THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No. JR2196/20
In the matter between:
TSHEPISO GABRIEL MAPONYA Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
MAAKE, JOSIAS SELLO N.O. Second Respondent
GREATER TZANEEN MUNICIPALITY Third Respondent
ARNOLD MATHEBULA Fourth Respondent
Heard: 25 August 2026
Delivered: 1 September 2026 (By uploading on CaseLines and/or circulation to
the parties’ legal representatives by email)
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised: N/A
_________ 01 September 2026
Signature Date
2
MAKHURA, J
[1] The applicant referred a claim in terms of section 10(2) read with section 6(1) of
the Employment Equity Act1 (EEA) to the Commission for Conciliation, Mediation
and Arbitration (CCMA), alleging that the third respondent Municipality
discriminated against him on an arbitrary ground, after he had unsuccessfully
applied for the position of Manager: Financial Services and Reporting.
[2] The proceedings before the CCMA culminated in an award in terms of which the
second respondent commissioner dismissed the applicant’s claim that his non-
appointment was based on unfair discrimination. The applicant now seeks to
review and set aside the award and substitute it with an order setting aside the
appointment of the successful candid ate, Arnold Mathebula, and to appoint him
to the advertised position.
[3] In 2018, the Municipality advertised the position of Manager: Financial Services
and Reporting, with 28 June 2019 as the closing date. The applicant was invited
to the interview on 8 August 2019, together with five other candidates. The
interview panel recommended Mathebula, who scored 64 points compared to the
applicant’s second best 51 points, for appointment.
[4] On 30 August 2019, the applicant requested, in terms of section 18 of the
Promotion of Access to Information Act2, the following information:
‘Scoring sheets with details of panel members, Interviews report and CV of
successful / recommended candidate…’
[5] On 16 September 2019, the Municipality refused the applicant’s request on the
basis of alleged privacy and confidentiality of the information and a possible
breach thereof. The applicant then declared and referred a n unfair discrimination
dispute to the CCMA.
1 Act 55 of 1998.
2 Act 2 of 2000.
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[6] The interview panel comprised of three members , CW Molok omme, Walter
Shibamba and MP Makhubela who also served as the panel chairperson . In
terms of the interview questionnaire completed by Molokomme, he noted that the
applicant had a disciplinary record from his previous employer, that he was the
best “so far in terms of conflict resolution mechanism” , scored him 17 out of 25
points and recommended him with reservations due to the “outstanding
disciplinary case at Labour Court”. Shibamba scored the applicant 16 points and
did not indicate whether he recommended or did not recommend the applicant or
recommended him with reservations. Makhubela scored the applicant 18 points
and recommended him with reservations because of the disciplinary record and
dismissal from Polokwane Municipality.
[7] Molokomme and Makhubela scored Mathebula 19 and 23 points respectively and
both recommended him for appointment without any reservation. Molokomme
noted that Mathebula was at that time acting in the position, had practical
experience of the division and that he had performed well during the interview .
Shibamba scored Mathebula 22 points and again did not indicate whether he
was recommended for the position or not.
[8] In his referral form, the applicant sought to be appointed to the position or to be
compensated. In his request for arbitration, the applicant summarised the issues
in dispute as:
‘I am dissatisfied with interviews outcome for Manager: Financial Services and
Reporting. Internal candidate was appointed despite poor performance in the
interviews and I was unfairly discriminated.’
[9] His complaint was further articulated in his founding affidavit in support of the
applications for condonation for conciliation and request for arbitration as follows:
‘He was unfairly discriminated because he was not an internal candidate /
political opinion. He was not appointed because of one or both reasons above
political opinion. He was not appointed because of one or both reasons above
despite performing well in the interviews, better than the appointed internal
candidate.’
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[10] At the arbitration proceedings, it was common cause that the applicant ’s
employment history started with the Municipality through an i nternship
programme in 2002. In 2005, he left the Municipality and joined the Thaba Choeu
Municipality as an accountant with effect from 1 December 2005. He was later
appointed as Deputy Director: Income by Thaba Choeu. In 2008, he resigned
from Thaba Choeu and joined Lesedi Municipality as Deputy Chief Financial
Officer. On 1 June 2011, he joined the Polokwane Municipality as the Deputy
CFO, a position which he held until his dismissal on 20 April 2015. After his
dismissal, he established a private business providing training facilitation and
consulting services.
[11] The applicant’s case was that he possessed substantially more experience than
the successful candidate, Mathebula, particularly at management level. Although
he claimed to be more experienced than Mathebula, he acknowledged that he
did not know Mathebula’s detailed qualifications or have access to his CV.
Mathebula, according the applicant, was preferred over him despite his poor
performance during the interview and lack of experience because he was an
internal candidate.
