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[2011] ZALCJHB 259
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POPCRU obo Maseko v Department of Correctional Services and Others (JR2134/08) [2011] ZALCJHB 259 (4 October 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JR 2134/08
In the matter between:
POPCRU obo G
MASEKO
Applicant
and
THE DEPARTMENT OF
CORRECTIONAL 1
ST
Respondent
SERVICES
GENERAL PUBLIC SERVICE
SECTORAL 2
ND
Respondent
BARGAINING
COUNCIL
M LOYSON
N.O.
3
RD
Respondent
JUDGMENT ON LEAVE TO
APPEAL
LAGRANGE,J
[1] This is an
application for leave to appeal against the judgment of this Court
handed down on 30 August 2010. The application
for leave to appeal
was made timeously, but its consideration has been inordinately
delayed by difficulties in locating the court
file.
[2] The case concerned
the review of an arbitrator's award in terms of which she held the
fairness of the dismissal of a prison
warden who had been dismissed
for having given an awaiting trial prisoner a bag of dagga to be sold
to other prisoners. The Court
dismissed the review application.
[3] The essential issue
in the review application was whether or not the arbitrator had acted
improperly in admitting hearsay evidence
of two awaiting trial
prisoners who had testified in person at the disciplinary enquiry,
but who could not be obtained to testify
at the arbitration hearing
for reasons beyond the employer's control. I concluded that the
arbitrator's admission of the evidence
after the arbitrator's
consideration of a number of factors relevant to the admission of
hearsay evidence was not unreasonable.
[4] The applicant
disputes this finding and contends that in these circumstances a
reasonable decision-making would have found
that the statements ought
not to have been admitted as evidence in circumstances where they
were central to the case. At paragraphs
81 and 82 of my judgment, I
considered the prejudicial effect of admitting the hearsay evidence
and noted that the SCA in
S v Ndhlovu and
others
[2002]
held
that the mere fact that the hearsay evidence may have high probative
value is not what makes it prejudicial. The prejudice
that must be
considered in admitting hearsay evidence is the inability of the
other party to cross examine the absent witness.
I have no
reason to believe that another court might come to a different
decision in this regard in the light of the authority
on the nature
of the prejudice that must be evaluated.
[5] The applicant
further claims that the Court ought to have found that the statement
of the awaiting trial prisoner who was caught
with dagga in his
possession (Saka) was unreasonably accepted by the arbitrator as
having probative value when a reasonable arbitrator
would have found
that it had none, based on the fact that the deponent had apparently
lied about his residential address and had
claimed that the statement
presented at the disciplinary enquiry was not the same as that which
he had made to the investigating
officer.
[6] Consequently the
applicant submits that, in truth, the arbitrator failed to establish
the material facts which constituted
an irregularity in the
proceedings warranting the award being set aside.
[7] Regarding the
last-mentioned ground of appeal relating to the reliability of Saka’s
statement, this was not raised as
one of the applicant's grounds of
review, and no exceptional circumstances have been provided why it
should not be considered for
the first time on appeal. Accordingly,
this ground of appeal should not be entertained.
Conclusion
[8] I am satisfied that
the grounds of appeal set out in the applicant's notice of its
application for leave to appeal do not warrant
the matter being
revisited for the reasons stated above.
Order
[9] In the
circumstances, the application for leave to appeal is dismissed with
costs.
ROBERT
LAGRANGE
ACTING
JUDGE OF THE LABOUR COURT
Date
of judgment: 04 October 2011
(In
Chambers)