Leonard Dingler (Pty) Ltd v Ngwenya (JA110/97) [1999] ZALAC 1 (16 February 1999)

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[1999] ZALAC 1
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Leonard Dingler (Pty) Ltd v Ngwenya (JA110/97) [1999] ZALAC 1; [1999] 5 BLLR 431 (LAC); (1999) 20 ILJ 1171 (LAC) (16 February 1999)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JA 110/97
IN THE MATTER BETWEEN:
LEONARD DINGLER (PTY) LTD APPELLANT
AND
D.D. NGWENYA RESPONDENT
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
KROON JA
:
[1] The appellant is a company carrying on business at Boksburg as a
manufacturer of tobacco products.
[2] On 9 August 1988 the respondent commenced employment with the
appellant in the capacity of scooter driver.
[3] Pursuant to alleged incidents that occurred at the appellant’s
premises on 7 June 1996 the respondent appeared at an internal
disciplinary inquiry on 12 June 1996. The charges he faced were
theft of company property, viz., bale boards, and breaking same
in
company time.
[4] At that inquiry, presided over by Mr Vermeulen (a director of the
appellant), the respondent was found guilty on both counts
as
charged. The sanction imposed was dismissal.
[5] On the following day, 13 June 1996, the respondent noted an
appeal, as provided for in the appellant’s disciplinary code,
against both the convictions and the sanction imposed.
[6] On what date the appeal hearing, presided over by Mr Hiemstra,
was held does not appear from the record. The decision in the
matter, dated 30 June 1996, was transmitted by facsimile to the
appellant by Hiemstra on 1 July 1996. It was to the following
effect:
(1) The inquiry proceedings presided over by Vermeulen were fatally
flawed by procedural unfairness. That unfairness related to
the
role played by Vermeulen in the proceedings.
(2) The appeal hearing had nevertheless to decide whether the
respondent’s dismissal was substantively fair or unfair, to which
end a rehearing of the matter was embarked upon.
(3) The respondent’s guilt on the theft charge was established.
The issue of whether the respondent had broken bale boards during
company time was regarded as being of a trivial nature which would
at most attract the sanction of a warning. No further attention
was
devoted thereto.
(4) The proper sanction in respect of the conviction on the theft
charge was dismissal. However, because of the unfairness that
tainted the earlier disciplinary inquiry the dismissal of the
respondent with effect from 12 June 1996 was replaced with a
dismissal
with effect from 30 June 1996 and the rider that the
respondent was to be paid his emoluments for the period 12 to 29
June 1996.
[7] After an unsuccessful recourse to a conciliation board the
respondent launched proceedings in the industrial court in terms
of
section 46(9) of the Labour Relations Act, No. 28 of 1956. The
relief he sought was an order declaring his dismissal to have
been
an unfair labour practice, that he be reinstated in his former
employment on the same terms and conditions that applied previously,
that such reinstatement be with effect from the date of his
dismissal and that the appellant pay the costs of suit.
[8] The proceedings, which were opposed by the appellant, concerned
the validity of the conviction of the respondent on the charge
of
theft and the propriety of his dismissal pursuant to that
conviction.
[9] The matter was resolved by the industrial court (per GROBBELAAR
AM) in favour of the respondent with the following order
being
issued:
“1. That the dismissal of the applicant, D D NGWENYA, on the 30th
June 1996, did constitute an unfair labour practice;
2. The respondent is hereby ordered to reinstate the applicant in
his job or comparable job on terms and conditions no less favourable
than those upon which he was employed at the time of his dismissal,
should he present himself for work within 7 days of the order;
3. The respondent is also hereby ordered to compensate the applicant
in the amount of R6 527-20, calculated as follows:
4 months

