii)) as contemplated in
section 145(2) of the LRA. The correctness standard of review applies to this
ground. The first respondent was mandated to render a binding award; he rendered
an advisory recommendation instead, for which he had no power . This was
incorrect: nothing more need be established, and the reasonableness or otherwise
of the outcome does not arise. The failure to render a binding award, the very
purpose for which the arbitrator was appointed, is a mistake of such a fundamental
character that it is also properly characterised as misconduct (section 145(2)(a)(i)).
The third respondent, who was a party to the dispute and the employer, then
assumed the role of decision-maker.
[40] This ground alone is sufficient to vitiate the proceedings and warrants the setting
aside of the arbitration award. The Court notes that the third respondent, having
received the ‘recommendation’, proceeded to implement it by issuing a dismissal
letter on 27 November 2023 signed by the HOD, Dr Thulani A. Mdadane. This
confirms that the third respondent itself understood the award to be advisory in
confirms that the third respondent itself understood the award to be advisory in
nature. Had it been a binding decision, there would have been no need for the
employer to separately ‘implement’ it by issuing a termination letter, let alone
implement it at its discretion.
The remaining grounds of review
4 2007 (3) SA 266 (SCA).
5 [52]
12
[41] Given the Court's finding on the first ground of review , that the first respondent
exceeded his powers and committed a gross irregularity and misconduct by
rendering an advisory recommendation rather than a binding award, it is
unnecessary to determine the remaining grounds of review. The first ground is
dispositive of the application: the arbitration award falls to be set aside on this basis
alone.
The dismissal does not sit in the award
[42] The setting aside of the arbitration award does not, without more, set aside the
applicant's dismissal. The dismissal was not effected by the first respondent. It was
effected by the third respondent, the employer, acting independently upon receipt of
the first respondent's recommendation.
[43] The timeline is instructive. The first respondent delivered his arbitration findings on
31 July 2023. Thereafter, the parties submitted mitigating and aggravating factors
by 31 October 2023. The first respondent delivered the arbitration award, couched
as a recommendation, on 13 November 2023. Fourteen days later, on 27 November
2023, the HOD, Dr Thulani A. Mdadane, issued a termination letter dismissing the
applicant with effect from 30 November 2023. The termination letter stated: ‘Take
note that having been found guilty and given the serious nature of the charges
levelled against you, you are hereby dismissed from your position in the Gauteng
Department of Roads and Transport as per the arbitrator’s ruling attached hereto.’
[44] The dismissal was thus the employer's own act of managerial prerogative. The
employer received the recommendation, considered it over a period of fourteen
days, and then chose to implement it by issuing a termination letter.
[45] The award recommended; the employer decided. These are two distinct acts.
[46] Were the analysis to end here, the applicant would be left in an untenable position:
the recommendation upon which his dismissal was premised would have been set
the recommendation upon which his dismissal was premised would have been set
aside, yet the dismissal itself would remain extant. He would be required to refer an
unfair dismissal dispute to the CCMA or the GPSSBC under s 191 of the LRA , a
process that would further delay the resolution of a matter that has already been
ongoing for more than five years.
13
The employer had no authority to dismiss
[47] The analysis does not, however, end there. The question that must be addressed is
whether the employer retained the authority to dismiss the applicant in
circumstances where it had agreed, under s 2.7(5)(a) of the SMS Handbook, that
the disciplinary hearing would be chaired by an arbitrator from the bargaining
council whose decision would be ‘final and binding.’
[48] Section 2.7(5)(a) of Chapter 7 of the SMS Handbook provides:
‘The employer and the employee charged with misconduct may agree that the
disciplinary hearing will be chaired by an arbitrator from the relevant sectoral
bargaining council appointed by the council. The decision of the arbitrator will
be final and binding and only subject to review by the Labour Court.’
[49] The effect of this agreement is that the employer abdicated its decision- making
power regarding the outcome of the disciplinary inquiry , including sanction, to the
commissioner appointed by the GPSSBC.
