City of Johannesburg v L. Jacobs N.O. and Others

The City of Johannesburg (applicant) employed the Second and Third Respondents (Simelane and Molefe) as driver's licence examiners at the Sandton Licensing Department. On 9 and 10 November 2015, and 29 February 2016, the employees were found on CCTV footage to have dishonestly assisted learner driver applicants during computerised learner licence tests by indicating answers through hand signals (using one, two, or three fingers to indicate answer options A, B, or C). They were charged with failing to comply with Schedule 8 of the LRA read with Schedule 2 of the Municipal Systems Act 32 of 2000 for dishonestly assisting candidates and bringing the council into disrepute. Following a disciplinary hearing, they were dismissed on 12 June 2017. They appealed the dismissal. The First Respondent (Jacobs N.O.), as appeal chairperson, found them guilty but set aside the dismissal on 24 October 2017, ordering reinstatement with a final written warning, deeming dismissal too harsh. The City sought to review and set aside this appeal ruling.

• Whether the review application was brought within a reasonable time and whether condonation should be granted for late filing
• Whether the appeal chairperson's decision to set aside dismissal and order reinstatement was rational and reasonable
• Whether the appeal chairperson erred in finding procedural flaws in the disciplinary process without sufficient evidentiary basis
• Whether the seriousness of the employees' dishonest misconduct justified dismissal
• Whether the appeal chairperson failed to properly consider the breakdown of the trust relationship between employer and employees
• What test applies to judicial review under section 158(1)(h) of the LRA based on the principle of legality

1. The condonation applications are granted. 2. The ruling of the First Respondent is set aside and replaced with the following order: (a) The appeal ruling issued by the First Respondent is reviewed and set aside and replaced with the order that the dismissal of the Second and Third Respondents is confirmed. (b) There is no order as to costs.

The binding legal principles established are: (1) Under section 158(1)(h) of the LRA, the principle of legality applies, requiring that decisions must be rational and reasonable; (2) For a review to succeed under the Sidumo test, there must be both a failure or error by the decision-maker AND the outcome must be unreasonable - one that a reasonable decision-maker could not reach on the material before them; (3) Findings of procedural irregularities must be supported by evidence - bare assertions without evidentiary foundation constitute material errors rendering decisions irrational; (4) Where serious dishonest misconduct is established, particularly involving corruption in positions requiring integrity, the breakdown of the trust relationship is implicit and dismissal is the appropriate sanction; (5) A decision-maker acts irrationally when their conclusion contradicts their own findings of fact regarding the seriousness of misconduct and its consequences; (6) Material errors of fact (such as finding no sanction was determined when the record clearly shows dismissal was imposed) that affect the outcome render a decision unreasonable and reviewable; (7) The nature and gravity of misconduct may be self-evidently serious enough to warrant dismissal without requiring separate evidence of breakdown of trust.

The Court made several non-binding observations: (1) While expressing understanding for the employees' claimed motivation of assisting disadvantaged, indigent, or illiterate persons "in the name of ubuntu," the Court noted this could not excuse clear violations of regulations designed to combat corruption; (2) The Court observed that the Gauteng Department of Transport Circular specifically addressed the exact type of misconduct (hand signals) as a known challenge with examiners, indicating systemic awareness of this form of corruption; (3) The Court noted that municipalities have constitutional obligations under sections 195 and 197 of the Constitution to provide accountable government and promote safe, corruption-free environments; (4) The Court commented that it would be improbable for trained examiners not to know the expected behavior in test situations, even if they denied knowledge of specific circulars; (5) The Court observed that the absence of sound in video footage does not detract from clear visual evidence of synchronized finger-pointing and learner responses; (6) The Court noted the public interest element in matters involving road safety and the potential for fatal accidents caused by incompetent drivers; (7) Regarding costs, the Court noted that while the applicant requested costs, it would be neither just nor fair to award them in this case, without elaborating further on the reasons.

This judgment is significant in South African labour law for several reasons: (1) It clarifies the application of the legality principle and rationality test to reviews under section 158(1)(h) of the LRA in the context of the state as employer; (2) It reinforces that findings made by appeal tribunals must be rationally connected to the evidence and that material errors of fact affecting the outcome render decisions reviewable; (3) It confirms the well-established principle that dishonest conduct, particularly in positions of trust, inherently destroys the employment relationship and warrants dismissal; (4) It demonstrates that decision-makers cannot make unsupported findings of procedural irregularities without evidentiary basis; (5) It emphasizes the importance of integrity in public sector employment, particularly where employees' misconduct can have serious public safety consequences; (6) It illustrates that the seriousness of certain misconduct may be self-evident and implicitly establish breakdown of trust without requiring separate evidence to that effect; (7) It provides guidance on condonation applications in review matters under section 158(1)(h) where no specific time limit is prescribed.