John Taolo Gaetsewe District Municipalirty v SAMWU obo Mathabathe and Others (JA108/2022) [2025] ZALAC 67; (2026) 47 ILJ 157 (LAC) (21 October 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 67 | Noteup | LawCite sino index ## John Taolo Gaetsewe District Municipalirty v SAMWU obo Mathabathe and Others (JA108/2022) [2025] ZALAC 67; (2026) 47 ILJ 157 (LAC) (21 October 2025) John Taolo Gaetsewe District Municipalirty v SAMWU obo Mathabathe and Others (JA108/2022) [2025] ZALAC 67; (2026) 47 ILJ 157 (LAC) (21 October 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALAC/Data/2025_67.html sino date 21 October 2025 THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG Reportable Case no. JA 108/2022 In the matter between JOHN TAOLO GAETSEWE DSISTRICT MUNICIPALITY Appellant and SAMWU obo T MATHABATHE                                                           First Respondent THE SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL Second Respondent COMMISSIONER P M VENTER Third Respondent Date heard:            16 September 2025 Date delivered: Coram          Nkutha-Nkontwana JA, Chetty et Tokota AJJA This judgment was handed down electronically by circulation to the parties’ representatives by email, published on the Labour Appeal Court website, and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 21 October 2025 JUDGMENT TOKOTA, AJA Introduction [1]  Mr Mathabatha was employed by the appellant with effect from 1 July 2002. On 17 June 2015, he was dismissed on the grounds of misconduct. The first respondent, acting on behalf of Mr Mathabatha, who is one of its members, referred a dispute of unfair dismissal to the second respondent, the South African Local Government Bargaining Council (the Bargaining Council) for conciliation and arbitration. When conciliation failed and the dispute remained unresolved, the dispute was referred to arbitration. The second respondent (the arbitrator) found that the dismissal was procedurally fair but substantively unfair. He ordered that the appellant should compensate Mr Mathabatha (the employee) for a period equal to four months of his salary. [2]  Dissatisfied with the result of the arbitration, the first respondent took the matter on review before the Labour Court. The Labour Court (per Nkosi AJ) reviewed and set aside the award. The Labour Court held that the dismissal was both substantively and procedurally unfair. Although the order of the Labour Court is not elegantly worded, the learned Judge must have intended to make an order that the appellant should reinstate the employee into the position which he occupied before his dismissal. It held further that the appellant should pay the costs of the application for review. This appeal is with leave of the Labour Court. Factual background [3]  The employee was employed by the appellant as a Manager: Rural Development effective from 1 July 2002. He became a member of the first respondent, hence his dispute of unfair dismissal was handled by it. [4]  On 12 March 2015, he was served with the notice to attend a disciplinary enquiry of misconduct on seven counts of gross insubordination and one count of poor work performance. Although it is not clear from the evidence of the chairperson who conducted the disciplinary enquiry, it appears that the employee was found guilty on four counts of gross insubordination and on one count relating to poor work performance. Two charges were withdrawn. The employee was then dismissed. [5]  The first respondent then referred the dispute of unfair dismissal on behalf of the employee to the Bargaining Council.  The conciliation failed to resolve the matter as a result of which it was referred to arbitration. The arbitrator found that the employee contravened the employer’s disciplinary code and was guilty on charges 1, 2, 4 and 5 all of which related to gross insubordination and not guilty on charge 8 as he ruled that this was a splitting of charges. He found that the employee advanced no excusable grounds for non-compliance with lawful instructions given to him. [6]  The arbitrator found that the insubordination was not gross and therefore did not warrant a dismissal. He took into account the fact that the employee had a clean record of 13 years’ service; that the appellant was not seriously prejudiced as the information required eventually reached the Council, albeit that it was compiled by the employee’s supervisor (Mr Teise). He concluded that the sanction of dismissal was too harsh. He accordingly found that the dismissal was substantively unfair. He concluded that the disciplinary enquiry process was procedurally fair. [7]  Having found that the dismissal was substantively unfair, the arbitrator decided that he would not order reinstatement or re-employment as envisaged in terms of s 193(1) of the Labour Relations Act [1] (the LRA). He gave his reasons for non-reinstatement as follows: the employee was not remorseful; the employee sent an email to his supervisor which was derogatory in its language in that he insulted and threatened him. He held the view that in the circumstances it would not be fair or in the interests of justice to continue the employment relationship with the appellant. He then ordered that the appellant should compensate the employee in the amount of R205 236, it being equal to four months’ employees’ salary. [8]  The first respondent instituted review proceedings seeking an order from the Labour Court reviewing and setting aside the arbitrator’s award. For reasons not apparent from the judgment, the Labour Court reviewed and set aside the award and substituted it with the following order. ‘ 1.1      The dismissal of the applicant is both substantively and procedurally unfair; 1.2       The first respondent John Taolo Gaetsewe District Municipality is to reinstate the applicant into the position he occupied prior to his dismissal; 1.3       The applicant is entitled to full back pay from date of dismissal; 2.The first respondent is ordered to pay the costs of this application.’ I now proceed to analyse the Labour Court’s basis for the order it made, but first I need to deal with the reinstatement of the appeal. Reinstatement of the appeal [9]  The judgment and order of the Labour Court was delivered on 5 October 2021. An application for leave to appeal that judgment was granted by Waglay JP on 21 September 2022.  In terms of the Rules of this Court, the record of appeal must be delivered within sixty days of the date on which leave to appeal was granted. [2] Therefore, the record of appeal ought to have been delivered on 14 December 2022.  If the record is not delivered within the prescribed period, the appellant is deemed to have withdrawn the appeal. [3] The record was delivered in 2024, almost two years later. Consequently, the appeal was deemed to have been withdrawn. [10]  Seeing that the appellant was not doing anything to prosecute the appeal, contempt proceedings were instituted against the appellant. The hearing of the contempt of Court application was set down for the 2 nd of August 2024. On the eve of the date of the hearing of the contempt proceedings, the appellant launched an application for reinstatement of the appeal. [11]  In light of the above, the appellant was obliged to apply for the reinstatement of the appeal. The explanation for the delay, as contained in the application for condonation, is poor. The only reason why it took so long to deliver the record was because it was incomplete. Although the record is still incomplete, no explanation was proffered as to what happened to the missing parts that could not be traced and why it took so long to collate the record. [12]  In considering whether or not the delay ought to be overlooked, factors such as the right of the parties to have their dispute resolved by an independent and impartial court or Tribunal in terms of s 34 of the Constitution of the Republic of South Africa, Act 108 of 1996 the importance of the matter, the prospects of success of the appeal, the potential prejudice to the parties, including the consequences of not granting or of granting the relief sought and of not finalising the appeal on its merits, should be taken into consideration to decide whether or not to entertain the appeal, despite the delay. [4] [13]  In terms of s 167(3) of the LRA, ‘[t]he Labour Appeal Court is a superior court that has authority, inherent powers and standing, in relation to matters under its equal to that which the Supreme Court of Appeal has in relation to matters under its jurisdiction.’ Where an injustice will occur if the matter is not entertained this Court has a duty to overlook the delay notwithstanding the lack of reasonable and satisfactory explanation, especially in the face of an incompetent order of the Court a quo. In this matter, it is in the interests of justice that the appeal be reinstated. The order of the Labour Court is incompetent as will be demonstrated hereunder. There are good prospects of success and the appellant will be prejudiced if the order is allowed to stand. In any event, none of the parties would be able to enforce the order as it stands. Accordingly, the appeal is hereby reinstated. The treatment of the review in the Labour Court [14]  As pointed out in paragraph 13 above, the order of the Court a quo itself is vague and embarrassing. Paragraph 1.1 of the order states that the “applicant’s” dismissal was “both substantively and procedurally unfair”. The applicant is, in fact, a trade union and was never dismissed. It was the employee who was dismissed. A trade union is not an agent of its members; it merely acts either in its own interests or in the interests of its members. Paragraph 1.2 of the order states that “the applicant” is to be reinstated into the position he occupied prior to the dismissal. Here too, the union cannot be reinstated in the workplace of the appellant. It instituted the review application in the interests of its member and not with a view to be reinstated in any position. Paragraph 1.3 thereof says “the applicant is entitled to full back pay from the date of his dismissal”. This too cannot be enforced. As it stands, the employee does not stand to benefit from the order of the Labour Court. [15]  I am not sure whether the Learned Acting Judge, who heard the matter, was under pressure or not. There are no reasons for the order whatsoever. In a long line of authorities, it has been emphasized that reasons must be given for any decision made by the court or an administrative functionary. [16]  The duty to give reasons entails a duty to rationalise the decision. Reasons help to structure the exercise of discretion.  The necessity to explain why a certain decision was reached requires one to address one’s mind to the decisional referents which ought to be taken into account. Furnishing of reasons satisfies an important desire on the part of the affected individual to know why a decision was reached in order to justify a fair process. Rational criticism of the decision can only be made when the reasons for it are known. Finally, reasons may serve a genuine educative purpose which may enable the individual to correct his conduct for the future applications [5] . [17]  In Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd [6] it was stated that the purpose of reasons is to “…enable a person aggrieved to say in effect even though I may not agree with it, I now understand why the decision went against me.  