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[2010] ZALCJHB 16
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Kalahari Goldridge Mining Company Ltd (The Kalgold Operations of Harmony Gold Mining CO Ltd) v Commission for Conciliation Mediation And Arbitration and Others (JR1482/08) [2010] ZALCJHB 16 (17 June 2010)
IN
THE LABOUR COURT OF SOUTH AFRICVA
(HELD
AT BRAAMFONTEIN)
CASE
NO JR 1482/08
In
the matter between:
KALAHARI
GOLDRIDGE MINING
COMPANY
LTD (THE KALGOLD
OPERATIONS
OF HARMONY GOLD
MINING
CO LTD)
APPLICANT
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
TEBOGO
BENJAMIN KUJANE NO
SECOND
RESPONDENT
NATIONAL
UNION OF MINEWORKERS
THIRD
RESPONDENT
J
NOVOLO
FOURTH
RESPONDENT
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside an arbitration award
made by the second respondent, to whom I shall refer as
‘the
commissioner”. In his award, the commissioner ordered the
applicant to reinstate the fourth respondent, with effect
from 14
April 2008, and to pay him back pay amounting to some R7500. The
application for review was filed some seven weeks late,
and the
applicant has applied for condonation for the late filing of the
application.
The
facts
[2]
The applicant charged the fourth respondent with theft and
unauthorized possession of a pump belonging to Air Liquide, a
contractor
on the applicant’s mine. The applicant claims that
the fourth respondent was found in possession of the pump, being the
property
of a sub-contractor, Air Liquide, while driving out of a
mine security area in circumstances where he was the passenger in a
vehicle
driven by a Mr. Mokoto, a person not employed by the
applicant, and who transported the fourth respondent to and from the
mine
on a regular basis. The pump was found wrapped in a plastic bag,
between the fourth respondent’s legs, while he was sitting
in
the passenger seat of the vehicle.
The
arbitration award
[3]
In his award, the arbitrator summarised the evidence led at the
hearing, and then proceeded to analyse that evidence. In his
summary
of the submissions made on the applicant’s behalf, the
commissioner states the following:
“
It is the
applicant’s version that the wrong party in this matter had
charged and dismissed the applicant for an alleged theft
of company’s
property (pump). The complaint who charged and dismissed the
applicant in this matter is Kalgold mine and it
found that the
alleged pump did not belonging to Harmony Kalgold Mine, but to Air
Liquid which is a sub contractor at the mine.
The applicant
challenged substantive fairness in this regard because the correct
complainant in this matter was supposed to be
Air Liquid not Kalgold
mine. It is also the applicant’s version that he was employed
by Harmony Kalgold and not Air Liquid
sub contractor therefore he did
not breach any company rule
(sic)”.
[4]
The commissioner then appears to endorse these submissions. He states
the following:
“
I fully agree
with the applicant in statement given the fact that Harmony Kalgold
in this matter was not supposed to appear as complainant
but as Key
witness to testify, since pump belonged to Air Liquid not the mine.
It is the respondent’s version that a pump
was found in-between
applicant’s legs but not in possession of the applicant, yet he
was charged with theft even though he
was not in physical possession
(sic)
.”
[5]
The commissioner reaches the following conclusion:
“
Applicant was
wrongly charged and dismissed by a wrong party in this case. In
addition the applicant was not found in possession
of the alleged
pump but it was not in his possession, and throughout its submission
the respondent could not prove that the pump
indeed belonged to et
applicant not the other occupant who was the driver or even other
passengers at the back who were also not
called during the hearing to
testify. By deciding on a case without involving key parties in the
case rendered the whole procedure
defective, and the applicant was
charged and dismissed based on untested evidence. Applicant’s
dismissal was both procedurally
and substantively unfair and I
therefore rule in the applicant’s favour…”
[6]
The commissioner’s logic beggars belief. First, to the extent
that he ruled in the fourth respondent’s favour because
the
applicant had initiated disciplinary proceedings rather than Air
Liquide, this approach overlooks the elementary point that
Air
Liquide was not the fourth respondent’s employer, and that as a
sub contractor on the applicant’s premises, Air
Liquide had no
right whatsoever to discipline the fourth respondent. Whether Air
Liquide ought to have been a formal complainant
in the disciplinary
enquiry is neither here nor there. Secondly, the commissioner’s
findings on the issue of possession (his
award appears to turn on
this point) are equally confused – it was undisputed that the
fourth respondent was found in physical
possession of the pump, in
that it had been placed in a plastic bag and was found lodges between
the applicant’s legs, as
he sat in the passenger seat of the
vehicle, when the vehicle was searched. What was in issue, initially
at least was the claim
by the driver, Motoko, that the plastic bag
may have belonged to him. The evidence is clear though that once the
bag and its contents
had been examined by security officials, and
Motoko saw that the bag contained a pump, he disavowed any knowledge
of it. Mokoto’s
explanation in this regard appears to be
rejected without any proper basis to do so. Finally, the commissioner
appears to have
regarded the allegation of misconduct against the
applicant to have been one of theft. This is the only way in which
his misguided
notions of ownership and possession can be understood.
His approach overlooks the fact that the applicant had regarded the
case
as one of theft and unauthorised possession – the
documents relevant to the disciplinary enquiry and appeal hearing
make
this clear. It is clear from the terms of the award that the
commissioner failed to understand the meaning of possession in a
legal
sense, or even in the general sense of having control over an
object. The evidence of Mvala and Mothlaping clearly established that
the plastic bag was found in the fourth respondent’s
possession.
[7]
I do not intend to burden this judgment with a repetition of the
applicable test, save to say that where a commissioner fails
to have
regard to material facts, and misconceives the nature of any legal
test to be applied, the commissioner would have failed
to discharge
his or her statutory mandate (see
Sidumo & another v
Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC),
CUSA v Tao Ying Metal Industries & others
[2008] 29
ILJ 2461 at para 134,
Ellerine Holdings Ltd v CCMA & others
[2008] 29 ILJ 2899 (LAC)). In my view, in the present instances,
the commissioner manifestly failed to conduct himself as a reasonable
decision-maker would.
[8]
It follows from what I have said that for the purposes of the
application for condonation, the applicant has excellent prospects
of
success. Indeed, to allow the award to stand would be a gross
injustice. In so far as the remaining elements of the applicable
test
are concerned, I am satisfied that the delay in not overly excessive,
and that the applicant has furnished an acceptable explanation
for
delay, and in particular, that it was always the applicant’s
intent, despite the misconceived applications for rescission
of the
award filed on its behalf, to seek to have the award set aside.
I
accordingly make the following order:
1.
The late filing of the application for review is condoned.
2.
The arbitration award made by the second respondent on 25 March 2008
under case
number NW775-08 is reviewed and set aside.
3.
The matter is remitted back to the first respondent for re-hearing
before a different
commissioner
4.
The third and fourth respondents are to pay the costs of these
proceedings, jointly
and severally, the one paying the other to be
absolved.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Appearances:
For
the applicant: Mr. J Olivier Brink, Cohen Le Roux Inc
For
the respondent Dr N Cloete, Neville Cloete Attorneys Inc
.
Date
of hearing: 10 June 2010
Date
of judgment: 17 June 2010