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[2026] ZALCCT 116
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Mbombo v Department of Correctional Services and Others (C185/21) [2026] ZALCCT 116 (28 July 2026)
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IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not reportable
Case No:
C 185 / 21
In the matter between:
WONGAMA
MBOMBO
Applicant
and
DEPARTMENT OF
CORRECTIONAL SERVICES
First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second Respondent
JACQUES BUITENDAG
N.O.
Third Respondent
Heard:
22 July 2026
Delivered:
28 July 2026
JUDGMENT
VENTER AJ
Introduction
[1]
This is an opposed application to review and set aside an arbitration
award issued by the Third Respondent, Commissioner Jacques
Buitendag
N.O. (the Commissioner), under the auspices of the General Public
Service Sector Bargaining Council ("the Bargaining
Council"),
under case number GPBC2389-2019. In the arbitration proceedings, the
Applicant challenged the substantive fairness
of his dismissal by the
First Respondent, the Department of Correctional Services. The
Commissioner found the dismissal to be substantively
fair, prompting
the present review application.
[2]
The review application was heard in Court on
22
July 2026
.
The Applicant was represented by Adv Casner whilst the First
Respondent was represented by Adv Nyman.
[3] The Applicant seeks
an order reviewing and setting aside the arbitration award in terms
of section 145 of the Labour Relations
Act 66 of 1995 (the LRA). The
application is aimed mainly at the Commissioner's finding that the
Applicant was guilty of engaging
in prohibited pecuniary dealings
with an inmate and the subsequent finding that his dismissal was
substantively fair.
[4] The First Respondent
opposes the application and contends that the Commissioner properly
considered the evidence presented at
the arbitration proceedings,
correctly interpreted the applicable provisions of the
Correctional
Services Act 111 of 1998
and the relevant disciplinary code, and
arrived at a decision within the band of decisions to which a
reasonable decision-maker
could have come.
Material
background
[5]
The Applicant commenced employment with the First Respondent on 7
March 1997. At the time of his dismissal, he occupied the
position of
Senior
Correctional Officer and Head of the Emergency Support Team (EST)
at Pollsmoor Correctional Centre in the Western Cape. Following an
internal disciplinary hearing, the Applicant was dismissed on
6
November 2019.
[6] The Applicant faced
three disciplinary charges. The first and second charges alleged
that, on 6 October 2018 and 1 November
2018, he contravened
section
118(2)(b)
of the
Correctional Services Act 111 of 1998
by depositing
R500.00 on each occasion into the account of inmate Janick Adonis.
The third charge alleged that, between 4 June
2018 and 14 January
2019, the Applicant unlawfully removed, or caused the removal of, the
same inmate from Pollsmoor Medium A Correctional
Centre to the Area
Commissioner's office and guest house without lawful authority, in
contravention of
section 116
of the
Correctional Services Act.
[7
] Aggrieved by his
dismissal, the Applicant referred an unfair dismissal dispute to the
Bargaining Council. The dispute concerned
only the substantive
fairness of the dismissal; procedural fairness was not in issue. The
Applicant sought retrospective reinstatement
as the primary relief.
[8] During the
arbitration proceedings, the First Respondent led evidence in support
of all three charges. The Applicant, in turn,
disputed the
allegations and, amongst other things, argued that the deposits into
the inmate's account did not constitute prohibited
pecuniary
dealings, that such conduct was common within the Department, and
that he had been subjected to inconsistent disciplinary
action. The
Applicant further denied unlawfully removing the inmate from the
correctional facility.
[9] On 7 March 2021, the
Commissioner issued an arbitration award finding the Applicant not
guilty of the allegations of unauthorised
removal of the inmate from
the correctional facility. However, the Commissioner concluded that
the Applicant had contravened
section 118(2)(b)
of the
Correctional
Services Act by
engaging in prohibited pecuniary dealings with an
inmate. Having found the remaining misconduct sufficiently serious,
the Commissioner
held that the Applicant's dismissal was
substantively fair and dismissed the unfair dismissal dispute. This
arbitration award is
the subject of the present review proceedings.
Review grounds
submitted by the Applicant
[10]
The Applicant submits that the arbitration award is reviewable under
section 145
of the LRA. Although the Applicant accepts that the
Commissioner correctly found him not guilty of the allegations
relating to
the unauthorised removal of inmate Janick Adonis from
Pollsmoor Correctional Centre, he submits that the Commissioner
committed
a reviewable irregularity in finding that his conduct in
depositing money into the inmate's account constituted prohibited
pecuniary
dealings in contravention of
section 118(2)(b)
of the
Correctional Services Act.
