IN THE LABOUR COURT OF SOUTH AFRICA
                     HELD AT PORT ELIZABETH
                                
                                                CASE NO. P 125/97
                                                                 
In the matter between:

VENTURE MOTOR HOLDINGS LTD
t/a WILLIAMS HUNT DELTA                            Applicant

and

NOMBULELO THELMA BIYANA                 First Respondent
E A MAEPE N.O.                           Second Respondent
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA                          Third Respondent
                            JUDGMENT
_______________________________________________________________

TIP AJ

     [1]   Until  her  dismissal  on 15  April  1997,  the  first
     respondent had been employed by the applicant for some  five
     years  as  a  petrol attendant. She was found to  have  been
     involved   in  a  fraudulent  transaction  on   the   garage
     forecourt.  The dismissal was disputed and referred  to  the
     Bargaining Council of the Motor Industry for conciliation.
[2]   The  conciliation was unsuccessful  and  it  was  then
     referred  to  the CCMA for arbitration. The arbitration  was
     conducted by the second respondent on 15 September 1997.  On
     the  following  day,  the  second respondent  delivered  his
     award,  in  which  he  determined  that  the  dismissal  was
     substantively  unfair and ordered that the first  respondent
     be reinstated.
[3]  The applicant seeks to have that award reviewed and set
     aside.   It  relies  on  a  number  of  grounds  which   may
     conveniently be condensed into three categories:
       1.   the applicant contends that the second respondent ought to
          have disclosed that he had previously been employed for a number
          of years as a legal adviser of the third respondent, of which the
          first respondent was a member and by which she was represented;
2.   it contends that there were a number of irregularities in
the manner in which the second respondent conducted the
arbitration proceedings; and
3.   it contends that the findings made by the second respondent
stand in such stark contrast to the clear evidence presented that
one must infer that he acted in a grossly irregular and/or biased
manner.
[4]  In respect of the second category, being the conduct by
     the  second  respondent of the proceedings, certain  aspects
     are  common  cause, whilst others are to varying degrees  in
     dispute. For the purpose of this judgment, it is unnecessary
     for  me  to have regard to matters where disputes have  been
     raised,  since  I  have concluded that  the  applicant  must
     succeed  on  the basis of what is common cause  and  on  the
     inferences to be drawn therefrom.
[5]   For  the  reasons that will be set out later  in  this
     judgment,  the second respondent's award is to  be  reviewed
     and  set  aside  because he did not take into  consideration
     material evidence relating to the issue before him. That  is
     a  sufficient ground and I decide the matter on that  basis.
     Nevertheless, it is apposite that I should address two other
     aspects of the proceedings, without deciding whether or  not
     they  are in themselves sufficient to warrant the review  of
     the award.
[6]   In  relation  to  the  second respondent's  employment
     history,  Mr Johns who is the applicant's financial  manager
     and deponent to its founding affidavit, averred that:
          "If  I had been made aware of second respondent's prior
          involvement  with  third  respondent,  I   would   have
          objected to him hearing the matter."
[7]  Section 136 of the Labour Relations Act, No. 66 of 1995
     ("the  Act")  contains certain provisions  relating  to  the
     appointment of a commissioner for the purpose of arbitration
     proceedings. In section 136(3) provision is made for a party
     to object to the commissioner who conducted the conciliation
     being  the  one  to conduct the arbitration. Section  136(4)
     stipulates  that if such objection is made,  the  Commission
     "must"  appoint another commissioner. Section  136(5)  makes
     provision for parties to indicate a preference in respect of
     the arbitrator.
[8]   None  of those sections specifically provides  for  an
     objection  to  be  made to the appointment of  a  particular
     commissioner,  in the circumstances of the  present  matter.
     That, however, does not have the result that the capacity of
     a  party  to  raise such objection is thereby removed.  Such
     capacity  has its origins in the common law. Where  a  party
     has  a reasonably well founded apprehension that it will not
     receive  an  impartial  and unbiased  hearing,  it  will  be
     entitled to seek relief.
                See: Sera v De Wet 1974 (2) SA 645 (T) at 655  in
     fin-656B;
               BTR  Industries  SA (Pty) Ltd  v  Metal  &  Allied
               Workers Union 1992 (3) SA 673 (A) at 693I-J.
[9]    The  common  law  considerations  relating   to   the
     impartiality  of  the  arbitrator and, consequentially,  the
     duty of disclosure, apply no less strongly where arbitration
     is  compulsory than they do where the entry into arbitration
     is voluntary.
[10]  In Butler & Finsen Arbitration in South Africa  :  Law
     and  Practice  (Juta 1993) at page 72, the  learned  authors
     identify "a business or social relationship, either  present
     or  past" as holding the potential that an arbitrator  might
     be prejudiced one way or the other. They cite a passage from
     Mustill   and  Boyd  The  Law  in  Practice  of   Commercial
     Arbitration  in England (Butterworths 1989)  at  252,  which
     sentiment I consider applicable in the present matter:
          "A  person who is approached with a request to act, and
          knows that he has some kind of relationship with one of
          the  parties, should remember that there is  no  keener
          sense  of  injustice than is felt by  someone  who  has
          doubts about whether the arbitrator is doing his honest
          best. He should also bear in mind that the question  is
          not just whether he really is impartial, but whether  a
          reasonable outsider might consider that there is a risk
          that he is not ... If he considers that the case is  on
          the  borderline,  he should disclose the  circumstances
          which  may  give rise to suspicion; and  he  will  very
          often   find  that  no  objection  is  taken   to   his
          appointment: candour is always the best way to  prevent
          misunderstandings."
[11]  In  response  to  the review application,  the  second
     respondent has filed a handwritten affidavit. In relation to
     the  complaint  that he should have disclosed  his  previous
     employment  relationship  with  the  third  respondent,  the
     second respondent states:"
          "There is no provision in the Act for a commissioner to
          disclose  where he comes from by way of disclosing  his
          background.  It is not practice in any CCMA arbitration
          proceedings  for  an  arbitrator  to  disclose  his/her
          background prior to commencing arbitration proceedings.
          ...  The  CCMA has appointed commissioners from various
          fields  and  professions ... This  background  did  not
          influence my decision ... It has never occurred  to  me
          in  any arbitration proceedings that I have to disclose
          my previous involvement. Neither is it a requirement as
          indicated above."
[12] The tenor of this response does nothing to advance  the
     view  that the second respondent approached his task with  a
     proper  understanding of the importance  of  both  real  and
     perceived impartiality. Simply to aver that the Act does not
     require  disclosure and that it is neither his practice  nor
     that  of  the CCMA to do so, reinforces the sense  that  the
     second  respondent conducted himself in an  insensitive  and
     inappropriate manner.
[13]  It is by no means required of a CCMA commissioner  who
     undertakes  a  conciliation or arbitration that  he  or  she
     should  in each and every case preface proceedings  with  an
     exposition of his or her background. But where,  as  in  the
     present  case,  there was a lengthy and  close  relationship
     between  the  commissioner and one of the  parties,  then  a
     clear duty arises to make disclosure of such fact.
[14]  In  the circumstances, I find there to be considerable
     merit in the complaint raised by the applicant.
[15] I turn now to a consideration of the facts relating  to
     this  matter,  in the course of which I will deal  with  the
     second  disturbing  aspect of the  approach  by  the  second
     respondent to the matter before him.
[16]  The  first  respondent's  dismissal  arose  out  of  a
     transaction  conducted by her on 17 January 1997,  in  which
     she  processed  a  Speedpoint debit against  an  Auto  Card.
     Approximately  two  months later, the applicant  received  a
     letter and transaction report from the First Auto divisional
     office, setting out that the transaction in question was one
     of   a   series  of  fraudulent  transactions  involving   a
     particular  Auto  Card. The applicant was informed  that  it
     would therefore not be paid out for the amount transacted by
     it, being R161,82.
[17] It is common cause that the second respondent was fully
     informed  of  the  procedures on the applicant's  forecourt,
     where petrol is dispensed. It is common cause also that part
     of  the  process involved checks by a supervisor before  and
     after  every  shift, which inter alia established  that  the
     amount  of  takings  (reflected in Speedpoint  vouchers  and
     cash)  was  in balance with the amount of petrol  which  had
     been  pumped out. This had been done in respect of the shift
     in question. The amounts were in balance.
[18]  The  crisp  question before the second respondent  was
     whether  or  not the transaction in question was genuine  or
     fraudulent.  If it were genuine, it would mean  that  petrol
     was  dispensed  in  the  amount shown  on  the  voucher.  If
     fraudulent, in consequence of the fact that takings were  in
     balance  with the amount of petrol dispensed, it would  mean
     that the first respondent had substituted a false Speedpoint
     voucher  for  an equivalent amount of cash. That  amount  of
     cash  would  necessarily have been extracted from  the  cash
     takings  in  respect  of  petrol  which  had  in  fact  been
     dispensed.
[19]  In the proceedings before the second respondent,  four
     of  the  five vouchers and the First Auto transaction report
     were  submitted in evidence. They show that in the space  of
     less  than 11/2 hours and at five different garages  in  and
