IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No: JR 738/03
In the matter between
JABULANI KHUMALO Applicant
And
COMSSISSION FOR CONICILIATION, 1st Respondent
MEDIATION AND ARBITRATION
COMMISSIONER R D FITZCHARLES 2nd Respondent
SKY MARK SECURITY 3rd Respondent
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JUDGMENT
REVELAS J: This is an application for the review of a ruling handed down by the second
respondent (“the commissioner”) wherein he found that the Commission for Conciliation
Mediation and Arbitration (“the CCMA”) did not have the necessary jurisdiction over the
dispute between the applicant and his former employer SKY MARK SECURITY (the first
respondent). The applicant had been employed as a security guard. According to the applicant,
he had been dismissed by the first respondent in July 2002 when he objected to a reduction in
his salary. According to him, he was given the choice of accepting the reduction or resigning.
In his founding affidavit he states the following:
“On or about the first week of July 2002 when I went back to work, Kim Cawalha told me that
my position is no longer available”
He then referred a dispute an unfair dismissal where the commissioner having heard both
parties, ruled that the applicant had not been dismissed. Hence the lack of jurisdiction.
According to the first respondent, consultations were held with the applicant’s Union with
regard to the downgrading of security guards as an operational requirement. The applicant
refused to cooperate in this process. Documentation to the effect that the applicant was still
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employed at the relevant time was put before the arbitrator.
The arbitrator rejected the evidence of the applicant on the basis of unreliability. He accepted
the first respondent’s version that the applicant was never dismissed. On his own version, the
applicant had left!
From the ruling it would appear that the applicant’s case before the commissioner was that the
downgrading was unacceptable to him. No mention is made of the fact that he was presented
with a choice of resigning or accepting the downgrading, as the applicant would have it in his
founding application to the review application.
In order to have the ruling in question set aside, the applicant had to demonstrate that the
commissioner did not apply his mind to the evidence before him and came to a conclusion
which is not rationally connected to such evidence.
Firstly, the commissioner made a credibility finding and a review court or a court of appeal
should be very cautious to interfere in such findings. The person hearing the evidence has had a
better opportunity to observe the witness and unlike commissioner in question, this court was
not steeped in the atmosphere of those proceedings.
Secondly, there is no record of the proceedings to support the applicant’s submissions. Even if
the matter is unopposed, I still have to evaluate the available evidence.
Finally, the applicant has filed to demonstrate any grounds upon which I could interfere with
the ruling of the second respondent.
The application was dismissed accordingly.
____________________
E. Revelas
Applicant appeared in person.
1. Date of hearing 9 March 2004.
2. Ex tempore judgment handed down in court.
3. Typed judgment not available and typed reasons furnished.
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