[50] This principle was applied by Van Niekerk J (as he was then) in SA Transport and
Allied Workers Union and others v MSC Depots (Pty) Ltd and others
6 (‘MSC
Depots’), a case concerning the consequences of a s 188A pre- dismissal
arbitration. The Court held at paragraph 11 that in terms of the tripartite agreement
between the employee, the employer and the CCMA, ‘an arbitrator steps into the
shoes of the employer and assumes the right normally considered a sacrosanct
element of the managerial prerogative — the right to exercise discipline, including
the right to dismiss.’ The principle in MSC Depots applies with equal force here: the
employer chose to place the disciplinary decision in the hands of the commissioner.
Having done so, it cannot now unilaterally reassume that decision-making power.
[51] The third respondent and the applicant agreed, through the consent form signed on
6 September 2021, read with s 2.7(5)(a) of the SMS Handbook , that the first
6 September 2021, read with s 2.7(5)(a) of the SMS Handbook , that the first
respondent would chair the disciplinary hearing and that his decision would be final
and binding. Paragraph 7.4(a) of PSCBC Resolution 1 of 2003, under which the
proceedings were conducted, expressly provides that if the chair finds an empl oyee
has committed misconduct, 'the chair must pronounce a sanction.' The sanctions
6 (2013) 34 ILJ 706 (LC).
14
may include dismissal. The employer's role, post -award, was limited to
implementing the decision of the commissioner , not to making an independent
decision on sanction.
[52] Having delegated its disciplinary decision- making power to the commissioner, the
employer could not unilaterally reassume that power upon receipt of a
recommendation. The SMS Handbook did not contemplate a two -stage process in
which the commissioner recommends and the employer then decides. It
contemplated a single- stage process in which the commissioner decides and the
employer enforces that decision. The employer's purported exercise of managerial
prerogative in dismissing the applicant was accordingly without authority.
[53] Furthermore, the first respondent's award has been set aside as a nullity. It was
made outside the powers conferred upon the first respondent. An act taken
pursuant to a nullity is itself a nullity. The employer's decision to dismiss was
premised entirely on the first respondent's recommendation, as the dismissal letter
expressly states: ‘you are hereby dismissed ... as per the arbitrator’s ruling attached
hereto.’ The foundation having been removed, the structure built upon it cannot
stand.
[54] The Court accordingly finds that the third respondent's decision to dismiss the
applicant on 27 November 2023 is null and void, being premised on a
recommendation that has been set aside as a nullity and having been made without
authority in circumstances where the employer had delegated its disciplinary
decision-making power to the commissioner.
Substitution – the merits of each charge
[55] Having set aside the arbitration award and declared the dismissal null and void, the
Court must consider whether it is appropriate to substitute the award or to remit the
matter for a fresh hearing. In the interests of finality , having a record that is
complete in material respects, and having regard to the unconscionable delays that
complete in material respects, and having regard to the unconscionable delays that
have already characterised this matter, the Court considers it appropriate to
examine the merits of each charge for purposes of determining whether substitution
is warranted. The evidence on the six guilty verdicts is before the Court in the
transcripts, evidence bundles, and the commissioner's own findings.
15
Charges 4.1 and 4.1.1- late quotation
[56] Charge 4.1.1 alleged that BG Inc's bid was accepted notwithstanding its lateness,
which may have prejudiced other potential bidders. The PSC Report at paragraph
6.1.2(i) found that ‘the allegation that the bid of Bosman Giyose was submitted late
is correct, however it was 1 minute late and not seven days late as averred.’
Mr Cronje testified in examination- in-chief on 27 January 2022 that the email on
page 70 of the employer's bundle was sent from Annelise van Deventer at Bosman
Giyose on 3 October 2016 at 11:01 AM, and that the closing time was 11:00 AM. He
testified that ‘ it is acceptable practice in the public service that whatever
procurement process you follow be it tenders that are advertised or sourcing of
price quotations there would be a closing date that you must comply with.’
[57] Under cross-examination on 28 January 2022, Mr Cronje conceded that the email
sent on 29 September 2016 by Mr Ramoshu was a ‘request for quotation for a
chairperson for an internal disciplinary hearing.’ Mr Govender then established that
a second email was sent on 6 October 2016 with a closing date of 10 October 2016.
