About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2007
>>
[2007] ZALCCT 8
|
|
Sonke obo Pedro v Commission for Conciliation. Mediation and Arbitration and Others (C814/2005) [2007] ZALCCT 8 (7 March 2007)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NO
: C814/2005
In
the matter between:
SIKHULA
SONKE obo WILLEM PEDRO
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
GAIL McEWAN
Second
Respondent
FAIRFIELD
BOERDERY
Third
Respondent
J
U D G M E N T
NEL
A
J
:
[1]
This is an application to review and set aside an award of the second
respondent ("the Commissioner") which was handed
down by
the Commissioner on 8 October 2005 under case number WE9968/05.
[2]
The circumstances giving rise to this application are that the
employee, Mr Willem Pedro ("Pedro") and two other employees
of the third respondent ("the farm" or "the employer")
on 21 July 2005 took three tractors during their lunch
break in order
to collect wood. This was done whilst they were under the control of
a Mr Scholtz, the foreman of the farm.
The three employees it
would appear had just set off on their way with the tractors when
they were stopped by Mr Malherbe, the
owner of the farm, and asked
who had given them permission to use the tractors. It is around
these events that some controversy
exists, which I will deal with in
more detail later herein. Suffice it to state that Malherbe
instructed the employees to immediately
return the tractors, which
they did. Disciplinary action was instituted, initially only
against Pedro and one of the other
two employees. The one
against whom disciplinary action was initially not instituted is the
son of Scholtz, the foreman.
The employer contended that there was a
workplace rule in existence that employees could only use the
tractors for personal use
with the permission of Mr Malherbe, the
owner, or Mr Snyman, the manager of the farm.
[3] It would appear that
only after allegations of inconsistent application of discipline
arose, was Scholtz Jnr disciplined and
dismissed. He was subsequently
reinstated at a CCMA conciliation. It is to be noted that the
allegations that Scholtz Jnr
was initially not disciplined, but only
after claims of inconsistency, and that he had been subsequently
reinstated at a CCMA conciliation,
were not made, so it would appear,
before the Commissioner. The allegations are contained in the
applicant's founding affidavit
and they stand uncontested.
[4]
When Pedro was dismissed, he referred a dismissal dispute to the
CCMA. It is this arbitration award of the Commissioner in which
she
found that Pedro's dismissal was substantively fair that is under
review.
[5]
The application is unopposed. During argument before me I asked Ms de
Wet, who appeared on behalf of the applicants, to explain
to me why
the record of the arbitration proceedings reflected that an
interpreter interpreted from Afrikaans to English under circumstances
where the representatives of all the parties, as well as the
witnesses who testified on behalf of the parties, were Afrikaans.
I
was advised that the Commissioner required the assistance of an
interpreter from Afrikaans to English.
[6]
As the record reflected that not everything that was testified to in
Afrikaans was translated into English, I wanted to be advised,
if the
Commissioner required interpretation services from Afrikaans to
English, why everything was then not interpreted. This concern
was
raised, as I then wanted to know whether the Commissioner possibly
did not follow all the evidence, as it was not in its totality
translated from Afrikaans to English. I accordingly, at the
conclusion of argument, directed that the applicant should depose to
an affidavit dealing with the use of the interpreter and issues
related thereto and that this affidavit should be served on the
Commissioner. I directed the Commissioner to reply to the affidavit,
if she so wished. She was, however, directed to provide the
Court
with an explanation for the use of an interpreter.
[7]
An affidavit was, in terms of my directive, then filed on behalf of
the applicant in which it was confirmed that the interpretation
was
only for the benefit of the Commissioner in respect of the evidence
of the parties and in order to translate to the parties
in Afrikaans
what the Commissioner had to say in English. The affidavit
further confirmed that, but for the fact that the
Commissioner was
English speaking, the parties would not have required the services of
an interpreter at all.
