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[2017] ZALCJHB 222
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Maizey (Pty) Ltd v Mafa and Others (JR792/15) [2017] ZALCJHB 222 (8 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No. JR 792/15
In
the matter between:
MAIZEY
(PTY)
LTD
Applicant
and
TSHEPO
NORMAN
MAFA
First
Respondent
TEBOGO
SHADWICK MAFUJANE
N.O
Second
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Third
Respondent
Date
heard : 25 May 2017
Date
delivered : 8 June 2017
Summary:
Review application. Mere averments that the arbitrator failed to
apply his mind do not establish grounds to render the
award
reviewable. Application dismissed.
JUDGMENT
BALOYI
AJ
Introduction
[1]
The Applicant is seeking review and set aside of the arbitration
award issued by the Second Respondent. In terms of the award
a
finding that the dismissal of the First Respondent was substantively
unfair is made. The First Respondent was as result awarded
compensation equivalent to 10 months’ remuneration totalling
R95 040-00. The First Respondent was dismissed for misconduct.
The underlying issue being that he intimidated his subordinate by
threatening to kill him for refusing to make a false statement
about
a colleague. The allegations were denied and the First Respondent
opposed the application.
Factual
background
[2]
The Applicant dismissed the First Respondent on 20 October 2014. At
the time of his dismissal he was holding a position of supervisor.
The Applicant’s case was basically that the First Respondent
attempted to orchestrate the dismissal of a fellow supervisor,
Paul
Thithi. The Applicant’s witnesses were Gerald Karl Pieterse who
investigated the case against the First Respondent and
Thomas Matome
Mohale who was the First Respondent’s surbordinate. The
Applicant approached Mohale and asked him to make a
false statement
that Thithi had sexually harassed a female employee, Danisile
Nompumelelo Mbele. The Applicant believed that the
First Respondent
concocted the story in order to get Thithi dismissed. One of the two
supervisors, either the First Respondent
or Thithi was likely to be
retrenched due to the restructuring of Applicant’s operations.
The First Respondent stood to gain
should the Applicant dismiss
Thithi as the need for retrenchment would vanish.
[3]
It came to record that Mohale, the threatened employee at some stage
had an intimate relationship with Mbele, (the sexually
harassment
complainant). Mbele was at the time of the incident a casual employee
whose employment was managed by the labour broker.
The First
Respondent heard about the sexual harassment from Mohale and later
Mbele confirmed by Mbele. This was after the expiry
of Mbele’s
fixed term contract. Mbele was encouraged by the First Respondent to
report the matter. The First Respondent also
learnt from Mohale that
Mbele’s contract was not renewed because she refused to sleep
with Thithi. The First Respondent further
verified this allegation
with Elias Kgantsi Mogoai, the Shopsteward who confirmed having heard
about it from Mohale. Mohale testified
in support of the Applicant’s
case, he denied any knowledge about the sexual harassment and that he
told the First Respondent
and Mogoai about it. He only knew about the
sexual harassment allegations when the First Respondent forced him to
make a statement.
[4]
The First Respondent denied threatening Mohale with death. He called
Mogoai and Mbele to testify in support of his case. Mogoai’s
version revealed that Mohale told him about the sexual harassment and
later checked it with Mbele who confirmed that it had indeed
happened. He advised her to report it to the management but was
reluctant to do so for fear of losing her job. Mbele in her testimony
confirmed the sexual harassment and that Mohale knew about it. The
First Respondent also advised her to report it even after she
was no
longer in the Applicant’s employment.
[5]
The
arbitrator found the restructuring and the purported competition
between the First Respondent and Thithi for a position as not
supported by evidence and uncorroborated. He found Pieterse’s
version as far-fetched regarding the First Respondent’s
motives
to get Thithi dismissed. Mohale’s version was found to be not
credible as was not supported by evidence. He went
on to accept
evidence tendered in support of the First Respondent’s case and
referred to
Stellenbosch
Farmer’s
Winery Group and Another v Martell Cie and Others
[1]
regarding the parties’ versions on intimidation which he found
mutual destructive.
[6]
The Applicant’s attack to the award is based on the Second
Respondent’s failure to apply his mind. Firstly, to the
fact
that the sexual harassment was reported some six to eight months
after it had happened. Secondly that there was only one supervisor
position to be occupied by either the First Respondent or Thithi
after restructuring. Thirdly he misapplied the rules of evidence
regarding the statements made by Mohale. Lastly that he did not give
reasons for his finding that the sexual harassment did take
place.
The
arguments
[7]
Mr Berry for the Applicant pointed that the Second Respondent’s
determination on whether sexual harassment took place
demonstrated
his failure to apply his mind. The evidence tendered for the
Applicant was clear to the effect that the First Respondent
plotted
to have Thithi dismissed. Mr Berry attempted to rely on other issues
which were neither part of the record nor were ever
pleaded, that is
bias, sexual harassment not being reported to the police as well as
Mbele being part of the plot to get rid of
Thithi.
[8]
As placed by Mr Makka for the First Respondent what the Applicant
pleaded happened to be an expression of dissatisfaction about
the
outcome of arbitration proceedings. Such complaints do not establish
the grounds calling for review of the Second Respondent’s
award. Mbele whom it was alleged that her sexual harassment was
fabrication, testified in confirmation of such incident and her
evidence was never challenged. She also gave reason for not reporting
the incident soon after it had happened and that remained
unchallenged. Although the First Respondent was represented on
pro
bono
basis the First Respondent sought a cost order against the
Applicant for application being vexatious and frivolous.
Evaluation
[9]
The Applicant’s grounds are seemingly rested on the First
Respondent’s failure to apply his mind. This may
authoritatively
be classified under gross irregularity. What was
required from the Second Respondent given the facts of this matter
was to assess
which of the parties’ version was more probable
squarely based on facts placed before him coupled with application of
rules
of evidence. I find it not surprising that the Applicant solely
settled with the Second Respondent’s failure to apply his
mind
to the issues brought before him. The Court has on many occasions
cautioned about attempts to secure a review on advancement
of what
may look like grounds of appeal. In
Lekota
v First National Bank of South Africa Ltd
[2]
,
the Court per Basson J held as follows:
“
16 I pause here to
state the law in regard to the review of arbitration awards. It is
not the function of the reviewing court when
reviewing an arbitration
award in terms of section 145 of the Act to decide whether the
commissioner acted correctly or (from the
applicant’s point of
view) whether the decision by the commissioner was wrong. The
defects that have to be shown in
terms of section 145(2) of the Act
(discussed above) is that either the commissioner (1) committed
misconduct in relation to the
duties of the commissioner as an
arbitrator (this clearly would require a
mala fide
act on the
part of the commissioner); (2) committed irregularity in the conduct
of the arbitration proceedings (this clearly has
to do with the
conduct of the arbitration proceedings in terms of which a gross
irregularity occurs); and (3) that the commissioner
exceeded his or
her powers.”
[10]
It is worth stating that the position has not changed in the life
post the
Sidumo
[3]
judgment. The expansion of the grounds go further to reasonableness.
In
Super
Group Auto Parts t/a as Auto Zone v Hlongwane and Others
[4]
the Court had this to say per Ngalwana J:
“
10 In my
respectful view the “constitutional standard” now
propounded by the Constitutional Court in
Sidumo
bears a
striking resemblance to the test usually applied in applications for
leave to appeal, the only difference being the substitution
of “a
reasonable decision-maker” for the higher court or another
court. The danger is thus the blurring of the
line between an
appeal on the merits, on the one hand, and a review based on the
rationality and justifiability of the decision
when regard is had to
the evidence advanced on the other. It is hoped that the
reasonableness standard now introduced by
the constitutional court
will in future be tightened to ensure there is no confusion as
regards the extent to which reasonableness
of the commissioner’s
decision may be tested.”
