SAMU obo Van Staden v Rand Water Soc Ltd & others [2026] ZALCD 54

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

Case No: D97/2024

Name of Judge(s): Whitcher J

Summary of Factual Matrix:

The employee, an electrician with Rand Water since 2006 represented by SAMU, was dismissed in April 2023 on charges including the unauthorised removal, on 7 December 2020, of a water pump from the Meredale reservoir which he never returned. The employer relied on entries in the site security occurrence book recording that he had taken the pump, saying that he would fix it, together with vehicle-tracker data placing him on site, the foreman’s email of 4 December 2020 reporting only a missing cable, and the discovery in June 2021 that the pump was missing. The employee’s version was that he had found the pump missing in November 2020 and reported it, and that he had visited the site on 7 December 2020 only to measure for a replacement cable.

The CCMA commissioner found the dismissal substantively and procedurally fair. On review under section 145 of the LRA, the employee contended that the award misstated the evidence, that the commissioner failed to appreciate the difficulties in the security guard’s evidence and his own report of the missing pump, and that the dismissal was procedurally unfair.

Summary of Findings:

[6] ‘Despite this, there is no cross-review. I will assume the respondent was content to take its chances on the court finding a reasonable basis for the arbitrator’s ultimate decision that the applicant was guilty of the first charge and that the sanction of dismissal for same was appropriate.’

[7] ‘Given it fell to the applicant to substantiate his case with reference to all relevant evidence on a point in issue, he must bear the consequences if the Court’s attention was not drawn to important evidence.’

[25] ‘However, as far as I could tell from the record, none of these propositions were put to the security guard or Magwevana.’

[39] ‘I agree with the applicant’s submissions which in essence are that the award is not a model of clarity; the arbitrator misstated aspects of the evidence; and part of his reasoning is questionable.’

[40] ‘However, as pointed out by the respondent, the factual errors cited by the applicant do not amount to material errors of fact. They would not have had an impact on the outcome.’

[41] ‘A court on review may uphold an award where, despite flaws in the arbitrator’s reasoning, the outcome is one that a reasonable decision-maker could reach on the material before the arbitrator. That enquiry requires the court to weigh the evidence itself, and to take account of, rather than pass over, doubts the arbitrator himself expressed, such as his finding that the respondent could not explain why the occurrence book entry was made some 50 minutes after the applicant left. In weighing the competing versions, regard must be had to the inherent probabilities, corroboration by independent evidence or witnesses, consistency over time and the reliability of each witness.’

[43] ‘The onus rested on the respondent. The question is therefore whether the respondent proved that it is more likely than not that the applicant removed the pump without authority on 7 December 2020 and did not return it, and, for the purposes of review, whether the arbitrator’s conclusion that it did so is one a reasonable decision-maker could reach.’

[46] ‘The guard’s evidence is not without difficulty. […] Standing alone, the guard’s evidence may well not have discharged the onus.’

[47] ‘Those difficulties, however, concern the times recorded rather than the substance of the entries. The 13h00 entry is consistent with the tracker, and the guard’s account of how the occurrence book is kept, while not ideal, is not inherently implausible. It was not put to the guard that he had fabricated the entry, nor that he had a reason to implicate the applicant; the applicant’s points about the bakkie and the history of thefts at Meredale were also not put to him. The entry also has a specificity (the applicant’s name, his vehicle registration and the stated purpose of repairing the pump) that is difficult to reconcile with invention. The real question is whether the guard’s account is corroborated by other evidence. In my view, it is.’

[48] ‘If the pump had been reported missing, it is inherently improbable that the foreman, in seeking help to report a loss to the police, would mention the cable and omit the more valuable pump. The applicant’s explanation, that the email was concerned only with the police’s requirement that an official report the loss, does not account for that omission.’

[49] ‘The second is what happened in June 2021. The work order from the Risk Department was to install the cable. The employees sent to do so discovered, and reported, that the pump was missing. This is consistent with the respondent’s version that, until then, nobody in management knew the pump was gone. On the applicant’s version, Magwevana had indicated around 3 December 2020 that he intended to order a new pump and cable, yet no evidence of any order for a pump was placed before the arbitrator.’

[50] ‘The applicant’s version has not been consistent over time. […] The statement does say he did not know whether it was “that exact day”, and his explanation that he struggled to recall dates months later may account for an error of date. It does not account for a different sequence of events and a different purpose for the visit.’

[51] ‘The applicant’s 7 December 2020 visit is not recorded in the Green Book, and there is no record there of a report of the missing pump. The Green Book may not be exhaustive, and Magwevana accepted that employees take on additional jobs. Its silence is not decisive on its own. But the applicant reported his other activities of 7 December 2020, and the only explanation offered for omitting Meredale, namely that he went there on Magwevana’s informal instruction to take measurements, was denied by Magwevana.’

[52] ‘At best for the applicant, the note is neutral. It does not corroborate his version that he reported the pump missing in November 2020, and Magwevana said he did not recall asking Msimanga to make any such check.’

[53] ‘It might be said that Magwevana had an interest in denying a report that he had failed to act on. That proposition was not put to him, and it is contradicted by his own email of 4 December 2020, written when he had no reason to anticipate this dispute.’

[54] ‘Weighed as a whole, the respondent’s version rests on a contemporaneous record that names the applicant, is corroborated as to his presence by the tracker, and is consistent with the December 2020 email and the events of June 2021. The applicant’s version changed between his written statement and his testimony and is not corroborated by any contemporaneous document. The difficulties with the times recorded by the guard are real, but they do not displace that balance.’

[55] ‘As to the elements of the charge, on the guard’s version the applicant said he would fix the pump or take it to the workshop. There was no evidence that the pump reached the workshop or was ever returned, and the applicant did not claim to have removed it for repair; he denied that it was there at all. That denial is difficult to reconcile with an authorised removal, and it was open to the arbitrator to infer that the removal was unauthorised and that the pump was not returned.’

[56] ‘The arbitrator’s reasons are imperfect, and some of them are unsupported. It is also not by any means certain that the applicant removed the pump. But on a fair reading of the record as a whole, his conclusion that the respondent discharged the onus on a balance or probability on charge (i) is one that a reasonable decision-maker could reach.’

[57] ‘In the premises, the ultimate decision of the arbitrator is not untenable, and the review of the substantive fairness finding must fail.’

[58] ‘As to the procedural unfairness claim, as pointed out by the respondent, the applicant only challenged the substantive fairness of his dismissal in his referral. In other words, the respondent was only called upon to defend the substantive fairness of the decision in the arbitration. In any event, insofar as the complaint concerns the delay in instituting disciplinary proceedings (the events occurred in December 2020, came to light in June 2021 and charges were served in February 2022), the applicant neither averred nor established that the delay prejudiced him in his defence.’

[59] ‘I see no reason to make an adverse cost order against the applicant.’

Relief: The review application (the late filing of which was condoned) was dismissed, with no order as to costs.

Judgment on SAFLII