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[2014] ZALAC 24
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National Union Of Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg Section) (JA2013/42) [2014] ZALAC 24; (2014) 35 ILJ 2406 (LAC) (15 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
REPORTABLE
CASE NO: JA 2013/42
IN THE APPEAL OF:
NATIONAL UNION OF
MINEWORKERS,
ON BEHALF OF SZD
BOTSANE Appellant
and
ANGLO PLATINUM MINE
(RUSTENBURG SECTION)
Respondent
Heard:
18 February 2014
Delivered:
15 May 2014
Summary: Principles
about not introducing new issues on appeal restated-Review of
arbitration award- employee dismissed for gross
negligence- employees
in managerial position expected to show a certain degree of judgment
in the exercise of their duties- employee
failing to do so- employee
grossly negligent in carrying his duties- approach to complaints of
inconsistency in discipline stated
- arbitrator upholding
dismissal- arbitrator’s award reasonable- Labour Court judgment
upheld- appeal dismissed with
costs
Coram: Waglay JP,
Molemela and Sutherland AJJA
JUDGMENT
SUTHERLAND AJA:
Introduction
[1]
The appellant was dismissed. The dismissal
was arbitrated and held to be fair. An application to review the
award failed. This appeal
is against the review court’s
judgment upholding the award. The allegations are that the
arbitrator, in several respects,
committed irregularities and failed
to apply his mind to the true issues. The question before this Court
is whether the review
court was wrong to have concluded that the
award was one that a reasonable arbitrator could make. (
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ 2405 (CC),
Heroldt v
Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)
;
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).
[2]
On appeal, the judgment and award were
challenged on only two grounds that were pressed in argument. First,
whether a case, materially
different to the case with which he had
been charged with misconduct was presented in the arbitration and
illegitimately entertained;
and second, whether the sanction of
dismissal was inappropriate because sanctions for the alleged
misconduct were inconsistently
applied to all involved in the acts of
misconduct.
[3]
The allegation of misconduct was formulated
thus:
‘
Gross
negligence–in that you failed to comply with the S and SD
initiative of `the company, relating to safety operations
of battery
locomotives (Locos).’
He
was also alleged to have been dishonest, but on that charge, no award
was made and it has fallen away. The cryptic allusion to
‘S &
SD’ refers to ‘safety and safety devices’. Despite
a complaint that the full reach of this ‘initiative’
was
not revealed, there is no need to plumb its potential depths. The
gravamen of the charges were plain to all; ie the failure
to secure
completion of the fitment of proximity motion sensors to the locos in
the Brakspruit shaft over which the appellant exercised
managerial
control as the Resident Engineer. The appellant described himself as
the Managing Engineer. He took charge in about
September 2006. In
October 2006, he was formally appointed in terms of section 65(7) of
the
Mine Health and Safety Act 29 of 1996
, and
Regulation 2.13.1
of
schedule 4, promulgated in terms of that Act, which rendered him
statutorily responsible to maintain safety as regulated under
the
statute, more especially as regards all the machinery in the mine
under his control. Prior to his taking this position, the
appellant
says he had 15 years of experience.
[4]
As the Resident Engineer, he was the
manager in control of two shafts. His immediate superior was the Mine
Production Manager, but
ancillary thereto, in respect of engineering
matters involving machinery, he was accountable to the Engineering
Manager, Hough.
Under the appellant were two shaft engineers, and
then down the hierarchy, four foremen, about 35 - 40 artisans, and
the crews
of mineworkers of about 2500 people in total. On each level
of the mine there was a workshop where maintenance of the machinery,
including the locos, was performed.
[5]
The mine used battery operated locos on
each level to convey ore. There were more than one loco on each
level. Collisions often
occurred and workers were killed. In late
2006, the Management decided to address the risk of collisions,
spurred on by what was
called ‘a spate of fatalities’.
