THE LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
Case no: JR 1828/23
In the matter between:
TIRISANO TRANSPORT AND SERVICES WORKERS
UNION (TASWU) obo MAKUA Applicant
and
MOTLATSI PHALA N.O. First Respondent
NATIONAL BARGAINING COUNCIL FOR
THE ROAD FREIGHT AND LOGISTICS INDUSTRY Second Respondent
INTERWASTE (PTY) LTD Third Respondent
Heard: 22 April 2026
Delivered: 08 September 2026
JUDGMENT
RAMASHIA, AJ
Introduction
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
TDM 08/09/2026
Signature Date
2
[1] This is an application in terms of section 145 (1) (a) read with section 156
(1)(g) of the Lab our Relations Ac t1 (the LRA ) to review and set aside an
arbitration award, dated 15 August 2023.
[2] The said award was issued by First Respondent (Arbitrator), under the
auspices of the Second Respondent, the National Bargaining Council for the
Road Freight and Logistics Industry; under case Number GPRFB68826
Factual Background
[3] Mr. Lazarus Makua ( Makua), on whose behalf Tirisano Transport And
Services Workers Union (TASWU) brought the application, was employed on
a permanent basis by Interwaste ( Pty) Ltd (the company) as a Truck Driver in
May 2022
[4] Following an incident which took place on 29 August 2022, (details of which
are fully described below), Makua appeared before an internal disciplinary
hearing to answer charges of alleged misconduct.
[5] The said charges were listed as follows:
“8.1 in that on 29 th August 2022, you left the vehicle unattended. This
resulted in the vehicle rolling and causing damage to the company
property. Your actions have placed the lives of your colleagues a t risk
and have resulted in financial implications for the company. Your
behaviour is not acceptable to management.”
“8.2 In that on 29 th August 2022 you failed to adhere to the Standard
Operating Procedure and report an alleged brake defect prior to
departure.”
[6] The internal disciplinary hearing found Makua guilty of misconduct and
dismissed him in September 2023.
[7] Following his dismissal, Makua referred an unfair dismissal dispute to relevant
Bargaining Council alleging that his dismissal was substantively unfair.
1 Act 66 of 1995, as amended
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The issue before the Arbitrator
[8] The main issue to be decided by the Arbitrator was whether Makua’s
dismissal was substantively fair or not.
Undisputed Facts
[9] The employer is a waste disposal and logistics company. The company
allocates trucks to drivers on daily basis to go out and carry out the business
of the company servicing various clients.
[10] To ensure the smooth operation of the company and to adhere to the relevant
legislation regulating health and safety protocols, drivers and other relevant
members of the workforce were required to observe the company’s
established Standard Operation Procedure (SOP).
[11] On 29 August 2022, Makua parked a truck allocated to him near the gate of
the company’s premises. Thereafter, the unattended truck rolled forward and
crashed into a carport next to the main gate, causing some damage to the
company’s property.
[12] Subsequently, one of the Controllers called the depot manager, one Mr. Peter
van Der Walt (Van der Walt) to report the incident.
[13] After visiting the scene of the incident and having ensured that the truck was
secure, Van Der Walt went to the control room to view the footage.
Applicable legislation
[14] According to Schedule 8 to the LRA, a dismissal is regarded as unfair if it is
not carried out for a fair reason and in accordance with a fair procedure.
[15] In situations where a dismissal is not automatically unfair, as is the situation in
the present case, the employer bears the burden to prove that the reason for
the dismissal is related to the employee’s conduct.
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[16] An employer discharges this burden by subjecting an employee to a
disciplinary enquiry wherein evidence is led to prove that the conduct of an
employee falls within the range of a prohibited act or omission.
The Arbitrator’s findings
[17] After the dispute was referred to the bargaining council , the matter was duly
set down and argued before an arbitrator appointed on behalf of the relevant
bargaining council.
[18] Pursuant the arbitration proceedings, the Arbitrator concluded that Makua’s
dismissal was substantively fair.
