CTL Group (Pty) Ltd v Memela and Others (DA 21/01) [2002] ZALAC 24 (6 December 2002)

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[2002] ZALAC 24
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CTL Group (Pty) Ltd v Memela and Others (DA 21/01) [2002] ZALAC 24 (6 December 2002)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA.
(Held at Durban)
Case No. DA 21/01
C.T.L. GROUP (PTY) LTD.
Appellant
And
GIJIMANI FELIX MEMELA
1
st
Respondent
MR G A CORMACK in his Capacity as
COMMISSIONER of the COMMISSION FOR
CONCILIATION MEDIATION AND ARBITRATION.
2
nd
Respondent
CCMA

3
rd
Respondent
JUDGMENT
DAVIS AJA
[1] First respondent, who was employed by the
appellant, was charged with the refusal to open and reveal the
contents of a bag which
led appellant to suspect that he was in the
unauthorised possession of products belonging to appellant. A
disciplinary enquiry
was held on 9 April 1999. First respondent was
found guilty as charged and it was determined that he be dismissed
from the employment
of appellant. The matter was then referred to
third respondent who concluded that the dismissal was both
substantively and procedurally
unfair and ordered that first
respondent be reinstated with compensation.
[2] This decision of third respondent was taken
on review before the Labour Court. Ngcamu A J, who heard the review
application,
found that there was no evidence to prove that first
respondent’s refusal to be searched was a dismissable offence.
Accordingly,
he found that there was no evidence to prove that the
dismissal of first respondent was justified. On appeal Mr Ross, who
appeared
on behalf of appellant, submitted that appellant had led
evidence in the arbitration to show that the employee had refused to
be searched. Furthermore upon such refusal he had run away and had
to be apprehended by security guards. As a result of this

behaviour, first respondent had been charged with the refusal to
open and reveal the contents of the bag which caused suspicion
that
he was in possession of appellant’s property. For this reason Mr
Ross submitted that first respondent’s conduct justified
the
formation of a reasonable suspicion that he had removed property
without authorisation and thus constituted a sound basis
for
dismissal.
THE FACTS .
[3] At the arbitration appellant relied on the
evidence of one witness, Mr Zinyanga of Shield Security. He
testified that he had
worked at the gate of appellant’s premises
searching cars and employees. He saw first respondent approach the
gate with a
bag. First respondent refused to allow Mr Zinyanga to
examine the bag. At the arbitration hearing Mr Zinyanga testified
that
first respondent had then run towards the taxi rank. When
cross examined about first respondent’s version that he had run to

the railway station in order to catch a train, Mr Zinyanga conceded
that he had previously written a statement in which he had
said that
first respondent had proceeded to the railway station. He was unable
to explain the discrepancies between his oral
testimony at the
arbitration hearing and the statement. Respondent testified that he
had not refused to open and reveal the
contents of the bag. He
testified that Mr Zinyanga had examined the bag when it had been
opened. Thereafter he had closed
his bag and run speedily towards
the railway station in order to catch a train, which had already
arrived at the station.
[4] The arbitrator concluded that Mr Zinyanga had
contradicted his own statement and this reflected upon his
credibility. Accordingly
third respondent preferred the evidence of
first respondent to that of Mr Zinyanga.
ANALYSIS.
[5] Of particular importance to the review of the
decision of third respondent was the question whether any offence
had been proved
against first respondent. Mr Ross submitted that
evidence had been provided to the third respondent by Mr Sibusiso
Lunga, an
industrial relations consultant employed by appellant.
However Mr Lunga’s own version as contained in an affidavit to
which
he deposed before the court a quo reads as follows:
“It is respectfully brought to the attention of
this honourable court that the applicant led evidence to show that
first respondent’s
refusal to be searched and subsequent running
away was tainted with gross dishonesty. In all probabilities (sic)
conduct involving
gross dishonesty amounts to a contravention of a
valid or reasonable and well-known rule governing conduct in the
work place.
As is evident from the arbitrator’s award it was
applicant’s argument that dismissal was an appropriate sanction
for the
breach of trust by first respondent. It is therefore
respectfully submitted that second respondent’s error of judgment
in
this regard, particularly in view of the material properly
brought before him warrants a review of this award.”
[6] An examination of this passage reveals an
absence of any clear evidence that there was an express rule of
conduct which governed
the conduct of appellant’s employees that
been properly approved before the arbitrator and which had been
contravened by first
respondent. All that Mr Lunga suggests is that
there is
“
a well known
rule governing conduct in the work place”, which prohibits gross
dishonesty. That however is insufficient for
the purposes of this
case. The question arises as to whether there was a rule properly
proved which authorised the search of
employees bags in
circumstances described by appellant’s witness Mr Zinyanga.
[7] Given the absence of any rule so properly
proved, whichever of the versions of Mr Zinyanga or first
respondent is to be preferred,
as to what happened at the gate is
irrelevant. The fact remains that it was incumbent upon appellant to
prove the existence of
a rule, the contravention of which would have
justified the dismissal. Absent such proof, there is no basis upon
which appellant
could have been dismissed.
For these reasons there is no justification for
interfering with the award made by third respondent and confirmed by
the court
a quo. The appeal is dismissed with costs.
_______________
DAVIS AJA
I agree

______________
ZONDO DP
I agree

______________
DU PLESSIS AJA
Appearance:
For the Appellant: Mr D. Ross
Instructed by: CLT Management Forum
For the Respondent: Mr Jafta
Instructed by: Jafta & Company
Date of Hearing: 13 September 2002
Date of Judgement: 6 December 2002