THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C376/2024
In the matter between:
MAHLATSE MAEBANA APPLICANT
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL FIRST RESPONDENT
D DU PLESSIS N.O. SECOND RESPONDENT
CITY OF CAPE TOWN THIRD RESPONDENT
Heard: 19 August 2026
Delivered: 27 August 2026
Review of arbitration award - unfair labour practice (promotion) - material error of law
- impermissible headhunting denied applicant a fair opportunity to compete - error led
directly to unreasonable result - award reviewed and compensation awarded.
JUDGMENT
HARVEY, J
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
27/08/2026
Signature Date
2
Introduction
[1] The applicant, Mahlatsi Maebana, is employed by the City of Cape Town as Head
of the Operational Programmes Management Unit in its Urban Waste
Management Directorate. He applied unsuccessfully for appointment to the
position of Manager: Collections Branch. He referred an unfair labour practice
dispute (unfair conduct relating to promotion) to the SALGBC.
[2] The Commissioner found that the City had not committed an unfair labour
practice by failing to appoint him. The applicant seeks to review and set aside
that award. The application is opposed.
[3] The applicant also initially sought orders setting aside the recruitment process
which resulted in the appointment of George Jonkers, declaring Mr Jonkers’
appointment unlawful and invalid, and directing the City to conduct a fresh
recruitment process. At the hearing, however, the applicant indicated that he no
longer seeks to disturb Mr Jonkers’ appointment and seeks only compensation
of 12 months' remuneration for the unfair labour practice.
Background
[4] The post of Manager: Collections Branch, which reports to the Director: Waste
Services, Mr Keraan, was advertised in 2022. The applicant applied. Although
he met the minimum requirements, he was not shortlisted. No appointment was
made.
[5] The City thereafter embarked on what it described as a headhunting process.
Three candidates were identified, including Mr Jonkers, who was then employed
by the City as Manager: Departmental Support Services in the Urban Waste
Management Department. Two of the headhunted candidates were found
competent, and Mr Jonkers was recommended for appointment. The Executive
Director (ED) did not support the recommendation, however, due to employment
equity considerations and concerns arising from the psychometric assessments.
[6] The post was accordingly re-advertised in 2023, and the applicant applied again.
This time the applicant was shortlisted and interviewed. He obtained the highest
This time the applicant was shortlisted and interviewed. He obtained the highest
interview score of the three candidates interviewed, but none was considered
competent for appointment.
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[7] When the re-advertised process produced no candidate considered competent
for appointment, the City returned to the two candidates who had been found
competent during the earlier headhunting process. The earlier recommendation
of Mr Jonkers was resubmitted to the Executive Director for reconsideration, and
thereafter referred to the Municipal Manager. Mr Jonkers was ultimately
appointed.
The award
[8] The Commissioner considered whether the City had engaged in unfair conduct
relating to the applicant’s non-promotion. He noted that an employee has no right
to promotion; an employee is entitled only to a fair opportunity to compete for a
post, and the employer is free to select the candidate it considers most suitable.
Employees are however protected against a selection process or decision that is
arbitrary, capricious, discriminatory, made in bad faith, based on irrelevant
considerations or otherwise unfair.
[9] The Commissioner assessed the applicant’s various complaints regarding the
recruitment and selection process. One of the principal complaints was that the
City had acted contrary to the 2021 Municipal Staff Regulations issued under the
Systems Act1 by resorting to headhunting whereas the post was not categorised
as a critical and scarce-skills post. The Commissioner held that the Regulations
prescribed minimum standards and were not peremptory, and that the City’s
2020 Recruitment and Selection Policy (the Policy) did not conflict with the
Regulations. He found that the Policy permitted headhunting if a recruitment
process had failed to produce a suitable candidate. He accordingly rejected the
applicant’s contention that headhunting was confined to critical and scarce-skills
posts.
[10] The Commissioner also rejected the applicant’s complaints about bias and
conflicts of interest, the panel's composition, and the scoring process. He found
that the fact that the applicant obtained the highest score of those interviewed
that the fact that the applicant obtained the highest score of those interviewed
did not entitle him to appointment, because he had ultimately been found not
1 Local Government: Municipal Staff Regulations issued under the Local Government: Municipal
Systems Act 32 of 2000 GN 890 in GG 45181 of 20 September 2021 (hereinafter ‘the Regulations’).
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competent: his assessment reflected four developmental areas , and his score
was insufficient for him to be recommended for appointment. He also found
insufficient evidence to conclude that the applicant had a stronger employment
equity claim than Mr Jonkers.
[11] The Commissioner concluded that the applicant had failed to establish unfair
conduct by the City in the recruitment and selection process and accordingly
found that he had not been subjected to an unfair labour practice.
Review Grounds
[12] The applicant alleges gross irregularities in the conduct of the arbitration and
contends that the outcome was one that a reasonable decision-maker could not
reach.
[13] His principal complaint concerns the Commissioner’s treatment of the City’s use
of headhunting. He contends that the Commissioner erred in finding that the
Regulations did not restrict headhunting to critical and scarce-skills posts, and in
accepting that the City was entitled to rely on its Recruitment and Selection Policy
to appoint a candidate identified through headhunting.
[14] The applicant further contends that the Commissioner failed properly to consider
and assess his complaints concerning the fairness of the recruitment and
selection process, Keraan’s involvement in identifying and subsequently
assessing Mr Jonkers, which he contends gave rise to a conflict of interest , and
the irregular ex post facto signing of the declarations of interest by the members
of the interview panel .
[15] He further contends that the Commissioner acted irregularly and unfairly in
refusing to issue a subpoena for the Municipal Manager without providing
reasons for such refusal.
[16] The City contends that the application is, in substance, an appeal against the
Commissioner’s findings. It maintains that the Commissioner properly
considered the applicant’s complaints, that the applicant was afforded a fair
opportunity to compete for the post but was assessed as not competent for
opportunity to compete for the post but was assessed as not competent for
appointment, and that no irregularity has been established which rendered the
outcome unreasonable.
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[17] In oral argument, the applicant focused principally on the Commissioner’s
treatment of the Regulations, the alleged conflict of interest involving Keraan,
and the refusal to subpoena the Municipal Manager.
Evaluation
[18] The review test is outcome -based. In Herholdt,2 the SCA held that a gross
irregularity is established where the Commissioner misconceived the nature of
the enquiry or arrived at an unreasonable result. Material errors of fact, or errors
concerning the weight or relevance of particular facts, do not in themselves
render an award reviewable. They are relevant only if their effect is to render the
outcome unreasonable.
[19] In Mofokeng3 the Labour Appeal Court held that error s of fact or law are
insufficient to vitiate an award; what matters is the materiality of the error and its
effect on the arbitrator’s conception of the enquiry, the issues to be determined
and the ultimate outcome. An error which causes the Commissioner to
misconceive the enquiry or materially affects the result may render the award
reviewable.
[20] The decision in Mofokeng also concerned an alleged unfair labour practice
relating to promotion. The Commissioner had misunderstood the collective
agreement governing the appointment process and, as a result, had approached
the enquiry into the fairness of the non-promotion from an incorrect premise. The
Court held that the error was material because it caused him to misconceive the
enquiry and resulted in an unreasonable outcome.
[21] A similar difficulty arises in this matter. There is merit in the applicant’s complaint
that the Commissioner misunderstood the governing regime. Both the City’s
2020 Policy and the 2021 Regulations address the situation in which a
recruitment process fails to produce a suitable candidate. Under its 2020 internal
Policy, the City could , in such an instance, resort to alternative recruitment
2 Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) 2013 (6) SA 224 (SCA)
at para 25.
at para 25.
3 Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at paras 30–33.
6
methods, including headhunting.4 However, the 2021 Regulations promulgated
under the Systems Act provide that where no suitable candidate is identified, the
post may be re -advertised. A lternative recruitment methods, including
headhunting, are reserved for situations where the post is a critical and scarce-
skill post.5
[22] It is common cause that the post for which the applicant applied was not a critical
and scarce skill post. The Policy predated the Regulations and is in any event
subordinate to them. To the extent that it permitted headhunting in circumstances
in which the later Regulations did not, it could not prevail over the Regulations.
[23] The Commissioner nevertheless held , without giving reasons, that the
Regulations were not peremptory and that the Policy was not inconsistent with
them. This was an error of law. The Regulations prescribe the requirements for
municipal recruitment and selection, and the City was bound by them. Its Policy
could not permit a wider use of headhunting than the 2021 Regulations allowed.
[24] The City was invited in argument to explain the basis for the Commissioner’s
conclusion on this point , but was unable to do so. Its suggestion that the
Regulations would have expressly required inconsistent policies to be repealed
if they were intended to prevail cannot be sustained. Nor can any concession or
understanding by the applicant as to the status of the Regulations determine their
legal effect.
[25] Was this error material? I am persuaded that it was. Had the Commissioner
correctly interpreted the Regulations, he would have appreciated that, once the
advertised process failed to produce a suitable candidate, the City could not
return to candidates identified through an impermissible headhunting process .
