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[2017] ZALCJHB 456
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National Union of Mineworkers and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR1568/12) [2017] ZALCJHB 456 (30 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Case
Number: JR1568/12
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
1
st
Applicant
MATSHIDISO
ELIZABETH
DIPALE
2
nd
Applicant
MOLAHLEHI
DAVID
MAJAKE
3
rd
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
1
st
Respondent
COMMISSIONER
S NTOMBELA
N.O
2
nd
Respondent
ESKOM
HOLDINGS SOC LTD:
LETHABO
POWER
STATION
3
rd
Respondent
Heard:
11 July 2017
Delivered:
30 November 2017
Summary:
Application of review test to review application, based on award
finding that dismissal for misconduct was fair. No grounds
for review
established. Matter dismissed.
JUDGMENT
FOURIE
.
AJ
[1]
This
is an opposed review application in which the applicants, Ms Dipale
and Mr Majake, represented by their trade union, NUM, seek
to review
and set aside the award of the arbitrator finding that their
dismissals were fair.
[2]
The
events in question took place several years ago, and involve a mass
of evidence, presented both at the disciplinary inquiry
and at the
arbitration (which was heard over 9 days). The events and evidence
are fully summarised in the arbitration award, and
little purpose is
served in providing anything but the briefest of summaries,
particularly as this matter raises no novel questions
of law or
issues of public interest – it is merely a review on the facts,
to be determined by application of the now-settled
review test.
[3]
The
allegations against the individual applicants were of the most
serious nature – in essence, they were accused of having
entered into a conspiracy to have two fellow Eskom employees
kidnapped and murdered. Dipale was accused of having concocted the
scheme, while Makaje assisted her in procuring a firearm for purposes
of carrying out the ‘hit’.
[4]
The
employees denied all claims, and presented detailed oral evidence on
their respective versions of events. They in turn alleged
that the
charges and evidence against them were trumped up as part of a
conspiracy to have them dismissed.
[5]
Faced
with a morass of evidence, and diametrically opposed versions, the
arbitrator engaged in a detailed reasoning process, and
after a
careful evaluation of the competing versions, he rejected the
versions of Dipale and Majake as being less probable than
those of
Eskom’s witnesses.
[6]
On
review, the applicants, while pleading the usual litany of reviewable
irregularities, focussed primarily on re-arguing the matter
on the
detail of the evidence in the transcript. While part of the review
process inevitably involves considering the material
placed before
the arbitrator, a court sitting on review is not able or required to
conduct a rehearing on the papers. The aim of
referring to detailed
evidence should be to support allegations of (or conclusions of)
reviewable conduct by the arbitrator.
[7]
I
am satisfied that the arbitrator applied his mind properly to the
primary question before him, being which of the competing versions
was more probable, and that his conclusion that the version of the
employer was far more probable than that of the employees, is
one
that a reasonable arbitrator could have reached on the evidence
before him.
[8]
In
rejecting the versions of the individual applicants as not credible,
and overall less likely than the competing version and evidence,
the
arbitrator followed a rational process of reasoning, correctly
applied his mind to the key issues before him, and dealt with
the
substance of the dispute in a clear and convincing manner. I see no
basis on which to interfere with the arbitrator’s
reasoning,
findings of fact, or ultimate conclusion that the dismissals were
fair.
[9]
In
the circumstances, the review application stands to be dismissed.
Given the ongoing relationship between NUM and Eskom, I am
not
inclined to order cots.
[10]
Therefore,
I make the following order:
Order:
1.
The review application is dismissed.
2.
There is no order as to costs..
______________________
Greg
Fourie
Acting
Judge of the Labour Court
Appearances:
For
the Applicant: Attorney P Motaung
For
the Third Respondent: Attorney D Masher – ENS Africa