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[2019] ZALCJHB 38
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National Union of Mineworkers obo Kupa and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR241/2016) [2019] ZALCJHB 38 (5 March 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 241/2016
In the matter between:
NATIONAL UNION OF
MINEWORKERS OBO
GEORGE KUPA & 7
OTHERS
Applicants
And
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER D. J.
NGWENYA
N.O
Second
Respondent
JOHNSON TILES, a
division of NORCROSS SA
(PTY) LTD
Fourth Respondent
Delivered:
5 March 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The applicants seek an order reviewing and setting aside the
arbitration
award rendered by the second respondent (Commissioner)
dated 6 December 2015. In the award, the Commissioner
dismissed
the individual applicants’ claim that their dismissal
was procedurally and substantively unfair. The third respondent
(Johnson
Tiles) opposed the review application.
[2]
Aligned to the main application were preliminary points related to
the
late filing of the review application, the late filing of the
supplementary affidavit and the applicant’s Heads of Argument.
Having considered the applications for condonation in that regard
(other than in respect of the heads of argument), and further
having
considered the overall interests of justice, condonation ought to be
granted in respect of all three instances where applicable
time
frames were not complied with.
[3]
The individual applicants as listed under paragraph 3 of the founding
affidavit were in the employ of Johnson Tiles until 31 October 2014,
when they were dismissed subsequent to a disciplinary
enquiry into
allegations of misconduct (assault and intimidation) during a
protected strike. The individual applicants are alleged
to have
attacked two fellow employees (Ms Rose Mthombeni and Mr Jerry Mankga)
during the course of the strike.
The
arbitration proceedings:
[4]
Subsequent to their dismissals, the individual applicants as assisted
by NUM referred an alleged unfair dismissal dispute to the Commission
for Conciliation Mediation and Arbitration (CCMA). The dispute
came
before Commissioner for arbitration when attempts at conciliation
failed.
[5] The
evidence before the Commissioner was as follows;
4.1
NUM called upon its members to embark on a protected strike with
effect from
16 May 2014. During the course of the
protracted strike, reports were received by Johnson Tiles in regards
to acts of
intimidation aimed at non-striking employees, and in
particular, of allegations of assault on Mthombeni and Mankga in the
evening
of 17 July 2014, which assaults took place in
Tembisa. The attacks on the two were at different times but around
the
same area in Tembisa, leading to Johnson Tiles conclusions that
it was one group that had perpetrated the attacks, as both Mankga
and
Mthombeni had in some instances identified the same perpetrators. The
evidence of Mthombeni before the Commissioner was that;
4.1.1
She was a member of another union, BCAWU, which was not party to the
strike. After her shift on the
day in question, she took a taxi home,
and had alighted at a Shell garage from where she was to walk home.
She was confronted by
the individual applicants about not supporting
the strike. Her response was that her union was not on strike, but
that she would
not report for duty anymore with the hope the group
would leave her be.
4.1.2
She identified her assailants as Messrs Petrus Makondele, Jan
Mokhumane, Daniel Nchabe, George Kupa,
Mashudu Muhuma and Joseph
Modaka. Upon her giving reasons why she was not on strike, she
was then attacked and assaulted
with sticks until she fell to the
ground. She was also threatened with death.
4.1.3
Following the attack, she managed to flee and found refuge inside a
nearby house of a fellow employee,
George Sekgobela, who told her to
telephonically contact Johnson Tiles’ general manager, Viljoen.
Mthombeni and Sekgobela
subsequently went to report the matter to the
police and opened a criminal case against her assailants. One of
these, Mokhumane
was arrested in the course of that evening.
4.1.4
Mthombeni had also checked herself into the Tembisa hospital for
treatment as she suffered from abrasions,
contusions on her knees,
and body aches resulting from her assault. Whilst Mthombeni and
Sekgobela were at the police station,
they came across Mankga, who
had also come to open a criminal case after he was assaulted.
4.1.5
Mankga’s testimony was that he was also a member of BCAWU and
was not on strike. He was on his
way home in the same evening when he
observed a group of his co-workers who were on strike approaching
him. He attempted to run
away from the group by entering a nearby
supermarket, but the group had pursued him until they caught up with
him in the supermarket.
He was dragged outside and was severely
assaulted with an assortment of objects, leading to him bleeding
profusely from a head
wound.
4.1.6
Mankga had also laid criminal charges against his assailants, whom he
had identified as Phogole,
Temane, Makondele and Mokhumane. He
also required medical treatment at the hospital.
4.2
Mankga and Mthombeni’s versions of their assault were
corroborated by
photographs depicting their injuries which were
admitted as evidence at the arbitration proceedings. Sekgobela also
confirmed Mthombeni’s
version of events insofar as they related
to him.
4.3
The evidence of the individual applicants can collectively be summed
up as ‘
they did not know anything’
. Kupa confirmed
that he knew Mthombeni and there were no problems between the two of
them. He denied having being involved in her
assault and testified
that he was at his home at the time of the alleged assault. He denied
under cross-examination when it was
put to him that Mthombeni had
testified that he was the one who had during the assault, told her
that ‘
now we kill you’
. On being asked the reason
Mthombeni would make such serious allegations against him, Kupa’s
response was that it could have
been in her own imagination.
4.4
Phogole’s testimony followed a similar pattern as that of Kupa.
He confirmed
that he knew Mankga for over twenty years and had never
had problems with him. He denied any involvement in Mankga’s
assault,
despite the latter having specifically identified him as the
one who had grabbed him by his clothes in the front and dragged him
from the supermarket.
4.5
Makonelele also knew Mthombeni. He stayed in Tembisa and testified
that he knew
nothing of the incident or assault of Mthombeni that
took place near the Shell garage as he was at his house. He
also denied
he was involved in the assault of Mankga whom he also
knew, despite the latter’s evidence that he was the one that
had pushed
him from behind in the supermarket. He testified that at
no stage in the evening was he ever in the company of the other
individual
applicants as they stayed far from each other. When it was
put to him that both Mankge and Mthombeni had identified him as one
of the assailants, and why they would make such allegations against
him when he had no problems with them before, his response was
that
the two were involved a plot to have him and others dismissed, to
ensure that NUM members decreased at the workplace.
4.6
Makhomane also did not know anything about the assault. He had 39
years of service
with the company and was employed as a supervisor.
He knew both Mankga and Mthombeni well and had no problems with them.
He knew
the latter for about 30 years and called him his ‘homeboy’.
4.7
He denied ever being involved in the assault as he went straight home
after
he left the employer’s premises following a union
meeting. He confirmed that the police paid him a visit in that
evening.
He attributed the accusations made against him and others as
a plot and further to inter-union rivalry, as NUM was strong at the
workplace. He contended that the employer was siding with BCAWU, and
that they were being targeted as they were strong and influential
members of NUM.
The
award:
[6]
The Commissioner’s analysis and conclusions were succinct. He
rejected
the applicants’ various versions as they had offered
nothing in rebuttal against the allegations against them save for a
series of bare denials. He accepted that both Mankga and Mthombeni
were assaulted by a group of striking employees comprising of
the
individual applicants.
[7]
He could not find any reason why the two would harbour any ill will
against
the individual applicants for them to have manufactured
adverse evidence against them. He found that the conduct of the
individual
applicants during the strike action amounted to gross
violent misconduct; that they had failed to demonstrate any remorse,
and
that their dismissal was justified.
Grounds
of review and evaluation:
[8]
The applicants contend that the Commissioner’s award is
susceptible
to a review on the basis that he made findings which were
not supported by evidence presented before him, and further that he
failed
to make any credibility findings against Johnson Tiles’
witnesses.
[9]
To the
extent that the above represents the nub of the applicants’
case, the Labour Appeal Court in
Head
of the Department of Education v Mofokeng and Others
[1]
held
that;
‘
The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and this court in
Goldfields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome.’
[10]
Having had regard to the transcribed record of proceedings and the
conclusions reached
in regards to the material placed before the
Commissioner, I struggle to appreciate the basis upon which it can be
said that the
Commissioner committed any irregularity or why the
outcome can be considered as unreasonable.
[11]
The uncontested evidence was that in the course of a protracted
strike, both Mthombeni
and Mankga were violently assaulted by the
striking employees when their union,
BCAWU had not
joined the strike. They were assaulted in the evening on their way
home in the same area in Tembisa
albeit
at different times and locations. There is no dispute that they were
severely assaulted and had required medical treatment thereafter.
[12]
The only issue before the Commissioner was whether the individual
applicants had been correctly
identified as the perpetrators. It is
significant to note that most employees at Johnson Tiles enjoyed long
periods of service,
with some having served for over thirty
nine years. The employees knew each other and all of the individual
applicants that
had testified had confirmed that they knew both
Mankga and Mthombeni. The employees also stayed in or around the same
areas, and
in some instances referred to each other as ‘homeboys’.
In circumstances where this was the case, the issue is what
were the
probabilities that both Mankga and Mthombeni could have incorrectly
or wrongly identified their assailants? An unequivocal
answer should
be none.
[13]
Both Mankga and Mthombeni had described how they were assaulted.
Mankga explained how Phogole
was one of the individuals that he first
saw before the assault and before he ran into the supermarket; Temane
had grabbed his
left arm whilst pushing him, and Makonelele was
pushing him from behind; Makhomane also grabbed him from his right
side; whilst
Phogole was in front of him. Upon being dragged out of
the supermarket, he was hit on his head and as he fell down, he was
then
assaulted by these individuals.
[14]
Mthombeni’s assailants had assaulted her even after she told
them that she would
no longer report for duty. She identified
Makonelele, Mokomane, Dichabe, Kupa, Muhuma, Modaka as people that
had assaulted her
as they were holding her and could see their faces.
