Musawenkosi Mkhwanazi v Tokiso Dispute Settlement (Pty) Ltd (JR1575/21) [2024] ZALCJHB 271 (5 July 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1575/21

In the matter between:

MUSAWENKOSI MKHWANAZI

Applicant

and

TOKISO DISPUTE SETTLEMENT

(PTY) LTD

First Respondent

TANYA VENTER N.O.

Second Respondent

TRANSNET SOC LIMITED

Third Respondent

Heard: 06 June 2024

Delivered: 05 July 2024

JUDGMENT

BODA, AJ

[1] This is a application to review and set aside a pre-dismissal arbitration award issued by the second respondent under the auspices of the first respondent. The review has been launched on the basis of the traditional review test as enunciated in Sidumo and Another v Rustenburg Platinum Mines Ltd and others[1].

[2] I directed the parties to the decision in Volkswagen SA (Pty) Ltd v Koorts NO and others [2] and to consider if this was the correct review test to be applied.

[3] In Volkswagen the Court found that the parties could validly charge the arbitrator with the injunction to hear the matter as would a Commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA). The parties could not however review their matter on broader grounds than those in section 33 of the Arbitration Act[3] and could not prescribe to the Labour Court how it should review the award.[4] The Court was bound to follow the narrow grounds set out in section 33 of the Arbitration Act, and to act in accordance with the legal position as set out in Telcordia Technologies Inc v Telkom SA Ltd[5] and Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another[6].

[4] The parties are ad idem that Volkswagen is distinguishable from this case. I agree with the parties and am indebted to both counsel for their helpful and able submissions on this aspect. There is no private arbitration agreement entered into between the parties and Tokiso is (and was at the relevant point in time) an accredited organisation/agency to conduct an inquiry by arbitrator in terms of section 188A of the Labour Relation Act[7] (LRA).

[5] Section 188A(8) of the LRA provides that the ruling of an arbitrator in an inquiry has the same status as an arbitration award, and that the provisions of sections 143 to 146 of the LRA apply.

[6] Accordingly, section 145 of the LRA, review of arbitration awards and the review test as set out in Sidumo[8] would find application .

[7] Sidumo itself correctly distinguished between compulsory arbitrations and private arbitrations in the following terms:

“Compulsory arbitrations in terms of the LRA are different from private arbitrations. CCMA Commissioners exercise public power which impacts on the parties before them. In the language of the pre-constitutional administrative law order, it would have been described as an administrative body exercising a quasi-judicial function. I conclude that a commissioner conducting a CCMA arbitration is performing an administrative action.”[9]

[8] As a commissioner performs a public administrative function, section 145 of the LRA must be read to ensure that administrative action by the CCMA, or an accredited agency such as Tokiso under section 188A of the LRA, is lawful, reasonable and procedurally fair.

[9] I accordingly proceed to determine the application on this basis.

The charges

[10] Mr Mkhwanazi, as an employee of Transnet, was subject to the Code of Ethics, the Procurement Procedures Manual, National Treasury

instruction note as well as the Public Finance Management Act[10] (the PFMA).

[11] Mr Mkhwanazi was charged with the following allegations:

“CHARGES

It is alleged that you have conducted yourself in a grossly negligent and/or unbecoming manner by breaching:

i. your common law duties to act in the best interests of your employer; and/or

ii. clauses 11.2, 11.2.2, 11.3.1 and 11.3.2 of the Transnet Code of Ethics; and/or

iii. clause 14.3 of Transnet’s Procurement Procedures Manual (PPM); and/or

iv. paragraph 3.9.4 of the National Treasury Instruction Note on Enhancing Compliance Monitoring and Improving Transparency and Accountability in Supply Chain Management; and/or

v. Transnet’s PFMA Guideline dated 24 May 2013; and/or vi) section 57(c) of the Public Finance Management Act 1 of 1999; and/or

vi. Transnet’s 2015 Procurement Procedures Manual; in that:

1.1 Charge

1 1.1. You were involved in and/or played a role in the irregular procurement of three agricultural tractors during on or about March 2019 under RFQ No GSM/18/11/1699 for the “Supply and delivery of agricultural tractors to (3) three district municipalities in Kwa-Zulu Natal for a period of (3) three months”. Your conduct in this regard was displayed as follows:

1.1.1.1. On 7 October 2018, you approved a request to go to market to purchase agricultural farming equipment in the form of (3) three tractors with an allocated budget of R 1 740 000 (one million seven hundred and forty thousand Rand) from the Socio-Economical Infrastructure and Development budget. 1.1.1.2 As a result of your approval, (3) three tractors were purchased from Semphakwe Trading and Projects. The (3) three tractors purchased were 2- wheel drive tractors and did not have air-conditioned cabs.

1.1.1.3 The procurement of the three tractors was approved by you despite there being no procurement plan.

1.1.1.4 The tractors were purchased without proper planning regarding the type of tractors required; the manner and costs associated with the implementation of the farming projects; and the management of the tractors and farming projects.

1.1.1.5 As a result of the purchase of the (3) three tractors, Transnet has incurred irregular, fruitless and wasteful expenditure in the amount of R 1 363 319.25 (one million three hundred and sixty-three thousand three hundred and nineteen Rand and twenty-five cents).

1.2 Charge 2

1.2.1 During on or around June 2019, you were involved in and/or authorised the purchase of diesel from Semphakwe Trading Projects in the amount of R17 896.20 (seventeen thousand eight hundred and ninety-six Rand, twenty cents) for the three (3) tractors. The procurement of the diesel was irregular and/or contrary to the procurement process in that:

1.2.1.1 It was contrary to the provisions of the PPM, read together with the Procurement Directive; and/or

1.2.1.2 You were aware of, or ought to have been aware of, that it was irregular to directly approach a supplier for the provision of goods or services without the involvement of the procurement department; and/or

1.2.1.3 Your involvement and/or authorisation in procuring the diesel has resulted in Transnet incurring irregular expenditure in the amount of R17 896.20.

1.3 Charge 3

1.3.1 During the period June 2018 to December 2019, and you conducted yourself in an improper and unbecoming manner in relation to Hydraform (Pty) Ltd (Hydraform), a potential bidder in that:

1.3.1.1 Between or during the period 27 June 2018 to 28 November 2018, you engaged the Managing Director of Hydraform regarding the supply of suitable building brick machinery for Transnet as well as for yourself in your personal capacity. When RFQ GSM/18/11/1700 was issued by Transnet on or about 18 January 2019, for the supply and delivery of three building brick machines to Transnet Community Centres, a bid was received from Hydraform. You failed to disclose your potential conflict of interest as a result of your prior interactions in your personal capacity with Hydraform.

1.3.1.2 During or on about January 2019, Transnet received bids from potential bidders under RFQ GSM/18/11/1700, including from Hydraform. Hydraform did not meet the B-BBEE requirements in the bid specification document and you therefore proposed the removal of the B-BBEE requirements in the bid specification document in order to accommodate Hydraform.

1.3.1.3 During on or about January 2019, you attempted to influence Transnet employees to appoint Hydraform as a supplier.

1.3.1.4 On or around 18 July 2019, a non-award was issued in respect of RFQ GSM/18/11/1700. Thereafter, you caused an interlocking specification to be included in a new RFQ for the supply and delivery of three building brick machines to Transnet Community Centres. The interlocking specification was not conducive to equitability, competitiveness and fairness as Hydraform has a monopoly on interlocking machines and as a result, the successful bidder would be required to purchase machines from Hydraform.

1.4 Charge 4

4.1 Gross insubordination and/or failure to comply with Transnet’s Lifestyle Audit Policy in that on 15 May 2020 and 19 May 2020 the Group Chief Executive of Transnet issued a memorandum in terms of which senior employees in grades A, B, and C were required to subject themselves to a lifestyle audit and provide information to an external service provider appointed to conduct the lifestyle audits on behalf of Transnet by no later than 25 May 2020, which deadline was later extended to 20 July 2020. You failed and/or refused to comply with this instruction.”

