Commissioner Menzi Fakude relied on a judgment that did not exist
- The Johannesburg Labour Court has found that CCMA commissioner Menzi Fakude relied on a judgment that did not exist when allowing six former South African Post Office employees to pursue unfair dismissal claims.
- Acting Judge Sean Snyman said Fakude appeared to have relied on AI without checking its accuracy.
- The court ruled that Fakude's decision was a "nullity" because SAPO's business rescue protections barred the proceedings.
The Johannesburg Labour Court has called out a commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA) for relying on a fake judgment, presumably AI generated, to make an unlawful ruling.
Acting Judge Sean Snyman recently heard an urgent application brought by South African Post Office (SAPO) business rescue practitioners to set aside a ruling by Commissioner Menzi Fakude.
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In August 2026, Fakude ruled that business rescue did not stop an unfair dismissal claim (seeking reinstatement and back pay) by six former employees of SAPO from going to arbitration, which was set down for 15 October.
The business rescue practitioners launched review proceedings, but in the meantime sought an urgent interdict to halt the arbitration. This would be until the finalisation of the business rescue process, as provided for in law.
They said the case Fakude relied on to refer the matter to arbitration did not exist.
Judge Snyman ruled in favour of the business rescue practitioners on 15 October. His judgment, with reasons, was handed down late last week.
Read the judgment here
SAPO was placed under business rescue in July 2023. The business rescue practitioners applied to the high court in June 2026 to terminate business rescue, but the matter is still pending.
Six workers dismissed in December 2025 referred a dispute to the CCMA which was heard by Fakude and ruled on in August 2026.
Judge Snyman noted that contrary to law, the business rescue practitioners had not been cited as a party in the dispute and that the Companies Act barred any legal proceedings against an entity in rescue. This was to prevent any diversion of resources while the entity was given breathing space to achieve commercial viability.
Contrary to this and established law, Fakude had concluded that business rescue was not an impediment to unfair dismissal proceedings and had referred the matter to arbitration.
The commissioner specifically referred to a judgment - SOC Ltd (In Business Rescue) and Others v Communication Workers Union and Others [2023] ZACC 40 - which he claimed was decisive that business rescue "does not suspend the operation of labour legislation or deprive employees of access to the statutory dispute-resolution mechanisms".
But SAPO had argued that the "undeniable reality is that the ruling is squarely founded on purported reasoning contained in a judgment that does not exist".
Judge Snyman said he too could find no such case. The citation referred to by Fakude related to a judgment concerning immigration and spousal visas.
"It appears that [Fakude] must have relied on AI in seeking to find substantiation for his reasoning."
Snyman said Fakude obviously never sought to verify "that this is even remotely correct".
This was "an untenable state of affairs", and a "fundamental failure of justice".
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He said the use of AI by legal practitioners had of late been lamented by the courts and recently, in a full bench appeal in a matter in which an acting judge was found to have used AI hallucinations, Judge Ingrid Opperman had called for "zero tolerance".
"If an arbitrator wishes to use AI to conduct research, then the arbitrator is compelled to still verify if the judgment that the AI may come up with exists and then the arbitrator must actually read the judgment to verify if what the AI says was decided, was in fact decided."
Snyman said Fakude's ruling was a "nullity" and the court had a duty to intervene in proceedings that are "tainted by illegality".
He said while the merits would be fully aired during the review proceedings, which "enjoys substantial prospects of success", SAPO had made out a case for the planned arbitration on 15 October to be stopped.
He said the workers could pursue their claim once SAPO was no longer in business rescue.
