Mkhize v Department of Correctional Services

Mr Mkhize was employed as a warder at the Johannesburg correctional centre by the Department of Correctional Services. In January 2008, after a disciplinary enquiry which he mostly refused to attend, he was found guilty of bringing dagga into the prison and dismissed. His colleague, Mr Sibiya, had made a report to the assistant head that dagga was in Mkhize's bag, leading to investigation and dismissal. Mkhize challenged his dismissal through arbitration at the General Public Services Sectoral Bargaining Council. The arbitrator held the dismissal was procedurally and substantively fair on 30 October 2008. Mkhize's review application was dismissed by the Labour Court on 21 June 2012 and the Labour Appeal Court refused leave to appeal on 28 February 2013. In October 2012, Mr Sibiya swore an affidavit confessing he gave false evidence against Mkhize out of personal antagonism, claiming a prisoner named Zola had planted the dagga seeds in Mkhize's bag and that he witnessed this but falsely reported it as Mkhize's misconduct. Mkhize sought special leave to appeal to the Supreme Court of Appeal and to introduce this new evidence.

• Whether the Supreme Court of Appeal should interfere with decisions of specialised labour tribunals on review and appeal
• Whether new evidence (Sibiya's recanting affidavit) should be admitted at the appeal stage
• How to deal with potentially material new evidence from a recanting witness that requires testing
• What is the appropriate remedy when new material evidence emerges after finalisation of lower court proceedings
• What is the appropriate costs order where an appeal succeeds based on new evidence but the original decision was correct on the evidence available

1. The appeal was upheld. 2. The Labour Appeal Court's refusal of leave to appeal, the Labour Court's dismissal of the review, and the arbitrator's decision of 30 October 2008 were all set aside. 3. No order as to costs in the Labour Court and Labour Appeal Court. 4. The matter was remitted to the General Public Services Sectoral Bargaining Council to continue arbitration before the same or another arbitrator on the sole question of whether the dismissal was substantively unfair. 5. In the resumed hearing, previous evidence would remain on record, and the arbitrator would hear evidence from Mr Sibiya, any further evidence arising therefrom, and further evidence or cross-examination of previous witnesses if requested. 6. The Department would pay Mkhize's costs of the appeal only if he obtained reinstatement or compensation exceeding s 194(1) of the LRA and such order became final and binding. 7. Otherwise no order for costs in the appeal.

The binding legal principles established are: (1) The Supreme Court of Appeal has limited scope to interfere with decisions of specialised labour tribunals and will not ordinarily revisit factual and procedural issues decided below. (2) Where new material evidence emerges after finalisation of labour proceedings that could potentially indicate a miscarriage of justice, such evidence cannot simply be accepted at face value but must be tested through proper evidentiary processes. (3) Evidence from a recanting witness requires particular caution and must be subjected to cross-examination and corroboration. (4) Where new material evidence requires testing, the appropriate remedy is to set aside previous decisions and remit the matter to the original tribunal for a de novo determination on the specific issues affected by the new evidence, with previous evidence remaining on record. (5) Costs should not ordinarily be awarded against a party who was technically successful on the evidence available at the time, even where proceedings are set aside based on subsequently discovered evidence. (6) In individual labour dismissal cases, costs orders should reflect whether substantial success is achieved, with statutory maximum compensation not constituting substantial success warranting costs.

The court made several non-binding observations: (1) Given the lapse of time since dismissal, it was improbable that reinstatement would be ordered as a remedy even if unfairness was established. (2) If Mkhize pursued reinstatement but only obtained limited statutory compensation, 'the game will not have been worth the candle' and the pursuit would have been unreasonable. (3) It was perfectly possible that the fairness of the Department's treatment might be reiterated in the resumed proceedings. (4) The Department could not be blamed for Sibiya's dishonesty as it had no reason to believe he was being duplicitous. (5) The court noted that the affidavit's terms suggested someone other than Sibiya, possibly with legal training, may have drafted it. (6) The court acknowledged the general practice in labour disputes arising from individual dismissals is not to make costs orders in favour of successful employers. (7) The order in the special leave decision attempting to deem the affidavit admitted if not objected to within 21 days was 'clearly incompetent' under s 22(a) of the Supreme Court Act.

This case is significant for establishing the circumstances in which appellate courts will admit new evidence and remit matters for de novo determination in labour dismissal cases. It demonstrates the Supreme Court of Appeal's approach to potentially material evidence from recanting witnesses that emerges after labour tribunal proceedings have been finalised. The judgment affirms the limited scope for appellate interference with specialist labour tribunals while recognising that new material evidence indicating a possible miscarriage of justice warrants exceptional intervention. It also illustrates the flexible approach to costs in labour matters, particularly where technical success does not represent substantive vindication. The case reinforces the principle that evidence from recanting witnesses cannot simply be accepted but must be tested through proper evidentiary processes. It demonstrates the court's willingness to use its broad powers under the Supreme Court Act to ensure justice while respecting the specialized nature of labour tribunals.