VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 17 SEPTEMBER 1999 CASE NO. J166/99
In the matter between:
KHENSIWE MASHEGO Applicant
and
MULTIHIRE (PTY) LTD Respondent
J U D G M E N T
BRASSEY, AJ : In this matter the applicant comes before
me on a statement of claim which indicates that she was
dismissed on the grounds of theft. The salient
allegation is the following: The applicant was
dismissed on 11 January 1999. The reason was that "we
were getting our salaries from our bank account and my
employer deposited money into my account by mistake. I
assumed that someone deposited the money. On my
arrival at work I was told that I stole the money and I
was commanded to pay it in cash or I must face
dismissal. No hearing to explain the side of my
story."
In the following paragraph the legal issues are
said to be the following: Unfair dismissal. No
hearing was held. Audi alteram partem rule not
followed. Duress. I either pay in cash or I am
dismissed. In paragraph 9 the relief sought is set out
as compensation.
The/..
The respondent has filed a reply in which certain
points in limine are taken. The first is that the
applicant has failed to comply with the provisions of
section 191 of the Labour Relations Act, 66 of 1995.
In support of the allegation the respondent alleges
that if falls under the jurisdiction of the bargaining
council for the Road Freight Industry and that the
applicant has failed to refer the dispute to the
bargaining council for conciliation. This is a matter
on which, in these proceedings, I am unable to
pronounce since evidence is required to indicate what
precisely is the nature of the respondent's business.
The second point in limine is different however in
that it is one that I can and must decide in these
proceedings. The point is recorded in the following
terms in the respondent's reply: "The applicant has
nowhere alleged that the reason for dismissal is one of
the grounds contemplated in section 191(5) of the
Labour Relations Act". Accordingly, it is stated, this
Honourable Court does not have jurisdiction to hear
this matter. That point, it seems to me, is well
taken. There is nothing in the statement of case to
indicate that this matter comes properly before the
Labour Court, on the contrary it appears to be a matter
that should, as the respondent suggests, either be
submitted to the applicable bargaining council or if it
does not have jurisdiction to the Commission for
Conciliation, Mediation and Arbitration. The point on
jurisdiction is therefore well taken and this
application must consequently be dismissed.
When this matter was called I asked the applicant
whether she was represented by an attorney. She said
that
she/..
she was and told me that a certain Adam Creswick had
been appointed at her request by the Legal Aid Board.
She told me further that she expected her attorney to
be appearing in court on her behalf today. I asked the
interpreter to make an effort to communicate with Mr
Creswick by telephone and he has reported back to me
that the numbers given on the business card simply
rings and rings.
On the facts that have been placed before me I
cannot escape the conclusion that Mr Creswick is in
dereliction of his duty as an attorney and I consider
it appropriate to draw the attention of the Legal Aid
Board to his conduct. Accordingly I make an order that
this judgment be typed and submitted to the Director of
the Legal Aid Board for his attention. If, after
considering the matter, he considers that a prima facie
case of dereliction of duty is disclosed against Mr
Creswick, he will be at liberty to refer this matter to
the appropriate disciplinary bodies. For the purpose
of his enquiries I record the following, that Mr
Creswick's offices are at No. 1 The Avenue, Corner
Henriette Road, Orchards, Johannesburg. His P O Box
number is 10531, Johannesburg, 2000. His telephone
number is 7281124. His fax number is 4833077 and his
Docex number is 332, Johannesburg.
This application is dismissed.
BRASSEY AJ
LABOUR COURT OF SOUTH AFRICA