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[2015] ZALCCT 66
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NEHAWU obo Lerumo v Venter NO and Others (C183/12) [2015] ZALCCT 66 (17 November 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
Of interest to
other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 183/12
In the
matter between:
NEHAWU obo LERUMO
Applicant
And
P M VENTER N.O.
First Respondent
GPSSBC
Second Respondent
DEPARTMENT OF MINERALS AND
ENERGY
Third Respondent
Heard
:
14 October 2015
Delivered
:
17 November 2015
Summary:
Review of pre-dismissal arbitration award (LRA s
188A).
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant,
[1]
Mr Charlie Lerumo, is an admitted advocate who was employed by the
Department of Minerals and Energy (the third respondent) as
an
assistant director: mineral law. The applicant and the Department
agreed that 11 allegations of misconduct against him should
be
considered by an arbitrator of the General Public Service Sectoral
Bargaining Council (the second respondent) in terms of section
188A
of the Labour Relations Act.
[2]
The second respondent, Adv P M Venter, was appointed as arbitrator.
He found that the applicant had committed serious misconduct.
He had
a dishonest and corrupt relationship with a Mr Mase of Sam Mase
Consulting, an entity that applied for prospecting rights
from the
Department. He benefited from the relationship. He did not show any
remorse. The arbitrator ruled that the applicant’s
services be
terminated; and he recommended that the Department pursue criminal
charges against him and Mase, and that his conduct
be reported to the
General Bar Council of South Africa and the Association of Advocates
for the Northern Cape.
[2]
The applicant seeks to have the award
reviewed and set aside.
Preliminary
issues
[3]
The Department sought condonation for the
late filing of its answering affidavit. I granted condonation on the
day of the hearing,
together with
ex
tempore
reasons.
[4]
The record was incomplete. The evidence of
some witnesses was not transcribed. On 8 May 2014 I issued the
following directive:
“
The
parties and their legal representatives are directed to meet in
Kimberley before 30 May 2014 to reconstruct the record. They
must
inform this court of the outcome (for attention of Steenkamp J) by no
later than 6 June 2014.”
That did
not happen due to the unavailability of the various parties, their
legal representatives and the arbitrator. On 23 June
2014 issued
another directive for them to convene on 26 June 2014. They did so.
On 8 July 2014 the arbitrator issued a “reconstruction
ruling”
stating that he was unable to reconstruct the missing parts of the
record.
On 14
August 2014 I issued a third directive in these terms:
“
1.
It appears from the ruling of the panellist, P M Venter, of 8 July
2014 under case number GPSSBC 1348-2011 that the record cannot
be
reconstructed.
2.
The parties are directed to indicate by no later than 29 August 2014
whether they will consent to the following order:
(a)
The award of 25 January 2012 is reviewed and set aside.
(b)
The pre-dismissal arbitration is referred back to the GPSSBC for an
arbitration de novo.
(c)
The question of the employee’s remuneration for the period from
25 January 2012 to the date of the determination of the
arbitration
is to be determined by the arbitrator.
3.
Should the parties not consent to such an order, the review
application will be set down on the opposed roll in the absence of
a
full record. Either party’s failure to consent to the proposed
order will be a relevant consideration in a costs order.”
[5]
The parties could not agree. The matter was
set down on the opposed motion roll. Mr
Lobi
argued that the award should be reviewed and remitted simply because
the full record could not be reconstructed. Mr
Coetzee
disagreed.
[6]
As the arbitrator pointed out in his
“reconstruction ruling”, the evidence of three witnesses
(out of seven) was not
transcribed. But, he says, “I have read
my award and my summary of their evidence seems to be accurate as far
as I can recall
the facts.” And indeed, neither legal
representative could point to any instances where the facts had not
been correctly
summarised. The award is a comprehensive one
comprising 26 typewritten pages and summarising the evidence of each
of the witnesses.
I was satisfied that I could, given that summary
and the transcript of the evidence of the other witnesses, decide
whether the
conclusion reached by the arbitrator fell within a band
of reasonable decisions.
The
background facts and the award
[7]
The Department led evidence on 11 charges
of misconduct. The arbitrator found the employee guilty on six and
not guilty on five
of those charges. The employee only challenges the
arbitrator’s findings in respect of those where he found that
the employee
did commit the misconduct complained of. I will deal
with each of those in turn.
Charge
1: allegation of racism
[8]
It was alleged that the employee
“badmouthed” his superior, Mr Pieter Swart – the
regional manager of the Northern
Cape – when he told Mr Mase
that Swart is a racist and arrogant towards black small-scale miners.
[9]
The arbitrator correctly found that Swart’s
own evidence relating to this incident was hearsay. So was that of
the deputy
director in the audit department, Mr Miyen. The evidence
of Mr Mase was therefore crucial. At the commencement of his evidence
he told the arbitrator that he did not intend to proceed with the
case against the applicant. However, he did depose to three
affidavits
and confirmed that he did so voluntarily and under oath.
The arbitrator therefore gave the applicant an opportunity to
cross-examine
him, but the applicant and his union representative
chose not to cross-examine him on crucial aspects. Mase’s
evidence on
affidavit was therefore largely unopposed.
[10]
The arbitrator found that Mase’s
evidence was clear and he explained by way of affidavit that the
employee had badmouthed
Mr Swart and that he had accused Swart of
racism. And the other witness, Ms Mzambo, had no knowledge of the
incidents; but she
was not present at all material times. The
arbitrator found the employee guilty on that charge.
Charge
4: accepting cash to influence processing of applications for
prospecting rights
[11]
It was alleged that the employee accepted
cash in the amount of R 6 000 for the purpose of inducing or
influencing the speedy processing
of applications for prospecting
rights submitted by Sam Mase Consulting. Mase’s evidence was
clear and uncontested. He admitted
giving the money to the employee,
who merely denied the allegation. He also admitted to having been
involved in an “unlawful
relationship” with the employee
by giving him cash in return for fast tracking applications for
prospecting permits.
The arbitrator found that the employee had
committed the misconduct.
Charge
6: conflict of interest
[12]
It was alleged that the employee committed
misconduct by acting in conflict of interest when he travelled to
Witbank with members
of Sam Mase Consulting to consult with Mr Dan
Ferreira, a geologist, concerning prospecting rights for Royal Chaka
Mining. Mr Mase’s
evidence in this regard was clear and
undisputed. The arbitrator found that it was abundantly clear that
the employee demonstrated
some interest in the matter and that he
acted in conflict with his official duties. He found him guilty on
charge 6.
Charges
8 and 9: disclosing legally privileged information
[13]
It was alleged that the employee disclosed
legally privileged information when he made available sketch plans of
Merero Mining to
Royal Chaka Mining for the application of
prospecting rights of two pieces of land, viz Lynedoch 432 farm and
Cowley 457 Farm.
[14]
The arbitrator found that the evidence of
Mr Miyen and the accompanying documents are clear. The sketch plans
for the farms were
identical and this was no coincidence. They were
clearly copied by Royal Chaka Mining and the only inference to draw
from the evidence
was that the employee assisted Royal Chaka Mining
in this regard. The arbitrator found him guilty on these two charges.
Charge
11: prejudicing the administration of the Department
[15]
It was alleged that the employee
intentionally prejudiced the administration or efficiency of the
Department when he processed applications
for prospecting rights of
Royal Chaka Mining by giving it preference over Merero Mining.
[16]
The arbitrator found in evidence that the
employee had travelled to Witbank and disclosed privilege information
to Royal Chaka Mining.
He was also instrumental in the drafting of
sketch plans for Royal Chaka Mining while Merero’s application
for prospecting
rights was pending. He clearly gave preference to
Royal Chaka and prejudiced the administration, discipline and
efficiency of the
Department in so doing.
The
sanction
[17]
The
arbitrator noted the Department’s argument that the trust
relationship had broken down irretrievably. The employee’s
conduct brought the name of the Department into disrepute. He noted
that racial harmony in the workplace must be of paramount importance
to employer and employees alike. Just as racist behaviour needs to be
rooted out, allowing employees to willingly accuse fellow
employees
of being racist must be addressed if those allegations are baseless
and made without reasonable cause. The arbitrator
referred to
SACWU
v NCP Chlorchem (Pty) Ltd
[3]
where
the Labour Court held that a black employee who, without
justification, accused a white colleague of being racist was found
to
have been no less guilty of racism than a person using a racist
expression. He also took into account that the employee did
not show
any remorse despite the evidence against him.
[18]
The arbitrator further took into account
that the trust relationship between the employee and the Department
was irreparably broken
as his conduct with regard to Mase amounted to
corruption. He was entrusted with the duties of processing
applications for prospecting
and mining rights, but he acted
dishonestly and abused his position within the department.
[19]
The employee presented no mitigating
factors despite being requested to do so. Neither did he submit
closing arguments. The arbitrator
nevertheless considered that he is
a first offender and that dismissal should normally be applied
progressively. On the other hand,
the employee had committed serious
misconduct. He had a dishonest and corrupt relationship with Mase and
he clearly benefited from
the relationship. “His action is an
exact example of the type of conduct that the public service should
have a zero tolerance
stance against. He misused his position and
favoured a certain entity in exchange for financial gain. He also
uttered racial remarks
towards the regional manager, a charge which
is also of a serious nature.” The arbitrator also considered
that the employee
is an admitted advocate. “This simply means
that he should act and behave like a fit and proper person to be
called an advocate.
He should also demonstrate a higher degree of
ethical behaviour as another employee [
sic
]
and has taken an oath in the High Court.”
[20]
Taking all these factors into account, the
arbitrator found that the employee’s services should be
terminated.
Review
grounds
[21]
The applicant did not clearly articulate
any review grounds in his founding and supplementary affidavits. He
alleged in broad terms
that the arbitrator’s determination and
assessment of the evidence was “grossly irregular”; that
he failed to
properly discharge his duties; and that he did not act
as a reasonable decision-maker. He also alleged that the arbitrator
exceeded
his powers in recommending that the Department pursue
criminal charges against him and Mase, and that his conduct be
reported to
the General Bar Council of South Africa and the
Association of Advocates for the Northern Cape.
