On 6 May 2021, Mr Tau was employed as a driver by Dwarsrivier Chrome Mine (DCM). DCM's Project Manager, Mr Bodenstein, discovered Mr Tau driving a vehicle carrying an elephant foot bag containing explosives (detacord, safe starter, and stingers). The bag was secured with an elastic band rather than a lock, contrary to safety requirements. Mr Bodenstein testified that both Mr Tau and his supervisor Mr Kgomongaka stated that Ms Phetla from 'strike 17' had asked them to return the explosives. Mr Tau was dismissed for allowing the transportation of unlocked explosives and transporting explosives on an unapproved vehicle in contravention of regulation 4.2(1)(b)(VI) of the Mine Health and Safety Act 29 of 1996. Mr Tau's defence was that he was unaware the bag contained explosives. Ms Phetla testified that she gave the bag to Mr Kgomongaka while Mr Tau was talking to a blasting assistant, and she was unsure whether Mr Tau heard the exchange. Mr Kgomongaka had passed away before the arbitration and could not testify. The CCMA Commissioner found the dismissal substantively unfair and ordered retrospective reinstatement. DCM sought to review and set aside this award.
The review application was dismissed. There was no order as to costs.
A CCMA arbitration award will not be set aside on review where the Commissioner's preference for one version of events over another is capable of reasonable justification on the totality of the evidence, even where the probabilities are relatively closely balanced. The test is not whether the reviewing court would have reached the same conclusion, but whether the decision falls within a band of reasonable decisions that could be made on the evidence. Where direct evidence supporting the employer's version is absent (such as where key witnesses cannot testify or where a witness is uncertain about what the employee heard or knew), a Commissioner's acceptance of the employee's denial of knowledge can constitute a reasonable decision that will not be disturbed on review.
The court observed that the issue of whether Mr Tau was trained regarding the requirements for transporting explosives was a 'red herring' for purposes of the review, as the essence of his defence was that he was unaware of the bag's contents on the specific date in question, not that he knowingly transported explosives due to lack of training. The court also noted that the position may have differed if Ms Phetla had testified that she had informed Mr Tau of what was in the bag, or that he heard her conversation with Mr Kgomongaka, or if Mr Kgomongaka had been available to testify to that effect - suggesting that such evidence may have tipped the balance in favour of the employer's version.
This case illustrates the application of the test for reviewing CCMA arbitration awards in South African labour law. It confirms the limited scope of review where credibility findings and evidentiary assessments are involved. The judgment demonstrates that courts will not interfere with a Commissioner's factual findings and preference for one version over another where the evidence is relatively balanced and the decision falls within a band of reasonableness. The case also highlights the importance of direct evidence in disciplinary matters involving mine health and safety violations, particularly where the employee's knowledge or mens rea is a central element of the misconduct. It reinforces that even in serious safety violations, employers bear the burden of proving not just the actus reus but also the employee's knowledge or intent, and that the absence of direct evidence on this point may result in a finding of unfair dismissal being sustained on review.