[11]
The upshot of this is that mere complaints that the arbitrator did
not decide the matter as desired by the party bringing review
application cannot be sufficient to render the award reviewable. It
cannot be argued that the Court is vested with a duty to evaluate
the
merits of the dispute placed as before the Second Respondent. It is
therefore imperative to look at what seems to be the cause
of the
dispute,that is sexual harassment
[5]
.
The Applicant viewed this as fabrication by the First Respondent
hence he was charged and dismissed under the circumstances. Pieterse
relied on what Mohale told him, that is, sexual harassment was in
fact a subject matter of intimidation leading to Mohale’s
refusal to make a false statement about Thithi. He also admitted that
Mbele did report the sexual harassment to the Applicant though
belated. The First Respondent brought Mogoai and Mbele to support his
case that sexual harassment did occur.
[12]
Assuming it was accepted that the First Respondent had a motive
against Thithi based on Pieterse’s allegations, the Applicant
faced a steep challenge to rebut evidence that the sexual harassment
indeed took place and deserved reporting. The insurmountable
difficulty with the Applicant’s case is that Mogoai had also
independently advised Mbele to report the sexual harassment
case to
the Applicant long before the First Respondent became aware of it.
His evidence remained unchallenged. The Second Respondent
cannot be
faulted for finding no reason to suggest that sexual harassment was
the First Respondent’s fabrication. Mr Berry
also conceded that
the record does not show that Pieterse in his investigations managed
to source out evidence of the First Respondent’s
motive to
escape retrenchment at Thithi’s expense. The Second
Respondent’s decision to reject Mohale’s evidence
and the
reasons provided for such rejection is the one that a reasonable
decision maker could reach. The application under these
circumstances
stands to fail.
[13]
The manner in which litigation was conducted by the Applicant in this
application, is indicative of the Applicant’s knowledge
from
day one or at least after transcription of the record that it had no
prospects of successful prosecution of the review application.
Mr
Berry in his arguments tried all means to distance himself from the
pleadings and the record. He instead narrated outside issues
as
pointed above and this Court is disinclined to rule on them. His
submissions were largely not based on what was before the Second
Respondent. What can be drawn from the Applicant’s case is
unhappiness with the award. No sustainable ground has been put
to the
fore. It is now established that there is no bar to the First
Respondent’s asking for costs even when represented
on
pro
bono
basis. In
Zeman
v Quickelberge and Another
[6]
the Court held as follows on this aspect:
“
77
In my view, access to justice to indigent clients should be
encouraged, especially in a court of equity such as this one. Should
a successful pro bono litigant be awarded costs, the unsuccessful
party is no worse off than would otherwise be the case. The obverse
is also true: A pro bono litigant still runs the risk of an adverse
costs order against
him or her. The knowledge that a
losing party - usually the employer - would never run the risk of an
adverse costs order, would
have a chilling effect on the willingness
of legal practitioners to provide their services pro bono.”
[14]
In all fairness, I do not find any reason why this matter should not
be determined alongside this principle. Under these circumstances
no
good reasons exist as to why the Applicant should not pay the costs.
Order
[15]
The following order is therefore made;
1. The review application
is dismissed with costs.
_____________________
M.
Baloyi
Acting
Judge of the Labour court of South Africa
Appearances
:
For
the Applicant: Mr Berry
Employers’
Organization Official
For
the Respondent: Advocate. A Makka
Instructed
by : Bowman Gilfillan
[1]
(
2003)
1 SA 11 (SCA)
[2]
1998 10 BLLR 1021
LC at para. 16.
[3]
Sidumo
and Another v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC);
2008 (2) BCLR 158 (CC)
[4]
[2010]
4 BLLR 458 (LC); (2010) 31 ILJ 1248 (LC)
at
para 10
[5]
In
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and
Others
(2009) 11 BLLR 1128
LC at paragraph 17 the Court restated its
role that it is not precluded from scrutinizing the process in terms
of which the decision
was made when determining review applications.
[6]
(2011) 32 ILJ 453 (LC)