THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR112/2021
In the matter between:
DWARSRIVIER CHROME MINE PROPRIETARY LIMITED Applicant
and
AMCU OBO PRINCE TAU First R espondent
DONALD KGALAKE N.O. Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third R espondent
Heard: 5 Novem ber 2024
Delivered: 28 February 2025
This judgment was handed down electronically by emailing a copy to the parties. The 28
th of February 2025 is deemed to be the date of delivery of this
judgment.
JUDGMENT
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ITZKIN , AJ
Introduction
[1] The applicant (DCM) seeks an order reviewing and setting aside an arbitration
award in which it was found that Mr Tau’s dismissal was substantively unfair, and
DCM was ordered to reinstate Mr Tau retrospectively . AMCU (on behalf of Mr Tau)
opposes the review application.
[2] The allegations for which Mr Tau was dismissed arose from an incident on 6
May 2021. He was dismissed for having “allowed the Miner (Regina Phetla) to give
[him] an unlocked elephant foot bag with explosives to transport it to explosives
store” and having “transported explosives on a disapproved vehicle in terms of
regulation 4.2(1)(b)(VI) of the Mine Health and Safety Act 29 of 1996 as amended” .
[3] It is not controversial that Mr Tau was the driver of a vehicle which carried a
bag containing explosives. The central controversy pertains to whether he knowingly
did so.
Analysis
[4] The applicant advances three grounds of review. All of them ultimately pertain
to the Commissioner’s preference of Mr Tau’s version (that he was unaware that the
bag in the vehicle he drove contained explosives) over DCM’s version (that he was).
[5] Mr Bodenstein, a Project Manager, testified for DCM. He testified about the
process applicable to transporting explosives in a safe and compliant way, which included locking elephant foot bags in which they are carried and transporting them in approved vehicles.
[6] Mr Bodenstein gave evidence that on 6 May 2021, he saw a vehicle at ‘strike
12’ and found Mr Joe Kgomongaka (Mr Tau’s supervisor) and Mr Tau at the vehicle
loading rig jumpers onto it. Mr Tau was the driver. He noticed the elephant bag on
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the vehicle, which was closed with an elastic band and not with a lock. When he
looked inside, it contained a detacord, a safe starter and stingers, and he asked
where it came from. According to Mr Bodenstein, “ [t]hey said, no, it came from strike
17, the miner at strike 17 ha ve asked them to take the explosives back to the …
(indistinct)”.
[7] Mr Bodenstein was then asked whether he had also directed this question to
Mr Tau, to which he responded by stating that Mr Tau was present when the
question was asked. He also stated that they had both said that they had obtained it
from Ms Phetla at ‘strike 17’, who had asked them to return it.
[8] Mr Tau’s evidence was that Ms Phetla had not spoken to him regarding the
bag (when handing it over), and had spoken to Mr Kgomongaka. He testified that he had heard them talking but could not hear what they were talking about. His version
was essentially that he was not aware of the contents of the bag.
[9] He also testified that the same bakkie was used by others to transport
explosives in locked elephant foot bags and that , on previous occasions, he had
followed instructions in doing so. He also alleged that he was “still learning” and that
he was not trained on how to transport explosives. This testimony did not, however, relate to the incident on 6 May 2021 for which he was dismissed (on which his version was that he was unaware of the contents of the bag).
[10] Mr Tau called Ms Phetla as his witness. Her evidence was that on the day of
the incident, she went to the bakkie and gave the explosives to Mr Kgomongaka,
who said he would take the bag to the magazine. A ccording to Ms Phetla, at the
time, Mr Tau was talking to the blasting assistant, and she was unsure of whether or
not he had heard her exchange with Mr Kgomongaka.
[11] Mr Kgomongaka did not testify at the arbitration, having passed away before
the arbitration.
[12] The issue of whether or not Mr Tau was trained regarding the requirements
for transporting explosives is a ‘red herring’ for present purposes . This is so because
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the essence of his defence relating to the 6 May 2021 incident was that he was
unaware of the bag's contents , and not that he knowingly transported explosives on
that date because of a lack of training.
[13] The central issue remains whether or not the Commissioner’s determination
that Mr Tau was unaware of the contents of the bag (and was thus not guilty) was a
decision that could reasonably be arrived at on the evidence.
[14] The Commissioner was faced (on the one hand) with the evidence of Mr
Bodenstein , which suggested that Mr Tau was aware that the vehicle was carrying
the bag containing explosives, and (on the other hand) with the evidence of Mr Tau,
who denied being aware of the explosives. [15] Ms Phetla’s evidence on the issue did not significantly move the needle in
either direction, as she was unaware of whether Mr Tau had heard her conversation with Mr Kgomongaka regarding what the bag contained (albeit that she testified that Mr Tau was tal king to the blasting assistant, which tends to support Mr Tau’s version
that he was not focussed on her discussion with Mr Kgomongaka and did not hear
what was said).
[16] In the context of this evidence, can it be said that the award is incapable of
reasonable justification on the totality of the evidence before the Commissioner ?
[17] The answer to this question is “no”.
[18] The position may have differed if Ms Phetla had testified that she had
informed Mr Tau of what was in the bag (or that he heard her convers ation with Mr
Kgomongaka), or if Mr Kgomongaka had been available to testify and had testified to that ef fect.
[19] This did not occur, and the probabilities in favour of both countervailing
versions were relatively closely balanced, with the result that the Commissioner’s
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preference for Mr Tau’s version cannot be said to fall outside a band of reasonable
decisions.
[20] Regarding costs, in accordance with the requirements of law and fairness, it
would not be appropriate to make a costs order in this matter .
[21] In the result, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
R Itzkin
Acting Judge of the Labour Court of South Africa
Appearances :
For the Applicant : P Mohlahlo of Edward Nathan Sonnenbergs
For the First Respondent : S Swartz
Instructed by : LDA Incorporated Attorneys