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[2014] ZALCJHB 208
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Molefe v Kaunda District Municipality and Others (JR1850/13) [2014] ZALCJHB 208 (11 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE
NO. JR 1850/13
In the matter between:
MANKELE B.MOLEFE
Applicant
and
Dr.
KENNETH KAUNDA DISTRICT
MUNICIPALITY First
Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
LINDOKUHLE
DLAMINI, N.O.
Third
Respondent
Heard:
29
April 2014
Delivered:
11
June 2014
Summary:
JUDGEMENT
SHAI
A.J.
Introduction
[1] This is an
application in terms of
Section 145
of the
Labour Relations Act no.66
of 1995
, to review and set aside the commissioner’s ruling
dated 05 August 2013 under case no. NWD 071308 and secondly, that the
said condonation ruling be substituted with an order to the effect
that the 1
st
Respondent is in breach of Clause 6.3. of the
South African Local Government Bargaining Council’s Collective
Agreement Disciplinary
Code and Procedure and be precluded from
proceeding with the intended disciplinary hearing against the
applicant.
[2]
The application for review is unopposed.
The
facts
[3]
The Applicant is employed as the 1
st
Respondent’s
Legal Advisor since 01 September 2007.
[4]
The Applicant was formally charged with misconduct in the terms of
notice to attend a disciplinary hearing dated 23 May 2013,
which was
served on the applicant on 14 June.
[5]
The applicant was in essence charged of fraud and breach of duty as
more fully captured at page 20-21 of the paginated index.
[7]
Following the application for postponement of the disciplinary
hearing by applicant, the First Respondent applied for the
condonation
to proceed with the disciplinary hearing, which
application was filed on the 2
nd
of July 2013.
[8]
The 3
rd
Respondent was appointed to determine the said application for
condonation, a ruling of which was issued on the 5
th
August 2013, and it is the subject of this review application.
Grounds
of Review
[9]
The grounds of review are not clearly stated, mainly couched in
argument form and take the form of appeal in that the
applicant seems
to challenge the correctness of the decision of the commissioner. I
will therefore summarise them as follows:
The degree of
lateness.
9.1.
The commissioner in his ruling either erred or neglected to
diligently apply himself in analysing the facts
before him. MM5 and
MM6 are very explicit. Their dates are 28 February 2012 and not 28
February 2013. The alleged misconduct could
not have transpired on 28
February 2013. Had he carefully analysed these documents he would in
no way have arrived at a time frame
of (10) days after the prescribed
90 day period.
[10]
Explanation for the lateness or the
failure to comply with the time frame.
10.1. 1
st
Respondent alleges that it had to conduct further investigation into
other charges against applicant, which is a confirmation
that it was aware of the misconduct around 28 August, a point the
commissioner should have easily picked up.
10.2. The appointment of
the new manager has got no bearing on the knowledge or awareness of
the alleged misconduct.
10.3.
The commissioner ignored the fact that the 1
st
respondent was assisted by a firm of attorneys alleging speciality in
labour matters.
Prospect
of success
[11]
The respondent had no prospects of success in that:
11.1
The respondent agrees that during the pre-arb in August 2012 the said
document was shared with them.
11.2
The respondent accedes that indeed they were at all times aware of
the alleged entry.
11.3
The charges are faulty, badly drafted and do not reflect the true
facts of the alleged case.
11.4
The applicant’s defence is stronger regarding the fact that he
acted and the respondent endorsed
that as per annexure “D”
even though the latter refused to issue an acting letter and payment.
11.5
The payment of an official on sick leave alleging that she performed
the work during such a period
does not have substance and is not
reasonable.
11.6
The entry alleged was made on the copy and not on the
original
attendance register and the applicant did attend such meeting in his
capacity as both Acting Director and Manager Legal
and the respondent
did not refute this fact.
Prejudice
to parties and the importance of the case
[12]
The main complaint herein is that the respondent would not suffer
prejudice if the condonation is not granted in that it has
been aware
of the misconduct for the past +-10 months. On the other hand the
applicant submits that it will suffer most for non-consideration
of
his acting and payment for the official who never acted during that
month.
Legal
Exposition
[13]
The test for review of arbitration awards has been laid out in the
well-known case of
Sidumo & another
v Rustenburg Platinum Mines LTD & others
[2007] 12 BLLR 1097
(LC)
. In this case the court held that
the provisions of
section 145
of the
Labour Relations Act 66 of
1995
(“
the Act”
)
were suffused by the Constitutional Standard of reasonableness. This
is arrived at by answering the question which has formulated
in
Batu
Star Fishing (Pty)Ltd v Minister of Enviromental Affairs &
Tourism & others
2004 (7) BLLR 687
(CC)
as
follows:
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach
?
[14]
To succeed in the application, the applicant must therefore satisfy
this court that the Third Respondent’s decision is
one that a
reasonable arbitrator could not have reached.
Degree
of lateness
[15]
In the award the commissioner accepted that the application was late
by 10 days. This time frame was calculated from the date
on which the
First Respondent became aware of the intended usage of the documents
by the applicant. The First Respondent was so
informed by its legal
representative who represented it at the arbitration hearing held on
1
st
March 2013. At this hearing parties exchanged documents and amongst
the documents applicant exchanged with the respondent were
the
documents in issue viz a copy of an attendance register of the
special meeting on 28th February 2012 marked ‘Annexure
MM5’
and contained at page 35 of paginated index being a copy of original
attendance register as both Acting Director of
Corporate and as
Manager Legal Services, and a copy of the same document marked
‘Annexure MM6’ appearing at page 36-37
in which the
applicant attended as Manager Legal Services only.
[16]
The legal representative for the respondent wrote a letter on the 15
March 2013 informing the former of the intended usage
of the document
at the arbitration hearing. That is the date on which 1
st
Respondent contended that it became aware of the fraud and
falsification of the documents. On the other hand the applicant
contended
that since the documents were dated the 28 August 2012, and
not 28 August 2013, the misconduct could not have been committed on
28 February 2013, hence the period of delay cannot be 10 days after
the expiry of the 90 days.
[17]
My view is that the alteration may have been effected on the 28
February 2012, but the 90 days period is calculated from the
date on
which the employer became aware of the misconduct, in other words
when the applicant submitted them to the arbitrator and
indicated
that he intended to use them to prove his claim. Further that, the
fact that the applicant exchanged documents with the
legal
representative earlier does not mean that the employer was aware of
the misconduct. However, once the applicant indicated
to the 1
st
Respondent’s legal representative that he wants to use the
documents for the specific purpose and the latter inform the 1
st
Respondent, this constitute the date on which the 1
st
Respondent became aware of the commission of the misconduct. I
therefore do not find any fault with the commissioner’s
reasoning
when she accepted that the period of delay was 10 days from
the lapse of the 90 day.
Explanation
for lateness or failure to comply with the time frame
[18]
In the application for condonation the 1
st
Respondent
through Mrs.Matlakala Irene Matthews explained that the reason for
delay was because at the time the legal representative
made the 1
st
Respondent aware of the misconduct she had just been appointed as
municipal manager and therefore was in a process of takeover
and had
to attend to the investigation of the dispute to satisfy herself that
indeed a misconduct was committed. The Commissioner
considered this
matter and decided that although the reason may not be sufficient on
its own, together with other factors constituted
a good cause for
granting condonation. This is in line with our jurisprudence on
application for condonation. The factors that
need to be taken into
account when determining whether there is sufficient cause to grant
condonation were set out in
Melane v Santam Insurance Co Ltd
1962 (4) SA
at
532
and involves weighing
together the following factors; which are interrelated : degree of
lateness, explanation thereof, the prospects
of success and the
importance of the case. The court went on and said that although
these factors are interrelated, are not individually
decisive, if
there are no prospects of success there would be no point in granting
condonation. Further that, in the case
of
Kritzinger v
CCMA and Others (JR 2254/05
(2007) ZALC 85
(November 2007)
Molahlehi J said the following in relation to the test as initiated
in
Melane v Santam Insurance Co. Ltd.
1962 (4) SA A532:
“
These
factors are not individually decisive but are interrelated and must
be weighed against each other. In weighing the factors
for instance,
a good explanation for the delay in lateness may assist the
application in compensation for weak prospects of success.
Similarly
strong prospects of success may compensate for the inadequate
explanation and the long delays”.
I
therefore find no fault with the commissioner’s reasoning on
this point
.
Prospect
of success and bonafide defence in the main case
[19]
In the main the applicant contended that he has better prospect of
success than respondent. The commissioner dealt with the
matter as
follows:
“
This
brings (‘me’) to the most important aspect of any
condonation , the prospect of success, (merits of the case).
This is
an important aspect of condonation. Basson J held that ‘of all
the considerations or factors, it is the prospect
of success which is
most important.’ In terms of this case, there are interesting
facts that lays the basis for more to grant
condonation. It is not
disputed that on the 1
st
March 2013, the Respondent did produce a document that raised an
alarm bell with the Applicant. It is on the basis of this document
that the Applicant seeks to bring charges of misconduct against the
Respondent. To prove that the Respondent committed misconduct
is a
different matter altogether. Consequently, it must be dealt with by
the appropriate person designated as such. In the main,
the
Respondent seeks to rely on the witch hunt theory to show that the
applicant has no case. He does not deal with the core issue
here,
whether he altered the attendance register as alleged by the
applicant. This is glaring omission which must be properly
investigated and ventilated before an impartial tribal to determine
whether indeed he is guilty or not.”
[20]
It is clear to me that the commissioner considered the prospect of
success for both parties and concluded that because there
is prima
facie evidence of the alteration of the documents, which the
applicant does not deny he felt that both parties needed
to be given
opportunity to explain the alteration hence he found that the
respondent has prospect of success. This does not necessarily
mean
that the latter will in the end win but that there is that prospect.
I therefore found no fault with this reasoning.
Prejudice
to parties and the importance of the case
[21]
In the main the applicant argues that he will suffer more prejudice
than the 1
st
Respondent that it was comfortable with the matter and knew the
matter for about10 months, while he acting allowance remains unpaid.
[22]
The applicant does not show in what respect the commissioner has
dealt with the matter in unreasonable manner. Nevertheless,
the
commissioner dealt with this matter as follows:
“
This
matter is fairly new and all the witnesses are still accessible to
all parties. Consequently, there would be no prejudice suffered
by
either party when the disciplinary hearing is held. It would create a
wrong perception to the rest of the employees in the applicant’s
workplace if such serious allegations are not properly investigated.”
[23]
I am satisfied that the commissioner considered all the factors
before him and came to a conclusion as aforesaid. I therefore
do not
find anything wrong with the reasoning of the commissioner.
[24]
Has the commissioner arrived at a decision a reasonable commissioner
could not have reached? I do not think so.
[25]
In the premise I make the following order:
(a)
The application for the review and setting
aside of the condonation ruling made by the 3
rd
Respondent dated 5
th
August 2013 under case number
NWD
0713-08
is dismissed.
(b) No
order as to cost is made.
______________
Shai,
AJ
Acting
Judge of the Labour Court
Appearances:
For
the Applicants:
For
the Respondent: