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[2013] ZALCD 23
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Msibi v Cell C (Pty) Ltd and Others (D 183/2010) [2013] ZALCD 23 (15 August 2013)
Not Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
case
no: D 183/2010
In the matter between:
SIFISO
CYRIL MSIBI
.................................................................................................
Applicant
and
CELL
C (PTY) LTD
.......................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
..........................................................
Second
Respondent
COMMISSIONER
N HARILALL
..................................................................
Third
Respondent
Heard
:
30 October 2012
Delivered: 15 August 2013
Summary: Review: Application dismissed
JUDGMENT
GUSH J
The applicant in this matter applies to review and set aside an
arbitration award issued by the third respondent who found in
his
award dated 22 February 2010, that the dismissal of the applicant by
the first respondent was substantively and procedurally
fair. The
applicant applies for the award to be substituted with an order that
the dismissal of the applicant was substantively
and procedurally
unfair and that the first respondent be ordered to retrospectively
reinstate the applicant.
Prior to his dismissal on 14 December 2007, the applicant, who had
commenced his employment on 1 May 2007, was employed by the
first
respondent as an “Area Channel Executive”. The
applicant’s responsibilities involved the processing of
applications for “container products”.
Apparently, according to the record and pleadings, the first
respondent awards contracts to successful applicants to operate
community telephone services from containers. These services are
operated as a business and are subject to certain conditions
being
met. The applicant’s duties involved the processing of these
applications.
A certain Mr Mtolo applied to the first respondent for permission to
operate such a container business and the applicant processed
his
application. Following an inspection of the site on which the
container was to be situated, Mtolo’s application was
refused
as there were other similar containers businesses in the vicinity of
Mtolo’s proposed site. Mtolo then resubmitted
his application
during September 2007.
Pursuant to an allegation by Mtolo that the applicant had solicited
from him an amount of R3000 in order for his application
to be
approved, the first respondent charged the applicant with the
following misconduct:
‘
Dishonesty,
in that you used your position as a Main Market Channel ACE of Cell
Cs CST Department to enrich yourself, in that you
requested an amount
of R3000 from a CST customer in order to get his application for a
CST container approved. You collected the
R3000 from the CST customer
Mr Mtolo and then motivated for his application to be approved’.
Following a disciplinary enquiry, the applicant was found guilty of
misconduct and dismissed. Dissatisfied with his dismissal,
the
applicant referred a dispute to the second respondent who in turn
appointed the third respondent to arbitrate the dispute.
At the
conclusion of the arbitration, the third respondent issued an award
in which she dismissed the applicant’s application
having
found that the dismissal of the applicant was substantively and
procedurally fair.
The applicant sets out the following grounds of review in his
founding affidavit. The affidavit commences by paraphrasing
provisions
of section 145(2)(a) (i) (ii) and (iii)
1
and averring that the award is reviewable ‘on one or more of
these grounds" and by averring that the award is “unjustifiable
in relation to the evidence properly produced at the hearing and in
relation to the reasons given for it and that it is an award
that no
reasonable Commissioner would make’.
This is followed by a series of general statements suggesting the
third respondent failed to consider and properly evaluate the
relevance and credibility of admissible evidence and argument.
In his founding affidavit, under the heading "The Crux of the
Matter" the applicant suggests that ‘[i]t was a
gross-irregularity for the CCMA Commissioner to rely on the evidence
of Mr Mtolo which was riddled with self contradictions,
inconsistencies etc. The CCMA commissioner simply ignored my
evidence and all the evidence contradicting Mr Mtolo’s
version’.
2
The applicant having received the record from the second respondent
filed a supplementary affidavit. The applicant in an attempt
to
supplement his grounds of review makes only the following three
statements:
(a) Firstly, that the third respondent ‘did not take into
account the fact that Mr Mtolo conceded that if the phone calls
he
alleges were made by me into his phone were not showing in his call
report then his evidence should not be relied upon.. Mr
Khoza whose
task was to witness the exchange of cash fails to wait for the cash
to change hands and did not even see the person
who is alleged to be
the payee.”
3
(b) Secondly, that ‘my evidence was corroborated by Skosana in
all respects that I was at the call centre for training. There
is no
reason to doubt the evidence of Skosana who is still employed by the
employer party...”
4
(c) Thirdly, that ‘my telephone records explain exactly where I
was at all material times. On the other hand Mtolo shifts
and changes
the time he alleges I met with him or phoned him. At the end of the
day some of the crucial telephone calls he alleges
I made into his
cellphone not appear in his call report’
5
The supplementary affidavit then concludes with the suggestion that
‘there are a lot of contradictions between the evidence
of
Mtolo and that of Khoza material respects’.
Conspicuous by its absence in both the applicant’s founding
and supplementary affidavits is any reference whatsoever to
the
award itself. This disturbing absence of any particularity with
reference to the award itself is exacerbated by the applicant’s
failure to refer to the record or any portion thereof. Rule 7A of
the rules of this court prescribed that an applicant wishing
to
review a decision of an arbitrator must file “an affidavit
setting out the factual and legal grounds upon which the
applicant
relies to have the decision ... set aside.”