I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.” [18]  The order made by the Labour Court is not informed by any analysis of either facts or law. No basis has been laid as to why it was concluded that the dismissal was procedurally unfair. With regard to the conclusion that the dismissal was substantively unfair the learned Acting Judge said: ‘In this matter the second respondent found that the Applicants were substantively and unfairly treated but failed to re-instate them. This was a deviation from the logical conclusion which on its own turned out to be an unfair dismissal.’ It is not clear which applicants were ‘ substantively and unfairly treated’ whom the arbitrator ‘failed to reinstate’. [emphasis added] [19]  It has been said of the well-established test on the interpretation of court orders : ‘ The starting point is to determine the manifest purpose of the order.  In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents.  As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.” [7] In light of the lack of reasons for the order the intention of the Court a quo cannot be established. Accordingly, this is another aspect which count against the order being allowed to stand regardless of the merits of the case. [19]  In view of the above this Court must exercise its inherent power to entertain the review application in the interests of justice because to do so will bring about finality of the dispute. This is what the Constitutional Court had said about the inherent power [8] : ‘ [T]he power conferred on the High Courts, Supreme Court of Appeal and this Court in section 173 is not an unbounded additional instrument to limit or deny vested or entrenched rights. The power in section 173 vests in the judiciary the authority to uphold, to protect and to fulfil the judicial function of administering justice in a regular, orderly and effective manner. Said otherwise, it is the authority to prevent any possible abuse of process and to allow a Court to act effectively within its jurisdiction.” Analysis [20]  The employee in this matter was found guilty of a misconduct of insubordination. The arbitrator found that the insubordination was not gross and therefore the dismissal was not warranted. He took into account the fact that the employee had served 13 years with a clean record. He was not convinced that the employer was seriously prejudiced. He was of the view that the dismissal was not appropriate. However, he decided not to order reinstatement or re-employment. [21]  The decision not to reinstate was based solely on the conduct of the employee during the process. The arbitrator refers to an email which the employee addressed to his supervisor. In that email, he uttered derogatory words which indicated insolence on his part. I may add that even at the disciplinary hearing the employee and his representative walked out when things did not go their way even before the commencement of the hearing. They did not bother to explain why they were not in a position to participate in the process. In my opinion, this was a sign of repudiation of his right to place his side of his story before the chairperson of the disciplinary enquiry. [22]  The arbitrator held that, in light of his disrespectful conduct towards his senior, it would not be in the interests of justice and fairness to expect the respondent to continue the relationship. He was of the opinion that, even though he was not charged for threatening behaviour or intimidation, his conduct during this period had to be considered. Consequently, he reasoned that reinstatement or re-employment would not be practical. It was clear to him that the employee had no respect for his authority. [23]  Section 193 of the LRA governs the situation in the event the employer’s dismissal is found to be substantively unfair. The starting point is that the court or the arbitrator must make an order for reinstatement or re-employment unless factors contained in s 193(2) (a)-(d) are present. These factors include, a case where the employee does not wish to be reinstated or re-employed; where the circumstances surrounding the dismissal are such that the employment relationship would be intolerable; where reinstatement or re-employment would not be reasonably practical. [9] [24]  The arbitrator correctly found that the language used by the employee in the email addressed to his supervisor displayed disrespectfulness.  In CCAWUSA and Another v Wooltru Ltd t/a Woolworths (Randburg), [10] the Court equated insolence with impudence, cheekiness, disrespect or rudeness and distinguished 'mere' insolence from insubordination but then opined that the distinction is overly technical as both forms of misconduct give expression to a repudiation of authority, which rests as much on respect as it does on obedience.’ I agree with the arbitrator that the conduct of the employee was uncalled for. It clearly displayed his insolence and insubordination to his authority. There was evidence during the arbitration that Mr Teise, his supervisor, was once his subordinate when he, the employee, acted for some time in the same position. [25]  In reaffirming the test enunciated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others , [11] this Court in Fidelity Cash Management Services v CCMA and Others [12] expressed the following view: ‘ It will often happen that, in assessing the reasonable or otherwise of an arbitration award or other decision of a CCMA commissioner, the court feels that it would have arrived at a different decision of finding to that reached by the commissioner. When that happens, the court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the commissioner and that the system would never work if the court would interfere with every decision or arbitration award of the CCMA simply because it, that is the court, would have dealt with the matter differently. Obviously, this does not, in any way, mean that decisions or arbitration awards of the CCMA are shielded from the legitimate scrutiny of the Labour Court on review.’ I add here to say this is the main distinction between appeals and reviews. In the absence of any gross irregularity, the court will not interfere. [26]  Furthermore, in Mashaba v University of Johannesburg and Others [13] this Court said: ‘ The role of a review court is not to pronounce on the correctness or otherwise of the decision arrived at by the commissioner. The test, for purposes of review proceedings, as opposed to that of an appeal, is that, objectively speaking, there must be a rational connection between the outcome or the decision and the facts on which such decision is based.’ [27]  In terms of s 193(1) of the LRA: ‘ If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may- (a)        order the employer to reinstate the employee from any date not earlier than the date of dismissal; (b)        order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c)       order the employer to pay compensation to the employee.’ It is clear from the provisions of the section that the arbitrator has a discretion either to order reinstatement, re-employment or compensation. In this case, the arbitrator, unlike the Labour Court, even considered the length of service of the employee and the possibility of securing employment, but came to the conclusion that the circumstances of the case were such that it was not in the interests of justice to make an order for reinstatement or re-employment. He was permitted in terms of the law to order compensation as he did. This Court is not entitled to interfere simply because it would not have done as he did. He committed no irregularity or unlawfulness. [28]  It has been argued on behalf of the appellant that the primary remedy to be considered in terms of s 193(2) of the LRA is that the arbitrator must order reinstatement or re-employment unless circumstances mentioned in the section exist, in which case compensation may be considered. I agree. However, where the arbitrator has considered all the evidence and has come to the conclusion that such order would not be appropriate by virtue of intolerability of the relationship, the court will not readily interfere. [14] [29]  The high mark of intolerability is heightened only where the employee has been exonerated of the wrong doing of all the charges. In this case, the employee has not been exonerated but found guilty. From his evidence, even though there was some concession that the reports were not submitted, he persisted that he had done nothing wrong. In my view, the decision of the arbitrator falls within the bounds of reasonableness and I am not persuaded that it should be interfered with. Costs [30] Counsel for the appellant submitted that costs will be left in the discretion of the Court. Counsel for the respondent submitted that the appeal should be dismissed with costs. Costs in labour related matters are considered in light of law and fairness. The appellant has achieved success in respect of the merits but was completely at fault for the deeming provision relating to the withdrawal of the appeal. The judgment and the order of the Labour Court required to be corrected by this Court. I do not consider an award of costs as appropriate in the matter. [31]   In the result, the following order will issue: Order: 1.  The appeal succeeds with no order as to costs. 2.  The order of the Labour Court is set aside and substituted with the following: “ The application for review is dismissed with no order as to costs.” B R Tokota Acting Judge of the Labour Appeal Court of South Africa Nkutha-Nkontwana JA et Chetty AJA concur. APPEARANCES: For the Appellant:                        H Mutenga Instructed by Koikanyang Attorneys For the Respondent:                    T Qhali Instructed by Tatie Attorneys [1] Act 66 of 1995, as amended. [2] Rule 5 (8) of the Rules Relating to the Conduct of the Proceedings of the Labour Appeal Court. [3] Rule 5 (17) of the Rules Relating to the Conduct of the Proceedings of the Labour Appeal Court. [4] City of Johannesburg Metropolitan Municipality and Others v Independent Municipal and Allied Trade Union and Others (2017) 38 ILJ 2695 (LAC) at para 76; Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC). [5] Baxter Administrative Law p.228; S v Machaba 2016 (1) SACR 1 (SCA); [2015] 2 All SA 552 (SCA); [2015] ZASCA 60) at para 63; Gavric v Refugee Status Determination Officer and others 2019 (1) SA 21 (CC); 2019 (1) BCLR 1 (CC) [2018] ZACC 38 para 69 [6] 2003 (6) SA 407 (SCA) at 428 A–C; Nkondo and Others v Minister of Law and Order and Another; Gumede and Others v Minister of Law and Order and Another; Minister of Law and Order v Gumede and Others 1986 (2) SA 756 (A) at 772I - J [7] Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012] ZASCA 49 ; 2013 (2) SA 204 (SCA) ( Finishing Touch 163 ) at para 13.  See also Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A). [8] [2006] ZACC 15 ; 2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC) ( South African Broadcasting Corp ) at para 90.; S.167(3) of the LRA also confers an inherent power in the Labour Appeal Court. [9] Toyota SA Motors (Pty) Ltd v CCMA [2015] ZACC 40 ; (2016) 37 ILJ 313 (CC); 2016 (3) BCLR 374 (CC) at para 135. [10] (1989) 10 ILJ 311 (IC). [11] [2007] 12 BLLR 1097 (CC). [12] [2008] 3 BLLR 197 (LAC) at para 98. [13] (2023) 44 ILJ 156 (LAC); [2023] 2 BLLR 119 (LAC) at para 19. [14] Booi v Amathole District Municipality and Others [2022] 1 BLLR 1 (CC); (2022) 43 ILJ 91 (CC) ; 2022 (3) BCLR 265 (CC) at para 43. sino noindex make_database footer start