THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 2230/22
In the matter between:
REACH SUMMIT (PTY) LTD Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
MUKHOVHE RAVHURA N.O. Second Respondent
CINDI ALANI SAMSON Third Respondent
Heard: 20 APRIL 2026
Delivered: 25 August 2026
JUDGMENT
MUNSAMY, AJ
[1] This is an application brought in terms of Section 145 of the Labour Relations
Act, 66 of 1995 (the LRA), to review and set aside an arbi tration award issued
by the Second Respondent (the Commissioner) under the auspices of the
(1) Reportable: Yes
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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First Respondent, the Commission for Conciliation, Mediation and Arbitration
(the CCMA).
[2] In the award, dated 20 September 2022 under case number GATW5667- 22,
the Commissioner found that the dismissal of the Third Respondent, Ms Cindi
Alani Samson, was procedurally fair but substantively unfair. The basis for the
finding of substantive unfairness was that the Applicant’s conduct amounted
to double jeopardy. The Commiss ioner ordered the Applicant to pay the Third
Respondent compensation equivalent to six months' salary, totalling
R180,000.00.
[3] The Applicant seeks to have this award reviewed and set aside and
substituted with a finding that the dismissal was both substantively and
procedurally fair.
[4] A significant development has occurred since the arbitration award was issued.
In a separate but related matter under case number JR2023/22, this Court, per
Daniels J, delivered a judgment on 14
th January 2025. That judgment rev iewed
and set aside a CCMA award which had found that the final written warning
issued to the Third Respondent — the very warning that forms the basis of the
double jeopardy finding in this matter —was fair. Daniels J declared the final
written warning to be an unfair labour practice and set it aside. The implications
of this judgment are central to the determination of the present review
application.
Factual Chronology
[5] The relevant sequence of events, as distilled from the pleadings and the
record, is as follows:
a. 1 November 2021: The Third Respondent commenced employment
with the Applicant as a Project Manager, Recruitment and Placements.
b. 28 March 2022: The Third Respondent was issued with a notice to
attend a disciplinary hearing concerning allegations of poor
performance, negligence, and inefficiency.
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c. 5 April 2022: The Applicant sent an email to the Third Respondent
retracting the notice to attend the disciplinary hearing. In the same
communication, the Applicant issued the Third Respondent with a final
written warning for "Negligence, carelessness and not following
company procedure throughout the Platinum and Kumba recruitment
process", which had led to missed deadlines and delays.
d. 6 April 2022: The Third Respondent was suspended. It is the
Applicant’s contention that it was on this date that it became aware of
the full extent of the Third Respondent’s failure to meet recruitment
targets, having only secured 94 of the required 200 learners.
e. 11 April 2022: The Applicant issued a new notice for a disciplinary
hearing, charging the Third Respondent with "Bringing the company
name into disrepute" and "Gross Negligence."
f. 13 April 2022: The disciplinary hearing took place.
g. 14 April 2022: The Third Respondent was dismissed.
h. 20 September 2022: Following a referral to the CCMA, the
Commissioner issued the arbitration award which is the subject of this
review.
i. 14 January 2025: In a separate review application (JR2023/22)
concerning the fairness of the 5 April 2022 warning, Dani els J set the
warning aside, declaring it an unfair labour practice.
The Arbitration Award Under Review
[6] The Commissioner found the dismissal to be procedurally fair, a finding which
is not challenged.
[7] The central pillar of the Commissioner's reasoning on substantive fairness
rests on the doctrine of double jeopardy. The Commissioner noted that both
the Applicant’s and the Third Respondent’s witnesses confirmed that the
issues raised in the final written warning of 5
th April 2022 and the charges
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leading to t he dismissal on 14 th April 2022 related to the same recruitment
projects.
[8] The Commissioner reasoned that the Applicant had already sanctioned the
Third Respondent for the alleged misconduct by issuing a final written
warning. He found no evidence was presented of any new missed deadlines
or acts of misconduct occurring between the issuance of the warning on 5 th
April 2022 and the subsequent charges on 11th April 2022.