[19] In paragraph 4.1 of the award dated 15 th August 2023; under the heading
“Analysis of argument and evidence”, the Arbitrator stated as follows:
“The applicant was charged with Misconduct
(1) in that on the 29 th August 2022, you left the vehicle unattended, this
resulted in the vehicle rolling and causing damage to the company
property. Your actions have placed the lives of your colleagues and
risk and have resulted in financial implications for the company. Your
behaviour is not acceptable to management.
(2) in that on 29 August 2022 you failed to adhere to the Standard
Operating Procedure and report an alleged brake defect prior to
departure.”
[20] After the arbitrator’s finding that Makua’s dismissal was substantively fair, the
applicant trade union brought an application on Makua’s behalf before this
court in terms of section 145 and or 158(1) (g) LRA, for a review and setting
aside of the Bargaining Council’s Award.
[21] The Applicant trade union seeks an order, substituting the award issued by
First Respondent under the auspices of Second Respondent, with a finding
that; its member, Makua’s dismissal be declared to be substantively unfair ;
alternatively, that the matter be remitted back to the Second Respondent for
proper determination before a Panelist other than the First Respondent
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The Arbitrator’s Analysis of the Evidence
[22] Having had regard to the submissions and evidence led on behalf of the
parties, the Arbitrator made the following observations:
22.1 Since the employee had been working for the company for 10 years,
he must have been familiar with the safety protocols and procedures
drivers were expected to observe in handling trucks they operated.2
22.2 The company provided refresher courses for its employees from time
to time in order to improve their efficiency and effectiveness in
operating their tools of trade.
22.3 As proof thereof, the arbitrator referred to the evidence tendered by a
certain Mr. Van Der Wal t, a senior officer of the company who also
testified at the disciplinary hearing.
22.4 Van der Walt’s evidence was in the form of an attendance register of
employees who participated in the training course.
22.5 As a beneficiary of the training session in the discipline of SOP for
Vacuum and Super Sucker , the arbitrator was satisfied that M akua
understood what was required of him in relation to the SOP
22.6 In terms of the SOP the driver was required to complete a vehicle
checklist before leaving the premises.
22.7 As part of the trite protocol, once the document was completed, it was
handed to the Controller who would sign same and affix a stamp to
confirm that the truck was ready to depart.
22.8 The document completed by the driver pointed out that there was no
spill kit and park brakes.
22.9 Having had regard to defects identified it was clear that the truck was
not ready to be driven out of the employer’s premises.
2 On page 4 of the Award.
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22.10 In terms of the established protocol, the appropriate correct course of
action was to report the defects to the Controller and then refer the
truck to the workshop for repairs.
22.11 The authorization invoice was a book called the “Red Book” into which
issues arising from the checklist must be written by the controllers.
22.12 There was no record of an entry in the red book which is ordinarily
completed by the controller.
22.13 Makua’s account of why he left the car unattended, when it rolled down
towards the gate was that he had gone to the office to report the
problems he had identified with the truck.
22.14 While the driver contended that he gave the checklist to one Owen
Maphopha, his controller, who affixed the stamp authorizing him to go,
there was no explanation as to how the controller was going to deal
with the defects raised.
22.15 The offence committed by the employee had an element of dishonesty
if one considered the questionable checklist the employee submitted.
22.16 In the absence of the testimony of Owen Maphopha (who had already
been dismissed for collusion arising from the same event); the
arbitrator accepted as plausible, the inference drawn by the employer
which postulates that Makua initially completed the checklist without
pointing out the defects.
22.17 Once the accident happened, he ‘ colluded’ with his controller, Owen
Maphopha to alter the checklist in order to reflect the defects.
22.18 As regards the parity principle raised by the employee, claiming that
that the company had been inconsistent in applying disciple and in
particular the sanction of dismissal since two other employees had
damaged the employer’s property but were not dismissed, the
Arbitrator noted that unlike the offences committed by the other
employees, the arbitrator concluded that Makua’s offence had an
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element of dishonesty if one considers the ‘questionable’ check list he
submitted.
