THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 179/22
In the matter between:
OLIVER PHEFONG TSEBANE Applicant
and
COMMISSIONER MORGAN MAIMANE NO First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
MATHIPANE TSEBANE ATTORNNEYS INC Third Respondent
Heard: 6 May 2026
Delivered: 08 September 2026
JUDGMENT
RAMASHIA, AJ
Introduction
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
TDM 08/09/2026
Signature Date
2
[1] This is a n application brought before this court in te rms of section 145 of the
Labour Relations Act1 (LRA) whereby the applicant sought this court to review
and set aside the arbitration award (“the award”) dated 20 October 2021,
issued by a Commissioner of the Com mission for Conciliation, Mediation and
Arbitration (the CCMA) under case number DATW 54995-21.
Factual Background
[2] The Applicant, Mr. Oliver Phefong Tsebane ( “the employee”), was employed
by Third Respondent as a practicing attorney. On 9 November 2020, the Third
Respondent served the employee a notice to attend a disciplinary hearing
scheduled for 11 November 2020, wherein the employee was required to
answer to the following charges of misconduct to be brought against him2:
“1st Charge : Gross Misconduct- Fraud
The intent to mislead (defraud), resulting or calculated to result in some
prejudice, harm or loss to another or undue benefit to the employee. On 27 th
August 2020, you changed the directorship of the company’s holding
company Mathipane Tsebane CC with the intention to fraudulently attempt to
take up ownership of the legal practice
2nd Charge : Gross Insubordination
When an employee is given an instruction and fails to carry out the instruction
resulting in damage to the company . Gross insubordination in that on 26 th
September 2020 you refus ed to obey a reasonable and reasonable
instruction relating to the request for documents for the RAF tender process.
As highlighted to you , failure to submit these documents is detrimental to the
tender process
3rd Charge : Gross Insolence
A serious act of insolence that has an element of wilful contempt of the
employer’s authority. A challenge by an employee.
1 Act 66 of 1995, as amended.
2 SEE Pages 3-4 of Index and paginated bundle E
3
Gross insolence in that you have repeatedly refused to comply with
instructions sent to you by the new director of the company as well as
attending any meetings, or provide any work or documentation as requested
by her, during the periods of September and October 2020
4th Charge: Gross Misconduct- Disharmony
Conduct that has the effect of being detrimental to the morale of the company
and its employees. Normally associated with continuous behaviour of the kind
that leads to disharmony in the workplace and behaviour that is aimed at
challenging the authority of the company . Conduct detrimental to the
maintenance of good order within the workplace in that on 27 th August 2020
you showed disrespect to the company director by coming into the office at
the Midrand location and occupying the late director’s office and informing
employees that you were the new owner of the company despite a new
director already having been appointed that day.
5th Charge: Gross Misconduct- Broken Trust
Acting contrary to the best interest of the employer in an attempt to willfully
discredit the company and its authority figures.
Broken trust in that the action of the employee mentioned in the above
charges have led the company to believe that it cannot continue a normal
working relationship with the employee.
[3] On the day of the scheduled hearing the accused employee failed to attend
the scheduled hearing without tendering any apology or giving any prior
explanation. According to the independent chairperson, Mr. Dewald van der
Schyff, who was appointed to preside over the hearing , the employee was
called on his mobile phone at 12h45, in the presence of other participants to
the hearing but the employee did not answer the call. Where after the
chairperson left a message on the employee’s mobile phone
3.
[4] Having not heard any response from the employee , the hearing proceedings
took place i n the absence of the employee. At the end of the hearing
took place i n the absence of the employee. At the end of the hearing
proceedings the chairperson summarized the proceedings as follows:
3 See page 10 of the INDEX AND PAGINATION BUNDLE -E
4
“18. Having regard to the evidence before me, which were submitted in a
bounded file with the Company having the required copies and taking
into account the factors presented to me during this short enquiry, I
find that summary dismissal is a fair and reasonable disciplinary
measure.”
“19 In conclusion I can find no factors which would mitigate against
imposing the ultimate sanction of summary dismissal in the presence
instance4.”
[5] On 12 November 2020 the company formally terminated the employee’ s
contract of employment through a letter dated 12 November 2020. The letter
in question concluded as follows:
“Should you wish to appeal the findings please complete the attached Appeal
Form, within 3 days of the day of the finding. You are reminded of your right
to refer any dispute to the CCMA5
Proceedings before the CCMA
[6] Following his dismissal at the internal hearing, the Applicant referred the
matter to the CCMA , alleging that his dismissal was substantively unfair.
Condonation for late referral to the CCMA was sought and the matter was set
down.
