THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR2292/19
In matter between:
PETRUS MAKANETA Applicant
And
RONNIE BRACKS N.O. First Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION Second Respondent
SOUTH AFRICAN HUMAN RIGHTS COMMISSION Third Respondent
Heard: 22 July 2026
Delivered: 27 August 2026
JUDGMENT
RAMJI, AJ
Introduction
[1] The applicant (Mr Makaneta) was employed by the third respondent (the
SAHRC) as its Chief Financial Officer (CFO) from 1 March 2012. Mr
Makaneta was dismissed on 1 April 2019 for misconduct relating to his
(1) Reportable Yes
(2) Of interest to other Judges: Yes/No
(3) Revised
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Signature Date
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engagements with another member of SAHRC executive staff, which in turn
arose from his engagements with the SAHRC chairperson.
Background
[2] An SAHRC commission er, Commissioner Gaum , was invited to Australia in
his official capacity for a conference in the last week of November 2018. On
15 November 2018, Commissioner Gaum forwarded the invitation to all other
commissioners seeking their agreement to him attending the conference. He
stated in the e -mail that the chairperson advised that there was money
available for the trip, and that he should consider whether he should ‘fly
business class due to the long haul.’
[3] The funds were in fact not available.
[4] After all commissioners had agreed, on 21 November 2018, the chairperson
wrote to all commissioners and copied the CEO and Mr Makaneta. In his e -
mail, the chairperson stated that there was likely a misunderstanding, that that
he had ‘no confirmation’ about whether funds were available and that ‘[t] o
date, I do no t know whether there are any savings because I did not g et any
confirmation from the CFO when I tried to meet the CFO to confirm and give
me details of those funds.’
[5] Mr Makaneta responded immediately to th e chairperson’s e-mail and
recorded his position, including that –
5.1. he never informed any SAHRC c ommissioner of surplus funds being
available;
5.2. he had referred the SAHRC commissioners to potential underspending
in different budgeted activities , but subsequently checked and
confirmed that there was no surplus there; and
5.3. he was only required to prepare a report by 6 December 2018 on how
savings would be utilised, and he was working on this.
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[6] On 21 November 2018, Commissioner Gaum communicated directly with
Mr Makaneta. Mr Makaneta replied to Commissioner Gaum and proposed
that funding for his travel could be ‘taken from the general savings of the
[SAHRC]’. Commissioner Gaum made this request to the chairperson.
Commissioner Gaum did not hear from the chairperson for two days and so
cancelled his trip, expressing disappointment with how the matter was
handled. This was on 23 November 2018.
[7] On 28 November 2018, the c hairperson replied to Commissioner Gaum,
copying all other SAHRC commissioners, the secretariat, and adding to the
chain the SAHRC commissioners’ secretaries. Overall, the e- mail concerned
communication issues in general at the SAHRC . However, the chairperson
specifically referred again to his failed attempts to communicate with Mr
Makaneta on the availability of surplus funds.
[8] A back-and-forth ensued between the chairperson and Mr Makaneta:
8.1. Mr Makaneta responded to the e- mail group , extending the chain of
recipients to include senior managers. He again defended his position,
this time more robustly , explaining that he was not involved with
SAHRC commissioners’ travel and that his name was always being
‘dragged’ into this issue.
8.2. The chairperson replied in a lengthy e-mail taking issue with the tone of
Mr Makaneta’s previous e- mail, describing it as disdainful,
inappropriate, intolerant and discourteous. The chairperson defended
and explain ed his e -mail, saying that it concerned communication
within the organisation as a whole.
8.3. Mr Makaneta responded that he had ‘nothing further to say regarding
this matter.’
[9] Following this exchange, the CEO intervened. I n a letter dated 30 November
2018, and sent to Mr Makaneta on 3 December 2018, the CEO asked
Mr Makaneta to explain his conduct and particularly why he should not be
charged with gross insub ordination for his e -mails to the chairperson. In the
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correspondence, the CEO expressed his initial (negative) views on
Mr Makaneta’s correspondence to the chairperson.
