MPHALWA v PUBLIC HEALTH AND SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL AND OTHERS [2026] ZALCCT 69

Date of Judgment & Seat of Court: 15 April 2026; Labour Court of South Africa, Cape Town

Name of Judge(s): Lagrange J

Summary of Factual Matrix: 

The applicant was employed by the Third Respondent as a Central Processing Operator at Red Cross Hospital since 2015. He was found guilty of five charges of misconduct: (1) absence without permission from 17 September to 15 October 2021; (2) failure to submit a medical certificate within reasonable time; (3) derogatory and disrespectful email to supervisor on 10 August 2021; (4) further failure to carry out orders and disrespectful email on 7 December 2021; and (5) leaving the workplace on 4 February 2022 contrary to instruction. 

The disciplinary hearing proceeded in his absence after multiple postponements. He was dismissed and his internal appeal failed. 

The arbitrator found the dismissal both procedurally and substantively fair. The applicant sought review, alleging inter alia that the arbitrator erred in finding certain documents were fabricated and in refusing to admit expert medical evidence.

Summary of Findings:

"[34] I cannot find fault with the submissions of the department set out above and, consequently, the first ground of review must fail."

"[35] Another criticism made by Mphalwa of the arbitrator's findings about the authenticity of the affected documents, relates partly to the discussion above. It concerned the absence of expert evidence on the authenticity of the document. He argued that without expert evidence the arbitrator was in no position to make a finding on the authenticity of the documents. The department retorts that the arbitrator was entitled to make a finding on the authenticity of documents based on the evidence which was presented. Had Mphalwa obtained an expert's report on the authenticity of the documents, then that evidence would have been relevant, but the absence of expert testimony did not preclude the arbitrator from making findings on the evidence presented."

"[36] I cannot find any fault with the arbitrator's approach in determining if Mphalwa had established the authenticity of the disputed documents as a matter of probability. The evidence presented was sufficient for the arbitrator to conclude that Mphalwa had failed to discharge his onus in regard to the documents. The finding to the effect that the 'agreement' signed by Jekels was probably falsified was a finding a reasonable arbitrator could have reached."

"[51] It is a time honoured legal principle that a party who is going to lead its own evidence after its opponent has done so, must put its version of the evidence it is going to lead to the opponent's witnesses. If that is not done, the evidence it subsequently leads is protected from contradiction by the opponent's witnesses and is necessarily devalued on account of not having been tested with witnesses who might have been able to dispute that evidence. It would also not alert the opponent of the need to call its own witnesses to rebut that version before closing its case."

"[54] I cannot find any gross irregularity of the arbitrator in the handling of the proceedings or her handling of the evidence and the inference she drew from it resulted in her reaching an outcome that no reasonable arbirtrator could have reached."

As auch, the Court held that: 

(i) the onus to prove authenticity of documents rests on the party relying on them; the arbitrator was entitled to find the applicant failed to discharge this onus based on the evidence presented, without requiring expert testimony; 

(ii) the arbitrator properly applied the principle that a party must put its version to opposing witnesses before leading evidence; the applicant's belated request to call a medical expert was properly refused as the evidence was not put to the employer's witnesses; 

(iii) no gross irregularity was established in the arbitrator's handling of proceedings or evidence; and 

(iv) the outcome was one a reasonable arbitrator could reach on the totality of evidence.

Order:

"1. The late filing of the Third Respondent's answering affidavit in the review application is condoned. 

2. The Applicant's further supplementary affidavit is admitted as part of the record. 

3. The review application is dismissed. 

4. No order is made as to costs."