[7] On 13 September 2021 the matter was hea rd at the CCMA before
Commissioner Morgan Maimane who characterised the task before him as
follows:
“I am required to determine whether the dismissal of applicant was
substantively fair . I have to determine the appropriate relief . The applicant
sought relief for compensation.”
[8] During the CCMA hearing the employer called two witnesses, namely Mica
Newman (“Newman”) and Gugu Dlodlo (“Dlodlo”), respectively.
4 See page 14 of the INDEX AND PAGINATION BUNDLE -E
5 See page 16 of the INDEX AND PAGINATED BUNDLE-E
5
[9] Newman testified that she was appointed HR consultant of Third Respondent
in October 2020 and was tasked with the implementation of HR policies. She
further referred to a report in the Third Respondent ’s Bundle which was a
detailed report from the South African Police Services indicating that
documents were forged in an attempt to change the company’s name.
[10] In reply, the Applicant testified that he did not deny that he took positive steps
calculated at changing the company’s name but denied that the reason he did
so was to take over the company.
[11] Dlodlo’s testimony, on the other hand, dealt extensively with the charge
relating to the Applicant’s insubordination, insolence and lack of co-operation
with management.
[12] She testified that she was the one who sent emails to all professional staff
requesting them to submit their credentials to enable the practice to tender for
RAF matters. She confirmed that Applicant refused to co- operate without the
decency to explain why he was failing to obey management instructions.
[13] Dlodlo further testified that at some stage she requested Applicant to provide
a comprehe nsive report of work carried out by A pplicant over a specified
period, but Applicant failed to respond.
[14] Dlodlo also testified that when Applicant’s incidents of insubordination
became the norm, Applicant was given a warning and asked to account for his
unacceptable behaviour but Applicant just ignored the warning and never
responded.
[15] Applicant’s version regarding the reason for not attending the internal hearing
was that the notice he was served was withdrawn and therefore could not be
regarded as a valid invitation to the hearing.
[16] Applicant further testified that ‘failure’ by the Third Respondent to issue a valid
notice inviting him to the hearing meant that he was never afforded an
opportunity to defend himself and this resulted in an unfair dismissal.
6
[17] Applicant further submitted that the person who invited him to the disciplinary
hearing and eventually dismissed him did not have the authority to do so
Commissioner’s analysis of the evidence
[18] The commissioner was satisfied that proper notice was given to the Applicant
to attend the internal disciplinary hearing, having regard to follow- up SMS
messages and calls to the Applicant’s mobile phone by the inde pendent
Chairperson of the internal disciplinary hearing.
[19] The Commissioner outlined in detail factors to be taken into consideration to
determine if an employee’s dismissal was substantively fair6.
[20] Having had regard to Newman’s uncontested testimony regarding the
fraudulent and unauthorized act by the Applicant to change the Closed
Corporation’s name and Dlodlo’s uncontested testimony regarding Applicant’s
consistent refusal to carry out the employer’s lawful and reasonable
instructions, the Commissioner came to the decision that the applicant was
guilty of charges proffered against him and that his dismissal was
substantively and procedurally fair.
The matter before this court
[21] There are two applications brought before this court
21.1 The first application is the application for condoning the late filing of the
review application;
21.2 The second application is an application to review and set aside the
award issued on 20 October 2021under case number GATW 5495- 21
by a CCMA Commissioner, Morgan Maimane N.O.
[22] Both applications were opposed and set down for hearing in one sitting on 6
May 2026.
[23] Having hear d submissions from both counsel, regarding the condonation
application, the court came to the determination that it was in the interest of
6 See: Arbitration award at para 42.
7
justice7 to grant the applicant condonation and go ahead to hear the
substantive application brought in terms of section 145 of the LRA.
Applicants’ grounds for review.
[24] A thorough perusal of the applicant’s notice of motion as well as his h eads
argument can only lead to the following distilled summary of the applicant ’s
grounds for a prayer to review and set aside the commissioner’s award.
24.1 that the commissioner erred in accepting the Third Respondent ’s
version regarding proper notice of his invitation to the internal
disciplinary hearing.
24.2 that the commissioner misdirected himself in accepting Newman’s
testimony regarding the existence of the polic ies which applicant was
alleged to have violated when he was charged and dismissed8.
24.3 that the commissioner committed a gross irregularity in the conduct of
the arbitration proceedings in that he ‘deliberately and obstinately kept
out of consideration the issue of locus standi on the part of the person
who dismissed Applicant’9.
