IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J 3921/98
In the matter between:
SPRINGBOK PATROLS Applicant
and
MAMBA, K First Respondent
MALEKANE, JACOB Second respondent
JUDGMENT
BENJAMIN A J
[1] This is an ex tempore judgment. It concerns an award of a CCMA commissioner,
Ms K Mamba, who heard an arbitration concerning the dismissal of the first
respondent on 13 November 1998.
The applicant, Springbok Patrols, has sought to review that arbitration award
which was handed down on 3 December 1998. At the same time the dismissed
employee has sought that the arbitrator's award be made an order of the labour
Court. The commissioner found that the Second respondent had discharged the
onus of proof and that he had proved that he had been dismissed. The
commissioner further found that the applicant company had not established that
the dismissal was procedurally and substantively fair. The award made by the
commissioner was one of financial compensation, that the applicant must pay the
Second respondent an amount of R7 945,00.
The applicant was represented in court by its legal officer, Ms Taylor. The
Second respondent represented himself in court. The attack on the commissioner's
award was based on the fact that the first respondent, the commissioner, had
misinterpreted certain of the evidence given by one of the company's witnesses, a
Mr van Wyk. When I asked Ms Taylor on what basis she was bringing the
review, she stated it was brought under section 145 but was unable to refer to a
particular provision in that section on which it was based. Therefore I have to
consider whether there was a defect in the arbitration award as contemplated by
sections 145(1) and (2). I also have to consider whether the commissioner either
committed misconduct in relation to her duties as an arbitrator or committed a
gross irregularity or exceeded her powers or that the award was obtained
improperly.
When I asked Ms Taylor as to which portions of the evidence in the arbitrator's
award she was challenging as a basis for the misinterpretation, she was only able
to point to one paragraph in the arbitration award in which the arbitrator appears to
have used the words "chased away" rather than words that indicated that an
instruction had been given to the employee to leave the premises. In essence, at
the arbitration there was a conflict of the evidence between the employee and Mr
van Wyk, a representative of the employer. The evidence of the employee was
that he had been ordered to leave or in the words he used “chased away from”
particular premises and that he interpreted this as a dismissal. The evidence of Mr
van Wyk was that an instruction to leave did not amount to a dismissal but that the
employee should report to the head office thereafter for an enquiry.
Before I make my conclusion, I consider it important to remind the Applicant of
the difference between a review and an appeal. I do so by quoting from a recent
judgment in the matter of Johannes Coetzee v Justice Libiya by Cheadle A J in
which he deals with a difference between a review and an appeal:
"A review concerns itself with the manner in which a tribunal comes to its
conclusion rather than with its result. An appeal, on the other hand, is concerned
with the correctness of the result. The two remedies for challenging the decision
of a tribunal may on occasion be coextensive, particularly if it is the very process
of reasoning that is the subject of the review but this should never constitute a
basis for blurring the essential differences between the two. The fact that a
reviewing court may come to a different result if the matter has been brought on
appeal, can never be on its own a basis for attacking the process of reasoning."
As the Carephone judgment says, I can only set aside an arbitrator’s decision on
review if it is not rationally justifiable.
When we look at the decision it is evident how the commissioner approached her
task. She first set out the evidence of the employee who is now the Second
respondent, and thereafter the evidence of the witnesses of the company. She then
analysed the evidence and gave her reasons for finding in favour of the employee
rather than the company. She was persuaded by the fact that Mr van Wyk of the
company had admitted to the arbitration that he had broken company policy before
and that therefore there was no reason that he could not have done so on this
occasion. In my view, the arbitrator did what is required of her. She evaluated the
facts and she came to a conclusion which is objectively justifiable. I find no
reason for setting aside the arbitration on review. My finding is that the
arbitration should be confirmed and that it should be made an order of court.
There is no basis in the papers before me or in the argument made by the
representative of the company that would justify me on the test in the Carephone
case in intervening in this matter. In fact, underlying this case, I think, is the
complaint by the applicant that its witness was disbelieved and that the Second
respondent was believed by the arbitrator. A finding of credibility of that type
which has been justified in the decision is not one that I can interfere with.
I therefore make the following order:
1. The application for review in Case No. J3921/98 is dismissed with costs. I point
out to the Second respondent, Mr Malekane, that his costs will be limited to those
actual disbursements he has made in defending this review, for instance his travel
costs in coming here or any expenditure that he has made. I would suggest that
after the hearing he goes to the Registrar to seek assistance with these matters;
alternatively, as I am sure it is not a great amount of money involved, he should
try and seek agreement with the applicant company as to what these costs will be
and the payment.
2. In Case No. 3911/98 I make an order that the arbitration award handed down by
the Commissioner K Mamba, the date of the handing down being 3 December
1998, be made an order of the Labour Court. The respondent in that application,
Springbok Patrols, is directed to pay an amount of R 7945,00 to Mr Malekane
within five days of the date of this order, plus such interest as he is entitled to, as
calculated in terms of s 143(2) of the Labour Relations Act.
_______________
P BENJAMIN
Acting Judge of the Labour Court
SIGNED AND DATED THIS 10th DAY OF MARCH 1999
DATE OF HEARING: 4 March 1999
DATE OF JUDGEMENT: 4 March 1999
For the Applicant: Ms Taylor
For the Respondent: Mr J Malekane