From Summary Dismissal to Full Reinstatement—What Went Wrong in Mofokeng v Botha?

Burden of Proof Backfires: The Labour Court’s Stark Reminder in Mofokeng that Employers Cannot Shift the Onus—And Why Your Disciplinary Playbook Needs an Urgent Audit

1 | What Actually Happened?

Mr Rantabi Jan Mofokeng, a heavy-duty driver employed by Generator & Plant Hire SA (Pty) Ltd, was summarily dismissed on 27 July 2020 after the company alleged that roughly 500 litres of diesel had vanished from a customer’s generator while it was under his control. The sole evidence was remote-monitoring data and internal reports; no onsite inspection or expert verification was done.

A CCMA commissioner accepted those assumptions and upheld the dismissal, but on 14 March 2025 Acting Judge Milo AJ reviewed the award and found that the supposed evidence was riddled with contradictions, the investigation was superficial, and a comparably placed truck assistant had been spared discipline.

The Court set the award aside and ordered retrospective reinstatement with full back-pay from July 2020 to the date of return. saflii.org

2 | Why Should Employers Care?

• Five years’ wages, gone overnight. Because the Court’s order stretches back to 2020, the employer now faces nearly half a decade of unproductive salary liability—before interest and benefits are added.

• Assumptions are not evidence. Milo AJ rejected the notion that a sudden drop in fuel readings must equal theft, stressing that “assumption is not proof.” Electronic data must be corroborated with physical or expert evidence.

• The onus never shifts. Section 192 of the Labour Relations Act keeps the evidentiary burden firmly on the employer; questioning the employee’s failure to “explain” missing fuel reversed that onus and doomed the case.

• Inconsistent discipline invites disaster. The assistant driver present throughout the incident was never disciplined—an obvious breach of the parity principle that the Court highlighted repeatedly.

• Reinstatement is still the default. Without proof that the relationship had become intolerable or reinstatement impracticable, the Court had no discretion but to send Mr Mofokeng back to work, with pay for the lost years. saflii.org

3 | Pitfalls the Judgment Exposes—and How They Happen in Real Life

First, employers too often rely exclusively on technology—CCTV footage, telemetry, or in this case a fuel-monitoring dashboard—without securing physical corroboration or an independent expert. When that untested data is placed under judicial scrutiny, its weaknesses are mercilessly exposed.

Second, many disciplinary processes begin with draft charges framed before any investigation is complete. That sequence all but guarantees evidentiary gaps. In Mofokeng there was no site visit, no fuel-gauge test, no expert affidavit—only printed graphs and speculation.

Third, chairpersons sometimes shift the burden by asking the employee to “explain” anomalies. The Labour Court’s message is unambiguous: employers must prove misconduct; employees are not required to disprove it.

Fourth, the parity principle—treating equally situated employees alike—is frequently ignored. Here, two workers faced identical allegations, yet only one was dismissed. The Court viewed that inconsistency as a red flag for arbitrary decision-making.

Finally, companies underestimate the remedial consequences of procedural missteps. Reinstatement with back-pay is not an exotic penalty; it is the legislative starting point under sections 193–195 of the LRA when a dismissal is found unfair.

4 | An Immediate Compliance Checklist

1. Investigate before you charge. Secure the scene, collect physical evidence, and engage experts where technical data is involved.

2. Draft precise, provable allegations. Align charges with the rule allegedly breached and the evidence actually in hand.

3. Maintain a flawless chain of custody. For digital records, keep audit trails and metadata; for physical items, document every hand-over.

4. Guarantee procedural fairness. Provide adequate notice, disclose evidence, and appoint an unbiased chairperson trained in labour law.

5. Apply the parity principle consciously. If two employees are implicated, treat them identically or record legitimate reasons for any divergence.

6. Document everything. Minutes, signed statements, photographs, recordings—those files are your insurance policy if the matter proceeds to review.

5 | What This Means for Your Organisation

A single defective enquiry can wipe out years of profit and tarnish managerial reputations. Mofokeng v Botha shows that courts and commissioners will dissect every procedural shortcut—and that the financial fallout of getting it wrong can dwarf the cost of doing it right. If your disciplinary processes lean on untested data, assume employees must disprove allegations, or gloss over consistency, you are already exposed.

6 | Protect Your Bottom Line—Engage the Experts

Laboured South Africa specialises in bullet-proof investigations and hearings:

• Independent chairpersons steeped in current Labour Court jurisprudence.

• Forensic investigators who marry technical data with physical fact-finding.

• End-to-end documentation packs ready for CCMA, Bargaining Council, or Labour Court scrutiny.

Don’t wait for a Mofokeng-style judgment to land on your desk.

Contact us today to audit your disciplinary playbook before it costs you millions:

📞 082 330 3939 | ✉️ info@laboured.org.za | 🌐 www.laboured.org.za

Safeguard your procedures—and your balance sheet—while you still can.