Hlangana v SALBC

Dismissal: Hlangana v South African Local Bargaining Council and Others (C279/2024) [2026] ZALCCT 28 (20 February 2026)

Facts of the case

Fezile Hlangana (“Hlangana”), the applicant, who was employed by the City of Cape Town (“CoCT”), applied for a promotion to the position of professional officer in development management as Head of Communications. He would be overseeing land use and building plans for roughly 900,000 properties. During a Skype interview, he was asked whether he had ever faced or was facing disciplinary action. He answered no, despite having previously been sanctioned at least twice for plagiarism. Following the interview, he was appointed with effect from 1 June 2022.

In March 2023, after concerns about his performance, the department’s director enquired into his prior record and uncovered the disciplinary history. She stated that, given her zero tolerance approach to dishonesty, he would not have been appointed had this been disclosed.

He was charged with dishonesty and gross misconduct for misrepresentation, found guilty, and dismissed. An unfair dismissal claim at the South African Local Bargaining Council (“SALBC”) failed. He then sought to review the arbitration award in the Labour Court.

Legal Issues

The Labour court had to address the following issues:

1. Whether the arbitrator committed a reviewable error by refusing to permit a linguistic expert to testify on the alleged ambiguity of the compound interview question and the nature of the answer it could elicit.

2. Whether the arbitrator failed to properly assess dismissal as an appropriate sanction, including:

reliance on an asserted zero-tolerance policy;
the seriousness of the dishonesty;
absence of financial or reputational prejudice to the CoCT;
failure to weigh mitigating factors, including nine months’ unblemished service.

3. Whether the award fell outside the bounds of reasonableness per the jurisprudence from Head of Department of Education v Mofokeng.¹

Arguments

Hlangana contended that the interview question was compound and that he answered only the second part of it, namely whether he was currently facing disciplinary proceedings. He maintained that he was not dishonest because no proceedings were pending against him at the time. He claimed his attention was directed solely to the “current” aspect and that he appreciated the full scope of the question only when later confronted with the charges.

Although he initially attributed his response to poor Skype connectivity, he abandoned that version at arbitration and accepted that the full question had been asked but that only the second part registered. He argued that the panel should have sought clarification, particularly as his disciplinary record was accessible internally. He characterised his prior sanctions as spent, suggested the charges were a pretext for performance concerns, disputed the evidential basis of a zero-tolerance policy, and contended dismissal was disproportionate in the absence of financial or reputational harm. He also argued that refusal to admit a linguistic expert constituted a reviewable irregularity.

The CoCT, the third respondent, maintained the question was clear and unambiguous. As a communications professional, Hlangana ought to have understood it or sought clarification. He answered without hesitation and raised the “second part” explanation only late in the disciplinary process.

The CoCT argued the appointment was secured through dishonest misrepresentation. The director testified, unchallenged, that disclosure would have disqualified him. Integrity was essential to the role. The zero-tolerance policy was supported by evidence, and the prior plagiarism findings against Hlangana demonstrated a pattern of dishonesty.

Ruling

The court held that excluding the linguistic expert was not a reviewable irregularity. This was based on the belief that the structure and meaning of the interview question did not require specialised linguistic analysis. The arbitrator was competent to assess it, and in fact accepted that the question was two-part, which rendered expert evidence unnecessary.

The court applied Mofokeng and emphasised that any oversight by the arbitrator must render the outcome unreasonable to justify the court’s interference. It held that the applicant failed to show that the arbitrator’s award fell outside the range of reasonable decisions. Furthermore, the zero-tolerance policy, though supported only by the manager’s evidence, was unchallenged. The misrepresentation secured an appointment he would not otherwise have obtained, which was itself material. The courted added that the prior findings of plagiarism against Hlangana reflected dishonesty, and that he never acknowledged wrongdoing. Therefore, it rejected his contention that the panel should have probed further. The court dismissed the review.

Author’s Opinion

The judgment is technically sound within the confines of the review standard it applies. The Mofokeng threshold is well established, and it is difficult to fault the court’s conclusion that the arbitrator’s award was not so unreasonable as to be reviewable. On the exclusion of the linguistic expert, again I believe the court is correct: the question of whether an English sentence is two-part or one is not the province of expert evidence, and the arbitrator had already conceded the two-part structure anyway.

However, the judgment raises deeper questions that the review standard, by its nature, does not require the court to engage with. The review framework is deliberately narrow: it does not ask whether the arbitrator decided correctly, but rather whether a reasonable arbitrator could have decided as this one did. This is a gripe I have always had with the review system. It essentially means that the court’s endorsement of the outcome is not necessarily an endorsement of its justice. The court itself acknowledges that another arbitrator might reasonably have viewed the dishonesty less seriously. That concession, while technically obligatory under the review standard, is also a tacit admission that the outcome was not inevitable.

Then there’s the issue of the “zero-tolerance,” which, again, I find somewhat puzzling. The court accepts this so called “policy” on the basis that evidence for it came from the departmental manager and was unchallenged. Yet the Hlangana’s counsel explicitly argued at the hearing that there was no evidence for the policy’s existence. The court resolves this by pointing to the procedural failure to cross-examine on the point, which, I suppose, is a legitimate forensic observation. However, we cannot get away from the fact that this approach merely papers over the absence of any formal, written, or institutionally adopted policy. A zero-tolerance dismissal based on informal managerial preference is a thin foundation for the most serious sanction in the employment relationship.

The nine months of unblemished service in the promoted post received almost no analytical weight. The court merely notes the arbitrator considered it. This is a genuine mitigation that deserved more rigorous engagement, particularly where the employer’s motive in uncovering the misrepresentation was not a concern for institutional integrity but dissatisfaction with the applicant’s performance.

As I said at the onset, the outcome in this case is legally defensible. That said, in my opinion, it is also, frankly, unjust. Hlangana went through a competitive interview process, was assessed as the best candidate for the job, and was appointed on merit. He performed the role for nine months without incident or complaint. The only reason his past came to light was that his manager, dissatisfied with his performance, went looking through his record for a reason to act against him. Call me a cynic, but this sequence of events does not suggest an employer acting out of principled concern for institutional honesty. It suggests an employer using a prior infraction as an instrument to achieve what performance management could not.

Even so, the deeper problem is structural. Hlangana had already served his sanctions for the plagiarism offences. They were part of his record, and under the CoCT’s own system, they had been addressed. Yet those completed sanctions were treated in this litigation as live evidence of an inclination toward dishonesty that had “not been arrested.” This is effectively double punishment. Once a sentence is served, the offence cannot ordinarily disqualify a person from participation in public/work life in perpetuity.

One must also ask: why was “prior disciplinary record” not a stated, disclosed disqualifying criterion in the job advertisement? If the CoCT’s position is that no person with a prior disciplinary conviction should be considered for a senior post, that position should be stated openly from the onset and applied transparently. However, it is never stated, because employers and HR practitioners know that such a blanket disqualification would be challenged as arbitrary and disproportionate. It might well be challenged as unconstitutional, given the constitutional right to equality, to choose one’s trade, occupation, and profession freely, and the right to dignity.

As this “prior disciplinary record” disqualification is not disclosed in the advert, candidates like Hlangana face an impossible dilemma. They arrive at an interview knowing that if they disclose the truth, they will almost certainly be disqualified. The system creates the conditions for concealment and then punishes the concealment. It is like asking someone to confess to a crime they know will result in their immediate execution, and then punishing them for declining to volunteer the confession. The ‘dishonesty’ the CoCT complained of was in large part a rational response to an irrational and undisclosed criterion.

The court finds Hlangana’s suggestion that the interview panel should have probed his answer “extraordinary.” With respect, what is truly extraordinary is that a major municipal employer can operate a de facto zero-tolerance policy against prior disciplinary history, fail to disclose it, ask an ambiguous question in a technology-mediated interview, and then dismiss a performing employee when the answer comes to light nine months later for extrinsic reasons. The onus, in that context, should not rest exclusively on the candidate.

None of this is to say that dishonesty in interviews is acceptable. It is not. But the law recognises degrees of culpability, and the principle of proportionality exists precisely to ensure that the most severe sanction is reserved for the most serious conduct. The arbitrator and the Labour Court have confirmed that a reasonable decision-maker could arrive at dismissal. That may be so. But “reasonable” and “just” are not synonyms. Hlangana’s dismissal may survive legal scrutiny. Whether it survives moral scrutiny is a different question, and on that question, the answer is far less clear.

People should not be punished perpetually for transgressions that have already been sanctioned. A legal system and employment framework that permits this without demanding transparency from employers about their actual selection criteria is, respectfully, one that has not yet fully reckoned with the values of fairness and human dignity it purports to uphold.

You can read the full Hlangana v SALBC judgement here.