Sneller Verbatim/MS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J5133/99
2003-05-02
In the matter between
MLA POWER SYSTEMS Applicant
and
NUMSA Respondent
_________________________________________________________
J U D G M E N T
__________________________________________________________
LANDMAN, J : MLA Power Systems (Pty) Ltd seeks to review
and set aside an award handed down by the first respondent, a
Commissioner of the CCMA. The reward required MLA to
reinstate Mr Gumbi who had been dismissed after assaulting a
young boy on the employer's premises.
Gerrit Visser who was 8 years old at the time, entered
the premises of MLA Power Systems (Pty) Ltd. He was in the
company of his father who is employed there. Gerrit told the
CCMA that he was playing with the workers. He was using
swear words and they returned the swear words. He used
words referring to the private parts of their mothers. These
workers were working at their tasks at this time. Gerrit says
that Mr Gumbi, with whom he was not playing, probably
thought he was playing with him i.e. swearing at him. Gerrit
says Mr Gumbi swore at him.So he threw a plastic insulator
sleeve at Mr Gumbi. Gerrit picked up a hammer but said he
did nothing with it.
Mr Gumbi then swore at him. Mr Gumbi picked up a bolt
(the evidence regarding the size of this bolt varies between 10
millimetres and 25 millimetres). Mr Gumbi threw it at Gerrit
and it struck Gerrit on his ribs. A black mark was still visible a
week after the incident. Gerrit quit the scene crying and
reported the incident to his father. Mr Gumbi did not deny that
he had thrown an object, which he said was a washer, at
Gerrit. Mr Gumbi said at the arbitration hearing:
"I was at the drilling machine drilling some plates and I was hit
by an object right at the, and he is indicating showing close to
the corner of the right eye. I then asked who is the one who is
hitting me and I was told it was the young boy. In that I did
not know why I was being hit by him, I went to him and asked
why do you hit me with this object. As I approached him he
picked up a hammer and said to me: "Come" and then used
the words to me: 'Fucking Kaffir fucking black.' Then he used
the swearing words: 'Malebe kanyoko.' I then reprimanded
him for that and I went back to the machine where I was
working. I continued drilling. Then when I was busy working
he went to the dustbin and picked up a sort of stick and he
came back and hit me therewith. And then I picked up a
washer from the floor and I sort of scared him away therewith.
In that I did reprimand him as a child, I know even your child
you first reprimand and then give him strong notice. I was not
intending to hit him or injure him. I was just scaring him off
and I believe that it can be seen by the type of washer I used,
that I had no intention to injure him.
And a short while thereafter Roger appeared as well as the
child's mother. Then the child’s mother uttered words which
she said, that a black man or black person has hit the child
and then I gave her an explanation of what happened and I
also give the same explanation to Roger. In that Roger
appeared immediately after the incident, I have no reason to
go and report this matter anywhere else and that is all."
The Commissioner came to the following conclusion:
"It is common cause that Mr Visser [this is a reference to the 8
year old boy] was injured by Mr Gumbi. There is evidence,
that although it was denied by Mr Visser, Mr Gumbi felt
insulted by Mr Visser's reference to his mother's private parts.
If Mr Visser did not make such a reference there would be no
reason for Mr Gumbi to retaliate. In addition there is evidence
that some objects were hurled by both of them. From this
perspective, I am satisfied that on a balance of probabilities,
Mr Gumbi felt provoked by Mr Visser. However, in the
circumstances his reaction was disproportionate to the threat
posed by Mr Visser an eight (8) year old boy. Assault is viewed
as a serious violation of bodily integrity and frowned upon by
the society. Employers are not expected to show any degree
of tolerance towards such conduct. Assault is viewed as gross
misconduct which could lead to summary dismissal. However,
the presence or absence of mitigating circumstances in each
individual case must be considered. One of the factors that
should be taken into account is the assailant's state of mind.