     around central Port Elizabeth, the driver of a vehicle  with
     registration number CB 75329 had conducted five transactions
     on  an Auto Card. The fourth of these was the one transacted
     by the first respondent.
[20]  In each case, the voucher purports to reflect  that  a
     substantial  quantity of petrol had been  dispensed.  It  is
     manifestly  clear that they could not all have been  genuine
     transactions conducted in the course of normal  use  of  the
     vehicle in question.
[21]  It  is  a striking and material feature of these  five
     transactions that they were all made in virtually  identical
     amounts:  the first was in an amount of R161,81, the  second
     in  an amount of R161,81, the third in an amount of R161,80,
     the fourth (involving the first respondent) in an amount  of
     R161,82 and the fifth and last in an amount of R160,00.
[22]  The  virtual identity of these amounts and their  time
     frame  raises as an overwhelming probability, the  inference
     that the transactions could not have been genuine ones.  The
     processing  by the first respondent of the fourth  of  these
     transactions had to be evaluated in the context of them all.
     The same inference arises.
[23]  It is common cause that the applicant's representative
     in  the  arbitration  proceedings  outlined  to  the  second
     respondent  the  virtual identity of  all  the  transactions
     conducted  that evening with the card in question  and  that
     the   link   between  these  transactions   was   explained.
     Notwithstanding  that,  the  second  respondent   took   the
     following view:
          "I  am  not satisfied that the documents obtained  from
          other  filling  stations could be used to  justify  the
          dismissal of the applicant given the fact that she  has
          no links with those particular filling stations."
[24]  That  approach  on the part of the  second  respondent
     shows, at best, a complete failure on his part to grasp  the
     significance  of  the  similarity in  transactions  and  the
     implications  of  the  fact that the  first  respondent  had
     carried one out during that sequence.
[25] During the arbitration, the applicant also presented in
     evidence  a  printout of the vehicle specifications  for  CB
     75239. It reflects that its fuel capacity was 65 litres. The
     Speedpoint   voucher  transacted  by  the  first  respondent
     purports  to show that 74,2 litres were dispensed.  Clearly,
     the   specifications   also  point  strongly   towards   the
     transaction  in question not having been a genuine  one.  In
     his  award, the second respondent noted that the company had
     "stated  that the capacity of the vehicle on which the  card
     was  registered i.e. CB 75239 was 65 litres ...".  He  noted
     also that the employee's representative had "stated that the
     witness had no knowledge of vehicle capacity". He did not in
     any  way evaluate those submissions or the evidential  value
     and  significance of the specifications. He proceeded simply
     to  find that the suggestion by the employer that "money may
     have  been issued, which would have been shared between  the
     [employee] and the owner of the vehicle" was an "assumption"
     which the second respondent found was "rather outrageous and
     unfair in the absence of evidence to substantiate it".
[26] What this amounts to is that the second respondent  has
     in  no  significant way applied himself to  highly  relevant
     evidence  which had been placed before him. In the affidavit
     filed  by him in these proceedings, he added nothing by  way
     of  reasoning, merely stating that his reasons were set  out
     in  the  award. Whether one examines this in  terms  of  the
     grounds  contained  in  section 145  of  the  Act  or  those
     implicit in section 158(1)(g) of the Act, the conclusion  is
     the  same.  A  fundamental requirement  in  any  arbitration
     proceedings has not been met, namely that relevant  evidence
     must  be taken into account and reasonably assessed and that
     the  outcome should be reasonably connected. That is not the
     position in this matter and the award cannot stand.
[27]  It  should  be  remarked  here  also  that  the  first
     respondent had recorded the registration number as CB  15239
     and  not  CB  75239. She alleged that this was nothing  more
     than  an  innocent  error. In context, I  consider  it  more
     likely that it was a deliberate attempt to obfuscate.
[28]  I  turn  now to a brief consideration of  one  of  the
     procedural  aspects  complained  of  by  the  applicant.  As
     already  indicated  in the above summary  of  the  facts,  a
     matter  of  fundamental importance was whether  or  not  the
     first  respondent  had indeed dispensed  petrol.  The  prima
     facie  contradiction  between the  specification  suggesting
     that the vehicle in question had a fuel tank capacity of  65
     litres, and the data recorded on the Speedpoint voucher that
     over 74 litres had been put into it, was accordingly a vital
     matter  which  the first respondent had to address.  It  was
     correspondingly  a  matter to which  the  second  respondent
     should have accorded keen but impartial attention.
[29]  His  conduct  was entirely the  reverse  of  what  was
     required of him. It is common cause that when the matter was
     raised,  it  was  the  second respondent  who  reacted;  the
