National Union of Metalworkers of South Africa obo Zibane & others v Metal and Engineering Industries Bargaining Council & others [2026] ZALCD 53

Date of Judgment & Seat of Court: 7 October 2026, Labour Court, Durban

Case No: D636/2021

Name of Judge(s): Allen-Yaman J

Summary of Factual Matrix:

Four employees of Concord Refrigeration, represented by NUMSA, were dismissed in June 2018 for assaulting and intimidating a temporary employee who was reporting for duty during a protected strike. A first arbitration award in their favour was set aside on review, and at the arbitration de novo the commissioner found the dismissals fair. Before that hearing he had ruled the victim’s evidence admissible as hearsay under section 3 of the Law of Evidence Amendment Act, the victim having refused to attend despite subpoenas. The employer relied on a manager who witnessed the assault and filmed the employees nearby immediately afterwards, the victim’s identification of them from that video, and his statement to the police.

NUMSA applied to review the award, contending that the employer’s witnesses were unreliable and dishonest, that the employees’ versions had been wrongly rejected, and that the commissioner had misapplied the rules on hearsay. The employer sought costs on a punitive scale.

Summary of Findings:

[12] ‘Notwithstanding that the Ruling was issued prior to the arbitration proceedings and separately from the later award, and despite the applicant’s assertions relating to the admissibility of the hearsay evidence in their founding and supplementary affidavits, the applicant did not seek to review and set aside the Ruling, having confined the order sought to the award of 22 September 2021. In the circumstances, as no review of the Ruling is before this court, it must be accepted that the evidence of Mr Zincume was before the second respondent as part of the evidence he was obliged to consider when making a decision.’

[15] ‘The second respondent’s conclusions regarding this issue were faultless,’

[16] ‘In the circumstances, the second respondent relied on the evidence tendered in its direct form, merely that the statement had been made, and not in its hearsay form, as proof that the statement itself was true. In any event, given that he had previously ruled that Mr Zincume’s hearsay evidence was admissible, there was no basis for the applicant employees’ representative to have objected to its introduction in the course of the arbitration proceedings, even if it had been tendered as proof of the truth of the statement itself.’

[18] ‘The singular factual issue for determination by the second respondent was whether the applicant employees had jointly assaulted Mr Zincume on 12 June 2018. His finding that they had done so was supported by an overwhelming body of evidence.’

[22] ‘The complaint that Mr Bernardo had given three different versions concerning the events of 12 June 2018 is unsupported by the evidence. At no stage during the disciplinary hearing did he testify that he had recognised three of the applicant employees. […] As with the other ancillary issues raised by the applicant, whether the applicant employees were walking with a group of five or six people was immaterial to the issue of whether the four who had been identified had assaulted Mr Zincume. Mr Bernardo’s evidence was consistent throughout, and the second respondent’s acceptance thereof was eminently reasonable.’

[23] ‘The issues raised by the applicant concerning the evidence of Messers MacFarlane and Sibanda were also both unsupported by the evidence and irrelevant to the determination of the applicant employees’ culpability.’

[24] ‘That Mr MacFarlane may have recorded a cryptic note in his capacity as Chairperson of the disciplinary enquiry concerning Mr Zincume’s failure to have identified the applicant employees in person at the disciplinary hearing is irrelevant in circumstances in which it was not in dispute that he had not done so. Mr Zincume had twice identified them as having been his assailants with reference to the video footage captured by Mr Bernardo, and the applicant employees had not themselves disputed that they were the individuals captured on the video footage.’

[25] ‘Finally, any confusion that may have arisen regarding the date on which the applicant employees were called to Concord’s boardroom to meet with members of the SAPS was both explained by Mr Sibanda as having been as a result of the three year period which had elapsed between the occurrence of the incident and his testimony, and irrelevant to the question of the applicant employees’ guilt.’

[26] ‘In contrast, the credibility findings made by the second respondent against both Mr Zibane and Mr Ziqubu[3] were both reasonable and justified in consideration of their testimony which, in relation to their various explanations proffered, can only be described as highly improbable and quite evidently fabricated.’

[27] ‘Having concluded that the applicant employees were guilty of gross misconduct, the second respondent concluded further that dismissal was the appropriate sanction. In 2016 Concord’s employees had been notified that such type of misconduct would not be tolerated, and would be likely to result in dismissal. The applicant employees took no responsibility for their unlawful conduct which had resulted in serious injury to a fellow employee. By denying their clear involvement, they not only demonstrated no remorse, but actively sought to impugn the integrity of three senior employees, including Concord’s Managing Director, in the process. This being so, the second respondent’s conclusion that dismissal was the appropriate sanction was also not one which was unreasonable.’

[28] ‘Accordingly, the award issued by the second respondent under MEKN 10404 on 22 September 2021 was reasonable in relation to the evidence before him and is therefore not subject to review. The application will be dismissed.’

[30] ‘This court is in agreement with Concord’s assessment of the review application: proper consideration of the award in relation to the evidence led at the arbitration by those prosecuting the application would have demonstrated both the reasonableness of the award, and that the ‘grounds of review’ would not sustain an application for the order sought. Rather than accepting the outcome, Concord was obliged to participate in what amounted to frivolous proceedings and to incur legal costs in the process. This court can conceive of no reason why NUMSA ought not to bear at least a portion thereof, in the form of a costs order on a party and party scale.’

Relief: The review application was dismissed and NUMSA was ordered to pay the third respondent’s costs on the party and party scale, the request for punitive costs being declined.

Judgment on SAFLII