THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No: C502/2022
In the matter between:
KGOMOTSO SEKHABISA Applicant
and
SOUTH AFRICAN HERITAGE RESOURCES
AGENCY (SAHRA) First Respondent
COMMISSION FOR CONCILIATION AND
ARBITRATION (CCMA) Second Respondent
ELDRIDGE EDWARDS N.O. Third Respondent
Heard: 18 February 2026
Delivered: 4 August 2026
JUDGMENT
MacROBERT, AJ
Introduction
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] This is an opposed application for review in terms of section 145 of the Labour
Relations Act 1 (the LRA) in which the Applicant seeks an order that the
arbitration award handed down by Third Respondent on 17 August 2022
under the auspices of the Commission for Conciliation, Mediation and
Arbitration ( CCMA) under c ase No WECT11009 -2, in which he found the
Applicant’s dismissal to be procedurally and substantively fair, be reviewed
and set aside, together with an order as to costs.
[2] The Applicant seeks compensation, being the balance of the term of his fixed
term contract.
[3] In his Practice note, the Applicant contends that the Third Respondent arrived
at a conclusion in his award which was illogical and disconnected from the
facts placed before him, and that in so doing he misconstrued the facts before
him, resulting in an unreasonable conclusion that prevented the Applicant
from receiving a fair hearing.
[4] It will be observed that this does not correctly set out the now well -established
grounds for review, although the case made out by Applicant on the papers
and in his heads correctly captures the grounds.
[5] The First Respondent, the South African Heritage Resources Agency
(SAHRA), is a creature of statute and subject to the Public Finance
Management Act
2 (PFMA), falling within the structure of the Department of
Sport, Arts and Culture (the Department).
Factual background and the evidence
[6] Most of the facts are either common cause or not materially disputed.
[7] The Applicant was appointed as First Respondent’s Chief Financial Officer
(CFO) from 1 August 2017 at Level E1 on a five- year fixed term contract,
terminating on 31 July 2022, and reporting to First Respondent’s CEO,
Advocate Lungisa Malgas.
1 Act 66 of 1995, as amended.
2 Act 1 of 1999.
3
[8] Amongst his duties as CFO, the Applicant was required to acquaint himself
with the relevant provisions of the PFMA and all legislation applicable to
SAHRA, and policies, including procurement and procedures.
[9] Applicant’s job description (JD) provides that the primary purpose of the job is:
“To ensure that SAHRA finances are conducted in terms of the PFMA and to
provide the CEO and (its) Council with strategic advisory services on all
matters pertaining to financial management.”
[10] Applicant’s JD and Performance Plan contain a number of key requirements,
not least in financial management; ensuring sound internal controls and
producing quarterly reports for submission the Department and Treasury.
[11] The Applicant was appointed to act in the position of Executive: Corporate
Services from 3 June 2019, whilst simultaneously occupying the position of
CFO.
[12] The letter of Acting Appointment, signed by the CEO, stated that:
“You are reminded to familiarise yourself with the all the relevant Policies and
Delegations applicable to this position.”
[13] As at 3 June 2019, the CFO position was graded at E1 level. At the same
date, the position of Executive Officer: Corporate Services was graded at the
same level, viz: E1.
[14] As from 1 August 2019, the position of CFO was re- graded to E2- i.e. one
level higher than that of the Executive Officer: Corporate Services.
[15] The First Respondent’s Remuneration Policy in section 4 provides as follows:
“Temporary appointment of an existing employee to a higher level position
vacated by an incumbent who is expected to return to the position at which
time the acting appointee will return to his…former position or position
vacated through the resignation of an employee.”
4
[16] Further:
“An acting allowance is payable when an employee is required to undertake
the full duties and responsibilities of a higher level post for a minimum of four
(4) weeks and a maximum of six consecutive months . The same will apply in
instances where an employee is required to simultaneously fulfil the role of a
colleague in a position lateral to the one that the acting employee currently
occupies.”
(Own emphasis)
[17] As will be seen below the above rider was the subject of much debate and
argument, which the Court deals with below.