When asked whether the quotation received on 10 October 2016 would have been
on time, Mr Cronje agreed: ‘He would have been in time, yes.’ Mr Cronje further
conceded that ‘he does not know whether there is a comparative list of bidders for
the quotation that was closed on the 10th of October’ and that ‘he is not hundred
percent sure what happened to Mr. Ramoshu.’
[58] The applicant testified that there were two separate procurement processes running
simultaneously. He explained: ‘So the request that was sent on 29 September, and
where the quotations were required by 3 October, there were two requests, there
was a request for quotations as an initiator and there was a quotation for request as
a chairperson in both cases related to Mr Xolani. So on Mr Xolani's case Bosman
a chairperson in both cases related to Mr Xolani. So on Mr Xolani's case Bosman
Giyose was appointed as the initiator.’ He then referred the commissioner to Bundle
A, page 3, and identified the quotation dated 10 October 2016 with the title
‘Quotation for chairing disciplinary hearing’ at a rate of R1 300 per hour, which he
testified related to Ms Natalie Govender. He further demonstrated, by reference to
the PSC Report at page 21, that there were indeed two purchase orders issued to
the service provider Bosman Giyose. The first on 7 October 2016 (for the initiator on
Mr Xolani's case) and the second on 13 December 2016 (for the chairperson on Ms
Govender's case, which was deleted on the same day).
16
[59] The applicant also adduced evidence, demonstrating that the sender and recipient
have no control over network transmission times. He conducted a live test during
the hearing on 22 November 2022, showing that an email sent at 8:54 AM from a
Gmail address was only received by the Department's server at 8:55 AM , a one-
minute delay attributable to system latency rather than the sender's conduct ,
showing it was submitted on time.
[60] The commissioner expressly found at paragraph 18.3 of his findings: ‘I further agree
with Mr. Naidoo that the price quotations that were received on 10 October 2016 for
the chairperson in Ms. N Govender’s matter were on time.’ Despite this finding, the
commissioner nonetheless found the applicant guilty on the main charge 4.1, and in
the award recommended dismissal on sub- charge 4.1.1. This is irreconcilable. The
commissioner's own analysis establishes that the quotation for the matter that is the
subject of the charge, Ms Govender's disciplinary hearing, was received on time.
On the commissioner's own analysis, this charge is not established, and is an
outcome a reasonable decision-maker could not reach.
Charge 4.1.3 – incorrect quote used for comparison
[61] Charge 4.1.3 alleged that the incorrect quote was used for the comparison of prices
of bidders. The PSC Report maintained that R&W Attorneys' quotation of R228 000
should have been used instead of BG Inc's quotation, and that using the wrong
quotation constituted an irregularity.
[62] The applicant testified on 23 November 2022 and referred the commissioner to the
R&W quotation at page 140 of the employer's bundle. He identified that the
quotation was for a ‘candidate attorney’ - Ms F Asmall, whose hourly rate as a
Director was R3 420, whose associate's rate was R2 280, and whose candidate
attorney's rate was R1 140. The applicant testified: ‘what is not considered is that is
using a candidate attorney, an articled clerk a person that has not been admitted as
using a candidate attorney, an articled clerk a person that has not been admitted as
an attorney yet. So, his comparison is wrong, he is not comparing apples with
apples because in the other quotations, they looked at admitted attorneys and they
took the pricing of admitted attorneys.’
[63] Under cross-examination on 10 May 2023, Mr Roskam put to the applicant that the
comparative schedule showed the incorrect quotation was used. The applicant
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maintained that the mandate from the Labour Relations Directorate was to source
admitted attorneys and that the R&W candidate attorney quotation could not be
compared with the quotations of admitted attorneys from BG Inc.
[64] The commissioner found at paragraph 18.4: ‘it is clear from this paragraph that the
mandate was to request price quotations from an admitted attorney that will exclude
candidates’ attorneys as they are trainees, and I agree with Mr. Naidoo that the
mandate that was given to them was request price quotations from admitted labour
attorneys who are registered on the CSD... As a result, I agree with Mr. Naidoo that
the price of the quotation for R228 000 for a candidate attorney from Rooth &
Wessels cannot be used in the comparative schedule as this did not meet the
mandatory requirements from the client.’
