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[2009] ZALCJHB 55
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Northam Platinum Ltd v Fganyago NO and Others (JR233/07) [2009] ZALCJHB 55 (26 August 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR2337/07
In
the matter between:
NORTHAM
PLATINUM LIMITED
APPLICANT
and
FM
FGANYAGO
N.O.
1
ST
RESPONDENT
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
NUM
obo
W
MAOPE
3
RD
RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application to review and set
aside the arbitration award of the first respondent (“the
commissioner”) under
case number LP3534/04 dated 14
th
August 2007. In terms of that arbitration award the commissioner
found the dismissal of Mr Maope (“the employee”) to
have
been procedurally fair but substantively unfair.
Background
facts
[2]
The employee who prior to his dismissal was
employed as plant operator arose from an incident where he and two
other employees were
allegedly captured on a video tape removing
platinum metals from the workplace. The employee and two others were
identified from
the video tape by the plant manager, Mr Corbet and
the supervisor, Mr du Preez.
[3]
The employee was charged with the following
misconduct:
“
1.
Whereby you on 2004/05/10 between approximately 23:15 and 00:46 in
the 4PU01 area and at the 4TK01 tank in
the BMR plant participated
and/or assisted in the illegal removal of Platinum Group Metal
concentrate without any authority and/or
permission.
and/or
2.
Whereby you on 2004/05/10 between 23:15 and 00:46 and/or 2004/05/16
at approximately 9:22
in the 4PU01 area and 4TK01 tank in the BMR
plant were in possession of Platinum Group Metal concentrate without
the necessary
authority from the company and/or your supervisor.”
[4]
The applicant in support of its case relied
on the testimony of both Mr Corbet and Mr du Preez. The video cameras
from which the
video footage were taken from was installed by Mr du
Preez.
[5]
Mr du Preez testified that he inspected the
video footage but could not identify the people who appeared on it.
It was Mr Corbet
and Mr du Preez the plant supervisor who identified
the employee as he appeared on the video footage.
[6]
Mr Corbet testified that he knew the
employee having worked with him for a period of six years. He further
testified that management
of the applicant became aware of the loss
of the platinum group concentrate when the security found some
parcels containing PGM
hidden in the plant.
[7]
Mr Corbet further testified that he was
informed by the security about the recording they had made and
invited him to come and observe
the video. In watching the video
footage he observed employees illegally removing the PGM and not
attending to the repair of a
flange.
[8]
Mr du Preez, testified that the parcel
which was found hidden in the plant was taken to the laboratory for
testing and it was found
that it contained PGM materials. He further
testified that he was able to identify the employee with the two
other employees on
the video footage and that from his observation
they were not repairing the leaking flange but were busy tapping the
PGM material.
According to him it takes 3 (three) to 4 (four) minutes
to repair the flange but the footage showed that the employees on
that
day took more than 10 (ten) minutes attending at the flange
which is not normal.
[9]
The person repairing the flange does not
according to Mr du Preez, put the bucket under it. He stated that the
video showed a steam
coming out which is an indication that the
solution was hot. He also stated that after cleaning the area the
employee can be seen
with a white jacket which he normally wears.
[10]
During cross examination Mr du Preez
testified that he did not watch the whole of the video and that he
was shown only certain people
on the video. He also testified during
cross examination that there were 8 (eight) people working in
different departments on that
day and that he was able to identify
them because he was their supervisor.
[11]
The two witnesses testified further during
cross examination that there were 8 (eight) employees on duty on the
night in question.
The employee on the other hand said that there
were 10 (ten) to 12 (twelve) employees were on duty during that
night. It is thus
common cause that there were more than the three
employees on duty that night.
[12]
The employee’s case is that as a
plant operator his duties entail having to ensure the smooth
operation of the plant. He denied
having been involved in theft of
the PGM and that he was unable to identify the people on the video
footage. He further stated
that he worked in the area in question and
that buckets are used in the sulphur dioxide gas by putting water in
the bucket.
The
grounds for review
[13]
The ground for review is set out by the
applicant in its founding affidavit as follows:
“
It
is Applicant’s case that the award contained in Annexure “A”
hereto is reviewable and falls to be set aside
since:
8.1
First Respondent found that the employee was one of the employees
involved in the removal of the platinum
concentrate on 10 May 2004
and had assumed he was one of those depicted on the video recording.
He did not deal with the evidence
of MR DU PREEZ that the employee
was identifiable by the white jacket he normally wears and his manner
of walking and his posture.
He also did not deal with the evidence of
MR CORBETT that he had worked with the employee for a long period of
time and recognised
him on the video. In failing to deal with this
evidence and in effectively ignoring it First Respondent either
committed a gross
irregularity or reached a conclusion that is not
justifiable with reference to the evidence adduced before him. The
award thus
falls to be set aside on review.”
