IN THE LABOUR COURT OF SOUTH AFRICA 
HELD IN JOHANNESBURG

									REPORTABLE
									CASE NO: JR2337/07

In the matter between:

AND

THE COMMISSION FOR CONCILIATION,

JUDGMENT

Molahlehi J 
Introduction

Background facts

"1.    Whereby you on 2004/05/10 between approximately 23:15 and 00:46 in the 4PU01 area and at the 4TK01 tank in the BMR plant participated and/or assisted in the illegal removal of Platinum Group Metal concentrate without any authority and/or permission. and/or
2.      Whereby you on 2004/05/10 between 23:15 and 00:46 and/or 2004/05/16 at approximately 9:22 in the 4PU01 area and 4TK01 tank in the BMR plant were in possession of Platinum Group Metal concentrate without the necessary authority from the company and/or your supervisor. " 
[4]    The applicant in support of its case relied on the testimony of both Mr Corbet and Mr du Preez. The video cameras from which the video footage were taken from was installed by Mr du Preez. 
[5]    Mr du Preez testified that he inspected the video footage but could not identify the people who appeared on it. It was Mr Corbet and Mr du Preez the plant supervisor who identified the employee as he appeared on the video footage. 
[6]    Mr Corbet testified that he knew the employee having worked with him for a period of six years. He further testified that management of the applicant became aware of the loss of the platinum group concentrate when the security found some parcels containing PGM hidden in the plant.
[7] Mr Corbet further testified that he was informed by the security about the recording they had made and invited him to come and observe the video. In watching the video footage he observed employees illegally removing the PGM and not attending to the repair of a flange.
[8] Mr du Preez, testified that the parcel which was found hidden in the plant was taken to the laboratory for testing and it was found that it contained PGM materials. He further testified that he was able to identify the employee with the two other employees on the video footage and that from his observation they were not repairing the leaking flange but were busy tapping the PGM material. According to him it takes 3 (three) to 4 (four) minutes to repair the flange but the footage showed that the employees on that day took more than 10 (ten) minutes attending at the flange which is not normal.
[9] The person repairing the flange does not according to Mr du Preez, put the bucket under it. He stated that the video showed a steam coming out which is an indication that the solution was hot. He also stated that after cleaning the area the employee can be seen with a white jacket which he normally wears.
[10] During cross examination Mr du Preez testified that he did not watch the whole of the video and that he was shown only certain people on the video. He also testified during cross examination that there were 8 (eight) people working in different departments on that day and that he was able to identify them because he was their supervisor.
[11] The two witnesses testified further during cross examination that there were 8 (eight) employees on duty on the night in question. The employee on the other hand said that there were 10 (ten) to 12 (twelve) employees were on duty during that night. It is thus common cause that there were more than the three employees on duty that night.
[12] The employee's case is that as a plant operator his duties entail having to ensure the smooth operation of the plant. He denied having been involved in theft of the PGM and that he was unable to identify the people on the video footage. He further stated that he worked in the area in question and that buckets are used in the sulphur dioxide gas by putting water in the bucket.

The grounds for review
[13] The ground for review is set out by the applicant in its founding affidavit as follows:
"It is Applicant's case that the award contained in Annexure "A " hereto is reviewable and falls to be set aside since:
8.1 First Respondent found that the employee was one of the employees involved in the removal of the platinum concentrate on 10 May 2004 and had assumed he was one of those depicted on the video recording. He did not deal with the evidence of MR DU PREEZ that the employee was identifiable by the white jacket he normally wears and his manner of walking and his posture. He also did not deal with the evidence of MR CORBETT that he had worked with the employee for a long period of time and recognised him on the video. In failing to deal with this evidence and in effectively ignoring it First Respondent either committed a gross irregularity or reached a conclusion that is not justifiable with reference to the evidence adduced before him. The award thus falls to be set aside on review. "
[14] Subsequent to filing its founding affidavit wherein the above ground for review is set out, the applicant filed its notice in terms of rule 7(A) 8 of the rules of the Court indicating that in terms of that notice it stands by both its notice of motion and the founding affidavit.
[15] After receipt of the above notice the third respondent filed their answering affidavit. Upon service of the answering affidavit by the third respondent, the applicant had five days within which to file its replying affidavit. The applicant filed its replying affidavit more than 9(nine) months later with no application for condonation.