[9] Consequently, the Commissioner concluded that subjecting the Third
Respondent to a second disciplinary process for the same conduct constituted
double jeopardy. He held, at paragraph 66 of the award: "In my view, the
respondent's conduct does amount to double jeopardy which renders the
dismissal unfair." Based solely on this finding, he deemed the dismissal
substantively unfair without proceeding to consider any other arguments on
the merits of the dismissal. This Court, having independently assessed the
evidence, the bundles of documents and arguments raised in the arbitration,
finds that the C ommissioner reached an outcome that a reasonable decision
maker could have reached on the evidence before him.
Grounds for Review and Analysis
[10] The Applicant’s primary ground for review is that the Commissioner
committed a gross irregularity and misconducted himself by fundamentally
misunderstanding and misapplying the doctrine of double jeopardy. The
Applicant argues that there was only one disciplinary enquiry, and that the
dismissal was based on new facts which came to its attention on 6
th April
2022, after the warning was issued.
[11] The Third Respondent opposes the application, submitting that the
Commissioner’s finding was rational and one that a reasonable decision-
maker could reach based on the evidence presented. The evidence, it is
argued, showed a clear overlap in the conduct being sanctioned.
The Legal Principles
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[12] The test for review is settled. As established in Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others 1, the question is whether the
decision reached by the commissioner is one that a reasonable decision-
maker could not reach.
[13] The doctrine of double jeopardy in the employment context provides that an
employee should not be disciplined or sanctioned twice for the same offence.
Its application is rooted in the principle of fairness. For the doctrine to be
applicable, there must have been a first, valid disciplinary action or a sanction
imposed.
The Impact of the Judgment by Daniels J
[14] The judgment of Daniels J in case JR2023/22 is central to the issue before me.
That judgment has declared the final written warning of 5 th April 2022 to be an
unfair labour practice and has set it aside. The legal effect of this order is that
the warning is rendered a nullity; it is void ab initio (from the beginning).
[15] The entire foundation of the Commissioner’s finding of double jeopardy was
the existence of a valid prior sanction—the final written warning. With that
warning having been retrospectively invalidated by an order of this Court, the
first "jeopardy" required to sustain a finding of double jeopardy ceases to
exist. An employee cannot be placed in "double jeopardy" if they were never
validly “in jeopardy" in the first place.
[16] The Commissioner, through no fault of his own, proceeded on the assumption
that the warning was valid. He could not possibly have been privy to the
subsequent findings of this Court. However, in conducting this review, I
cannot ignore a definitive and material judicial finding that fundamentally
alters the legal and factual landscape upon which the Commissioner’s
decision was built.
[17] The Commissioner’s finding that the Applicant’s conduct amounted to double
jeopardy is, in light of the judgment of Daniels J, a material error of law at the
1 [2007] ZACC 22; [2007] 12 BLLR 1097 (CC).
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time that this matter came before this Court . This error is not merely peripheral;
it goes to the heart of the award and had a distorting effect on the outcome.
The finding of substantive unfairness was based exclusively on this legal
premise, which, albeit subsequently, has been rendered ex lege, incorrect.
[18] Therefore, the Commissioner’s conclusion i s disconnected from the true legal
reality of the matter. The decision that the dismissal was unfair on the basis of
double jeopardy is one that could not be sustained in the present context. But
does this mean that the arbitration award must accordingly be reviewed and set
aside?
[19] Mr. Higgs argued, for the Third Respondent, that the powers of a Court on a
review of this nature are within the ambit of S145 of the LRA. In this regard he
pointed out excerpts of the Judgment of the Constitutional Court in CUSA v
Tao Ying Metal Industries and Others
2, the Constitutional Court held as
follows:
“What is the dispute that the Commissioner had to resolve?
