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[2011] ZALCD 40
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Zwezwe v Department of Education, Kwazulu-Natal and Others (D 97/2010) [2011] ZALCD 40 (18 October 2011)
GUSH J
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT DURBAN)
Not
reportable
Case Number: D97/2010
In
the matter between:
MXOLISI
SERAPHICUS ZWEZWE
....................................................................
Applicant
and
DEPARTMENT
OF EDUCATION KWA-ZULU NATAL .
.........................
First
Respondent
EDUCATION
LABOUR RELATIONS COUNCIL
..............................
Second
Respondent
COMMISSIONER
R DE WET N.O.
.....................................................
Third
Respondent
Date of Hearing: 17 June 2011
Date of Judgment: 18.. October 2011
JUDGMENT
GUSH
J
The applicant in this matter applies to review and have
set aside the award of the third respondent and that it be altered
to
the effect that the applicant’s dismissal by the first
respondent was unfair, alternatively that the matter be referred
back to the second respondent for determination before an arbitrator
other than the third respondent.
Specifically the applicant applies for an order in the
following terms:
That the award in respect of substantive fairness of
third respondent, being Commissioner R de Wet of the second
respondent, under
case number PSES146-09/10KZN, in the proceedings
between the applicant and the first respondent, be reviewed and/or
set aside in
accordance with the provisions of section 145 (1) (a)
and 145 (2) of the Act "(sic).
The third respondent’s award contains a summary
of the background to the matter and a very detailed “survey of
the
evidence and argument”. I do not intend to repeat what is
contained in the award.
Suffice to say that the essence of the matter involved
the dismissal of the applicant after he had been found guilty of the
following
misconduct:
"Charge 1
In at on or about 3 February 2008 at Umzimkulu you conducted (sic) an
act of sexual assault on a learner by the name of Lungiswa
Radebe,
that I contravening section 17 (1) (b) of the Employment of Educators
Act as amended.
Alternatively
In that on or about January - February 2008 at Umzimkulu while on
duty you conduct yourself in an improper, disgraceful or unacceptable
manner by having a sexual relationship with a learner by the name of
Lungiswa Radebe, thereby contravening section 18(1)(q) of
the
Employment of Educators Act as amended”.
At the time of his dismissal, the applicant was
employed by the first respondent as an educator at the Ibisi
secondary school.
The applicant had been an educator for 12 years,
was the Head of Department, and was 38 years old. During December
2007 or January
2008, the applicant struck up a relationship with a
learner (Radebe) who was in grade 10 during 2007 and grade 11 June
2008.
The learner was 18 at the time.
This relationship was of a very short duration. The
relationship ended on 14
th
February 2008 after the
applicant had had intercourse with Radebe, according to her against
her wishes.
Having heard the evidence of both the applicant and the
learner Radebe, and the thorough cross-examination of Radebe and the
applicant,
the second respondent concluded on a balance of
probabilities that the dismissal of the applicant was both
substantively and
procedurally unfair.
The applicant’s grounds of review as set out in
his founding affidavit are firstly that, (despite this being a
review of
the award of the second respondent), the decision of the
second applicant is
wrong
(my emphasis) and irregularly
arrived at and that there is no rational connection between the
evidence before the second respondent
and the conclusion reached.
This averment is amplified in the founding affidavit by the
applicant’s submissions, which
are essentially, that the
“complainant” was not a credible witness. The
applicant’s first ground of review
is more akin to an appeal
than a review.
In the award, the second respondent sets out very
clearly that faced with two conflicting versions it was necessary to
determine
the matter on a balance of probabilities and that that
would involve an assessment of the respective witnesses’
credibility,
and that ultimately the onus rested on the first
respondent to establish that the dismissal was substantively and
procedurally
fair.
The second respondent, in the award, diligently applies
these principles in reaching the decision that Radebe was a credible
witness
and having accepted her version of the events, that the
dismissal of the applicant by the first respondent was both
substantively
and procedurally fair. In the award the second
respondent in great detail, summarises the evidence before analysing
it and the
arguments presented at the arbitration before reaching
her decision.
In matters such as this where the credibility of the
witnesses plays such an important part in the determination of the
dispute,
it is trite that the decision maker who had the benefit of
hearing the evidence in person is in the best position to determine
credibility. This Court merely has access to the record of the
proceedings and has not had for example the benefit of assessing
the
demeanour of the witnesses. In this regard the second respondent in
considering Radebe’s evidence in fact specifically
records
that, despite the “accusatorial nature” of her “lengthy
cross-examination”, she impressed her
as a witness. The second
respondent concluded that “her evidence was credible and
reliable”
1
.
Even had this been an appeal against a decision of the
second respondent, it is difficult to gainsay the conclusions
reached by
the second respondent in the award regarding the
credibility of Radebe, whose evidence is decisive of the matter and
formed the
basis upon which the second respondent concluded that the
applicant was guilty of misconduct and that his dismissal was
unfair.
This however is not an appeal. In support of his
application to review the award, the applicant has specifically
averred that
the second respondent
(i) committed misconduct in relation to the duties of
the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of
the arbitration proceedings; or
(iii) exceeded the commissioner's powers;
2
Section 145 prescribes the basis upon which the court
may review a decision of a commissioner. There is nothing from the
record
and or the award to suggest that the second respondent
committed misconduct, a gross irregularity and/or exceeded her
powers
as a commissioner.
The applicant raised a second ground of review that the
second respondent indicated that it was common cause between the
parties
that the provisions of section 3 of the South African
Council for Educators Act
3
enshrined the conduct expected of an educator when this
Act had not been mentioned at all during the arbitration. Whilst
this
might be so, a reading of the second respondent’s award
indicates quite clearly that despite referring to this section of
that Act, it was certainly not the basis of the second respondent’s
award nor did it influence the award. I am not satisfied
that this
ground of review constitutes conduct envisaged by section 145(2) of
the LRA.
It is also worth noting that the second respondent at
the commencement of the arbitration, in response to an application
by the
applicant, ruled that he was entitled to legal representation
given the “complex nature” of the allegations which
involved an assault and in particular a sexual assault and
accordingly that it would have been unfair for the applicant to have
dealt with the matter without the assistance of a legal
practitioner.
In all the circumstances, I am not persuaded that the
award of the second respondent is reviewable. Although not raised by
the
applicant, apart from the provisions of section 145(2) of the
LRA, even applying the test as enunciated in Sidumo
4
(the Constitutional Court decision as opposed to the
test as set out in the decision of the Supreme Court of Appeals upon
which
the applicant relied) and confirmed in
Edcon
5
viz. “reduced to its bare essentials, the
standard of review articulated by the Constitutional Court is
whether the award
is one that a reasonable decision maker could
arrive at considering the material placed before him,
6
it cannot be said that the decision of the second
respondent was one that a reasonable decision maker could not come
to considering
the evidence placed before her.
As far as costs are concerned, I am not persuaded that
in the interests of fairness that costs of this matter should not
follow
the result.
I therefore make the following order:
The applicants review is dismissed with costs;
_________________________
Gush J
Appearances:
For the Applicant: B A Bruce of Barry Bruce Attorney
For the Respondent: N Bhagwandeen, instructed by the
State Attorney Kwa Zulu Natal.
1
Paragraphs
77 and 80 of the award page 33 of the pleadings.
2
Section
145(2)
of the
Labour Relations Act 66 of 1995
.
3
31
of 2000.
4
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2)
SA 24
(CC);
5
Edcon
Ltd v Pillemer No and
Others (2009) 30 ILJ 2642 (SCA).
6
Ibid
at paragraph 15.
7