SAMWU obo Malatsi v South African Local Government Bargaining Council and Others (JA 64/23) [2025] ZALAC 40; [2026] 1 BLLR 95 (LAC) (30 September 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Labour Appeal Court South Africa: Labour Appeal Court You are here: SAFLII >> Databases >> South Africa: Labour Appeal Court >> 2025 >> [2025] ZALAC 40 | Noteup | LawCite sino index ## SAMWU obo Malatsi v South African Local Government Bargaining Council and Others (JA 64/23) [2025] ZALAC 40; [2026] 1 BLLR 95 (LAC) (30 September 2025) SAMWU obo Malatsi v South African Local Government Bargaining Council and Others (JA 64/23) [2025] ZALAC 40; [2026] 1 BLLR 95 (LAC) (30 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALAC/Data/2025_40.html sino date 30 September 2025 THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG Not reportable Case no: JA 64/23 In the matter between: SAMWU obo A N MALATSI                                         Appellant and SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL                                              FIRST RESPONDENT ARCHBALD NGOAKO MAFA N.O.                              SECOND RESPONDENT GERT SIBANDE DISTRICT MUNICIPALITY                THIRD RESPONDENT Heard : 30 September 2025 Delivered : 30 September 2025 Coram:        Mahalelo ADJP, Van Niekerk JA et Basson AJA JUDGMENT VAN NIEKERK, JA Introduction [1]  In 2009, the third respondent (municipality) employed the appellant as an intern. The appellant was subsequently employed in a permanent capacity as an accountant in the finance department. In 2012, the municipality commissioned a forensic investigation, after its bankers notified the municipality of possible fraudulent activity in relation to its bank account. The investigation revealed that between 31 January 2012 and 23 February 2012, several unsuccessful attempts had been made, from the appellant’s computer, to access the municipality’s cash focus internet portal. The investigation could not establish the identity of the person who had been operating the computer at the relevant time. The appellant was charged with failing to conduct himself with honesty and integrity, alternatively, fraud, in that he attempted to access the municipality’s bank account without authorisation. The appellant was found guilty of misconduct, and on 3 May 2013, the municipality dismissed him. [2]  The appellant disputed the fairness of his dismissal. After a failed conciliation, the dispute was referred to arbitration (the first arbitration). It was not in dispute during the arbitration proceedings that both the appellant’s password and that of his colleague were written on their desk calendars, and that the municipality’s auditors would also access employees’ computers, using the employees’ passwords. The arbitrator thus accepted the appellant’s version that it was customary within the department for employees to share passwords, and that it was not possible to conclude that it was the appellant who had attempted to access the municipality’s bank account. The arbitrator concluded that the employee had not committed the misconduct for which he had been dismissed, and that his dismissal was thus substantively unfair. [3]  In relation to remedy, the arbitrator found that, despite the substantive unfairness of the employee’s dismissal, the appellant ought not to have permitted unfettered access to his computer. By writing his password on his desk calendar, the employee had acted irresponsibly and in breach of the municipality’s IT policy. As the arbitrator put it, “ his hands are also not clean” . On this basis, the arbitrator ruled: ‘ ... he cannot be reinstated with arrear wages as per his request and the period from his dismissal up to his reinstatement must be treated as a period of unpaid suspension.’ [4]  The period between the date of dismissal and the date of reinstatement was some four months. In effect, by exercising a discretion to limit the retrospectivity of the order of reinstatement on account of the finding of guilty on the alternative, lesser charge of password-related negligence, the arbitrator applied a sanction of unpaid suspension for a period of four months, for that misconduct (the first arbitration award). The municipality sought to review the award. The Labour Court upheld the arbitration award and dismissed the review application. [5]  After the review application was dismissed, on 17 October 2017, the municipality reinstated the appellant. But that was not the end of the matter. Some two weeks later, the municipality charged the employee with gross dishonesty, alleging that he acted with the intention of deceiving the municipality by sharing his password with other employees and secondly, with a failure to comply with the municipality’s IT procedures by sharing his password with other employees, thus permitting his computer to be used for fraudulent activities. The appellant was found guilty of these charges and dismissed. The second arbitration award [6]  The appellant again challenged the fairness of his dismissal and again referred a dispute to arbitration (the second arbitration). On 3 May 2018, the arbitrator upheld the appellant’s dismissal, finding that it was substantively fair. Specifically, the arbitrator rejected a submission that the second enquiry was a repeat of the first – he held that the charges in the second disciplinary hearing were “ completely new charges which emanates from the same facts” . The arbitrator further held that the appellant “ should have known better with the position he was holding that with or without a policy of sharing of a password has a propensity of exposing the Respondent to financial risk and cannot hide behind the fact that it was practice” and that his dismissal was fair because “ gross dishonesty, more especially which exposes the employer to risk, goes to the heart of the employer and employee relationship” . Labour Court [7] On 20 June 2018, the appellant filed an application to review and set aside the second arbitration award. For reasons that are not apparent, the application was enrolled for hearing and argued only some five years later, on 23 February 2023. The Labour Court delivered its