R407-95 @ 16

R407-95 = R6 527-20.
The said amount is to be paid within 21 days of the order.
4. No order as to costs.”
In the reasons for judgment subsequently furnished by her the
additional member explained the making of the order in paragraph
3
as follows: the respondent’s wage at the time of his dismissal was
R407,95 per week; he was unemployed for a period of four
months
until he secured other temporary employment; by reason of the unfair
labour practice committed by the appellant it was just
and fair that
it compensate the respondent for his loss of earnings over the said
period, which the additional member equated with
16 weeks.
[10] This appeal seeks the setting aside of the order made by
GROBBELAAR AM.
[11] The first aspect to be considered is the appellant’s
application for condonation of its non-compliance with certain
provisions
of the Rules of this Court. The application refers to
three aspects:
(1) the failure timeously to file a power of attorney authorising
the appellant’s attorneys to prosecute the appeal;
(2) what was perceived to be a failure timeously to file the record
on appeal;
(3) what was stated to be a failure to file the notice prosecuting
the appeal within 30 days of the notice of the appeal in terms
of
Rule 22(3)(b) of the industrial court Rules, should this Court find
such condonation to be necessary.
[12] That the power of attorney was filed late is clear. Whether
the record on appeal was in fact filed late will be considered
below. In regard to the third aspect it should be pointed out that
Rule 22(3)(b) of the iindustrial court has, since July 1997,
superseded by Rule 5A(1) of this Court. The subject of both is the
time within which an appeal from the industrial court to this
Court
had or is to be noted. (An alleged failure timeously to note the
appeal was the subject of a complaint conveyed to the appellant
by
the respondent’s representative on 3 February 1998). Apart from a
requirement relating to the filing of the appeal record,
there is no
provision in this Court’s Rules requiring the formal prosecution
of an appeal to it. As will appear below, what
the appellant ought
to have done was to seek condonation of its failure timeously to
file a notice of appeal which set out the
grounds on which the
appeal is founded, as prescribed by Rule 5A(2)(b). It was that
failure, however, that was the subject of
argument on the
application for condonation, and the application must therefore be
construed accordingly.
[13] The application for condonation was opposed on behalf of the
respondent.
[14] The principles applicable are succinctly set out in the
judgment of HOLMES JA in
Melane
v Santam Insurance Co.
Ltd
1962 (4) SA 531
(A).
[15] The requisite power of attorney, dated 20 January 1999, was
filed only when the application for condonation was filed, i.e.,
on
27 January 1999. In the light of the various dates referred to
later the filing of the power of attorney was considerably out
of
time. According to the affidavit of Mr Bam, the appellant’s
attorney, it was only on receipt of the respondent’s heads
of
argument in the appeal (viz., on 27 November 1998), wherein the
point was taken that no power of attorney had been filed, that
attention was given to this aspect.
[16] The explanation tendered by Mr Bam is that he overlooked the
provisions of Rule 6(1) of this Court, which requires the filing
of
a power of attorney within 10 days of the noting of the appeal.
That omission had to be seen in the light thereof that, as
Mr Bam
contended the position to have been, a power of attorney had not
previously been required in respect of an appeal from the
industrial
court to the former Labour Appeal Court in terms of s 17A of the
Labour Relations Act, 1956. Indeed, with reference
to the
provisions of Rule 5A (read with Rule 5) of this Court (which do not
refer to a power of attorney being required in respect
of an appeal
to this Court from the industrial court), Mr Bam sought to suggest
that it is a moot point whether such a power of
attorney is in fact
required.
[17] The following comments fall to be made:
(1) The interpretation that no power of attorney was required in
respect of appeals from the industrial court to the former Labour
Appeal Court is incorrect. Rule 4 of the Rules of the latter Court
provided that in so far as those Rules did not, in connection
with
an appeal, make provision for any specific matter, the Rules of the
then Supreme Court would apply
mutatis mutandis
. Rule 7 of
the latter Rules enjoined the filing of a power of attorney
authorising the prosecution of an appeal.
(2) Whatever Rules 5 and 5A of this Court provide and
notwithstanding that no reference to a power of attorney is
contained therein,
it is clear that Rule 6(1) does prescribe the
filing of a power of attorney in respect of any and every appeal to
this Court.
(3) The delay in complying with the provisions of Rule 6(1)
in
casu
was substantial, exacerbated by the fact that even after
the issue of the power of attorney had come to Mr Bam’s attention
on
27 November 1998 there appears to have been a lack of urgency on
his part in rectifying the matter.
(4) While his misinterpretation of the provisions of the Rules
formerly applicable may, to an extent, be understandable, though
not
excusable, Mr Bam’s overlooking and ignorance of the provisions of
Rule 6(1) presently applicable constrain me to repeat
the comments I
made in
Eskom v Mokoena
(Case No. JA 17/97, LAC,
unreported):
“It is, however, appropriate to sound a warning to practitioners.
The Rules of this court were promulgated in Government Gazette
No.
17495 of 14 October 1996. Practitioners ought to have acquainted
themselves therewith by this time. The Rules published
in the
Government Gazette of 10 January 1992 were Rules of the former
Labour Appeal Court promulgated in terms of Act 28 of 1956,
as
amended, and were clearly not applicable to the present Labour
Appeal Court. Failure to comply with the Rules of this court
will
in future attract the censure of the court and may, in appropriate
cases, result in an appeal being struck off the roll or,
as the case
may be, a refusal to hear the respondent in the appeal.”
[18] Mr MALULEKE, for the respondent, raised a further aspect
relating to the power of attorney filed. He argued, with reference
to authority (see, eg,
Transport and General
Workers’
Union & Others v S.A. Stevedores Ltd
(1993) 14 ILJ 1068
(IC);
S.A. Allied
Workers Union v De Klerk NO
1990 (3)
SA 425
(E)) that a lack of authority cannot be rectified by
ratification after an objection thereto has been raised.
[19] The cases are not harmonious on this issue - see the discussion
in the
S.A. Allied
Workers’
case
supra
. I
do not consider it necessary to enter into that debate. For the
purposes of this appeal I will accept the validity of Mr MALULEKE’s
contention.
[20] However, on analysis the present is not a case where it was
sought, by the filing of the power of attorney, to ratify previously
unauthorised acts done by the attorney on the appellant’s behalf.
The filing of the power of attorney constituted compliance,
albeit
very belatedly, with the prescription in Rule 6(1) and constituted
formal proof of the authority of the attorney to act.
As will
appear below - see paragraph [34] - the attorney was, as a matter of
fact, authorised by Oosthuizen, a director of the
appellant, to note
the appeal. I am unable to accept Mr MALULEKE’s submission that
in noting the appeal the attorney acted without
the instructions of
the appellant. Subsequently the appellant placed its attorneys in
funds for the payment of the costs of the
appeal record that had
been prepared. Finally, the power of attorney was filed. It is
clear that as a fact the attorneys were
throughout authorised to
prosecute the appeal.
[21] The chronology in respect of the other two aspects in respect
of which condonation was sought was the following:
(1) The order of the industrial court, without accompanying reasons,
was made on 28 November 1997;
(2) On 5 December 1997 the appellant filed a notice of appeal
against the whole of the judgment of the industrial court; that

