Mzuzu v City of Cape Town & others [2026] ZALCCT 182

Date of Judgment & Seat of Court: 15 October 2026, Labour Court, Cape Town

Case No: C297/2024

Name of Judge(s): Motshekga AJ

Summary of Factual Matrix:

The applicant, an operational supervisor in the City's Urban Waste Management directorate, owned a property at which the City's revenue protection officials found in November 2020 that the prepaid electricity meter had been bypassed internally. He maintained that he had never lived there, that a cousin had occupied it until August 2020 and his daughter's family thereafter, and that he had reported what he believed to be a fault. He was charged with gross dishonesty in relation to the tampered meter and dismissed in November 2023.

The bargaining council commissioner found that by August 2020 the applicant knew that the meter was not recording consumption, that he had not reported it, and that he was complicit in the taking of the City's electricity; the dismissal was held to be fair. The applicant applied, one day late, under section 145 of the LRA to review the award on the grounds that the commissioner had rejected or overlooked material evidence, had speculated, and (raised only in heads of argument) had imposed a reverse onus. The issues were condonation and the reasonableness of the award.

Summary of Findings:

[9] ‘Although Mzuzu’s affidavit does not address his prospects of success beyond stating that they are in the hands of the Court, the explanation is plausible and accounts for the delay of one day. Contrary to what was submitted by the City, the review application is not frivolous, as it raises an important issue regarding the responsibility of a property owner in safeguarding his or her property. It is therefore in the interests of justice that condonation be granted.’

[15] ‘A commissioner’s reasoning should not be subjected to an appeal masquerading as a review, where the evaluation of the evidence rests on correctness.[4] The test on review is a well-worn path, the enquiry being whether the outcome of the award passes the muster of reasonableness.[5] A reviewing court must ascertain whether the arbitrator considered the principal issue before him, evaluated the facts presented at the hearing and came to a conclusion that is reasonable.[6] An error will only justify the setting aside of an award if it is material to the outcome.[7]’

[18] ‘Advocate Daniels, appearing for the City, submitted that the contention conflates residence with ownership. The Court agrees. The charge states that the meter was tampered with at Mzuzu’s ‘private address’, being a property which it is common cause he owns. The charge does not allege that he lived there, and the Commissioner in any event did not find that he did. Furthermore, there was no finding against Mzuzu that he was the person who bypassed the meter, but that he was complicit in the taking of the City’s electricity. Hodson’s evidence that a bypass is ordinarily done by the person living at the property therefore does not take the matter further.’

[19] ‘On Mzuzu’s own evidence, when Ndlovu left the property in August 2020, Mzuzu went to clean it up, he utilised the electricity to charge his cell phone and noticed that the units on the meter were not decreasing. And on that footing, the Commissioner found that by August 2020 Mzuzu knew that the meter had been bypassed and rejected his version that he thought it was merely faulty. The Commissioner’s finding to that effect cannot be faulted, given Mzuzu’s own evidence. Mzuzu may disagree with the Commissioner’s rejection of his version, but that is not a sustainable ground for a review. Even if it were accepted that Mzuzu himself did not bypass the meter, and that he regarded the cause of the reading not moving as a fault, he knew from August 2020 that electricity was being used at the property without the meter recording it. And, no electricity was purchased from August to October 2020, but Mzuzu nevertheless allowed his daughter and her husband to live at the property and to use electricity which he knew was not being paid for, until the meter was replaced on 18 November 2020. It was on that basis that the Commissioner found his conduct to be dishonest and that Mzuzu was complicit in the taking of the City’s electricity.’

[20] ‘Against that background, Mzuzu’s explanation for not visiting the property does not assist him. Although the Commissioner incorrectly recorded that Mzuzu did not dispute the proposition that it was impossible for him not to have visited the property in twelve years, the error does not change the facts and, consequently, the outcome. Objectively, his sullied relationship with Ndlovu could not have made it impossible for him to visit a property which had been registered in his name. There was also no evidence of any intervening impossibility which prevented him from visiting the property. Mzuzu simply chose not to visit the property, and that choice allowed the tampering to go undetected for years. […] Ndlovu, and later Mzuzu’s daughter, occupied the property with Mzuzu’s consent, and Mzuzu took no such steps. Mzuzu is also not entitled to shift his responsibility to inspect the property to the City on the basis that it took eleven years for the latter to inspect the meter, as suggested in his heads of argument.’

