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[2014] ZALCJHB 205
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Leotlela v CCMA Gauteng and Others (J3211/2011) [2014] ZALCJHB 205 (11 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: J3211/2011
In
the matter between:
SESINYANA
PRECIOUS
LEOTLELA Applicant
and
CCMA
GAUTENG First
Respondent
COMMISSIONER
DANIEL
MATJIE Second
Respondent
CAPITEC
BANK Third
Respondent
Heard:
28 February 2014
Delivered:
11 June 2014
Summary:
Review application, Second Respondent coming to a conclusion which
was well within the band of
decisions to which a reasonable decision
maker could come given the material before him. Application
dismissed.
JUDGMENT
SNIDER,
AJ
[1]
This
is an application to review the award of the Second Respondent (“the
Commissioner”) made in an arbitration between
the Applicant
(“the Employee”) on the one hand and the Third Respondent
(“The Bank”) on the other hand.
The award is dated 10
November 2011 and the CCMA case number is GATW8883-11.
[1]
[2]
Briefly the facts of this matter are that:
2.1.
the employee was employed by the bank as a
sales consultant on 4 August 2003 and was later promoted to the
position of administration
controller;
2.2.
at
the time of her dismissal, on 18 July 2011, she was earning R9 500
per month;
[2]
2.3.
it was alleged on behalf of the bank that
on 31 August 2009, the employee, contrary to the Bank’s policy,
which is common
cause between the parties, made a loan, on behalf of
the Bank, to one Mabuti Simon Ndlovu (“Ndlovu”) in the
amount
of R25 000.00;
2.4.
the employer, having then made the loan to
Ndlovu arranged for R20 000 of the R25 000 loan to be paid into her
account;
2.5.
on the banks version a complaint was
subsequently made by Ndlovu that the employee, contrary to her
obligations in terms of the
loan made by Ndlovu to her, was not
making repayments in respect of the loan;
2.6.
this led to an investigation of the conduct
of the employee which investigation was conducted by employees of the
Bank including
a forensic inspector, one Riaan Strydom; and
2.7.
the
employee’s defence to the charge was that the money paid into
her account, which transaction was common cause, was not
in respect
of a loan
[3]
but was in respect
of a sale of land by Mr Aran Tebogo Leotlela
[4]
to Ndlovu.
[3]
A
central difficulty that I have with this matter is that the employee
does not articulate any grounds for review in her founding
affidavit.
[5]
The affidavit is a
pro-forma one. I repeat the portion of the affidavit under grounds
for review:
‘
I
am asking to be given a chance to review my case because I am not
satisfied about Commissioner’s ruling as I did not do
anything
wrong to my company, even the money that they say I borrowed from the
client is not true, my testimony is true, and also
client is my
witness as he did not open the case he said. The problem is that
somebody is making allegations about something I
didn’t do I am
asking for my job from my company or compensation, because I am
heartbroken and you know it is so very painful
to be accused about
something you didn’t do. I am pleading that this case of mine
to be looked – into or heard again
because there is something
wrong and fishing which I don’t know what and who is going to
help me please I am asking
the Labour court to help me in this
situation!!!’
[4]
The
one aspect, which I regard as being the key issue in this arbitration
is not addressed by the employee in her review application,
however,
she does allude to it in the aforesaid founding affidavit when she
says, under the heading “the arbitration proceedings”
[6]
that:
‘
Riaan
Strydom from foreinsic also fabricated his statement when he said
that the policeman which he attached the police stamp on
the
affidavit or Deed of Sale agreement he does not work at the police
station, but then who put that stamp on the affidavit that
was
produced before him as he managed to put those stamp of oath on my
affidavit is that my fault if the police officer made a
mistake?
Commissioner couldn’t answer this question but he went on and
found me guilty. He is not judging my case but judging
the SAPS
officer for making mistakes.’
[5]
I take this to mean that the employee is of
the view that the manner in which the Commissioner assessed the
affidavit/agreement
in respect of the sale of land somehow
constituted a ground for review.
[6]
In
my view, on the contrary, the Commissioner, with respect, produced an
excellent, well written and well reasoned award. Although
there are
other compelling findings against the employee, such as how the
matter came to the attention of the bank,
[7]
the Commissioner correctly determines
[8]
what the prime issue between the parties is, which he expresses by
saying “whether there was a
iusta
causa
”
for the transfer of the relevant amount. The Commissioner then deals
extensively with the evidence of a police woman, Captain
Lydia Tiny
Ditinti who testified in respect of the affidavit/agreement and gave
convincing evidence that it was a forgery.
[7]
On the basis of these findings, the
Commissioner came to a conclusion which clearly another Commissioner
could reasonably come to
that the employee had perpetrated the
misconduct that she was accused of and, accordingly, dismissed her
case.
[8]
The
principles surrounding the test for reviewability are now notoriously
well known and can be gleamed from
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others;
[9]
Herholdt v Nedbank Limited (
Congress
of South African Trade Unions as Amicus Curiae)
[10]
and
Goldfields
Mining (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and Others).
[11]
[9]
The
following is, with respect, a useful exposition of the test from the
judgment of Waglay JP in the
Kloof
decision:
[12]
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in
Sidumo
was at pains to state that arbitration awards made under the Labour
Relations Act (“the LRA”) continued to be determined
in
terms of section 145 of the LRA but that the constitutional standard
of reasonableness is “suffused” in the application
of
section 145 of the LRA. This implies that the application for review
sought on the grounds of misconduct, gross irregularity
in the
conduct of the arbitration proceedings, and/or excess of powers will
not lead automatically to setting aside of the award
if any of the
above grounds are found to be present. In other words, in the case
such as the present where a gross irregularity
in the proceedings is
alleged, enquiry is not confined to whether the arbitrator
misconceived the nature of the proceedings, but
extends to whether
the result was unreasonable, or put another way, whether the decision
that the arbitrator arrived at is one
that falls in a band of
decisions to which a reasonable decision maker could come on the
available material.’
[10]
This decision is one which manifestly falls
in a band of decisions to which a reasonable decision maker could
come to on the available
material.
[11]
In the circumstances, I make the following
order:
11.1.
The review application is dismissed;
11.2.
There is no order as to costs
___________________________
SNIDER, A J
Acting
Judge of the Labour Court
Appearances
For
the Applicant:
M
P Malesa of Kgatla Attorneys
For
the Third Respondent:
Arnold Nel of Faiza Viljoen and Associates, Cape Town
[1]
The award appears at page 11 of the record
.
[2]
Record page 12
at
para
6
.
[3]
Applicant’s translating founding affidavit page 626 o f the
record
.
[4]
Purported agreement of sale page 565 of the record
.
[5]
The founding affidavit commences at page 623 of the record and
carries on until page 628 of the record
.
[6]
Page 626 onto 627 of the record
.
[7]
Record page 22
at
para
62
.
[8]
Ibid
at
page
23
,
para 64
.
[9]
[2007] 12 BLLR 1097
(CC)
.
[10]
(2012) 33
ILJ
1789 (LAC)
.
[11]
(
2014
)
35
ILJ
943 (LAC)
at
para 14.
[12]
Kloof
(
supra
)
at para 14
.