The court ordered that both the city's condonation application and review application be dismissed.
A Cape Town traffic officer who was dismissed for assaulting a member of the public over an alleged stolen television has lost his bid to overturn the decision.
The Labour Court dismissed both his review application and the City of Cape Town’s late application for condonation.
Simphiwe Matyholo, an Inspector in Traffic Services with 13 years of experience as a traffic officer and eight years as a police officer, launched the review application on 1 June 2022.
He challenged Commissioner Gordon Edwards’ arbitration award that upheld his dismissal for assaulting, threatening, and allegedly stabbing someone he believed had stolen his TV while he was off duty.
The Labour Court handed down its judgment on Monday, 29 September 2025, after hearing the matter on 27 June 2025.
City’s late filing dismissed
The court first dealt with a procedural matter. Matyholo objected to the City of Cape Town filing its answering affidavit four months late.
The city’s explanation focused primarily on difficulties securing legal services. Not every period of delay was explained in the founding papers for condonation, but was instead more fully described in the replying affidavit.
Matyholo argued the case for condonation should have been made in the founding papers, not in reply.
The city also failed to address prospects of success or prejudice against Matyholo in its papers.
Acting Judge Barthus found the city’s application lacking.
“The Respondent did not make out a case for condonation that meets the requirements to satisfy such an indulgence, and the condonation application is therefore deficient,” he stated.
The court dismissed the condonation application.
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Grounds for review
Matyholo conceded upfront that “the findings made by the Commissioner on the evidence fall within the band of reasonableness”. He did not challenge the merits of the factual findings.
Barthus noted: “There is, therefore, no need to delve into the reasonableness of the findings on the merits, since there is no challenge to this portion of the award.”
Matyholo’s review focused on three main issues. First, he argued that the commissioner erred in finding a nexus between the misconduct and his employment, despite the lack of evidence from the city.
He relied on the Edcon Limited v Cantamessa case, arguing it was incumbent on the employer to lead evidence that the conduct destroyed or seriously damaged the employment relationship.
Second, Matyholo claimed the commissioner committed an irregularity by considering regulations and legislation not submitted by the city. He was not given an opportunity to make submissions on these.
Third, he argued the commissioner failed to state expressly that his dismissal was substantively and procedurally fair, thereby misconstruing the nature of the dispute.
Nexus between misconduct and employment
The court rejected Matyholo’s first argument. Barthus found that the commissioner dealt comprehensively with the connection between the offence and the employment relationship.
The judgment referenced the Edcon case, which established that employees must avoid being controversial in the public’s eyes where they could be associated with their employer.
In that case, the court maintained that behaviour exposing an employer to reputational risk was enough, even without proof of actual damage.
Barthus found Matyholo had a responsibility to conduct himself properly, especially because of his job and role in society.
“The applicant, as a municipal member and a law enforcement officer, had an obvious duty not to conduct himself in a manner that would bring the Third Respondent into disrepute and especially not to engage in the unlawful act of assault, where he was a custodian of public peace and law and order,” he stated.
Within this context, the city did not need to prove the employment relationship had been destroyed. This was because of the established nexus between the misconduct and the nature of the employment.
The city submitted Matyholo could not be trusted to perform the duty of a traffic or peace officer after taking the law into his own hands. The judge found this conclusion logical.
He added: “It is therefore reasonable that the commissioner had difficulty understanding the applicant’s assertion that it was incumbent on the Employer to lead evidence that the misconduct destroyed or seriously damaged the employment relationship.”
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Commissioner’s reference to regulations
On the second ground, the court found the city cited the Municipal Systems Act in its submissions before the commissioner. However, it did not cite the Saps Regulations or the National Road Traffic Enforcement Code (NRTEC).
The commissioner’s reference to these additional regulations was to establish whether internal regulations or legislation existed that would regulate Matyholo’s off-duty conduct.
Barthus posed a critical question: “Whether the applicant, who was a Policeman for 8 years and a Traffic Officer for 13 years, could be held to the standard of a law enforcement officer while off-duty as prescribed by the Act, Regulations and NRTEC and whether the applicant should, in any event, have been aware of the code of conduct.”
He answered: “The question can only be answered in the affirmative.”
The judgment noted it is common knowledge that a court or arbitrator may raise a question of law of its own motion even if neither party has pleaded it.
“There may also be instances where the court may mero motu raise a question of law that emerges fully from the evidence and is necessary for the decision of the case,” Barthus explained.
He added that in this case, the arbitrator was determining whether there was a link between Matyholo’s off-duty conduct and his responsibilities as an officer of the law.
This was a central issue in the dispute and formed part of his defence to the charges.
Procedural and substantive fairness
On the third ground, the court found the commissioner set out the onus in dismissal disputes and clearly understood it was necessary that the city show the dismissal was substantively and procedurally fair.
Matyholo took issue with the fact that in his conclusion, the commissioner did not specifically state the dismissal was procedurally and substantively fair. Instead, the commissioner stated: “In the premises, the applicant’s claim of unfair dismissal is dismissed.”
Barthus addressed this concern directly.
“Despite the clumsy wording, what can be easily inferred from the award is that the commissioner found the dismissal both substantively and procedurally fair and from the award, it is clear that the commissioner did not reverse the onus as suggested by the applicant’s attorney,” he stated.
Moreover, Matyholo was legally represented by Brett Aarninkhof, who did not raise material issues about the procedural fairness of the dismissal.
Court’s conclusion
The court noted that it is known that adjudicating the severity of misconduct in context is a power conferred on an arbitrator.
“The law is clear: the choice of sanction made by the arbitrator must stand unless it is demonstrable that no reasonable arbitrator could have reached that conclusion,” Barthus stated.
He found no such demonstrable evidence in this case.
“In this matter, there is no demonstrable evidence that no reasonable arbitrator could have reached the conclusion reached by the arbitrator. The result is that there is no irregularity in how the arbitrator assessed the appropriateness of the sanction and/or fairness of the dismissal,” the judge said.
Barthus concluded: “I am satisfied that the Commissioner understood the nature of the enquiry he was called to determine, properly evaluated the evidential material placed before him and reached a conclusion which falls within a band of reasonable decisions and is correct on the law.”
He ordered that both the city’s application for condonation and its review application be dismissed.
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