[8]
Perhaps of more relevance is that it was then confirmed in this
affidavit that in many instances no interpretation had taken
place of
the Afrikaans evidence. Only in respect of one aspect is it alleged
on behalf of the applicant that there is a part of
the record which
reflects no interpretation and that the Commissioner summarised the
evidence incorrectly. The affidavit does clearly
set out that
extensive parts of the evidence were not translated from Afrikaans to
English. I will revert to this aspect
in a moment.
[9]
This affidavit was served on the Commissioner and she provided the
Court with what she called an "Explanatory affidavit
on the use
of an interpreter...as ordered by the Labour Court " in the case
under consideration. She indicated that she does
speak Afrikaans but
not at a level at which she would be comfortable arbitrating a matter
without the assistance of an interpreter.
She further stated that her
Afrikaans was at a level where she could understand most of what had
been said, therefore the interpreter
did not translate every word
said. If she did not understand what was being said, she would
signal to the interpreter to
translate for her. The only comment made
by the Commissioner, in respect of the allegations on behalf of the
applicant that she
overlooked certain evidence, is that she said:
"Whether
or not certain points have been taken into account, as raised by the
applicant can be discerned from the award itself".
[10]
Having perused particularly these parts of the record which were not
translated, and to which my attention was drawn, and having
regard to
the Commissioner's award, I have reason to be driven to one or two
possible conclusions. One is that the Commissioner,
having understood
the evidence adduced before her, did not apply her mind properly
thereto. Another possible conclusion is that
because the evidence was
not translated, the Commissioner did not fully understand it, and
this led to her not properly considering
a number of aspects, which I
will refer to in a moment.
[11]
I turn to deal with the specific allegations made in the
supplementary affidavit on behalf of the applicant that the
Commissioner
made incorrect comments regarding the evidence of Mr
Witbooi in her award as a result of the fact that there was no
interpretation
of a particular portion of his evidence.
[12] The Commissioner, in
summarising Witbooi's evidence, recorded that:
"Under
cross-examination Witbooi conceded that he had to ask Malherbe to use
the tractor".
I
believe that this is clearly not what the record reflects Witbooi as
having conceded. It is patently clear from the record
that
Witbooi testified to the effect that only after the so-called
"tractor case" did he hear that the rule was that
Malherbe
had to be asked if they wanted to use a tractor. This is a
particularly important aspect as the evidence adduced on behalf
of
Pedro was to the effect that at the time of the incident the foreman,
Scholtz, could be asked for permission.
[13]
Another aspect which gives rise to a concern is that it is apparent
from the record that Mr Visser, who appeared on behalf
of the
employer, interrupted Witbooi whilst he was in the process of
explaining how the alleged rule was working. I believe this
was an
improper interruption. Unfortunately I am now unable to discern
whether the Commissioner perhaps did not properly understand
what was
happening, because it was not translated for her, or whether she did
understand, but simply allowed Visser to so improperly
interrupt the
witness. At this particular page, being page 37 of the record,
another aspect of Witbooi's evidence, which is not
translated, is
that he expressly testified that Malherbe had first stopped the
foreman, Scholtz. Yet again what exactly had happened
at this very
point in time was relevant because a perusal of the record reflects
that there are clear contradictions between the
evidence of Malherbe
and that of Scholtz with Malherbe having testified that he had first
stopped at Scholtz and thereafter proceeded
to the three employees on
the tractors whereas Scholtz testified that it had happened the other
way round. Yet again, I am unfortunately
confronted with the
predicament that I am not certain whether the Commissioner failed to
apply her mind to this aspect or whether
she did not understand it
properly, as it was also not translated for her. Whatever the
reason therefor is, I do believe
that these contradictions ought to
have been dealt with by the Commissioner in her award. But she did
not, and as I said, I do
not know whether it is because of a failure
to apply her mind or possibly because of the fact that she perhaps
did not fully understand
the untranslated evidence before her.
[14]
A further highly relevant aspect is that Witbooi testified that he
was present when the employees asked for permission to use
the
tractors. The permission he referred to was that of Scholtz.