[12] Mr Mkhwanazi pleaded not guilty to all the allegations.

[13] The Employer led the evidence of:

13.1 Werner Bouwer, Director at Nexus Forensic Services (Pty) Ltd;

13.2 Nomasomi Mgandela, the Senior Manager – Procurement;

13.3 Willie Uys, Administration Manager at Semphakwe Trading and Projects CC;

13.4 Amita Laloo, Asset Account, at Transnet Group Finance;

13.5 Nomasomi Mgandela, Senior Manager: Procurement;

13.6 Nomvuzo Nodada, Assistant Departmental Manager;

13.7 Erich Neethling, the Executive Manager for Investigation and Fraud Risk Management; and

13.8 Sue Albertyn, General Manager of the Department of Labour Law and Consequence Management.

[14] Mr Mkawanazi elected not to call any witnesses.

Hearsay

[15] The first three charges against Mr Mkhwanazi stem from the Nexus investigation that preceded the dismissal.

[16] The applicant’s first ground of review is that the arbitrator did not apply her mind in admitting the evidence of Bouwer (forensic investigator) and Uys (bidder), as the evidence is hearsay, and as such she committed a gross irregularity.

[17] It is not so that the arbitrator did not apply her mind to the issue. Her award records as follows:

“21. The first three charges against Mr Mkhwanazi stem from the Nexus investigation. It was submitted on behalf of the employee that Mr Bouwer’s evidence should be rejected as hearsay. The content of section 3 of the Law of Evidence Amendment Act 45 of 1988 is well known to the parties’ representatives and need not be recited. It is common for a forensic investigator to present evidence at inquiries, arbitrations and disciplinary enquiries where the charges result from a forensic investigation. The evidence provided by the forensic investigator is by its nature hearsay in that they have investigated matters and their report and conclusions are based on documentary evidence, and submissions made by witnesses. Forensic investigators’ evidence in matters such as this give context to the charges and often provide insight into why their conclusions were reached. This evidence assists a presiding officer to navigate what is often voluminous evidence. Mr Bouwer is also an external, independent forensic investigator and Nexus is a credible forensic company appointed from Transnet’s panel of forensic companies. It is in this context that Mr Bouwer’s evidence is admissible”

[18] I cannot fault this finding in the least. In Cawood v Two Rivers Platinum Mine and others [11] the Court held thus:

“In relation to Mr. Swanepoel, the applicant contends that the Commissioner erred in being guided by the evidence of Mr. Swanepoel because Mr. Swanepoel was not present or party to most of the issues he testified to. Mr Swanepoel was the investigating officer and was called to give evidence in his capacity as such. By design, investigators rely on evidence gathered during the investigation. They are seldom party to the issues they investigate and later testify on at an enquiry and/or court sitting. Their duty is to investigate and present their findings and/or recommendations to the presiding officer. Therefore, the applicant’s argument that Mr. Swanepoel was not present or party to most od the issues he testified about is untenable and falls to be rejected.”

[19] The Labour Court made it clear in Cawood that the evidence of an investigating officer cannot be regarded as hearsay evidence. The award of the arbitrator aligns to this reasoning.

[20] Bouwer, as the lead forensic investigator, assisted the section 188A inquiry by presenting his findings and recommendations arising from such investigation.

[21] In any event, both Bouwer and Uys’s evidence were corroborated by other witnesses during the section 188A inquiry.

[22] As a result this ground of review has no substance.

Concessions

[23] The next ground of review relies on alleged concessions made by witness under cross examination allegedly denying irregularities.

[24] The existence or non-existence of procurement irregularities is a legal conclusion derived from objective facts and an arbitrator is not bound by the views of a witness.

[25] It is clear that the arbitrator considered the objective evidence before her in relation to charges 1 to 3 and found on the facts that irregularities were shown.

[26] On charge 1 the arbitrator held thus:

“43. In summary, the lack of a procurement plan for the purchase of the tractors, and the lack of even the most rudimentary planning, manifested in several ways:

43.1. The two-wheel-drive tractors were inadequate for the projects that they were intended.

43.2. The tractors were bought from the OPEX budget yet was required to be registered as an asset and should have been purchased through a predetermined and approved CAPEX budget.

43.3. There was no plan on how the tractors were to be registered and who would hold ownership thereof. It is the responsibility of the end-user, in this case, Mr Mkhwanazi and Mr Maharaj, to register the asset if it is to remain the property of Transnet.

43.4. There was no preparation around the delivery of the tractors, and the tractors were not delivered to the addresses specified in the bid documents.

43.5. There was no planning around who would be driving the tractors and who would have the day to day responsibility for the tractors, and therefore who required training.

43.6. Although there is a warranty on the tractors that provides for servicing every 300 hours in the first year, Semphakwe has not been contacted for these services to maintain the tractors.

43.7. There was no planning concerning the running costs of the tractors, including oil and diesel.

44. In the absence of any evidence from Mr Mkhwanazi, the evidence is overwhelming that the specifications of the tractors were materially changed but the successful bidder delivered on the initial specification, resulting in potentially undue prejudice to bidders. There was no planning in place on the ownership of the tractors, what was to happen once the tractors were acquired, including the delivery of the tractors, maintenance.”

[27] On charge 2 the arbitrator held thus:

“54. In relation to this charge, I find:

54.1. The procurement of the diesel, containers and pumps is contrary to the procurement procedure;

54.2. Mr Mkhwanazi was reasonably aware that this procedure was irregular; and

54.3. Mr Mkhwanazi was involved in the purchase of the diesel, containers and pumps insofar that he knew about the acquisition and failed to prevent the irregular expenses.

55. I find Mr Mkhwanazi guilty of being involved in the irregular purchase of diesel, containers and pumps to the amount of R17 896.20. This was in breach of the PPM, the National Treasury Instruction and the PFMA.”

[28] On charge 3 the arbitrator held thus:

“ 78. In relation to this charge, I conclude:

78.1. The correspondence between the Mr Mkhwanazi and Hydraform demonstrates that there was already a relationship with this bidder, and a clear interest in purchasing a bricklaying machine for himself. He did not disclose this potential conflict of interest as required.

78.2. He directed Ms Mgandela to remove the B-BBEE requirements because Hydraform had been disqualified because of it.

79. Mr Mkhwanazi’s actions are in breach of his common law duties to act in the interests of Transnet, the Code of Ethics, the PPM and the PFMA.

80. Mr Mkhwanazi is guilty of charge 3 insofar that he failed to disclose a potential conflict of interest and he interfered in the process by directing Ms Mgandela to remove the B-BBEE requirements for the bid.”

[29] All of these findings are justified and none of the alleged concessions by any witnesses unseats any of them.

Conflict of interest

[30] Charge 3 concerned the applicant’s failure to disclose a potential conflict of interest in respect of a potential supplier and bidder, Hydraform.

[31] The arbitrator found on this score as follows:

“Charge 3: Purchase of Building Brick Machinery / Relationship with Hydraform

56. On 27 June 2018, Ms Nazlie Dickson, the Managing Director of Hydraform South Africa (Pty) Ltd submitted a proposal to Mr Mkhwanazi. The email read:

“Good Morning Musa

Thanks for the call this morning.

Please find the proposal for Transnet reattached for your perusal.

I’ll call you a little later to discuss the proposal and how it could fit into your program and projects.

Please don’t hesitate to contact me should you have any questions.”

57. On 03 October 2018, Ms Cynthia Gijima, Head of Transnet CSI, submitted a memorandum requesting approval to go to market for three building brick machines. Annexure A thereto provides that the scope of the work is to provide three mobile brick and paving making interlocking blocks. Mr Mkhwanazi approved it on 04 October 2018.

58. On 28 November 2018, Ms Dickson from Hydraform addressed an email to Mr Mkhwanazi, copied to ‘accounts@hydraform.com’, wherein she attached the pricelist and a document titled “HF Finance Facilities”. She wrote :

“Afternoon Musa,

Thank you for the earlier telephone call. As discussed, attached is the full interlocking product catalogue. I recommended the M7M1 for the Transnet community projects but for your own there are other options available in diesel or electric, mobile or stationary and varying production capacities.

I have also attached the various finance options available. Monty from our accounts department will be very happy to assist and guide you on the right option for you and will assist you with the applications as required. Monty, please will you chat with Musa?

In the meantime Musa, please will you follow up with your procurement department and see what we can do to get a copy of the RFQ and ensure we bid.

Let me know if you have any other questions.”

59. On 29 November 2018 Mr Monty (Itumeleng) Mothobi emailed Mr Mkhwanazi, and copied Mr Quide Makwala at Standard Bank, and stated:

“Good Day Mr Mkhwanazi and Quide

Thank you for your visit today. Quide, kindly send Mr Mkhwanazi the list of the required items so you can score him before we proceed.

The quoted amount is R459 000.00 to round it off.”

60. Mr Mkhwanazi appeared interested in purchasing his own brickmaking machine, and on the face of it, appears to be seeking financing for it. This correspondence reflects not only that there is a relationship between a potential bidder and Mr Mkhwanazi, but he has an interest, and the potential bidder also had been tipped off about an RFQ. Although the end user, in this case Mr Mkhwanazi, does not make the final decision on the awarding of a bid, they can influence the outcome.

61. RFQ Number GSM/18/11/1700 was issued on 18 January 2019 and closed on 06 February 2019. The description of goods or services was “Supply and Delivery of three (3) building brick machines to Transnet Community Centres.”

62. Hydraform SA (Pty) Ltd submitted a bid but were disqualified because it did not have the required B-BBEE level. Mgandela confirmed that it is the procurement department that specifies the B-BBEE level required for a particular bid.

63. Ms Mgandela testified that is it common that when award submissions are not signed by the end user, the department follows up. Mr Mkhwanazi, on enquiry, said he was not happy with the preferred bidder, and enquired about Hydraform. He was informed that they did not make it because of their B-BBEE level, and he said they must remove this if this is the case. She explained to him how the B-BEE level was set and that if it is not met, the bidder is automatically disqualified. He still refused to sign, and then picked up that the scope was also wrong. The bid then expired. Therefore, it was non-awarded.

64. Mr Mkhwanazi did not provide any contrary evidence to Ms Mgandela’s testimony, and I have no reason to reject her version of events. Mr Mkhwanazi’s directive to remove the B-BBEE requirement is irregular, and even more so because of the conflict of interest that is demonstrated in the correspondence above.

65. On 07 March 2019, Mr Mkhwanazi raised with Mr Maharaj, and copied Ms Ngqeleni, raising a concern that the specification referred to in correspondence with a preferred bidder is not what was given to supply chain.

66. On 11 July 2019, a non-award submission was issued for the bid for GSM/18/11/1700. The reasons given for the non-award was that the RFQ had been issued to the market on an incorrect scope of works, the advert did not specify the requirement of an interlocking system in the scope of works, and the bid had expired.

67. Ms Mgandela testified that an end user can do market research because the scope of work lies with the end user. However, where the end user is not clear on the scope, it is incumbent on them to go to procurement who would issue a request for information (an ‘RFI’) so that the market can submit proposals on what is required to meet the requirements of the end user. Otherwise it is assumed the end user is the technical expert and knows what they want.

68. Ms Mgandela stated that on 25 February 2019, she accompanied Mr Mkhwanazi to Hydraform’s premises in Boksburg. They were welcomed by some employees, and they went to see different types of brick machines. She felt uncomfortable as to her it appeared there was some relationship with Mr Mkhwanazi and a person who was either the owner or a manager. At no stage did Mr Mkhwanazi inform her that he had prior communication with Hydraform and a possible interest to acquire a machine for himself. From the emails above, it is probable that he did know the person as the email correspondence confirms that not only had he been in email contact, but had discussions with Hydraform employees.

69. Contrary to the Nexus report’s summary of Ms Mgandela’s interview , Ms Mgandela clarified that Mr Mkhwanazi didn’t say that they “should appoint Hydraform” but rather that he rather said “why don’t we just buy this from Hydraform?” Mr Mgandela said to him that they must comply with policy. Even this comment is problematic, particularly as there was a bid out and Hydraform was a potential bidder.

70. Ms Mgandela indicated that if an end user was to visit a potential supplier, this in itself is not an issue so long at the name of Transnet nor any tender is not mentioned. However, she explained this could be a risk and therefore procurement and governance should be approached in these circumstances. Such a principle ensures that managers are honest in the manner in which they procure services.

71. Ms Mgandela raised concerns in an email to Bradley Hanafey, her superior, on 22 July 2019. Specific to this issue, she stated:

“When we approach the market he tells us to issue to, one day he took us to Boksburg to a white owned company (Hydraform (Pty) Ltd) and insisted that we give RFQ to them and I told them we are not going to do that because they do not meet our BBBEE requirements as we had a prequalifying criteria on BBBEE and he insisted that we remove the BBBEE pre qual.”

72. Ms Mgandela clarified that the discussion on B-BBEE took place in Mr Mkhwanazi’s office and not during the visit to Hydraform.

73. On 31 July 2019, a new RFQ was issued under bid number GSM/19/07/1813 for the supply and deliver of three (3) interlocking brick making machines to Transnet community centres. The closing date was 12 August 2019. The RFQ provided for a minimum B-BBEE 4 level. The scope of work was to supply and deliver three (3) interlocking brick making machines, that can produce a minimum of 2300 or more bricks per day to the following community centres: Indondotha Community Centre in Otandweni; Transnet Centre, Ermelo; and Transnet Thokoza Community Centre.

74. It was Mr Bouwer’s submission that the CEO of Hydraform had confirmed that it had the monopoly on interlocking machines (patented and trademarked). No direct evidence was led on this and therefore I conclude that there is insufficient evidence to conclude that this is the case.

75. Hydraform did not submit a response to RFQ GSM/19/07/1813. Hydraform enquired whether they could submit their bid 10 to 15 minutes late and were informed that they could not.

76. The tender was awarded to Amathamsanqa Holdings to the value of R817 386.96 (excluding VAT). The bid, although awarded and signed, was never actioned.

77. On 25 October 2019 Mr Mkhwanazi was communicating with Hydraform’s Lusanda Zimase regarding an interest in their products. This points to Mr Mkhwanazi’s persistent relationship with Hydraform, and the potential conflict of interest.

78. In relation to this charge, I conclude:

78.1. The correspondence between the Mr Mkhwanazi and Hydraform demonstrates that there was already a relationship with this bidder, and a clear interest in purchasing a bricklaying machine for himself. He did not disclose this potential conflict of interest as required.

78.2. He directed Ms Mgandela to remove the B-BBEE requirements because Hydraform had been disqualified because of it.

[32] These findings are manifestly well reasoned and justified in terms of the record.

[33] The applicant’s ground of review is premised on a misconstruction and misreading of Ms Mgandela’s evidence.

[34] Ms. Mgandela confirmed that visiting a potential supplier posed a risk to the integrity of a procurement process and that the highest levels of honesty are required.

[35] The applicant fails to deal (at all) with the other problematic aspects of evidence on the conflict of interest charge, most notably his correspondence with the managing director of Hydraform for the applicant’s personal interests, when Hydraform was a potential supplier and a prospective bidder.

[36] The applicant also failed to counter the evidence presented by Ms. Mgandela that he had directed her to remove the B-BBEE requirements as Hydraform had been disqualified because of it.

[37] The applicant, elected not to lead any evidence at the section 188A inquiry and ran the risk of an adverse inference being drawn against him. In Klaasen v CCMA and Others [12], Murphy AJ, in the context of an employee not testifying in a misconduct case, held:

“In the employment law context, where there is evidence directly implicating an employee in misconduct, or which is adverse to his or her version, such employee cannot afford to leave that evidence unanswered…”

[38] The arbitrator was justified in drawing an adverse inference and in accepting the uncontradicted version of the third respondent.

