THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: A2025-076352
In the matter between:
RAYMOND MOKAKATLA LESO Appellant
and
IMPERIAL LOGISTICS SA (PTY) LTD
t/a IMPERIAL LOGISTICS First Respondent
COMMISSIONER LETSEMA MOKOENA N.O. Second Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION Third Respondent
Heard: 5 May 2026
Delivered: 31 July 2026
Coram: Van Niekerk JA et Nkutha-Nkontwana JA, Djaje AJA
Summary: Practice and Procedure - Review proceedings - Court a quo raising issue
mero motu - Commissioner awarding reinstatement despite employee seeking
compensation - Whether Court a quo entitled to intervene on basis not specifically
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
___________ __________
Signature Date
2
pleaded - Principle of legality - Parties afforded opportunity during oral argument to
address inconsistency between remedy sought and remedy granted - Court a quo not
required to ignore material statutory irregularity apparent ex facie the record.
Dismissal - Unfair dismissal - Remedy - Reinstatement - Employee seeking
compensation and not reinstatement - Commissioner nevertheless ordering
retrospective reinstatement - Failure to engage with peremptory provisions of s
193(2)(a) of the Labour Relations Act 66 of 1995 - Commissioner misconceived the
nature of the enquiry and rendered an unreasonable outcome - Court a quo entitled to
substitute reinstatement with compensation.
JUDGMENT
NKUTHA-NKONTWANA JA
Introduction
[1] The appellant, Mr Leso, impugns the court a quo’s decision to overturn the award
rendered by the second respondent (commissioner), which retrospectively
reinstated him consequent to the finding that his dismissal was substantively
unfair. The court a quo upheld the commissioner’s finding that Mr Leso’s
dismissal was substantively unfair, but substituted reinstatement with
compensation on the basis that the appellant explicitly elected compensation as
the preferred remedy during arbitration and that the evidence on the record
demonstrated a breakdown in the employment relationship.
[2] The question for determination in this Court is whether the court a quo exceeded
its powers when it, mero motu , raised and determined a challenge to the
commissioner’s decision to award reinstatement as a remedy, even though it was
never pleaded, and allowed the outcome to turn on that issue. The appeal is by
the leave of the court a quo.
3
Background facts
[3] Mr Leso was the second respondent ( Imperial Logistics) as Fleet Manager,
responsible for overseeing his designated drivers and signing their vehicle
inspection checklists. Five charges of misconduct were brought against him, but
Imperial Logistics eventually abandoned charge 4 . He was found guilty of four
charges and issued with a written warning in respect of charges 1 and 3 and
summarily dismissed in respect of charges 2 and 5. Accordingly, the arbitration
turned on charges 2 and 5, framed as follows:
‘Charge 2: Dereliction of Duty in that during the period of 24, 25, 26, 27 June
2019, you failed to take corrective action when the driver Sifiso Shongwe
reported the vehicle defects reg. JB67LYGP of brakes and battery fault to start
the engine of the vehicle.
Charge 5: Bringing the company name into disrepute, in that you failed on
several occasions to make proper arrangements and plan with your junior
employees when you will not be at work or arrive late, which was noticed by the
client Makro.’
[4] Charge 2 was premised on the allegation that Mr Leso failed to ensure that the
faults that had been identified and recorded on the vehicle's checklist by Mr Sifiso
Shongwe (Mr Shongwe), the driver of vehicle registration number JB67LYGP,
were attended to or promptly reported to his supervisor, Mr Brian Briggs , the
Regional Operations Manager for the Massmart contract . The commissioner
accepted Mr Leso’s evidence that Mr Shongwe did not inform him that the brakes
in his vehicle were faulty. He also found that Imperial Logistics failed to show that
the brakes were indeed faulty and subsequently repaired, and that the failure to
call Mr Shongwe as a witness was fatal to its case.
[5] The commissioner found that charge 5 was premised on a single email from
Makro, dated 23 May 2019, which, without more, did not support the allegation
that Mr Leso's conduct tarnished Imperial Logistics' reputation . He further
that Mr Leso's conduct tarnished Imperial Logistics' reputation . He further
accepted Mr Leso’s explanation for his absence from work as reasonable, as he
was either on annual leave, off sick, or at public protests on some of those days.
4
[6] Having found the dismissal substantively unfair, the commissioner ordered the
retrospective reinstatement of Mr Leso, with back pay of R853 531.12.
In the court a quo
[7] Imperial Logistics sought to review and set aside the arbitration award on various
grounds, including that the commissioner committed a gross irregularity by
ignoring relevant and material evidence or misconstruing it . As a result, he
reached an outcome that no reasonable decision maker could have reached in
respect of the evidence before him. The grounds of review were based on the
evidence set out in the founding affidavit . It is common cause that there was no
explicit challenge to the remedy of reinstatement.
