Madibane Bokang Mahlobogwane v Capricorn District Municipality and Others; Capricorn District Municipality v South African Local Government Bargaining Council and Others

The employee was the Human Resource Manager of the Capricorn District Municipality. She faced six charges of misconduct (charges 1–4: gross dishonesty; charges 5–6: gross misconduct). On 25 January 2022, the employee and the Municipality concluded a written plea and sanction agreement in terms of clause 10 of the Disciplinary Procedure Collective Agreement 2018–2023. The agreement provided that she pleaded guilty to charge 6, would receive a written warning and suspension without pay for ten days over three months, that charges 1–5 would be withdrawn, and that she would resume duty on 1 February 2022. In terms of clauses 8.3.8 and 10.2 of the Collective Agreement, the disciplinary chairperson approved the agreement. On 28 January 2022, the Municipality purported unilaterally to withdraw from the agreement, citing the seriousness of the allegations and public interest. Notwithstanding the chairperson's approval, the Municipality reconstituted disciplinary proceedings in May 2022 on the same (or materially similar) charges before the same chairperson. The second hearing resulted in the employee's dismissal on 18 May 2023. The employee referred an unfair dismissal dispute to the SALGBC. The arbitrator found that the approved plea and sanction agreement was valid and binding, that the Municipality could not unilaterally withdraw from it, and that re-instituting proceedings on the same charges was unfair; however, the arbitrator declined reinstatement and awarded compensation equivalent to ten months' remuneration, relying on allegations of unethical conduct underpinning the withdrawn charges. Both parties instituted review applications before the Labour Court: the Municipality (JR1357/24) challenged the finding of substantive unfairness, and the employee (JR1211/24) challenged the remedy.

• Whether an employer may unilaterally withdraw from a chairperson-approved plea and sanction agreement and subject an employee to a second disciplinary hearing on the same charges.
• Whether the arbitrator's finding that the dismissal was substantively unfair is reviewable under the Sidumo reasonableness standard or constitutes a material error of law.
• Whether the arbitrator erred in law by denying reinstatement and awarding compensation based on allegations of misconduct that had been withdrawn in terms of the binding plea and sanction agreement.
• Whether the statutory exceptions to reinstatement in section 193(2)(b) and (c) of the LRA were established on the evidence.

The Municipality's review application (JR1357/24) was dismissed. The employee's review application (JR1211/24) succeeded. The arbitration award was reviewed and set aside to the extent that it awarded compensation. Paragraphs 93 and 94 of the award were substituted with an order that: (1) the Municipality reinstate the employee retrospectively from the date of dismissal on the same terms and conditions without loss of benefits; (2) the Municipality pay the employee backpay from the date of dismissal until the April 2026 salary, within 21 calendar days; and (3) the employee report for duty on 11 May 2026. No order as to costs was made.

1. A plea and sanction agreement concluded in accordance with a collective agreement and approved by the disciplinary chairperson acquires the status of a binding disciplinary determination that brings finality to the disciplinary process; the employer is not entitled unilaterally to withdraw from such an agreement and re-institute disciplinary proceedings on the same charges in the absence of exceptional circumstances such as newly discovered information, common mistake, fraud, or corruption. 2. An employer seeking to subject an employee to a second disciplinary enquiry in respect of the same misconduct bears the onus of establishing that it is fair to do so; generalised assertions regarding the seriousness of the charges or public interest, unsupported by evidence, do not meet the required threshold. 3. Under section 193 of the LRA, reinstatement is the primary remedy for substantively unfair dismissal, and a commissioner is obliged to order reinstatement unless the employer discharges the onus of proving that reinstatement would be intolerable or reasonably impracticable within the meaning of section 193(2)(b) or (c). 4. A commissioner commits a material error of law constituting a gross irregularity if they rely on allegations of misconduct that were expressly withdrawn in terms of a binding plea and sanction agreement to justify the refusal of reinstatement, particularly where no evidence is led to establish the statutory exceptions to reinstatement.

The Court observed that although an explanation for delay in filing an answering affidavit may be poor, condonation may nonetheless be granted in the interests of justice where the delay is relatively limited, the opposing party suffers no prejudice, and the applicant enjoys reasonable prospects of success. The Court also noted the general principle that costs do not follow the result in labour matters and that no facts justified a departure from that approach in the present case.

The judgment clarifies that a plea and sanction agreement approved by a disciplinary chairperson under a collective agreement constitutes a binding disciplinary determination that finally resolves the proceedings, and that an employer may not unilaterally resile from it and subject an employee to a second hearing on the same charges without establishing exceptional circumstances. It reaffirms that the employer bears the onus of demonstrating fairness before a second disciplinary enquiry may be held. The judgment also reinforces the primacy of reinstatement under section 193 of the LRA, emphasising that a commissioner may not rely on withdrawn allegations contained in a binding plea agreement to refuse reinstatement and award compensation, and that the statutory exceptions of intolerability and reasonable impracticability require rigorous proof.