THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No. JR923/23
In the matter between:
SEPHAKU CEMENT (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
MODIPA, SOLOMON N.O. Second Respondent
NATIONAL UNION OF MINEWORKERS Third Respondent
MAZIBUKO, BONGANI Fourth Respondent
Heard: 26 August 2026
Delivered: 11 September 2026 (By uploading on CaseLines and/or circulation to
the parties’ legal representatives by email)
JUDGMENT
MAKHURA, J
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
___________ 11 September 2026
Signature Date
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Introduction
[1] This is an application to review and set aside an arbitration award issued by the
second respondent commissioner under the auspices of the first respondent, the
Commission for Conciliation, Mediation and Arbitration (CCMA). In terms of the
award, t he commissioner found that the dismissal of the fourth respondent
employee was substantively unfair and ordered his retrospective reinstatement.
[2] The employee’s dismissal was precipitated by statements he made during a
Department of Mineral Resources and Energy (DMRE) audit meeting on 8 June
2022, which the applicant company contended were malicious and detrimental to
its reputation. The review application therefore turns principally on whether the
commissioner's finding that the dismissal was unfair and an award of
retrospective reinstatement falls within the bounds of reasonableness.
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Material facts
[3] The company is involved in manufacturing and mining operations and distribution
of cement. It is regulated by, inter alia, the Mine Health and Safety Act
2 (MHSA).
[4] The employee was charged with and dismissed for the following allegation of
misconduct:
‘Maliciously bringing the Company into disrepute with your dishonest and
unsubstantiated statements during the opening meeting of the DMRE Group
Audit at Aganang on 8 June 2022. Your actions were inconsiderate of, and in
direct conflict with Company interest.’
[5] The employee was dismissed on 27 June 2022 after a disciplinary hearing
convened and concluded on the same day. At the time of dismissal, he occupied
the position of handyman in the mechanical engineering section and was also a
shop steward and the chairperson of the third respondent union branch.
1 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; (2007) 28 ILJ 2405
(CC).
2 Act 29 of 1996.
3
[6] The employee, represented by his trade union, subsequently referred an unfair
dismissal dispute to the CCMA in which he sought retrospective reinstatement.
The arbitration
[7] During the arbitration proceedings, the company called one witness, its
Operations Manager, Mark Hector. The employee testified on his own behalf.
[8] It is common cause that the DMRE notified the company of a Group Audit that
would be conducted on Wednesday, 8 June 2022. The evidence from Hector
establishes that the DMRE’s communication advising the company of the 8 June
2022 audit was received on 6 June 2022. It is further common cause that the
company has a general communication system called SEPCOM (Sephaku
Communications), through which employees were able to raise a wide range of
issues, including matters relating to health and safety.
[9] Hector testified that at approximately 19h00 or 20h00 on 6 June 2022, he
received a telephone call from the night -shift “guys” or employees, regarding a
rotary kiln. He was informed that a section of the kiln had become extremely hot,
indicating a refractory failure. They also forwarded him a video clip. He then
contacted various heads of department (HODs) to determine whether the
planned full kiln shutdown, which had been scheduled for two weeks later, could
be brought forward. Following consultations, the contractors and/or suppliers
confirmed that they were available to perform the work earlier than planned due
to the refractory failure.
[10] Hector explained that when a kiln develops a hot spot of that nature, it must be
stopped so that the affected area can be inspected and repaired. This requires
personnel to enter the kiln, remove the damaged material and reline the affected
section. Where the failure occurs shortly before a planned shutdown, as was the
case here, it may be preferable to undertake a more extensive relining of an
entire section of the kiln, a process that is ordinarily planned and carried out
annually.
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[11] In this instance, he decided on the night of the incident that the kiln could not
continue operating and instructed that it be stopped. Consideration was then
given to whether the kiln should be repaired on a limited basis to address the
immediate problem or whether the planned full shutdown, scheduled for two
weeks later, should be brought forward. After contacting the contractors, it was
confirmed that they were available to perform the planned shutdown work
immediately, and the decision was accordingly taken to proceed with the full
shutdown as originally contemplated.
[12] At 8h04 on 7 June 2022, Essie Esterhuizen, the Plant Manager, addressed an
email to the HODs and stated that:
‘Good day, we experienced a red spot on the kiln last night and the kiln had to be
stopped. We will be going into a 35 day KSD to replace the kiln shell and repair
the refractories. This was all planned for 22 June which means we do the same
work 2 weeks earlier. Our stock situation is fine and we will have 35k tons of
clinker available after the KSD. As per the earlier KSD, let's ensure we maintain a
safe environment and ensure ZERO harm to all our employees and contractors.’
