THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Case no: A2025-076421
In the matter between:
ITEC AS (PTY) LTD Appellant
and
JABULANI NGWANE N. O First Respondent
THE CCMA Second Respondent
SIYABULELA ELIAS MNGUNI Third Respondent
Heard: 24 February 2026
Delivered: 07 September 2026
Coram: TOKOTA AJA; COLLIS AJA and MOSHOANA AJA
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
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Signature Date
LABOUR APPEAL COURT
2
MOSHOANA AJA
Introduction
[1] A sincere and unreserved apology is tendered to the parties for the delay in
handing down this judgment. As I pen this judgment, I need to disclose to the
parties that I was not the allocated scribe of this judgment. For reason s
beyond my control, the scribe was unfortunately unable to pen this judgment
timeously. Taking into account the interests of the parties involved herein, and
as directed, I volunteered to pen this judgment on behalf of the Court.
[2] That said, t his is an appeal against the order of the Labour Court handed
down on 09 July 2024, in terms of which, the Labour Court dismissed the
appellant’s review application. The appeal reached this Court with the leave of
the Labour Court granted on 7 May 2025. The appeal is opposed by the third
respondent, Mr Siyabulela Elias Mnguni.
Background facts pertinent to the present appeal
[3] Mr Siyabulela Elias Mnguni (Mr Mnguni) was employed by the appellant, ITEC
SA Pty Ltd (ITEC) as a Field Service Technician. On 30 October 2020, he
was dismissed from the employ of ITEC after having been found guilty of the
misconduct of theft, in that he had taken and or sold fuser roller scraps and or
other scrap material without authorization and did not declare to his
supervisor.
[4] Aggrieved by his dismissal, Mr Mnguni approached the CCMA and alleged an
unfair dismissal. The appointed arbitrator, Mr Jabulani Ngwane, after hearing
the claim of unfair dismissal , found that the dismissal of Mr Mnguni was
substantively unfair. Whereafter, the arbitrator awarded Mr Mnguni
compensation equivalent to 8 months remuneration.
[5] Aggrieved by the arbitration outcome, the appellant approached the Labour
Court seeking to review and set aside the arbitration award. The application
for review was dismissed by the Labour Court, hence the present appeal.
LABOUR APPEAL COURT
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The arbitration award
[6] At arbitration proceedings, in seeking to justify the dismissal of Mr Mnguni,
ITEC tendered the evidence of three witnesses. In rebuttal, Mr Mnguni
testified in his own case and also tendered the evidence of four other
witnesses. After analysing the evidence before him the arbitrator found that
the version of Mr Mnguni and his witnesses was more probable than that of
ITEC’s witnesses. ITEC in seeking to justify the dismissal had placed reliance
on the outcomes of the polygraph test, however , the evidence of the
Polygraph Examiner was not tendered at the arbitration. The evidence of the
Service Manager was that had Mr Mnguni passed the polygraph test, he
would not have been dismissed. Based on that evidence, the arbitrator found
that the failure of the polygraph test was the sine qua non (an absolute
requirement without which the dis missal was not possible) of the dismissal of
Mr Mnguni.
[7] The arbitrator was not satisfied that the evidence that one Mr Armand gave
authority to dispose of the scrap metal was properly challenged by ITEC. The
arbitrator was not satisfied that Mr Mnguni had pleaded guilty to the
allegations, since the minutes of the disciplinary hearing indicated otherwise.
On the evidence presented before him one Manyiki also took the scrap metal
and sold it yet he was not disciplined.
The Labour Court Judgment
[8] In its judgment, the Labour Court tabulated all the five grounds punted for by
the appellant, in an attempt to set aside the arbitration award. Those grounds
may be summarised as follows: (1) misdirection on the admission of guilt
made by Mr Mnguni; (2) failure to find that the version of Mnguni was
uncorroborated; (3) failure to identify the dispute and application of mind to
such a dispute; (4) fail ure to make a finding on the probabilities; and; (5)
findings are completely unreasonable.
[9] The Labour Court rendered a very detailed judgment. In it, the Labour Court
[9] The Labour Court rendered a very detailed judgment. In it, the Labour Court
thoroughly evaluated the evidence that was tendered before the arbitrator.
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Having done so, the Labour Court found that the arbitrator reasoned the
arbitration award well and considered the relevant factors . The Labour Court
found that the arbitrator arrived at a reasonable decision and did not commit
the wrongs the appellant complained of. Ultimately, the Labour Court
concluded that the appellant had not provided evidence of any reviewable
irregularity committed by the arbitrator.
In the Labour Appeal Court
[10] In this Court, the appellant contended that the Labour Court erred in
dismissing the review application in the circumstances where the arbitration
award was unreasonable. The appellant contended that the arbitrator ought to
have accepted the confession made in the three minutes of the virtual
meeting. Having failed to accept the form the oral admission took; the
arbitrator arrived at an unreasonable conclusion. It was further contended that
had the arbitrator accepted the confession in the form it took, then Mr Mnguni
would have confessed to the misconduct and his dismissal would have been
fair.
[11] It was also contended that the Labour Court in applying the review test took a
“soft touch approach” instead of a hard look at the arbitration award.
