IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
NOT REPORTABLE
CASE NO D153/03
DATE HEARD: 2005/02/09
DATE OF JUDGMENT: 2005/02/11
In the matter between
DUMISANI MKHUNGO
APPLICANT
and
TOYOTA SOUTH AFRICAN MOTORS RESPONDENT
________________________________________________________
JUDGMENT DELIVERED BY
THE HONOURABLE MADAM JUSTICE PILLAY
ON 11 FEBRUARY 2005
________________________________________________________
ON BEHALF OF APPLICANT: Mr. S. Mhlanga
ON BEHALF OF RESPONDENTS: Mr. M. Maeso
Shepstone & Wylie
Attorneys
D153/03-FS/CD - 2 - JUDGMENT
D153/03-FS/CD - 3 - JUDGMENT
JUDGMENT 11 FEBRUARY 2005
PILLAY D, J
[1] This application for review is brought in terms of all the
sub sections of sections 145(2)(a) of the Labour
Relations Act No 66 of 1995.
[2] The applicant was dismissed for "gross insubordination:
disobeying reasonable and lawful job instructions,
inciting her employees, resulting in unprocedural
work stoppage."
[3] The second respondent arbitrator found that the third
respondent, the employer, had failed to prove the
second charge. The review proceeds only against the
finding that the third respondent had proved the first
charge against the applicant.
[4] The full transcript of the arbitration has not been found.
The transcribed evidence of the third respondent's
witnesses is not before me. As much turns on the
credibility of the witnesses on both sides, I am
hamstrung in making a proper assessment without a
full transcribed record. The typed notes of the
arbitrator are not sufficient to assess the quality of
the evidence of the witnesses to the extent that is
required for the grounds of review in this case. For
this reason alone the review could be dismissed.
[5] Neither party, however, raised any concerns about the
absence of a full record. Consequently, I will consider
the merits of the review.
D153/03-FS/CD - 4 - JUDGMENT
[6] The third respondent's version:
On 12 December Mr A R Armstrong saw the applicant
during working hours not going about his duties. He
was sitting on a table swinging his legs. He told the
applicant to start working but he refused to do so,
telling Armstrong to "Hamba, suga, suga." The
applicant received an instruction from Dean Furman,
the production manager to wait outside his door until
human resources staff arrived. The applicant refused
to do so. He was further instructed to return to
Furman's office at 3.00 pm with a representative. He
failed to do that too.
[7] The applicant's version:
The applicant denies that Armstrong told him to work.
Armstrong merely asked him what he was doing and
he replied that he was waiting for two other members
of his team who had gone to fetch components and
equipment for his job. Armstrong declared that he
would sort the applicant out and left. He did not give
the applicant any instructions to return to work or tell
him specifically what work he should do.
Furman called the applicant to his office.
When he got there he found that Furman
was on the telephone to the human
resources department. He did not speak to
Furman. He waited until tea and left. At
3.00 pm Armstrong told him to report to
Furman who told him to get a representative
and he was to be suspended.
He found a shop steward just before clocking-off time.
The shop steward said he would attend to the matter
D153/03-FS/CD - 5 - JUDGMENT
the next day.
[8] The first ground of review was that the arbitrator
misconstrued the charges. The applicant alleges that
there was only one job instruction, as evident from
the minutes of the inquiry (page 100 of the record).
This is obviously a typographical error as the charge
sheet, page 94 of the record, refers to "job
instructions". Moreover, evidence was led at the
inquiry and at the arbitration about at least three
instructions that the applicant refused to obey. The
first was his refusal to return to work; the second was
his refusal to wait outside Furman's office until the
human resources staff arrived; the third was his
failure to attend with his representative at Furman's
office at 3.00 pm on 12 December 2003. This
appears to be the principal ground of the review and
it fails.
[9] The second ground of review relates to the arbitrator's
"handling of the instruction to do other things." I
cannot apply my mind to the 18 issues raised in
support of this ground in the absence of the full
transcript of the proceedings. They are vigorously
contested in the respondents' opposing affidavit. A
replying affidavit filed by Mr Jafta for the applicant is
of no assistance to the Court as it is hearsay and not
the direct evidence of the applicant. Furthermore, the
grounds set out in paragraphs 10.1 to 10.18 are
grounds of appeal, not grounds of review.
[10] At the best of times a reviewing court has great difficulty
D153/03-FS/CD - 6 - JUDGMENT
in assessing the credibility of witnesses from the
record. That difficulty is compounded in this case
because there is no transcript. Whether the applicant
was issued with instructions, what these instructions
were and whether he had a reasonable explanation
for not obeying them, turns on the credibility of the
witnesses. Nevertheless, it is common cause that
even if the instructions were issued, the applicant did
not comply with it. It is not possible on the record
before me to consider all the elements that constitute
the offence of insubordination.
[11] From the portion of the transcript that was available to
the Court, it would appear that the applicant was an
evasive witness during cross-examination. Almost
every question had to be repeated or clarified for
him. He seldom answered a question directly.
[12] In all the circumstances, the application for review falls
to be dismissed.
[13] The Court retains a discretion as to whether to order a
rehearing of a matter. From the limited insight that I
have been afforded into this case, it seems to me that
the applicant should not be afforded a rehearing of
the matter. There is no explanation as to why the full
transcript has not been placed before the Court. It
may well be that the record is available and the Court
could come to a better decision on the merits of the
matter if a full record was placed before it. However,
as the first ground seems more contrived than real
and as the second ground makes out a case for an
D153/03-FS/CD - 7 - JUDGMENT
appeal, there is no basis to refer the matter back for
a hearing.
[14] In the circumstances, the application is dismissed with
costs.
__________
Pillay D, J
28 April 2005