[39] She specifically noted that the applicant did not provide any contrary evidence to Ms. Mgandela, and that she had no reason to reject Ms. Mgandela’s version of events. [13]

[40] She cannot be said to have committed an irregularity in these circumstances.

The Lifestyle Audit

[41] The crux of the review ground is that the policy requiring a lifestyle audit was not in place hence no misconduct could have been committed. Hence Mr Mhhwanazi was not obliged to obey any instructions relating to it.

[42] The arbitrator was alive to this contention but found on the facts thus:

“93. In cross examination, Ms Albertyn and Mr Neethling were challenged whether the policy could be valid in May 2020 considering the date of approval. Ms Albertyn explained that the normal route for policies is that subject matter experts comment and sign off on policies and this takes time. For this reason, it is not uncommon for the effective date to precede the date that it is approved. She confirmed that the final approval for this policy sits with REMSEC and it was approved for implementation in Transnet from 01 March 2020. Not all policies in Transnet are approved by the Board, but those that are, it is through the REMSEC.

94. The Lifestyle Audit Policy was approved by REMSEC on 03 February 2020 for implementation on 01 March 2020. Notwithstanding that some internal procedure was still taking place by policy experts, the evidence confirms that the policy was in place when the instruction was sent to managers on 15 May 2020.”

[43] She concluded thus:

“102. I conclude:

102.1. The Lifestyle Audit Policy was in place at the time Mr Mkhwanazi and other managers at grades A to C were instructed to submit thereto in on 15 May 2020 and again on 20 May 2020;

102.2. Mr Mkhwanazi received the instruction on 20 May 2020 via email and a reminder instruction was sent on 26 October 2020;

102.3. Mr Mkhwanazi did not comply with the instruction from the Group Chief Executive sent to him on 15 and 20 May 2020.”

[44] These findings are once again manifestly findings of a reasonable decision maker. Once again, the applicant failed to rebut this evidence by not taking the stand and thus avoiding cross examination on this issue. An adverse inference was thus correctly drawn against him.

Conclusion

[45] There is no basis on which to review the arbitration award on the Sidumo review test, and the application hereby falls to be dismissed.

[46] In the premise the following order is made:

Order

1. The review application is dismissed;

2. There is no order as to costs.

F. Boda

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant:

Instructed by:

For the respondent:

[1] (2007) 28 ILJ 2405 (CC).

[2] (2011) 32 ILJ 1892 (LAC).

[3] No. 42 of 1965.

[4] Volkswagen (Id fn 2) at paras 8 – 11 and 28 – 29.

[5] 2007 (3) SA 266 (SCA).

[6] 2009 (4) SA 529 (CC).

[7] No. 66 of 1995.

[8] Sidumo and another v Rustenburg Platinum Mines Limited and Others 2008 (2) SA 24 (CC) at p. 59 at para 110; See also Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) p. 2803 at para [14], [21] and [25] where the Supreme Court of Appeal clarified that a result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator; See also Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at page 26 paragraph [20] which set out the proper questions to be asked in terms of a review under section 145(2)(a)(i) and (ii) of the LRA; See also Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at paragraphs [30] to [33]; See also Shoprite Checkers v Commission for Conciliation, Mediation and Arbitration and Others [2015] 10 BLLR 1052 (LC) at paragraphs [9] and [10] which dealt with determining when a failure by a Commissioner to consider facts will be reviewable; See also Democratic Nursing Organisation of SA on behalf of Du Toit and another v Western Cape Department of Health and Others (2016) 37 ILJ 1819 (LAC) at paragraph [15]; See also Makuleni v Standard Bank of South Africa (2023) 44 ILJ 1005 (LAC) at paragraphs 2 and 3.

[9] Sidumo (Id fn 9) at para 88.

[10] No. 1 of 1999.

[11] (2023) 44 ILJ 1241 (LC) at para 29.

[12] Klaasen v CCMA and Others (2005) 26 ILJ 1447 (LC) at paras 26 – 28.

[13] See: Arbitration Award at p. 52, para 64 of the pleadings bundle.