[23] It should be borne in mind that the case that the employee was called upon to
answer before the Arbitrator was based on the following charges:
“The applicant was charged by with Misconduct (1) ‘in that on the 29 th of
August 2022, you left the vehicle unattended, this resulted in the vehicle
rolling and causing damage to the company property. Your actions have
placed the lives of your colleagues and at (my correction) risk and have
resulted in financial implications for the company. Your behaviour is not
acceptable to management.”
[24] It is trite that the requirement for substantive fairness is that the dismissal
must be based on a valid, proven reason; and that dismissal must be an
appropriate response to the circumstances, assessed holistically.
Applicant’s case
[25] In the matter before court the Applicant has taken issue with the Arbitrator’s
finding that there was collusion between Applicant and his supervisor, Owen
Maphopha without any evidence of dishonesty being led by the employer.
[26] The applicant trade union also alleges that its member (Makua) was found
guilty of an offence he was not invited to answer at the hearing.
[27] In addition to the above, applicant identifies several issues arising from Van
der Wal t’s evidence listed below which applicant argues that the arbitrator
failed to consider in arriving at her decision. These include:
27.1 the fact that he testified that he can’t tell when the comments about the
brakes were made;
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27.2 the fact that he testified that in reading the applicant’s statement he is
not 100% confident and sure whether the Applicant reported the faulty
brakes as he did not state whether he reported it to Owen or Pendile;4
3 Index Record Vol 2-page 201 line 622.
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27.3 the fact that he could not dispute that the applicant wrote the
comments and Owen stamped the checklist;5
27.4 Van der Walt’s reference to another checklist that was written by Eliam
who took the truck to the workshop directly after the accident and
Eliam’s comments also reflected the park brake issues6
27.5 When asked whether the Applicant’s comments on the checklist
constituted a report, Vander Walt’s answer was affirmative. He
specifically stated as follows: “it is”.
[28] After having had regard to the above, the applicant concludes as follows in
paragraph 4.15 of Applicants Heads:
“the first respondent rejected and or disregarded all of the aforementioned
facts and concluded that the Applicant’s entire version is made up and
created a fiction that the Applicant created a false parking brake issue with
the vehicle to cover his tracks for leaving the vehicle unattended. The First
Respondent then used far-fetched speculation of Van der Wald to come to the
following conclusion:
“4.15.1 The applicant got Owen involved to corroborate the applicant’s
version and got Owen to alter the documents by adding the faulty
comments after the accident”
“4.15.2 The applicant got the driver that took the vehicle to the workshop after
the accident, Eliam, involved in writing the same comments on the
checklist.”
“4.15.3 The applicant and Owen colluded to add a comment that the park
brake has failed in the Red Book, after Eliam only reported a small
light damage to the truck to Mabundza. Owen, the applicant or Eliam
thereafter had to amend Eliam’s checklist to include the brake failure
and had to bring back the original Red Boek Paper to place it over the
copy and then only added the brake failure portion to it.”
4 Index Record Vol 2-page 208 line 823.
5 Index Record Vol 2-page 240 line 323.
6 Index Record Vol 1 page 81, Index Record Vol3 page 241 line 354.
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[29] On paragraph 5 of his Heads, Applicant concludes as follows:
“it is submitted that The First Respondent committed several gross and
reviewable irregularities in that he failed to properly apply her mind to the
legal principles involved, thereby depriving the Applicant of a fair hearing and
rendering the award reviewable.”
Assessment of the arbitration award
[30] In assessing the first charge against the employee, one does not need much
ingenuity to observe that it is not a sustainable charge because there was no
rule in the company that prohibits a driver from leaving a vehicle unattended.
This observation was confirmed by the D epot Manager, Mr. Pieter V an der
Walt7. Incidentally the latter was the company’s key witness on whose
testimony the arbitrator largely relied in arriving at her findings.