She was traumatised by the incident and could not forget it. Even
though it
was put to her that the incident took place at about 18h00
or thereafter when it was dark, she testified that she could
see
their faces as it was lit in the area and further since she knew
them.
[15]
Too much time under her cross-examination was spent on little
insignificant specifics as
to who amongst her assailants had said or
done what, or the size of the sticks they were holding. In
circumstances where a mob
is assaulting an individual, the likelihood
of that individual recalling each minute details of the assault and
who amongst the
assailants had said or did what is remote. This
however does not detract from the fact that the assault happened to
the point where
Mthombeni fell down and became dizzy from the
assault, and she was adamant throughout her testimony that the
assailants were properly
identified.
[16]
In the light of Mthombeni and Mankga’s testimonies, all that
the individual applicants
had proffered were bare denials, conspiracy
theories of a plot or desire by management to diminish NUM membership
at the workplace,
and nothing else. At best, the individual
applicants even suggested that Mankga and Mthombeni could have been
assaulted by members
of unions (NUMSA) who were also on a strike in
another industry, or that Mthombeni despite her trauma, had imagined
her assailants.
None of the individual applicants could proffer a
reasonable explanation as to the reason that the individuals they
have worked
with closely over protracted periods and with whom they
had no quarrels would concoct versions of heinous assaults against
them.
[17]
It needs to be stated that even though the right to strike is
constitutionally entrenched,
the nature of strike actions as we have
come to know them and experience them as a country are characterised
by wanton violence,
in some instances, loss of life, destruction of
property, intimidation and vicious assaults either on non-striking
employees or
even on other citizens going about their business. The
loss of property, life, limb and general lawlessness have become the
new
normal whenever there is any form of industrial action in
workplaces.
[18]
As in this case, employees who have known and worked with each other
over the years and
might even be neighbours in their places of
residence turn against and maim each other in pursuit of their own
interests, and in
some instances, with the express knowledge and
approval of their unions. In the
interim
, the rights of other
people to go about their own business unhindered have become
secondary. This cannot be something that was
envisaged when the right
to strike was entrenched in our Constitution, and it is apparent that
the spectre of violence and the
violation of the rights of others
whenever a strike takes place has become part of our daily lives.
This cannot be correct, justified
nor normal in any civilised society
or any democracy founded on constitutional values.
[19]
In circumstances where employees within a strike context perpetrate
acts of violence either
against property or life, employers are
obliged to take appropriate action against the perpetrators. Where
such acts of violence
follows non-striking employees into their
homes, townships, and hostels, an employer cannot merely fold its
arms and pretend not
to be affected. Those are its employees, and are
entitled to some form of protection even if such attacks such as in
this case
took place after hours and/or off the employer’s
premises, as such acts clearly affects the employment environment. In
a
nutshell, the employer is obliged to act, and harshly so where
misconduct involving its employees is proven, even if it took place
off its premises.
[20]
The level and nature of violence perpetrated against Mthombeni and
Mankga by people they
had properly identified as colleagues whom they
knew over a long period makes the facts of this case even more
disconcerting if
not revolting. The level of inhumanity and depravity
displayed by the individual applicants towards their fellow employees
is indeed
beyond description.
[21]
As the Commissioner had correctly pointed out, none of the individual
applications had
shown any contrition, and none of them had
appreciated the magnitude of their violent acts on their fellow
employees. Counsel for
the applicants had submitted that the
individual applicants could not have shown any contrition as they
were not involved in the
misconduct. This might be so where
misconduct was not proven. But where as in this case the vicious
assaults were proven, and where
the individual applicants’
defence is found to be contrived, how then given the facts and
circumstances of this case
could it possibly have been expected of
the Commissioner to come to any other conclusion other than that a
dismissal was appropriate?
[22]
In the end, the grounds upon which a review of the Commissioner’s
arbitration award
are based are without merit. In fact, it can safely
be said that no legal or factual basis was set out to have the award
reviewed.
As further correctly pointed out on behalf of Johnson
Tiles, the applicants not only failed to make out a proper case in
the pleadings,
and instead sought to create one in the heads of
arguments, which is impermissible.
[23]
I am satisfied that the Commissioner fully considered all the
evidence before him, and
came to conclusions that are unassailable.
Accordingly, the review application ought to be dismissed. I have had
regards the requirements
of law and fairness, and given the
ill-considered nature of this review application, the applicants
should be burdened with its
costs.
Order:
[24]
In the premises, the following order is made;
1.
The late filing of the review application, the supplementary
affidavit in terms of Rule 7A(8) (a) of
the Rules of this Court, and
the applicants’ Heads of Argument is condoned.
2.
The application to review and set aside the arbitration award issued
by the second respondent dated 5 December 2014
is dismissed
with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants:
W Nyagiwe
Instructed
by:
BK Mismeki Attorneys
For
the Respondent:
N Braatvedt of Edward Nathan Sonnenbergs
[1]
[2015]
1 BLLR 50
(LAC) at para [30]