City of Cape Town v South African Local Government Bargaining Council & others [2026] ZALCCT 175

Date of Judgment & Seat of Court: 28 September 2026, Labour Court, Cape Town

Case No: C425/2024

Name of Judge(s): Gandidze J

Summary of Factual Matrix:

Ms Dube, a Learner Law Enforcement Officer employed by the City of Cape Town on a fixed-term contract, tested positive for cannabis, heroin and codeine in a random test on 12 March 2023. The City's Substance Abuse System Procedure treats the presence of any such substance, at any level, as being under the influence. A re-test two weeks later was negative. She pleaded guilty, the only issue being sanction, and was dismissed on 29 September 2023. Law enforcement officers carry firearms, drive vehicles and work in gang-affected areas, and an executive director's instruction required them to be held to a higher standard.

On 2 May 2024 a bargaining council commissioner found the dismissal procedurally fair but substantively unfair, treating the matter as a cannabis-only case and relying on Enever v Barloworld, and ordered reinstatement with full retrospective effect. The City's review was filed 17 weeks late; condonation was sought, and the employee opposed the review, relying on an earlier decision of this court in Mantis. The City contended that the commissioner ignored the heroin and codeine, misconceived the inquiry, improperly substituted his own view of the sanction, and that reinstatement was incompetent because the fixed-term contract had expired.

Summary of Findings:

[5] ‘The review application was due on or about 13 June 2024 but was filed on 4 October 2024. That is 17 weeks late, and the delay is not insignificant, as it is almost three times the prescribed period for filing a review application. […] The explanation is reasonable and is accepted.’

[8] ‘It is in the interests of justice to grant condonation, which the Court does.’

[38] ‘Despite that Dube was charged and dismissed for testing positive for dagga, heroin and codeine, the commissioner approached the matter on the basis that Dube had tested positive for dagga only. The award makes it clear that the commissioner limited the inquiry to dagga, not the other two substances.’

[40] ‘The commissioner's decision to focus on testing positive for dagga was informed by the parties' repeated references to dagga, with little mention of the presence of heroin and codeine. However, the commissioner had a responsibility to ensure that the inquiry encompassed all substances found in Dube; otherwise, the parties were not afforded a fair trial.’

[42] ‘The only similarity between Enever[21] and Dube is that both employees tested positive for dagga. The key difference, however, is that, unlike in Enever,[22] Dube also tested positive for heroin and codeine. Unlike dagga, these substances are illegal. Dube could not rely on the right to privacy to explain their presence in her system. In fact, the presence of these illegal substances in Dube’s system was not explained at all. Therefore, relying on Enever[23] and Prince,[24] which dealt only with dagga, to conclude that Dube’s dismissal was substantively unfair misconceived the inquiry and distorted the outcome of the arbitration proceedings. He considered only the presence of dagga, which is legalised, but failed to consider the presence of two other illegal substances. This was not the full inquiry he was required to conduct.’

[43] ‘Had the complete inquiry been conducted, the decision in Enever[25] could not have saved Dube’s job. That decision established the principle that each case must be decided on its own facts. Unlike here, in Enever[26] the employee’s job was confined to an office. Dube carried a firearm. The Firearms Control Act is clear that carriers of firearms must be sober, or the City risks losing its licence to hold firearms. Part of Dube’s role was to ensure public safety and security. She drove vehicles into gun- and violence-ridden areas. Therefore, Dube’s job could not be compared to that of the employee in Enever.[27]’

[45] ‘What is stated above should not be construed as meaning that every LEO who tests positive for substances must be dismissed. Each case must be decided on its own facts.’

[52] ‘The City’s Policy provides that testing positive for any substance, regardless of the level, means one is regarded as being under the influence. From my understanding of the arbitration proceedings, the issue of whether that provision is defensible was not put before the commissioner for determination. Deciding an issue not before the commissioner constitutes a ground for review, if it has the effect of denying the parties a fair trial.’

[55] ‘It is not my understanding of the legal position that an employer can never dismiss an employee for testing positive for drugs or alcohol without establishing the degree of intoxication. It is my understanding, based on Enever,[33] and Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others[34], that zero tolerance policies will be upheld where an employer justifies their existence.’

[56] ‘In the present matter, the commissioner conducted the inquiry on the incorrect premise that, unless evidence is adduced that an employee is under the influence of dagga, the dismissal that follows is unfair. That finding was based on a misunderstanding of Enever.[35] In this case, testing positive for three substances rendered the misconduct serious, even in the absence of evidence on the degree of intoxication. The nature of the job was such that the presence of drugs in a LEO’s system cannot be tolerated.’

[57] ‘The fact that Dube was not addicted to drugs was not the issue. Dube's status as a first offender did not mean she should be spared dismissal. A negative re-test meant only that she could return to work, not that she would not be disciplined for breaching policy. The fact that the City did not suffer harm from Dube’s misconduct carries little weight where Policy has been breached.’

[59] ‘The City’s representative could have cross-examined her on the fact that she had not explained the source of the heroin and codeine, as argued by Mr Geldenhuys, but it remained Dube’s responsibility to volunteer this information and explain how she breached the Policy. Her failure to proffer a version means that the presence of heroin and codeine in her system remained unexplained.’

[61] ‘Having said that, I disagree that Mantis[40] was correctly decided, given the role of LEOs such as Dube.’

[62] ‘I repeat what I have stated above about my understanding of the case authorities. The factors considered in determining whether testing positive for dagga is dismissible include whether the employee was impaired and the environment in which the employee works. If having dagga in one's system impairs an employee’s ability to perform their work, this could constitute a fair reason to dismiss, even without proof of impairment. If the employee works in an environment where the employee’s safety and that of others is paramount, the presence of dagga could also constitute a fair reason to dismiss, even if there is intoxication. Either of the two suffices.’

[63] ‘On those facts, I am satisfied that the absence of proof of impairment is not a reason to find that the dismissal was unfair. It was sufficient that Dube worked with a firearm, and the Firearms Control Act requires those wearing firearms to be sober. LEOs drove vehicles and worked in high-risk areas. These factors were sufficient to conclude that a rule prohibiting positive drug tests was reasonable. In my view, LEOs fall into that category of employees to whom the court in Enever[43] found its judgment did not extend. Not having drugs in one’s system is an inherent requirement of LEOs.’

[65] ‘For the reasons above, I respectfully disagree with the conclusion in Mantis[49] that a LEO testing positive for dagga did not render the employee’s dismissal fair.’

[67] ‘Dube's guilty plea was a neutral factor in determining the sanction. The test results spoke for themselves.’

[70] ‘Taking all the above into account, the award is reviewable. Had the commissioner conducted the correct inquiry into the fairness of Dube’s dismissal for testing positive for three substances, contrary to Policy, the outcome would have been different. Two of the substances are illegal. Given the nature of the role she was employed to perform, it would licence LEOs like Dube to enforce the law with illegal drugs in their systems. This is untenable. If there are members of the public who are not concerned with LEOs with drugs in their system whilst on duty, they would be in the minority. The City of Cape Town was well within its rights to set that standard. The breach of the rule rendered continued employment intolerable. Had all of the above been taken into account, the only reasonable inescapable conclusion would have been that Dube’s dismissal was substantively fair. The commissioner’s finding that the dismissal was substantively unfair for the reasons he gave is one no reasonable decision-maker could reach. The award will be reviewed.’

[72] ‘Accordingly, when the award was issued, Dube’s contract was still in force and would not expire until 30 June 2025. Therefore, the City’s contention that an order of reinstatement was not competent because the fixed-term contract had expired has no merit.’

[74] ‘In this court, costs do not follow the result. They are awarded in accordance with the requirements of law and fairness as set out in section 162 of the LRA. The review application succeeded. Dube did not act unreasonably in seeking to defend an award in her favour, given this court's decision in Mantis.[52] Each party must pay its own costs.’

Relief: Condonation was granted for the late review application. The award was reviewed and set aside and substituted with an order that Ms Dube's dismissal was substantively fair. Each party bears its own costs.

Judgment on SAFLII