D1009/2000-CRB/CD - 1 - JUDGMENT
CASE NO : D1009/2000 Revised/Reportable
DATE : 26 February 2001
RAINBOW FARMS (PTY) LTD versus CCMA & R NGIDI
JUDGMENT
PILLAY J
[1] The employee was charged for unauthorised removal of company property and dismissed on
11 February 2000. He referred the dispute to arbitration. The arbitrator found his dismissal to
be substantively unfair. One of the arbitrator's reasons for doing so was based on the fact that
the employee had made a confidential report to the management before the incident that there
was theft taking place in his department. The arbitrator found it strange that an employee who
was allegedly involved in theft would alert his employer to it. The arbitrator was also cautious
about the evidence of the accomplice who testified for the employer in return for indemnity
from criminal prosecution. He criticised the chairman of the inquiry for not exercising similar
caution.
[2] If the arbitrator had stopped at this point, his award way well have withstood the tests in
Carephone (Pty) Ltd v Marcus and Others (1998) 11 BLLR 1093 , Toyota South Africa Motors
(Pty) Ltd v CCMA and Others (2000) 21 ILJ 340 (LAC) and Shoprite Checkers (Pty) Ltd v
Ramdau NO & Others 2000 21 ILJ 1232 (LC) . However, the arbitrator advanced two further
reasons which emerge from
the following paragraph in his award:
"I consider also the evidence of Mkhize. Mkhize testified that he was not present when the
theft was planned between the applicant, Sidwell and Raphael. He only heard a report from
1
D1009/2000-CRB/CD - 2 - JUDGMENT
others. Those who were involved in the conspiracy, that is, Sidwell and Raphael, were not
called by the company as witnesses. In addition Mkhize testified that the main link between
the applicant and the theft was the fact that the applicant received money but he, Mkhize, was
not present when the applicant received the money."
The arbitrator was obviously unaware that the employee and Raphael were one and the same
person. His failure to realise that the employee and Raphael were one and the same person
is a mistake of fact which vitiates the entire proceedings. Whenever Raphael's name was
mentioned in the evidence, he did not relate it to the employee. He appeared to accept
Mkhize's evidence that Raphael was involved in the conspiracy. On that basis the proper
finding should have been that the employee was involved in the conspiracy. The materiality of
this defect is also evident from the next finding.
[3] The arbitrator found that the accomplice Mkhize was not present when the employee received
money. However, recorded in the his own handwriting, the evidence of the arbitration reads
as follows:
"Statement of Mkhize: Was present when Sidwell gave R150 to Raphael."
As he believed that Raphael and the employee were not the same person, he did not deal
with the evidence that the employee had allegedly received money in connection with the
theft. The paragraph of the award quoted above demonstrates that the arbitrator failed to
apply his mind to the material properly before him.
[4] Further examples of the arbitrator not having applied his mind have been pointed out to the
Court. Other grounds have also been advanced for the setting aside of the award. However,
as the above two reasons are decisive for the purposes of setting aside this award, the other
2
D1009/2000-CRB/CD - 3 - JUDGMENT
grounds have not been canvassed in this judgment.
[5] In the circumstances the Court grants an order in the following terms:
The arbitration award under case No 44024 is reviewed and set aside. The matter is referred
to the CCMA to be reheard as a matter of urgency before another commissioner. There is no
order as to costs.
3
IN THE LABOUR COURT OF SOUTH AFRICA Revised/Reportable
HELD AT DURBAN Case No D1009/2000
In the matter between:
RAINBOW FARMS (PTY) LIMITED Applicant
and
RAPHAEL NGIDI First Respondent
COMMISSIONER AUBREY B NGCOBO Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
PRESIDING OFFICER JUDGE PILLAY
FOR APPLICANT MR M MHLONGO
FOR RESPONDENT MR P J BLOMKAMP
JUDGMENT
26 FEBRUARY 2001
SNELLER RECORDINGS (PTY) LTD
DURBAN
TEL: 0312665452
FAX: 0312665459
4