Provocation may diminish the assailant's guilt. I must
determine whether Mr Gumbi was provoked to the degree that
he was justified to assault Mr Visser. South Africa has just
managed to avert a civil war which could plunge this country
into an abyss. Despite this racial hatred cultural insensitivity
and hate speech are still in existence in every facet of the
society. It is in this context that the provocation should be
viewed. At the same time, sight should not be lost to the fact,
that the victim was a child. There is no evidence that Mr
Gumbi is inclined to violent behaviour. From this point of view,
I am satisfied that Mr Gumbi is guilty of assault, but dismissal
was inappropriate in the circumstances."
MLA complained that the award is reviewable and relies
upon eight grounds of review. The first ground, is that the
Commissioner failed to apply his mind to the material placed
before him and failed to justify, alternatively rationally justify,
why he accepted Mr Gumbi's version on the issue of alleged
provocation to that of MLA, on a balance of probabilities. It is
clear from Gerrit's own evidence that he allows for the
possibility that Mr Gumbi thought he was swearing at him. In
view of the admitted use of highly offensive swear words by
Gerrit on this occasion, this admission is justified. The
Commissioner finds that Mr Gumbi felt provoked. This finding
‘I think’ is a generous one.
The second and further ground of appeal are found in
paragraphs 8.2 and 8.6 they read:
"8.2 The Commissioner failed to rationally justify his finding,
that the dismissal was an inappropriate sanction, in view of the
conclusions he reached as set out in paragraph 7.1, 7.2, 7.4 to
7.6 of the founding affidavit and in view of the material placed
before him at the time.
8.6 The Commissioner exceeded his constitutionally granted
powers, in that he interfered without justification with the
reasonable response of the applicant at the time, to dismiss
the fourth respondent in respect of the assault."
The Commissioner's finding, that dismissal was
inappropriate, is in my view a justifiable decision. The incident
was not of Mr Gumbi's own making. He was executing his
tasks at the time. The assault was in the circumstances an
understandable pardonable response to severe oral and
provocation. This notwithstanding that Gerrit was young boy.
I may point out that here too, the Commissioner may have
been generous towards the employer, as regards the question
whether Mr Gumbi intended to harm Gerrit. This was not
investigated in any detail.
A Commissioner will not likely interfere in the sanction
imposed by an employer. In this case, the Commissioner was
entitled to intervene, as the employer's sanction was
disproportionate in the circumstances.
The next ground is set out in paragraph 8.3. It is said,
the Commissioner contradicted himself in clauses 8 and 9 of
his award, in view of the findings that he made, which were set
out in paragraphs 7.1, 7.2, 7.4 and 7.6 of the founding
affidavit. The Commissioner has not contradicted himself. He
has properly taken into account the context in which the
assault occurred.
The next ground is set out in paragraph 8.4. It is that the
Commissioner misconducted himself and that used his
personal racial perceptions to justify a finding against MLA.
There is no merits in this. What is termed, the Commissioner's
"personal racial perceptions", is a factual statement regarding
the effects of racial intolerance. It is one which concerns every
right thinking citizen in this country. It was entirely
appropriate for the Commissioner to take this into account.
Lastly, it is said that the Commissioner failed to apply his
mind to the interests of MLA, and the submissions made on its
behalf, regarding the impact of the assault and the trust
relationship between the parties. The Commissioner diligently
took into account considerations and factors which must be
weighed in considering an appropriate sanction. These
include:
(a) The nature of the offence including its context.
(b) The interests of the employer.
(c) The interests of the employee; and
(d) The interests of society at large.
The trust relationship was not MLA's cause of concern. It
was not mentioned at the disciplinary enquiry. There is
nothing to show that Mr Gumbi cannot be trusted. On the
contrary, he has a good record. The incident is unlikely to
repeat itself. Hopefully Gerrit will resist from playing his game,
which he must by now know, is totally unacceptable.
There is no reason to interfere with the award. The
application is dismissed.
SIGNED AND DATED AT BRAAMFONTEIN ON 5 JUNE 2003
_________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT: GUARDIAN EMPLOYER’S ORGANISATION