notice contained no grounds of appeal and instead requested that the
presiding officer in the court
a quo
furnish the reasons for
her judgment; the appellant’s recourse to filing that notice is
explained below;
(3) By letter dated on 3 February 1998 Mr MALULEKE advised the
appellant’s attorneys that the period within an appeal had to
be
noted had elapsed and enquired as to the appellant’s outstanding
notice of appeal (no doubt it was considered that the document
filed
on 5 December 1997 did not constitute a valid notice of appeal);
(4) Reading the aforesaid letter as referring to an obligation on
the appellant to prosecute the appeal Mr Barn replied on 10 February
1998 to the effect that the notice of appeal would only be finalised
once it had been amplified after receipt of the industrial
court’s
reasons for judgment; thereafter the appeal would be prosecuted;
(5) Due to an administrative oversight the forwarding of the request
for reasons for judgment to the presiding officer was delayed.
It
was in fact brought to her attention by the appellant’s attorneys
on 20 January 1998;
(6) On 24 February 1998 the appellant’s attorneys filed a notice
with the Registrar in which application was made for a “trial
date
in the appeal”. Presumably this was considered to be the
prosecution of the appeal. In the notice it was stated that the
record on appeal had not been prepared because the file had not been
made available to the appellant by the Registrar of the industrial
court;
(7) GROBBELAAR AM furnished her reasons for judgment on 1 March
1998. Due to a further administrative oversight the appellant’s
attorneys were not apprised thereof. In fact a copy of the reasons
was sent to the appellant’s attorneys by Mr MALULEKE on 19
May
1998;
(8) The record on appeal was delivered by the appellant on 17 June
1998;
(9) An amplified notice of appeal setting out the grounds of appeal
was filed by the appellant on 3 August 1998.
[22] Rule 5A (1) requires an appeal from the industrial court to be
noted within 14 days of the judgment or order in question unless
the
reasons or the full reasons for the court’s judgment or order are
given on a later date, in which event the appeal must be
noted
within 14 days after the reasons are given. On good cause shown
this Court may extend any period.
[23] On a strict reading of the Rule the initial notice of appeal
filed on 5 December 1997 was in fact premature, in that the reasons
for judgment were still outstanding. Mr Bam intimates that the
appellant wished a pending appeal to be in place to counter any
then
demand by the respondent for reinstatement and therefore what he
describes as a truncated notice of appeal was filed.
[24] The noting of the appeal, by way of delivery of a notice
setting out the grounds of appeal (see Rule 5A (2) (b)), should have
occurred within 14 days of 2 March 1998 (1 March 1998, the date on
which the reasons for judgment were furnished, having been a
Sunday). The failure by the appellant to do so is readily
understandable in that it was only on 19 May 1998 that the
appellant’s
attorneys were made aware that the reasons had been
furnished. However, the noting of the appeal by way of delivery of
a notice
complying with Rule 5A(2)(b) ought then to have been
attended to within 14 days of that date.
[25] In explanation for the failure to do so Mr Bam states that
because a notice of appeal, albeit an incomplete one, had already
been filed, he formed the view that it was unnecessary immediately
to file the grounds for the appeal; hence the latter only being
done
on 4 August 1998.
[26] The explanation is an unsatisfactory one. Clearly Mr Bam was
aware that the grounds on which the appeal was founded had to
be
furnished. It is difficult to understand why he would have thought
that the earlier filing of an incomplete notice of appeal
justified
delaying the filing of a complete, and therefore proper, notice of
appeal. The delay was also not insubstantial.
[27] Rule 5(8) of this Court provides that the record on appeal must
be delivered within 60 days of the order granting leave to
appeal.
That is, of course, a reference to an appeal from a decision of the
Labour Court. Translated to an appeal from a decision
of the
industrial court the requirement of the Rule is that the record must
be filed within 60 days of the noting of the appeal.
[28] It appears that Mr Bam was of the view that the 60 day period
ran from the date on which the initial incomplete notice was
filed.
Hence his reference to initial difficulties in obtaining the file in
this matter from the Registrar of the industrial court
and
subsequent difficulty in obtaining funds from the appellant to pay
for the completion of the record, in explanation of the
failure to
comply with that perceived prescription, However, as already stated,
that notice of appeal, in addition to being incomplete,
was
premature. In the present matter the proper noting of the appeal
was in fact out of time, viz., on 4 August 1998. By then
the record
had already been filed. On a strict interpretation of the Rules the
appeal should have been noted by 19 March 1998
(being 14 court days
after 2 March 1998) and the record delivered within 60 court days
thereafter, i.e., by 17 June 1998. It was
in fact delivered on that
date. Accordingly, no question of condonation arises.
A
fortiori
is that the position if the proper noting of the appeal
had to take place within 14 days of 19 May 1998 when the appellant
was
made aware that the reasons for judgment had been furnished.
[29] In the two respects in which the appellant requires condonation
it is to be noted, as already intimated, that the delays in
question
were substantial and that the explanations therefor are
unsatisfactory. On the other hand regard must also be had to
the
following factors:
- no prejudice was occasioned to the respondent;
- the matter is clearly of importance to the appellant;
- as will be demonstrated below, the question whether the appellant
has strong prospects of success in the appeal must be answered
in
favour of the appellant.
[30] Balancing the various factors against each other and applying
the test of fairness to both sides laid down in
Melane
’s
case
supra
, I am persuaded that the present is a case where
the condonation sought should be granted.
[31] However, notwithstanding that success by the appellant, I
consider, in view of all the circumstances, including the
reasonableness
of the opposition to the application for condonation,
that the respondent is entitled to an order for such costs in
respect of
the application as he is entitled to recover on taxation.
The following comment falls to be made, however. As between the
appellant
and its attorneys, the papers presently before us reflect
that no blame attaches to the appellant in the matter of the need to

seek condonation; that blame is to be laid at the door of its
attorneys.
[32] In addition to contentions raised in support of the conclusion
of GROBBELAAR AM that the appellant had committed an unfair
labour
practice, Mr MALULEKE sought to resist the appeal on a number of
technical grounds. These will be considered in the paragraphs
that
follow.
[33] The first contention was that the appellant had acquiesced in
the judgment of the industrial court which had the result that
its
right to appeal had been perempted. The contention was founded on
the fact that when, pursuant to the order of the industrial
court,
which was made on Friday 28 November 1997, the respondent attended
at the appellant’s premises on Monday 1 December 1997
and
presented himself for work, the appellant initially allowed him to
work. However, after some hours the respondent was told
to leave
and he was paid for the hours that he had worked.
[34] There is some dispute as to precisely what occurred. The
respondent claims that initially he was reinstated without any

qualification, in the sense that he was simply permitted to commence
work, but that he was subsequently called and advised that
the
appellant had changed its mind about reinstating him and now wished
to appeal against the industrial court’s judgment. On
behalf of
the appellant Mr Oosthuizen, one of its directors, explains what he
refers to as the respondent’s short lived reinstatement
as
follows: when the respondent, armed with a copy of the industrial
court’s order arrived and demanded his reinstatement, he,
Oosthuizen, was taken by surprise and, so it is to be implied,
allowed the respondent to commence work; he, however, immediately
consulted his attorney and pursuant thereto instructions were given
for an appeal against the order to be noted; he was advised
that
pending the appeal the appellant was not obliged to honour the
award; he thereupon caused the respondent to leave the premises.
[35] The resolution of the factual dispute is unnecessary. The
inference is clear that Oosthuizen was uncertain as to the legal
position that obtained; hence, his recourse to seeking the advice of
his attorney, which is not disputed. In the circumstances
the
appellant’s action in permitting the respondent to commence work
cannot be said to have constituted acquiescence in the industrial
court’s judgment or to have been an unequivocal act wholly
inconsistent with an intention to contest it. It need hardly be