One sees that the Commissioner, in her summation of the
evidence
adduced by Pedro and his father, did record that their evidence was,
inter alia
,
to the effect that the employees had received permission from the
foreman, Scholtz. Yet again I do not know whether the Commissioner's
failure to record this very important aspect of Witbooi's evidence is
as a result of it not having been translated for her, or
as a result
of her failure to apply her mind properly to all the evidence
adduced.
[15]
The fact of the matter is that it was a very relevant aspect of the
case before the Commissioner that on the one hand, the
applicant's
case was that he, and the other two employees, had received
permission from the foreman, Scholtz, to use the tractors.
On
the other hand, the evidence adduced on behalf of the employer was to
the effect that the foreman had advised the owner, Malherbe,
that the
employees had told him that the owner, Malherbe, had given them
permission to use the tractors and that was the reason
why he did not
intervene. These contradictory versions had to be considered and the
Commissioner was required to reason her way
through a process to
arrive at a conclusion which version she would accept and why. I will
revert to this aspect later on herein.
[16] Still dealing with
the evidence of Witbooi, appearing on page 7 of the record, and which
was not translated for the Commissioner's
benefit, it is also clear
from the record that Witbooi testified that he heard when Malherbe
stopped Scholtz, the foreman.
Witbooi's evidence was to the
effect that Scholtz only said that the employees had not asked him
for permission. Yet again
this aspect is of great relevance in
the assessment of the two versions presented. This is so because
Malherbe had testified that
on him confronting Scholtz, the foreman
had advised him that the employees had told him that they had
obtained the owner, Malherbe's,
permission. If one has regard
to the evidence of Scholtz, his evidence in this regard was very
unsatisfactory. The
record reflects that he was asked by Visser
whether the employees asked permission to use the tractors to which
he responded that
they had not. After a number of indistinct
exchanges between the Commissioner and Visser, the record reflects
the following:
"
MNR
VISSER
: Het hulle vir u iets anders
gesê? Het hulle enige iets vir u gesê oor die
trekker? --- Hulle het net gesê
hulle ry die trekkers.
Hulle
sê hulle ry die trekkers? --- Ja, want
hulle ry die trekkers.
INTERPRETER
:
They did not tell me anything, because they drive the tractors.
MNR
VISSER
: Het hulle iets gesê
van toestemming wat hulle by mnr Malherbe
gekry het? --- (Onduidelik)
ek weet nie daarvan nie.
ARBITRATOR
:
Sorry, do not ask him such leading
questions. (indistinct)".
It
is patently clear from the aforementioned that only after prodding
and leading questions from Visser did Scholtz eventually
testify that the employees had said that they had permission from Mr
Malherbe. One does not see from the Commissioner's reasoning
that she considered these aspects,in weighing up the two
contradictory versions.
[17] The uncertainties
arising as a result of the fact that a lot of the Afrikaans evidence
was not translated, unfortunately continue.
When Malherbe testified,
he stated that the new rule relating to the use of the company's
tractors was to the effect that he or
the manager, Mr Snyman, could
exclusively give permission. During his evidence, Malherbe changed
the rule to being that only he
could give permission for the use of
tractors. Yet again one does not see this aspect of Malherbe's
evidence being considered by
the Commissioner. Was it because this
particular part of Malherbe's evidence was not translated for the
benefit of the Commissioner,
or was it because of the fact that she
did hear or understand his evidence, but did not regard it necessary
to consider the change
in Malherbe's evidence? One sees that in
Scholtz's evidence he was asked whether anyone else could give
permission for the
use of tractors and his evidence was expressly to
the effect that only Malherbe, the owner, could give such permission.
Yet again
this is an extremely relevant aspect of the evidence
because it was contended on behalf of Pedro that the rule at the time
of the
incident was that they could obtain permission from the
foreman and that this rule only changed after the tractor incident.