[8] The court a quo upheld the commissioners ’ finding that the dismissal was
substantively unfair. Yet, it raised, mero motu, the issue of the pertinence of the
remedy of reinstatement, despite the fact that it was not ventilated in the papers
before it . It sought counsel's submissions on the issue during oral argument,
having gleaned from the arbitration record that reinstatement was never sought
and that there appeared to be some relationship issues between the parties.
[9] On the strength of the dictum in Standard Bank of SA Ltd v Leslie and Others,1
the court a quo found the remedy of reinstatement untenable as
‘the commissioner failed to recognise that Mr Leso was solely seeking monetary
compensation and that a continued employment relationship would be intolerable
for both parties’.
It set aside the reinstatement and substituted it with compensation equivalent to
12 months' salary.
1 (2021) 42 ILJ 1080 (LAC) at para 6.
5
In this Court
[10] Mr Leso submits that the court a quo erroneously embarked on a fact-finding
mission to build a case for Imperial Logistics based on new issues that were not
ventilated in the papers before it and raised only during oral argument. He further
submits that, t o the extent that the new dispositive issues were raised without
prior notice and the outcome turned on them, he was subjected to trial by
ambush. Even the court a quo’s finding on the intolerability of a continued
relationship is premised on evidence irrelevant to the charges under scrutiny , he
further submits.
[11] Imperial Logistics defends the court a quo’s findings. It submits that it would have
been remiss of the court a quo to ignore a point of law that was apparent ex facie
(on the face of) the record and to decide the matter on an incorrect legal basis
simply because it was not raised in the pleadings. Section 193(2)(a) of the
Labour Relations Act 2 (LRA) provides that reinstatement must not be ordered if
the employee does not wish to be reinstated. Thus, the court a quo cannot be
faulted for finding the reinstatement legally incompetent in terms of section
193(2)(a) in the light of Mr Leso’s explicit election not to be reinstated .
Furthermore, the commissioner ignored the evidence on the intolerability of the
continued employment relationship.
[12] The question for determination by this Court is whether the court a quo correctly
set aside the order of reinstatement on the basis that the commissioner acted
ultra vires section 193(2)(a). G iven that the issue was raised mero motu, the
enquiry turns on whether the court a quo ’s intervention constitutes judicial
overreach, inconsistent with the principle articulated by the Constitutional Court
in CUSA v Tao Ying Metal Industries and Others3 (Tao Ying), that the parties are
bound by their pleadings.
2 Act 66 of 1995, as amended.
3 2009 (2) SA 204 (CC) at paras 67 and 132.
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[13] While it is trite that litigants generally stand and fall by their pleadings, particularly
in motion proceedings , that principle cannot be applied perfunctorily in review
proceedings in terms of section 145 of the LRA where the reviewing court is
confronted with a material irregularity , apparent ex facie the record, implicating
the legality of the exercise of statutory power. Tao Ying accordingly instructs that
the reviewing court cannot turn a blind eye to such a defect merely because the
parties did not explicitly articulate it .4 On the contrary, the reviewing court is
enjoined to, mero motu, raise the material irregularity and allow the parties to
address it in either written or oral argument.5
[14] In the present case, it is apparent, ex facie the record, that Mr Leso never sought
a remedy of reinstatement . Conversely, as the following extract from the record
shows, he unequivocally stated that he was seeking financial compensation, a
statement he reiterated at the end of the arbitration in his closing argument.
‘COMMISSIONER: Misconduct, we will get back to that shortly. Relief sought?
What is it that you are seeking in terms of --- this matter?
Reinstatement, re-employment, financial compensation.
MR LESO: I need a financial compensation.
COMMISSIONER: Compensation
…
MR LESO: I'm looking forward for the positive result of this case. From
CCMA to take their right decision whereby they can pay me
my money from where I started to stay until today. Therefore,
I will be happy for that thing if the CCMA can do that.’
[15] It is telling that the commissioner disposed of the issue of remedy in terse and
conclusory terms, stating that:
4 Ibid.
5 Id fn 3.
7
‘... as per the relief sought as well as per the provisions of section 193 read with
section 194 of the LRA, the Respondent is ordered to retrospectively reinstate
[Mr Leso] ...’
The record plainly belies that statement . Mr Leso did not seek reinstatement but
compensatory relief. The commissioner not only failed to furnish any rational
basis for awarding reinstatement but also incorrectly characterised the remedy as
being consistent with the relief sought by Mr Leso. That he d id, a s correctly
submitted by Imperial Logistics, in the circumstances where , in terms of
section 193(2) of the LRA, reinstatement does not follow as a matter of course;
and pertinently, where section 193(2)(a) precludes reinstatement where it is not
sought.6
[16] This is not an inconsequential lapse. It strikes at the heart of the lawful exercise
of the remedial power conferred by the LRA and reveals a failure to heed the
cautionary injunction of the Constitutional Court in Booi v Amathole District
Municipality7 that, although section 193(1) confers a discretion to award
reinstatement, re-employment or compensation, that discretion is constrained by
section 193(2), which obliges the arbitrator or court to act within the limits
expressly imposed by the statutory scheme. Properly construed, therefore, the
remedial discretion under the LRA is not a carte blanche to impose what an
arbitrator subjectively considers fair, but a structured statutory power that must
be exercised in conformity with the constraints enacted by the legislature.
[17] Mr Leso’s complaint that he was subjected to a trial by ambush accordingly has
no merit. The court a quo did not decide the matter on a basis hidden from the
parties. However, during oral argument, the co urt a quo openly raised the
inconsistency between the remedy sought and the remedy granted and invited
counsel to address it. Both parties were heard on the point. Counsel for Mr Leso
counsel to address it. Both parties were heard on the point. Counsel for Mr Leso
initially suggested that Mr Leso, a lay person , may have altered his election and
6 See: South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and
Others (2017) 38 ILJ 97 (CC) at para 44; Standard Bank of South Africa Ltd v Leslie and others (2021) 42
ILJ 1080 (LAC) at para 17.
7 (2022) 43 ILJ 91 (CC) at paras 34 – 43.
8
pursued reinstatement. But that contention is , correctly in my view, not persisted
with. The commissioner did not record that Mr Leso changed his election at any
stage of arbitration, nor did the award disclose that reinstatement had become
the remedy ultimately sought.
[18] In any event, it is not Mr Leso’s case that he had further arguments that could
conceivably have altered the position that reinstatement had not been sought,
and that section 193(2)(a) expressly precludes the remedy granted by the
commissioner. That being the case, the matter transcended the ordinary confines
of pleading principles and engaged the legality of the commissioner’s exercise of
statutory power in terms of section 193(2)(a). Therefore, Mr Leso’s reliance on
Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and
Others
8 and Home Talk Developments (Pty) Ltd and Others v Ekurhuleni
Metropolitan Municipality9 is misplaced. These authorities address the unfairness
occasioned by trial by ambush, and where hidden issues of the pertinence of the
remedy of reinstatement emerged for the first time in the judgment . The present
case is distinguishable in that the issue emerged from the record itself, was
expressly raised by the court a quo, and was fully addressed by the parties.
[19] Equally without merit is Mr Leso’s contention that the court a quo’s intervention
amounted to judicial overreach . The principle of legality does not permit the
reviewing court to ignore a manifest irregularity. To do so would allow a material
defect to be disregarded based on pleading formalism, elevating form over
substance, and ultimately amount to a failure by the reviewing court to discharge
its constitutional duty to guard against the unlawful exercise of public power.
[20] Viewed through the prism of Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others ,10 and consistent with the principles articulated in Head of
Ltd and Others ,10 and consistent with the principles articulated in Head of
Department of Education v Mofokeng and Others ,11 the error committed by the
8 (2008 (2) SA 184 (SCA).
9 2018 (1) SA 391 (SCA).
10 (2007) 28 ILJ 2405 (CC) at paras 78-79; Makuleni v Standard Bank of SA Ltd and Others (2023) 44 ILJ
1005 (LAC).
11 Head of Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) at paras 30-33.
9
commissioner extends far beyond a mere flaw in reasoning; it constitutes a
fundamental misconception of the nature of the enquiry itself. The commissioner
failed to determine whether reinstatement was legally competent in the light of
the employee’s election and the constraint imposed by section 193(2)(a). The
award is , for that reason, disconnected from both the undisputed facts on the
record and the mandatory statutory constraint for the exercise of remedial power.
As a result, the court a quo was not only entitled but also obliged to intervene to
fulfil its constitutional and statutory mandate.12
[21] To the extent that this finding is dispositive of the matter, I am not inclined to deal
with the issue of the intolerability of the relationship between the parties.
Conclusion
[22] In sum, the judgment of the court a quo is unassailable. The commissioner
misconceived the nature of the enquiry, disregarded Mr Leso’s election, and
awarded a remedy expressly precluded by section 193(2)(a), without furnishing
any rational basis for doing so. As a result, the outcome reached by the
commissioner fell outside the range of decisions that a reasonable commissioner
could have reached. In the circumstances, the court a quo correctly set aside the
award in respect of the reinstatement and replaced it with compensation. The
appeal must accordingly fail.
Costs
[23] Considering the tenets of law and fairness, it would be just for each party to pay
their own costs.
[24] In the premise, the following order is made:
Order
1. The appeal is dismissed.
12 Id fn 3 at para 67; Booi above fn7 at para 44.
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2. There is no order as to costs.
_______________________
P. Nkutha-Nkontwana
Judge of the Labour Appeal Court of South Africa
Van Niekerk JA and Djaje AJA concur.
APPEARANCES:
For the appellant : Adv M.V Sehunane
Instructed by : Sehunane Inc Attorneys
For the respondent : Adv P Maharaj-Pillay
Instructed by : Thomson Wilk Incorporated