added that the party alleging acquiescence bears the onus of proving
same and in cases of doubt the onus must be held not discharged.
Dabner v SAR & H
1920 AD 583
at 594.
[36] Mr MALULEKE’s next contention related to the appellant’s
failure to comply with the time constraints for the holding of
internal appeals prescribed in its own disciplinary code. After a
provision that an appeal should be noted within two working
days of
the disciplinary action in question, failing which the right to
appeal will lapse, the code provided as follows:
“Should management fail to hold such appeal within 3 days the
employee will be reinstated.”
[37] While the verdict and sanction in the appeal hearing chaired by
Hiemstra were dated 28 June 1996 the record is silent as to
when the
hearing took place. It appears, however, to have been common cause
in the court
a quo
that it was after the prescribed three day
period had elapsed.
[38] Under the heading of procedural unfairness, GROBBELAAR AM,
with reference to the failure to hold the appeal within the
prescribed period of three days, stated:
“In my opinion, the disciplinary code should also have been
followed by the respondent because rules and regulations are to be
followed by both employer and employee. The respondent should have
reinstated the applicant when it failed to hold the appeal
hearing
within 3 days.”
[39] In the context, and by reason of the failure of the additional
member to make reference to that part of the order made in
the
internal appeal hearing, viz., that by reason of the unfairness
which tainted the earlier disciplinary inquiry, the respondent
was
to be “reinstated” and paid his emoluments in respect of the
period between the date of the disciplinary hearing and the
handing
down of the findings in the appeal hearing, GROBBELAAR AM could
not have been referring to a temporary reinstatement
pending the
belated holding of an appeal. What she intended to convey was that
the respondent’s reinstatement would have put
an end to the whole
matter. Put differently, and notwithstanding that the issue was
dealt with under the heading of procedural
unfairness, it was the
view of the additional member that no appeal hearing at all should
have taken place and that the reinstatement
of the respondent after
three days had elapsed would have been tantamount to a final setting
aside of the findings made at the
disciplinary inquiry.
[40] While seeking to support GROBBELAAR AM’s conclusion Mr
MALULEKE took a further allied point. He contended that the appeal
hearing, and accordingly the dismissal of the respondent, was a
nullity in that the presiding officer, Hiemstra, was not a director
of the appellant. This was an infraction of the prescription in the
appellant’s disciplinary code that appeals against dismissals
“shall be conducted by a Director of the Company”.
[41] The record reveals that Hiemstra is an attorney who had been
retained by the appellant to advise it on labour matters. By
the
time the hearing in the court
a quo
was held he had become a
director of the appellant. Oosthuizen was, however, not in a
position to confirm that Hiemstra’s appointment
to the appellant’s
board had preceded the hearing of the internal appeal. The matter
must therefore be approached on the basis
that he was at that time
not a director of the appellant.
[42] Oosthuizen explained both the delay in the hearing of the
appeal and the appointment of Hiemstra to chair same. He stated
that none of the other directors was sufficiently experienced to
undertake the hearing of the appeal. Moreover, presumably in
the
light of the respondent’s complaint, registered in his notice of
appeal, against the lack of fairness in the disciplinary
inquiry,
the appellant had wished to ensure a fair and just appeal procedure.
The matter was discussed with the respondent’s
representative,
who appeared for the respondent in the appeal, and he agreed that
Hiemstra be asked to preside over the appeal.
[ 43] On the first aspect I am persuaded that the construction
placed by the additional member on the relevant provision in the
disciplinary code, and echoed by Mr MALULEKE during argument, is
incorrect. The correct meaning of the provision is that the

reinstatement of a worker by reason of an appeal hearing not having
been held within three days, would be a provisional reinstatement
pending the holding of the appeal. Taking the other view to its
logical conclusion would mean that a worker, dismissed at a
disciplinary
hearing by reason of his having murdered the managing
director of the company, would be immune from further disciplinary
action
where, because of an appeal hearing against the dismissal not
being heard within three days of his noting an appeal, he is
reinstated.
Mr MALULEKE was constrained to concede that in such a
case, i.e., one of murder, the construction he contended for could
not be
supported. He sought to argue, however, that where a
disciplinary infraction of comparatively minor proportions, which
would,
so it was contended, include theft, was involved, that
construction must be upheld. The illogicality of the argument is
readily
apparent. However, on the assumption that the provision in
question, taken literally, does bear the meaning contended for, then
for the reasons that follow the argument on behalf of the respondent
can nevertheless not succeed. By a parity of reasoning the
allied
point of the appeal hearing not having been conducted by a director
of the company, can also not succeed.
[44] Mr MALULEKE referred to authority to the effect that an
employer is bound by its disciplinary code. The correct approach
is, however, that disciplinary codes are guidelines which can be
applied in a flexible manner. See
Le Roux & van Niekerk
,
The Law of Unfair Dismissal in South Africa, at 100 and 155 and the
authorities there cited. See, eg.,
Nehawu v Director-General of
Agriculture & Another
(1993) 14 ILJ 1488 (IC) at 1500. It
was there stated, correctly, that the purpose of the Labour
Relations Act of 1956 was the
promotion of good labour relations by
way of striking down and remedying unfair labour practices. To that
end a strictly legalistic
approach should yield to an equitable,
fair and reasonable exercise of rights; and insistence on
uncompromising compliance with
a code, to substantial fairness,
reasonableness and equity.
[45] In my judgment, and having regard to all the circumstances, the
time when and the manner in which the appeal hearing was held,
while
not strictly in accordance with the appellant’s disciplinary code,
were substantially fair, reasonable and equitable.
[46] The next aspect invoked by Mr MALULEKE was the wording of the
certificate of service issued by the appellant to the respondent.

