THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 315/08

SHOPRITE CHECKERS (PTY) LTD

Appellant

and

COMMISSION FOR CONCILIATION, MEDIATION AND      First Respondent
ARBITRATION

COMMISSIONER B MBHA NO

Second Respondent

RETAIL AND ALLIED WORKERS UNION

Third Respondent

J MAAKE

Fourth Respondent
______________________________________________________________

Neutral citation:
Shoprite v CCMA and others (315/08) [2008] ZASCA 24
(27 March 2009)

CORAM:

Navsa, Jafta, Ponnan, Mlambo JJA and Leach AJA

HEARD:

6 March 2009
DELIVERED:
27 March 2009
CORRECTED:

SUMMARY:
Review of CCMA award ─ standard ─ reasonableness
─ power of reviewing court ─ application of s 145 of the Labour
Relations Act 66 of 1995 ─ unacceptable delay in finalising labour
matters.

______________________________________________________________

______________________________________________________________
ORDER
______________________________________________________________

On appeal from:
Labour Court, Johannesburg (Zondo JP sitting as court of
first instance).
1.
The appeal is upheld and there is no order as to costs.
2.
The order of the LAC is substituted as follows:
‘(a)
Both the appeal and the cross-appeal are dismissed and each party is to pay its own
costs.
(b)
The order of the Labour Court is set aside and replaced with the following:
“Both the review and counter review applications are dismissed and there is to be no order as
to costs.” ‘
______________________________________________________________
JUDGMENT
______________________________________________________________

NAVSA et PONNAN JJA (Jafta, Mlambo JJA and Leach AJA concurring):

[1] This is an appeal, with the leave of this court, against a judgment of the
Labour Appeal Court (the LAC). Leave was granted on the limited issue of the
correctness of the remedy afforded to Mr Jan Maake, the fourth respondent,
which was reinstatement with retrospective effect to the time of dismissal.

[2] Regrettably, as will become evident, this case has had a long and
gruelling journey. Counsel for the appellant urged us to give due consideration
to what he described as systemic failures. We should all be concerned about
the long delays in finalising especially labour matters. This is an aspect to
which we will revert later in this judgment.

[3] Mr Maake was employed by Shoprite Checkers (Pty) Ltd (Shoprite), a
national supermarket chain, in 1972. At the material time, he worked for
Shoprite as a controller in its delicatessen at its Silverton shop. Mr Maake’s
problems leading to the litigation which culminated in the present appeal,
started during the last quarter of 2000 when, without authority, he consumed

food belonging to Shoprite. The consumption of the food in the delicatessen
was captured on a surveillance camera and led to disciplinary proceedings
against him during November 2000.

[4] At the disciplinary enquiry Mr Maake was charged with three instances
of misconduct, namely, of eating (on three separate occasions) Shoprite’s
food without authorisation, in areas where doing so was prohibited. It is
common cause that Shoprite’s rules prohibited eating in most of the areas in
the store, including the delicatessen. He was found guilty on all counts and his
services were terminated by Shoprite on 2 December 2000. By this time he
had been employed by Shoprite for nearly 30 years.

[5] It is unchallenged that, at the time of the commission of the offences by
Mr Maake, shrinkage at Shoprite’s Silverton store was becoming an
increasing problem. The precise nature of the shrinkage is not known.1 We do
know that shrinkage at the store had increased from 1.5 per cent to 4 per cent
─ the norm for such stores is 1.5 per cent. This led to the installation of
cameras within the store, in an attempt to identify those responsible for the
shrinkage.

[6] It is undisputed that, during the period 14 September 2000 –
21 October 2000, the camera captured Mr Maake in the delicatessen eating
items of food. On at least two occasions Mr Maake was consuming food that
clearly belonged to Shoprite. The video clips show Mr Maake, on each
occasion, taking an item, first from a table and then off a plate, before
consuming it. Neither the nature of the food, nor its value, was established.

[7] Mr Maake did not appeal his dismissal internally.

[8] The Retail and Allied Workers Union (RAWU), of which Mr Maake was
a member, referred the matter, on his behalf, to the Commission for

1 During arbitration proceedings Mr Jurie Kemp, who was the store manager at the relevant
time, testified that theft by customers, incorrect pricing of goods and pilferage by staff could all
be contributing factors. We do not know in which departments the problem was most
prevalent.