     applicant  describes it thus in its founding  affidavit  and
     its account is confirmed by the first respondent to be true:
          "Second  respondent asked first respondent  whether  it
          was  not possible that she had put fuel into containers
          instead of the tank of the motor vehicle."
     The  first respondent avers that "nothing turns on the  fact
     that the second respondent asked me this question".
[30]  I  do  not share the first respondent's  view  of  the
     import  of the second respondent's suggestion to her.  There
     can   be   no   explanation  for  the  second   respondent's
     intervention, other than that he was concerned  to  come  to
     the  assistance  of the first respondent,  by  suggesting  a
     possible  explanation  for what on  the  face  of  it  would
     otherwise be a telling piece of evidence against her. It  is
     strongly suggestive of actual bias on the part of the second
     respondent  in favour of the first respondent.  Even  if  it
     falls short of that, it was a grossly irregular intervention
     by  the second respondent. It was certain to and in fact did
     fuel  the  belief  held by the applicant  that  it  was  not
     receiving a fair hearing.
[31]  In  the course of argument, I raised with the  parties
     issues  relating to procedural fairness in  respect  of  the
     disciplinary  proceedings conducted  by  the  applicant.  Mr
     Vally,  who appeared on behalf of the first respondent,  did
     not seek to relocate his case from substantive to procedural
     matters. He properly pointed out that procedural aspects had
     been  expressly  eschewed  at  the  very  beginning  of  the
     arbitration  proceedings. In any event, I am satisfied  that
     the  first  respondent was at all times  confronted  with  a
     charge involving the conduct of a fraudulent transaction and
     that no prejudice in this regard has been demonstrated.
[32] Mr Van der Linde on behalf of the applicant argued that
     an  order  of  costs  should  be  made  against  the  second
     respondent. Generally speaking, a court will be reluctant to
     order  costs against commissioners of the CCMA. They play  a
     vital  role in the dispute resolution mechanisms created  by
     the  Act. The prospect of personal costs orders may have the
     effect of deterring able and experienced persons from taking
     up such positions. Similar views were set out in relation to
     shop  stewards in Callguard Security Services  (Pty)  Ltd  v
     Transport and General Workers Union & Others (1997)  18  ILJ
     380 (LC) at 391D-F.
[33]  Although there are doubtless circumstances where  such
     an  order  would  be warranted, I am of the  view  that  the
     present matter falls short of that point. I have regard also
     to the fact that the notice of motion seeks an order against
     the  second  respondent only in the event of  opposition  by
     him. There is no substantive prayer for a costs order on the
     basis  purely  of  the  conduct by him  of  the  arbitration
     proceedings.  Mr  Van  der  Linde  argued  that  the  second
     respondent  had  in  effect  opposed  the  application,   in
     consequence  of the affidavit filed by him. I am unpersuaded
     that  this is so. Allegations of improper conduct were  made
     against him and I do not accept that a commissioner in  such
     circumstance should not respond thereto, to an  extent  that
     goes beyond the conventional affidavit declaring merely that
     the  commissioner will abide the decision of the court.  The
     second respondent has not appeared in these proceedings  and
     seeks no order.
[34]  As  to  the  position of the first  respondent,  I  am
     satisfied   that   the  evidence  presented   overwhelmingly
     establishes   that  she  was  involved   in   a   fraudulent
     transaction. She has maintained the position that she did no
     more than make a mistake in respect of the recording of  the
     registration  number of the vehicle. She could  not  at  any
     stage  have honestly believed in her innocence and I see  no
     reason  why  the  fate  of this application  should  not  be
     accompanied by an order of costs.
[35]  There is no need in the present matter for the  issues
     to  be  remitted  to  the CCMA for fresh determination.  The
     evidence is in my view clear and this Court is in as good  a
     position  to determine the matter as would be a commissioner
     appointed for a fresh hearing.
[36] In the result, I make the following order:
       1.   The award made by the second respondent under CCMA Case No.
          EC 2000 on 16 September 1997 is hereby reviewed and is set aside.
2.   There is substituted for the award the following:
               "The dismissal by the employer of the employee  is
               determined to have been fair and is upheld."
          36.3  The  first  respondent  is  ordered  to  pay  the
          applicant's costs in these proceedings.
                         ____________________________________
                         K S TIP
                         Acting Judge
Date of Hearing          :    26 March 1998
Date of Judgment         :    8 April 1998
For the Applicant        :    Advocate Van der Linde
Instructed By            :    Claude Tee & Associates
For the First Respondent :    Advocate Vally
Instructed By            :    Gray & Moodliar
This     judgment     is    available    on     the     Internet:
http://www.law.wits.ac.za/labourcrt