[18]
After Malherbe had testified in Afrikaans, the record reflects no
translation for the benefit of the Commissioner. The record
reflects
the following evidence by Malherbe:
"(
MNR
VISSER)
: Op hierdie dag wat die
insident gebeur het, het u na die boorde toe gery en u
het gesien die persone ry met die
trekkers. En u het blykbaar
mnr Josef Scholtz eerste gekonfronteer. Wat het
u vir hom gevra? --- (MALHERBE):
Ek het vir hom gesê,
Josef, wat gaan hier aan? Jy weet wat is die reëls
is (sic)
op die plaas. Hoekom ry die mense met die
trekker? Toe het hy vir my gesê, meneer, hulle het -
hulle het vir
my gesê hulle het vir u gevra om
toestemming om the trekker te ry en u het gesê hulle kan
maar die trekkersvat.
Dis hoekom hy sê hy het basies
gesien dat hulle ry. Hulle het vir hom gesê hulle ry.
Hulle het vir my gevra
en ek het vir hom gesê, maar Josef, dis
absurd. Jy weet ek sal nie so iets toelaat nie,
want dit was oor
middagete en dit was drie verskillende
trekkers, vêr van die werk af. Met ander woorde, ek moes die
koste dra van...(tussenbeide).
ARBITRATOR
:
May I stop you there for a moment. Please,
(indistinct) to what he just said?"
It
would appear as if the Commissioner here specificallyAsked that the
interpreter should interpret for her. This is the
interpretation which follows:
"
INTERPRETER
:
He asked Mr Scholtz if he gave
permission.
He said, no, they told me that you gave permission. I said that
that’s absurd. We can’t allow that.
It’s
in lunch time and the tractors are going far away and
(indistinct)".
Here
again what is apparent is that the translation is not complete. A
very important part of Malherbe's evidence, namely the words
"jy
weet wat die reëls is op die plaas? Hoekom ry die mense met die
trekker?" did not get translated. Why
I regard this part
of Malherbe's evidence as being so relevant is that, later on,
Malherbe testified that he had said to the foreman
that under no
circumstances would tractors be given for the use of employees and
that under exceptional circumstances only would
that be done and then
only by him. This very aspect, why Scholtz did not question the
employees when they allegedly had told him
that Malherbe had given
permission, against the background that Malherbe had testified that
he had told the foreman that under
no circumstances would tractors be
given for private use, were all relevant issues which ought to have
been considered by the Commissioner.
Did she, because it was
not properly translated, not understand it, or did she understand it,
but not regard it as sufficiently
relevant to consider?
[19]
Another aspect of the interpretation is that it translates Malherbe's
evidence as that:
"He
asked Mr Scholtz if he gave permission".
This
is not what his evidence was. His evidence was:
"Ek
het vir hom gesê, Josef, wat gaan hier aan?"
Yet
again, what on the surface may appear as trivial or perhaps
irrelevant, is in fact not. This very aspect of what exactly happened
between Malherbe and Scholtz was of the utmost importance in order to
arrive at a proper determination of whose evidence to believe.
When
one has regard to Scholtz's evidence, one sees that this aspect
relating, firstly, to what his response to Malherbe was when
Malherbe
confronted him, and secondly, to the issue, at what point in time the
employees had allegedly told him that Malherbe had
given them
permission, were extremely relevant parts of the evidence. I am of
the view that the evidence adduced on behalf of the
employer on these
issues was anything but satisfactory. The Commissioner does not at
all deal with these aspects of the evidence.
Did she not do so
because she did not regard it as relevant or did she fail to do so
because she did not properly understand the
evidence, either because
it was wrongly translated, or not translated at all in other
instances? She certainly appears not to have
applied her mind to
these aspects at all.
[20]
In conclusion, on this particular aspect of the wrong translation,
Malherbe said that he had told Scholtz:
"...maar
Josef, dis absurd. Jy weet ek sal nie so iets toelaat nie..."