Conciliation, Mediation and Arbitration (the CCMA) in terms of the Labour
Relations Act 66 of 1995 (the LRA), initially for conciliation and later for
arbitration.

[9] On 3 April 2001, Commissioner Mathee found that Shoprite had not
acted substantively or procedurally fairly and ordered Mr Maake’s
retrospective reinstatement to the date of his dismissal.

[10] On 10 May 2001, Shoprite, dissatisfied that it had to reinstate
Mr Maake, launched a review application in the Labour Court in terms of
s 145 of the Act. The Labour Court (Waglay J) handed down its judgment and
made the following order on 10 May 2002:
‘In the result I am satisfied that [Ms Mathee] did in fact commit gross misconduct in relation to
her duties as arbitrator and the award is therefore liable to be reviewed and set aside.’
It took almost a year for this review process to run its course.

[11] The matter was referred back to the CCMA for arbitration afresh. The
Commissioner involved in the new arbitration was the second respondent,
Commissioner Mbha. Arbitration commenced on 13 September 2002 and was
finalised on 7 August 2003 ─ a period of almost 11 months. The
Commissioner found that Mr Maake had breached the rule referred to above.
He held, however, that dismissal was not peremptory. He considered, in
relation to the offence in question, that discipline in the workplace had to be
progressively imposed. He took into account Mr Maake’s clean long service
record and in the totality of the circumstances held that dismissal was too
harsh a sanction.

[12] Commissioner Mbha held that Mr Maake should be given a ‘severe’
final written warning, valid for six months. Shoprite was ordered to reinstate
Mr Maake. The reinstatement would take effect from the date of the award
and not from the time of dismissal.

[13] That award was once again taken on review by Shoprite in terms of
s 145 of the Act. Shoprite, it appears, was intent on securing Mr Maake’s

dismissal. It complained that the Commissioner had failed to take into account
that reinstatement would set a precedent amongst its other employees who
would, as a consequence, be left with the impression that unauthorised
consumption attracted only the sanction of a written warning. Shoprite
contended that this would lead to inconsistency in applying discipline ─
several people had already been dismissed for the same offence. It was also
submitted that reinstatement would mean that Shoprite would be required to
continue employing dishonest people.

[14] Mr Maake, in turn, launched a counter application, challenging the
finding that he was guilty of misconduct and, in addition, complained about the
terms of his reinstatement and the sanction imposed. During the disciplinary
proceedings Mr Maake had denied that he was the person on the video clips.
During the arbitration proceedings however, Mr Maake ultimately admitted
that he was that person. His case then was that he had authority to taste food
prepared in the delicatessen and was therefore only doing his job rather than
being guilty of misconduct. In his counter application he reverted to his earlier
denial that he was the person who featured in the video clips consuming food.
It is safe to say that Mr Maake was not contrite.

[15] The second review application, once again, came before Waglay J who
encountered problems with the record of the second arbitration. His judgment
reflects that there was no transcript available. During the hearing before
Waglay J, a transcript of Commissioner Mbha’s handwritten notes was
provided and the parties were agreed that they were a fair reflection of the
arbitration proceedings and were prepared to have the matter decided on that
basis.

[16] On 13 August 2004, Waglay J, probably to the distress of both parties,
stated the following in his judgment:
‘In this matter having regard to the summary of evidence I am satisfied that the decision of
[Commissioner Mbha] was not one open to be reviewed. However, I am mindful of the fact
that there is discontent on the part of both parties. Because of the unhappiness compounded

by the absence of a proper record I believe that the best course to follow is to refer the matter
back…for [it] to be arbitrated afresh before a [different] Commisioner.’
Yet again, Waglay J ordered that the matter be referred back to the CCMA for
arbitration before a different Commissioner. Like the first, the second review
had also taken almost one year to be finalised.

[17] Shoprite, with the leave of the Labour Court granted on 18 July 2005,2
appealed that order to the LAC, contending, inter alia, that Waglay J should
have decided the matter on the transcript presented to him. Mr Maake and his
union, both noted a cross-appeal, maintaining that a reinstatement order
retrospective to the time of dismissal was justified.

