Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR170/01
2002-12-11
In the matter between
MAGNUM SECURITY (PTY) LTIMITED Applicant
and
PETRUS THOBEJANE 1 ST
Respondent
2ND Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 3RD Respondent
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J U D G M E N T
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REVELAS J:
1. The first respondent was dismissed by the applicant
pursuant to a disciplinary inquiry where he was found
guilty of certain misconduct. The first respondent
then referred a dispute about an unfair dismissal to
the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”), where the second respondent
arbitrated the matter under the auspices of the CCMA
and made an award in favour of the first respondent,
finding that the dismissal was unfair.
1. 2. The applicant has brought an application to review
this arbitration award in terms of section 145 of the
Labour Relations Act 66 of 1995 (“the Act”) and have it
set aside.
3. There are several grounds upon which the applicant
brought this application for review. However, this
award falls to be set on the first ground and it is not
necessary to consider any of the other grounds.
4. What the second respondent had done, is to accept the
evidence of a witness (as reliable), who did not
testify under oath. He disbelieved a witness who did
testify on oath. In the matter of Morningside Farms v
Van Staden No and another [1998] BLLR 488 LC, this
Court held that an arbitrator who does not hear
evidence of any party under oath commits a gross
irregularity. It may have been that the Labour Court
went too far in that case and applied a test which is
too strict, but in a further case, Landman J held that
arbitrators are entitled to conduct proceedings within
their own discretion. However, conduct such as under
consideration in this judgment, where some witnesses do
testify under oath and some do not, and where unequal
weight is given to their testimonies, does amount to an
irregularity. Landman J described it as “legal
misconduct” and said it amounted to a defect
contemplated in S145 of the Act (See: Mthembu & Mahomed
Attorneys v CCMA and others (1998) 19 ILJ 144 (LC) at
148 AC ).
1. 5. In these circumstances alone, the award ought to be
set aside and is referred back to the CCMA to be
arbitrated by a different commissioner.
6. In the circumstances it is ordered that:
1. The award of the second respondent is set aside.
2. The dispute is referred back to the Commission of
Conciliation, Mediation and Arbitration for
arbitration.
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E. Revelas
ON BEHALF OF APPLICANT : Mr. C Beckenstrater from MOODIE & ROBERTSON
ON BEHALF OF RESPONDENT : MOSEGOMI ATTORNYS. c/o
LEGODI Attorneys.