6.1 What divided the Supreme Court of Appeal was what the real
dispute was that the Commissioner had to resolve. The debate
in this Court also focused on this issue. This debate raised three
related questions: the first is the role of commissioners in
resolving labour disputes; the second is the proper
characterisation of labour disputes; and the third is the role of
courts in overseeing the arbitral process . The answers to these
questions lie, in the main, in the objects of the LRA. (My
emphasis).
6.2 The role of commissioners in resolving labour disputes is set out
in section 138(1) of the LRA which provides:
“The commissioner may conduct the arbitration in a
manner that the commissioner considers appropriate in
2 (CCT 40/07) [2008] ZACC 15.
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order to determine the dispute fairly and quickly, but must
deal with the substantial merits of the dispute with the
minimum of legal formalities.”
6.3 The LR A introduces a simple, quick, cheap and informal
approach to the adjudication of labour disputes. This alternative
process is intended to bring about the expeditious resolution of
labour disputes. These disputes, by their very nature, require
speedy resolution. Any delay in resolving a labour dispute could
be detrimental not only to the workers who may be without a
source of income pending the resolution of the dispute, but it
may, in the long run, have a detrimental effect on an employer
who may have to reinstate workers after a number of years. The
benefit of arbitration over court adjudication has been shown in
a number of international studies.
6.4 The absence of appeal from arbitral awards was intended to
speed up the process of resolving labour disputes and free it
from the legalism that accompanies other formal judicial
proceedings. By adopting this simple, quick, cheap and informal
approach to the adjudication of labour disputes, Parliament
intended that, as far as it is possible, arbitral awards should be
final and should only be interfered with in very limited
circumstances. In order to give effect to these objectives,
Parliament deliberately decided against appeals from arbitral
awards and opted for the narrowest species of review, namely,
that specified in section 145 of the LRA.
6.5 Consistent with the objectives of the LRA, commissioners are
required to “deal with the substantial merits of the dispute with
the minimum of legal formalities.” This requires commissioners
to deal with the substance of a dispute between the parties.
They must cut through all the claims and counter -claims and
reach for the real dispute between the parties. In order to
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perform this task effectively, commissioners must be allowed a
significant measure of latitude in the performance of their
functions. Thus the LRA permits commissioners to “conduct the
arbitration in a manner that the commissioner considers
appropriate”. But in doing so, commissioners must be guided by
at least three considerations. The first is that they must resolve
the real dispute between the parties. Second, they must do so
expeditiously. And, in resolving the labour dispute, they must act
fairly to all the parties as the LRA enjoins them to do.
6.6 A commissioner must, as the LRA requires, “deal with the
substantial merits of the dispute”. This can only be done by
ascertaining the real dispute between the parties. In deciding
what the real dispute between the parties is, a commissioner is
not necessarily bound by what the legal representatives say the
dispute is. The labels that parties attach to a dispute cannot
change its underlying nature. A commissioner is required to take
all the facts into consideration including the description of the
nature of the dispute, the outcome requested by the union and
the evidence presented during the arbitration. What must be
borne in mind is that there is no provision for pleadings in the
arbitration process which helps to define disputes in civil
litigation. Indeed, the material that a commissioner will have
prior to a hearing will consist of standard forms which record the
nature of the dispute and the desired outcome. The informal
nature of the arbitration process permits a commissioner to
determine what the real dispute between the parties is on a
consideration of all the facts. The dispute between the parties
may only emerge once all the evidence is in.
6.7 Subject to what is stated in the following paragraph, the role of
the reviewing court is limited to deciding issues that are raised in
the review proceedings. It may not on its own raise issues which
were not raised by the party who seeks to review an arbitral
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award. There is much to be said for the submission by the
workers that it is not for the reviewing court to tell a litigant what
it should complain about. In particular, the LRA specifies the
grounds upon which arbitral awards may be reviewed. A party
who seeks to review an arbitral award is bound by the grounds
contained in the review application. A litigant may not on appeal
raise a new ground of review. To permit a party to do so may
very well undermine the objective of the LRA to have labour
disputes resolved as speedily as possible.