[18] The matter was heard by the LAC on 15 September 2006, more than a
year after leave was granted. Judgment was handed down on 21 December
2007, more than 15 months later. Zondo JP, writing for a unanimous court,
said the following about the Labour Court’s approach to the matter (set out in
para 16 above):
‘If that order…was given effect to, the new commissioner…would have been the third
commissioner and the parties and the witnesses who had already testified in the previous two
arbitrations…would be called to testify and those [who] had given evidence in the disciplinary
hearing would have [been] subjected to cross-examination for the fourth time on the same
events.’

[19] The learned Judge-President went on to record the following:
‘The order of the Labour Court in the second review application was issued on 13th August
2004. That would have been over three and a half years since the fourth respondent’s
dismissal. What would happen if some important witnesses who had given evidence in the
earlier two arbitrations were, for some or other reason, no longer available to give evidence?
What would happen if the unavailability of some or other important witness who had testified
in the earlier arbitrations led to a result which could not have ensued if he had been available
and had given evidence? Of course, the result could well be a miscarriage of justice.’

2 The application for leave to appeal was disposed of 11 months after judgment.

[20] The LAC decided the appeal by Shoprite and the cross-appeal by
Mr Maake. It held that the finding by Commissioner Mbha that dismissal was
not warranted was unassailable. In respect of Mr Maake’s submission that a
final warning as a sanction was unjustified, Zondo JP rightly disagreed.

[21] The LAC held that Commissioner Mbha erred in not ordering
retrospective reinstatement. It found that denying Mr Maake the benefit of
reinstatement up to the time of dismissal would, in the light of the sanction of
a final warning, be too punitive. The LAC took into consideration the period of
more than two and a half years that had passed from the time of Mr Maake’s
dismissal up to the time of Commissioner Mbha’s award and that he had been
without remuneration for that period. The LAC found that Commissioner
Mbha’s failure to order retrospective reinstatement was not justifiable, nor
reasonable nor rational. In arriving at this decision the court took into account
Mr Maake’s length of service, his clean disciplinary record and the ‘indignity’
of the preceding two and a half years without income. Zondo JP accepted that
shrinkage was a problem for Shoprite but concluded that, in the totality of the
circumstances, it was unreasonable to deny Mr Maake the benefit of his
salary for the period between his dismissal and Commissioner Mbha’s award.

[22] In the result, on 21 December 2007 the LAC made the following order:
‘1.
The appeal is dismissed and the cross-appeal is upheld in part.
2.
Each party is to pay its own costs in regard to the appeal and cross-appeal.
3.
The order of the Labour Court is set aside and replaced with the following order:
“(a)
The review application is dismissed.
(b)
There is to be no order as to costs.
(c)
The counter-review application is granted in part.
(d)
The commissioner’s decision not to make the operation of the order of reinstatement

retrospective to the date of dismissal is hereby reviewed and set aside.
(e)
There is to be no order as to costs.
(f)
The commissioner’s arbitration award is amended by the addition of the following
order thereto:

“(i)
The order reinstating the applicant is to operate with retrospective effect to

the date of the applicant’s dismissal.” ’

[23] It is against that order that Shoprite sought leave to appeal from this
court. In granting leave this court stated:
‘The appeal is limited to the correctness or otherwise of the remedy that was allowed to [Mr
Maake].’
Put differently, the question is whether the LAC ought to have substituted the
award by Commissioner Mbha in the terms set out in the preceding
paragraph.

[24] As was stated in Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA
24 (CC) para 55, the starting point in an enquiry such as the present is the
Constitution. Everyone – employees and employers alike – has a right to fair
labour practices (s 23(1)). The primary purpose of the Labour Relations Act
('LRA') is to give effect to the fundamental rights conferred by s 23.

[25] In deciding how commissioners should approach the task of
determining the fairness of a dismissal, it is important to bear in mind that
security of employment is a core value of the Constitution which has been
given effect to by the LRA.3 Thus whilst the decision to dismiss belongs to the
employer, the determination of its fairness does not.4 The statutory scheme
requires a commissioner to determine whether a disputed dismissal was fair.

[26] No appeal lies against a decision of a commissioner. The only remedy
available to a party in a matter such as the present one is to institute review
proceedings in the Labour Court. Section 158(1)(g) confers on the Labour
Court the power to review the performance or purported performance of any
function provided for in the LRA on any grounds that are permissible in law.
That power, whilst fairly wide, is subject to s 145, which to the extent here
relevant, provides:
'(1)
Any party to a dispute who alleges a defect in any arbitration proceedings under the
auspices of the Commission may apply to the Labour Court for an order setting aside the
arbitration award –
(a)
within six weeks of the date that the award was served on the applicant, ...