4 Clause 5.2.1.4 of the City’s 2020 Recruitment and Selection Policy provides that:
‘If it is determined that the recruitment process has not elicited suitable candidates, the pool of
candidates may be extended by considering ad hoc applicants, executive search/headhunting,
referrals and/or re-advertising.’
5 See note 1 above. The relevant clauses read as follows:
18(8) If it is determined that the recruitment process has not attracted suitable candidates, the post
may be re-advertised.
18(9) If the post is categorised as a critical and scarce skill post, alternative recruitment methods,
such as executive search, headhunting, referrals and re-advertising may be considered only if the
recruitment process has not attracted suitable candidates. ’
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The post should instead have been re -advertised. That would have given the
applicant a further opportunity to compete for it.
[26] The applicant may again have been found unsuitable. He may also have
improved his skills or performed better in a further recruitment process. It is
impossible to know. He was not required to establish that he would have been
appointed. The unfairness lay in denying him a further opportunity to compete in
accordance with the Regulations. Instead, he was compared with candidates
identified through an earlier impermissible recruitment method, and one of those
candidates was appointed.
[27] The Commissioner’s error of law therefore went directly to the fairness of the
recruitment process. Had he correctly understood the Regulations, he may well
have reached a different conclusion concerning whether the City’s conduct in not
promoting him was unfair. The error was therefore material and rendered the
outcome unreasonable.
[28] The Commissioner’s unexplained refusal to issue a subpoena for the Municipal
Manager, who had approved Mr Jonkers’ appointment despite the ED’s previous
refusal to approve him, was procedurally unfair. The applicant was entitled either
to call his witness, or to reasons for the Commissioner’s decision to decline the
subpoena.
[29] I am not persuaded, however, that the applicant ’s complaint concerning the
alleged conflict of interest has merit. The Regulations require a panel member to
recuse himself or herself if the interviewee is a spouse, partner, close family
member, or close friend; if there is a relationship of indebtedness; or if another
conflict of interest exists. That Mr Keraan, as the responsible manager, had
identified Jonkers as a potentially suitable candidate did not, without more, give
rise to a conflict of interest. Nor d id the later completion of the declaration of
interest forms establish one. Mr Keraan explained that the disclosures of interest
interest forms establish one. Mr Keraan explained that the disclosures of interest
were made at the meeting, and that the declaration forms merely recorded them.
[30] Nor do the applicant's complaints concerning his scores establish a further
ground of review. He complained in particular that the panel member who scored
him lowest lacked technical expertise. Nothing in the evidence establishes that
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the scoring was manipulated or unfair or that the Commissioner’s treatment of
this complaint rendered the outcome unreasonable.
[31] In the result, the Commissioner’s error concerning the Regulations was material
and rendered his conclusion that the City had not acted unfairly unreasonable.
The unexplained refusal to issue the subpoena was, in addition, procedurally
unfair. The award falls to be reviewed and set aside.
Remedy
[32] The applicant has left the City and no longer seeks appointment to the post or to
disturb Mr Jonkers’ appointment. He seeks the maximum compensation of 12
months’ remuneration.
[33] I am not persuaded that maximum compensation is warranted. I have found that
the applicant was denied a fair opportunity to compete for the post in a process
conducted in accordance with the Regulations. That was a material infringement
of his right to fair labour practices. Its seriousness must, however, be assessed
in the light of the limits of the findings I have made. The unfair labour practice is
confined to the City’s impermissible resort to headhunt ing, which deprived the
applicant of a further opportunity to compete for the post . I have not found that
the scoring was unfair or that the process was manipulated to secure Mr Jonkers’
appointment. Nor have I found that, but for the unfairness, the applicant would
have been appointed to the post. The compensation is intended to afford a
solatium for the denial of the applicant's right to compete fairly for the post, rather
than to compensate him for the loss of the post itself. 6 In all the circumstances,
compensation equivalent to three months’ remuneration is just and equitable.
The award records that the applicant’s annual remuneration at the time of the
hearing was R1,278,419.
[34] Neither party sought an order as to costs.
6 Compare South African Police Services v Solidarity obo Slingers and Another (JA57/2020) [2021]
ZALAC 35; (2021) 42 ILJ 1934 (LAC) (14 June 2021).
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Order
[1] The arbitration award dated 19 August 2024 , issued under case number
WCM012416, is reviewed and set aside.
[2] It is declared that the City committed an unfair labour practice relating to
promotion in respect of the applicant.
[3] The City is ordered to pay the applicant compensation in the amount of
R319,604.75 (three hundred and nineteen thousand, six hundred and four rands
and seventy five cents) by 15 September 2026.
[4] There is no order as to costs.
___________________
SJ Harvey
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: (in person)
For the Third Respondent: Adv Jansen instructed by Timothy & Timothy Attorneys