[11] The Applicant
submits that the Commissioner failed to properly evaluate the
evidence regarding the deposits into the inmate's
account. He
contends that the deposits were made openly through the Department's
cashier, that official receipts were issued in
respect of them, and
that he never concealed his conduct. According to the Applicant, he
was never informed that such conduct constituted
misconduct and
believed that the deposits were lawful and permissible. He further
alleges that the Commissioner failed to appreciate
that the deposits
were processed through official Departmental procedures and that the
evidence did not establish that he derived
any personal benefit or
acted contrary to the purpose of
section 118
of the
Correctional
Services Act.
[12
] A key aspect of the
Applicant's argument is his claim that the First Respondent
disciplined him inconsistently. He argues that
it was routine for
correctional officials to deposit money into inmates' accounts, and
many officials did the same without facing
disciplinary measures. He
cites evidence from the arbitration suggesting no rule prohibited
such deposits, his supervisors found
the practice acceptable and he
presented documentation showing other officials who had also
deposited money but were never disciplined.
As a result, the
Applicant argues he was unfairly singled out for dismissal and that
the Commissioner did not properly apply the
parity principle in
judging the fairness of the punishment.
[13] The Applicant claims
that the Commissioner did not give sufficient weight to witnesses'
testimony that depositing money into
inmates' accounts was a normal
practice at Pollsmoor Correctional Centre and that no official had
ever been dismissed or disciplined
for this. The Applicant asserts
that the Commissioner either ignored or failed to properly assess
this evidence, leading to an
unreasonable conclusion about both
misconduct and the appropriate sanction.
[14] Finally, the
Applicant argues that although the Commissioner correctly found that
the evidence did not prove the most serious
charge of unauthorised
removal of the inmate, the Commissioner still failed to assess
whether dismissal was a fair punishment for
the other misconduct. The
Applicant claims that, when considering the evidence as a whole,
dismissal was not justified and that
the Commissioner did not
properly evaluate the totality of the evidence, relevant legal
principles, and fairness of dismissal.
Consequently, the Applicant
requests a review and setting aside of the arbitration award and asks
for a new order declaring his
dismissal substantively unfair, or in
the alternative, remitting the case back to the Bargaining Council
for reconsideration.
Arguments of the First
Respondent
[15]
The First Respondent opposes the review application, arguing that the
Commissioner properly assessed the evidence and made
a decision
within the reasonableness standard of
section 145
of the LRA. It
asserts that the Applicant's review is essentially an effort to have
this Court reevaluate the merits of the case
and replace the
Commissioner's findings, despite the lack of any reviewable
irregularity.
[16] The First
Respondent submits that the Applicant was employed as the Head of the
Emergency Support Team at Pollsmoor Correctional
Centre and held a
position of trust and responsibility. It contends that the Applicant
was charged with three counts of misconduct,
namely two charges of
prohibited pecuniary dealings with an inmate in contravention of
section 118(2)(b)
of the
Correctional Services Act 111 of 1998
, and a
third charge of the unauthorised removal of a remand detainee from
the correctional facility. According to the First Respondent,
the
disciplinary proceedings were conducted fairly and resulted in the
Applicant's dismissal after he was found guilty of the misconduct.
[17] Regarding the first
two charges, the First Respondent contends that
section 118(2)(b)
expressly prohibits correctional officials from engaging in pecuniary
dealings with inmates or persons connected to inmates, except
where
such dealings arise in the execution of official duties. It submits
that the Applicant admitted depositing money into the
inmate's
account and that the issue before the Commissioner was not whether
the deposits were made openly or through official channels,
but
whether the conduct itself was prohibited by the
Correctional
Services Act. The
First Respondent argues that the Commissioner
correctly interpreted the statutory prohibition and concluded that
the Applicant's
conduct constituted misconduct, irrespective of
whether receipts had been issued or whether the deposits were
processed through
the Department's cashier.
[18] The First Respondent
further disputes the Applicant's allegation of inconsistent
discipline. It submits that the Commissioner
properly evaluated the
evidence relating to consistency and correctly concluded that the
Applicant had failed to establish that
other officials who were
allegedly treated differently were valid comparators. The First
Respondent contends that the Commissioner
considered the evidence
regarding the alleged practice of depositing money into inmates'
accounts but was entitled to reject the
Applicant's contention that
such evidence rendered his dismissal unfair. It further submits that
an allegation of inconsistency
cannot justify overlooking clear
statutory misconduct or compel an employer to perpetuate previous
failures to discipline other
employees.
