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[2015] ZALCCT 5
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Ndyalvan v Educational Labour Relations Council and Others (C656/2011) [2015] ZALCCT 5 (23 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C656/2011
DATE:
23 JANUARY 2015
Not
Reportable
In
the matter between:
RODNEY
NDYALVAN
...........................................................................................
Applicant
And
EDUCATION
LABOUR RELATIONS COUNCIL
................................
First
Respondent
HILARY
MOFSOWITZ
N.O
.................................................................
Second
Respondent
MINISTER
FOR EDUCATION: WESTERN CAPE
............................
Third
Respondent
Date
heard: 6 August 2014
Delivered:
23 January 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award under
case number PSES 206-10/11WC. The second respondent (the
arbitrator)
found that the applicant’s dismissal was procedurally and
substantively fair.
[2]
The applicant was employed by the third respondent as an educator at
Masiphumele High School. He was subjected to an internal
disciplinary
hearing where he was found guilty of the following charges:
“
2.1
misconduct as defined in section 17 (1) (b) of the Employment of
Educators Act 76 of 1998 (the Educators Act) in that on or
about 18
June 2009, he committed an act of sexual assault on Vuyokazi Ntsimbi,
a grade 11 learner at Masiphumelele High School,
by touching her
breast and thighs; and
2.2
(in the alternative) that he was guilty of misconduct as defined in
section 18 (1) (q) of the educators act in that on or about
18 June
2009, while on duty, he conducted himself in an improper, disgraceful
unacceptable manner towards Vuyokazi Ntsimbi, a grade
11 learner at
Masiphumelele High School, by touching her breast and thighs.”
[3]
The applicant was dismissed and referred a dispute to the first
respondent. The award is dated 6 of July 2011.The third respondent
(the MEC) has applied for condonation for the late filing of the
answering affidavit, which was filed some three months and 12
days
late. Given the nature of this matter, I have decided to exercise my
discretion to grant condonation.
[4]
The applicant submits that the second respondent (the arbitrator)
committed a:
4.1
“latent gross misconduct in the arbitration proceedings by
rejecting undisputed or uncontested evidence of the witnesses
who
testified on behalf of the applicant without giving a reason for
doing so.
4.2
“the second respondent relied solely on the testimony of
Ntsimbi, her demeanour and credibility notwithstanding
that
throughout the proceedings it was abundantly clear that her testimony
was glaringly contradictory, improbable and based on
fabricated
evidence. Therefore the second respondent has failed to resolve
factual dispute (sic) through a proper assessment of
the evidence
before her where she was confronted with two irreconcilable
versions.”
4.3
“The evidence of the witnesses who came to testify in her
favour should not have been treated as evidence because these
witnesses were repeating what Ntsimbi narrated to them. Therefore,
the source of such evidence is Ntsimbi herself. Contrary to
what
these witnesses were meant to achieve, which is to support the case
of Ntsimbi, they gave contradictory testimonies which
could have been
rejected and as such evidence amount to heresay and it is a
repetition of previous inconsistent statement.”
[5]
Further issues raised by the applicant in his papers are that an
inspection in loco was conducted after the conclusion of the
arbitration hearing, which he alleges constituted a gross
irregularity. In the supplementary affidavit filed of record, an
example of the kind of contradictions pointed to by the applicant in
his supplementary affidavit is contained in paragraph 14 of
it:
“
contrary
to the testimony of Ms Volontiya, Ms Ntsimbi testified that the
applicant touched her and also pulled her (transcription:p21
line
22). Ms Zanele Volontiya on the other hand testified that she never
noticed tearing off of Ms Ntsimbi’s clothes (transcription:
P
49 line 9). The applicants representative put it to Ms Volontiya that
if Ms Ntsimbi was telling the truth her buttons would have
been torn
off or her shirt with been torn apart. “
[6]
Another example raised by the applicant is that he testified at the
arbitration that he at no stage left the school premises
even during
his lunch break and that this piece of testimony which is very
important to his case was never disputed or challenged,
and there was
no evidence adduced to prove that the applicant left school premises
during his lunch. However, it was precisely
the evidence of the
learner that he had sent her to his home to fetch his lunch box
during that period and followed her there.
