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[2021] ZALAC 37
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Mothiba v Exxaro Coal (Pty) Ltd t/a Grootgeluk Coal Mine (JA49/2019) [2021] ZALAC 37; (2021) 42 ILJ 1910 (LAC) (14 June 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA 49/2019
In
the matter between:
BETTY
MOTHIBA Appellant:
and
EXXARO
COAL (PTY) LTD t/a
GROOTGELUK
COAL
MINE Respondent
Heard:
27
May 2021
Delivered:
14
June 2021
Coram:
Davis JA, Coppin JA and Savage AJA
JUDGMENT
DAVIS
JA
Introduction
[1] This
is an appeal against a judgment of LaGrange J, sitting in the court
a
quo
of 25 February 2019, in terms of which the learned judge set
aside an arbitration award of a Commissioner sitting as an arbitrator
on behalf of the Commission for Conciliation Mediation and
Arbitration (CCMA) in which the award that was made was that the
dismissal
of the appellant was substantively unfair.
[2] Regrettably,
as noted previously by this Court, the chronology of the events
leading up to this appeal reveals
the failure of the adjudicative
system as provided for in the Labour Relations Act 66 of 1995 (LRA)
to fulfil the legislative mandate
of ensuring the expeditious
resolution of labour disputes.
[3] The
appellant had been employed by the respondent as a laboratory
assistant as of 17 March 2008. She was dismissed
in 2015. The
Commissioner’s award was delivered on 26 October 2015 and the
consequent application for review was launched
on 4 December 2018.
Judgment in the court
a quo
was delivered on 26 February 2019.
More than two years later, this Court is now required to deal with
the appeal.
The
background
[4] During
the course of December 2012, the appellant applied to the
respondent’s housing department for
subsidised accommodation
offered by the appellant. In the relevant application, the appellant
was required to sign an affidavit
confirming that ‘I do not own
any property within 50 kilometre radius from the main gate of “Exxaro
Grootgeluk Coal”.
This affidavit was signed by the appellant on
19 December 2012. Her application for housing proved to be
successful.
[5] In
January 2015, the respondent received information suggesting that a
number of employees, including the appellant,
had benefitted from the
housing programme in circumstances in which they ought not to have
been successful applicants for the subsidised
housing. Upon an
investigation by the respondent, it was found that the appellant, at
the time when she applied for the housing
benefit and signed the
relevant affidavit ,owned a property within a 50 kilometre radius
from the Grootgeluk main gate.
[6] Pursuant
to this finding, the appellant was charged as follows:
‘
Charge 1:
Dishonesty: in that it is alleged that she made a misrepresentation
to Exxaro by deposing to an affidavit on the 19
th
of
December 2012 in which she confirms that she does not own property
within a 50 km radius from the Grootgeluk Mine whereas she
was in
fact the owner of a residential property within the 50 km radius from
15
th
October 2010.
Charge 2:
Non-disclosure/misrepresentation of relevant information that
employee failed to disclose direct or indirect interest
and benefits
received in that it is alleged that she failed to disclose relevant
information to Exxaro regarding the purchasing
of her property and
letting out and receiving of rent for the same…’
[7] She
was found guilty as charged and dismissed. In response, the appellant
referred a dispute to the CCMA. The
arbitrator interpreted the phrase
‘I do not own any property within a 50 kilometre radius…’
as being somewhat
ambiguous in that ‘the wording still lacks
clarity as to whether it was referring to an empty stand or a stand
that has ben
improved into a dwelling house.’ As a result, the
arbitrator concluded: ‘the employer has failed to discharge the
requisite
onus of proving that the employee intentionally made a
false declaration in the affidavit when she responded by stating that
she
did not own property within the radius of 50 km.’
The
court
a quo
[8] The
review application brought by the respondent was heard by LaGrange J
who found that the wording in the
affidavit was not ambiguous when it
referred to ‘ownership of any property. The court a quo noted
that the appellant was
not illiterate, she had been employed as a
laboratory assistant and therefore could be taken to understand the
meaning of the words
‘ownership of any property’. Thus
‘it is difficult to see how an arbitrator could reasonably
conclude that she
had deposed to such a document without giving a
though to its contents and was blissfully unaware of what it
contained or that
she could have been unaware of the fact that by
deposing to the affidavit contained in the declaration that was
making a representation
that she had no interest in any property.’
For this reason, the learned judge set aside the arbitration award
and held that
the appellant’s dismissal had been substantively
fair.
The
appeal
[9] Before
this Court, the appellant’s counsel submitted that the purpose
of requiring the appellant to sign
an affidavit related to the
respondent’s policy that the subsidy should not apply to those
employees who own properties which
were ready for habitation as
opposed to an employee who might own an open piece of land. On the
basis of this conception of the
purpose of the policy, the word
‘property’ had to be given the narrow meaning which was
accorded to it by the arbitrator.
[10] There
is no merit in this argument. The appellant provided no evidence to
the effect that she had not reasonably
understood the contents of the
affidavit which she was required to sign, that the wording referred
exclusively to developed land
nor was there any other evidence
presented to the effect that she did not understand that which she
was required to sign. In formulating
the reasons for the arbitration
award, the Commissioner, upon his own volition, had sought to
substitute his own opinion as to
the meaning of the clear meaning of
the words ‘ownership of property” as employed in the
affidavit as opposed to that
which manifestly was the only reasonable
construction of the words so employed. The appellant knew well that
the affidavit which
she signed was in connection with a lease, the
benefits of which would not have been available to her, had she had
the respondent
known about her ownership of land. There is no warrant
for the construction that what she signed was a disclosure that she
did
not own improved land with a dwelling on it as opposed to
ownership of vacant land.
[11] In
summary, the court
a quo
came to the only plausible conclusion
when it stated ‘the probabilities ineluctably point to her
being aware of what she
was deposing to and the defences advanced by
representatives and adopted by the arbitrator were not available to
her as they were
not supported by her own evidence.’
[12] For
these reasons, the appeal must fail. Given the fact that the
appellant has been out of employment for
some considerable period of
time, the only leniency that should be accorded to her is that this
Court should not make an adverse
costs order.
[13] The
appeal is dismissed.
Davis
JA
Coppin
JA and Savage AJA concur.
APPEARANCES:
FOR
THE APPELLANT: Adv
K Ramarumo
Instructed
by
Mohale Inc. Attorneys
FOR
THE RESPONDENT: Adv
C
E Watt-Pringle SC
Instructed
by
Shepstone & Wylie Attorneys