[13] Five minutes later at 8h09, Hector also addressed an email to the HODs as
follows:
‘The kiln stopped last night for a hot area around the girth gear. We had to stop
the kiln as the bricks in that area … will need to be replaced. After looking at the
alternatives and availability of personnel, we are going into the full 35 day
shutdown now. Today is day 1 of the shutdown. We will do all the work that was
planned for the shutdown if it started on 22 June.’
[14] At 8h19 on 7 June 2022 and in response to the DMRE’s notification of a group
audit, Esterhuizen addressed an email to DMRE recording that the company had
embarked upon a 35- day kiln shutdown to undertake replacement work on the
front section of the kiln and certain refractories, and that, as a consequence, the
front section of the kiln and certain refractories, and that, as a consequence, the
main plant would not be operational on the day of the audit. The DMRE noted
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Esterhuizen’s email and advised that they would nevertheless still attend the
company’s premises on 8 June 2022 as scheduled.
[15] At 9h01, Ruth McGluwa addressed an email to the SEPCOM facilitators
instructing them to convey to employees the contents of an email sent by
Esterhuizen to the HODs at 08h04. The communication advised that the
company would commence a full 35- day shutdown that day, despite the fact that
the shutdown had initially been planned to commence on 22 June 2022. During
arbitration proceedings, t he company did not lead to confirm that the
announcement regarding the plant shutdown had been communicated to
employees, including the employee in this case. Its case in this regard rested
exclusively on a register indicating the employee’s attendance at the SEPCOM
briefing. The employee, however, testified that he had no knowledge of the plant
shutdown and only learnt of it on 8 June 2022 during the DMRE meeting.
[16] On 8 June 2022, the DMRE attended the company for the scheduled group audit.
At the commencement of the meeting, the company informed the DMRE officials
that most of the plant was not operating due to the refractory failure and that the
company had commenced its plant shutdown. It is common cause that the
employee was given an opportunity to speak. Hector wrote a statement dated 17
June 2022 about the event of 8 June 2022, the content of which formed part of
his oral evidence. He stated, inter alia, that:
‘Bongani Mazibuko requested to speak. He was given an opportunity. Amongst
other things Bongani mentioned that himself and members (he was speaking as
the leader of the Union on site) were concerned that the plant was stopped just
before the DMRE came. He mentioned that they found it odd that each time
before the DMRE came, the plant was stopped. He then also specifically
mentioned the clinker outloading.
He also mentioned that each time the DMRE came, there was a rush to clean up
the plant before the DMRE arrived.
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He wanted to understand why this was only done before the DMRE arrived and
not all the time.
Mr Wagamang Motlhamme replied to this saying that if this were the case then
the DMRE sees this is a very serious light. He mentioned that if this were the
case the DMRE may need to look at visiting Sephaku unannounced as they do at
certain other Mines where the practice is to stop plant before the DMRE arrives.’
[17] It is common cause that the DMRE proceeded with the inspection and found no
indication of foul play in relation to the plant closure. Hector expressed the view
that the employee ought not to have raised the concerns during the DMRE
meeting, as the company had adequate internal mechanisms available for the
reporting of such concerns. In this regard, he testified that there were enough
other structures, such as SEPCOM and health and safety meetings, where the
concerns of this nature could have been reported.
[18] Hector also confirmed during cross -examination that the employee attended the
meeting in his capacity as a shopsteward:
‘APPLICANT REPRESENTATIVE: Sir, the applicant’s version is that he said in
the meeting the members were concerned that the plant was stopped prior to the
DMRE visit, and that every time the DMRE comes to visit, they are being rushed
to do the cleaning. That’s what the applicant said. Do you recall that?
MR. MARK HECTOR: I recall that he said that the plant was stopped before the
DMRE visit, yes and that there was a rush to clean the plant before the DMRE
comes, yes.’ (Own emphasis)
[19] Hector accepted that the DMRE is entitled to conduct unannounced inspections.