The means chosen was the fitting of the proximity sensors which would
be triggered
by movement up to 70 metres away and flash a light to
alert the drivers. It was common cause that the appellant was
responsible
to achieve the fitment to all the locos in his mine. The
process commenced from about December 2006, the exact date not being
stated,
probably because no record appears to have been made. When a
collision, which killed one man, occurred on 5 May 2007, was
investigated,
it was revealed that four locos were non-compliant. One
consequence was the disciplining of the appellant for neglect, as
formulated
in the charge, cited above.
[6]
The arbitrator found the appellant guilty
on his own version. The discrepancies between his evidence and that
of the Engineering
Manager Hough, which were few, are thus
unnecessary to explore.
The basic facts
relevant to the allegation of gross negligence
[7]
The evidence, though not unequivocal,
suggests that the instruction to the appellant to deal with a
programme of fitment took place
in November 2006, around the time an
email was sent by Hough to the Mine General Manager and copied to the
appellant. The email
set out a programme of fitment from December
2006 to May 2007. Hough, nevertheless, maintained that the deadline
was 31 January.
However, the issue of a so-called deadline is a
distraction and can be ignored for reasons which are addressed later
on in this
judgment.
[8]
The progress of fitment is revealed in the
evidence, principally, by the exchanges that took place between Hough
and the appellant
about the matter.
[9]
Apparently, Hough frequently asked about
progress on the fitment programme, along with queries about other
safety matters. One significant
enquiry was in February 2007; a
precise date was not stated. Hough telephoned the appellant whilst
the appellant was in a meeting
with his subordinate engineers and
foremen. Hough asked about progress, the previous report to him
having been that about six locos
were still to be fitted. The
appellant did not know if any further progress had been made. He then
asked the assembled persons
what was the status quo. The shaft
engineer, Goitse Tshwabi, said he did not know. They then asked the
foremen who were present.
It is not obvious from the evidence that
all the foremen were present. The ‘foremen’ gave the
assurance that all had
been fitted. The appellant relayed that to
Hough.
[10]
In March, again on a date unstated by the
appellant, but is strongly suggested as being about 11 March, Hough
and the appellant
were underground in the Brakspruit shaft,
ostensibly to do spot checks on several matters, and came across two
locos that were
not fitted. The appellant instructed the engineer to
get it done at once. Later, he got an oral assurance that the two
locos specified
were now fitted. No reference is made to any further
enquiry as to why wrong information was furnished to the appellant.
No call
was made for a general check and confirmation that there were
no other locos unfitted. Hough made a report on 12 March to the
General
Management, representing that the programme was completed and
copied the appellant who confirmed he got a copy. Not then, nor
later,
did the appellant ever contradict the impression that the
programme was completed in any report to Hough.
[11]
On a Sunday in March, date unknown (the
appellant says about 2-3 weeks later, but this seems to be a wild
guess), the appellant
went underground with Tshwabi and he came
across yet another unfitted loco. He says he was enraged. He
cautioned Tshwabi about
the failure and says he threatened dismissal.
Later he got an oral assurance that the loco he had spotted in an
unfitted state
was now fitted. No other verification exercise was
ordered. No updated report was furnished to Hough.
[12]
At about this time (it is to be inferred)
the appellant says the shaft engineer, Tshwabi, told him that the
operators were meddling
with the light fittings of the sensors
because its flashing was an irritant. Notwithstanding this
explanation for defective sensors,
the appellant does not say he did
anything about addressing the abuse which was self-evidently
undermining the safety system.
[13]
The appellant says he, by then, lacked
confidence in the information being transmitted to him by his
subordinates. On or about 13
April he spoke to one Tsetse, a
Mechanical foreman. Tsetse was to do several checks on mechanical
aspects of machinery, including
the locos. In principle, the
electrical foreman and his staff were responsible for the sensors.
However, owing to the lack of confidence
alluded to, he asked that
Tsetse checked on the sensors too. On the Saturday following this
request Tsetse called the appellant.
He relayed that his boilermaker
artisans told him that 5-6 locos were unfitted. He asked which ones
but that detail was not known.