Further issues highlighted
by the applicants was the way in which the learner re-called the
layout and details of the applicant’s
home, including the
colour of buttons on the remote to open the gate. One example that is
contained in the supplementary affidavit
is as follows: “Ms
Ntsimbi alleged that there is a space between the fridge and the
cupboard. The applicant disputed these
averments and stated that the
setup in his home has been there for a period of more than five years
between the cupboard and the
fridge. There is no gap that can even
fit a child.”
[7]
I note that in the presiding officers report of the disciplinary
hearing contained in the record of the arbitration proceedings,
the
applicant’s case is recorded as being that the allegations were
part of the conspiracy against him and that the principal
of the
school was the main cause of this. He also hinted that due to the
fact that he is active in the community and involved in
various
school projects that some educators in line with the principal may be
conspiring against him.
[8]
The arbitrator also records in her award that: “Ntsimbi
testified during the internal disciplinary proceedings. A visit
to
applicant’s home was conducted. It was the Department’s
evidence that applicant had changed certain features of
his home in
order to create the impression that Ntsimbi had never been to his
home. The door handle was changed, the position of
the intercom, and
the cupboards in the kitchen were changed. It was a different remote
the one applicant provided on the day of
the incident.”
[9]
In her analysis of the evidence, the arbitrator found as follows:
“
On
weighing up the different versions as well as the credibility of
witnesses, I find the Department’s evidence more credible.
Applicant
argued that there was a conspiracy theory against him arising from
certain tensions with the school principal and conflict
with members
in the community. I have not found sufficient evidence to support
this conclusion. While I have accepted that there
was “bad
blood” between applicant and the principal (and maybe within
the community as well), there was insufficient
evidence to support
the conclusion that the principal and community fabricated the
allegations against applicant. I find it highly
improbable that a
learner would be used as a setup, under such circumstances.
Ntsimbi
presented as a credible and consistent witness at arbitration and
during the inspection in loco. I have not found any motive
for her to
fabricate the version of sexual assault or improper conduct. While
there may have been some discrepancies in Ntsimbi’s
account of
applicant’s home, these were not sufficiently substantial to
sway the balance in applicant’s favour. Ntsimbi
presented in a
confident and clear manner, especially considering that she is a
young person. She was not easily intimidated and
stood her ground,
despite vigorous questioning and cross examination. There was no
evidence that Ntsimbi had reason to discredit
applicant. Even if
Ntsimbi did not recall minor details, her overall demeanour tilted
the balance in her favour. It is important
that Ntsimbi knew that
there was a dog, knew about the remote and the intercom .…
I
have accepted that applicant touched her breasts and thighs and asked
her to touch his erected penis. Ntsimbi pushed applicant
(this is
possible as they are of a similar size and height) and applicant
opened the gate. I have noted the disputed evidence regarding
the
position of the intercom but do not regard this to have a material
bearing on the substance of the matter. Ntsimbi’s
overall
evidence supports the conclusion that she had been in applicant’s
home. Ntsimbi could only have known that the front
door was kept open
an account of applicant telling her. It is unreasonable to conclude
that she knew the details of the house from
a third party. The
Department’s representative (who attended both
in loco
inspections) indicated that the position of the intercom was moved.”
[10] I have
stated that this application was opposed. However, and for reasons
which are difficult to fathom, the deponent to the
answering
affidavit, the Assistant Director: Labour relations in the Western
Cape Education Department who states that he is duly
authorised to
oppose the application and to make the affidavit on behalf of the
third respondent, states as follows:
“
as
regards the main relief sought by the applicant, namely that the
arbitration award be reviewed and set aside, I am advised that
the
applicant has reasonable prospects of success as is clearly apparent
from the arbitration award, the WCED’s success at
the
arbitration hearing was largely based on the strength of the evidence
presented there. However, it appears that there are some
deficiencies
in Mofsowitz’s arbitration award, as alluded to by the
applicant’s grounds of review. Amongst others,
that Mofsowitz
rejected or ignored the testimonies of Ndyalvan’s witnesses
without providing reasons therfor. In light of
the foregoing, the
Minister does not oppose the main relief sought by the applicant.