[65] Furthermore, BG Inc was appointed at R1 200 per hour, lower than both the quoted
rate of R1 300 and substantially lower than R&W's admitted attorney rate of R2 280
to R3 420 per hour. The applicant testified that if the service provider accepted
R1 200 when it had quoted R1 300, ‘it did not disadvantage the second and the
third service provider because their prices were in excess of 260 000 in any case,
the Preferential Procurement Regulation permits the HOD to negotiate with the first
service provider.’
[66] On the commissioner's own analysis, the premise of the PSC Report is
unsustainable, and a decision a reasonable decision-maker cannot reach. .
Charges 5.1 and 5.2 – payment irregularities
[67] Charges 5.1 and 5.2 alleged irregular expenditure of R425 239.75 in contravention
of s 45 of the PFMA and paragraphs C4.4, C4.8 and C4.9 of the Code of Conduct,
on the basis that the applicant failed to ensure that the system of financial
management and internal controls was carried out within his area of responsibility.
[68] The applicant testified on 23 November 2022 about the payment process. He
[68] The applicant testified on 23 November 2022 about the payment process. He
explained that BG Inc submitted invoices to the Labour Relations Directorate (the
business unit), not to SCM. The business unit certified the work completed and the
invoice amounts, and then forwarded a checklist to the Finance Directorate for
payment. He testified if payment was made then that would be between the
business unit and the finance directorate, and he must maintain that is not his area
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of responsibility, as the area of responsibility of financial management lies with the
financial directorate. He stated that he would not have known the overcharge
because the invoice would go to the business unit, the business unit will certify the
work completed and invoice amounts, and the case of the change from R1 200 to
R1 500 supply chain management would not know anything about it.
[69] The transcript of 23 November 2022 records the applicant referring to the invoices
at Bundle B, Part 6. He identified that BG Inc charged R1 500 per hour in all its
invoices (totalling R425 239.75) when the appointment was at R1 200 per hour, an
overcharge of R300 per hour. Mr Govender asked: ‘Would you have known about
the overcharge?’ The applicant answered: ‘No. The invoices ... the business unit will
certify the works completed and the invoice amounts and then they would prepare a
checklist, which they would then forward to the finance directorate. So in terms of
the change in the rate from R1 200 to R1 500, supply chain management will not
be, will not have any knowledge of this.’
[70] Mr Cronje, the PSC investigator, testified on 27 January 2022 that the payments
were processed by the Labour Relations Directorate under Mr Mlambo and that
page 134 of the employer's bundle showed the payment report. Under cross -
examination, Mr Cronje conceded that he recommended disciplinary proceedings
against ‘everybody implicated in the report’, including Mr Mlambo and his team, and
that he was ‘not hundred percent sure what happened to Mr. Ramoshu.’
[71] The commissioner expressly found at paragraph 18.6 that ‘Mr. Naidoo was not
responsible for processing invoices from Bosman Giyose, they were approved by
Labour Relations Directorate.’ Despite this finding, the commissioner sustained the
guilty verdict on the basis that the applicant failed to put measures in place to
ensure that a wrong comparative schedule is not used with a quotation to initiate
from Bosman Giyose which was late for 1 minute.
from Bosman Giyose which was late for 1 minute.
[72] This reasoning is a non sequitur . The charge alleged irregular expenditure of
R425 239.75: a payment irregularity. The finding was that the applicant had no
involvement in the payments. The commissioner conflated the procurement process
(charges 4.1.1 and 4.1.3) with the payment process (charges 5.1 and 5.2). The two
are distinct: one concerns the appointment of BG Inc; the other concerns the
payment to BG Inc. The applicant may have had a role in the former (which this
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Court has addressed under charges 4.1.1 and 4.1.3) but, on the commissioner's
own finding, had no role in the latter.
