Sibanye Gold Proprietary Limited v Commission for Conciliation, Mediation and Arbitration & others [2026] ZALCJHB 373

Date of Judgment & Seat of Court: 18 September 2026, Labour Court, Johannesburg

Case No: JR2384/22

Name of Judge(s): Whittington AJ

Summary of Factual Matrix:

The employee, a mineworker represented by AMCU, was dismissed by Sibanye Gold after security officers testified that they had found him underground carrying a five-litre paint tin containing cannabis and excess food, items prohibited by the employer’s safety and anti-illegal-mining rules. The employee contended that he had been framed. The commissioner found the dismissal substantively unfair, holding that the employer’s witness had conceded that the photographs of the items were contaminated, that the photographs were inadmissible hearsay, that the employee’s detailed version (additional officers, a journey to the stope and a locker search) was undisputed, and that a discrepancy between brown and white bread undermined the employer’s witnesses.

Sibanye applied under section 145 of the LRA to review the award on the grounds that the commissioner misread the record, mistreated the photographic evidence, relied on matters not put to its witnesses and failed to evaluate the direct evidence of the security officers. The only material issue was whether possession of the prohibited items had been proved.

Summary of Findings:

[12] ‘It would appear that the existence, validity and knowledge of the rule were not matters which were addressed in the review proceedings and the only material question was whether possession of the prohibited items had been established.’

[39] ‘With regard to the finding that it had been conceded that the photographic evidence had been contaminated, the reconstructed record establishes the opposite.’

[42] ‘I note that whether the explanation tendered by Mr. Makgolela was persuasive was a matter for evaluation, however, it could not reasonably have been treated as a concession that the photographs were contaminated.’

[43] ‘The supposed concession materially informed the rejection of the photographic evidence and the error appears to have distorted the evidential assessment.’

[44] ‘In further dealing with the photographic evidence, it would appear that the Commissioner has failed to distinguish between the authentication, admissibility and evidential weight of the photographic evidence. Importantly, Makgolela testified that he had taken the photographs[10] and the security officers gave direct evidence concerning the items allegedly found.[11]’

[45] ‘The photographs were relied upon to corroborate that direct evidence rather than as the sole proof of possession. It may be that the Commissioner was entitled to attach limited weight to them because of the differences between the photographs, but their perceived unreliability did not dispose of the security officers’ direct evidence.’

[46] ‘I note, however, that there was nevertheless a proper evidential basis for concern. The original black-and-white copies were unclear; the colour photographs were not identical to them; cellular telephones appeared in the original photograph but were not mentioned in the security officers’ evidence; the arrangements of the clock cards and other objects differed; the printed photographs did not reflect a date and time; and Makgolela had not witnessed the apprehension.’

[47] ‘Mr. Makgolela’s evidence was capable of authenticating the photographs as photographs taken by him at the security office. It did not, without more, establish that every object depicted had been found in Mr. Mahlatsi’s possession because Makgolela had not witnessed the apprehension or search. That limitation went to the evidential weight of the photographs and their connection to the alleged misconduct. It did not justify treating them as inadmissible hearsay or as proof that Sibanye’s direct witnesses had fabricated their evidence.’

[48] ‘Those propositions, which were denied, constituted a challenge to the authenticity and reliability of the photographs, but were not themselves evidence establishing that the photographs had been falsified.’

[50] ‘The general allegation that the security officers had framed Mr. Mahlatsi was put to at least one of Sibanye’s witnesses and was denied. The award does not, however, identify where the more detailed version subsequently relied upon by the Commissioner—particularly the arrival of additional officers, the journey to and return from the stope with the container and the search of Mr. Mahlatsi’s locker—was put to Matlape or Flatela. From an examination of the record I am unable to find where these matters were put to Matlape or Flatela either.’

[51] ‘That distinction is material. The Commissioner was entitled to consider the frame-up defence. He was not, however, entitled to treat every later detail of that defence as having survived cross-examination by the security officers, or to find that those officers had concealed facts which had not been put to them. Moreover, when the detailed version was subsequently advanced by Mr Mahlatsi and his witnesses, Sibanye’s representative disputed it in cross-examination. The finding that the version was undisputed was therefore inconsistent with the record and was, in addition, procedurally and logically unsound.’

[53] ‘I note that a commissioner who relies decisively upon an issue which was not properly ventilated, without affording the affected party an opportunity to address it, may commit a reviewable irregularity. The principle does not prevent a commissioner from evaluating the exhibits, but requires that a matter intended to form a material basis for an adverse finding be fairly raised with the parties.[13]’

[54] ‘I note that, from the reconstructed record, it is clear that Mr. Matlape and Mr. Flatela gave direct and mutually corroborative evidence on the essential allegation that they encountered Mahlatsi underground, saw him carrying the paint tin, searched it, found cannabis and food inside and arrested him.’

[55] ‘The Commissioner was entitled to reject their evidence if, after considering credibility, reliability and the probabilities, he found Mahlatsi’s version preferable. The Award, however, concentrates instead on differences between the photographs, the appearance of the bread, the location of the arrest, the presence of additional officers and the failure to recall witnesses. Those matters were relevant to the credibility of the witnesses, but did not relieve the Commissioner of the duty to evaluate the direct evidence itself. The inconsistency is particularly significant because the Commissioner treated the photographic evidence as inadmissible hearsay, while simultaneously relying upon its contents when evaluating the credibility of Sibanye’s witnesses.’

[59] ‘The principle that an appellate or reviewing court should be slow to interfere with factual and credibility findings is accepted. In the present matter, however, the impugned findings do not depend principally upon the Commissioner’s observation of the witnesses, but upon objectively ascertainable matters in the record, including whether a concession was made, whether evidence was disputed and whether particular versions were put to the witnesses.’

[61] ‘The first premise is contradicted by the reconstructed record. The alleged concession concerning contamination is also contradicted by the record. The brown-bread finding was not ventilated with the relevant witnesses. Those defects were cumulative and directly informed the Commissioner’s rejection of Sibanye’s case on possession.’

[62] ‘I find that the Commissioner identified and generally understood the dispute, but failed properly to evaluate material evidence and relied upon factual findings contradicted by the reconstructed record. The defects, considered cumulatively, materially distorted the assessment of the only substantial issue: whether Sibanye had proved that Mahlatsi possessed the prohibited items.’

[63] ‘The question is not whether this Court would have preferred Sibanye’s evidence or whether another arbitrator could reasonably have found the dismissal fair. Nor is every error identified in the award independently sufficient to justify interference. The difficulty is that the Commissioner’s decisive credibility and probability findings rested cumulatively upon the errors identified above. Those errors were not peripheral to the result. They supplied the principal basis upon which the Commissioner rejected Sibanye’s evidence and concluded that the onus had not been discharged.’

[64] ‘I have also considered whether, notwithstanding the defects in the Commissioner’s reasoning, the result remains reasonably capable of justification on the evidence. In my view it does not. The findings which supplied the principal basis for rejecting Sibanye’s evidence were either contradicted by the record, founded upon matters not properly ventilated, or made without a separate evaluation of the direct evidence.’

[65] ‘The conclusion is therefore untenable, rather than merely one with which this Court might disagree. The errors identified are not merely imperfections in the Commissioner’s reasoning; their cumulative effect caused the enquiry into possession to be undertaken in a materially distorted manner and satisfies the threshold identified in Mofokeng.’

[66] ‘The difficulty is that the Commissioner did not undertake that assessment independently of the material errors identified above. It is therefore not possible to conclude that the result was reached upon a proper consideration of the evidence rather than upon the factual premises contradicted by the record.’

[67] ‘Given the nature of the issues identified in the Award, and in particular that certain material allegations relied upon had not been put to Sibanye’s witnesses, I am of the view that it would not be appropriate to substitute the Award with an order of my own until these allegations are properly tested.’

[68] ‘Having regard to the requirements of law and fairness contemplated in section 162 of the LRA, and to the nature of the dispute, I am not persuaded that a costs order is warranted.’

Relief: The review application was granted and the award of 19 September 2022 under case number GAJB1844-22 was reviewed and set aside. The dispute was remitted to the CCMA for arbitration de novo before a commissioner other than the second respondent, with no order as to costs.

Judgment on SAFLII