Notwithstanding
the above, it is however respectfully submitted that the applicant
not to be reinstated as an educator in the employ
of the WCED….”
[11] The deponent
goes on to suggest however, that given the circumstances of the
dismissal, the applicant no longer enjoys the
trust of his employer
and should be granted some other relief in the form of compensation
as prescribed by the LRA. The legal advice
apparently rendered to the
third respondent appears to have been deficient to say the least.
There is no confirmatory affidavit
by the Minister, the third
respondent.
[12] The job of
this court is to decide whether there are grounds to set aside a
binding arbitration award or not. I do note that
Mr Coetzee for the
third respondent referred to the “proposal” contained in
the answering affidavit as “far too
generous” and one
which cannot be sustained. Given that the so-called ‘proposal’
contained in the answering affidavit
was couched as a legal
submission based on advice received, it does not disturb this court’s
duty to consider the review
application on its merits and decide a
question of law as to whether the award stands to be set aside.
[12] The evidence
given by applicant’s witnesses at the arbitration is in fact
summarised in the award by the arbitrator as
follows:
“
Applicant’s
neighbour confirmed the colour of the remote, the layout of the
kitchen and the fierce nature of the dog. Applicant’s
colleague
confirmed the colour and details of the gate remote.
Sibusiso
Ngwane installed the automation system of the gate. The remote was a
blue colour with four buttons and the intercom was
installed under
the electric box.
Applicant’s
wife confirmed applicant’s evidence. Members of the community
visit their house regularly and may have given
Ntsimbi details of the
house.”
[13] The
arbitrator then considered the credibility of the witnesses on both
sides, as referred to above, and found those who gave
evidence for
the Department more credible. There was no need for the arbitrator to
detail her findings in this regard. In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[1]
, the court per Waglay JP summarized the questions a reviewing court
must ask in the matter such as this:
“
The
questions to ask are these: (i) In terms of his or her duty to deal
with the matter with the minimum of legal formalities, did
the
process that the arbitrator employ give the parties a full
opportunity to have their say in respect of the dispute? (ii) Did
the
arbitrator identify the dispute he or she was required to arbitrate?
(This may in certain cases only become clear after both
parties have
led their evidence.) (iii) Did the arbitrator understand the nature
of the dispute he or she was required to arbitrate?
(iv) Did he or
she deal with the substantial merits of the dispute? (v) Is the
arbitrator's decision one that another decision
maker could
reasonably have arrived at based on the evidence?”
[14] On a reading
of the record in this matter, and of the award, the answers to the
questions contained in the quotation above
are in the affirmative. I
do not find that any material evidence was ignored by the arbitrator.
But even had that been the case,
the law as set out in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[2]
applies, i.e. that “Material errors of fact, as well as the
weight and relevance to be attached to particular facts, are
not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is to render
the outcome
unreasonable.” On a consideration of the award and the record,
the arbitrator’s award is well within the
bounds of
reasonableness.
[14] In all these
circumstances I find that the Award in question is not susceptible to
review. Given the way in which respondents
have dealt with this
matter including the late filing of papers, I do not consider it
appropriate for costs to follow the result.
[15] In the
circumstances I make the following order:
Order
1.
The review application is dismissed.
H.
Rabkin-Naicker
Judge
of the Labour Court
Applicant:
Potelwa Attorney
Second
&Third Respondents: Adv. A. Coetzee instructed by the State
Attorney
[1]
(2014) 35 ILJ 943 (LAC)
[2]
(2013) 34 ILJ 2795 (SCA) at paragraph 25