He asked for amplification from Tsetse
who said he would try. However, Tsetse was from the next Monday off
the mine on a training
course.
[14]
After this, at a time unstated, the
appellant confronted Van der Walt, the electrical foreman with the
allegation emanating from
Tsetse. Van der Walt was adamant that every
loco was fitted. The appellant says he ‘believed’ Van der
Walt, on the
basis that it was likely that he would know better than
a mechanical foreman what was happening about the electrical aspects
of
the machinery. The appellant says also, he was keen not to cause
conflict and this influenced his decision to ‘believe’
Van der Walt.
[15]
In cross-examination, the appellant claimed
to have especially put the shaft engineer and foreman on night shift
to attend to getting
the locos into optimal operating condition and
that this exercise included the fitting of sensors. Unhappily no
indication is offered
about when this occurred in the period between
February and May. Nor are the fruits of that exercise divulged.
[16]
After speaking to Van der Walt, nothing
further was done, the appellant having adopted the view that the
programme was complete.
No attention was given to the allegations of
the abuse of the equipment, alluded to above, and whether it remained
ongoing. Time
passed.
[17]
Then came the collision of 7 May. The
post-accident investigation produced for the first time, from an
engineer, Steynberg, a schedule
identifying every loco and a
verification of whether it was fitted and operational. Of the 42
locos listed, three had not been
fitted and one was in need of a
replacement controller. It is assumed the list excludes the two locos
involved in the collision,
one of which was illegitimately in use and
the other, though fitted, had a defective sensor light which defeated
the purpose of
the sensor alert system.
The
nature of the neglect
[18]
The most prominent unanswered question in
the account described above is why and how could the appellant think
it was prudent to
have preferred the protestations of Van der Walt
over the reports from Tsetse when he was already aware that the oral
feedback
he got from his subordinates was unreliable and had been
previously proven to be blatantly false? Second, why did he do
nothing
to address the abuse of the equipment that rendered it
dysfunctional?
[19]
The appellant confessed to being ignorant
of the number of locomotives and on how many levels they operated, of
being uninformed
about the status of the receipt of the sensors, and
also confessed to not keeping a log of the locos to enable him to
monitor which
were fitted and which were not. He says he concerned
himself solely with what he called ‘quantities’ using a
spreadsheet
Hough gave him. Further, as to the steps he took to
inform himself, he was quite content to resort to random ad hoc oral
and informal
reports from his subordinates. He justified his conduct
on the basis that Hough communicated with him on that footing. He
claimed
that this was the ‘system’ he used which was in
keeping with the ‘system’ in use by the mine. Somewhat
irreconcilable with this assertion, is his acknowledgment of the
extensive record keeping system for maintenance purposes of the
machinery and equipment under his control.
[20]
The appellant’s stance in denying
culpability for gross negligence betrays a lack of grasp about the
nature of his job. He
was a manager and was responsible
to
manage
the programme of fitment. To
this end, ie the management of the programme, he failed to properly
apply his mind. Despite the acknowledgement
in his testimony that he
was required to use judgment, he failed to do so. An inappropriate
combination of ignorance of the hard
facts that he needed to manage
effectively and an undue deference to feedback he knew to be
unreliable demonstrates his lack of
judgment. He conducted himself
like a functionary not as a manager. He misconstrued the practice of
the reliance by one manager
on another manager for assurances, given
orally and informally, and upon which further decisions are made.
Such a practice occurs
within a particular context of a managerial
ethos built upon a high sense of accountability and use of
discretionary judgment.
That sort of ethos does not exist in respect
of a manager holding non-managerial personnel to account; it is wrong
to ignore the
distinction. His timidity exhibited in his exchange
with Van der Walt hints at an unwillingness to assert his authority,
a critical
element of his function as a manager.
[21]
The standard of care the appellant was
obliged to meet was high because he was responsible for the safety of
the workers underground.