Consequently, the Labour Court erred in not finding that Mr Mnguni and his
witnesses failed to rebut the testimony of the appellant , so it was contended.
The fact that he failed the polygraph test meant that a prima facie case was
made. The appellant contended that it was the duty of Mr Mnguni to tender
the evidence of his supervisor, who allegedly gave him authority , since in its
view the supervisor was not authorised to give authority.
[12] Counsel for the appellant placed reliance on the Labour Court case of OK
Bazaars (A Division of Shoprite Checkers) v CCMA and other s (OK Bazaars)
1
in advancing an argument that the alleged confession/admission ought to
have been accepted by the arbitrator in order to find that Mr Mnguni admitted
have been accepted by the arbitrator in order to find that Mr Mnguni admitted
that he committed a misconduct. The appellant’s counsel was critical of the
1 (2000) 21 ILJ 1188 (LC) at para 10.
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Labour Court’s finding that the appellant ought to have called Armand Nel as
a witness. Effectively, before us, the appellant persisted with two bases upon
which this Court must find that the Labour Court erred; namely (a) the finding
that a form of admission was required; and (b) the failure to call Armand Nel
as a witness.
Discussion
[13] An arbitration award is reviewable only if it is one that a reasonable decision
maker may not reach. Once an arbitration award falls within the bands of
reasonableness, the Labour Court and this Court has no powers to set aside
that arbitration award.
The issue of admission of misconduct
[14] At arbitration, both Mr Kruger, the Service Manager and Ms Jessica Boutolas,
the HR Manager testified that Mr Mnguni admitted having stolen the fuser
rollers and selling them for his own account. It became common cause that
the said admission was not recorded. Owing to that, the arbitrator was
dissatisfied that the two witnesses were unable to produce a record of such
an admission. The Labour Court nor this Court is unable to fault this
dissatisfaction. Any reasonable trier of facts is entitled to express
dissatisfaction if the evidence presented lacks sufficiency to proof a disputed
fact.
[15] This Court in Brauns and Others v Wilkes N.O and Others
2 found that an
employer has the onus to prove that a confession was made and such a
confession was valid. In terms of section 192 of the LRA, the onus to prove
that a dismissal is fair lies with an employer. In other words, the onus was on
ITEC to prove on the balance of probabilities that Mr Mnguni was guilty of
theft. It is perspicuous that absent the undocumented admission and the
failure of the polygraph test, ITEC could not prove on the balance of
probabilities that Mr Mnguni was guilty of theft. Reliance on the OK Bazaars
2 (2024) 45 ILJ 1183 (LAC) para 56.
LABOUR APPEAL COURT
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case was misplaced. In there, the commissioner had applied the criminal
requirements of a confession. In the present matter, the arbitrator was not
satisfied that the confession/admission was ever made. The evidence of Mr
Kruger and Ms Boutolas lacked probative value 3, in not accepting it the
arbitrator did not act unreasonably.
The issue of not calling Mr Armand Nel
[16] The allegation that w as levelled against M r Mnguni was that he committed a
misconduct of theft. The known elements of the offence of theft are unlawful
and intentional appropriation of the property belonging to someone without
permission4. It remained the onus of ITEC to prove all those elements of the
offence of theft. There was no onus on the part of Mr Mnguni to prove that he
did not commit theft. It is incorrect to suggest that Mr Mnguni bore any
evidentiary burden. Absent prima facie evidence, the evidentiary burden does
not shift 5. At arbitration, there was no prima facie evidence that Mr Mnguni
committed the offence of theft. This is so because ITEC sought to place its
hope on the alleged unrecorded admission and the polygraph test to justify
the fairness of the dismissal . Polygraph evidence is inadmissible unless
supported by other independent factors. Mr Mnguni was not duty bound to call
Mr Nel, particular ly in the circumstances where there was no prima facie
evidence that the appropriation of the property was not with the permission of
the owner. It was ITEC which alleged that Mr Mnguni did not declare to his
supervisor. S/he who alleges must prove. There was no need to draw any
negative inference. There was simply no prima facie evidence to rebut.
Conclusion
[17] On application of the approved review test, the Labour Court did not err in not
reviewing and setting aside the arbitration award. The arbitration award is one
3 See S v Ndlovu and Others 2002 (6) 305 (SCA)
4 Snyman CR, Criminal Law 5th Ed, 483.
3 See S v Ndlovu and Others 2002 (6) 305 (SCA)
4 Snyman CR, Criminal Law 5th Ed, 483.
5 See Ex Parte the Minister of Justice: In Re Rex v Jacobson & Levy 1931 AD at 468.
LABOUR APPEAL COURT
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that falls within the bands of reasonableness. Accordingly, the appeal falls to
be dismissed.
[18] Because of all the above reasons, the following order is made.
Order
1. The appeal is dismissed with no order as to costs.
_______________________
G N MOSHOANA
Acting Judge of the Labour Appeal Court of South Africa
Tokota AJA and Collis AJA concur
APPEARANCES:
For the Appellant: Mr A J Posthuma of Snyman Attorneys, Johannesburg.
For the Respondent: Mr D M Madiba of Motanya Madiba Inc, Johannesburg.