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[2008] ZALCJHB 10
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Astral Operations Ltd v Bestel and Others (JR1502/05) [2008] ZALCJHB 10 (18 June 2008)
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IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR1502/05
DATE:
2008-05-28
In
the matter between
ASTRAL
OPERATIONS
LIMITED Applicant
And
G
BESTEL 1
st
Respondent
CCMA 2
nd
Respondent
R
SEGGIE 3
rd
Respondent
J
U D G M E N T
PILLAY
D, J
:
This is an application
for leave to appeal against my judgment setting aside the award of
the third respondent commissioner issued
on 30 November 2007.
The
overriding consideration in assessing the evidence before the
arbitrator required him to make a determination as to whether
the
conduct of the employee, the first respondent, was honest and
consistently above board. That determination could only
have
been made with the proper analysis of all the evidence before him.
The arbitrator’s award manifests firstly, that
he failed to
take into account material evidence that pointed to the dishonesty of
the employee. He glossed over and failed
to properly analyse
the evidence that was before him in order to make a determination
about the honesty of the employee.
In
these circumstances, a failure to take into account material evidence
is neither reasonable, rational nor justifiable, irrespective
of whether the judgment of the Constitutional Court (
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28 ILJ 2405
(CC) (Cct85/06) o
r the judgment of the Supreme Court of
Appeal (
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission For
Conciliation, Mediation & Arbitration & Others
(2006) 27 ILJ 2076
(SCA)) apply
In
the circumstances,
the application for leave to appeal is
dismissed with costs.
JUDGE
D PILLAY
Edited:
18 June 2008
APPEARANCES:
On
behalf of the Applicant
: Advocate
E Wessels
Instructed
by:
On
behalf of the Respondents :
Advocate Pretorius, SC
Instructed
by: