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[2018] ZALCJHB 416
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Mara v Department of Education, Limpopo and Others (JR 704/15) [2018] ZALCJHB 416 (29 November 2018)
THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE
Not
Reportable
case
no:
JR
704/15
In the matter
between:
MATOME
McDONALD MARA
Applicant
and
DEPARTMENT
OF EDUCATION LIMPOPO
First
Respondent
EDUCATION LABOUR
RELATIONS COUNCIL
Second Respondent
COMMISSIONER
RAYNOLD BRACKS N. O
Third Respondents
Heard
:
27 November 2018
Delivered
:
29 November 2018
Summary:
An
opposed review application – The distinction between review and
appeal ought to be maintained. Section 138 enjoins an arbitrator
to
determine a dispute by dealing with the substantial aspects and with
minimum of legal formalities. An arbitrator must
deal with the
principal issue and afford each party to present its case. An outcome
that is consistent with the evidence so presented
is one that a
reasonable decision maker may arrive at. A review application filed
outside the prescribed period without an acceptable
explanation for
the delay is defective and ought to be dismissed for want of
jurisdiction. Held (1): The application is dismissed.
Held (2): No
order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1] This is a review an opposed review application. The applicant
contends that having failed to observe the cautionary rules of
evidence, the third respondent denied the applicant a fair hearing.
Further, the third respondent found the applicant guilty of
charges
not charged or dismissed for, which conduct amounts to an
irregularity. There was no evidence to sustain the charge of
sexual
assault. Above all, the findings are not those of a reasonable
decision maker.
[2] The application is opposed by the first respondent only.
Background facts
[3]
Since
7 January 1986, the first respondent employed the applicant as a CS 1
educator at Motseketla Primary School. In February 1988,
he was moved
to another school. Ultimately in January 1996, he was appointed a
Principal of Ramogabe Primary School.
[4]
Around
2012, allegations of misconduct arose against the applicant.
Ultimately, on 12 November 2012, he was charged with various
acts of
misconduct. Following a disciplinary hearing, the applicant was found
guilty of various charges and was dismissed. Aggrieved
by his
dismissal, he referred a dispute to the second respondent alleging
unfair dismissal. The third respondent was appointed
to resolve the
dispute through arbitration. After what appears to be a protracted
hearing, the third respondent published his award
wherein he found
the dismissal to be fair on both legs. Aggrieved by the outcome, the
applicant launched the present application
seeking to review and set
aside the award. e
Grounds of Review
[5]
The applicant alleges that the third
respondent committed gross irregularity in that he failed to have
regard to material facts
and rejected material witnesses’
testimony without justification. The applicant catalogued various
charges and contended
that there was no evidence to prove them.
Largely, he criticized the manner in which the third respondent dealt
with the evidence
and lamented unfairness and irregularity. In his
supplementary affidavit, the applicant again criticized the manner in
which certain
specific evidence was dealt with. He alleged that the
third respondent favoured the evidence of the first respondent’s
witnesses
at the detriment of his own evidence.
Evaluation
[6]
The difference between a review and an appeal
ought to be maintained at all times. In a review, what is crucial is
the question
whether the outcome moves in tandem with the material
properly placed before an arbitrator. The test remains that of
whether the
decision is one that a reasonable commissioner faced with
the same material may arrive at. It is whether the decision falls
within
the bounds of reasonableness.
[7]
When one carefully considers the grounds of
review by the applicant, one observes grounds for an appeal. I do not
possess appeal
powers. In casu, the third respondent was faced with
conflicting versions. As he was behooved to do, he followed the
approach set
out in
Mabona and another v
Minister of Law and Order and others
[1]
.
Applying the applicable standard of
proof, he found that the allegations against the applicant were
proven. He found that the applicant’s
bare denial did not begot
a real dispute of fact. He was far from being impressed with the
applicant’s blaming approach.
The applicant laid the blame on
the door of Ramohlale.
[8]
Commissioner, when they arbitrate, they do not
function like a court of law, particularly a criminal court. Although
the proceedings
are akin to civil proceedings in a court of law, an
arbitrator does not function like a court of law. Section 138 of the
LRA enjoins
an arbitrator to deal with the substantial merits quickly
and fairly. Most importantly with a minimum of legal formalities.
Certain
of the cautionary rules developed by the criminal courts do
not find application in arbitration proceedings. To my mind, the
issue
of the age of the witnesses is a legal formality that does not
have a place in arbitration proceedings. What matters is whether
the
evidence weighed with other evidence brings about probable results.
Accordingly, the third respondent was not compelled to
apply the
cautionary rule contended for by the applicant.
[9]
Nonetheless, the court in
Woji
v Santam Insurance Co Ltd
[2]
had the following to say:
Nor, for that matter, have the
Courts “acted upon a rigid rule that corroboration should
always be present” before a
child’s evidence is accepted…
That was a criminal matter as were all other cases cited by counsel
in argument. Where
the action is not criminal but civil one in which
the burden of proof is not so onerous, there is even less cause to
insist that
the child’s evidence should be corroborated. The
question…is whether the young witness’ evidence is
trustworthy.
Trustworthiness… depends on factors such as the
child’s power of observation, his power of recollection, and
his power
of narration on the specific matter to be testified…
[10]
I do not agree with Mr Kela appearing for the
applicant that there is a constitutional duty to apply cautionary
rules in arbitration
proceedings. The third respondent did not commit
an irregularity. As held in
Goldfieds
,
the third respondent identified the principal issue, dealt with it
and afforded each party an opportunity to deal with the principal
issue. The outcome when compared with the evidence presented it comes
out as a hand and a glove. The outcome does not obliquely
lie besides
the evidence. Therefore, the outcome is one that a reasonable
commissioner may arrive at.
[11]
The applicant’s application is launched
outside the prescribed time period. This court lacks jurisdiction to
entertain reviews
launched outside the prescribed time period unless
good cause is shown to exists. When the applicant launched the review
application,
he did so outside the prescribed time period. He failed
to show good cause at that time. The first respondent took a point in
its
answering affidavit filed and served around 2 December 2015. The
applicant properly reacted to the point two and half years later.
On
13 August 2018, he brought an application seeking condonations of
various non-compliance including the late filing of the application.
The applicant offered no plausible explanation for the delay. He
alleged that the delay of 24 days was minimal. It is important
to
state that the applicant offered no plausible explanation. This court
and the apex court has consistently held that where there
is no
proper explanation of the delay, prospects of success are immaterial
and condonation ought to be refused. I agree with the
first
respondent, there is no proper explanation for the delay, thus
condonation ought to be refused. The explanation given is
so shallow
and amounts to no explanation at all. No explanation was offered why
the application was properly launched two years
later. The attempted
and withdrawn applications for condonation are of no moment. In
motion proceedings, a party stands and falls
by its founding papers.
In the founding affidavit there is a deafening silence as to why the
application was launched two years
later. It is unnecessary to deal
with the other condonation applications for the replying affidavit
and the heads of argument.
[12]
For all the above reasons, I come to the
conclusion that the application for review ought to be dismissed.
[13]
In the results I make the following order
Order
1.
The application for condonation of the late
filling of the review application is dismissed.
2.
The application for review is dismissed.
3.
No
order as to costs.
GN Moshoana
Judge of
the Labour Court of South Africa
.
Appearances:
For the Applicant:
Adv D Kela.
Instructed by: Ndumiso
Voyi Incorporated, Midrand
For the 1
st
Respondents: Adv V P
Ngutshana.
Instructed by:
State Attorney, Johannesburg.
[1]
1988 (2) SA 654 (SE)
[2]
1981 (1) SA 1020
(A)