[14]
Subsequent to filing its founding affidavit
wherein the above ground for review is set out, the applicant filed
its notice in terms
of rule 7(A) 8 of the rules of the Court
indicating that in terms of that notice it stands by both its notice
of motion and the
founding affidavit.
[15]
After receipt of the above notice the third
respondent filed their answering affidavit. Upon service of the
answering affidavit
by the third respondent, the applicant had five
days within which to file its replying affidavit. The applicant filed
its replying
affidavit more than 9(nine) months later with no
application for condonation.
[16]
In the absence of an application for the
condonation for the late filing of its replying affidavit, this Court
has no option but
to strike the applicant’s replying affidavit
off the pleadings. In any case, in my view, the replying affidavit
does not
assist the case of the applicant as will appear more in
details when the merits of the matter is considered.
The
arbitration award
[17]
The commissioner in his analysis of the evidence
which was presented before him says:
“
In this case
only substance was in dispute. Procedure was not in dispute. The
respondent called three witnesses supplemented by
the video that was
shown during the hearing. The charges against the applicant emanate
from the video footage of which the second
and third witnesses for
respondent alleges that one of the persons shown on that video is the
applicant. The first witness for
the respondent is a (sic) security
officer who did not know the people on the video footage at all. The
second and third witnesses
for the respondent rely (sic) on the fact
that they have worked with the applicant for a long time and hence
they are able to identify
him. Besides that there is no feature1hey
have put forward in identifying the applicant. They (sic) conceded
that not every person
will be able to identify the applicant on that
video. The video footage itself is of poor quality. The respondent's
third witness
under cross examination stated that there were 8
employees for that shift whilst applicant stated that sometimes they
were 10,
11 or 12. In other words it not in dispute that there were
more than 3 employees on that shift.
After
analysing and considering the evidence and arguments presented I have
come to the conclusion that the respondent’s case
is based on
assumptions. They assumed that because the operators who were on that
shift at that night and who were supposed to
work in that area were
the applicant, Malatji and Matlou were therefore the people on that
video. Anybody out of the 8 employees
on that shift could have done
what the people on that video were doing. No evidence was presented
that if you are in another department
it is impossible for you to go
to the 4TK01 area. The video was also edited.”
[18]
As stated earlier the commissioner found
the dismissal to have been substantively unfair and ordered both
compensation and reinstatement
of the employee.
Evaluation
of the award
[19]
The test to apply in evaluating whether
there is a basis to interfere with a commissioner’s award is
that of a reasonable
decision-maker as set out in a number of Court
decisions in particular in
Sidumo v Rustenburg Platinum
Mines Limited (2007) 28 1LJ 2405 (CC)
. See also other decisions
that followed that decision like
Fidelity Cash Management Services
v Commission for Conciliation, Mediation & Arbitration &
others
[2008] 3 BLLR 197(LAC)
, Edcon Ltd v B Pillemer NO and Others
[2008] JOL 21412
(LAC); Phalaborwa Mining, Co Ltd v Cheetham &
others[2008] JOL 21301 (LAC)
and
Mkhwanazi v Moodley NO
& others
[2008] JOL 21392
(LC).
[20]
In
Fedelity
Management
the Court emphasised that
the reasonable decision maker’s test is:
“…
is a
stringent test that will ensure that such awards are not lightly
interfered with. It will ensure that, more than before, and
in line
with the objective of the Act and particularly the primary objective
of the effective resolution of disputes, awards of
the CCMA will be
final and binding as long as it cannot be said that such a decision
or award is one that a reasonable decision-maker
could not have made
in the circumstances of the case. It will not be often that the
decision of the arbitration award of the CCMA
is found to be one that
a reasonable decision-maker could not, in all circumstances, have
reached.”
[21]
The essence of the ground of review quoted
above, as I understand it, is that the commissioner failed to
properly consider, evaluate
and deal with the evidence of the two
witnesses of the applicant concerning the identification of the
employee on the video footage.
[22]
In my view the ground of review quoted
above does not make out a case warranting interference with the
decision of the commissioner.
I will revert back to the other grounds
of review raised by the applicant subsequent to filing its founding
affidavit later in
this judgment.
[23]
It is apparent from the reading of the
above extract that contrary to the complaint of the applicant the
commissioner did considered
the evidence of Mr du Preez and Mr Corbet
concerning the identification of the employee as supposedly appears
from the video footage.
After considering the evidence of the two
witnesses and finding that they were unsatisfactory, he proceeded to
consider the video
footage. It is apparent from reading the record
that the testimony of the two witnesses was largely based on what
they saw on the
video footage. The commissioner found that the video
was of very poor quality, was edited and
the
faces of the people on it can not be seen
. It was for this
reason that the commissioner found that the applicant’s case
was based on assumptions.
[24]
In considering the evidence of the two witnesses
of the applicant the commissioner found that except for saying that
they knew the
employee, they could not provide any other feature
present in their identification of the employee and his fellow
employees. In
this respect the commissioner found that the
applicant’s witnesses assumed that the people on the video were
the employee
and the two others because they were supposed to have
worked in that area on that day. It is for this reason that the
commissioner
concludes that any one of the 8 (eight) people who were
on duty on that shift could have done what the people on the video
are
being seen doing.
[25]
I do not see how this Court could in the absence of the video
footage be able to assess the reasonableness of the conclusion
reached
by the commissioner that the video footage was of poor
quality. It is now well settled that the duty to place a full record
of
the proceedings before the Court rests with the applicant. In this
instance the applicant has failed to discharge that duty by failing
to place before this Court the video footage which was central to the
case of the applicant during the arbitration proceedings.
[26]
In my opinion, based on the above, the applicant has failed to
make out a case showing that the conclusion of the commissioner is
unreasonable or reviewable based on any other grounds of review. For
this reason alone the applicant’s review application
stand to
be dismissed.
Further
grounds of review
[27]
The applicant has in its heads of argument
raised further grounds of review which are not raised in the found
affidavit. The only
ground of review raised in the applicant’s
founding affidavit is the one quoted earlier in this judgment. I do
not deem it
necessary to repeat the grounds for review raised by the
applicant in its heads of argument. In my view the law is very clear
that
a ground for review raised for the first time in argument cannot
be sustained. The basic
principle is that a litigant is
required to set out all the material facts on which he or she relies
on in challenging the reasonableness
or otherwise of the
commissioner’s award in his or her founding affidavit. In
Country Fair v CCMA & Others
[1998] 6 BLLR 577
(LC),
at
page 580 paragraph 8 the Court in dealing with this issue held that a
party that relied on the provisions of
section 145
of the
Labour
Relations Act 66 of 1995
, in its notice of motion and founding
affidavit could not invoke the provisions of
section 158
(1) (g) of
the same Act as a ground for review during argument.
[28]
The principle that a litigant cannot seek
to introduce a new ground for review having failed to do so in the
founding or supplementary
papers is set out succinctly in
Director
of Hospital Services v MISTRY
1979 (1) SA 626
) at 635A — 636F
(AD),
where the Court in dealing with
this issue had this to say:
“
When
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge will
look to
determine what the complaint is. As was pointed out by KRAUSE J in
Pountos’ Trustees v Lahanas
1924 WLD 67
at 68 and as has been
said in many other cases:
“
.
. . an applicant must stand or fall by his petition and the
facts alleged therein and that, although sometimes it is permissible
to supplement the allegations contained in the petition, still the
main foundation of the application is the allegation of facts
stated
therein, because those are the facts which the respondent is called
upon to confirm or deny.”
[29]
The principle is aptly summarised in the
head note in
Smuts v Adair
[2004] 1 BLLR
34
(LAC),
where it is stated that an
applicant was not entitled to rely on arguments that were raised in
the founding affidavit. See also
Mauerberger
v Mauerberger
1948 (3) SA 731
(C) at 732 and Titty’s Bar and
Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
1974 (4) SA
362
(T) at 368B — 369A.
It is
thus clear from this authorities that an applicant stand or fall by
the grounds of review set out its notice of motion and
affidavit and
as may have been varied amended or supplemented in terms of rule 7A
(8) (a) of the Labour Court Rules. It follows
therefore that the
applicant in the present matter could not extend or add on the new
grounds of review or make a fresh complaint
against the
commissioner’s award in the heads of argument in particular
after filing the notice in terms of rule 7A(8)(b),
confirming that it
stands by the notice of motion. It stands to reason that no regard
shall be had to the complaint raised by the
applicant for the first
time in its heads of argument. It also means that this Court had to
consider only one ground of review.
The basis of that ground of
review and its sustainability was considered earlier in this judgment
and as stated it does not warrant
interference with the arbitration
award.
[30]
In my view law and fairness dictates that
the costs should in the circumstances of this case follow the
results.
[31]
In the premises the application to review
and set aside the arbitration award of the first respondent under
case number LP3534/04
dated 14
th
August 2007 is dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
23
rd
April 2009
Date
of Judgment :
26
th
August 2009
Appearances
For
the Applicant :
Adv R G Beaton
Instructed
by :
Van Zyl Le Roux
& Hurter Inc
For
the Respondent: Andrew
Goldberg of Nomali Tshabalala Attorneys