A Durban judge has set aside a ruling that reinstated a worker dismissed for assaulting a colleague, because the commissioner’s findings were likely influenced by views about the victim’s appearance.
- A Labour Court judge has overturned a CCMA ruling that reinstated a shop steward who was dismissed for punching co-worker in the neck during a workplace dispute.
- The CCMA commissioner questioned the victim’s gender during the hearing, asking, “what do you identify as, male or female?”.
- Judge Benita Whitcher said this suggested the commissioner’s adverse findings had been influenced by undisclosed views about Masinga’s appearance and mannerisms.
A Durban Labour Court judge has called out a Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner’s “unexplained questioning” of the gender of a victim of a workplace assault.
In a recent ruling, in which Judge Benita Whitcher found the dismissal of the assailant was fair, she said, “It would not be speculation that the commissioner’s [adverse] credibility findings against [the victim] were also influenced by undisclosed views of her physical appearance and mannerisms”.
The matter before the judge was a review by Belgotex Floors (Pty) Ltd of a ruling by CCMA commissioner Yande Ngwane that the dismissal of shop steward, Bhekinhlanhla Zungu, for assaulting a co-worker, Noluthando Masinga, was unfair, and ordering that he be reinstated.
Masinga claimed Zungu had punched her in the neck during a dispute over the use of a splicing gun.
Commissioner Ngwane had rejected Masinga’s version as well as that of a supervisor who said Zungu had admitted to pushing her immediately after the incident.
Ngwane found that even if Zungu had struck Masinga, the dismissal was unfair because he had nine years of service, a clean disciplinary record, a good reputation, and had during the hearing “presented himself as a very restrained and respectful person”.
Referring to the record, Judge Whitcher said the commissioner had “bizarrely stated” in reference to Masinga that “I don’t know what this woman identifies as ... But maybe she identifies as a man”.
Tania Broughton 16 Mar 2026 During cross examination, Masinga had become emotional and the commissioner asked her to step out.
Then Zungu’s legal representative told the commissioner, “I know she was told that when she comes here, she must cry”.
On her return, the commissioner instructed Masinga to explain why she was crying.
At the conclusion of her evidence and cross examination, the commissioner asked Masinga, “Ma’am, I do just have one tiny little clarity-seeking question. What do you identify as, male or female ... are you male or female?”
Masinga answered, “Female”.
When the company’s attorney asked how this was relevant, the commissioner retorted that it was not practice for commissioners to explain their questions on clarity.
The commissioner rejected Masinga’s version of events, finding that if she had been assaulted, she would have been bruised, that her demonstration of the assault “left much to be desired”, and that she was a “crafty witness”.
In its review, the company contended that the commissioner had based her adverse credibility findings on materially flawed grounds, on subjective opinions that fell outside her professional purview, and on undisclosed opinions about Masinga’s gender and physical appearance. On the other hand, when the commissioner assessed Zungu’s version it was solely on unreliable factors, such as how he presented himself during the hearing and his reputation at work.
“I agree with these contentions,” said Whitcher.
“On the face of the transcript, Masinga gave a frank, straightforward and consistent version of her interaction with Zungu. She volunteered upfront that she had essentially provoked the situation by repeatedly ... unplugging the gun, just because she believed it was hers.”
Sibusiso Dube and Soraia Machado 22 Sep 2025 Zungu’s testimony, the judge said, had been “wholly garbled” and contradictory.
“The commissioner’s view that the punch would have left a bruise was based on her own subjective opinion. No reasonable commissioner would have considered Masinga’s answers as snide comments,” she said.
There was no basis either to make adverse credibility findings based on Masinga’s emotional state, the judge said.
“What is evident is that Masinga was often subjected to questions and propositions that were irrelevant, confusing, argumentative, contradictory and demeaning, the last even by the commissioner,” Whitcher said.
“Finally there is the commissioner’s unexplained questioning of Masinga’s gender. Given the tone of the award, it would not be speculation that the credibility findings were also influenced by undisclosed views of Masinga’s physical appearance and mannerisms.”
The judge said a reasonable commissioner would have found that Masinga’s conduct had enraged Zungu that he struck out in anger and that his dismissal was substantively fair given the nature of the misconduct and the fact that he was a shop steward.
Judge Whitcher set aside the commissioner’s ruling, finding that Zungu’s dismissal was substantively fair.
This article was originally published on GroundUp.
© 2026 GroundUp. This article is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.
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