It reflected that the respondent’s date of leaving employment was
28 June 1996. More importantly, the certificate itself was
dated 28
June 1996. With reference to the fact that the findings in the
appeal hearing were dated 30 June 1996, Mr MALULEKE sought
to argue
that the appellant’s board had already, on the earlier date,
decided that the respondent’s services should be terminated
and,
if I understood the argument correctly, the appeal findings merely,
and improperly, followed suit.
[47] The argument cannot be upheld. Oosthuizen explained,
acceptably, that 30 June 1996 was a Sunday; the appeal findings were
received by the appellant on Monday 1 July 1996; the certificate was
made out on the latter date; by virtue of the appeal findings
the
respondent’s last day of actual service was in fact Friday 28 June
1996 and the certificate reflected that position; the
certificate
was inadvertently dated 28 June 1996.
[48] I turn now to deal with the merits of the dispute between the
parties. By way of introduction the practice of the appellant
in
regard to the bale boards requires to be set out. The appellant’s
evidence was to the following effect. Its suppliers packaged
the
tobacco supplied to it in bales. At the bottom and on the top of
the bales wooden boards were placed and the whole was wired
fast.
The boards were approximately 1 metre by ½ metre in size. They
comprised three longitudinal slats and six transverse slats
fastened
together. The boards were supplied by the suppliers and the
appellant’s account was debited with the sum of R8,50 in
respect
of each board. After a bale had been opened the boards were stacked
in a room and from time to time would be returned
to the suppliers
and the appellant’s account credited accordingly. Documentary
evidence in support of these allegations was
produced. Damaged
boards, capable of being repaired, were also returned to the
suppliers who would repair same and debit the appellant’s
account
with the cost thereof. Boards damaged beyond repair were either
burnt by the appellant in its boilers or chopped up and
placed in
bags for sale to the staff members.
[49] In his statement of case the respondent alleged that each bale
board was used by the appellant only once, whereafter it was
treated
as scrap having no commercial value. The respondent adduced no
evidence to this effect, however, and clearly the appellant’s
evidence of bale boards being returned to the suppliers for the
credit of the appellant must be accepted.
[50] The respondent’s further evidence was that he knew nought of
any practice of irreparable boards being chopped up and sold
to
staff members in bags. It was his case that this practice was of
recent innovation, i.e., it was introduced after his departure
from
the appellant. While acknowledging that he would not have been
entitled to appropriate a bale board that was whole, he claimed
that
staff members were freely entitled to take broken boards for
themselves. He admitted, however, that broken boards were burnt
by
the appellant in its boilers.
[51] A further dispute concerned the issue whether staff members had
received warnings against taking company property without
permission
on pain of dismissal and, more specifically, whether the respondent
had been made aware of these warnings.
[52] For reasons that will appear later it is unnecessary to resolve
the question of when the appellant adopted the practice of
selling
chopped up broken bale boards to staff members or the dispute
referred to in the preceding paragraph (as to which, however,
see
the remarks in paragraph [64] below). In regard to the latter
aspect the comment may be made that no express warning was required
to render the taking of company property without permission - which
would in fact constitute theft - a disciplinary offence which,
in
appropriate circumstances, could attract the sanction of dismissal.
Of that the respondent must have been aware.
[53] What transpired on 7 June 1996 was also in dispute. The
appellant’s case in the court
a
quo
(as at the
appeal hearing chaired by Hiemstra) was that the respondent was
involved in three incidents that morning:
(1) Mr Erasmus, employed in the appellant’s workshop as a motor
mechanic, testified that at approximately 7 a.m. he proceeded
from
the workshop to the garages to check which vehicles required to be
serviced. He heard a knocking noise and observed the respondent
in
a corner next to a Passat motor vehicle. The first two doors of the
garage were closed - other evidence, that of Oosthuizen,
was that
the Passat was parked behind the first door - and the respondent was
not visible from outside the garage. He, Erasmus,
enquired of the
respondent what he was doing. The latter replied that he was
chopping wood. Erasmus was, however, not able to
see what wood was
being chopped or what the respondent was using to chop the wood.
(2) Mr Mamahloti, also employed in the workshop, testified that the
respondent arrived at the workshop with a number of whole bale
boards tied together. It was just after the end of tea time, i.e.,
9:45 a.m. He, Mamahloti, was asked by the respondent to cut
the
boards for him. His response was that he does not work the cutting
machine. At the respondent’s request he took the boards
to place
them next to the boiler room, the respondent having said that he
would cut the boards himself. Mamahloti had hardly placed
the
boards at the boiler room when Mr Lerm, an employee in the office,
approached him and told him to take the boards back.
Mamahloti was supported by Erasmus who confirmed that the respondent
did arrive at the workshop with whole boards in his possession.
He
stated that this was just before tea time and that after tea (which
ended at 9:45) the respondent spoke to Mamahloti and the
latter then
left the workshop carrying the boards. Erasmus purported to say
that the respondent requested Mamahloti to take the
boards to the
change room, but he acknowledged that the other men spoke in a
language that he could not understand, and the only
words he made
out were “change room”. Therefore, either he heard afterwards
that the respondent had asked Mamahloti to remove
the boards for him
and he inferred that the intended destination was the change room
because he had heard mention of the latter,
or he inferred that
Mamahloti had been asked to remove the boards and that the intended
destination was the change room because
he heard the words “change
room” during their conversation and Mamahloti left with the
boards.
Further support for Mamahloti’s evidence to be found in Erasmus’s
evidence is that the latter stated that he went to report
the matter
to Lerm. The inference is that it was that report that moved Lerm
to approach Mamahloti and instruct him to return
the boards.
It should further be recorded that these boards were produced at the
appeal hearing presided over by Hiemstra.
(3) Oosthuizen testified that after he had received a report at
approximately 10:00a.m. he, accompanied by Vermeulen and another
employee, Mr Giesing, repaired to the garages. The first door of
the garages was closed. Inside the garages, behind the Passat,
at a
place not visible from outside the garages, and where it was
relatively dark, they found the respondent breaking bale boards
with
a jack. The respondent was hiding behind the motor vehicle and
appeared to get a fright when he saw them. On their enquiry
as to
what he was doing the respondent said he was breaking wood for
firewood. He had a bag into which he was putting the wood.
There
were pieces of more than one board and there was a whole board
against the wall. Asked where he had obtained the boards
he was
breaking the respondent said at the change rooms. Because no boards
were kept there the respondent was asked to point out
the place.
En
route
he said he wished to tell the truth : he did not obtain
the boards at the change rooms, but in the snuff section of the
storeroom.
He claimed that he had only taken broken bale boards.
He was thereupon served with a notice to attend an internal
disciplinary
inquiry.
[54] The respondent denied the evidence summarised in the previous
paragraph. He stated that he busied himself with other duties
as
from 7 a.m. These included delivering some mail in Isando. There
was no direct evidence to support these claims of the respondent.