He testified further that employees are entitled to communicate directly with the
DMRE or regulator. He stated that employees may contact the DMRE by various
means, including letters and emails, and confirmed that they enjoy open access
to the regulator. His evidence was that employees are at liberty to raise concerns
to the regulator. His evidence was that employees are at liberty to raise concerns
with the DMRE and seek its intervention where they consider it necessary. He
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testified, however, that the company stood to suffer prejudice if the unannounced
inspection uncovered any non-compliance or other shortcomings.
[20] Asked what he considered to be malicious about the employee’s statement,
Hector testified that it conveyed the impression that the company had
deliberately stopped the plant to prevent the DMRE from observing it in operation
during an inspection. He said that the employee intentionally sought to create the
perception that the company would halt operations in anticipation of a DMRE
visit. He further stated that this impression was reinforced by Motlhamme’s
response, in which he indicated that, if that were indeed the case, the DMRE
would have to treat the company differently. Hector’s evidence was that the
DMRE was consequently left with the impression that the company had
intentionally suspended operations to avoid regulatory scrutiny.
[21] It is common cause that at 14h45 on 8 June 2022, the DMRE issued a notice of
its intention to issue statutory instructions in terms of the MHSA in relation to the
storage area and drain trenches. The notice identified six instances of non-
compliance, namely: poor housekeeping outside the storage area and the water
treatment plant; improper stacking of scrap material, wire ropes and electrical
cables; poor housekeeping in the Sunsurf workshop, which also served as an
eating facility; the storage of a CO ₂ gas cylinder inside the Sunsurf workshop; an
electrical distribution box without a door or flash plate, with conductors exposed;
and uncovered or exposed water drain trenches. The company was afforded an
opportunity to make representations and provide reasons why the contemplated
statutory instructions should not be issued.
[22] The DMRE also issued a health and safety inspection report in respect of the
Dome and Kiln areas. The report identified several instances of non- compliance,
including an electrical distribution box that was exposed or uncovered and lacked
including an electrical distribution box that was exposed or uncovered and lacked
a flash plate, hydraulic oil spillages, and the failure to display signage indicating
the voltage rating at the substation.
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[23] The employee denied that his statement was malicious. He testified that he
attended the meeting in his capacity as a union representative and considered it
part of his responsibility to safeguard the interests of union members, particularly
in relation to health and safety matters.
[24] The employee further testified that, by raising the issue, he was not seeking to
create a false impression or to have his remarks taken out of context. He stated
that he and/or other trade union officials had been part of the numerous prior
efforts to ensure the company’s compliance with health and safety requirements
and that his remarks should be understood against that background. In his view,
there was nothing malicious in what he said.
[25] He explained that he was raising a concern regarding housekeeping while the
plant was not operating and questioning whether housekeeping standards were
consistently maintained during normal operations. His evidence was that the
ultimate aim was for all stakeholders to work together to provide a safe working
environment for employees. He continued that:
‘It is very sad, because now if the company silences the union or the employee
representations in such matters, now we are going to end up whereby … the
company is being shut down and then we are also being held accountable
because we are a stakeholder in the operations, monitoring issues of health and
safety. So it does not sit well with me, given the history of where we come from.
How we have assisted them in trying to make the workplace a safe working
environment.’
[26] In response to the proposition that he should have raised the issues in the health
and safety meeting, he disagreed with the company’s stance, maintaining that
the audit meeting was also a relevant structure to raise the concerns. He said
that the last health and safety meeting they had was in March 2022.
The award
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[27] The commissioner observed that the employee was a union representative and
had attended and participated in the DMRE audit meeting in that capacity. He
further noted the company’s contention that the employee ought to have raised
his concerns through established internal communication channels, such as
SEPCOM, rather than during the DMRE meeting.
[28] The commissioner questioned whether the concerns raised by the employee
were matters that ought to have been addressed through internal communication
channels and whether raising them through SEPCOM could reasonably have
brought the company’s name into disrepute. Significantly, the commissioner
observed that the company had failed to adduce any evidence prescribing the
manner, forum, or channels through which such concerns were required to be
raised.
[29] The commissioner then turned to the allegation that the employee’s statements
were malicious. He questioned what, on the facts of the case, constituted malice
and whether the fact that the DMRE was entitled to conduct unannounced
inspections could render the employee’s statements malicious. The
commissioner found that the prospect of an unannounced DMRE inspection
could not, without more, be regarded as harmful to the company unless the
company harboured “malicious intentions of hiding something from the DMRE
which could prejudice it in one way or another”. On that basis, he concluded that
the dismissal lacked substantive fairness and ordered the employee’s
retrospective reinstatement
The review grounds
[30] Apart from the broad allegations contemplated in section 145(2), namely
misconduct by the commissioner, gross irregularities in the conduct of the
proceedings, and the unreasonableness of the award, the company contends
that the commissioner ignored material evidence, failed to undertake a proper
assessment of the evidence as a whole, abdicated his duty to determine the
dispute on the evidence before him, and thereby deprived it of a fair hearing.
