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2002
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[2002] ZALCJHB 26
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Magnum Security (Pty) Ltd v Thobejane and Others (JR170/01) [2002] ZALCJHB 26 (11 December 2002)
[COMMENT1]
Sneller
Verbatim/HVDM
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR170/01
2002-12-11
In
the matter between
MAGNUM
SECURITY (PTY)
LTIMITED Applicant
and
PETRUS
THOBEJANE
1
ST
Respondent
M J RALEFATANE
N.O.
2
ND
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION AND
ARBITRATION
3
RD
Respondent
J
U D G M E N T
REVELAS
J
:
1.
The first respondent was dismissed by the applicant pursuant to a
disciplinary inquiry where he was found guilty of certain
misconduct. The first respondent then referred a dispute about
an unfair dismissal to the Commission for Conciliation, Mediation
and
Arbitration (“the CCMA”), where the second respondent
arbitrated the matter under the auspices of the CCMA and
made an
award in favour of the first respondent, finding that the dismissal
was unfair.
2.
The applicant has brought an application to review this arbitration
award in terms of section 145 of the Labour Relations Act
66 of 1995
(“the Act”) and have it set aside.
3.
There are several grounds upon which the applicant brought this
application for review. However, this award falls to be
set on
the first ground and it is not necessary to consider any of the other
grounds.
4.
What the second respondent had done, is to accept the evidence of a
witness (as reliable), who did not testify under oath. He
disbelieved
a witness who did testify on oath. In the matter of
Morningside
Farms v Van Staden No and another
[1998] BLLR 488
LC,
this Court
held that an arbitrator who does not hear evidence of
any
party under oath commits a gross irregularity. It may have been
that the Labour Court went too far in that case and applied
a test
which is too strict, but in a further case, Landman J held that
arbitrators are entitled to conduct proceedings within their
own
discretion. However, conduct such as under consideration in this
judgment, where some witnesses do testify under oath and some
do not,
and where unequal weight is given to their testimonies, does amount
to an irregularity. Landman J described it as
“legal
misconduct” and said it amounted to a defect contemplated in
S145 of the Act (See:
Mthembu & Mahomed Attorneys v CCMA and
others (1998) 19 ILJ 144 (LC) at 148 A-C
).
5.
In these circumstances alone, the award ought to be set aside and is
referred back to the CCMA to be arbitrated by a different
commissioner.
6.
In the circumstances it is ordered that:
1. The award
of the second respondent is set aside.
2. The
dispute is referred back to the Commission of Conciliation, Mediation
and Arbitration for arbitration.
_________________
E.
Revelas
ON BEHALF OF
APPLICANT
:
Mr. C Beckenstrater from MOODIE & ROBERTSON
ON BEHALF OF
RESPONDENT
: MOSEGOMI ATTORNYS. c/o
LEGODI Attorneys.
[COMMENT1]
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