24.4 that the commissioner mischaracterized the nature of the dispute10
24.5 that the commissioner committed a gross irregularity , in that he failed
to analyze the evidence before him properly.11
24.6 The Applicant concluded by submitting that “the above renders the
award irrational as well as one that does not fall within the bounds of
reasonableness.”12
Test for review
7 See: Grootboom v National Prosecuting Authority and another [2014] 1 BLLR 1 (CC).
8 Applicant’s heads of argument (heads of argument) filed on 16 April 2025 at para 32.
9 Applicant’s heads of argument at para 36.
10 Applicant’s heads of argument at para 46.
11 Applicant’s heads of argument at para 47.
12 Applicant’s heads of argument at para 78.
8
[25] The Applicable test for review proceedings, to the extent that it does not
involve a jurisdictional challenge has been settled by the Constitutional Court
in Sidumo and Another v Rustenburg Platinum Mines Ltd 13, where it was held
that section 145 of the LRA is now suffused by the constitutional standard of
reasonableness.
[26] Sidumo’s decision requires the review court to ask the question: “is the
decision made by the arbitrator one that a reasonable decision maker could
not reach on the available material?”
14
[27] The essence of the Sidumo judgment was further elucidated in Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and Others 15, where the Labour Appeal Court
clarified that Sidumo does not postulate a test that require a simple evaluation
of the evidence presented to the arbitrator and based on that evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator.
[28] The court in Sidumo was at pains to state that arbitration awards made under
the LRA continue to be determined in terms of section 145 of the LRA but that
the constitutional standard of reasonableness is ‘suffused’ in the application of
section 145 of the LRA.
[29] This implies that an application for a review sought on the grounds of
misconduct, gross irregularity in the conduct of the arbitration proceedings,
and /or excess of power will not lead automatically to the setting aside of an
award if any of the above grounds is found to be present.
[30] Where gross irregularity in the proceedings is alleged, the enquiry is not
confined to whether the arbitrator misconceived the nature of proceedings, but
extends to whether the result was unreasonable, or put another way, whether
the decision that the arbitrator arrived at is one that falls with in a band of
13 (2007) 28 ILJ 2405 (CC)
14 Ibid at para 110.
15 [2013] ZALAC 28
9
decisions to which a reasonable decision- maker could come to upon
evaluating the available material.
[31] What is required is first to consider the gross irregularity that the arbitrator is
said to have committed and then to apply the reasonable test established by
Sidumo. The gross irregularity is not a self -standing ground insulated from or
standing independent of the Sidumo test.
[32] That being the case, it serves no purpose for the reviewing court to consider
and analyze every issue raised at the arbitration and regard failure by the
arbitrator to consider all or some of the issues ( albeit material) as rendering
the award liable to be set aside on grounds of processes-related review.
[33] In short: a review court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated the facts presented at the hearing
and arrived at a conclusion which rationally falls within the bounds of
decisions which a reasonable decision- maker could make, based the totality
of the evidence before him/her
Analysis
[34] The first question that this court must ask itself is whether the way the
commissioner dealt with evidence constituted a gross irregularity or material
error and the second question is whether the decision arrived at is of nature
that falls within a band of decisions which a reasonable decision-maker could
not make.
[35] More specifically this court must determine whether the applicant’s dismissal
was substantively and procedurally fair or not.
[36] It is trite that in applying for the setting aside of an arbitrators’ award, it is not
enough for the Applicant to just repeat the grounds for review listed in section
145 of the LRA without providing substance as the applicant did in casu .
Instead, it was expected of the Applicant to eat least provide evidence of how
the commissioner ’s conduct fell short of the standard expected of a
reasonable decision-maker
10
[37] Evidence provided by the applicant to support his allegations in relation to the
grounds listed as a basis for the A pplication for review of the commissioner’s
award is, with respect, insufficient, irrelevant and spurious.
[38] The Applicant has thus failed to meet the standard required to support
allegations made against the commissioner ’s conduct in handling the
arbitration.
Conclusion
[39] Based on the totality of the evidence before him the arbitrator arrived at a
conclusion which falls within the band of decisions which a reasonable
decision maker could make. Put differently, the arbitrator did not make an
award which falls within the bounds of awards which a reasonable decision
maker could not make.
[40] Therefore, the arbitrator was correct in finding that the dismissal of the
Applicant was substantially and procedurally fair.
[41] In the premise the following order is made:
Order
1. The application for condonation for late filing of the review application
is granted;
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2. The application to review and set aside the arbitration award dated 20
October 2021 issued under case number GATW 5495-21 is dismissed;
3. There is no order as to costs.
______________________
R. Ramashia
Acting Judge of the Labour Court of South Africa
12
Appearances:
For the applicant : ZD Maluleke
Instructed by : Fish Letsoalo Attorneys
For the respondent : E Nhutsve
Instructed by : Mathipane Tsebane Attorneys Inc