[22]
The
applicant did not, in his supplementary affidavit, complain that the
absence of a full transcript deprived him of setting out
his review
grounds fully. That is a similar situation to the one that pertained
in the recent case of
Moyo
[4]
where the Court pointed out that the review application was dependent
on the record, but the applicant made no submissions with
regard to
the record. The Court held that the review application was defective
and unsubstantiated, but there was no good reason
to give the
applicant a further chance to rectify it. She dismissed the review
application for that reason, and the reason that
the applicant did
not set out any clear sustainable grounds of review in his
application.
[23]
In
his heads of argument – delivered after those of the Department
– Mr
Lobi
simply stated that “the applicant holds the view that his
dismissal was unjust and should be reversed”. It need hardly
be
stated that the applicant’s view in this regard is irrelevant
to the test for review. The test is, quite simply, that
set out in
Sidumo
[5]
and in
Herholdt
.
[6]
In short, was the arbitrator’s finding one that a reasonable
arbitrator could reach?
[24]
Mr
Lobi
addressed no other review grounds in his heads of argument, other
than the fact that the transcript is incomplete. That was not
pleaded
in the applicant’s supplementary affidavit. In oral argument Mr
Lobi
contended, at first, that the arbitrator had disregarded the evidence
of Ms Mzambo – a ground that was foreshadowed in the
applicant’s supplementary affidavit. After the Court had
pointed him to the relevant parts of the transcript in which her
evidence was recorded, the part of the award where the arbitrator
summarised it, and debated it with him, he abandoned that ground
of
review.
[25]
The rest of Mr
Lobi
’s
argument consisted, in essence, of re-arguing the merits of the
employee’s case. He could not point to any reviewable
irregularity in the conduct of the proceedings or in the conclusion
that the arbitrator reached, given the evidence before him.
Evaluation
/ Analysis
[26]
There is nothing unreasonable about the
arbitrator’s award. He carefully considered the evidence before
him. He reasonably
considered the evidence of Mr Mase, albeit on
affidavit. He gave the employee and his representative the
opportunity to cross-examine
Mase and the Department’s other
witnesses. There was a fair trial of the issues. He understood the
enquiry before him. He
reasonably concluded that the employee had
committed gross misconduct of a dishonest nature. He took into
account the relevant
mitigating and aggravating circumstances before
deciding on sanction. His conclusion was entirely reasonable. The
award is not
open to review.
Costs
[27]
The applicant has been unsuccessful. Both
parties asked for costs to follow the result. I see no reason in law
or fairness to differ
with them.
[28]
The applicant did not paginate and index
the court file in accordance with rule 22B and clause 11.5 of the
Practice Manual that
has been in existence since April 2013. Neither
did he deliver a practice note in accordance with clause 11.8 of the
Practice Manual.
His heads of argument were delivered late, and in
fact only after the Department had delivered its heads of argument,
despite the
fact that he is
dominus
litis.
He is an advocate of the High
Court and he is legally represented. If the applicant does not file a
practice note, clause 11.8.5
of the Practice Manual provides that the
respondent may do so and seek a punitive costs order
de
bonis propriis
against the applicant’s
attorneys. And with regard to pagination, indexing and binding of the
pleadings, clause 11.5.9 of
the Practice Manual provides:
“
Should
the applicant not have complied with these provisions this shall not
be a basis for any other party seeking postponement
of the matter,
and the presiding judge, on the day on which the matter is heard, may
make any order the judge deems appropriate
as to the conduct of the
matter, which may include any order as to costs, including depriving
applicant of any costs in the matter
or any order of costs
de
bonis propriis
.
[29]
I have considered ordering costs
de
bonis propriis
against the applicant’s
attorney for his failure to adhere to the provisions of the court
rules and the practice manual.
But as I have noted, the applicant is
an advocate of the High Court. He should also have ensured that his
legal representative
does the right thing. Insofar as his attorney
did not act on his instructions, I leave it to them to decide whether
Mr
Lobi
is
entitled to recover his full fee from the applicant; but I shall go
no further than to make a party and party costs order.
Order
The
application for review is dismissed with costs.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
L Lobi of Lulama Lobi Inc,
Kimberley
THIRD RESPONDENT:
A Coetzee
Instructed by the State
Attorney, Cape Town.
[1]
I refer to Mr Lerumo as “the applicant” or “the
employee”, although he was represented throughout by
his trade
union, NEHAWU. The union is cited as the applicant on behalf of Mr
Lerumo.
[2]
Act 66 of 1995 (the LRA).
[3]
[2007] ZALC 120.
[4]
Moyo v CCMA
[2015]
ZALCJHB 111 (26 March 2015) paras [26] – [27].
[5]
Sidumo v Rustenburg
Platinum Mines Ltd
[2007]
12 BLLR 1097 (CC).
[6]
Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA).