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[2010] ZALCJHB 66
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Baloyi v MEC Health & Social Development, Limpopo and Others (JR255/06) [2010] ZALCJHB 66 (21 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO JR 255/06
In
the matter between:
GEZANI
JULIUS BALOYI
Applicant
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR HEALTH & SOCIAL
DEVELOPMENT,
LIMPOPO
First
Respondent
THE
HEAD OF DEPARTMENT
HEALTH
& SOCIAL DEVELOPMENT,
LIMPOPO
Second
Respondent
PHWSBC
Third
Respondent
DENGA
MULIMA
Fourth
Respondent
JUDGMENT
COETZEE
AJ:
Introduction
1.
Applicant seeks to review and set aside the
arbitration award finding his dismissal both procedurally and
substantively fair.
Background
2.
The Employer dismissed Applicant on charges
relating to the requisitioning of services to repair equipment at
various clinics while
the services were not required and had not been
rendered.
3.
In addition, it is alleged that Applicant
authorised payment for those services without ensuring that the
services had been rendered.
4.
A transcript of the Arbitrator’s
handwritten notes discloses that Applicant challenged the procedural
fairness of his dismissal
on the basis that he had not been afforded
the opportunity to cross-examine the Employer’s witnesses whose
signatures appear
on the tender documentation.
5.
In addition, Applicant in the arbitration
challenged the substantive fairness of his dismissal on the basis
that there was not sufficient
evidence before the disciplinary
enquiry that warrants a dismissal.
6.
Applicant challenges the Arbitrator’s
understanding of the procurement procedures and payment approvals.
7.
The Applicant does not succinctly set out
the grounds for review in his founding affidavit.
8.
The matter was previously set down, but
postponed to enable Applicant to file a proper transcript of the
proceedings. Applicant
filed a transcript.
9.
The record now consists of the
handwritten
notes
of the Arbitrator and the
transcript thereof accompanied by a supplementary affidavit filed 8
April 2009.
10.
The handwritten notes appear on pages 34 to
50 of the Court Record and the transcription on pages 87 to 94.
11.
The Arbitrator in his handwritten notes
(“the handwritten notes” recorded a number of concessions
made by the Applicant
in cross-examination. The concessions have been
transcribed and appear on pages 93 and 94 and are not repeated in
this judgment.
12.
When Applicant filed his notice in terms of
Rule 7A(8)(b) on 27 March 2008 accompanied by the handwritten notes,
he elected to stand
by his notice of motion and called upon
Respondents to deliver their answering affidavits should they wish to
oppose the application.
13.
At that time, Applicant had no complaint
with regard to the correctness of the handwritten notes.
14.
When filing the supplementary affidavit of
2 September 2008 Applicant challenged the correctness of the
handwritten notes of Fourth
Respondent on the basis that the
Arbitrator recorded the concessions while no such concessions had
been made.
15.
Applicant did not raise in his founding
affidavit a complaint against the correctness of the record of the
proceedings before the
Arbitrator. This is probably so because,
at the time, he might not have had a copy thereof available.
16.
Applicant had the opportunity when filing
his initial supplementary affidavit with the transcript of the
proceedings, to deal with
the correctness of the Arbitrator’s
notes containing the concessions. Instead, he elected to stand
by his founding
affidavit and filed the notes with the concessions.
17.
Applicant has not served his recent
objections to the notes on the author thereof for his comments.
18.
The supplementary affidavit containing the
comments was served on the attorneys for the First and Second
Respondents only.
19.
I am of the view that the matter should be
considered on the record of the proceedings as contained in the
Arbitrator’s handwritten
notes (as typed) and not as the
Applicant wishes them to be corrected.
20.
Applicant has initially also elected not to
pursue an argument in the heads of argument filed on his behalf that
the notes should
be corrected by deleting the concessions. In the
subsequent heads dated 10 December 2010 reference is made thereto.
21.
Applicant has formulated his attack on the
arbitration award in the form of complaints:
18.1
The Arbitrator has showed a lack of understanding of the internal
procedures.
18.2
The Arbitrator failed to deal with the substantial merits of the
dispute.
18.3
The Arbitrator’s findings are based on what the Arbitrator
termed “uncontradicted and/or undisputed
submission by the
Employer that the management of the clinics would use “internal
works order form” to sanction transactions
while that was not
true.
18.4
The Arbitrator lost sight of the fact that in Government service
offices worked “in tandem” which
means that when
Applicant received an instruction that certain equipment required
service he would give effect to that instruction.
18.5
The Arbitrator’s award goes against the weight of evidence and
certain crucial matters were either
ignored or deliberately
“disturbed”.
ANALYSIS
OF THE EVIDENCE AND ARGUMENT
22.
Applicant’s complaints are in the
nature of an appeal rather than in the form of a review.
23.
The Arbitrator in the award deals
extensively with the evidence presented in the arbitration.
24.
The Arbitrator quite correctly held that
Applicant was not denied the opportunity to cross-examine the
witnesses during the disciplinary
enquiry as alleged in the
Arbitration.
25.
Taking into account the concessions
Applicant made in the arbitration the Arbitrator’s award is not
one that a reasonable
Arbitrator could not have made.
Order
26.
The application is dismissed.
27.
There is no order as to costs.
____________________________
COETZEE
AJ
ACTING
JUDGE OF THE LABOUR COURT
DATE
OF HEARING:
21
DECEMBER 2010
DATE
OF JUDGMENT:
21
December 2010
APPEARANCES:
FOR
APPLICANT:
Mr Ramushu of attorneys Ramushu Mashile Twala Inc
FOR
THE RESPONDENTS:
No appearance