Members of the Economic Freedom Fighters (EFF) at Sandton City Mall during the national shutdown of all Clicks outlets on 7 September, 2020 in Sandton, South Africa. (Photo: Gallo Images/Sharon Seretlo) 
On 7 September 2020, while watching the 19h00 news on television, SARS official Pule Mantsho spotted at an EFF protest at Clicks in Sandton employee, Benneth Mathebula, who had called in sick that very morning.
At the time the Economic Freedom Fighters had targeted 400 branches of the retailer in a countrywide protest over an advert about a hair product.
Read more in Daily Maverick: EFF members ‘attack’ Clicks stores after hair advert causes outrage
About a week later, after he had gathered enough evidence from YouTube and elsewhere, Mantsho, as his supervisor, confronted Mathebula.
“Hi Benneth, it came to my attention when I saw you on the 19:00 news, while I was expecting you to be off due to illness,” Mantsho wrote to the junior investigator, court documents show.
To which Mathebula had responded: “May I ask — how did this come to your attention and by who (complainant) so that we are on the same page”.
Just stretching my legs
Confronted with irrefutable evidence, Mathebula explained “please note that as I notified you that I was not feeling well on 7 September 2020, later on that day I became bit better after taking some medication”.
A friend had checked in on him and finding him feeling chipper asked if he would “like to accompany him to Sandton”.
“I did not see anything wrong with that, actually I thought maybe it is good to go out stretch a bit, as I was not bedridden and I felt probably after that I would be fine. So it is true that you might have seen me, unfortunately, the following day I got worse and I did let you know”.
In the tradition of former president Jacob Zuma’s medical doctors, the doctor Mathebula consulted two days later, on 9 September, diagnosed “nature of illness” as “due to a medical condition”.
On 4 November 2020, Mathebula was served with a disciplinary notice in order to answer allegations of “dishonesty” and “gross dishonesty”. Found guilty, he was dismissed on 24 March 2021.
Mathebula, in turn, referred an “unfair dismissal dispute to the CCMA” where commissioner Faizel Mooi had found that his firing had been “substantively unfair”.
SARS subsequently launched an application in the Labour Court seeking to review the fact that Mooi had ordered SARS to reinstate Mr Mathebula and to pay him for his loss of salary.
If you can clap you can work
On 21 July 2023, the court ruled that the probabilities were overwhelming that Mathebula had not been ill “and in fact, he was malingering in order to avail himself for the protest action”.
“If he was able to clap hands and sing, it must follow that he would have been able to perform his contractual duties,” said Labour court judge Graham Moshaona.
In cases of malingering, he added, it was an employee who alleged illness.
“He who alleges must prove. The fact that he was seen at the protest march is sufficient enough evidence to expose his false impression”.
The arbitration award did not pass constitutional muster and was, said the judge “set aside and replaced with an order that the dismissal of Mr Mathebula was substantively fair”. DM