About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2008
>>
[2008] ZALCJHB 26
|
|
Zoutspaansberg Milling (Pty) Ltd v Commissioner for Conciliation Mediation and Arbitration and Others (JR1133/02) [2008] ZALCJHB 26 (26 November 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
CASE
NO.: JR1133/02
Held
at BRAAMFONTEIN
In
the matter between:
ZOUTSPANSBERG
MILLING (PTY) LTD
APPLICANT
and
COMMISSIONER
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
1
st
RESPONDENT
COMMISSIONER
A MAKI
2
ND
RESPONDENT
P
MUNDI
3
RD
RESPONDENT
DATE
OF HEARING
: 30
APRIL 2002
DATE
OF JUDGMENT
: 26
NOVEMBER 2008
FOR
THE APPLICANT
: P GILLISSSEN
JUDGMENT
LANDMAN
J:
Introduction
[1]
I have no recollection of this matter. It appears from the file cover
that it came before me on 30 April 2003 in the Labour
Court,
Braamfontein and that I reserved judgment until 09:30 on 2 May 2003.
On 2 May the matter was postponed
sine die
.
[2]
On 23 January 2004 a request to the registrar to enroll this matter
on the unopposed roll was filed. It does not seem that the
matter was
re-enrolled.
[3]
On 29 January 2004 an affidavit was filed. It is to the following
effect:
“
3.2
I have further been informed that the honourable Judge Landman was
unable to give judgment
on this matter in the absence of a specific
map of the premise of the Applicant used during the arbitration
proceedings and have
I been requested to attempt to locate the said
map.
3.3
Having the required knowledge of this map, I have searched all files
relating to the
Applicant in our offices, enquired from the Applicant
himself as to whether he has a copy of this map and also, on several
occasions,
enquired from the CCMA in Polokwane and also personally
visited them, to find the said map or obtain a copy thereof.
3.4
Notwithstanding the above attempts, I have been unable to obtain this
map or a copy
thereof and does it seem highly unlikely that it still
exists.”
[4]
The record contains references to a sketch but it is not contained in
the file. I accept that this was why judgment was not
delivered on 2
May 2003 and a request was made for the sketch to be filed.
[5]
On 21 September 2004 the General and Allied Employers’
Organisation wrote to the registrar setting out the problem and
concluded the letter by stating; “It is once again hereby
requested to schedule an appointment with Judge Landman in chambers
to discuss this matter.”
[6]
The first time that I became aware of what had transpired in this
matter since it was postponed
sine die
on 30 April 2003 was
when I received a fax from the Labour Court on 8 August 2008. A
letter addressed to the Labour Court by CBE
Labour Law Consultants,
dated 27 May 2008, was attached to the Labour Court’s covering
letter dated 7 August 2008.
[7]
I was appointed to the Bophuthatswana Provincial Division of the High
Court with effect from 4 August 2004. I did not remember
this matter.
I made inquiries on 8 August 2008 and learnt that the file was
temporarily inaccessible on account of building operations
at the
Labour Court. I asked that the record be transcribed so that I
could attend to the inquiry.
[8]
On 29 September 2008 I again asked the Labour Court whether the file
had been traced. On 3 October 2008 my secretary sent a
letter asking
that only the last five pages of the matter be transcribed so that I
could form an idea of what the matter was about.
On 23 October 2008
my secretary was informed that the file had been found but that the
Court was experiencing difficulty in locating
the CD on which the
proceedings were recorded. The recording company, Snellers, which was
responsible for recording court proceedings,
was no longer being used
for this purpose.
[9]
On 4 November 2008 I addressed a follow up letter to the Labour
Court. On 5 November my secretary received an email from the
Court
that the recordings could not be retrieved and that a private IT
technician was to assist in trying to retrieve the information
from
cassettes.
[10]
On 21 November I received a call from the Labour Court to the effect
that the transcription could not be done and that the
file would be
couriered to me. I received the file on 24 November.
