IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Before Revelas J on 23/05/2001
CASE NO: J2816/98
In the matter between:
1 st Applicant
2 nd Applicant
and
1 st Respondent
2 nd Respondent
3 rd Respondent
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JUDGMENT
REVELAS J:
1.This is an application which concerns a review of an award made by the second respondent, the arbitrator, in which
the arbitrator held that the second applicant who is the erstwhile employee of the third respondent, had failed to
discharge the ones placed on him in terms of section 192(1)(a) of the Labour Relations Act 66 of 1995, the act
in that he had not established the existence of the dismissal. He had, however, invoked the dispute mechanisms
of the CCMA to arbitrate what he says was a dismissal.
2.It is common cause that on altercation occurred at the mine of the third respondent which culminated into an assault
which ended in the second applicant, Mr. Mothobi, pouring bucket full of boiling water of Mr. David Cohen,
his supervisor, causing severe injuries. That much was found by the arbitrator.
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3.Mr. Mothobi, who is the second applicant, fled the scene and approached the offices of the National Union of Mine
Workers about the altercation and according to him, he was advised by them to approach the third respondent to
recover his outstanding monies.
4.On the first applicant’s version the second respondent had disappeared, fled the mine and removed his belongings
from the hostel. The work force than went out to look for him. At some stage the second applicant thereafter
approached the manager of the mine, Mr. Weltsman to report the incident. Harsh words were exchanged and a
scuffle broke out. Mr. Weltsman then directed a gun in the direction of the second applicant in an attempt to
force him into a vehicle. He wished to apprehend the applicant. The arbitrator also found that Mr. Weltman’s
actions constituted an attempt to apprehend the second applicant.
5.Mr. Weltman also testified that he attempted to protect himself as he feared an attack by the second applicant and he
wanted to turn him in to the police for the assault on Mr. Cohen.
6.The arbitrator, in making her award, was not persuaded on the facts lead before her that there had been a dismissal
and consequently that the applicant had not discharged the onus of proving such a dismissal.
7.The first and second applicants argued before the arbitrator that the combined facts amounted to a dismissal. Much
reliance was placed on the fact that Mr. Weltman had at some stage said there “was nothing more to discuss”.
8.In my view, there is nothing on the papers before me which would suggested the arbitrator is guilty of any
misconduct, any gross irregularity in the conduct of the proceedings or that she had exceeded her powers or that
the award had been improperly made, or that her decision was irrational. In the circumstances the application
should fail.
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9.I am not prepared to grant a cost order against the applicant. The respondents’ did not file heads of argument despite
two occasions on which it was granted the opportunity to rectify the position.
10.I therefore make the following order:
1.The application is dismissed.
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E. Revelas
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