The Disciplinary Inquiry
[18] The Applicant was charged with three allegations:
[19] Charge 1:
“ 2.1 In terms of clause 6.4.2.1(c) of the Remuneration Policy, an employee
will be entitled to an Acting Allowance only if the employee is required
to undertake the full duties and responsibilities of a higher-level post
for a minimum of four (4) weeks and a maximum of six (6) consecutive
months. The same will apply in instances where an employee is
required to simultaneously fulfil the role of a colleague in a position
lateral to the one that the acting appointee currently occupies.
2.2 Your position as Chief Financial Officer is at level E2 with a total cost
of employment of R1,502,560 per annum. The position of an
Executive Officer: Corporate Services is graded at E1 with a total cost
of employment of R1,125,871 per annum.
2.3 Despite this, after being appointed to act in the position of Executive
Officer, Corporate Services from June 2019, you caused yourself to be
paid an acting allowance of R19,198.07 per month from June 2019 to
July 2019, and an amount of R23 423,11 per month from August 2019
until October 2020, when you were removed from your acting position.
5
2.4 As a result of the above you caused yourself to be paid an authorised
Acting Allowance totalling R389,742.79.
2.5 Your conduct in this regard amounts to you being paid an irregular
and/or unauthorised expenditure and is a breach of the policies of
SAHRA, including the Remuneration Policy. Such amounts to serious
misconduct.”
[20] Charge 2 : The Applicant was acquitted on this charge and thus bears no
further mention.
[21] Charge 3:
“…During the period of 15 August 2020 to 3 September 2020 you, in your
position as the Chief Financial Officer, you failed on several occasions to
timeously submit the requisite Procurement Plans to the DSAC (ie the
Department of Sport, Arts and Culture) , and despite various reminders to
submit within the time -lines. This was to the detriment of SAHRA in its
obligations owed to the DSAC. Your conduct in this regard was in dereliction
of your duties alternatively due to your gross negligence in carrying out your
duties as the Chief Financial Officer and amounts to serious misconduct.”
[22] The disciplinary inquiry was independently chaired by attorney Clive
Hendricks who found the Applicant guilty on Charges 1 and 3. After hearing
representations in mitigation and aggravation of sanction, he dismissed the
Applicant on 26 July 2021.
[23] The Applicant referred an unfair dismissal dispute to Second Respondent
which was arbitrated by Third Respondent, who issued his award on 17
August 2022, in which he confirmed that the dismissal of Applicant was both
procedurally and substantively fair.
[24] It is this award that the Applicant seeks to have reviewed and set aside by this
Court.
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The CCMA Arbitration
[25] Only two witnesses testified – First Respondent’s CEO, Advocate Lungisa
Malgas (Malgas), Applicant’s line manager, who reports to First Respondent’s
Council, and the Applicant himself.
Charge 1
[26] The Third Respondent spent considerable time in his award in dealing with
the meaning of “lateral” in First Respondent’s policy3 and concluded that the
First Respondent did not discharge the onus of establishing that the positions
of CFO and that of Executive Officer: Corporate Services (EOCS) were not
lateral despite the differences in salary and grading, and thus in essence
found the Applicant not guilty on this aspect of Charge 1. Although I am of the
view that this finding was questionable on the evidence in relation to the
Policy, I need not dwell on it any further.
[27] However, the Third Respondent found the Applicant guilty of breaching the
Policy in receiving an acting allowance for a period longer than six months.
The Policy is clear and unambiguous in this regard.
[28] The Applicant contended that Clause 6.4.2 of the Policy does not provide for a
cap on acting allowances when an employee acts in a lateral position, and
that the Rule is unclear.
[29] This is patently incorrect. The use of the words in the clause: “ The same
applies…..” is a direct reference to the provisions and the six month cap that
apply when an employee acts in a higher position. It would in any event make
no sense for there to be a cap of 6 months in one case and no cap in the
other.