. . .

3 Sidumo para 72.
4 Sidumo para 75.

(2)
A defect referred to in subsection (1), means –
(a)
that the commissioner–

(i)
committed misconduct in relation to the duties of the commissioner as an

arbitrator;

(ii)
committed a gross irregularity in the conduct of the arbitration proceedings; or

(iii)
exceeded the commissioner's powers; or
(b)
that an award has been improperly obtained.'
The general powers of review of the Labour Court under s 158(1)(g) are
therefore circumscribed by the provisions of s 145(2) which prescribe the
grounds upon which arbitral awards of CCMA commissioners may be
reviewed. It follows that a party who wishes to challenge an arbitral award
under s 145(2) can only do so on one or more of the grounds envisaged in
that section.

[27] Section 145 is now suffused by the constitutional standard of
reasonableness, the question to be asked being: 'Is the decision reached by
the commissioner one that a reasonable decision-maker could not reach?'5
Applying that standard will give effect not only to the constitutional right to fair
labour practices, but also the right to administrative action which is lawful,
reasonable and procedurally fair.6

[28] There may well be a fine line between a review and an appeal,
particularly where ─ as here ─ the standard of review almost inevitably
involves a consideration of the merits. However, whilst at times it may be
difficult to draw the line, the distinction must not be blurred.7 The drafters of
the LRA were clearly alive to the distinction. They accordingly sought to
introduce a cheap, accessible, quick and informal alternative dispute
resolution process. In doing so, appeals were specifically excluded. They
said:
'In order for this alternative process to be credible and legitimate and to achieve the purposes
of the legislation, it must be cheap, accessible, quick and informal. These are the
characteristics of arbitration, whose benefits over court adjudication have been shown in a
number of international studies. The absence of an appeal from the arbitrator's award speeds

5 Sidumo para 110.
6 Sidumo para 110.
7 Sidumo paras 109 & 244.

up the process and frees it from the legalism that accompanies appeal proceedings. It is
tempting to provide for appeals because dismissal is a very serious matter, particularly given
the lack of prospects of alternative employment in the present economic climate. However,
this temptation must be resisted as appeals lead to records, lengthy proceedings, lawyers,
legalism, inordinate delays and high costs. Appeals have a negative impact on reinstatement
as a remedy, they undermine the basic purpose of the legislation and they make the system
too expensive for individuals and small business. Without reinstatement as a primary remedy,
the draft Bill's prohibition of strikes in support of dismissal disputes loses its legitimacy.
Prior to the establishment of the present LAC, it was argued that an appeal structure would
provide the consistency required to develop coherent guidelines on what constitutes
acceptable industrial relations practice. This has not been the case. The LAC's judgments
lack consistency and have had little impact in ensuring consistency in judgments of the
industrial court. The draft Bill now regulates unfair dismissal in express and detailed terms
and provides a Code of Good Practice to be taken into account by adjudicators. This will go a
long way towards generating a consistent jurisprudence concerning unfair dismissal despite
the absence of appeals.'8

[29] Returning to the facts of this case. In our view, the LAC appears in this
particular instance to have misconceived the nature of its function. The LAC
concluded that Waglay J ought to have finalised the review application instead
of setting aside the arbitral award and remitting the matter to the CCMA for a
hearing de novo. Ordinarily, in those circumstances the LAC ought itself to
have remitted the matter to the Labour Court for finalisation. It chose instead
to finalise the matter itself. Given the inordinate length of time that had passed
since the dismissal, one would hesitate to criticise the approach of the LAC.

[30] In following this approach however, it effectively stepped into the shoes
of the Labour Court and was thus exercising, not its traditional appeal powers,
but rather the fairly circumscribed s 145(2) review powers of the Labour Court.
Its warrant for interference with the award of the arbitrator was narrowly
confined. Tellingly, Waglay J stated in his judgment that [w]hen consideration
is given to the limited record, the findings of the [arbitrator] cannot be faulted’.
This ‘limited record’ was ultimately the record on which the matter was
decided by the LAC. Given the decision-making powers conferred upon the
arbitrator and having regard to the reasoning of the commissioner, it cannot

8 Explanatory Memorandum (1995) 16 ILJ 278 at 318, as cited in Sidumo para 244.

be said that his conclusion was one that a reasonable decision-maker could
not reach.

[31] Since the decision in Sidumo during the first half of 2008 numerous
cases have been decided in labour courts based on the reasonableness test
formulated therein.9 A multitude of arbitrations would no doubt have occurred
from that time, with commissioners discharging their duties and obligations in
terms of the Labour Relations Act in the manner carefully and
comprehensively spelt out by the Constitutional Court in that decision. Courts
should strive to ensure a cohesive and consistent jurisprudence which
promotes the rule of law. Workers and employers alike are entitled to certainty
in the law as they strive to regulate their relationship in an environment that is
often prone to disquiet and tension.

[32] There was, in any event, a further limitation on the powers of
interference by the LAC.  Section 193(1)(a) provides that if the arbitrator finds
that the dismissal is unfair, he or she may order the employer to reinstate the
employee from any date not earlier than the date of dismissal. Those words
clearly confer a discretion upon the arbitrator to order reinstatement which is
not retrospective to the date of dismissal. The LAC in NUMSA v Fibre Flair
CC t/a Kango Canopies10 held that the test for interference in a discretion
exercised in terms of s 193(1)(a) is that formulated in Ex Parte Neethling.11 It
has not been shown in this matter that the arbitrator exercised his discretion
capriciously or upon a wrong principle or upon any other ground justifying
interference.

9 In the Industrial Law Journal Vol 29 July 2008 Nicola Smit sets out the following list of cases
decided in 2008 which applied the test of the reasonable decision maker:
Edcon Ltd v Pillemer NO (2008) 29 ILJ 614 (LAC), Ster Kinekor Films (Pty) Ltd v Maseko NO
[2008] JOL 21393 (LC), Mkhwanazi v Moodley NO (2008) 29 ILJ 1535 (LC), Hulett Aluminium
(Pty) Ltd v Bargaining Council for the Metal Industry (2008) 29 ILJ 1180 (LC), [2008] 3 BLLR
241 (LC), Coca-Cola Fortune (Pty) Ltd v CCMA (Sibiya) [2008] JOL 21186 (LC), Consol
Speciality Glass v NBC Cleaning Industry [2008] JOL 21073 (LC), MEC for Health (Gauteng)
v Mathamini (2008) 29 ILJ 366 (LC) and Astore Africa (Pty) Ltd v CCMA [2008] 1 BLLR 14
(LC). No doubt this list has grown considerably since then.
10 [2006] 6 BLLR 631 (LAC).
11 1951 (4) SA 331 (A) at 335E.

[33] It is true that the systemic failures referred to by Shoprite’s counsel
made life difficult for both parties. The delays in no way serve to detract from
the correctness of Commissioner Mbha’s reasoning. Nor do they bring the
matter within the terms of s 145(2) of the LRA. It remains eminently
reasonable. It should also be borne in mind that, by the time the matter came
before the LAC, further systemic delays had impacted on both employer and
employee. The answer is to eliminate systemic failure rather than punish
either employers or employees unjustifiably. By interfering with the decision of
the arbitrator, the LAC was therefore in effect substituting its discretion for that
of the arbitrator. That it was not permitted to do.

[34] It follows that the appeal should succeed. Before concluding it is,
however, necessary to deal with one remaining aspect. It is the question of
the delays in finalising this matter. It is necessary to record that neither Mr
Maake nor the union were represented at the hearing of this appeal. Both filed
notices to abide the decision of this court. A period of more than eight years
has passed since Mr Maake was dismissed. The entire scheme of the LRA
and its motivating philosophy are directed at cheap and easy access to
dispute resolution procedures and courts. Speed of result was its clear
intention. Labour matters invariably have serious implications for both
employers and employees. Dismissals affect the very survival of workers. It is
untenable that employees, whatever the rights or wrongs of their conduct, be
put through the rigours, hardships and uncertainties that accompany delays of
the kind here encountered. It is equally unfair that employers bear the brunt of
systemic failure. The Registrar has been directed to serve this judgment on
the Director of the CCMA. No doubt the LAC and the Labour Court will
address the issues referred to above.

[35] For all the reasons set out above, the following order is made:
1.
The appeal is upheld and there is no order as to costs.
2.
The order of the LAC is substituted as follows:
‘(a)
Both the appeal and the cross-appeal are dismissed and each party is to pay its own
costs.