[11]
I regret that this judgment has been delayed.
The
review application
[12]
Zoutspansberg Mills (Pty) Ltd (“the Mill”) charged Mr
Petrus Mundi for theft committed on 27 October 2001. On 13
November
2001, after a disciplinary hearing, the Mill dismissed him. He
referred a dispute to the CCMA. An arbitration hearing
was conducted
before the second respondent. It seemed to be common cause that the
disciplinary hearing was in order but during
the arbitration the
chairperson of the Mill’s disciplinary hearing was accused of
bias. The second respondent found that
the chairperson had not been
biased; the Mill had not proven that Mr Mondi was not supposed to be
on the premises while off duty
and that the Mill had not shown that
he was involved in theft. Mr Mundi was reinstated with back pay.
[13]
The Mill seeks to review and set aside the award.
The
facts
[14]
The facts deduced at the arbitration hearing, concerning the alleged
theft, are the following.
[15]
Mr Makonde testified. He had worked for the Mill. He was confronted
with theft. He admitted to stealing 4x25 kg bags of maize
(milled
mealie meal). He resigned and wrote a letter to this effect. He
said he and Mr Mundi entered the Mill’s premises
through the
metal back door which was defective. They loaded the bags on a wheel
barrow. They decided Mr Mundi would walk out through
the front gate
and buy a loose cigarette while Mr Makondi would push the wheel
barrow and its load out through the backdoor. But
Mr Makondi was seen
by a passerby who called the security guard. This was about 16:00 or,
as he puts it “past 4”.
[16]
Mr Makonde was not on duty. He had knocked off at 07:00 but he waited
in the Mill’s yard. Mr Mundi knocked off at 12:00.
They both
went to the Indian Centre. On the way they agreed to return to the
Mill and take two bags of maize each.
[17]
Mr Galetzana is a security guard who was stationed at the Mill by his
employer RSR Security. He followed one Viktor when he
bought
cigarettes and he saw him giving one to Abel Makondi and Petrus
Mundi. He did not see bags of maize or a wheelbarrow. While
he was
upstairs, he saw Mr Makonde on the street pushing a wheelbarrow
containing bags of maize. Mr Mondi was walking out of the
gate and he
“arrested” him for the goods that were in the wheel
barrow. Mr Mundi said to him: “Lets drop this
case” and
added then they will give him something. Mr Galetzana thought to
himself that Mr Mundi was coming to him so as
to give Mr Makondi a
chance to cross with the wheelbarrow and maize. At this stage Mr
Makondi approached them. Mr Mundi explained
to him that he had tried
to talk to the guard but to no avail. A supervisor approached and Mr
Mundi ran away and then Mr Makondi
also ran away.
[18]
Mr Mundi says he was at work on 27 October. He knocked off at
12:00. He caught a taxi to Ngebele, also known as Magau,
for a
funeral. He arrived too late. He spent some time there and returned
to the Mill. He entered by the front gate. He said the
guard was not
there at the time. He washed his working clothes in the company of a
fellow employee and left the Mill at about 16:30
or 17:00 or, as he
put it, “past 5”. He went to the Indian Centre, using the
Mill’s gate and was met by Mr Makondi
and the security guard.
He was asked whether he could see the wheelbarrow and what was
inside. The barrow was covered with plastic.
He replied that he could
not see what was inside and left. He did not see either Viktor or Mr
Makondi inside the premises.