[12] However, th e applicant conceded that he did not possess the required BCom
Accounting degree specified for the position, which Mathebula possessed.
Instead, he held a Diploma in Cost Management and Accounting and a BTech in
Management and Accounting (NQF Level 7), which he regarded as equivalent.
[13] The applicant then claimed that he performed better than Mathebula during the
interview process. He said that Mathebula’s interview was brief and described it
as “quick in and out” and that Mathebula himself indicated that the interview was
difficult. From these facts, he inferred that Mathebula must have performed
poorly. By contrast, he described his interview as reasonably easy, the interview
questions as relatively easy, and believed that he performed better than
Mathebula.
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[14] It is common cause that Mathebula scored 64 points while the applicant scored
51 points. The applicant complained about the scores. He alleged that the scores
were “irrational”, “skewed” and “swayed”. He contended that the scor es were
manipulated and not a true reflection of his and Mathebula’s performances
because Mathebula received consistently high scores from all panel members ,
suggesting that the panel members could have engaged in discussions
beforehand, leaked interview questions, or otherwise favoured Mathebul a. These
allegations were disputed by Shibamba and, also challenged as speculative.
[15] The applicant also took issue with the recommend ation with reservation because
of his disciplinary record. He argued that the panellist’s reference to or reliance
on his disciplinary record was improper because he had challenged the dismissal
and the matter was still pending before the Labour Court. He argued further that
his disciplinary record, which he disclosed voluntarily, should not have influenced
the appointment decision.
[16] The applicant fur ther sought to challenge his non- appointment on the basis that
the chairperson of the panel interview, Makhubela, had no integrity . The
commissioner rejected the admission of the evidence on the basis that
Makhubela was not found guilty . The applicant had also not produced the report
to draw a link between the report and the allegation of unfair discrimination.
[17] The commissioner observed that an applicant who relies on an arbitrary ground
as a ground of discrimination must clearly identify and prove the alleged arbitrary
ground. Relying on the LAC judgment in Naidoo and Others v Parliament of the
Republic of South Africa, the commissioner found that:
‘The applicant merely avers no less or more than that he was more suitable for
appointment to the vacancy than the second respondent was. He therefore failed
to identify a clear, distinct and discernible arbitrary ground of discrimination. His
to identify a clear, distinct and discernible arbitrary ground of discrimination. His
averments are no different from those commonly alleged and relied upon in an
unfair labour practice dispute and certainly fall far short of sustaining a claim of
unfair discrimination on an arbitrary ground. Consequently, I am of the firm view
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that by referring this type of a dispute, rather than an unfair labour practice
dispute, he made a fatal wrong choice of cause of action, but since I am not at
liberty to express a view in the merits of latter dispute, I therefore do not express
any such view on the merits of the unfair labour practice dispute.
As a parting shot, I express the view that it is difficult, if not almost impossible, to
identify / prove an arbitrary ground and where possible and appropriate, litigants
should seriously consider referring an unfair labour practice dispute, which is
relatively easy to prove.’
[18] In these proceedings, t he applicant contends that the commissioner committed
gross irregularity and misconduct and exceeded his powers for various reasons.
He argues that the commissioner failed to apply his mind to the material facts
and evidence, did not understand or appreciate the true nature of the dispute,
selectively dealt with the evidence to unduly favour the Municipality, conducted
the proceedings partially and in violation of the “legal provisions applicable to the
proceedings before him” . He submits that the commissioner arrived at an
irrational decision that was not based on the evidence, which “clearly indicated
that [he was] the most suitable candidate for the position” , was not sound in law,
and was unreasonable. Further, the applicant contends that the commissioner
considered evidence relating to issues that formed part of a different dispute and
ignored evidence relating to the applicable issues.
[19] The applicant contends that the commissioner erred in finding that he failed to
identify a clear, distinct , and discernible arbitrary ground of discrimination, and
criticised the commissioner’s remarks about the challenges of proving an unfair
discrimination claim on an arbitrary ground compared with an unfair labour
practice. He criticised the commissioner for allegedly ignoring the uncontested
evidence that he was the best candidate. He maintains he was unfair ly
evidence that he was the best candidate. He maintains he was unfair ly
discriminated against on an arbitrary ground in that the Municipality appointed an
“internal candidate” and therefore discriminated against him because he was an
external candidate.
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[20] The applicant further contends that the commissioner failed to have regard to the
credibility of the witnesses and the inherent probabilities of the competing and
conflicting versions in that the chairperson of the panel had questionable
credibility because she was implicated in the VBS Mutual Bank report and she
did not challenge the report. Further, he complains that the commissioner failed
to have regard to the fact that the successful candidate did not testify, and that
the Municipality presented inconsistent evidence and lied under oath regarding
the recording of the interview process. He contends that the Municipality did not
dispute that it committed discrimination, but its case was that the discrimination
was fair.
[21] The applicant also complained that the commissioner led the witnesses and
answered questions on their behalf. F inally, he complained that the
commissioner’s insistence to finalise the matter “intimidated” him and did not
allow the proceedings to follow its natural course.
[22] Section 6(1) of the EEA, which this claim is based on, provides that:
‘No person may unfairly discriminate, directly or indirectly, against an employee,
in any employment policy or practice, on one or more grounds, including race,
gender, sex, pregnancy, marital status, family responsibility, ethnic or social
origin, colour, sexual orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth or on any other arbitrary ground.’
[23] In Association of Mineworkers & Construction Union on behalf of Members v
Aberdare Cables (Pty) Ltd & others 3, the Labour Appeal Court revisited the test
for unfair discrimination where an employee relies on an arbitrary ground.
Referring to its earlier decision in Naidoo & others v Parliament of the Republic of
SA4 (Naidoo), the LAC held that:
‘[18] In Naidoo, this Court (per Sutherland JA) concluded that the narrow
interpretation of an ‘arbitrary ground’ is correct, and that a claimant seeking to
interpretation of an ‘arbitrary ground’ is correct, and that a claimant seeking to
3 [2025] ZALAC 26; [2025] 7 BLLR 698 (LAC).
4 [2020] 10 BLLR 1009 (LAC); (2020) 41 ILJ 1931 (LAC).
8
establish discrimination on that basis must necessarily identify an arbitrary
ground of discrimination, as opposed to making a general allegation of mere
arbitrariness or capriciousness. The Court said the following about section 6(1):
‘The injunction in s 6(1) is to outlaw, not “arbitrariness”, but rather to outlaw unfair
discrimination that is rooted in “another” arbitrary ground (the syntax of “any
other…” cannot be understood as otherwise than looking back at what has been
stipulated in the text that precedes it). Capriciousness, by definition, is bereft of a
rationale, but unfair discrimination on a “ground” must have a rationale, albeit one
that is proscribed. The glue that holds the listed grounds together is
the grundnorm of Human Dignity…’.
[19] In Minister of Justice and Correctional Services v Ramaila and
Others5 (Ramaila), this Court confirmed that the phrase ‘ any other arbitrary
ground’ is not meant to establish a self -standing ground, but rather one that
refers back to the specified grounds, so that a ground of a similar kind would fall
within the scope of section 6.’
[24] The legal position is abundantly clear. A claim of unfair discrimination founded on
an arbitrary ground cannot succeed merely because the impugned conduct is
alleged to be arbitrary. The claimant must establish that the ground relied upon is
analogous to a listed ground under section 6 of the EEA and that it is based on
characteristics or attributes that have the potential to impair human dignity or to
adversely affect him in a comparably serious manner.
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[25] The applicant’s case was fundamentally misconceived from its inception. He had
not identified any ground that falls within any of the scope of section 6. His claim
was merely that he was unfairly discrim inated against because he was an
external candidate. The applicant's failure to establish that the alleged arbitrary
ground was analogous to any of the listed grounds was dispositive of the matter
ground was analogous to any of the listed grounds was dispositive of the matter
and rendered any further inquiry unnecessary. Accordingly, the proceedings
5 (2021) 42 ILJ 339 (LAC).
6 See also: Naidoo & others v Parliament of the Republic of SA [2020] 10 BLLR 1009 (LAC); (2020) 41
ILJ 1931 (LAC); Enever v Barloworld Equipment, A Division of Barloworld SA (Pty) Ltd (2024) 45 ILJ 1554
(LAC); Ndudula & others v Metrorail - Prasa (Western Cape) [2017] 7 BLLR 706 (LC); (2017) 38 ILJ 2565
(LC).
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were foredoomed to a spectacular collapse owing to this fundamental defect, as
they eventually have. The review application must suffer the same fate, as the
applicant is not entitled to advance on review a case different from that presented
at arbitration.
[26] In any event, even if the review application were to survive the foregoing
difficulties, it would nonetheless fail on the merits and fall to be dismissed on that
basis, for the reasons that follow.
[27] First, during the arbitration hearing, Ms Schroeder, appearing for the applicant,
contended that the applicant had been denied a fair hearing as a result of the
commissioner’s interference with the presentation of evidence. Although this
ground was not expressly pleaded in those terms, she submitted that it is
discernible from the applicant’s allegations that the commissioner conducted the
proceedings in a partial manner and contrary to the legal principles governing
arbitration proceedings. In support of this contention, she pointed to the
applicant’s complaints that he felt intimidated by the commissioner, that the
commissioner effectively asked and answered questions on behalf of a witness,
and that the commissioner prevented the arbitration from proceeding to its proper
and natural conclusion.
[28] I accept that a proper reading of the review grounds encompasses this
complaint. However, I am not persuaded that the commissioner’s alleged
interference deprived the applicant of a fair hearing. During examination in chief,
the applicant was afforded a full opportunity to present his case. The
commissioner merely directed him to confine his testimony to relevant matters
and excluded irrelevant evidence. Before cross -examination commenced, the
commissioner expressly allowed the applicant to reflect on whether he had said
everything he wished to place before the arbitrator.
[29] In my view, no valid criticism can be levelled at the commissioner’s conduct up to
[29] In my view, no valid criticism can be levelled at the commissioner’s conduct up to
the point at which the applicant closed his case. Although the commissioner
intervened on several occasions during the applicant’s cross -examination of
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Shibamba, ostensibly to obtain clarity, prevent excursions into irrelevant issues,
and ensure that the proceedings were finalised on the allocated day, such
interventions do not, without more, establish that the proceedings were unfair.
The commissioner was entitled, and at times obliged, to intervene to ensure that
proceedings remain focused, relevant and efficient.
[30] More importantly, by the time these interventions occurred, the applicant had
already presented and closed his case. As I have found, the applicant’s case was
fundamentally deficient from inception. His evidence in chief failed to disclose
even a prima facie case of discrimination. Indeed, at the conclusion of his own
evidence, the applicant had not established the factual foundation necessary to
sustain his claim. In those circumstances, the case had effectively failed before
the Municipality was required to present any evidence. Consequently, no amount
of cross-examination of Shibamba, nor any evidence that might have been led by
the Municipality, could have remedied the deficiencies inherent in the applicant’s
case. It follows that the commissioner’s interventions did not occasion any
prejudice capable of rendering the proceedings unfair.
[31] Second, the applicant sought to compare himself to Mathebula, despite being
unaware that Mathebula possessed the prescribed qualification of a BCom in
Accounting. Although the applicant was invited to attend an interview, the
position did not provide for the appointment of a candidate with qualifications
equivalent to those required. The applicant accordingly failed to adduce any
objective evidence demonstrating that he was better qualified or more suitably
experienced than Mat hebula. On the contrary, the evidence established that
Mathebula held the requisite qualification, had approximately ten years’
experience as a senior accountant, and had already been acting in the position
within the Municipality. These factors provided a clear and rational basis for his
within the Municipality. These factors provided a clear and rational basis for his
appointment.
[32] The applicant confirmed that much of his belief that Mathebula performed poorly
during the interview was based on assumptions arising from Mathebula’s
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comments about the difficulty of the interview. There was no objective evidence
to suggest that the scores were manipulated. Even if the applicant was able to
establish the above, his cause of action was that he was discriminated against on
an arbitrary ground because he was an external candidate. The applicant not
only failed to identify the arbitrary ground as required, but he also failed to lead
evidence of different treatment, let alone discrimination.
[33] Third, the applicant conceded that his belief that Mathebula had performed poorly
during the interview was founded largely on assumptions drawn from comments
allegedly made by Mathebula regarding the difficulty of the interview. There was
no objective evidence before the commissioner to suggest that the interview
scores had been manipulated or that the selection process had been improperly
influenced. Even if the applicant had succeeded in establishing those allegations,
his pleaded case remained that he had been subjected to unfair discrimination on
the basis of an arbitrary ground, namely that he was an external candidate. Yet
he failed to identify and establish the alleged arbitrary ground as required, and
more fundamentally, failed to adduce evidence showing differential treatment
amounting to discrimination.
[34] Accordingly, t he applicant’s evidence concerning Mathebula’s qualifications,
experience, interview performance and the alleged irregularities in the selection
process consisted largely of assumptions, speculation, inference and subjective
opinion rather than admissible direct or indirect evidence. From the outset, his
case was characterised by conjecture and a misplaced sense of entitlement on
the part of the applicant rather than by cogent evidence capable of establishing
unfair discrimination. He presented no credible evidence demonstrating that he
had been treated differently from other candidates, nor any objective basis upon
which the integrity of the recruitment process could reasonably be called into
which the integrity of the recruitment process could reasonably be called into
question. The review application is accordingly without merit and falls to be
dismissed.
[35] In the premises, the following order is made:
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Order
1. The review application is dismissed.
____________________
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ms N. Schroeder
c/o Higgs Attorneys
For the 3rd Respondent: Mr T. Chavalala
Instructed by: Raphela Attorneys