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[2002] ZALAC 35
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Mahlangu v Commission for Conciliation Mediation and Arbitration an Others (JA8/02) [2002] ZALAC 35 (20 December 2002)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Case No: JA 8/02
In
the matter between:
THEMBA
MAHLANGU Appellant
and
COMMISSION
FOR CONCILIATION First Respondent
MEDIATION
AND ARBITRATION
SIBUSISO
MAGWAZA N O Second Respondent
IMPUNZI
COLLIERIES DIVISION Third Respondent
(a
division of the Duiker Mining Group)
____________________________________________________________________
J U D G M E N
T
_____________________________________________________________________
GOLDSTEIN
AJA:
[1] Th appellant
was employed by the third respondent, which dismissed him on 9 April
1999 following a disciplinary enquiry at which
he had been found
guilty of misconduct on a charge of "assisting in the theft of
coal". As a result of this dismissal,
a dispute arose between
the appellant and the third respondent about the fairness of the
dismissal. This dispute was referred to
the first respondent which
assigned it to the second respondent for arbitration. The award of
the second respondent was brought on
review by the appellant before
Revelas
J
sitting in the Labour Court.
[2] The learned
Judge dismissed the appellant's application with costs and granted
leave to appeal to this Court.
[3] The evidence
led before the second respondent established the following facts:
three trucks
left the mine property concerned at approximately 23h20 filled with
stolen coal;
at the relevant
time the appellant who was the foreman was in his office at the
plant;
a Khumatsu 500
machine used for loading coal on trucks was parked in front of the
foreman's office and was hot indicating that it
had recently been in
use;
the appellant
was questioned that night about the use of the machine and he stated
that he did not know who had used it since he
was looking for the
key and that it had never worked â presumably during his shift;
the appellant
as foreman was directly responsible for the machine;
a stockpile of
coal is 200 to 250 metres from the foreman's office.
[4] The
appellant did not give evidence before the second respondent in
regard to the events of the night in question, and confined
his
evidence to an attack on the procedure followed by the third
respondent during his disciplinary enquiry. In these circumstances
the second respondent's finding that the Khumatsu had been used and
that the appellant was probably on the scene at the time is
justifiable.
His finding that the dismissal of the appellant for
misconduct was substantively fair is also justifiable. The
appellant's attorney
contended that the second respondent erred in
not warning the appellant of the result of his failure to give
evidence. As I have
pointed out he did give evidence but restricted
it to a procedural matter. Moreover, this point is not taken in the
founding affidavit.
Furthermore, the appellant played an active role
in the proceedings before the second respondent and even
cross-examined at stages,
indicating that if he wished to give
evidence on the merits of the charge against him he would have done
so.
[5] In
my view there is no merit in the appeal. The appellant's attorney
concedes that costs should follow the result.
[6] I
make the following order: The appeal is dismissed with costs.
___________________
E
L GOLDSTEIN
Acting
Judge of Appeal
I
agree
___________________
R
M M ZONDO
Judge
President
I
agree
___________________
D MLAMBO
Acting
Judge of Appeal
For
the Appellant: Attorney G N MOSHOANA
For
the Third Respondent : A T MYBURG
Third
Respondent's Attorney: Deneys Reitz
Date
of Hearing: 14 November 2002
Date
of Judgment: 20 December 2002