The
grounds of review
[19]
The grounds of review are set out in the founding affidavit and
summarized in the heads of argument of Mr Gillissen as follows:
2.1
That the Second Respondent applied a criminal standard of proof of
theft instead deciding
the matter of the balance of probabilities;
2.2
That the factual finding of the Second Respondent are not supported
by the evidence
presented during the arbitration;
2.3
The Second Respondent failed to consider the crux of the evidence and
applied his
mind to peripheral issues;
2.4
The Second misconstrued the evidence to such an extent that the award
as a whole is
influenced;
2.5
The Second Respondent failed to apply his mind to the material
evidence before him;
2.6
The Second Respondent’s evaluation of the evidence amounts to a
gross irregularity
and interference with the sanction of dismissal
imposed by the Applicant were not based on a rational objective
basis;
2.7
The Second Applicant misconstrued the crux of the evidence to such an
extent that
the mistake perpetrates an injustice;
2.8
The Applicant will suffer serious prejudice if the awards stands;
2.9
The Applicant will be required to reinstate into his employ a person
who was guilty
of conspiring to steal from the Applicant;
2.10
The Second Respondent failed to discharge his function as an
arbitrator in evaluating erroneously
the evidence.”
[20]
The sketch would have been useful in visualizing the area of the Mill
concerned. But it is not
available.
[21]
The commissioner was critical of the evidence of Mr Makondi. He noted
that he did not mention Mr Mundi in his letter of resignation.
It
seems that Mr Makondi wrote the letter without assistance. It is
doubtful whether it was meant to be a complete statement about
the
incident. The commissioner contrasted Mr Makondi’s evidence
with that of the security guard and noted that there was
no
suggestion that a passerby by had played any role in the discovery of
the maize. The commissioner records: “Therefore
I do not accept
the version of this witness regarding the events, which took place on
the 27 October 2001 (sic).” This is
essentially a credibility
finding.
[22]
The commissioner concluded that there was no direct evidence (save
that of Mr Makondi) linking Mr Mundi to the theft. The commissioner
points out that the security guard apprehended Mr Mundi because he
thought he was delaying him while Mr Makondi made a getaway.
The
commissioner was critical of his testimony because, during the
disciplinary hearing, he had not told of his observation while
upstairs (which apparently gave him a good view of the street). This
too amounts to a credibility finding.
[23]
The commissioner was aware of the onus resting upon the Mill to show
that the dismissal was substantively fair. The commissioner,
in the
absence of proof to the contrary, was also satisfied that there was
nothing irregular about Mr Mundi being on the Mill’s
premises
after his shift had finished.
[24]
The commissioner concluded that the version of Mr Mundi was highly
probable ie that he was not associated with the theft, and
the
version of the Mill was highly improbable and the dismissal was
substantively unfair.
[25]
The commissioner, in my view, erred in the final paragraph by
founding his conclusion on the probabilities when it is clear
that,
in the view of the commissioner, his credibility findings were
decisive. A court of review will not lightly interfere
with
credibility findings. However, the commissioner’s credibility
findings do not go to such matters as demeanour. It is
possible to
judge these findings with reference to the record. The commissioner
is justified in raising these complaints but they
must be seen in the
context of all the evidence presented.
[26]
The question is whether, taking all the evidence into account, the
second respondent arrived at a conclusion which a reasonable
commissioner would not make? In my view the answer must be that a
reasonable commissioner would not have arrived at the same decision.
I say this because:
(a) The
criticisms of the evidence of Mr Makondi and Mr Galetzana are not on
their own such as to make their evidence
unacceptable;
(b) The
evidence of Mr Makondi and Mr Galetzana support each other on
material aspects.
(c) Mr
Mundi’s account of his time from 12:00 to about 16:30 is
improbable. He left at 12:00 to go by taxi to
a funeral, for which he
arrived late. He returned to the Mill. Did his washing and was bought
a loose cigarette. This improbability
points to the untruthfulness of
Mr Mundi’s account.
[27]
The commissioner ought to have found that Mr Mundi was guilty of
theft. In the result the application to review and set aside
the
award of the second respondent is granted.
[28]
The award by the second respondent in matter NP 3195/01, dated 13 May
2002, is reviewed and set aside. There will be no order
as to costs.
SIGNED
AND DATED AT MAFIKENG THIS 26
TH
DAY OF NOVEMBER 2008.
A
A LANDMAN
JUDGE
OF THE LABOUR COURT