On the other hand it was conceded by Oosthuizen that the duties in
question were amongst those performed by the respondent in
his
employment and there was no evidence that the respondent did not
perform those duties on the morning in question.
The respondent’s further evidence was that after his return from
Isando at approximately 9:40 a.m., he decided, because it was
cold,
not to take his tea (the time of which was flexible because of the
nature of his duties), but instead to collect and prepare
the wood
from some broken bale boards as firewood. He proceeded to the
boiler room where, in the presence of a boiler room worker,
Mr
Mahlangu, he put some smaller pieces of broken boards into a plastic
bag and took possession of two further loose transverse
slats of a
bale board. That he did collect such pieces of wood was confirmed
by Mahlangu who was called as one of his witnesses.
From the boiler
room he proceeded past the workshop, as he put it, in full view of
the persons inside, to the garages where he
commenced breaking the
two transverse slats by bending them over his knee. He had in fact
also walked past Oosthuizen and Vermeulen
when he went towards the
garages. It was after he had completed that task and put the
resultant pieces into the bag and had commenced
cleaning his scooter
inside the garages that Oosthuizen
et al
arrived. He was not
hiding behind the Passat inside the garages when he broke the wood,
but was in fact outside the garage where
he was quite visible. The
bag containing the pieces of wood was upended and the contents
thrown out. Oosthuizen told him that
they had thought there was
stolen tobacco in the bag. He was thereupon told that he would be
charged with theft of company property,
viz., the wood. He queried
why he was being singled out because many other members of staff
took wood. He alleged that the appellant
took such action against
him because he had been dismissed in 1995 for refusing to work
during a December (which was not identified)
after the closing
period had commenced, but was reinstated after a disciplinary
hearing. Officials of the appellant had advised
him at the time
that they would “find” him. He denied that he had said to
Oosthuizen that he had obtained the pieces of wood
from the change
rooms or that he thereafter changed that version to read the snuff
section.
[55] Mahlangu and the respondent’s other witness, Mr Chiliza, both
stated that they knew of no rule prohibiting them from appropriating
broken bale boards. It bears mention, however, that each denied
ever having done so himself.
[56] After summarising, in broad outline, the evidence adduced
before her, GROBBELAAR AM, stated, correctly, that the appellant
bore the onus of establishing the misconduct alleged against the
respondent.
[57] She then went on to record the following:
(1) The respondent, while not disputing that he was in possession of
bale boards, testified that he did not know of the rule that
he had
to get permission to remove bale boards from the premises of the
appellant.
(2) In this regard the witness, Mr Msiza, a shop steward called on
behalf of the appellant, said that he was not sure that the
respondent was present at meetings when the shop stewards told
employees that bale boards were not to be taken.
(3) Of great importance was the fact that Msiza had testified that
what the additional member referred to as the permission rule
was
only introduced in 1994 and the respondent had only been a member of
Msiza’s trade union until 1993.
(4) In the light of Msiza’s evidence as to when the permission
rule was introduced the question arose why the appellant introduced
into evidence a statement signed by three shop stewards - one of
whom was Msiza - to the effect that over the past 10 years
management
had repeatedly warned employees not to remove company
property such as bale boards.
(5) Oosthuizen testified that it was the shop stewards, not
management, who warned the workers, but he had been given the
assurance
that all employees knew about the rule.
(6) The respondent, while admitting that he had taken broken bale
boards, denied any knowledge of the permission rule.
(7) This was a defence he had persisted in throughout all his
hearings.
(8) There was also no evidence that the respondent was trying to
hide the fact that he was chopping wood.
(9) That could only indicate that the applicant did not know about
the [permission] rule.
(10) Even if that conclusion were wrong, the question arose whether
the evidence of the appellant’s witnesses could be accepted
as
satisfactory:
(a) On that evidence the respondent was engaged in the breaking of
bale boards from 7 a.m. until about 10 a.m. when Oosthuizen
found
him in the garage with one plastic bag of broken wood.
(b) Erasmus’s evidence also deviated from his evidence at the
appeal hearing where he testified that he found the respondent
breaking boards.
(c) If the court accepted the evidence of Mamahloti, there was no
evidence to support the contention that the respondent was breaking
unbroken bale boards. It is quite strange that the respondent would
hand four unbroken boards to Mamahloti only to break other
bale
boards ten minutes later in the garage.
(d) Oosthuizen also did not testify that the respondent was found
breaking unbroken bale boards, only that one of the boards, still
intact, was standing against the wall.
(e) The only conclusion to be made in the circumstances was that the
applicant was breaking broken bale boards.
(11) In
Anglo-Americal Farms t/a Boschendal Restaurant v Komjwayo
(1992) 13 ILJ 573 (LAC) the following was said:
“It seems to me that the relationship between such an employer and
such an employee is of such a nature that, for it to be healthy,
the
employer, must, of necessity, be confident that he can trust the
employee not to steal his stock-in-trade. If that confidence
is
destroyed or substantially diminished by the realization that the
employee is a thief, the continuation of their relationship
can be
expected to become intolerable, at least for the employer.”
(12) The impression gained from Oosthuizen’s evidence was that
“every single employee caught for stealing is dismissed and
there
are no mitigating features”.
(13) There was, however, no direct evidence that the relationship
between the parties was destroyed.
(14) There was also no evidence that the applicant had a thieving
propensity which could cause the appellant reasonably to conclude
that the respondent was no longer to be trusted (
Nsimbi v Pick
_
Pay Retailers (Pty) Ltd
, 12 April 1989, IC Case no. NHN
11/2/582 - unreported).
(15) Mitigating factors were also present which had to be considered
with all the circumstances. The respondent had nine years
of
service at the time of his dismissal. He had not been convicted of
any other offence while working for the appellant.
(16) Even if her finding were wrong, the circumstances of the case
did not warrant a dismissal, but a final written warning.
(17) However, in her opinion the appellant did not know that he was
not allowed to take broken bale boards.
(18) Accordingly, the dismissal of the appellant was substantively
unfair.
[58] As to the nature of an appeal such as the present I stated the
following in
Food & General Workers Union
&
Others v Design Contract Cleaners (Pty) Ltd
(1996) 17 ILJ 1157
(LAC) at 1165A:
“An appeal to the Labour Appeal Court in terms of s 17 (21A)(a) of
the Act falls within the narrow category of appeal identified
in
Tikly & Others v Johannes NO & Others
1963 (2) SA 588
(T), ie an appeal in the ordinary strict sense, being a rehearing on
the merits, but limited to the evidence or information on
which the
decision under appeal was given, and in which the only determination
is whether that decision was right or wrong. In
that determination
the Labour Appeal Court is free, and indeed, bound, to embark on a
fresh assessment of the merits on the strength
of the evidential
material before the Industrial Court, and to exercise its own
discretion as to what is fair and reasonable in
the circumstances,
at the same time having proper regard to the findings of the court
a
quo
as to the credibility of the witnesses who testified before
it.
Anglo-American Farms t/a Boschendal Restaurant v Komjwayo
(1992) 13 ILJ 573 (LAC);
Durban Confectionary Works (Pty) Ltd
t/a Beacon Sweets v Majangaza
(1993) 14 ILJ 663 (LAC) at 667A.”
To this may be added the following passage in the judgment of McCALL
J in
Foodpiper CC t/a Kentucky Fried Chicken v Shezi
(1993)
14 ILJ 126 (LAC) at 129F-H:
“
Although
this appeal is a rehearing, I am of the opinion that in so far as
the appeal relates to the findings of fact of the court
a
quo
,
the principles applicable to appeals against findings of fact, as
set out in the judgment of Davis AJA in the case of
R
v Dhlumayo & another
1948 (2) SA 677
(A) at 705-6, are applicable. This court, not
having had the advantage of seeing and hearing the witnesses in the
court
a quo
,
will not readily upset the findings of that court and, where there
has been no misdirection on fact by the court
a
quo
,
will only reverse its decision when it is convinced that it was
wrong. There may be misdirections on fact by the court
a
quo
where the reasons are either on the face of them unsatisfactory, or
where the record shows them to be such, or where the court
has
overlooked other facts or probabilities.”
[59]
In casu
no specific credibility findings based on an
observation of the witnesses in the witness box were made by
GROBBELAAR AM.
[60] The judgment of the additional member is not a model of
clarity. On the contrary, it is vague and confusing and in a number
of respects cannot be endorsed.
[61] It is not clear to what type of bale board the additional
member was referring to when she recorded what is set out in
paragraph
[57] (1) to (9) above, i.e., whether she was referring to
intact or to broken boards or to both. In the light thereof that
she
referred to the respondent’s admission that he was in
possession of bale boards (which admission related to broken boards)
it
would seem that she intended in the subparagraphs mentioned to
refer to broken bale boards. However, the additional member then
went on to make the findings recorded in subparagraph (10) of
paragraph [57] which were premised on the basis that her earlier
conclusion was wrong and concluded with the finding that it was
broken bale boards that the respondent was breaking. This exercise
would indicate that the subject of her findings in subparagraphs (1)
to (9) was bale boards, whether broken or intact.
[62] I will later deal with the respondent’s claim that he thought
that he did not require permission to remove broken bale boards.

