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[2015] ZALCJHB 19
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SATAWU obo Mulaudzi v Commission for Conciliation, Mediation and Arbitration and Others (JR2071/13) [2015] ZALCJHB 19 (3 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no : JR 2071/13
DATE:
03 FEBRUARY 2015
Not
Reportable
In
the matter between:
SATAWU
obo RS
MULAUDZI
.................................................................
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
..........................................
First
Respondent
D
P
SEOPELA
...........................................................................
Second
Respondent
MULAUDZI
TRANSPORT SERVICES
...................................
Third
Respondent
Date
Heard: 19 December 2014
Date
Delivered: 03 February 2015
JUDGMENT
VAN
DER MERWE, AJ
Introduction
[1]
This is an unopposed review application in which the Applicant seeks
the review and setting aside of the First Respondent's
("the
arbitrator") arbitration award in terms of
Section 145
of the
Labour Relations Act 66 of 1995
, as amended. The Applicant further
seeks condonation for the late filing of the review application which
was filed approximately
6 weeks out of time.
[2]
The Applicant was employed by the Third Respondent as a bus driver.
[3]
The Applicant was subjected to a disciplinary hearing for misconduct
and dismissed on 28 December 2012.
[4]
The Applicant then referred the dispute to the CCMA, which was
arbitrated upon on 20 June 2013.
[5]
On 01 July 2013, the Second Respondent found that the Applicant’s
dismissal was both procedurally and substantively fair.
Condonation
[6]
The arbitration award was received by the Applicant's union from the
arbitrator on or about 1 July 2013.
[7]
On or about 8 July 2013, the Applicant's union contacted the
Applicant and informed the Applicant of the outcome.
[8]
After the Applicant consulted with his union, seemingly on 1 August
2013, the matter was referred to SATAWU's legal department
for
consideration. The date on which the matter was so referred is
not stated in the affidavits.
[9]
The 6 weeks within which the review application was to be filed
expired on 19 August 2013.
[10]
On 26 August 2013 SATAWU's legal department reverted to the
Applicant's union official and informed him, inter alia, that
due to
the complexity of the matter, the attorney of record was to be
approached for a legal opinion.
[11]
The Applicant’s attorney was instructed on 12 September 2014
and the founding affidavit in the review application was
signed on 30
September 2013. The review application was filed in the Labour Court
on 3 October 2013 i.e. more than 6 weeks late.
[12]
In
Melane
v Santam Insurance Co Ltd
[1]
Holmes JA explained the relevant principles applicable to an
Application for Condonation as follows: “the basic
principle
is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter
of fairness to both sides. Among the facts usually
relevant, is the degree of lateness, the explanation therefor, save
of course
that if there are no prospects of success there would be no
point in granting condonation.”
THE ARBITRATION
[13]
The arbitration was conducted on 20 June 2013 at the Thohoyandou
Labour Centre, Limpopo Province and the arbitrator found
the
dismissal of the Applicant both substantively and procedurally fair.
REVIEW
PROCEEDINGS
[14]
In the review papers the Applicant challenged the finding by the
arbitrator and alleged that he committed a gross irregularity,
misconduct in relation to his duties and/or his decision was not one
that a reasonable decision maker could have reached in that:
14.1
the arbitrator failed to apply his mind to the issues placed before
him having regard to his finding on the procedural aspect
in holding
that it was not contested and in finding that the procedure was fair
on the basis that an opportunity was given to cross-examine
and such
opportunity was not utilised;
14.2
the ticket numbering supported the Applicant’s case that
Ramsimu was the last person to board the bus at Khoroni bus
stop on 3
December 2012. Ramsimu was waiting at the same bus stop with
the other four passengers;
14.3
the arbitrator despite having noted that he was confronted with two
versions which were not corroborated, failed to apply
the rules of
evidence to come to a fair conclusion in cases where mutually
destructive versions are presented;
14.4
the arbitrator accepted Ramasimu's unconfirmed hearsay evidence; and
14.5
the arbitrator’s conclusions as set out in the award are not
supported by reasons and that demonstrates that his decision
is not
that of a reasonable decision maker.
THE COMMISSIONERS
FINDINGS
[15]
The arbitrator’s award dated 1 July 2013 is a document of some
8 pages. It contains a thorough summary of the
evidence and a
reasoned evaluation thereof.
[16]
The arbitrator demonstrated through the award that he was very much
alive to the issues before him and his conclusions were
supported by
the facts.
[17]
With regards the first charge relating to 3 December 2012 the
arbitrator found that it was
common cause that the
four tickets were issued at 18h21 the very same time upon which the
tag tickets were issued.
[18]
The arbitrator further recorded that
Ms Rama
simu
testified that she was the first person to board
the bus at Khoroni bus stop
, that the passengers in question
were already in the bus and that
these
passengers
boarded the bus at Thohoyandou bus
rank
. The Applicant’s evidence, however was that
the
passengers in question boarded the bus at Khoroni
and the
arbitrator was alive to the fact that he had two
conflicting
versions before
him.
[19]
The arbitrator then proceeded to apply the law of evidence and found
in favour of the Third Respondent on the first charge
on a balance of
probabilities.
[20]
With regards to the second charge relating to 18 December 2012, the
arbitrator recorded that it was
common cause that
a person was found on the bus without
a
bus
ticket.
The arbitrator was again faced with two
conflicting versions as to the explanation for this passenger being
without a ticket.
[21]
The arbitrator found that it was
the
responsibility of the driver to check if all passengers
were
in position of a valid bus ticket.
The
arbitrator then again proceeded to apply the law of evidence and
found in favour of the Third Respondent on the first charge
on a
balance of probabilities and specifically found that it
does
not make sense
that
the
i
nspector
would
fabricate
her evidence and
implicate the Applicant.
[22]
The arbitrator also applied his mind to the procedural challenge
presented by the Applicant as was
agreed by the
parties during the pre-arbitration meeting
and he concluded
that
the
A
pplicant was
indeed
afforded an opportunity to
cross-examine
the witness. The arbitrator finally came to the
conclusion that the
the dismissal of the Applicant
was procedurally fair.
[23]
I accordingly find no merit in the grounds of review. I also
find that the finding by the arbitrator is that of a reasonable
decision maker.
[24]
Given that
there are no prospects of success
in
the review application
there would be no point in
granting condonation.
Order
[25]
In the result, I make the following order:
25.1
The application for condonation is dismissed.
25.2
The Applicant's Review Application is dismissed.
25.3
There is no order as to costs.
G
van der Merwe
Acting
Judge of the Labour Court of South Africa
Appearances
:
For
the Applicant: Advocate PMW Botha
Instructed
by: MM Baloyi Attorneys
For
the Respondent: Unopposed
[1]
1962
(4) SA 532
(A)