[16] In the absence of an application for the condonation for the late filing of its replying affidavit, this Court has no option but to strike the applicant's replying affidavit off the pleadings. In any case, in my view, the replying affidavit does not assist the case of the applicant as will appear more in details when the merits of the matter is considered.
The arbitration award
[17] The commissioner in his analysis of the evidence which was presented before him says:
"In this case only substance was in dispute. Procedure was not in dispute. The respondent called three witnesses supplemented by the video that was shown during the hearing. The charges against the applicant emanate from the video footage of which the second and third witnesses for respondent alleges that one of the persons shown on that video is the applicant. The first witness for the respondent is a (sic) security officer who did not know the people on the video footage at all. The second and third witnesses for the respondent rely (sic) on the fact that they have worked with the applicant for a long time and hence they are able to identify him. Besides that there is no feature1hey have put forward in identifying the applicant. They (sic) conceded that not every person will be able to identify the applicant on that video. The video footage itself is of poor quality. The respondent's third witness under cross examination stated that there were 8 employees for that shift whilst applicant stated that sometimes they were 10, 11 or 12. In other words it not in dispute that there were more than 3 employees on that shift.

Evaluation of the award

[22] In my view the ground of review quoted above does not make out a case warranting interference with the decision of the commissioner. I will revert back to the other grounds of review raised by the applicant subsequent to filing its founding affidavit later in this judgment.

[23] It is apparent from the reading of the above extract that contrary to the complaint of the applicant the commissioner did considered the evidence of Mr du Preez and Mr Corbet concerning the identification of the employee as supposedly appears from the video footage. After considering the evidence of the two witnesses and finding that they were unsatisfactory, he proceeded to consider the video footage. It is apparent from reading the record that the testimony of the two witnesses was largely based on what they saw on the video footage. The commissioner found that the video was of very poor quality, was edited and the faces of the people on it can not be seen. It was for this reason that the commissioner found that the applicant's case was based on assumptions. 
[24] In considering the evidence of the two witnesses of the applicant the commissioner found that except for saying that they knew the employee, they could not provide any other feature present in their identification of the employee and his fellow employees. In this respect the commissioner found that the applicant's witnesses assumed that the people on the video were the employee and the two others because they were supposed to have worked in that area on that day. It is for this reason that the commissioner concludes that any one of the 8 (eight) people who were on duty on that shift could have done what the people on the video are being seen doing.
[25] I do not see how this Court could in the absence of the video footage be able to assess the reasonableness of the conclusion reached by the commissioner that the video footage was of poor quality. It is now well settled that the duty to place a full record of the proceedings before the Court rests with the applicant. In this instance the applicant has failed to discharge that duty by failing to place before this Court the video footage which was central to the case of the applicant during the arbitration proceedings.

[26] In my opinion, based on the above, the applicant has failed to make out a case showing that the conclusion of the commissioner is unreasonable or reviewable based on any other grounds of review. For this reason alone the applicant's review application stand to be dismissed.
Further grounds of review

"When as in this case, the proceedings are launched by way of notice of motion, it is to the founding affidavit which a Judge will look to determine what the complaint is. As was pointed out by KRA USE J in Pountos' Trustees v Lahanas 1924 WLD 67 at 68 and as has been said in many other cases:
". . . an applicant must stand or fall by his petition and the facts alleged therein and that, although sometimes it is permissible to supplement the allegations contained in the petition, still the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon to confirm or deny."

[30] In my view law and fairness dictates that the costs should in the circumstances of this case follow the results.

Molahlehi J

Appearances

For the Applicant :       Adv R G Beaton
Instructed by:		Van Zyl Le Roux & Hurter Inc
For the Respondent:      Andrew Goldberg of Nomali Tshabalala Attorneys