judgment some three weeks later and dismissed the application, with costs. [1] With the leave of the Labour Court, the appellant appeals against that order. [8] In the Labour Court, the appellant raised a single ground for review – he submitted that the arbitrator had unreasonably disregarded the fact that he had been sanctioned for the misconduct that formed the basis of his (second) dismissal, in the form of a period of unpaid suspension. Put another way, the employee contended that a reasonable decision-maker could not have found that it was fair for him to be penalised twice for the same misconduct of failing to safeguard his password – first, with the penalty of unpaid suspension imposed in terms of the first arbitration and secondly, with the penalty of dismissal imposed by the municipality after the second disciplinary hearing. [9] After a review of the authorities, the Labour Court concluded that an employer is not precluded from instituting disciplinary action a second time for conduct that arises from the same factual matrix, and that considerations of fairness ultimately determine whether the employer is entitled to institute disciplinary proceedings a second time. Each case had to be decided on its own merits, on consideration of all the surrounding circumstances, in the light of what is fair to both parties. [10] On the facts of the case, the Labour Court found that the charges that culminated in the second arbitration award were triggered by the proceedings that resulted in the first arbitration award. In those proceedings, the sharing of passwords was never an issue; evidence of a practice of sharing passwords emerged only when the employee gave evidence in the arbitration hearing. The charges of misconduct that formed the basis of the first and second disciplinary hearings were thus distinct, with the consequence that the principle of double jeopardy found no application. [11] To the extent that the employee submitted that the effect of the first arbitration award was to reinstate him subject to a lesser penalty for his password-related conduct (i.e. reinstatement subject to a period of unpaid suspension) and that he had, in effect, been found guilty of an alternative, lesser charge and sanctioned for it, the Labour Court rejected this submission. The Court stated: ‘ The Applicant’s interpretation and understanding of the outcome of the first arbitration are opportunistic and incorrect. Mr Malatsi was not charged for sharing his password or any ‘password-related conduct’, there was no alternative charge to that effect and therefore he could not have been found guilty of a non-existent alternative charge and the sanction of dismissal could not have been substituted with a lesser sanction, as punishment for the alternative charge. ’ [12] The Court found further that it had not been open to the arbitrator in the first arbitration hearing to formulate a charge different to the one brought against the employee at his disciplinary hearing and impose a lesser sanction for the alternative charge. The Court said: ‘ Mr Ntimbana could not find Mr Malatsi guilty of an alternative charge, which never existed at the time he had to adjudicate the fairness of Mr Malatsi’s dismissal and he could not substitute dismissal with a lesser sanction of unpaid suspension in respect of a non-existent charge. ’ [13] On this basis, the Court held that the arbitrator’s finding in the second arbitration that the principle of double jeopardy did not apply was reasonable, and upheld the award. Grounds of appeal [14] The appellant has raised three primary grounds of appeal. These are that the Labour Court erred by failing to appreciate that an administrative body (the arbitrator in the first arbitration) had made a finding regarding the employee’s conduct of sharing a password. Secondly, the employee submits that the Court erred in finding that an employer has the power to reopen a disciplinary hearing after a statutory administrative body has decided on a sanction for misconduct. In the absence of an order reviewing and setting aside the decision, the decision remains extant and binding. Thirdly, the employee submits that the Labour Court erred when it awarded costs, in that the review application for review was not vexatious, nor was there anything untoward in the conduct of the employee. Evaluation [15] The principles relating to an employer’s right to take disciplinary action in circumstances of what has been referred to as ‘double jeopardy’ are well-established. First, to the extent that ‘double jeopardy’ is derived from the principles of criminal law, its application in the workplace is to be approached with caution. In labour disputes, the ultimate yardstick is fairness. Thus, in BMW (SA) (Pty) Ltd v Van der Walt [2] and Branford v Metrorail Services (Durban) & others [3] this Court held that there was nothing to preclude an employer from conducting a second disciplinary enquiry into the same alleged misconduct where, in the circumstances, considerations of fairness so required. The Labour Court referred to both decisions. In BMW, this Court held: ‘… it is unnecessary to ask oneself whether the principles of autrefois acquit or res iudicata ought to be imported into labour law. They are public policy rules. The advantage of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law fairness and fairness alone is the yardstick.’ [4] [16] This Court emphasised that it would probably not be considered to be fair to hold more than one disciplinary enquiry, save in rather exceptional circumstances. [17] In Branford v Metrorail Services (Durban) and others ( Metrorail) , this Court stated: ‘ The concept of fairness, in this regard, applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case.’ [5] [18] In Mahlakoane v SA Revenue Service (SARS), [6] the charges in the second disciplinary hearing emanated from information subsequently supplied to SARS, and the charges in the second disciplinary hearing related to the falsification of the dates on the letters. This Court held that in these circumstances, the charges in the first and second disciplinary hearings were clearly distinguishable and that the principle of double jeopardy therefore did not apply. [19] This Court held: ‘ The principle of "double jeopardy" has, as its heart, fairness and this rule or principle simply entails that an employee cannot, generally, be charged again with the same misconduct that he or she was either found guilty or not guilty of. However, there are instances where breaches of this rule or principle can be condoned. The paramount consideration, however, is fairness to both sides.’ [7] [20] In the present instance, on the basis that a defence of double jeopardy applies only where the employer’s second attempt at instituting disciplinary proceedings against the employee relates to the same misconduct, the Labour Court distinguished the first and second disciplinary enquiries in that the charges in the respective enquiries were distinct and in particular, because the subject of the second enquiry was based on information acquired by the employer only during the first arbitration proceedings. [21] The Labour Court’s application of these principles cannot be called into question, nor can its conclusion that an employer: ‘… can institute disciplinary action a second time for conduct that arose from the same set of facts and that fairness will determine whether the employer is justified in instituting disciplinary action a second time.’ [8] [22] But what the Court ignored was the existence and effect of an unchallenged arbitration award that specifically imposed a sanction of unpaid suspension for the appellant’s password-related misconduct. The present case is thus distinguishable from Van der Walt , Branford and SARS . In those matters, the availability of further information was held fairly to warrant fresh charges of misconduct to be brought ( BMW and SARS ), or where the first disciplinary action taken was ill-informed, incorrect or misconceived ( Branford ). While it is correct that the municipality learned of the appellant’s password-related misconduct only at the first arbitration hearing and that, in the ordinary course, the convening of a second disciplinary enquiry in relation to that misconduct would not offend the applicable principles, what distinguishes the present case is the existence of an arbitration award issued consequent on the first arbitration. The Labour Court considered that the arbitrator in the first arbitration: ‘ could not find Mr Malatsi guilty of an alternative charge, which never existed at the time he had to adjudicate the fairness of Mr Malatsi’s dismissal and he could not substitute dismissal with a lesser sanction of unpaid suspension in respect of a non-existing charge.’ [9] [23] That conclusion may well be correct, but the fact remains that the arbitrator in the first arbitration did exactly that, i.e. substitute the penalty of dismissal with a lesser sanction of unpaid suspension for password-related misconduct, and that the award was found to have met the threshold for review. The terms of the arbitrator’s award, which are both unequivocal and in terms of section 143(1) of the LRA final and binding on the parties, are that the appellant committed an act of misconduct (albeit an act less serious than the one that resulted in his dismissal) and that he should be sanctioned for that lesser misconduct by way of a penalty of what amounted to the deprivation of four months’ remuneration. There can be no doubt that the sanction applied by the arbitrator and the second disciplinary hearing was in respect of the same misconduct, i.e., the appellant’s sharing his password with other employees and failing to take adequate steps to preserve the integrity of the IT system. In these circumstances, for the third respondent to charge the appellant with the same misconduct in the face of an arbitration award by which it was bound and to impose the sanction of dismissal for that misconduct was substantively unfair. [24] In summary: by ignoring the binding effect of the first arbitration award, the arbitrator in the second arbitration committed a material irregularity, with the result that the decision to which he came when he upheld the appellant’s dismissal was a decision to which no reasonable decision-maker could come to on the available evidence. The order granted by the Labour Court thus stands to be set aside and replaced with an order in terms of which the review sought by the appellant is upheld. Costs [25] The appeal was unopposed. Although the appellant’s counsel submitted that an order for costs was appropriate on the basis of the municipality’s mala fides , this is not a matter that falls into the category of the exceptional, so as to warrant a dperture from the ordinarily applicable rule. The requirements of the law and fairness are best satisfied by the appellant, assisted as he is by the trade union of which he is a member, bearing his own costs. Order 1. The appeal is upheld, with no order as to costs, and the order of the Labour Court issued on 13 March 2023 is set aside. 2. The Labour Court’s order is substituted by the following: ‘ 1.  The arbitration award issued by the respondent on 3 May 2018 under case number MPD 051705 is reviewed and set aside. 2. The arbitration award is substituted by the following: a.  The applicant’s dismissal was substantively unfair. b.  The applicant is reinstated in his employment with effect from the date of his dismissal in 2016. 3. There is no order for costs.’ André v abour Appeal Court Mahalelo ADJP et Basson AJA APPEARANCES: FOR THE APPELLANTS:             Adv Zikalala, instructed by Ndou Attorneys FOR THE RESPONDENTS:         No appearance [1] The Labour Court’s judgment is reported as SA Municipal Workers Union on behalf of Malatsi v SA Local Government Bargaining Council & others (2023) 44 ILJ 1317 (LC); [2023] 6 BLLR 581 (LC). [2] (2000) 21 ILJ 113 (LAC); [1999] ZALAC 28. [3] (2003) 24 ILJ 2269 (LAC); [2004] 3 BLLR 199 (LAC). [4] BMW at para 12. [5] Metrorail at para 14. [6] (2018) 39 ILJ 1034 (LAC); [2018] 4 BLLR 337 (LAC). [7] Ibid at para 27. [8] South African Municipal Workers Union obo Malatsi v South African Local Government Bargaining Council [2023] 6 BLLR 581 (LC); [2023] ZALCJHB 63 (LC) at para 41. [9] Ibid at para 70. sino noindex make_database footer start