[73] Furthermore, the commissioner's finding that the applicant was the ‘Head of SCM’
and therefore bore ultimate oversight responsibility is factually incorrect. The SCM
Policy of 2016, approved by the HOD on 21 September 2016, identified the Chief
Director, Mr Poobalan Govender, as the Head of SCM, not the applicant. The
applicant testified on 22 November 2022 that whenever he took decisions, he was
not taking them in isolation, it was based on the engagement with their Chief
Director, Mr. Poobalan Govender, who then indicated how he should deal with
matters, and according to him at all times he acted within the policy of the
department. Mr Govender, as Chief Director, recommended the procurement
transaction to the HOD for approval. If anyone bore ultimate oversight responsibility
for the system of financial management and internal controls within SCM, it was the
Chief Director, not the applicant who reported to him. The commissioner's
attribution of ‘Head of SCM’ responsibility to the applicant was a material
misdirection, and one that a reasonable decision-maker could not reach.
Charge 6.9 – failure to monitor validity periods of bids
[74] Charge 6.9 alleged that the applicant failed to put in place measures to monitor the
validity period of bids so that, if necessary, these periods could be extended before
their expiry.
[75] Ms Fosu testified on 25 October 2022 and 31 January 2022 that the validity period
is ‘the responsibility of SCM. SCM is the function that oversees the Supply Chain
Management, supply chain, and monitoring of the validity period of the bid, it is part
of the Supply Chain Management and you are managing the entire supply chain.’
She testified that ‘if it was not for a good Samaritan that alerted the HoD’ the validity
period would have expired. The ‘good Samaritan’ was the Probity Auditor.
period would have expired. The ‘good Samaritan’ was the Probity Auditor.
[76] The applicant testified on 24 November 2022 that responsibility for monitoring the
validity period rested with the BEC under the SCM Policy, the Standard Operating
Procedures, and the BEC Charter. He referred the commissioner to the extension
letter signed by Ms Ruth Morena, the BEC chairperson, demonstrating that the
BEC, not SCM, took accountability for the extension. He testified: ‘This is one of the
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tenders that was monitored weekly’ and that the probity auditor served as a
‘backup’ who called him to advise that the bid was about to expire.
[77] The commissioner found at paragraph 19.6 of the findings: ‘ I do not agree with the
contention of Mr. Naidoo is not the responsibility of the SCM to put measures in
place to monitor the validity period it is the responsibility of the BEC, which is a
committee that does not have full -time employees, so the administrative
responsibility falls under SCM. ’ He found the applicant guilty because he ‘ failed to
lead evidence before me on what measures are in place to ensure that the validity
period does not expire.’
[78] This is a closer question than the preceding charges. The BEC is indeed a
committee without full -time employees, and the administrative support for it falls
under SCM. The commissioner's reasoning, that the applicant bears oversight
responsibility and failed to demonstrate what measures existed, is reasonable.
However, the mitigating circumstances are substantial: the bi d did not expire; it was
extended; the SCM vacancy rate was almost 60%; and the incident occurred during
Covid-19 closure. The commissioner himself acknowledged these factors when
imposing only a final written warning rather than dismissal on this charge.
[79] The Court is prepared to accept, on a balance of probabilities, that the applicant
bore some responsibility as Director of SCM for ensuring measures were in place to
monitor bid validity, and considers that for purposes of substitution.
Charge 6.11 – insubordination
[80] Charge 6.11 alleged that on or about 15 October 2020, the applicant refused the
CFO's request to set up a meeting with the DDG in GPT responsible for Probity
regarding ways to unblock the probity service function.
[81] Ms Fosu testified on about the background to this charge. She explained that
following the decentralisation of probity audit functions from Provincial Treasury to
following the decentralisation of probity audit functions from Provincial Treasury to
the Department in April 2020, there were challenges with delays in probity reports.
She testif ied that she asked the applicant to arrange a meeting with the DDG at
GPT to discuss ‘ways to unblock the probity service function. ’ She stated that Mr.
Naidoo said to her that he was not her PA and that the reason she asked Mr.
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Naidoo to arrange the meeting was that he could explain the importance of the
meeting to ensure that it was set up soon.