It is not obvious that he really digested
the implications of that responsibility. The case for the appellant
included a contention
that the statutory duties of the appellant had
nothing to do with the allegations of misconduct and it was unfair to
make findings
on whether he fulfilled them. This contention is an
exaggeration, inspired, it is fair to note, in part by the
superfluous and
exaggerated allusions to the statutory duties in the
reasons offered by the arbitrator. In truth, however, the real
significance
of the statutory duties is limited to an understanding
of the standards expected of a resident engineer, a dimension of his
function
which has a direct bearing on the importance that the
appellant ought to have attached to the fitment of sensors quickly
and effectively,
and ultimately to his use of judgment to achieve
that end.
[22]
A vain effort was made to suggest that if
the programme was due to be completed only in May, the incomplete
status on 5 May exonerated
the appellant from the charge of gross
negligence. This contention misses the point of the charge. The
evidence of how the appellant
mismanaged the programme, regardless of
whether the deadline remained pending, is the gravamen of the charge.
Moreover, the misrepresentations,
albeit
bona
fide
, to Hough that the programme was
complete and his own ‘belief,’ based as it was on the
unjustifiable premise that the
programme was complete, form the
foundation of the gross negligence proven against him. Also, it was
never his case that he was
still working towards completion on 5 May
2007.
The notion of a
different case being presented
[23]
The generic contention is advanced,
correctly in our view, that at a hearing into misconduct before the
CCMA, the employer is limited
to defending its decision to dismiss
upon the grounds it relied upon to do so, and may not introduce a new
charge not initially
relied upon to justify the dismissal. If the
employer discovers a basis to dismiss an employee not known to it
when it dismissed
the employee, it must convene a hearing into that
charge afresh, not tack it onto any proceedings in defence of the
initial dismissal.
(Cf:
Mndaweni v
JD group t/a Bradlows
(1998) 19 ILJ
1628 (LC) at 1631-1632) This is an example of an important difference
between the common law, where the opposite
is true, and modern Labour
law. The only question that arises here is whether as a fact the line
was crossed.
[24]
The contention that a ‘materially
different case’ to that with which the appellant had been
charged was presented before
the arbitrator and that it was on that
different case that he was found guilty is mistaken. The notion rests
on the criticism levelled
at the appellant that he failed to put
‘systems’ in place to manage the programme. Undeserved
emphasis has been placed
on this aspect of the evidence and the
supposed significance of the terminology of ‘systems’ has
been much exaggerated.
What the appellant was required to do was to
use common sense, commensurate with the judgment expected of a person
of managerial
rank; ie to conduct himself as would the proverbial
reasonable man in the position of the Resident Engineer, mandated to
manage
the fitment programme. This implies that he ought to have
informed himself of the relevant facts, as alluded to above, which
the
evidence discloses he remained ignorant, and to have troubled
himself to track the progress of fitment in a meaningful way, of his
own choosing, which could empower him to hold his subordinates to
account for effective delivery. To flatter this with the label
of ‘a
system’ in common parlance is, in truth, to say very little
indeed. The detailed criticism of the appellant did
not stray from
the charges and no unfairness resulted from the adducing of evidence
about the general monitoring systems in place
or from the criticism
that by the application of managerial judgment he would have enabled
himself to do precisely what he failed
to do; ie
effectively
manage
the fitment programme. The
evidence of a shaft Engineer, Steynberg, who was tasked with
compiling an inventory after the 5 May
collision that showed every
loco, it location and its status, an exercise performed within a day
or so, illustrated how simple
the effective management of the
programme could be in practice. That testimony served merely as an
example of what could be done,
not a prescription.
The notion of
inconsistency in discipline
[25]
The idea of inconsistency in employee
discipline derives from the notion that it is unfair that like are
like are not treated alike.
The core of this ‘factor’ in
the application of employee discipline (it would be a misconception
to call it a principle)
is the rejection of capricious or arbitrary
conduct by an employer.