If, indeed, the additional member found that the respondent thought
that he could take intact bale boards without permission,
that would
constitute a clear misdirection. Such a finding would fly in the
face of not only the clear and uncontradicted evidence
of the
appellant as to how whole bale boards were dealt with, but also the
respondent’s own acknowledgement that he was not allowed
to remove
whole bale boards.
[63] With reference to subparagraphs (2) to (4) of paragraph [57] it
would seem that the additional member misconstrued the evidence.
It
was not the testimony of Msiza that it was only in 1994 that the
appellant introduced the rule that company property was not
to be
removed without permission. That rule was always in place and, to
Msiza’s knowledge, had been the subject of warnings
from
management relayed to the staff by the shop stewards at meetings
held regularly over the preceding ten years, i.e., an employee
taking company property without written permission faced dismissal.
What, according to Msiza, occurred during 1994 was the introduction
of a system whereby a receipt issued to an employee in respect of
something purchased by him from the appellant served as the written
permission.
[64] Even if it had only been broken bale boards that the respondent
removed on the day in question, one cannot but have grave
difficulty
in accepting his evidence that he thought he did not require
permission to do so. In addition to the remarks made later
concerning the respondent’s credibility I would at this stage make
the following comments. I perceive no obstacle in the way
of
accepting Msiza’s evidence that warnings against the removal of
company property without permission on pain of dismissal were
regularly over the years conveyed by the shop stewards to meetings
of employees. These warnings related to company property generally
and broken bale boards were not excluded therefrom. Even if, as is
improbable, the respondent never attended any of these meetings
- he
was a union member until 1993 - it would be passing strange if he
never came to hear of the warnings. Be that as it may,
on his own
showing the broken boards were in fact utilised by the appellant as
fuel in the boiler room. They were therefore of
commercial value
and not worthless scrap. One balks at the suggestion that the
respondent thought that he could nevertheless remove
them at his
will.
[65] The respondent’s evidence that he had seen many other workers
remove broken boards does not assist him in his claim that
he
thought he did not require permission to do likewise. He did not,
and could not, state that those other employees had in fact
not
obtained permission. He did not, and could not, state that
management was aware of the practice, i.e., in the sense of being
aware of who was removing the wood, and turned a blind eye thereto.
In any event, one queries why the respondent did not take
the simple
trouble of enquiring whether or not he was entitled at his pleasure
to remove broken bale boards.
[66] GROBBELAAR AM’s statement that there was no evidence that
the respondent was trying to hide the fact that he was chopping
wood
is a surprising one. It is true that on the evidence of Mamahloti
and Erasmus the respondent did not seek to conceal from
them his
dealings with the whole bale boards that he brought to the workshop.
One could speculate that he was confident that they
would not say
anything or that, if challenged, he might have represented that he
had the required permission. Be that as it may,
and leaving aside
for the moment the issue of the acceptability of Mamahloti’s
evidence that it was at the behest of the respondent
that he removed
the whole bale boards to a place next to the boiler room, Erasmus’s
evidence that the respondent was chopping
wood at 7 a.m. in the
garages at a place behind a motor vehicle where he was not visible
from outside the garages and Oosthuizen’s
similar evidence
relating to the 10 o’clock incident, clearly embraced the
assertion that the respondent was indeed trying to
hide the fact
that he was chopping wood. That evidence reads persuasively and
falls to be accepted.
[67] In the result and notwithstanding the support lent to the
respondent’s evidence by the testimony of Mahlangu and Chiliza,
I
am persuaded that the additional member erred in concluding that the
respondent was unaware that he was required to have permission
to
remove bale boards, even broken ones.
[68] On his own version of what he did on the morning in question,
therefore, the respondent was guilty of theft.
[69] The matter does not rest there, however. For the reasons that
follow I am unable to agree with GROBBELAAR AM’s conclusion
that
the evidence adduced on behalf of the appellant in the court
a
quo
should not be acted upon.
[70] The additional member’s statement that in terms of the
evidence of the appellant’s witnesses the respondent was engaged
in breaking bale boards over a three hour period - which she
apparently considered improbable and unacceptable - appears to be
founded on a misinterpretation of the evidence. The evidence
canvassed three separate incidents which occurred at separate times
during the approximate period in question. Its effect was not that
the respondent was engaged in the breaking of bale boards throughout
that period. The improbability apparently contended for by the
additional member is accordingly absent.
[71] The difference between Erasmus’s testimony in the court
a
quo
and his evidence during his appeal hearing is hardly one of
which cognizance should be taken.
[72] Contrary to what the additional member found I consider, if
Mamahloti’s evidence is to be accepted, that the effect thereof
is
that the respondent was taking steps in the appropriation to himself
of unbroken bale boards.
[73] I disagree, too, with the conclusion that it is strange, and
therefore presumably improbable, that the respondent would hand
unbroken bale boards to Mamahloti and some ten minutes thereafter
engage in breaking other boards in the garages. I fail to
understand
why the additional member should have considered this
strange.
[74] Precisely what point GROBBELAAR AM sought to make when
recording that Oosthuizen did not testify that he had found the