(b)
The order of the Labour Court is set aside and replaced with the following:
“Both the review and counter review applications are dismissed and there is to be no order as
to costs.” ‘

_________________
M S NAVSA
JUDGE OF APPEAL

_________________
V M PONNAN
JUDGE OF APPEAL

APPEARANCES:

For Appellant:
A T Myburgh

Instructed by

Perrott, Van Niekerk, Woodhouse, Matyolo Inc Johannesburg

Lovius Block Bloemfontein

For Respondent:
-

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
27 March 2009
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal

On 27 March 2009 the Supreme Court of Appeal handed down
judgment in Shoprite Checkers (Pty) Ltd v CCMA and others. This was
an appeal against a judgment of the Labour Appeal Court, in terms of
which it reinstated an employee with retrospective effect to the date of
his dismissal.

The labour dispute culminating in the appeal has had a long, gruelling
and unsatisfactory journey. The employee concerned, Mr Jan Maake,
was dismissed by the appellant, Shoprite Checkers (Pty) Ltd, on 2
December 2000 for unlawfully consuming food belonging to it in areas in
which such consumption was prohibited. This occurred on at least two
occasions. On each occasion Mr Maake, who worked as a supervisor in
the delicatessen at Shoprite’s Silverton store, removed an item from a
plate and consumed it. The value of the food he consumed was not
established.

Shrinkage in the store, due to a variety of factors, was an increasing
problem leading to the installation of surveillance cameras which caught
Mr Maake in the acts that led to his dismissal.

Mr Maake’s dismissal followed upon internal disciplinary proceedings.
Mr Maake’s union, the Retail and Allied Workers Union, referred the
matter, on his behalf, to the Commission for Conciliation, Mediation and

Arbitration (the CCMA), initially for conciliation and later for arbitration.
On 3 April 2001 a Commissioner found that Shoprite had not acted
substantively
or
procedurally
fairly
and
ordered
Mr
Maake’s
reinstatement retrospective to the date of his dismissal.

On 10 May 2001 Shoprite, intent on a dismissal, launched a review
application in the Labour Appeal Court in terms of s 145 of the Labour
Relations Act 66 of 1995 (the LRA). The Labour Court held that the
Commissioner
had
acted
improperly
in
ordering
retrospective
reinstatement, set aside the award and referred the matter back to the
CCMA for arbitration afresh. The review process took almost a year to
run its course.

A new arbitration commenced on 13 September 2002 and was finalised
almost 11 months thereafter on 7 August 2003. The new Commissioner,
Mr Mbha, the second respondent, found that Mr Maake was guilty of the
conduct complained of. He held that dismissal was not peremptory. He
took into account that Mr Maake had been employed by Shoprite for
almost 30 years and had a clean record. Mr Mbha held that Mr Maake
should be given a final written warning valid for six months. He ordered
Shoprite to reinstate Mr Maake from the date of the award rather than
from the time of dismissal.

Shoprite, in its pursuit of a dismissal, once again took the award on
review before the Labour Court. This time a transcript of the CCMA
proceedings was missing. The parties agreed that a transcript of the
Commissioner’s written notes could be used to reach a decision. The
Labour Court disagreed and on 13 August 2004, once again, referred
the matter back to the CCMA for arbitration afresh.

Shoprite appealed that order to the Labour Appeal Court (the LAC)
which heard the matter on 15 September 2006 and handed down
judgment more than 15 months later on 21 December 2007. The LAC
set aside the order of the Labour Court and the award of Commissioner
Mbha, substituting it with an order that Mr Maake be reinstated to the
date of dismissal.

This court granted Shoprite leave to appeal only against the propriety of
the reinstatement order. It upheld the appeal. This court considered the
test to be applied in reviewing an award by the CCMA and held that
Commissioner Mbha’s reasoning and conclusions could not be faulted. It
found that he had exercised his discretion in relation to reinstatement
properly. This court was critical of the numerous delays in this matter. It

expressed concern that labour matters took so long (eight years) to
finalise considering the hardships faced by workers and the impact on
employers. The Registrar was directed to bring the judgment to the
attention of the Director of the CCMA. This court was confident that both
the Labour Court and the Labour Appeal Court would take appropriate
steps to ensure that this kind of delay would be averted in the future.