The
translation of this part by the interpreter is:
"I
said that that is absurd. We cannot allow that".
Patently
this is not what Malherbe said. He said that: “….but
Josef, that is absurd. You (Scholtz) know that
I (Malherbe) will not
allow such a thing…” (with reference to permitting the
private use of the tractors). Yet
again, superficially this may
appear trivial or irrelevant but this goes to the heart of the
question why Scholtz did not check
with Malherbe whether he had given
permission if it was so absurd for Malherbe to have given the
permission and that Scholtz knew
that Malherbe would not have given
the permission. Again, as I said, this must be viewed against
the background of Malherbe's
own evidence that only under exceptional
circumstances would permission be given for tractors to be used by
employees for private
purposes.
[21]
On page 50 of the record, a substantial part of Malherbe's evidence
under cross-examination is not translated. He repeatedly
said, and
from his evidence it is clear, that he first confronted Scholtz and
thereafter had gone to the employees. This is in
direct contradiction
of how Scholtz testified events had unfolded. Yet again,
superficially it appears to be a minor matter. However,
against the
background of how Scholtz dealt with the question, when exactly the
employees had allegedly told him that they had
obtained Malherbe's
permission, that this becomes a very relevant aspect. Yet again, one
sees that the Commissioner did not deal
with it. Is it because she
missed it in the absence of translation or because she did not regard
it as relevant?
[22]
On page 52 of the record appears the part, which I had earlier
referred to, when Malherbe in his evidence in chief said:
"Ek
het eintlik vir die voorman gesê, onder geen omstandighede loop
daar weer 'n trekker nie. Met ander woorde,
die trekker is
heeltemal gestop. Toe het ek vir hom gesê, Josef, in
uitsluitlike gevalle as iemand vir my vra of hy
'n trekker kan
gebruik, daardie besluit berus net by my. Jy het geen sê
daarin nie. Ek sal die toestemming gee
of 'n trekker gebruik
word al dan nie".
[23]
This part of Malherbe's evidence was not translated. Apart from
the fact that it does, in my view, clearly state that
only in
exceptional circumstances would permission be given for the use of
the tractors for private purposes, it also contains
the contradiction
of Malherbe's earlier evidence. Earlier he had testified that he and
the manager of the farm, Mr Snyman, could
give such permission. As I
have said, this tends to explain why Malherbe said to Scholtz that it
was absurd that the employees
were using the tractor and that he,
Malherbe, would not have given permission for it. This tends to
suggest that only in
very exceptional circumstances, and then only by
Malherbe, would permission be given for the private use of tractors.
Why then
did Scholtz not query it with Malherbe, if they had truly
told him that Malherbe had given permission? It must be
remembered
that the version of Pedro and his witnesses was that
permission had been sought from, and given by, Scholtz, the foreman.
If it
was so exceptional that permission would be given for the
private use of the tractors, the probabilities favour it that Scholtz
would have checked with Malherbe whether he had in fact given the
alleged permission.
[24]
On page 58 of the record, right at the commencement of the evidence
of Scholtz, he gives two patently contradictory answers
when he is
asked literally the same question, namely whether he had permission
from his employer to approve the use by employees
of the tractors.
The record reads as follows:
"(Visser)
Het u al ooit toestemming gehad by die werkgewer of die bestuurder om
vir die mense toestemming te gee om trekkers
to gebruik? ---
(Scholtz) Ja.
(Visser)
Het u toestemming gehad om vir ander mense toestemming te gee om
trekkers te gebruik? --- (Scholtz) Nee".
Then
the question is asked for the third time and Scholtz then repeated
his answer that he did not have the permission.
[25]
This part of the record was again not translated. This is the
most patent contradiction on an issue, which went to the
heart of the
whole matter. Why did the Commissioner not deal with it at
all? Unfortunately this question comes up again
and again.
Is it because she did not pick it up in Afrikaans, it not having been
translated, or did she hear and understand
this patent contradiction,
but simply did not regard it as being of sufficient relevance to deal
with it in her award?
