About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2011
>>
[2011] ZALCD 12
|
|
Top Turf Group (Pty) Ltd v Shezi and Others (D774/05) [2011] ZALCD 12 (1 January 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN DURBAN)
CASE NO: D774/05
NOT REPORTABLE
In the matter between
TOP TURF GROUP (PTY) LIMITED Applicant
And
LOVEDAY SHEZI First respondent
DUMISANI GIFT NLANGULELA Second respondent
PATRICK SANDILE MZINDLE Third respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Fourth respondent
SULLIVAN,PHILLIP LESTER
NOMINE
OFFICII
TRAFALGAR PROPERTY MANAGEMENT (PTY) Fifth Respondent
LIMITED TRAFALGAR POTS AND GARDENS Sixth Respondent
JUDGMENT
CELE J
This application is
in terms of section 166 of the Labour Relations Act (“the
Act”)
1
for an application for leave to appeal against an
ex tempore
decision of this court in a matter dated 19 March 2009. The
respondents favoured by the judgment have opposed the application.
The application sought to have an arbitration award reviewed and set
aside in terms of s145 of the Act.
[2] In
addition to the submissions made by the applicant in support of its
application for leave to appeal, the applicant has contended
that the
arbitration award which it sought to set aside, has since prescribed.
The award was issued on 1 November 2005. It was
made an order of
court on 12 February 2007. On 19 March 2009, and just before the
review application was heard, this court rescinded
its order which
made the arbitration award its order in terms of S158 (1) (c) of the
Act. The review application was then heard
and an
ex tempore
judgment dismissing the review application was issued.
[3] The applicant lodged the present application, subsequently the
respondent employees lodged a fresh s158 (1) (c) application
on 20
July 2010.
Prescription
[4] The submission by the applicant is that the arbitration award in
this matter has prescribed since a period much larger than
three
years from 1 November 2005 has since passed.
[5] The arbitration award in this matter was an order of this court
from the time it was so declared on 12 February 2009 until
that order
was rescinded on 19 March 2009. In this regard, the applicant
submitted that the rescission was
ex tune
,
that
is, the award is to be treated as if it never existed and therefore
that s158 (1) (c) order had no effect on the running of
prescription.
[6] The s158 (1) (c) order is not the one that was either erroneously
granted or erroneously sought in the absence of the parties,
nor was
the order granted when there was a patent error. Rescission was
granted upon good cause shown and to enable the review
application by
the applicant to be heard. The order of the rescission therefore
took effect only from the moment it was granted.
It had no
retrospective effect. It follows that the s158 (1) (c) application
and the order did stop the running of prescription.
[7] A period of three years has not lapsed since the rescission was
granted and therefore the award has not prescribed.
The merits of the application
[8] Six grounds of appeal were outlined by the applicant namely:
“1) The court
a quo
erred in finding that Thomas lied
about the incident and specifically erred in finding that Thomas
contrary to the other witnesses
(including Potgieter) testified that
the driver of Trafalgar vehicle approached Potgieter’s vehicle.
Thomas in fact testified
as in the case of all the other witnesses
that Potgieter, firstly, approached the driver of the Trafalgar
vehicle.
2) The court
a quo
erred in accepting the conflicting versions
of the first to the third respondents and rejecting the untested
version of Thomas.3
3) The court
a quo
erred in requiring the proof of a physical
assault prior to considering the guilt the first to the third
respondents of
behaviour
amounting to
derivative misconduct especially as the charges at hand was that of
bringing the name of the applicant into disrepute.
4) The court
a quo
erred in requiring the applicant to meet a
greater onus that of it not being “reasonably practicable”
to reinstate
the first to third respondents.
5) The court
a quo
erred in not making any findings regarding
the aspects of procedural fairness with specific regard to the effect
such finding would
have had on the quantum of compensation.
6) The court
a quo
erred in not accepting the submissions
forwarded on behalf of the applicant during the course of the hearing
of the matter.”
[9] The first three grounds of appeal are about the sufficiency of
evidential material in proving the misconduct charges and whether
or
not the assailants were sufficiently identified to be the three
respondent employees. For purposes of this application, I shall
assume that the difference in the evidence of Ms Thomas and that of
Mr. Potgieter (during the internal disciplinary hearing as
he did not
testify during the arbitration hearing.) was not material. Ms Thomas
could not identify those respondent employees
who according to her
assaulted Mr. Potgieter. She conceded that some of the employees
remained in the van. This concession simply
means that, in the
absence of any other evidence to the contrary, the three respondent
employees could have been those that remained
in the bakkie.
[10] In my view therefore, there is no reasonable prospect of
another court reaching a different conclusion on this issue.
[11] The next probe is about whether or not it was practicable to
reinstate the employees. The applicant submitted that the court
erred in this regard in requiring the applicant to meet a greater
onus that, of it not being “reasonably practicable”
to
reinstate the respondent employees. The applicant’s
submissions are unclear in this regard. The judgment demonstrated
the practical approach to reinstatement but set no “greater
onus”. This submission appears to be baseless.
[12] While the expression “procedural fairness” was not
used in the judgment the issue pertaining to it was clearly
traversed
in the judgment. The respondent employees denied the allegations
against them and said that Ms Thomas and Mr. Potgieter
had made up a
story against them, yet the chairperson of the internal disciplinary
hearing found
inter alia
that:
All had common
cause; and
All jumped out of
the vehicle
[13] She admittedly took these considerations into account in finding
the employees guilty in the absence of any evidence to that
effect.
Ms Thomas had not testified. The letter she had written was accepted
as evidence by Ms Cook. Against the absence of
material and relevant
evidence, Ms Cook wanted to know from the employees charged why they
did not want to admit responsibility.
Her biasness in favour of the
applicant was clearly obvious and did not have to be formally voiced
by the respondent employees.
The evidence on her bias stood out
clearly in the record. The substance of paragraph 14 to 16 of the
judgment sought to appeal
against deals with this issue, in my view;
there are no prospects of another court reaching a different
conclusion on the issue.
[14] The last ground of appeal is no ground at all for lack of
specificity.
[15] Accordingly the following order will issue:
The application
for leave to appeal is dismissed.
The applicant is
to pay the costs thereof.
____________________
Cele J.
1
Act No 66 of 1995