[10] Mr Makaneta respond ed to the CEO’s request on 5 December 2018 (the 5
December e- mail). That same day, he was provisionally suspended for the
5 December e-mail, i.e. his response to the CEO and not his e- mails to the
chairperson.
[11] For his 5 December e-mail, Mr Makaneta was charged as follows:
11.1. Charge 1: Gross insolence for attacking the CEO in his e-mails of 29
November and 5 December 2018.
11.2. Charge 2: Insubordination.
11.3. Charge 3: Offensive behaviour in the form of disrupting the workplace
and publicly insulting the CEO between 12 November and 5 December
2018.
[12] He was found guilty on charges 1 and 3, and dismissed by the CEO, who
accepted the recommendation of the chairperson, which recommendation, in
turn, was based on an externally chaired disciplinary inquiry.
Award and pleaded case
[13] Mr Makaneta referred an unfair dismissal dispute to the second respondent
(the CCMA). On 29 August 2019, the first respondent (the CCMA
Commissioner) handed down an award finding that the dismissal was
substantively and procedurally fair.
[14] This application to review the CCMA award was accompanied by a founding
affidavit. Mr Makaneta did not filed a supplementary founding affidavit.
[15] Mr Makaneta’s current legal representatives replaced his initial attorneys after
close of pleadings , and they are unfortunately bound by the pleaded alleged
irregularities. I therefore do not consider references made in argument to
alleged irregularities that were not pleaded, including that –
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15.1. there was a brash culture of speaking in the organisation;
15.2. the CCMA Commissioner failed to consider properly whether the
breakdown in trust had been proved; and
15.3. the SAHRC had not proved procedural unfairness.
[16] Mr Makaneta pleaded the following irregularities:
16.1. First irregularity: The CCMA Commissioner committed an error of law in
finding that Mr Makaneta could be dismissed by the chairperson, when
in fact, an employee in his position can only be dismissed by the CEO
with the approval of the Commission.
16.2. Second irregularity : The CCMA Commissioner relied on irrelevant
evidence by considering Mr Makaneta’s e-mail correspondence with
the chairperson, when he was no charged in relation to his conduct
towards the chairperson.
16.3. Third irregularity : Related to this, t he only relevant evidence in the
substantive fairness inquiry was whether Mr Makaneta’s
representations in the 5 December e- mail, and not his earlier
statements to the chairperson.
16.4. Fourth irregularity: At the same time, Mr Makaneta pleads that it was
unfair to charge and dismiss him for his representations to the CEO,
because the CEO requested that he make them to explain his prior
engagements with the chairperson. (At the hearing, Mr Makaneta’s
representatives pursued the fourth alleged irregularity and not the third.
This makes sense: a litigant cannot argue that a dismissal was unfair
because the charges emanated from a particular e- mail that which
cannot be held against him and simultaneously argue that the contents
of only this e-mail were relevant (third alleged irregularity).
16.5. Fifth irregularity: The Commissioner failed to consider that all or at least
most of Mr Makaneta’s allegations about the SAHRC in the 5
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December e- mail were true or at least widely held beliefs in the
organisation.
First irregularity
[17] A dismissal that is unfair is essentially a violation of section 185(a) of the
Labour Relations Act (LRA). 1 There was either no good reason for dismissing
the employee, or their procedural rights were no upheld. It is only to this
extent that such a dismissal can be regarded as ‘unlawful’, but it is more
appropriately described as unfair.
[18] The argument in support of the first irregularity is a challenge to the
constitutional validity of the chairperson’s power to dismiss the CFO of the
SAHRC pursuant to a recommendation f rom a disciplinary hearing.
Mr Makaneta’s representative explained in detail the process that needed to
be followed to dismiss a Level 13 employee (including the CFO), with
reference to the Constitution of the Republic of South Africa, 1996 and the
South African Human Rights Commission Act.
2 He then explained the
shortfalls in the process. Essentially, the support of the Commission was
required, but was not obtained.