[21] ‘The Constitutional Court in Mkontwana v Nelson Mandela Metropolitan Municipality and Another held that a municipality’s own duty to collect what is due does not relieve the owner of the risk.[9] It is the owner of a property who is best placed to inspect the happenings at the property and to report any fault or suspected tampering with a meter. Mzuzu’s duty in this regard was elevated by the fact that he was employed by the City. An employee is required to act in good faith towards the employer and to serve the employer honestly and faithfully, a common law fiduciary duty which obliges an employee not to work against the employer’s interests.[10] It was therefore expected of Mzuzu as an employee of the City, to safeguard its resources from abuse, including the electricity supplied to his own property. Instead, he permitted his family to use electricity which he knew was not being paid for. This ground accordingly fails.’

[23] ‘As the evidence bears out above, Mzuzu was not an owner without knowledge, and the evidence of Dyers could thus, not take the matter further. The Commissioner’s omission to refer to it is therefore not material to the outcome of the award.’

[24] ‘As to the contention that the Commissioner failed to record that Mzuzu tried to query the contravention fee, the award records otherwise. The Commissioner recorded that Mzuzu paid the contravention fee and did not dispute the notice of February 2021 and found that there was no reliable proof that Mzuzu or his wife had contacted the City to dispute wrongdoing or his liability. In any event, by February 2021 Mzuzu had known for some six months, on his own version, that the meter was not recording the electricity used at the property. An attempt to query the fee could not detract from what he knew from August 2020, or relieve him of his responsibility, as the owner and as an employee of the City, to report the tampering, which the Commissioner found he did not do. This ground accordingly fails.’

[26] ‘The contention is not borne out by the award. The Commissioner recorded Mzuzu’s evidence that he tried to report the fault three times but that his efforts were in vain. In weighing the probabilities, he rejected that evidence on the basis that there was no record of any report, and that a reference number would have been given had a report been made. The Commissioner considered the evidence and came to a reasonable conclusion. That Mzuzu disagrees with that finding on the probabilities is not for this Court to quibble with. His complaint is a ground of appeal and not of review, as it invites this Court to substitute its own assessment of the evidence for that of the Commissioner.’

[27] ‘In any event, even if it is accepted that Mzuzu tried to report the fault, on his own version, he did so while his daughter’s household was already using electricity at the property, and no electricity was purchased until the meter was replaced. The attempts to report the meter therefore do not change what he knew, or that the City’s electricity was being used with his knowledge. […] Whether the inspection was prompted by Mzuzu or was unannounced, it revealed that the meter had been bypassed internally. The finding against Mzuzu rests on his knowledge of that from August 2020, and not on how the inspection came about. Equally, this ground cannot succeed.’

[29] ‘It is not necessary for this Court to consider each of these conclusions individually.[11] Notwithstanding the conclusions complained of, the evidence that Mzuzu knew from August 2020 that the meter was not recording the electricity used at the property, and that he permitted his family to use electricity which was not being paid for, remains. The outcome is therefore one which a reasonable decision-maker could reach. It follows that this ground also cannot succeed.’

[30] ‘The purpose of a founding affidavit is to set out the case which the other party has to meet. Heads of argument are not an opportunity for a litigant to introduce new grounds for review not already pleaded in its founding papers. […] The Court is unpersuaded by this submission. The issue of reverse onus constitutes a ground for review and not merely an argument, as Advocate Daniels correctly submitted. It relates to an error of law in the Commissioner’s approach to the determination of the dispute before him, which may warrant the setting aside of the award if the error renders the outcome unreasonable. His failure to raise it in his founding affidavit deprived the City of an opportunity to address it in its answering affidavit. Accordingly, this ground fails on that basis.’

[31] ‘To conclude, the outcome of the award is one that a reasonable decision-maker could reach. The review application therefore fails.’

[32] ‘In the exercise of the discretion conferred by section 162 of the LRA, the Court has regard to the fact that Mzuzu has been unemployed since his dismissal and was represented by counsel on a pro bono basis. The requirements of the law and fairness therefore do not warrant a cost order.’

Relief: Condonation for the late filing of the review application was granted, the review application was dismissed, and no order as to costs was made.

Judgment on SAFLII