[26]
It has application in two respects. Mainly,
it is a recognition of the unfairness of the condemnation of one
person for genuine
misconduct when another indistinguishable case of
misconduct by another person is condoned. The second application is
the recognition
of the unfairness that results when disparate
sanctions are meted out for indistinguishable misconduct to different
persons.
[27]
In this case, the flaw in the argument that
alleges the presence of inconsistency is the failure to recognise and
digest that the
appellant was alone responsible, within his area of
managerial control,
to manage
the fitment programme.
[28]
As regards the dereliction of duties by his
subordinates, if any acts of misconduct were to be proven against any
particular individual,
it remains plain that they had no
managerial
role
and it is illogical to draw a
comparison as contemplated by the factor of inconsistency. Moreover,
it would be a paradox if the
appellant could legitimately invoke the
failure of the very subordinates he was accountable to manage
effectively to exonerate
or mitigate his managerial neglect by
managing them ineffectively. There is no room to contemplate the
factor of inconsistency
of discipline by invoking the probability
that no subordinates were not disciplined (or that it is unknown
whether they were disciplined)
for their infractions. The reason for
this is that if it is assumed that a cogent concrete basis could be
put up to identify which
persons acted irresponsibly in
relation to their specific functions and responsibilities, it would
still not be a failure
by them to manage the fitment programme and be
conduct comparable to the misconduct committed by the appellant.
[29]
As regards the idea of inconsistency as
between the appellant and his superiors, a similar absence of a
proper basis for comparison
exists. On the evidence adduced, the
Production Manager, Horn, to whom the appellant reported is not shown
to have been responsible
for the fitment programme, and indeed, the
reporting accountability of the appellant for the programme was
plainly to the Engineering
Manager, Hough, the exercise falling into
the technical specialism of which Hough was in overall charge. Hough
testified. Nothing
adduced in his testimony points to a comparable
culpability for the mandate that the appellant correctly concedes was
his, legitimately
delegated to him by Hough, and to whom he was
liable to give reports, the content of which the appellant was
content to compose
from ad hoc, relayed feedbacks from persons who he
knew to be unreliable.
[30]
As regards the ruling given by the
arbitrator which excluded the notion of inconsistency from the
hearing, no cogent criticism can
be sustained.
[31]
The parties had in preparation for the
hearing met and conferred on the scope of the dispute to be put to
the arbitrator. A Minute
was produced. Significantly, the Minute is
silent about the issue of inconsistency. The record shows that at the
arbitration it
was raised only after the appellant had testified and
after Hough had testified for the respondent and been cross-examined.
The
arbitrator refused to ‘entertain’ an application to
introduce it. What the arbitrator meant by this phrase is addressed
elsewhere in this judgment. The respondent objected to the issue
being introduced. It alleged prejudice in as much as that was
not a
defence covered by the terms of the pre-hearing conference, as
evidenced by the Minute, and no preparation had been devoted
to
addressing any evidence pertinent to such case. The arbitrator’s
refusal to consider the issue was premised on this perspective
of
prejudice.
[32]
When the award upheld the dismissal to be
fair, the review application was initiated in the customary fashion
upon a founding affidavit
deposed to by the appellant. That affidavit
is devoted to articulating a thesis that the dismissal was unfair
because the appellant
was found guilty of misconduct that was not
covered by the charge put to him. The notion of inconsistency is
glaringly absent.
Only a year later was a supplementary founding
affidavit put up containing a number of additional contentions, among
which was
a complaint that the appellant was the only person
disciplined. The answering affidavit, predictably, alleged that this
notion
was not an issue initially put up for adjudication.
[33]
In the appeal proceedings against the
review court’s dismissal of the review, the notice of appeal is
again spectacularly
bereft of any allusion to ‘inconsistency’.
At the appeal hearing, counsel for the appellant orally raised it and
that
theme became the main thesis of the appellant’s case.
[34]
This survey of the progress of affairs
illustrates the promotion of the notion of inconsistency from a
peripheral point to centre
stage. Two aspects warrant attention.
First, did the arbitrator deal with the application to introduce the
issue appropriately,
and secondly, is there a foundation to advance
the argument.
[35]
The passages in the record and the ruling,
made at that time and re-iterated in the award contain the rather odd
expression by the
arbitrator that he refused to ‘entertain the
application’. A literal reading of this remark might suggest he
refused
to hear the application. This would be incorrect. Mr Hulley,
for the appellant in the hearing, [644] plainly and fairly, stated
that he sought to ‘include’ a further ground of
unfairness, ie “...not all the workers were dealt with in the
same way”, to which the arbitrator appended the label of
‘inconsistency’. Mr Hulley disavowed an intention to
amend anything. He specifically acknowledged that the pre-hearing
conference Minute did not make provision for the ventilation
of such
an issue. The application to introduce the new issue was, in this
way, presented to the arbitrator. Mr Short for the respondent,
objected on three grounds; first, it was late in the proceedings
after the main witnesses for both sides had completed their
testimony,
second, the introduction of a new ground violated the
agreement struck to define the issues as evidenced in the pre-hearing
minute,
upon which footing the management had prepared its case to
rebut the complaints alleged by the appellant and therefore had
neither
prepared on such a topic nor had cross-examined the appellant
on such an issue when he had testified, and third, there was ‘obvious
prejudice’ to the respondent. A unilateral departure from
agreement as to the issue as recorded in such a minute is not
permissible.( See:
NUMSA v
Driveline Technologies (Pty) Ltd
and
Another
(2000) 21 ILJ 142 (LAC) at
[89];
Filta- Matix (Pty) Ltd
v Freudenberg and Others
[1997] ZASCA 110
;
1998 (1)
SA 606
(SCA) at 614 B – D)
[36]
In response, Mr Hulley made reference to
some remarks indeed made in evidence by the appellant about being
singled out. He addressed
the arbitrator, on the premise of those
remark, as to why the introduction of the new ground was appropriate.
There was, however,
no hint that further evidence was to be adduced
to amplify what the appellant had stated, and although not expressly
mentioned
in this exchange, no further evidence was to be adduced to
amplify the remarks made by Hough in evidence, who had said that he
was unaware whether any other persons had been disciplined, his
ignorance stemming from the fact that he had been transferred soon
after the episode and was ignorant of subsequent events at
Brakspruit.
[37]
The arbitrator, thereupon, considered the
matter overnight and refused to allow the introduction of an
‘inconsistency’
ground. What he intended is plain: he
refused the application. It would be short-sighted to interpret the
vocabulary of lay arbitrators
literally. The rationale given by the
arbitrator was that it would be unfair to the respondent. (See:
[R649-653] and the Award:746
– 747]). He bolstered his finding
by alluding in the award to the main focus of the enquiry being on
the appellant’s
‘legal obligations’ and that the
other allegedly culpable or potentially culpable persons, ie all
subordinates, were
in roles dissimilar to the appellant in that
regard.
[38]
In my view the arbitrator is not subject to
cogent criticism for refusing to expand the scope of the issues from
that delineated
in the pre –hearing minute. The matter might
have been dealt with in a tidier fashion, but the key consideration
remains
whether a fair outcome was produced by a fair process. The
arbitrator’s decision was reasonable.
[39]
Moreover, as a matter of practice, a party,
usually the aggrieved employee, who believes that a case for
inconsistency can be argued,
ought, at the outset of proceedings, to
aver such an issue openly and unequivocally so that the employer is
put on proper and fair
terms to address it. A generalised allegation
is never good enough. A concrete allegation identifying who the
persons are who were
treated differently and the basis upon which
they ought not to have been treated differently must be set out
clearly. Introducing
such an issue in an ambush–like fashion,
or as an afterthought, does not serve to produce a fair adjudication
process. (See:
SACCAWUand Others v Irvin
& Johnson Ltd
(1999) 20 ILJ 2302
(LAC) at [29]; also see
: Masubelele v
Public Health and Social Development Bargaining Council and Others
[2013] ZALCJHB JR 2008/1151] which contains an extensive survey of
the case law about the idea of inconsistency in employee discipline.)