[19] The argument was that this was unfair, as opposed to unlawful, because if
one has not followed the process required by statute to dismiss a particular
employee, then a dismissal is substantively unfair because the employer did
not have the requisite authority to dismiss the employee. I do not agree:
Mr Makaneta’s claims based on the powers of the SAHRC and claims that the
chairperson acted ultra vires are not the assertion of a claim under the LRA ,
and they should have been brought in a different form, e.g. a contractual claim
or a public law claim . The Constitutional Court in Ba loyi v Public Protector &
Others has effectively held that two causes of action flowing from a dismissal
cannot be pursued jointly in a single case:
1 Act 66 of 1995, as amended.
2 Act 40 of 2013.
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‘In the labour context, where more than one potential cause of action arises
as a result of a dismissal dispute, a litigant must choose the cause of action
she wishes to pursue and prepare her pleadings accordingly.’
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[20] It was not competent to raise it by way of an unfair dismissal referral to the
CCMA, and it follows that it cannot be pursued in this Court through an
application to review the CCMA award. The first alleged irregularity is a clear
challenge to the constitutionality, lawfulness and validity of the decision to
dismiss Mr Makaneta, based on statutes other than the LRA . The converse to
the statement of the Constitutional Court in Gcaba v Minister for Safety and
Security & Others applies: if pleadings, properly interpreted, establish that the
application is asserting a claim under public law , one that is to be determined
by the High Court, the Labour Court would lack jurisdiction.4
[21] The first irregularity, as pleaded , has no merit in the context of an unfair
dismissal claim.
[22] Mr Makaneta reli es on his LRA rights for the remainder of his review
application.
Remaining alleged irregularities
[23] The remaining questions are whether the Commissioner acted irregularly in –
23.1. failing to consider that Mr Makaneta was charged and dismissed for the
5 December e-mail;
23.2. relying on Mr Makaneta’s earlier correspondence with the chairperson
when he was only charged in relation to the 5 December e-mail; and
23.3. ignoring evidence that Mr Makaneta’s 5 December e-mail contained
allegations that were either true, or at least widely held beliefs among
SAHRC staff.
3 (2021) 42 ILJ 961 (CC) at para 38.
4 (2010) 31 ILJ 296 (CC) at para 75. The statement of the Constitutional Court reads: ‘If however, the
pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one
that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction’
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Disciplining an employee for statements in written representations
[24] Is it fair to (a) request an employee to make representations as to why he
should not be disciplined for certain conduct, and to then (b) discipline him for
the content and approach to such representation ? If it is fair, then there is no
irregularity.
[25] The argument for Mr Makaneta, that this is inherently unfair , cannot succeed
for several reasons:
25.1 Written representations on why an employee should not be dismissed
are still made in the course of one’s employment. There is no principle in
law where immunity attaches to making such representations. There is
therefore no reason why, in the absence of an agreement or policy to the
contrary, an employee is not bound by rules relating to ‘ good order’5
when participating in disciplinary proceedings.
25.2 It is accepted that s eparate disciplinary charges can arise out of
behaviour during disciplinary proceedings.6
[26] The CCMA C ommissioner therefore did not act irregularly when he declined
to attach weight to the fact that Mr Makaneta was charged and dismissed for
his written representations to the CEO in respect of a different investigation
into earlier misconduct.
Relying on correspondence with the chairperson
[27] The factual basis for this alleged irregularity is not present: t he CCMA
Commissioner did not rely on Mr Makaneta’s correspondence with the
chairperson when assessing if Mr Makaneta’s dismissal was substantively
fair. The CCMA Commissioner clearly distinguished between the reason for
Mr Makaneta’s dismissal (the 5 December e-mail) and the background to this
e-mail (the correspondence to the chairperson), recording:
5 Item 80 to the CCMA Guidelines on Misconduct Arbitrations.
6 See: Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union and Others
(2018) 39 ILJ 546 (LAC).