[82] The applicant testified on 24 November 2022 that he did not refuse the instruction.
He explained that Ms Pailman (his predecessor's personal assistant) had previously
arranged such meetings with Treasury by communicating with the PA in Treasury
and comparing diaries. He testified that he referred the matter to his supervisor,
Mr Govender, who then indicated how he should deal with matters. He stated that
‘Ms Fosu became upset and she indicated that she knows that he is not his PA. ’ He
explained that Ms Kgage (the Director responsible for Probity Auditors) resolved the
matter directly with Treasury and that the resolution was communicated to Ms Fosu.
He further testified that the HOD had mandated that SCM not be involved in the
probity audit function to maintain the integrity and independence of the tender
process, and referred the commissioner to the relevant email in Bundle B at Part 7.
[83] The commissioner found at paragraph 19.7 of the findings that ‘ the Employee,
Mr. Naidoo guilty of Charge 6.11 for refusing to set up a meeting with the Deputy
Director General in the GPT responsible for probity. ’ He agreed ‘with the Employer
that failure by the Employee, Mr. Naidoo to comply with the instructions constitutes
insubordination and was a blatant refusal to implement lawful instructions. ’ He
stated: ‘What makes the insubordination serious is the response from the
Employee, Mr. Naidoo when he refused the instruction telling the Acting CFO that
he was not his Secretary.’
[84] The evidence does not support a finding of outright insubordination.
[85] The Court is constrained in its ability to resolve this factual dispute. The evidence on
charge 6.11 turns entirely on a private telephonic conversation between two people.
There were no witnesses, no recording, and no contemporaneous written record.
There were no witnesses, no recording, and no contemporaneous written record.
Ms Fosu says the applicant told her he was ‘not her PA’; the applicant denies ever
having said it, testifying under cross-examination he denied that he said to Ms Fosu
that he is not her personal assistant, and said everyone who knows him, knows that
is not his character. The commissioner resolved this credibility dispute in favour of
Ms Fosu's version without articulating any reasoning as to why her version was
preferred over his, and the Court struggles to find enough evidence in the record to
resolve this factual dispute, and indeed so would a reasonable decision-maker.
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[86] There is accordingly insufficient evidence to have found insubordination, and is
taken into account for purposes of substitution.
Waiver
[87] The applicant contends that the third respondent waived its right to discipline him by
reason of the inordinate delay of approximately 18 months between becoming
aware of the alleged misconduct (PSC Report dated 20 May 2019) and preferring
charges on 2 November 2020. The PSC Report recommended implementation
within 90 days.
[88] Two independent decision- makers, Adv Bham SC and the first respondent , both
concluded that the delay did not amount to waiver. The third respondent's
explanation is the political transition following the May 2019 general elections,
which required the new MEC to be apprised of developments. Waiver requires a
clear, unequivoca l, and intentional abandonment of a right. Mere delay, even
significant delay, does not automatically constitute waiver.
[89] The Court is not persuaded that the delay amounts to waiver sufficient to dismiss
the charges. Waiver requires a clear, unequivocal, and intentional abandonment of
a right. The explanation proffered, a change in MEC leadership following the May
2019 elections and the subsequent disruptions occasioned by the COVID -19
pandemic, explains the administrative delay in preferring charges. It does not,
however, constitute evidence of an intention not to prosecute. At no point during the
18-month delay did the employer communicate any intention to abandon the
disciplinary process. It continued to employ the applicant throughout. The change in
political leadership and the pandemic are explanations for tardiness, not evidence
of intentional waiver. The Court accordingly agrees with the commissioner and with
Adv Bham SC that the delay did not amount to waiver.
[90] The delay is, however, highly relevant to the question of sanction and to the overall
fairness of the process.
[91] An employer that takes 18 months to charge an employee, and then a further three
[91] An employer that takes 18 months to charge an employee, and then a further three
years to conclude the hearing, cannot credibly maintain that the employment
relationship has irretrievably broken down, particularly when, during that same
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period, it sought the employee's assistance with audit turnaround, appointed him to
chair committees, and assessed him as 'fully effective.'
