Sneller Verbatim/MB
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J217/00
2001-06-28
In the matter between
THEMBA MAHLANGU Applicant
and
THE COMMISSION FOR CONCILIATION,
1st Respondent
2nd Respondent
IMPUNZI COLLIERIES DIVISION
3rd Respondent
________________________________________________________________
J U D G M E N T
Delivered on 28 June 2001
________________________________________________________________
REVELAS J:
1.This is an application for the review of an award made by the second
respondent, a commissioner appointed by the Commission for Conciliation,
Mediation and Arbitration (CCMA) in terms of which it was found that the
applicant's dismissal by the third respondent was fair.
2.The applicant now seeks to set this award aside in terms of Section 145 of
the Labour Relations Act 66 of 1995, (“the Act”). The award is dated 29
November 1999.
3.The applicant was dismissed on 9 April 1999 following a disciplinary
inquiry at which he had been found guilty of misconduct on the charge of
"assisting in the theft of coal". In his arbitration award the
commissioner referred to certain circumstantial evidence led by the
third respondent, and came to his conclusion that the dismissal was fair
on that evidence.
4.The evidence mainly refers to three trucks which were apprehended in the
act of loading coal from the stockpile nearby the foreman's office. The
applicant was the foreman in question. One of the trucks, a Khumatsu
500, which was warm, was found parked outside the applicant’s office.
The third respondent argued that the most probable inference to be
drawn, from the uncontested facts, was that the applicant was aware of
the use of a Khumatsu loading truck in the loading of coal during the
commission of theft. This is so because the truck was warm, whereas the
front end loader which was to be utilized to load coal in the normal
course, the other front end loader was cold. The commissioner found
that the applicant participated in the coal theft.
5.Much of the evidence was attacked in the applicant's grounds of review.
The main allegation levelled against the arbitrator is that he did not
come to a logical conclusion based on the evidence before him, and that
the conclusion was not rationally connected to the evidence before him.
The other grounds of review are generally in the form of grounds for
appeal.
6.What is most important in this matter is that the applicant himself never
gave evidence. Certain versions were put to witnesses on his behalf,
and in those circumstances, in my view, it was entirely appropriate and
open to the second respondent to draw certain inferences.
7.Counsel on behalf of the third respondent conceded that the evidence lead
in this matter in order to prove the charges, may have been "skimpy",as
he puts it, but once the applicant did not give evidence, it became a
strong case. This is indeed so.
strong case. This is indeed so.
8.Furthermore, the inquiry is not whether I, when hearing the same evidence
would have come to a different conclusion. The test is whether the
arbitrator on the evidence before him, came to a conclusion which is
rationally connected to the facts. On that basis I do not believe I can
interfere.
9.Furthermore, much was made of the type of evidence on which the second
respondent based his conclusion. I want to make the point that there
was an employment relationship between the third respondent and the
applicant. It was not a matter of the applicant being a total stranger
in a criminal court where the case against him had to be proved beyond
reasonable doubt. (See: Council for Scientific and Industrial Research
v Fijen 1996 17 ILJ 18A at 26 E , and Chauke & Others v Lee Service
Centre trading as Leeson Motors 1998 19 ILJ 1441 LAC at 1447 paragraphs
32 to 33 ).
10.An employee in the position of the applicant would clearly be under an
obligation to prevent the theft of coal, and indeed to report such a
theft to his employer. The applicant's failure to take his employer
into his confidence was clearly indicative of guilty knowledge on his
part.
11.The applicant alleged that the keys of the truck were missing. It appears
that the arbitrator rejected this version for reasons that I cannot
interfere with.
12.In the circumstances I make the following order:
1.The application for review is dismissed with costs.
2.The matter is referred back to the CCMA for hearing before another
arbitrator.
On behalf of the applicant: Mr Mohlaba of Mohlaba and Moshoana Inc Aattorney
On behalf of the respondent: Adv C E WattPringle, instructed by
Denyes Reitz of Sandton.
_________________
E. Revelas