respondent breaking unbroken boards, only that one still intact
board was standing against the wall, is not clear. If it is that
that evidence, if accepted, does not establish that the respondent
was breaking whole boards, I cannot but disagree. In the absence
of
any explanation by the respondent, the only inference, as a matter
of common sense, is that, had he not been disturbed, he would
have
completed breaking all the boards in his possession including the
intact one standing against the wall.
[75] It must be acknowledged that a reading of the evidence given by
the witnesses for the appellant in the court
a quo
reveals
that it is not without blemish. Certain of the blemishes were
adverted to during argument. I do not consider it necessary
to
refer thereto in any detail. Suffice it to state that I am
unpersuaded that they constitute cognizable derogation from the
acceptability of the evidence. On the contrary the evidence
generally reads well and persuasively.
[76] There are on the other hand severe criticisms to be levelled at
the respondent as a witness. (1) I have already adverted
thereto
that the respondent’s claim that he was not aware that he required
permission to remove even broken bale boards must
be rejected.
(2) I have also recorded that in his statement of case the
respondent made the assertion (not pursued in his testimony in the

court
a quo
) that bale boards were only used by the appellant
once, and thereafter had no commercial value to the appellant. The
assertion
must be stamped as a false one which was not capable of
being justified by the respondent. Indeed, in the court
a quo
the respondent conceded that the assertion that the boards were not
re-used was incorrect. Sight must not be lost of the fact
that the
assertion, first made by the respondent during proceedings
instituted by him in terms of s 43 of the Act, (and to which
the
respondent added the assertion that the boards merely came with the
tobacco bales and the appellant was neither charged therefor
nor
credited in respect of any returns), was repeated in his statement
of case in the court
a quo
, notwithstanding that the
appellant had in the earlier proceedings in terms of section 43
made known in detail its case concerning
how bale boards were dealt
with.
(3) Allied to the preceding point is the fact that the only
interpretation of the language utilised by the appellant in his
statement
of case is that he was admitting that he took whole bale
boards, but was contending that he was entitled to do so. In his
evidence
he restricted his case to broken bale boards.
(4) In his notice of appeal noted against the initial disciplinary
inquiry findings the respondent admitted picking up old pieces
of
wood for firewood, but denied breaking or stealing the boards. At
the appeal hearing he admitted that he had chopped up boards
and put
them into a bag, although he did add that he had only taken broken
boards that he regarded as scrap. His affidavit in
the s 43
proceedings was to the same effect, as was his statement of case in
the court
a quo
. In his evidence, however, he claimed that
he had broken the two long slats over his knee.
(5) In his notice of appeal he stated that 7 June 1996 was the first
occasion he had taken bale boards. In his evidence he said
he had
often done so.
(6) While it was put to Oosthuizen under cross-examination that the
respondent would deny that he was hiding behind the Passat
motor car
in the garages, or “cowering” as Oosthuizen had put it, it was
not disputed that it was inside the garages, the one
door of which
was shut, and behind the Passat, at a spot not visible from outside
the garages, that Oosthuizen came across him.
It was also not
disputed that Oosthuizen confronted him while he was still busy
breaking the wood in his possession. In his own
evidence he claimed
that all the garage doors were open, that he in fact broke the wood
in his possession outside in front of the
garages where he could be
seen by anyone who looked, and that it was after he had placed it in
his bag and was cleaning his scooter
that Oosthuizen arrived at the
scene.
(7) It was under cross-examination that he for the first time came
out with the allegation that while
en route
to the garages
from the boiler room where he had allegedly taken pieces of wood he
in fact walked past Oosthuizen and Vermeulen
with the wood openly in
his possession.
(8) While the respondent did deny at his internal appeal hearing
that he had told Mamahloti that he wished to have the boards

referred to by the latter cut in the workshop, he did not deny that
he had given unbroken boards to Mamahloti to take to the boiler
room. He explained that he had not wanted to take unbroken boards.
He there further explained that some of the boards he had
taken from
the storeroom were unbroken, but it was only after he had started
breaking up broken boards he realised that some of
the boards were
still in good order. This evidence was diametrically opposed to
that given by the respondent in the court
a quo
.
[77] In my judgment therefore the matter requires to be resolved on
the basis of an acceptance of the evidence adduced on behalf
of the
appellant in the court
a quo
. On that basis the misconduct
alleged against the respondent, i.e., theft of bale boards,
including whole bale boards, was established.
[78] Was dismissal of the respondent an unfair sanction? I am
persuaded that this question falls to be answered in the negative.

It is true that the respondent had a long record of service (7 years
10 months, not 9 years as found by GROBBELAAR AM) with
no previous
record of a disciplinary offence. On the other hand Oosthuizen
testified that the appellant experiences theft by its
employees on a
large scale. It follows that a measure of deterrence is called for.
The respondent’s conduct was not only dishonest,
but was
premeditated, planned and persistent. The overlapping triad of
misconduct, incapacity and operational necessity adverted
to in
MAN Truck & Bus (SA) Pty Ltd and United
African Motor &
Allied Workers Union
(1991) 12 ILJ 181 (ARB) at 185G-I (referred
in the
Anglo-American Farms
case
supra
at 590) was
present. Moreover, regard may further be had to the manner in which
the respondent conducted his case in the court
a
quo
.
It embraced a false accusation of perjury against,
inter alia
,
a director of the appellant and a charge against him that for
ulterior motives he made a false accusation the subject of
disciplinary
proceedings against the respondent. No viable
employer-employee relationship remained.
[79] I conclude accordingly that the respondent’s dismissal was
both substantively and procedurally fair and that no unfair labour
practice was committed.
[80] The following order will accordingly issue:
(1) (a) The appellant’s application for condonation is granted.
(b) The respondent is awarded any costs recoverable by him on
taxation in respect of the opposition to the application for
condonation.
(2) The appeal is upheld with costs. For the award made by the
court
a quo
is substituted the following order:
“The application is dismissed.”
___________
KROON JA
I agree
________________
FRONEMAN DJP
I agree
______________
CONRADIE JA
Appearance for Appellant
: Mr BEETON
Instructed by Rooth & Wessels
Appearance for Respondent
:Mr MALULEKE
National Entitled Workers Union
Date of Hearing
: 3 February 1999
Date of Judgment
: 16 February 1999.
This judgment is available on the internet at the following website:
http//www.law.wits.ac.za/labourcrt.