[31] The second charge to which the employee had to respond was his alleged
failure to adhere to the Standard Operation Procedure (SOP), in particular the
alleged failure to report the defective brakes.
[32] The employer’s version based on susception was that the employee only
reported defective brakes as a cover -up after the accident had happened.
However, this version is not consistent with the version that there was nothing
wrong with the brakes and that the problem of the brakes was concocted up
with the help of the employee’s colleagues. These two versions are mutually
destructive.
[33] The third chal lenge that arises from the evidence given on behalf of the
employer is the speculative evidence that led the Arbitrator to conclude that :
“[4.21] The offence committed by the employee had an element of dishonesty
if one considers the ‘questionable’ check list he submitted. There was
no doubt there was an element of collusion between the employee
and the controller Maphopha.”8
7 Index Record Vol3 page 229 line 28
8 Index Pleading Vol1 page 28 par 4.2.1
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[34] The contents of the above paragraph demonstrate not only that the employee
was found guilty of an offence he was not charged with, namely collusion and
dishonesty but that the speculative evidence suspecting collusion between the
employee and his colleagues was admitted without any proof.
[35] It is without doubt that the arbitrator who was called upon to adjudicate over
this case was faced with mutually destructive or contradictory versions of
events.
[36] However, it is trite that when decision makers are faced with situations of this
nature they required to evaluate the evidence systematically rather than
speculate or simply prefer one version over another without a reasonable
explanation as to why they accept one version and dismiss another.
[37] The Supreme Court of Appeal held in Stellenbosch Farmers Winery Group Ltd
and another v Marte ll et Cie and Others 9 that where there are two
irreconcilable versions, a decision maker must evaluate:
37.1 the credibility of the witnesses. This includes their honesty, demeanor ,
and consistency.
37.2 reliability of the witnesses, including the quality and accuracy of their
observations and recollections
37.3 probabilities. In other words , an assessment of which version is more
probable in light of evidence before the decision maker
[38] In National Employer’ General Insurance Company Limited v Jagers10 it was
held that where the evidence before the decision maker is contradictory and
mutually destructive, the party that bears the burden of proof could only
succeed by showing that its version is more probable than that of the other
party.
9 2003 (1) SA 11 (SCA).
10 1984 (4) SA 437 (E)
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[39] In Sasol Mining (Pty) Ltd V Ngqeleni N.O and Others 11, it was held that a
commissioner commits a reviewable irregularity where he or she ignores
material evidence, fails to resolve material disputes of facts, reaches
conclusions unsupported by evidence; or bases findings on speculation.
[40] In order to avoid making a decision which a reasonable decision- maker could
not make, an arbitrator faced with the situation similar to the one in casu,
should at minimum, apply an assessment of the credibility of factual
witnesses, their reliability and overall assessment of the inherent probabilities
of the different versions before her before picking one version and rejecting
the other.
[41] It is also expected of a reasonable decision- maker that, having accepted one
version and rejected the other; to objectively explain why the accepted version
was admissible and the rejected version not accepted. This approach
minimizes incidences where decisions are arrived at by conjecture or
speculation.
[42] It is clear in casu, that having listened to conflicting versi ons of the events
which took place at the company, one version was more attractive than the
other and the arbitrator accepted a version that favoured the company without
a proper analysis and objective basis of accepting such version and rejecting
the other.
[43] The arbitrator did not even attempt to explain why the version that was
accepted was more probable than the one that was rejected. This approach
often leads to unreasonable conclusions which cannot be rationally explained.
Test for review
[44] The next task for this court is to determine whether the irregularities
committed by the arbitrator are so material as to justify th is court’s
interference with the arbitrator’s reward.
11 (2011) 32 ILJ 723 (LC).
12
[45] In order to consider this question judiciously the point of departure has to be
the seminal case of Sidumo and Another v Rustenburg Platinum Mines Ltd
and Others12 (Sidumo) where the Constitutional Court held that:
“Section 33(1) of the Constitution presently states that everyone has the right
to administrative action that is lawful, reasonable and procedurally fair. The
reasonableness standard should now suffuse section 145 of the LRA.”
[46] Furthermore, in CUSA V Tao Ying Metal Industries and Others,13 following the
Sidumo judgement, the Constitutional Court held:
“it is clear… . that a commissioner is obliged to apply his or her mind to the
issues in a case. Commissioners who do not do so are not acting lawfully
and/or reasonably and their decisions will constitute a breach of the right to
administrative justice.”
[47] Considered together, t he effect of the above two judgments is that a review
court is required to determine whether a decision of an arbitrator is
reasonable considering the totality of the evidence that was before the
arbitrator together with the issues that the arbitrator was required to
determine.
[48] Further clarity as to what is considered as ‘reasonable’ on the one hand and
‘unreasonable’ on the other, was provided by the Labour Appeal Court (LAC)
in Fidelity Cash Management Service v CCMA and Others14 as follows:
“The constitutional Court further held that to determine whether a CCMA
commissioner’s arbitration award is reasonable or unreasonable, the question
that must be asked is whether or not the decision or finding reached by the
commissioner is one that a reasonable decision maker could not reach. If it is
an award or decision which a reasonable decision maker could not reach,
then the decision or award of the CCMA is unreasonable, and therefore,
reviewable and could be set aside. If it is a decision that a reasonable
decision maker could reach, the decision or award is reasonable and must
decision maker could reach, the decision or award is reasonable and must
stand. It is important to bear in mind that the question is not whether the
12 [2007] 12 BLLR 1097 (CC) at para 106.
13 (2008) 29 ILJ 2461 (CC) at para 134.
14 (2008) 29 ILJ 964 at para 97.
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arbitration award or decision of the commissioner is one that a reasonable
decision maker would not reach but one that a reasonable decision maker
could not reach.”
(Own emphasis)
Conclusion
[49] Since everything turns on the credibility of the version accepted by the
arbitrator, failure to justify its basis leads to absurdity, placing the process and
outcome of the arbitration within the b ounds of decisions which a reasonable
decision maker could not make.
[50] Given the above considerations, the court must arrive at an i nescapable
conclusion that the reason the employee was dismissed was because of the
accident that happened when the vehicle was left unattended. The absence of
a rule in the OSP that a driver may not leave a truck unattended under any
circumstance, renders absurd, the Arbitrator’s finding that the employee’s
dismissal was substantively fair.
[51] The Arbitrator made findings a reasonable decision maker could not make ,
and she arrived at conclusion s which were not rational, given the facts of the
matter and the evidence adduced
[52] The Arbitrator failed to assess the versions presented and failed to decide the
matter on a balance of probabilities.
[53] On a holistic consideration of the facts before the Arbitrator her finding that the
Applicant’s dismissal was substantively fair, for reasons recorded in the
Arbitrator’s award is reasonable and untenable.
[54] Having had regard to all the gross irregularities pointed out above, it is the
finding of this court that the arbitrator reached a conclusion which a
reasonable decision maker could reach, gi ven the totality of the evidence
before her
[55] This court has a wide discretion in respect of cost s. In this matter the interest
of justice will be best served by the court making no order as to cost.
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[56] In the premises the following order is made:
Order
1. The arbitration award dated 15 August 2023 and issued under case
number GPRF68826 is hereby reviewed and set aside;
2. To avoid a situation where this court servs as a court of first instance in
assessing, inter alia, the credibility of witnesses this dispute is remitted
to the Third Respondent for hearing de novo on substantive fairness of
the dismissal of the employee; before a commissioner other than the
Second Respondent,
3. There is no order as to costs.
_______________________
R. Ramashia
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Ms. N Schroeder
Instructed by : Higgs Attorneys
For the Respondent : MJ Van As
Instructed by : Fluxmans Attorneys