About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2002
>>
[2002] ZALAC 39
|
|
Mahlangu v Commission for Conciliation Mediation And Arbitration and Others (JA8/02) [2002] ZALAC 39 (20 December 2002)
IN
THE LABOUR APPEAL COURT OF SOUTH A
FRICA
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:
a)
three trucks left the mine property concerned at approximately
23h20
filled with stolen coal;
b)
at the relevant time the appellant who was the foreman was in
his
office at the plant;
c)
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;
d)
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 –
presumably
during his shift;
e)
the appellant as foreman was directly responsible for the machine;
f)
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'sAttorney:
Deneys Reitz
Date of
Hearing:
14 November 2002
Date of
Judgment:
20 December 2002