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[2012] ZALAC 36
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Northam Platinum Ltd v Kganyago NO and Others (JA 14/10) [2012] ZALAC 36 (22 February 2012)
Not
Reportable
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: JA 14/10
In
the matter between:
NORTHAM
PLATINUM LTD
............................................................................
Appellant
and
F
M KGANYAGO N.O.
........................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
................................................
Second
Respondent
NATIONAL
UNION OF MINEWORKERS
obo
W MOAPE
..................................................................................
Third
Respondent
Heard:
23 March 2011
Delivered
22 February 2012
Summary:
video footage- commissioner’s finding that third respondent
could not be identified on a balance of probabilities a reasonable
decision- court
a quo
justified in not
interfering with award- appeal dismissed with cost.
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
Landman
AJA
Introduction
[1] Northam Platinum (the
appellant) appeals, with leave, against a judgment of the Labour
Court (Moahlehi J) dismissing an application
to review an award of
Kganyao N.O. (the first respondent) a Commissioner of the Commission
for Conciliation Mediation and Arbitration
(the second respondent).
The Commissioner found Moape, a member of the National Union of
Mineworkers (the third respondent), to
have been unfairly dismissed.
The facts
[2] The appellant had
good reason to believe that Platinum concentrate was being stolen
from its plant. To prevent this, it caused
video cameras to be
installed and advised its employees of this. At the arbitration, it
was the appellant's case that video footage
of the K01 tank showed
Maope, Malatji and Matlou (employees of the appellant) illegally
tapping Platinum concentrate from a flange.
[3] The video footage in
question was of poor quality. This was admitted by the appellant's
witnesses and it was said that “not
anyone” would be able
to identify the persons appearing in the footage. The Commissioner,
who also viewed the video, recorded
that he was unable to identify
Moape on the footage. Moape also testified that he could not to be
seen on the video tape.
[4] The Commissioner
found that the appellant had not proven its case on the balance of
probabilities and that the witnesses had
assumed that Moape was one
of the persons appearing on the footage because there were a limited
number of employees on duty at
the time.
[5] The appellant sought
to review the award in the Labour Court. The application was
unsuccessful and the appellant was granted
leave to appeal by the
court
a quo
.
[6] Mr Beaton SC, who
appeared on behalf of the appellant, contended that the court
a
quo
erred in finding that the conclusion reached by the
Commissioner was one which the Commissioner could reasonably have
reached on
the evidence before him. Mr Beaton also contended that the
court
a quo
erred in making an adverse inference against the
appellant from the fact that it did not make the video tapes
available to the
court so that the court of
a quo
could view
them.
[7] The foundation for
the appellant's case was the video footage taken of the activities in
the vicinity of the tank. The video
footage was part of the record.
It should have been placed before the court
a quo
because the
Commissioner had clearly stated that he was unable to identify the
employee concerned on the video tape which was screened
during the
arbitration and this played a significant role in him arriving at his
decision. In fact, in the course of its judgment
the court
a quo
remarked: ‘I do not see how this Court could in the absence of
the video footage be able to assess the reasonableness of
the
conclusion reached by the Commissioner that the video footage was of
poor quality’. This observation is unassailable.
[8] Mr Beaton, however,
argued that in view of the bad quality of the tape and observations
of the Commissioner, it would have served
no purpose for the court
a
quo
to view the tape. It is also common cause that the face of
Moape cannot be seen on the video tapes.
[9] I accept that
witnesses such as Du Preez and Corbett, who were in daily contact
with employees, might better be able to identify
them on video
footage of poor quality. Du Preez and Corbett said they had worked
with Moape for some time. They pointed to other
aspects which could
be material to the identification of this employee. Du Preez
testified about the white jacket which Moape usually
wore. It was not
disputed that Moape usually wore a white jacket at work. Corbett
mentioned the limited number of employees on
duty at the time.
[10] Mr Beaton submits
that the Commissioner did not take this into account, as he did not
summarise that part of Corbett’s
evidence dealing with the
employees on duty at the time of the incident. The Commissioner,
however, pertinently says: ‘The
second and third witnesses for
the respondent rely on the fact that they have worked with the
applicant for a long time and hence
they are able to identify him.’
The second and third witnesses refer to Corbett and Du Preez.
Although the Commissioner refers
to the evidence about Moape usually
wearing a white coat, he does not pertinently deal with this in his
analysis. But one cannot
expect an award to deal with each and every
point presented in evidence. But the Commissioner does go on to say
that there is no
other feature that the appellant’s witnesses
have put forward in identifying Moape.
[11] The Commissioner was
clearly not satisfied that the two witnesses were able to identify
the employee on the balance of probabilities.
He concluded that when
they said they identified the employee they did so because they made
certain assumptions i.e. that the employees
who were on duty at the
time would work in that area and were the persons depicted on the
video.
[12] The Commissioner’s
finding that Moape could not be identified on a balance of
probabilities by the two witnesses on account
of the poor quality of
the videotape, the denial by the employee that he was depicted on the
footage and the fact that the Commissioner
could himself not identify
Moape, was a finding which the Commissioner could, in my view,
reasonably have made. The Commissioner's
explanation as to why the
witnesses had identified the employee, even if incorrect, takes the
matter no further. There is no basis
for this Court to interfere with
the decision of the court
a quo
.
[13] With regard to costs
I see no reason why costs in this matter should not follow the
result.
[14] In the result the
appeal is dismissed with costs.
__________________
Landman AJA
I agree
__________________
Waglay DJP
I agree
__________________
Mailula AJA
APPEARANCES:
FOR THE APPELLANT: R G
Beaton SC
Instructed by Van Zyl Le
Roux Inc
FOR THE THIRD RESPONDENT:
N Tshabalala
Instructed by Nomali
Tshabalala Attorneys
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