Teboho Victor Makau (“Makau”), who worked for the Companies and Intellectual Property Commission (CIPC) for over 26 years, was dismissed in October 2021 following charges of fraud, insolence, poor work performance, and abuse of company resources. However, the Labour Court found that the arbitration award upholding his dismissal was “irrational and untenable,” and ordered his immediate reinstatement with full back pay.
The case centred on a seemingly mundane workplace incident. In June 2020, Makau’s manager, Bathabile Kapumha (“Ms Kapumha”), claimed she had not received his weekly report, which was due by 14:00hrs on Friday, 5 June. Makau insisted he had sent it from his private email address at 13:05hrs that day and attached screenshots of his report.
What followed was an increasingly acrimonious email exchange, with Ms Kapumha demanding proof of the sent email and Makau unable to produce what he initially called a “screenshot” because, he said, he had deleted the original email to free up space on his phone.
The situation escalated when Ms Kapumha drove to the office specifically to confront Makau at his workstation. According to her, Makau became irritable and began shouting and calling her a liar. Makau disputed this account and argued he merely responded to her accusation by saying she was the one lying. Based largely on these incidents, the CIPC charged Makau with fraud based on the allegation that he had fabricated the email. He was also charged with insolence for his alleged outburst and subsequently dismissed following a disciplinary hearing.
However, the Labour Court found critical flaws in both the arbitration process and the CIPC’s case. Most significantly, the court noted that Makau had indeed sent the email on 5 June at 13:05hrs. The email was retrieved by mobile network provider MTN, which confirmed in a report that the message could not be delivered to Ms Kapumha because it was too large and exceeded the size limit for her mailbox.
“Despite the applicant producing the original email clearly showing that he sent the email at 13:05hrs on 5 June 2020, the commissioner found that he fabricated the email or made a false representation that he sent the email” the court held. Judge Makhura presiding over the matter described the commissioner’s finding as “irrational and untenable.”
The court found that the CIPC had failed to prove the essential elements of fraud, which requires establishing that a false representation was made, that the accused knew it was false, and that it was intended to deceive. Since Makau had actually sent the email, albeit one that bounced back due to its size, no fraud had occurred.
On the insolence charge, the court noted that the CIPC failed to call any witnesses who were present during the alleged shouting incident, despite Makau’s unsuccessful attempts to subpoena them. Judge Makhura found it puzzling that Ms Kapumha made no mention of any shouting in the email she sent to Makau shortly after their confrontation.
The court was equally critical of the poor work performance charge and noted that such matters should be handled through performance management processes, not disciplinary proceedings. Furthermore, the court held that it was grossly irregular that the commissioner ignored evidence showing the CIPC had failed to follow its own Performance Management Policy.
Regarding the abuse of resources charge, which related to Makau printing approximately 500 pages for a personal legal case against the CIPC, the court noted that no policy prohibiting such conduct existed at the time of the incident, and that Makau had been reprimanded and not repeated the behaviour.
Judge Makhura was particularly critical of the commissioner’s approach to determining an appropriate sanction. He found that the commissioner had failed to consider relevant factors such as Makau’s 26 years of service, his clean disciplinary record, and the CIPC’s own disciplinary code, which recommended lesser sanctions for first offenders. The court ordered Makau’s immediate reinstatement with retrospective effect from the date of his dismissal, along with full back pay.
As a quick personal note from me to you: workplace disciplinary hearings will almost always find against you if that is the outcome they are seeking. For this reason, I always advise people to take their matters to the CCMA and, if necessary, the Labour Court. It’s like getting a second opinion from another doctor.
You can read the full Makau v CCMA case here.
The Legal Desk 
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