Sneller Verbatim/ssl
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J884/00
2001-08-02
In the matter between
CITY EXPRESS STORES (PTY) LTD Applicant
and
ERNESTJOHANNES MOKHOTHU Respondent
___________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN J : City Express Stores (Pty) Ltd dismissed two of its employees for
theft. These two employees were Ernest Johannes Mokhothu and a lady referred
to as Sylvia.
Mr Mokhothu was dissatisfied with his dismissal and he referred a dispute to
the CCMA. The dispute came before Commissioner Molotsi who heard evidence
and then made an award in terms of which he found that the dismissal of Mr
Mokhothu was unfair. He ordered City Express to pay compensation to Mr
Mokhothu in the sum of R10 228,00.
Subsequently an application for review has been filed on behalf of City
Express Stores. This application has been opposed by FEDCOR, a union acting on
behalf of Mr Mokhothu.
I have examined the award carefully and it appears that the Commissioner
found that Mr Mokhothu had the keys to the safe as did Sylvia, that money was
missing from the safe in the amount of R18 577,00. The commissioner appears to
have accepted that, that money was stolen by Mr Mokhothu. However, he finds
that the manageress of the store, one Bernadette Seturumane, was demoted
because it was considered to be negligence on her part to hand the two keys, one
to Mr Mokhothu and one to Sylvia. He viewed the fact that the manageress was
merely demoted whereas Mr Mokhothu was dismissed as being an inconsistency
in imposing a sanction. This led him to conclude that Mr Mokhothu was entitled to
compensation.
During the course of argument I raised the question with counsel and with
the union representative whether it had been proved that Mr Mokhothu had stolen
the money. I raised this question because on the evidence which was presented
at the arbitration it is not clear and it does not appear to have been proven that
money in the sum of R18 577,00 was placed in the safe. It is not clear whether
any money was placed in the safe. The most that one can find is what the area
manager said, on page 68 of my papers. She was asked:
"On the 24th before the store was closed the money that was put in the safe, are
you are that it was not counted?"
Mrs Rantimo replies:
"I am not aware that it was not counted but what I know is that daily takings from
the computer stated clearly what was the amount of money put in the safe. Apart
from that Bernadette, the manager, can only verify that, not myself."
Quite clearly the evidence of Ms Rantimo is hearsay evidence. She was not
present. Furthermore to say that the computer indicates what amount of money
was put in the safe is palpably incorrect. The computer can only indicate what
money was received that day but it cannot indicate what happened to that money.
It certainly cannot indicate that the money was put in the safe. The only person
who can verify that is the person who counted the money, put it in the safe and
closed it. That, according to Ms Rantimo, was the manageress, Bernadette.
For reasons which are not clear and which the union very carefully pointed
out it its papers, the manageress was not called to give evidence at the arbitration
inquiry.
The difficulty with which I am faced is that the union has not taken this
point. However, the heads of argument make it clear that the question of the
theft is placed in issue.
In the circumstances I am not convinced that the theft has been proven on a
balance of probabilities. This is a gross misdirection on behalf of the
Commissioner who should have investigated that question. And secondly, if there
was indeed theft, then it appears to me that the Commissioner misdirected
himself in saying that the fact that the manageress was demoted indicates
inconsistency in sentencing.
In the circumstances it appears to me that justice will only be done by reviewing
and setting aside the award dated 21 January 2000 and remitting the matter to
the CCMA for a rehearing.
The first and second respondents are ordered to pay the costs.
_________________
Judge A A Landman
Judge of the Labour Court of South Africa
---o0o---