Department of Agriculture, Land Reform, and Rural Development v Makhubele & others [2026] ZALCJHB 371

Date of Judgment & Seat of Court: 9 October 2026, Labour Court, Johannesburg

Case No: 2025/050424

Name of Judge(s): Mogane AJ

Summary of Factual Matrix:

The third respondent, a project officer in the Land Acquisition unit of the applicant department since 2008, faced five charges of gross negligence and financial misconduct under the Public Finance Management Act and the Public Service Regulations, arising from the allocation in 2013 of a state farm to the Masango brothers, who allegedly did not qualify, and from the failure to collect rental from them between 2013 and 2019. The chairperson of the internal disciplinary enquiry, the first respondent, found him not guilty on all five charges.

The department applied under section 158(1)(h) of the LRA to review and set aside that outcome, contending that the chairperson had applied the criminal standard of proof, ignored material evidence, wrongly accepted the employee’s version and reached a conclusion no reasonable chairperson could reach. The issue was whether the disciplinary outcome was reasonable.

Summary of Findings:

[16] ‘What this Court is enjoined to determine is whether the third respondent’s disciplinary outcome is reasonable or not in order to determine whether this Court can interfere with that disciplinary outcome. Furthermore, to determine whether the grounds of review have been met by the applicant.’

[72] ‘On a proper conspectus of the grounds of review by the applicant, it becomes obvious that the applicant attacks the first respondent’s disciplinary outcome on the basis of unreasonableness. In other words, the first respondent committed irregularities which then make his disciplinary outcome unreasonable. If it is unreasonable, it is then prone to be interfered with by this court.’

[73] ‘Axiomatically, the Court will, in coming to the conclusion, rely on the test of reasonableness as laid down in the judgments that deal with unreasonableness, irregularity, failure to apply his mind to the material before him, which judgments deal with those issues with regard to section 145 read together with section 158(1)(g) in the main.’

[78] ‘I disagree with that assertion. In paragraph 116 of the first respondent’s disciplinary enquiry outcome, the following is obtained: “It is trite that in a disciplinary enquiry, the employer bears the onus to prove its case against an employee on a balance of probabilities.”’

[79] ‘This, in my view, illustrates that the first respondent was alive to the enquiry that he had to deal with and alive to the burden of proof and to the determination of witnesses’ evidence, which evidence is mutually destructive of each other. He knew what he was supposed to do when faced with versions which are not similar to each other.’

[83] ‘The applicant was at pains to state that his role in the meeting of 13 June 2013 was, to an extent, that he was a scribe. He had no decision-making powers. The applicant, in my view, failed to rebut this assertion by the third respondent. The applicant was consistent that he had no decision-making powers.’

[84] ‘Furthermore, the applicant makes a meal of the fact that the first respondent put too much reliance on the fact that the third respondent did not have signing powers; in doing so, the applicant, in my view, ignores the evidence of its own witness (Sibanyoni) who testified that the third respondent didn’t have signing powers. What is crucial is whether the applicant used his signing powers (assuming he had those) in awarding the farm to the Masango brothers.’

[85] ‘Mr Forfar and, by extension, the applicant seem to suggest that by virtue of the fact that the third respondent was in the DSC meeting, it therefore follows that he had a hand in having the Department approve the farm to the Masango brothers. That cannot be. The applicant had a duty to provide evidence to that effect, and the applicant failed to produce that evidence other than to blame the third respondent by a mere fact that he was part of the meeting.’

[87] ‘It cannot be disputed, and the third respondent and Angelina’s evidence were not denied or rebutted, that in any event, the final decision to award a beneficiary to a farm lies with the National Office.’

[91] ‘The evidence of Ms Sibanyoni is that she was not aware of the awarding of the farm to the Masango brothers as it was never brought to her attention. This, in my view, is not plausible.’

[92] ‘This evidence by Ms Sibanyoni is fatal to the applicant’s case.’

[93] ‘If indeed she agreed that the farm should be allocated to the Masango brothers, and the Masango brothers were not supposed to be allocated the farm, then she failed in her diligence duties. In terms of responsibilities in law, that is my view, you cannot agree to something without firstly having satisfied yourself that everything is in order and in line with the relevant prescripts. To seek to disassociate herself from the process because she didn’t know, or it was never brought to her attention, is disingenuous, and that makes her evidence suspect.’

[94] ‘In my view, the third respondent, when assessing this aspect, did so properly. To want the first respondent to believe that the third respondent failed to collect rent when, on the other hand, had stipulated that at the end of the day, once everything is completed, it then lies with National Office, is unreasonable.’

[95] ‘With regard to the rental issues, Miss Sibanyoni herself said that the issue of rent is a collaborative effort from Land Acquisition to Land Property Management. This is damning for the applicant because the version of the applicant now changes from the fact that the applicant is responsible for rent collection to that it is now a collaborative effort. This is a contradiction, and the first respondent, in looking at which version to believe, is inclined to have regard to contradictions made by Ms Sibanyoni.’

[97] ‘The evidence that the third respondent should oversee everything is, in the absence of concrete evidence, illogical. […] Accompanying national office bearers to the farm cannot morph into the fact that his job responsibilities are stretched to that extent.’

[98] ‘The other unrebutted evidence of the third respondent and Angelina is that at the time of allocation of the farm in question, there was no applicable policy then. Absent a policy then, can the third respondent have committed the misconduct he is accused of? The principle of the law is clear on this. For one to commit misconduct, there should be a rule, and the offender should have been aware of the rule. To make matters worse, evidence of both the third respondent and Angelina is that there was a period in time when there were no lease agreements between the beneficiaries of the farms and the Department. That is uncontested.’

[100] ‘In my view, it shows that the first respondent applied his mind to the material placed before him and he applied the correct laws in his analysis.’

[102] ‘But this assertion by the third respondent is without merit. Ms Sibanyoni herself testified that members of the public would sometimes approach the Department directly when they have identified a farm.’

[106] ‘The applicant alleges that Abram Masango was not removed from the process. Let’s assume for a moment that he was; then what influence would he have had in order to sway the awarding of the farm to his brothers? Where is the nexus? Is the nexus that by virtue of working at Eskom he possesses persuasive powers? Where is the proof?’

[108] ‘To back his argument, Forfar then had a duty to prove that before that late lease agreement was generated, there was another one where Abram Masango is listed as a beneficiary. He did not do that, and this evidence on this aspect is based on mere conjecture. One cannot in law make an allegation but fail to support that allegation.’

[110] ‘The fact that, upon analysis, the first respondent failed to take into consideration the evidence of the applicant is not true. The applicant’s evidence and the first respondent’s evidence were taken into consideration.’

[112] ‘Having done so, the first respondent then compared these different versions and concluded which of the two was more probable. This is in line with the judgments I have mentioned in this case.’

[114] ‘To seem to suggest that the applicant tailor-made his evidence is not supported by anything. […] They (the applicant) never objected to the third’s presence and to use that now against him is, in my view, opportunistic.’

[117] ‘That in itself does not mean that the outcome of the first respondent is unreasonable. Something more has to be there to warrant interference with the first respondent’s outcome.’

[118] ‘Is this a diabolical outcome which needs to be frowned upon? The simple answer is no.’

[119] ‘Therefore, the first respondent’s outcome ought not be interfered with. Taking and looking at all the material that was before the first respondent, his outcome is reasonable.’

[120] ‘This then leaves this court with the issue of costs. Applying section 162 of the LRA, law and fairness dictates that I issue no order as to costs.’

Relief: The application to review and set aside the disciplinary chairperson’s outcome was dismissed, with no order as to costs.

Judgment on SAFLII