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[31] The company also attacks the commissioner’s reasoning, including his scrutiny
of its case that the employee should have raised the concerns through internal
communication structures and his observation regarding the absence of any
reliance on a relevant policy. The company submits that the commissioner failed
to appreciate that the employee’s failure to utilise the SEPCOM channel was
indicative of the fact that his concerns were not bona fide. In its view, the
employee’s conduct could only have been intended to maliciously cast
aspersions on the company’s conduct in relation to the DMRE.
[32] The company further criticised the commissioner’s treatment of its concern
regarding unannounced DMRE visits. It argued that the commissioner failed to
appreciate that, following the employee’s statements, the company risked being
viewed by the DMRE in the same light as employers who were distrusted and
subjected to heightened scrutiny, including unannounced inspections. Further,
that:
‘The reputational harm to [the company] arising from [the employee’s] statements
therefore brought the risk of direct, real -life consequences in terms of [the
company’s] relationship with the DMRE.’
[33] Finally, the company submits that the commissioner failed to appreciate that, on
his reasoning, the employee was effectively at liberty to raise allegedly false and
unsubstantiated concerns with the DMRE without first ventilating those concerns
through the company’s internal reporting structures.
Analysis
[34] During cross-examination of the employee, the company’s representative put the
following proposition:
‘…if this is the mandate that you had … surely you should have put that forward
and this would have been prevented. If you have said to the DMRE this is the
mandate that we have, it’s in writing, but you never mentioned that. You said the
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plant is stopped every time the DMRE is visiting us. That’s what you said. I don’t
see it here in your statement.’
[35] The employee responded that he had previously never been asked to prove the
mandate in writing. Indeed, to require the union representative to produce a
written mandate from union members before raising their concerns is
unsustainable, not in accordance with any prescript and finds no support in law
or established industrial relations practice. To impose such a requirement would
render collective representation impractical and would undermine the very
purpose of trade union representation.
[36] Significantly, this proposition appears to undermine the company’s own case. On
its own version, the employee’s conduct was objectionable because he raised
the concern with the DMRE, instead of SEPCOM or the health and safety
structure. Yet the proposition suggests that, had he produced a written mandate
from union members in support of the same concerns, the matter would have
been viewed differently. This is an acknowledgement, as confirmed by Hector in
his written statement and evidence, that the employee was acting in a
representative capacity and raising concerns on behalf of members.
[37] Even if the company’s position is that the employee would nevertheless have
faced disciplinary action even if he produced a written mandate, then the
existence or absence of such written proof was ultimately irrelevant. In either
event, the proposition does little to establish malice. Rather, it tends to support
the inference that the disciplinary action was directed at the fact that the
employee raised the concerns during the DMRE audit meeting without first
utilising the company’s internal reporting channels, not the substance of the
concerns themselves.
[38] The company’s heads of argument put paid to any suggestion that its complaint
was directed at the substance of the concerns raised by the employee. On the
was directed at the substance of the concerns raised by the employee. On the
contrary, they confirm that the true gravamen of its complaint lay in the forum or
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channel through which those concerns were communicated. The company
submitted that:
‘The inevitable conclusion flowing from these events was that Mr Mazibuko had
raised the above concern maliciously, given that he had had ample opportunities
to raise such issues related to health and safety practices prior to the DMRE
meeting, but had not done so. He used the meeting with the DMRE to make
statements that were both untrue and made in bad faith.’
[39] Whatever t he company’s case against the employee is, it overlooks a
fundamental consideration. Although the company accepted that the employee
was acting in his capacity as a union representative, it failed to distinguish
between statements made by the employee in his personal capacity and those
made on behalf of the employees he represented. Hector expressly
acknowledged that the employee was conveying concerns raised by members of
the trade union. There was no evidence that the employee acted outside the
scope of his mandate or misrepresented the views of those members. In those
circumstances, the employee was merely communicating the concerns of his
constituency and could not legitimately be subjected to disciplinary action for
doing so. That, in itself, ought to have been dispositive of the matter.
[40] Even on the assumption that the employee acted independently when making
the impugned statement or that it was within the company’s right to discipline him
regardless of the capacity in which he raised the concerns, the company was
nevertheless required to establish that the statement was untrue, that the
employee knew of its falsity or lacked reasonable grounds for believing it to be
true, and that he made it with the intention of damaging the company’s
reputation. The company was further required to demon strate that the statement
resulted in, or had the potential to result in, prejudice to its reputation.
[41] Mr Le Roux submitted that the employee bore the burden of proving the truth of
[41] Mr Le Roux submitted that the employee bore the burden of proving the truth of
the impugned statement. Mr Thobejane, appearing for the union and employee,
submitted that the company had to prove the falsity of the statement. I agree with
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Mr Thobejane. The company’s submission cannot be sustained as it
impermissibly reverses the onus. The company elected to charge the employee
with making a malicious statement and, in seeking to justify the dismissal, bore
the onus of proving the misconduct alleged. As part of establishing the
substantive fairness of the dismissal, it was incumbent upon the company to
prove the essential elements of the misconduct.
[42] The company could not simply assert that the statement was false in a charge
sheet and then demand that the employee prove otherwise. In the absence of
evidence demonstrating falsity, the charge remained unsubstantiated. In any
event, the company's case falls short on further essential elements. Even had the
statement been shown to be false, which it was not, there was no evidence that
the employee made it knowingly, recklessly, or in bad faith. Likewise, the
company failed to demonstrate any actual prejudice arising from the statement or
any credible prospect of reputational harm flowing from it.
[43] The prejudice or potential prejudice allegedly flowing from the employee’s
statement was a heightened scrutiny by the DMRE resulting in unannounced
inspections of the company’s operations. That assertion is difficult to sustain. If
the company was complying with the applicable health and safety and regulatory
requirements, there would be no rational basis for fearing an unannounced
inspection by the DMRE or for viewing the possibility of such an inspection as
prejudicial.
[44] If the company feared that the employee’s statement might prompt unannounced
visits by the DMRE, that fear may have been attributable to its own compliance
history. This is because the evidence revealed that the company had been found
non-compliant during DMRE audits in March and April 2022, while the audit
conducted on 8 June 2022 disclosed further instances of non- compliance. In
those circumstances, the employee’s statement cannot be said to have unfairly
those circumstances, the employee’s statement cannot be said to have unfairly
exposed the company to suspicion or to have invited unwarranted regulatory
scrutiny. On the contrary, the company’s record of non- compliance provided an
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objective basis for closer regulatory scrutiny and unannounced inspections by the
DMRE. Viewed in this context, the real source of any apprehension was the
prospect that increased regulatory scrutiny might uncover further non-compliance
on the part of the company.
[45] Having considered the merits of the matter, or more accurately the lack thereof, I
can do no better than agree with the employee’s observation that it is “very sad”
that the dismissal appears to have been aimed at silencing him and/or the trade
union he represented. The voices and concerns of employees, particularly when
expressed during audit processes involving regulatory authorities, must not be
suppressed and muted through disciplinary measures or dismissal. This is
especially so where the concerns relate to health and safety matters in inherently
hazardous industries such as mining. Effective regulatory oversight depends
upon the participation of all stakeholders, including employees and their
representatives, being able to communicate openly and candidly with each other
and the regulator regarding workplace conditions, practices and risks, without
fear of reprisal. To seek to silence those voices through threats of disciplinary
action and dismissal is not only inimical to meaningful employee participation but
also undermines the objectives of transparency, accountability and workplace
safety that underpin the MHSA.
Conclusion
[46] In conclusion, I find that the company failed to discharge its burden of proving
that the employee committed the misconduct for which he was dismissed.
Accordingly, the allegation of malicious conduct was not established, and the
commissioner’s ultimate decision and award that the dismissal was substantively
unfair falls within the reasonableness threshold. The review application stands to
be dismissed.
[47] Both parties submitted that no costs order should be made. I see no reason to
depart from that approach and accordingly conclude that no order as to costs is
warranted.
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[48] In the premises, the following order is made:
Order
1. The review application is dismissed
2. There is no order as to costs.
____________________
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr F. Le Roux
Instructed by: Joubert Gaplin Searle Inc.
For the 3rd & 4th Respondents: Mr A.T. Thobejane
c/o Mashabela Attorneys