[30] The CEO testified as to a document that the HR Manager submitted dated 19
September 2019 for approval of corrections to acting allowances that had
been calculated incorrectly. The Applicant’s name does not appear on the
document although he was receiving an acting allowance at the time. He
3 See in this regard paras 24, 25, 35 and 47 to 52 of the arbitration award.
7
however signed approval of the recommendations in the document in his
capacity as CFO and acting EOCS. This omission on the part of the Applicant
is more than questionable.
[31] The Applicant did not apply for a deviation from the Policy with regard to the
six month rule as provided in the Policy. The evidence reveals that the
Applicant was aware of the submissions made to Council for deviation
approval for the CEO and Mome to continue in their roles and receive acting
allowances beyond the six month period
[32] Clause 7.5 of the Policy provides that “ (a)ny deviations from the policy are
subject to the approval of the CEO ”. No such approval was sought by the
Applicant from the CEO, and no such approval was granted by the CEO. This
constituted a serious breach of the policy and entailed unauthorised and
irregular expenditure.
[33] The Applicant contended in his evidence that there had been precedent in the
First Respondent for payment of acting allowances of other employees
beyond six6 months, and hence there was inconsistency at play, for example,
in relation to one Mr Hine and other employees. However , he led no firm or
convincing evidence in this regard.
[34] The Applicant’s version was that he had had discussions with the CEO and
Boullion at a strategic planning meeting in relation to the extension of his
acting period yet did not put this to the CEO in cross -examination, which one
would have expected.
[35] The Applicant also contended that it was others who signed off on his receipt
of an acting allowance. However, it was he who instigated the process.
[36] The CEO also testified that she had been unaware that the Applicant
continued to receive an acting allowance beyond the six month period, which
Applicant could not challenge. The Applicant’s evidence that the CEO,
Boullion and Mome ought to have known that he was in receipt of an acting
allowance beyond the six months because they sat on committees when the
allowance beyond the six months because they sat on committees when the
2021 Annual Financial Statements were considered, was also not put to the
8
CEO by him in cross- examination, which one would also have expected and
thus carries little evidential weight.
[37] The Applicant attached much importance to the fact that the CEO authorised
payment of an acting allowance in October 2020. The Third Respondent dealt
with this adequately in his award, and not much store can be placed on this.
[38] The Applicant was aware of the Rule. He conceded that a finding of guilty on
the first charge would constitute serious misconduct.
The law
4
[39] Errors of fact or law by the arbitrator may not be enough to vitiate an award
unless the arbitrator arrived at an unreasonable result .5 To meet the test for
review, the result of the award has to be so egregious that no reasonable
person could reach such a result
6. If the arbitrator’s reasons rationally support
the outcome, interference with the award on the basis of unreasonableness
would not be justified
7.
[40] Even if an arbitrator commits a reviewable irregularity, the award cannot be
assailed if the outcome falls within a band of decisions which a decision-
maker could reach on the available evidence.8
[41] Adjudging the severity of misconduct is a power conferred upon the arbitrator.
The arbitrator’s sanction must stand unless no reasonable arbitrator could
have reached that conclusion.
9
[42] The review test as enunciated in Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others 10 has been given a strict interpretation. As Bestel v
4 In this regard the Court is indebted to Professor Alan Rycroft and Bruce Robertson, co- editors of
Workplace Law, for the source and analysis of certain of the decisions referred to in this Judgment.
5 See: Gauteng Department of Education v General Public Service Sectoral Bargaining Council and Others [2025]
5 BLLR 435 (LAC) at para 18.
6 See: AJ Charnaud and Company v SACTWU obo Members and Others [2024] 10 BLLR 1016 (LAC)
at para 24 and Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA) at para 25.
at para 24 and Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA) at para 25.
7 See: Duncanmec (Pty) Limited v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) paras 42 and 43.
8 National Union of Metalworkers of South Africa obo Motloung and Others v Polyoak Packaging (Pty) Ltd Others
(2025) 46 ILJ 552 (LAC) at paras 34 to 36.
9 TMT Services and Supplies (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and
Others (2019) 40 ILJ 150 (LAC) at para 21.
