Sneller Verbatim/aj
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR795/03
2005- 03-17 REPORTABLE
In the matter between
THE DEPARTMENT OF PUBLIC WORKS,
ROADS AND TRANSPORT Applicant
and
TS MOTSHOSO 1st Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL 2nd Respondent
MOKETE MOLOI (Commissioner) 3rd Respondent
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J U D G M E N T
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REVELAS, J : This is an application to review an award made by the
third respondent, the arbitrator who conducted an arbitration under the
auspices of the General Public Service Sectoral Bargaining Council (or
“the second respondent”). The award was made in favour of the first
respondent who was a former employee of the applicant and who was
dismissed by the applicant following an enquiry into certain disciplinary
offences. These offences related to inter alia, the service weapon which
was issued to him by the applicant. In terms of the arbitrator’s award
he was reinstated.
The nature of these offences I am not going to discuss in any great
detail in this judgment. It is however important to know that the first
respondent was convicted of murder and that conviction, is now the
subject matter of an appeal. The Supreme Court of Appeal has not yet
determined the fate of the first respondent in that regard. The incident
which gave rise to the criminal and disciplinary offences took place on
about 25 January 1999. A disciplinary hearing was held only on 24
November 2000. The decision to dismiss was upheld on appeal on 23
July 2002. The outcome of the appeal to the respondent was
communicated on 16 August 2002.
It took the applicant more than three years to finalise this disciplinary
enquiry in repect of the first respondent’s alleged offences. His
Sneller Verbatim/aj
desciplinary hearing was held virtually two years after the alleged
offences occurred.
The applicant seeks to set aside only the re-instatement part of the
arbitrator’s award. It was argued on behalf of the applicant, that since
the arbitrator relied on a procedural defect to come to his conclusions,
re-instatement was inappropriate.
It was indeed only a procedural defect which the arbitrator relied upon,
that being the inordinate delay of three years and seven months to
complete the disciplinary investigations, to arrive at a decision in this
matter.
The applicant also relied on the several cases relating to prejudice of
accused persons when there is a delay in prosecuting criminal matters.
The arbitrator then held that the delay in this case was so grossly
unfair, that it vitiated the decision to dismiss the first respondent.
In my view, that view is correct, particularly on the facts of this case.
The arbitrator on numerous occasions during the hearing, enquired
about the reason for the delay. On one of these occasions the arbitrator
was told by the applicant’s representative, that the reason for the delay
will not be addressed. The record reflects that generally this line of
enquiry was deflected by the applicant’s representative. There simply is
no explanation for the delay.
The arbitrator indeed applied his mind when applying the law and
relying on the case of Union of Pretoria Municipal Workers and Another
v Stadsraad van Pretoria 1992 (1) IJ1563. In this matter De Kock, SM
held that
"The failure to convene an enquiry promptly in a similar in casu is
so
grossly unfair that it vitiates the deicision to dismiss. (at 1570 D-E)"
This judgment was not overturned on appeal.
I see therefore no reason to interfere with the decision that the arbitrator
came to.
came to.
There is one portion of the arbitration award (the granting of
compensation in addition to reinstatement) which was incorrect, and
that could be rectified by this order:
1. The application is dismissed with costs.
2. Paragraph 4 of the award (relating to compensation) is set
aside.
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E. REVELAS
Sneller Verbatim/aj
DATE OF HEARING: 16 MARCH 2005
DATE OF JUDGMENT: 17 MARCH 2005
ON BEHALF OF THE APPLICANT: Mr Gough (State Attorney)
ON BEHALF OF THE RESPONDENT:Allardyce & Partners