[19] Although the
Commissioner acquitted the Applicant on the charge relating to the
unauthorised removal of the inmate, the First
Respondent submits that
the remaining misconduct, viewed in the context of the Applicant's
senior position, the statutory obligations
imposed upon correctional
officials and the trust inherent in his employment, was sufficiently
serious to justify dismissal. It
contends that the Commissioner
properly exercised his discretion in determining that dismissal
remained an appropriate sanction
notwithstanding the Applicant's
acquittal on the third charge.
[20] In the premises, the
First Respondent submits that the Applicant has failed to establish
any reviewable irregularity, error
of law or unreasonable outcome
warranting interference by this Court. It accordingly seeks an order
dismissing the review application
and confirming the arbitration
award.
Test
for review
[21]
The appropriate test for review is now settled. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[1]
the
Court held that ‘
the
reasonableness standard should now suffuse
section 145
of the LRA’
.
The Court further held that the threshold test for the reasonableness
of an award was: ‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...’
[2]
[22]
This means a two-stage review enquiry. Firstly, the review applicant
must establish that there is a failure or error
on the part of the
arbitrator. If this cannot be shown, that is the end of the matter.
Secondly, if such a failure or error is
shown, the review applicant
must further show that the outcome reached by the arbitrator was
unreasonable. If the outcome is nonetheless
reasonable, despite the
error or failure, it is equally the end of the review application. In
short, for the review to succeed,
the error or failure must affect
the reasonableness of the outcome to the point of rendering it
unreasonable.
In
Herholdt
v Nedbank Ltd and Another
[3]
the
Court said:
‘…
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.
’
[23]
The reasonableness consideration as articulated in
Herholdt
was then applied by the Labour Appeal Court (LAC) in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[4]
as
follows:
‘…
in
a case such as the present, where a gross irregularity in the
proceedings is alleged, the enquiry is not confined to whether
the
arbitrator misconceived the nature of the proceedings, but extends to
whether the result was unreasonable, or put another way,
whether the
decision that the arbitrator arrived at is one that falls in a band
of decisions a reasonable decision maker could
come to on the
available material.
’
[24]
Against the above principles and test, the Court will now proceed to
consider the Applicant’s application to review and set
aside
the arbitration award of the second respondent.
Analysis
of review grounds – Substantive fairness
[25]
The main question is whether the Commissioner made an irregularity
that can be reviewed when deciding that the Applicant's
dismissal for
contravening
section 118(2)(b)
of the
Correctional Services Act 111
of 1998
was substantively fair. The Applicant mainly disputes the
Commissioner's handling of the evidence concerning inconsistency and
whether dismissal was an appropriate penalty.
[26] It is common cause
that the Applicant deposited money into an inmate's account on two
separate occasions. The Applicant's defence
is not that the
transactions did not occur, but rather that the deposits were made
openly through the Department's official procedures,
that receipts
were issued in respect of them, and that other correctional officials
had engaged in similar conduct without being
subjected to
disciplinary action. In the Court’s view, these considerations
do not alter the essential nature of the enquiry.
The issue is
whether the Applicant engaged in prohibited pecuniary dealings with
an inmate as contemplated by
section 118(2)(b)
of the
Correctional
Services Act.
[27
] The Court is unable
to fault the Commissioner's conclusion in this regard. The fact that
the deposits were made openly, processed
through official channels,
or accompanied by official receipts does not alter the nature of the
transactions. The Legislature has
expressly prohibited correctional
officials from engaging in pecuniary dealings with inmates, except
where authorised by the Act.
The purpose of this prohibition is
self-evident. It seeks to maintain the integrity of the correctional
environment, prevent inappropriate
financial relationships between
officials and inmates, and safeguard public confidence in the
administration of correctional facilities.
The Commissioner's finding
that the Applicant's conduct fell within the statutory prohibition is
therefore both rational and consistent
with the purpose of the
legislation, and so is his reasoning for rejecting the Applicant and
his witnesses’ evidence in this
regard.
[28] The Applicant places
considerable reliance on the alleged inconsistent application of
discipline. It is well established that
consistency is an important
consideration in determining the fairness of a dismissal. However,
consistency is not an inflexible
rule and does not constitute the
only consideration.
[29]
In
National
Union of Mineworkers on behalf of Botsane v Anglo Platinum
Mine
[5]
it was held that:
‘
The idea of
inconsistency in employee discipline derives from the notion that it
is unfair that like and like are not treated alike.