The appropriate sanction
[92] The Court has found that the applicant should have been found guilty on only one
charge: charge 6.9 (failure to monitor validity periods of bids). The Court has found
that the applicant should have been found not guilty on charges 4.1/4.1.1, 4.1.3,
5.1, 5.2 and 6.11.
[93] The Sanctioning Guidelines applicable to the public service classify charge 6.9 as a
'Less Serious Offence.' For a first offence, the prescribed sanction is 'corrective
counselling or a verbal warning.'
[94] The applicant is a first -time offender. He has three dependent children and elderly
parents who rely on his income. The infractions on the procurement charges
occurred within 29 days of his appointment and during his probationary period, in a
unit with a vacancy rate exceeding 60%. He did not benefit financially or otherwise.
The employer itself proposed an alternative sanction of demotion and one month's
suspension without pay, thereby conceding that dismissal was not the only
reasonable sanction. The applicant's supervisor provided a glowing character
reference, and the Department itself sought his assistance with the audit
turnaround, appointed him to chair committees, and assessed him as 'fully
effective.'
[95] The delay in prosecuting the matter is also a significant mitigating factor. The
applicant was suspended on 8 March 2021. The hearing commenced in
September 2021 and was only concluded in May 2023. The findings were delivered
on 31 July 2023 and the award on 13 November 2023. From the date of the first
charges (2 November 2020) to the date of dismissal (30 November 2023), more
than three years elapsed. From the date of the alleged procurement infractio n
(October 2016/January 2017) to the date of dismissal, more than six years elapsed.
Furthermore, the applicant was suspended from 8 March 2021 until September
Furthermore, the applicant was suspended from 8 March 2021 until September
2023, a period of approximately two and a half years , before his suspension was
lifted and he was appointed to chair committees. An employer that suspends an
employee for two and a half years, then lifts the suspension and appoints the
24
employee to senior committee positions, and then dismisses the employee three
months later upon receipt of a recommendation, struggles to credibly maintain that
the employment relationship is intolerable. The employer's own conduct during the
protracted process negates any suggestion of an irretrievable breakdown.
[96] In the circumstances, the Court finds that dismissal is grossly disproportionate to
the misconduct established. Having regard to the Sanctioning Guidelines, and the
totality of the evidence, the appropriate sanction for the charge on which the
applicant has been found guilty is a written warning, valid for six months.
Costs for the review
[97] In respect of the costs of the review application, the Court has had regard to the
approach of the Constitutional Court in Zungu v Premier of the Province of
KwaZulu-Natal and Others7, where the Court held that costs in labour matters are a
matter of discretion and that the general rule that costs follow the result does not
apply with equal rigidity in the Labour Court.
[98] The review raised important questions of law concerning the binding nature of
s188A reviews , not to mention the parties have a continued employment
relationship stemming from the order . In the exercise of the Court's discretion,
accordingly, no order as to costs is made in respect of the review application.
[99] Accordingly, the following order is made:
Order
1. The third respondent's application for condonation for the late filing of its answering
affidavit is granted.
2. The third respondent is ordered to pay the costs of the condonation application
alone on Scale B.
3. The arbitration award issued by the first respondent on 13 November 2023 under
Case Number GPDH04/2021 under the auspices of the second respondent is
reviewed and set aside.
7 [2018] ZACC 1.
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4. The third respondent's decision to dismiss the applicant on 27 November 2023 is
declared null and void for the reasons set out in this judgment.
5. The arbitration award is substituted with the following order:
a. The applicant is acquitted on all charges, except for charge 6.9, on which he is
found guilty (failure to implement measures to monitor the validity periods of
bids).
b. A written warning, valid for six months from the date of this order, is imposed
in respect of charge 6.9.
6. The applicant is reinstated retrospectively to his position as Director: Supply Chain
Management in the Gauteng Department of Roads and Transport on the same
terms and conditions that applied prior to his dismiss al, with effect from 30
November 2023.
_______________________
JA Norval
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv E Nhutsve
Instructed by: DMO Incorporated Attorneys
For the Third Respondent: Adv PJ Daniell
Instructed by: The State Attorney, Johannesburg