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‘I need to state at the outset that [the correspondence with the chairperson]
was not the reason why the applicant was charged, but it was after the CEO
had intervened…’
[28] In the rest of his award, the CCMA Commissioner proceeded to deal only with
the contents of the 5 December e- mail. Perhaps for this reason, Mr
Makaneta’s current representatives did not pursue this pleaded irregularity at
the hearing.
Ignoring that the statements for which an employee was dismissed f or were tru e or
widely held beliefs
[29] The record shows that only one allegation in the 5 December e- mail was true
– that of the CEO using vulgar language towards other senior staff at a
meeting. Regarding the other allegations in the e- mail, a political movement
had opened an assault against the CEO – the CEO had not, however, been
convicted. Further, it could not be established that there was overall low staff
morale. These factual findings are not unreasonable from the record,
particularly Mr Makaneta’s own testimony. Another decision-maker may have
found that the allegations were sufficiently true for purposes of written
representations, but this CCMA Commissioner’ finding remains reasonable.
[30] In any case, even positing that every allegation against the CEO in the
5 December e-mail is true , even truthful statements can constitute insolence.
Generally, the Labour Court has considered the context in which truthful
allegations are made in an unsavoury manner, with differing outcomes.
Context largely concerns the employer’s own behaviour in relation to the
employee.7 This CCMA Commissioner’s value judgment was that the
statements constituted offensive behaviour and insolence worthy of dismissal,
and that the circumstances under which the statements were made did not
justify the way in which they were made.
7 See for example: Sylvania Metals Pty Ltd v Mello No and Others (JA83/2015) [2016] ZALAC 52 (22
November 2016) at para 20; Palucci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ
1511 (‘Palluci’) (LAC) at para 33. Jewellery Council of South Africa v Maharaj and Others (JR2527/21)
[2024] ZALCJHB 236 (30 May 2024) at para 22; Jenecker v SA Medical and Education Foundation
NPC and Others (C611/2022) [2025] ZALCCT 104 (17 October 2025) at para 46; Neumann v
Western Cape Education Department (C383/2023) [2026] ZALCCT 1 (5 January 2026) at para 141.
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[31] Again, a nother decision-maker may have found that there were contextual
factors t hat excused Mr Makaneta’s remarks and that he was driven to this
point by the surrounding events , as occurred in some of the cited cases. That
does not mean that the decision reached in this case is one that no other
decision-maker could have reached. In the light of relevant case law, the
CCMA Commissioner’s finding that Mr Makanet a’s conduct was not
excusable or provoked, is based on relevant considerations:
31.1. The CCMA Commissioner took the approach of establishing which
allegations were true.
31.2. He then considered comparable and distinguishable cases, concluding
that the tone of and attempt to embarrass in the 5 December e -mail,
and the lack of remorse were serious.
31.3. He analysed the words closely, including throwaway remarks
suggesting the CEO did not know how to run the SAHRC, and some of
the gratuitously combative language used, and a general attitude of
disrespect.
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31.4. He also weighed up Mr Makaneta’s words against those that he was
responding to and concluded that these were not disrespectful or
condescending.
[32] Finally, there is case law that supports the view that sufficiently egregious
speech towards a team leader, can constitute a threat to that leader’s
authority, leading to a breakdown in the employment relationship.
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[33] I find that the remaining alleged gross irregularities are not proved and there
is no basis to claim that the award is grossly unreasonable.
Costs
8 Such statements in the 5 December e- mail include, among others: ‘One [would have] expected that
you and the Commissioner would reflect on the trip and take lessons… ’; ‘If you check your e-mail
properly…’; ‘If you would carefully read my e- mail… ’; ‘… your letter to me has all malicious intent and
it shows your abuse of power and is somewhat a way of victimising me’; ‘… one would expect you to
provide leadership…’
9 Palluci supra at para 19.
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[34] The application was not clearly pleaded in the founding affidavit, but that is not
an exceptional factor warranting deviation from the general rule. It is just and
equitable for each party to pay their own costs.
[35] Accordingly, I make the following order:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
B. Ramji
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr C G Grove, CGG Inc.
For the Third Respondent: Dr R J C Orton, Snyman Attorneys.