[26]
In conclusion on this topic, the cross-examination of Scholtz
commences at page 61 of the record. More than two pages
of
evidence were not translated at all for the Commissioner. These
two pages contain matter going to the heart of the very
issue of when
the employees allegedly had advised Scholtz, as he contended, that
they had obtained permission from Malherbe. This
evidence, properly
considered, reflects anything but that the evidence of Scholtz on
this aspect was satisfactory. I believe
the Commissioner ought
to have dealt with this aspect of the evidence of Scholtz as it most
certainly cannot be regarded as satisfactory.
It was not translated.
The same question posed again is, did the Commissioner not understand
it or did she disregard it?
[27]
I also believe the Commissioner summarised the evidence of Witbooi
incorrectly. I have every reason to believe that she did
so as a
result of either not having had the evidence of Witbooi translated,
and therefor not having fully appreciated or understood
it, or
because she failed to apply her mind thereto properly, or at all.
There are numerous other aspects of the evidence,
which I have
referred to earlier, which required the Commissioner's consideration.
As I have repeatedly said, her not having dealt
with it in her award
may either be because she did not understand it, as the evidence was
not translated, or if she did understand
it, or it had been
translated, she ought to have dealt with it in her award, but she
failed to properly apply her mind thereto.
There are sufficient
contradictions and discrepancies contained in the evidence adduced on
behalf of the employer, which the Commissioner
ought to have provided
reasons for why she nevertheless accepted the version adduced on
behalf of the employer in favour of that
adduced on behalf of the
dismissed employee. I believe that from what I have dealt with, a
number of reviewable irregularities
have come forward. I am
accordingly driven to the conclusion that the Commissioner has failed
to apply her mind properly to the
material before her, or
alternatively that she, in the process, unfortunately in the absence
of translation, did not understand
it fully. Whatever the
reasons may be, I do not believe that the Commissioner's conclusions,
particularly in regard to her
evaluation of the evidence before her,
and the reasons given why she accepted the evidence of the employer,
and rejected that on
behalf of the employee, are justifiable, having
regard to the evidence presented to her. The Commissioner's
award accordingly
for these reasons stands to be reviewed and set
aside.
[28]
There is a further aspect to which my attention was drawn and that is
that the Commissioner, at the commencement of the cross-examination
of Malherbe, told Pedro's representative that she must not ask
leading questions and she directed her to ask direct questions.
This,
it must be remembered, is right at the outset of the cross-examiner
starting to question Malherbe. A cross-examiner is entitled
to put
leading questions to a witness being cross-examined. I believe that
the instruction from the Commissioner not to put leading
questions
during cross-examination was irregular and may very well have
inhibited the cross-examiner from properly cross-examining,
not only
the witness under cross-examination, but also the later witness,
Scholtz, called by the employer. This is in and
by itself a
serious misdirection on the part of the Commissioner, sufficiently so
that it also warrants the intervention by this
Court.
[29]
It was also argued on behalf of the applicant by Ms de Wet that the
Commissioner acted improperly in having allowed Visser,
the
representative who appeared before the Commissioner on behalf of the
employer, to ask leading questions to an extent that bordered
on him
giving evidence. There is some justification in this complaint.
I have referred earlier herein to the fact that the
Commissioner also
allowed Visser to improperly interrupt a witness, when the witness
clearly wanted to deal with an important aspect
of the case.
Having regard to these aspects of the conduct of Visser, I have
unfortunately been driven to the conclusion
that an overall
consideration of the record leaves one with the distinct impression,
and I in fact conclude, that the Commissioner
did not properly
regulate the proceedings before her. It has the result that I
do not believe the employee, Pedro, had a
fair hearing.
[30]
I have also agonised over the aspect relating to the fact that the
Commissioner required translation of the evidence before
her from
Afrikaans to English and that she was the only one for whose benefit
the interpretation had to be done. A Commissioner
may call on
the assistance of an interpreter when the language in which evidence
is adduced before him/her is not fully understood
by the
Commissioner. When a Commissioner contends that he or she understands
some, but not necessarily all of the evidence, and
that he or she
would call on the interpreter to interpret only those portions not
understood by the Commissioner, it may create
problems. I believe
that it opens up a situation, as happened herein, where, if the
Commissioner failed to deal with a particular
aspect, that the review
Court may be troubled by the question whether the Commissioner’s
failure was due to the Commissioner
not having fully understood the
evidence. Or was it a situation that the Commissioner understood the
evidence, but failed to apply
his/her mind properly, or at all,
thereto.
[31]
In our country with its many official languages it is of course a
common occurrence that interpreters need to be used in our
courts or
in tribunals such as the CCMA. The practice, as far as I am
aware, is that when interpretation is necessary, everything
is
interpreted to the language that all the parties understand. Only the
interpretation is recorded in the record, and not that
which was
being interpreted. Records are not produced with the questions
and evidence in one of the official languages first
being
transcribed, and then the translation thereof. I do believe
that when an interpreter is used, whether it is for the
sake of the
Commissioner, the witness or the representatives of any of the
parties, that only the interpreted questions and answers
should be
reflected in the record. All the evidence must then be
interpreted. I believe the practice, as was embarked on
by the
Commissioner herein, namely that an interpreter is called in to only
interpret in the event of the Commissioner not understanding
parts of
the evidence, and apparently then so signals to the interpreter, is
to be avoided. This will inevitably lead to the situation
where, if
the Commissioner either does not deal with evidence, or in the
recordal of evidence make mistakes, that it is suggested
that it
happened as a result of the Commissioner not having fully understood
the evidence, as it was not translated. A situation
should
accordingly be avoided, firstly where the record contains the
question together with a translation and then the answer together
with a translation. Secondly, I believe the moment an
interpreter is required, then only the interpreted evidence, namely
both the questions and the answers, as translated, should be
reflected in the record. If any party indicates that he/she needs
translation from one language to another, then translation should at
all times take place – not on and off. Particularly
if the
Commissioner requires translation must it be avoided that translation
takes place on and off, at the behest of the Commissioner.
[32]
I am unfortunately of the view herein that I am not in a position to
substitute the award with that of this Court. This
is partly so
because of the fact that I am driven to the conclusion that the
applicant herein, Mr Pedro, did not have a fair hearing.
Secondly the record is also unfortunately so replete with "inaudible"
or "indistinct" parts, in respect of
what I believe were
very relevant parts thereof, that this matter will, in my view, have
to be referred back to the first respondent
to be arbitrated by a
Commissioner other than the second respondent. I also wish to comment
that it will obviously be prudent,
as I am sure the applicant and his
representatives will do, to place before the Commissioner when the
matter is heard again, all
the circumstances relating to the fact
that disciplinary action was initially not instituted against one of
the employees who was
involved in the alleged unauthorised use of the
tractors, namely the son of Scholtz, the foreman. The son's
reinstatement
as a result of conciliation should perhaps also be
looked into. On the face of it, it does tend to give an
impression of
favouritism, if not nepotism, and I can only express
the hope that this aspect of the matter is fully aired, and properly
dealt
with, at the re-hearing of the applicant's dismissal dispute.
[32] The order that I
make herein is accordingly the following:
1.
The second respondent's award dated 8 October 2005 with case number
WE9968/05 is reviewed and set aside.
2.
The dispute is referred back to the first respondent to be arbitrated
on by a Commissioner other than
the second respondent.
3.
No order is made as to costs.
_____________________________
Deon
Nel
Acting
Judge of the Labour Court.
DATE
OF HEARING
: 21 NOVEMBER 2006.
DATE
OF JUDGMENT
:
7 March 2007
Appearances
:
For
the applicants
: Advocate A de
Wet
Instructed
by Marieke van Rooyen Attorneys.