9
Astral Operations Ltd and Others 11 put it, an arbitrator’s finding will be one
that “a reasonable decision-maker could not reach” – i.e. reviewable – if it is
unsupported by evidence, based on speculation, or made in ignorance of
evidence that was not contradicted. Only if evidence which may have a
bearing on the sanction is ignored will a Commissioner be guilty of gross
irregularity12.
[43] In summary, as long as the Commissioner’s result is reasonable, r eviewing
and appeal Courts have been prepared to overlook errors of fact, errors of
law, and other irregularities.
Conclusion on Charge 1
[44] The Third Respondent’s award in this regard contains a detailed analysis and
exposition of the evidence and is well reasoned and the Court can find no
fault with it, save perhaps only with regard to the “ lateral” issue discussed
above, however, this does not work in Applicant’s favour. His award and
outcome accords with the legal principles and expositions the Courts as set
out above.
[45] Given the seniority of the positions the Applicant held and the level of trust
placed in him, what was expected of him under the First Respondent’s
Policies, his job description and his contract of employment as detailed in
Third Respondent’s award and the documents in the Bundles, also the failure
by the Applicant to apologise and show any remorse, the Third Respondent’s
finding of guilty on Charge 1 and the sanction of dismissal he imposed must
stand.
Charge 3
[46] The relationship between the First Respondent and DCAS is critical, as is
adherence to policies and practice, in this instance a failure on the part of
10 [2007] 12 BLLR 1097 (CC).
11 [2011] 2 BLLR 129 (LAC) at para 30.
12 See: Transnet Rail Engineering v Mienies and Others (2015) 36 ILJ 2605 (LAC) at para 11.
10
Applicant to adhere to same amounting to gross negligence and gross
dereliction of duty.
[47] The evidence revealed that the Applicant failed in multiple respects in this
regard, his conduct at times bordering on refusal to obey pre- determined
prescripts and policy, and not least, instructions; if not insolence, and a total
disregard both towards policy and his senior management and First
Respondent’s Council itself.
[48] The applicant either dissembled about the due date for submission of the
Procurement Plans for DSAC, which the evidence reveals was clearly 31 July
2022, and not 31 August 2022 as the Applicant claimed, or he was severely
remiss in his error, which was material.
[49] As an example the National Treasury instruction 2/2026/2017, and Ms Apies
of DCAS’s email of 2 July 2020, affording an extension, due to Covid- 19, of
certain of the deadlines, however the deadline of end July 2020 for
submission of the Procurement Plan Report was not extended beyond that
date - only the submission of the quarterly report. The Applicant conveniently
“confuses” the extensions afforded.
[50] The Applicant simply failed to respond to urgent email communications from
Ms Apies of DCAS reminding him of the deadline for submission, and also
from his own Line Manager, the CEO in this regard, displaying great disdain,
ultimately resulting in the CEO herself having to submit the requisite
Procurement plans to DCAS on 2 September 2022.
[51] These amounted to some five unanswered emails from Ms Apies to the
applicant from 15 August to 27 August 2020, the final being a final reminder,
threatening escalation. All were unanswered by the Applicant. Also a further
four emails from the CEO to him from 30 August 2020 to 2 September 2020,
remained unanswered by the Applicant.
[52] [55] The Applicant’s explanations in his evidence in this regard were
woefully inadequate and unacceptable and amounted to gross dereliction of
11
duty and gross negligence, as also financial misconduct under the provisions
of the PFMA,
[53] The Applicant was charged and found guilty of gross negligence in this
regard.
The law on gross negligence
[54] To qualify as gross negligence the Applicant’s conduct must depart from the
standard of a reasonable person to an extent that it may be categorised as
extreme.13
[55] The carelessness or mere failure which constitutes ordinary negligence,
changes to gross negligence when there is an indifference to, and a blatant
violation of, a workplace duty. Gross negligence can be described as a
conscious and voluntary disregard of the need to use reasonable care, which
has or is likely to cause foreseeable grave injury or harm to persons or
property or both. It is conduct that is extreme when compared with ordinary
negligence. Gross negligence also focusses on the magnitude of the risks
involved such that, if more than ordinary care is not taken, a serious mishap
can occur.