The Review Court’s
decision
[40]
Although it might be observed that the
arbitrator tended at times in his award to over-elaborate the
rationale in support of the
conclusions, the review court, wholly
appropriately, concluded that the arbitrator grasped that the
misconduct with which the appellant
was charged was his neglect in
managing the fitment programme effectively. The allusions to the
statutory duties were pertinent
to the standard of performance to be
expected from the appellant. The evidence about systems was
undeserving of the controversy
it attracted and was pertinent to the
how and why of the appellant’s performance as a person of
managerial rank.
[41]
As addressed more fully elsewhere, the
conclusion that the appellant was grossly negligent was manifestly
established. The arbitrator’s
finding was therefore indeed one
to which a reasonable arbitrator could come.
Sanction
[42]
Mr Van der Riet pressed on us that, upon a
holistic appreciation of the facts and circumstances, dismissal was
too harsh. Weight
was due, so he contended, to the short time the
appellant had been in charge, his
bona
fides
, and most importantly, that on
the probabilities, but for the fatal accident of 5 May, for which he
was not culpable, the fitment
programme would have been quietly
completed, eventually, and no discipline would have occurred. Indeed,
it was submitted that the
appellant was a scapegoat to alleviate the
embarrassment of the respondent in the wake of the accident.
[43]
In our view, these are points that,
generically, would have warranted consideration. It is also perhaps
appropriate to remark that
the several revelations which emerge from
the evidence, not necessarily directly pertinent to the culpability
of the appellant,
point in the direction of the Management of this
mine as having much to be embarrassed about. This perspective derives
from not
only the dereliction evidenced by the conduct of the
appellant himself, but from the fact that a fatal accident occurred
when two
locos collided when the one loco had not been commissioned
for service and its driver was uncertified as competent to have
control
of it.
[44]
However, if victimisation of this nature
was indeed the appellant’s case it was deftly obscured at all
times when it could
appropriately have been advanced. The pleas
ad
misericordium
alluded in his testimony
remain just that, rather than the laying of a platform to present an
argument.
[45]
On the debit side, moreover, is the
manifest seriousness of slackness in relation to an important safety
measure. The fact that
the measure was introduced in the wake of a
‘spate’ of deaths is not a fortuitous coincidence. It
ought to have served
to elevate the sense of urgency with which to
complete the programme and to do so effectively. Also, the
appellant’s purported
inability to appreciate his culpability
is to be weighed in whether dismissal is appropriate because it
points to his inadequate
appreciation of the function of the job. His
regret at the ineffectiveness of his efforts is axiomatic and adds
little to the conspectus
of considerations.
[46]
However, perhaps the most important factor
to consider by this Court is that the notice of appeal did not
include the contention
that the sanction was too harsh, and nor did
the written heads of argument mention it. Moreover, the review
application never raised
it either. It was raised orally only during
the argument on appeal. An issue cannot be properly the subject of an
appeal against
a dismissal of the review if the issue had not been
put to that review court as a ground of review. Thus, even if a
contention
that, on a balance, the sanction was too harsh, had
enjoyed merit, which, in our view, it cannot, it is not open to the
court of
appeal to entertain it.
[47]
The review court ordered costs against the
appellant and it is appropriate that a similar order be made on
appeal.
Order
[48]
The appeal is dismissed with costs.
_______________
Sutherland
AJA
I agree
______________
Waglay JP
I agree
_______________
Molemela
AJA
APPEARANCES:
FOR THE APPELLANT:
Adv J Van der Riet
SC
Instructed
by K D Maimane Inc
Ref
Mr Maimane.
FOR THE RESPONDENT:
Adv P
Buirski
Instructed
by Fairbridges
Ref Mr
D Short.