6.8 These principles are, however, subject to one qualification.
Where a point of law is apparent on the papers, but the common
approach of the parties proceeds on a wrong perception of what
the law is, a court is not only entitled, but is in fact also
obliged, mero motu, to raise the point of law and require the
parties to deal therewith. Otherwise, the result would be a
decision premised on an incorrect application of the law. That
would infringe the principle of legality . Accordingly, the Supreme
Court of Appeal was entitled mero motu to raise the issue of the
Commissioner’s jurisdiction and to require argument thereon.
However, as will be shown below, on a proper analysis of the
record, the arbitration proceedings in fact did not reach the
stage where the question of jurisdiction came into play.” (My
emphasis).”
[20] One cannot deny the validity of Mr. Higgs argument that under S145 of the
LRA this Court is limited to consider the proceedings as they stood before the
Commissioner and needs to determine, only, whether or not the award is
reviewable based on the evidence that served before the Commissioner.
[21] The situation that the Third Respondent finds herself in is unfortunate in
labour litigation where the purpose of the LRA is the effective resolution of
labour disputes.
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[22] Were the Appellate court to set aside the Daniels J judgment and this Court
set aside the award based on the Daniels J judgment then this judgment
would be rendered a brutum fulmen.
[23] The Third Respondent would find herself in an endless loop of litigation that
could have best been avoided by consolidating her unfair labour practice and
unfair dismissal dispute.
[24] The doctrine of stare decisis finds application in this matter. This Court is duty
to bound to apply the law as it stands. At the time this matter was heard, there
had been no challenge to the judgment of Daniels J which therefore stands.
[25] This Court is of the v iew that where subsequent proceedings have set aside
the warning on which the double jeopardy reasoning was based, then it is a
point of law which invalidates the foundation upon which the Commissioner’s
reasoning is based and must be set aside.
The Appropriate Remedy
[26] The Applicant seeks an order substituting the award with a finding that the
dismissal was fair. I am not persuaded that substitution is appropriate in these
circumstances. As the Commissioner made his finding exclusively on the
preliminary poi nt of double jeopardy, he expressly declined to consider the
substantive merits of the dismissal. At paragraph 66 of his award, he states:
"Based on this finding alone, I will not proceed to deal with the second
argument as raised by the applicant."
[27] The core question of whether the Third Respondent’s conduct, particularly the
failure to meet the recruitment targets and communicate this failure,
constituted negligence sufficient to warrant dismissal, has therefore never
been determined at arbitration. Daniels J’s judgment, invalidating the warning,
analysed the facts through the lens of incapacity versus misconduct and did
not make a definitive finding on whether the conduct justified dismissal.
[28] It would be improper for this Court to sit as an arbitrator of first instance to
[28] It would be improper for this Court to sit as an arbitrator of first instance to
determine these unresolved factual and legal disputes. The merits of the
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dismissal remain an issue that requires a proper hearing where evidence can
be led and tested. The most appropriate and fair course of action is to remit
the matter to the CCMA for a hearing de novo.
Costs
[29] In labour matters, the principle that costs follow the result does not
automatically apply. The law and fairness are the primary considerations.
Given the complex legal history of this dispute and the fact that the
determinative issue arose from a separate court process, it is my view that a
costs order would not be fair or appropriate.
[30] In the premises, the following order is made:
Order
1. The application for review is granted.
2. The arbitration award issued by the Second Respondent on 20 September
2022 under CCMA case number GATW5667-22 is reviewed and set aside.
3. The matter is remitted to the First Respondent (the CCMA) for a hearing
de novo before a Commissioner other than the Second Respondent.
4. There is no order as to costs.
K.R. Munsamy
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: J. JONES.
Instructed by: MACGREGOR ERASMUS ATTORNEYS.
For the Respondent: C. HIGGS.
Instructed by: HIGGS ATTORNEYS INC.