[56] Courts are less tolerant of employees who possess or claim to possess
special skills and who, because of their position and experience can be
expected to be aware of the performance standards set by their employer.
[57] In Somyo v Ross Poultry Breeders (Pty ) Ltd
14 the Labour Appeal Court (LAC)
held a manager or senior employee whose knowledge or experience qualifies
him/her to judge for him/herself whether s/he is meeting the standards set by
the employer, does not need a reasonable opportunity to improve his/her
performance. The judgment states:
“An employer who is concerned about the poor performance of an employee
is normally required to appraise the employee’s work performance; to warn
13 Department of Co- Operative Governance, Human Settlements and Traditional Affairs, Limpopo
province and another v Seopela N.O. and others [2015] ZALCJHB 22 (4 February 2015) (LC) at paras
40 to 42.
14 [1997] 7 BLLR 862 (LAC) at p 866.
12
the employee that if his work performance does not improve, he might be
dismissed; and to allow the employee a reasonable opportunity to improve his
performance: Craig v Rubdec (Pty) Ltd t/a Guys and Girls (1992) 1 LCD 29
(IC); James v Waltham Holy Cross UDC [1973] IRLR 202. Those
requirements may not apply in two cases which are relevant to this matter.
The first is the manager or senior employee whose knowledge and
experience qualify him to judge for himself whether he is meeting the
standards set by the employer: Stevenson v Sterns Jewellers (Pty) Ltd (1986)
7 ILJ 318 (IC) at 324F- G; Blue Circle Materials Ltd v Haskins (1992) 1 LCD 6
(LAC). The second is where “…the degree of professional skill which must be
required is so high, and the potential consequences of the smallest departure
from that high standard are so serious, that one failure to perform in
accordance with those standards is enough to justify dismissal:Taylor v Alidair
Ltd [1978] IRLR 82. Examples given in Taylor’s case are the passenger
carrying airline pilot, the scientist operating the nuclear reactor, the driver of
an articulated lorry full of sulphuric acid and the chemist in charge of research
of the possible effects of, for example, thalidomide.”
[58] On the law as cited above, the applicant has clearly , at the very least ,
committed gross negligence as to Charge 3.
Conclusion as to Charge 3
[59] There is no doubt for all the reasons given above, that the applicant was
correctly found guilty by third respondent on this charge and that dismissal is
the appropriate sanction under first respondent’s disciplinary code.
[60] In this regard, the remarks the court has made above apply equally here.
Applicant’s attack on alleged procedural unfairness
[61] The third respondent has dealt with this in his award.15
[62] The crux of his attack on procedural fairness is the failure by first respondent
to provide him and his representative at his disciplinary inquiry with the report
to provide him and his representative at his disciplinary inquiry with the report
of the forensic investigators, Diale Mogashoa Attorneys, and the lack of time
adequately to prepare.
15 See para 60 of the arbitration award.
13
[63] Neither ground was raised by his legal representative at the commencement
of the disciplinary inquiry, which would have been the appropriate time to raise
these procedural issues, which one would have expected.
[64] In any event first respondent did not rely on this report at the arbitration
hearing, it was rather applicant who relied on it, by which time he had it.
[65] The Court thus finds no merit on this attack and does not believe that
applicant was procedurally prejudiced.
Final Conclusions
[66] In all the premises, and for the reasons given above, the Court is satisfied that
the third respondent’s findings of guilty on the first and third charges, as also
the sanction of dismissal that he imposed were fully merited, well-reasoned in
relation to all the facts and the evidence before him, including both the oral
and documentary evidence, and that he committed no reviewable irregularity
under section 145 of the LRA, and his award should stand.
Costs
[67] In the interests of justice and fairness and on the basis of well established
case law in this regard, the Court is of the view that an adverse award of costs
is not merited.
[68] In the premise the following order is made:
Order
1. The applicant’s application for review is dismissed.
2. There is no order as to costs.
______________________
J.M.J. MacRobert
14
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant : Mr Z. Parker of Parker Attorneys
For the First Respondent : Mr Luway Mongie of Bowman Gilfillan Inc