Erarite (Pty) Ltd t/a Khayelitsha Superspar v Commission for Conciliation Mediation and Arbitration and Others [2026] ZALCCT 53

Seat of the Court: The Labour Court of South Africa, Cape Town

Presiding Judg: Gandidze, J

Summary of the Basis of the Claim

The Applicant, Erarite (Pty) Ltd trading as Khayelitsha Superspar, sought review and setting aside of an arbitration award wherein Commissioner Gogo found that the dismissal of Mr Cludious Gogo (Third Respondent), a Zimbabwean national employed as Bakery Manager, was substantively unfair. Mr Gogo had been dismissed after posting a biblical verse from Deuteronomy on his WhatsApp status (both personal and a management group) during a period of heightened xenophobic tensions at the workplace. The Commissioner found that while the post was provocative and a grave error of judgment, it did not constitute hate speech or incitement to violence, and that a final written warning would have been an appropriate sanction.

Analysis and Findings of the Court with Direct Quotations

On the Gravity of the Misconduct and the Commissioner's Understanding

 "[31] I begin the analysis by quoting the exchange between the commissioner and Gogo during the arbitration proceedings, which clearly demonstrates that the Commissioner understood the exact nature of the applicant's gripe with Gogo's conduct..." (para 31)

 "[33] ... He also acknowledged that Gogo intentionally posted the message, conduct which the commissioner regarded as ill-conceived and a grave error of judgment, as Gogo was showing the xenophobes the 'proverbial middle finger'." (para 33)

"[34] Additionally, the commissioner observed that, to some extent, Gogo's behaviour could be compared to that of the Facebook group. Therefore, the commissioner was aware that Gogo had committed misconduct, but he also distinguished Gogo's conduct from that of the Facebook group. He found that, unlike the Facebook group, Gogo did not show hostility towards locals or threaten them; the Bible verse was not hate speech; and Gogo was not attempting to incite a coalition of foreign nationals but was instead trying to upset the locals." (para 34)

On the Impermissibility of Raising New Arguments on Review:

 "[39] ... It is impermissible for parties, after an award has been issued, to seek review based on a case not presented during the arbitration proceedings. Reviews are restricted to the material and evidence submitted to the commissioner." (para 39)

On the Sidumo Test and the Commissioner's Value Judgment:

"[41] The applicant's complaint regarding how the commissioner should have treated the sanction is based on a misunderstanding of what Sidumo and Another v Rustenburg Platinum Mines Ltd & Other prescribes, which is this:

 '[61] There is nothing in the constitutional and statutory scheme that suggests that, in determining the fairness of a dismissal, a commissioner must approach the matter from the perspective of the employer. All the indications are to the contrary. A plain reading of all the relevant provisions compels the conclusion that the commissioner is to determine the dismissal dispute as an impartial adjudicator.'" (para 41)

"[43] ... '[179] In answering this question, which will not always be easy, the commissioner must pass a value judgment. However objective the determination of the fairness of a dismissal might be, it is a determination based upon a value judgment. Indeed, the exercise of a value judgment is something about which reasonable people may readily differ.'" (para 43)

"[45] The commissioner's decision that dismissal was not a fair sanction is not a decision that no reasonable decision maker could reach. This ground of review must also fail." (para 45)

On the Compensation Awarded:

"[49] It is evident from the compensation awarded to Gogo that the commissioner recognised the gravity of Gogo's misconduct. He granted only three months' compensation, underscoring that Gogo must accept responsibility for losing his job." (para 49)

Order of the Court

 "Order

1. The review application is dismissed.

2. There is no order as to costs." (para 54