6
The rule expressly permits an applicant to deliver a supplementary
affidavit after a transcript of the record has been filed
"amend[ing] add[ing] to or vary[ing] the terms of the notice of
motion and supplementing the supporting affidavit.”
7
It goes without saying that to comply with Rule7A it is incumbent
upon an applicant to at least relate such grounds of review
as may
set out in the founding and supplementary affidavits to those
aspects of the award itself that the applicant believes
renders it
defective and subject to review. The applicant in this matter does
no such thing.
A consideration of the award reveals that the third respondent sets
out the background to the matter before recording in detail
a survey
of the evidence. This survey summarises the evidence of the seven
witnesses and gave evidence for the first respondent
and that of the
applicant and his two witnesses. The applicant does not take issue
with the third respondent’s summary
of the evidence save for
the general and unsubstantiated averment that the third respondent
did not take into account certain
of the evidence.
The third respondent, in the award, then proceeded to analyse the
evidence and the arguments. In this analysis, the third respondent
carefully and in detail dealt with the evidence, the probabilities
and credibility of the witnesses before coming to the conclusion
that the probabilities favoured the first respondent. Again it must
be emphasised that the applicant at no stage takes issue
with any of
the specific aspects of the third respondent’s analysis.
There is no apparent reason why the applicant has seemingly ignored
the specifics of the award or taking issue with the conclusions
and
analysis by the third respondent of the evidence by reference to the
award itself or the transcript of the evidence other
than the only
likely conclusion that the applicant did not read the record or
consider the merits of the award other than the
outcome. A glaring
example of this is the applicant’s averment regarding the
evidence of Skosana. The applicant avers that
Skosana’s
evidence corroborated his evidence. In her award,
8
the third respondent specifically dealt with Skosana’s
evidence and found his evidence improbable. This the applicant
conveniently ignores.
An applicant should at very least deal in the founding or
supplementary affidavit with his of grounds of review by reference
to the award and those aspects thereof on which he relies in support
of his application to have the award reviewed and set aside,
and as
is the case in this matter where the grounds of review in the
founding affidavit are mere generalities at least explain
with
reference to the transcript what aspects of the award with which the
applicant takes issue
The applicant’s founding and supplementary affidavits are be
more in keeping in an appeal against the award. The test in
determining whether an award is reviewable is:
‘
... is
whether the award is one that a reasonable decision maker could
arrive at considering the material placed before him.’
9
It is not whether the arbitrator was correct or not but whether the
award satisfies the above test. The applicants general complaints
regarding the award, couched as grounds of review, do not take
account of or deal with the third respondent’s detailed
"survey of the evidence" or “analysis of the
evidence and arguments”.
There is no basis upon which it can be held that the third
respondent did not take into account the material placed before her.
The third respondent’s award considered and analysed the
evidence having summarised it before concluding that the version
presented by the first respondent and its witnesses is more probable
before concluding that the dismissal of the applicant was
both
substantively and procedurally fair. The applicant in the face of
this simply accuses the third respondent generally, without
reference to any of the third respondent’s analysis or
conclusions, of failing to take into account the evidence reaching
and reasonable conclusions and relying on evidence that the
applicant suggests should not be relied upon.
It is not sufficient for the applicant, particularly bearing in mind
the test to be applied when determining whether the award
is
reviewable by:
(a) firstly simply suggesting that there is a ‘defect in [the]
arbitration proceedings’ by paraphrasing the meaning
of
"defect" as set out in the Act; and/or
(b) accusing the third respondent of reaching a decision which a
reasonable arbitrator could not come to based on the material
placed
before her without identifying the “material” with
reference to the award or transcript or both in order to
show which
conclusions or what analysis the applicant regards as unreasonably
having led to the conclusions reached by the third
respondent.
I am not satisfied that the applicant has demonstrated in any way
whatsoever that the third respondent’s award is reviewable.
On
the contrary, a careful consideration of the award and the record
shows not only that the third respondent’s award satisfies
the
test set out above and particularly took into account the evidence
adduced by the applicant and first respondent, but analysed
this
evidence before reaching a conclusion on a balance of probabilities
that the dismissal of the applicant was both substantively
and
procedurally fair
As regards costs, I am not satisfied that a cost award in this
matter is justified.
[24] In the circumstances, and for the reasons set out above, I make
the following order:
(a) the applicant’s application is dismissed;
(b) there is no order as to costs.
_______________________
D H Gush
Judge
APPEARANCES
APPLICANT: C A Nel
Instructed by Japhta Inc
FIRST RESPONDENT: F A Boda
Instructed by Cliffe Decker Hofmeyr
1
Act
66 of 1995.
2
Founding
affidavit paragraph 10
3
Supplementary
affidavit paragraph 7
4
Supplementary
affidavit paragraph 8
5
Supplementary
affidavit paragraphs 9.
6
Rule
7A(2)(c)
7
Rule
7A(8)(a)
8
At
paragraph 133
9
Edcon
Ltd v Pillemer NO and Others
,
(2009) 30 ILJ 2642 (SCA)
at page 2650.