THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 1021/22
In the matter between:
LAWRENCE ALLAN RALFE N.O. First Applicant
LINSAY MARY MOORCROFT RALFE N.O. Second Applicant
DENZIL ALLAN GUY RALFE N.O. Third Applicant
PATRICIA LESLIE RALFE N.O. Fourth Applicant
and
NTATE MABILE N.O. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
GUGULETHU MILLICENT MHLONGE Third Respondent
Heard: 14 July 2026
Delivered: 11 September 2026
JUDGEMENT
(1) Reportable: Yes
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
WHITEAR-NEL AJ
Background
[1] This is an application for the review and setting aside of the award delivered
by the first respondent on 1 August 2022 under case number MPMB 1598-22.
The award was to the effect that the applicant had been dismissed and that
her dismissal was unfair.
Grounds of review
[2] The applicant raised three grounds of review.
[3] The first was that the commissioner had misconceived where the onus rests
in cases where the existence of a dismissal is in dispute. The second was that
the commissioner had failed to consider material evidence before him. The
third was in regard to the manner in which the commissioner dealt with the
evidence – in that there was a material factual dispute that was not resolved
by the commissioner.
Test for review
[4] In the case of Moschinsky v CCMA and others 1 the court succinctly dealt with
the test for review and held as follows:
‘[11] … the test on review is now trite. An award will be set aside on any of
the grounds set out in section 145 of the Labour Relations Act (LRA).
In Sidumo and another v Rustenburg Platinum Mines Ltd and
others, the Constitutional Court held that section 145 is now suffused
by the constitutional standard of reasonableness. In other words, the
award will be set aside if it is one that no reasonable decision-maker
could have arrived at.’
[5] This is the test to be applied in casu.
Facts
1 (C706/2021) [2023] ZALCCT 44 (14 July 2023) at para 11.
3
[6] The third respondent (the employee) was employed at a farm. The employer
had gone on leave and left the employee in charge of some plants. When they
returned they discovered that the plants were dead. On 9 June 2022, one
Fiona, of the employer, had an altercation with the employee over the state of
the plants.
[7] On 10 June 2022 co -employees Sifiso and Gideon told the employer that the
employee had told them that she was leaving the farm. When the employee
reported for work on 11 June 2022, along with a sick note for the previous
day, she was told to leave as a replacement temporary employee had already
been found.
Analysis of arbitration award
[8] In the award 2 the commissioner concluded that the respondent claimed that
the applicant had resigned, however there was no evidence provided to
sustain that version. This suggests that it was the respondent who had
to prove that the applicant was not dismissed, whereas the onus as set out in
section 192 of the Labour Relations Act
3 (LRA) provides that it is the applicant
who must prove the existence of the dismissal.
[9] This speaks to the first ground of review raised by the applicant. However, in
the award4 the commissioner correctly sets out the provisions of section 192
of the LRA, saying that it is the employee who bears the onus of proving the
existence of the dismissal. This shows that the commissioner was alive to the
issue of who bore the onus of proving the existence of the dismissal.
[10] With respect to the second ground of review, the applicant makes the point
that in the arbitration award, the commissioner gives no reasons as to why he
preferred the applicant’s version of events to the respondent’s version. The
employee’s version was that she returned to work after being sick and was
told to go because she had been replaced. In argument it was pointed out that
the sick note was never handed in as evidence, but the commissioner does
2 See: para 31 of the arbitration award.
2 See: para 31 of the arbitration award.
3 Act 66 of 1995, as amended.
4 See: paras 28 and 29 of the arbitration award.
4
refer to it in his award. The employer’s version was that they were told by two
of the employee’s co- workers (supervisors) that she had resigned, that the
employer had tried to phone her to no avail, and that the employer had gone
to the ‘compound’ where she lived and was told by ‘everyone’ there that she
had left. The conclusion by the employer is that the commissioner ignored
material evidence which would have convinced him to accept the employer’s
version.
[11] The material factual dispute referred to in the third ground of review is that the
employee said that she had been sworn at and spoken roughly to about the
dead plants, and that this made her frustrated and upset because it had been
happening for the last two weeks. The employer denied this and called a
witness who testified that she overheard the conversation with the employee
and that there was no swearing or rough talk. It was pointed out in argument
that the employee was not telling the truth about abuse occurring for the past
two weeks because the employer had been away on leave. Also, the
employee never asked the employer for access to her room to take her
belongings: it was argued by the applicant that the probabilities therefore were
that the employee had taken her belongings and left immediately after the
altercation. In the commissioner’s award he makes reference to the
employee’s evidence that she had not removed her belongings.
[12] The applicant was not questioned in cross examination. This is usually taken
to mean that the cross -examiner does not dispute the applicant’s testimony.
This is a significant consideration. In the matter of S v Xoswa and others
5 the
court held that if evidence is not challenged it may be accepted without any
further ado. In the matter of President of the RSA and others v SARFU and
others6 the Constitutional Court held that if a point in dispute is not
challenged, or admitted, in cross -examination, that evidence is accepted as
challenged, or admitted, in cross -examination, that evidence is accepted as
correct. The employee denied resigning and leaving with her belongings. She
testified that when she reported to work she was told to leave and that she
would be called, which she says never happened.
5 1965 (1) SA 267 (C).
6 2000 (1) SA 1 (CC).
5
[13] When the employer was being cross examined, she was asked how it could
be that the employee would resign, then come to work the following day with a
sick note. The employer replied that Gideon and Sifiso had told her that the
employee had resigned. It must be noted that Gideon and Sifiso did not
testify. It can only be assumed that the he arsay evi dence was admitted by
implied consent. It is trite that hearsay evidence is unreliable. Particularly
second or third hand hearsay.
[14] Taking the award, and the transcript into account, my conclusion is that none
of the grounds of review find traction.
[15] The commissioner’s award is brief, and he does not traverse all the evidence
before him, but that is proper for commissioners who are encouraged to focus
only on the salient points and to avoid lengthy and cumbersome awards.
[16] The commissioner may not have made all the factors relevant to his
conclusion explicit, but there is sufficient material in the award to conclude
that the evidence supports the commissioner’s findings. The probabilities
accord with the commissioner’s findings.
[17] My conclusion therefore is that this review application stands to fa ll as t he
commissioner’s award is unassailable, and reasonable.
[18] In the premise the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
N. Whitear-Nel
Judge of the Labour Court of South Africa
Appearances:
6
For the Applicant: J P Prinsloo
Instructed by: Seymore Du Toit & Basson Attorneys
For the Respondent: No Appearance