The case of Correctional Services v Kutu [2025] JA27-2024 (LAC) concerns the dismissal of Mr. Kutu, a Correctional Officer at Atteridgeville Correctional Centre, on charges of insubordination. The primary issue in the case was whether the dismissal was fair and appropriate given the circumstances. This case serves as an important precedent for labour disputes in disciplinary actions within law enforcement and correctional services.

The role of correctional officers in South Africa is critical to maintaining security, discipline, and operational efficiency within correctional facilities. Officers are expected to adhere to strict protocols and obey lawful orders, particularly when dealing with the well-being of inmates. Failure to follow orders can result in security risks and undermine the operational integrity of correctional institutions. This case highlights the balance between employee rights and institutional discipline.

Correctional officers operate within a hierarchical structure where compliance with orders is essential for safety and order. The doctrine of “obey now, grieve later” is particularly relevant in this setting, as immediate compliance with instructions can prevent security lapses or harm to inmates and staff. While employee rights to contest unfair treatment are protected, these rights must be exercised through proper legal and procedural channels rather than outright defiance.

Mr. Kutu’s duties as a Correctional Officer included escorting inmates to court, hospital, and other locations. On 19 July 2018, he was requested to escort an inmate suffering from kidney and bladder issues to Kalafong Hospital. However, he refused, initially claiming he was knocking off early due to his birthday, which was later revealed to be false. When confronted, he then stated that he had confused his birthday with that of his wife. Upon being requested again, he declined, stating that he was going for lunch.

Following a disciplinary hearing, Mr. Kutu was dismissed in 2019 for failing to carry out lawful instructions. At arbitration, the arbitrator found his dismissal substantively and procedurally fair given the inmate’s serious medical condition and Mr. Kutu’s prior disciplinary record. However, on review, the Labour Court upheld the insubordination verdict but overturned the dismissal, substituting it with a final written warning and reinstatement.

The Department of Correctional Services (DCS) appealed the Labour Court’s ruling regarding the sanction, arguing that dismissal was the appropriate penalty given Mr. Kutu’s repeated infractions. Mr. Kutu cross-appealed against the finding of guilt, contending that he had not been given a direct order but rather a request.

The court examined whether Mr. Kutu had disobeyed a lawful and reasonable instruction. Despite his claim that he was merely “requested” rather than “ordered,” the court found that the instruction was clear and reasonable. The ruling reaffirmed that instructions, especially in security-sensitive roles, should be interpreted within the context of institutional discipline and operational needs.

The judgment reaffirmed the principle that employees, particularly in law enforcement, must obey lawful orders and contest them afterward if necessary. This principle is crucial in maintaining discipline and ensuring smooth operational conduct within institutions. The court noted that immediate defiance disrupts operational efficiency and sets a dangerous precedent within a security-based workforce.

Mr. Kutu argued that he was targeted due to his trade union affiliation. However, the court found no substantive evidence to support this claim, noting that any such conspiracy could have been mitigated had he complied with the instruction. Furthermore, the court emphasised that trade union membership does not exempt employees from their professional responsibilities and obligations.

The Labour Appeal Court found that the Labour Court erred in substituting the dismissal with a final written warning. Given Mr. Kutu’s prior disciplinary record, which included three warnings for insubordination, his continued employment posed a risk to institutional discipline. The ruling underscored that repeated defiance of lawful instructions warranted a strong disciplinary response to preserve order and deter similar conduct among other officers.

The Labour Appeal Court upheld the appeal by DCS, setting aside the Labour Court’s ruling and affirming the arbitrator’s original sanction of dismissal. This case underscores the significance of compliance with lawful instructions and reinforces the principle that employees must follow orders and contest them through proper channels later. It further confirms the authority of employers to maintain institutional discipline and upholds the principle that repeated non-compliance with orders warrants severe disciplinary action.

In another case, that of Strado Remanufacturing (Pty) Ltd v Diphoko NO [2025] ZALAC 19, the Labour Appeal Court delivered its judgment on 20 March 2025. The case revolved around the dismissal of an employee, Matlala, for alleged insubordination. The court’s decision highlighted significant flaws in the arbitration process, ultimately leading to the reinstatement of the employee with a final written warning.

Matlala was employed by Strado Remanufacturing and was dismissed on 9 November 2020 for allegedly refusing to comply with an instruction from General Manager Wall. Wall had reportedly instructed Matlala to report to the office to explain why he was leaving work early. Matlala initially denied receiving any instruction but later admitted during the disciplinary hearing that he had received it but failed to comply due to concerns about Wall’s behaviour.

Following his dismissal, Matlala approached the Dispute Resolution Centre for the Motor Industries Bargaining Council. The arbitrator found that the dismissal was substantively unfair and ordered his reinstatement with six months’ backpay. Strado Remanufacturing’s subsequent review application in the Labour Court was dismissed, leading to the appeal before the Labour Appeal Court.

The primary legal issue in this case was whether Matlala had received a direct instruction from Wall and whether his refusal to comply amounted to insubordination warranting dismissal.

The Labour Appeal Court identified several key failings in the arbitration process. It was noted that the arbitrator did not properly analyse the evidence or address crucial credibility issues. One major oversight was the failure to consider Matlala’s contradictory statements—initially denying the instruction and later admitting to it with an explanation. The court emphasised that these contradictions should have been examined to determine their significance rather than being disregarded.

Additionally, the Labour Court’s dismissal of Scholtz’s evidence regarding the disciplinary hearing was criticised as improper. The court found that ignoring relevant testimony undermined the integrity of the factual determination. Moreover, the conclusion that no instruction had been given was deemed unreasonable, particularly in light of corroborative evidence from Wall and Venter.

Despite affirming that insubordination had occurred, the Labour Appeal Court considered the proportionality of the penalty. Given Matlala’s ten years of service without prior disciplinary infractions, outright dismissal was viewed as excessively harsh. The appeal was upheld, and the Labour Court’s judgment was set aside. The arbitration award was reviewed, and Matlala was reinstated under specific conditions:

• A final written warning for insubordination was issued.
• Reinstatement was to take effect upon Matlala’s return to work.
• The order of reinstatement had to be served on the Union within 15 days.
• Matlala had to report back to work within 90 days, failing which the order would lapse.

A noteworthy aspect of the judgment was its recognition of the protracted nature of the dispute; five years had passed since the original misconduct. The court deemed full retrospective reinstatement inappropriate in light of this delay.

The Strado Remanufacturing case underscores the necessity of rigorous evidentiary analysis in arbitration proceedings, particularly in labour disputes involving insubordination. The ruling serves as a cautionary tale about the consequences of failing to address credibility issues and highlights the importance of proportional disciplinary measures. Ultimately, while insubordination was established, the court’s decision reinforced the principle that disciplinary actions should be fair and commensurate with the circumstances.

Written by Jan du Toit, Director at Labour Guide