The core of this
'factor' in the application of employee discipline (it would be
a misconception to call it a principle) is
the rejection of
capricious or arbitrary conduct by an employer.
It has application in two
respects. Mainly, it is a recognition of the unfairness of the
condemnation of one person for genuine
misconduct when another
indistinguishable case of misconduct by another person is condoned.
The second application is the
recognition of the unfairness that
results when disparate sanctions are meted out for indistinguishable
misconduct to different
persons.’
[30]
Moreover, in
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[6]
the Court specifically warned that where it came to considering
issues of inconsistency, saying that:
‘
This
court sounded a warning on approaching the question of inconsistency
in the application of discipline willy-nilly without any
measure of
caution. Inconsistency is a factor to be taken into account in the
determination of the fairness of the dismissal but
by no means
decisive of the outcome on the determination of reasonableness and
fairness of the decision to dismiss.
…’
[31]
In
Nyathikazi
v Public Health and Social Development Sectoral Bargaining Council &
Others
[7]
the Labour Appeal Court
directed that consistency does not mean that there is a licence for
other employees to commit serious offences
and in
Buthelezi
v MEC Department of Education KwaZulu Natal & Others
[8]
emphasis was placed on the
seniority of an employee.
[32] Even if it is
accepted by this Court that other correctional officials were not
dismissed for similar conduct, that fact,
does not render the
Applicant's dismissal unfair. The Commissioner was entitled to take
the Applicant's seniority into account.
Employees occupying positions
of leadership and trust are expected to uphold the highest standards
of integrity and to set an example
for junior officials. The
Commissioner was therefore entitled to distinguish the Applicant's
circumstances from those of other
employees and to conclude that his
senior position justified the sanction imposed.
[30] The Court is
satisfied that the Commissioner did not ignore the evidence relating
to consistency. The arbitration award
demonstrates that the
Commissioner considered the Applicant's evidence concerning the
alleged conduct of other officials before
concluding that it did not
outweigh the seriousness of the misconduct committed by the
Applicant.
[31] Ultimately,
the question before this Court is not whether it would have reached
the same conclusion as the Commissioner,
nor whether another
arbitrator may have imposed a lesser sanction. The enquiry is whether
the Commissioner's decision is one that
a reasonable decision-maker
could reach on the evidence before him. Having regard to the
Applicant's admitted conduct, the clear
statutory prohibition
contained in
section 118(2)(b)
of the
Correctional Services Act, the
Applicant's senior position within the Department and the limited
role played by the parity principle in the overall enquiry into
fairness, the Court is satisfied that the Commissioner reached a
decision that falls squarely within the band of reasonable decisions.
The Applicant has accordingly failed to establish any reviewable
irregularity warranting interference by this Court.
[32]
Turning to costs, the Court has a wide discretion in terms of
section
162(1)
of the LRA. The court is mindful of the
dictum
of the
Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[9]
when it comes to the issue of costs in employment disputes.
Although the Applicant has been unsuccessful, the Court is not
convinced that the review application was frivolous, vexatious or
pursued in bad faith. The issues raised, particularly those relating
to the interpretation of
section 118
of the
Correctional Services Act
and
the application of the parity principle, were genuine disputes
requiring judicial determination. In the circumstances, the
requirements
of law and fairness are best served by making no order
as to costs.
[33]
As a result, the following order is
made:
Order:
1.
The application is dismissed.
2.
There is no order as to costs.
Pieter Venter
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
Adv Casner
(Instructed by Potelwa Attorneys)
For the First
Respondent: Adv Nyman (Instructed by the
State Attorney)
[1]
(2007)
28 ILJ 2405 (CC).
[2]
Id
at para 110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[3]
(2013)
34
ILJ
2795 (SCA)
at
para 25.
[4]
(2014) 35 ILJ 943 (LAC) at para 14. The
Gold
Fields
judgment was followed by the LAC itself in
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[5]
(2014) 35 ILJ 2406 (LAC) at paras 25 – 26. See also
Mtshwene
v Glencore Operations SA (Pty) Ltd (Lion Ferrochrome)
(2019) 40 ILJ 507 (LAC) at para 24.
[6]
(2017) 38 ILJ 860 (LAC) at para 31. See also
Absa
Bank Ltd v Naidu and Others
(2015) 36 ILJ 602 (LAC) at para 36.
[7]
(2021) 42 ILJ 1686 (LAC)
[8]
(2023) 44 ILJ 1891 (LAC)
[9]
(2018) 39 ILJ 523 (CC).