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IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN BRAAMFOTEIN

CASE NO: JR1464 /07

In the matter between:

HARMONY GOLD MINING COMPANY LTD ......................................................Applicant

v

WILLIK MTIYWA: ..................................................................................................Respondent

IN RE:

WILLIK MTIYWA ......................................................................................................Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION ......................................................................................First Respondent

M S RAFFEE NO .........................................................................................Second Respondent

HARMONY GOLD MINING COMPANY LTD ........................................Third Respondent

JUDGMENT

GCABASHE AJ

1. The applicant is Harmony Gold Mining Company (“Harmony”), the employer of the Respondent, Willik Mtiywa (“Mtiywa”), who was employed by the Applicant until his dismissal in 2007. The grounds for dismissal were that he was found to be under the influence of alcohol, in circumstances where there was a subsisting final written warning for the same offence. His appeal was unsuccessful.

2. Mtiywa referred an alleged unfair dismissal dispute to the CCMA, then to arbitration, the latter enquiry taking place on 24 May 2007. The arbitrator, having heard the evidence presented by both parties, found on 31 May 2007, that Mtiywa’s dismissal was not unfair, both procedurally and substantively.

3. Mtiywa then proceeded to bring a review application in terms of section 145 of the Labour Relations Act, No 66 of 1995 (“LRA”) in this Court, which was lodged on or about 9 July 2007. The application was opposed by Harmony, who to date have been waiting for Mtiywa to comply with the provisions of 7A(8) of the Rules of this Court with respect to the furnishing of a supplementary affidavit in support of the founding affidavit. Harmony have also written to Mtiywa in an effort to establish whether he intends pursuing this review application. To date no substantive response to this enquiry has been received.

4. For all intents and purposes, Mtiywa appears to be a member of Legal Wise who advised Harmony as to who Mtiywa’s legal representatives were. These legal representatives have not, however, placed themselves on record, nor has Mtiywa made an effort to set this matter down for argument. Procedurally, therefore, Mtiywa has failed to comply with the requirements of the Rules of this Court.

5. The substantive case that Mtiywa has placed in issue, on the available evidence before me, is equally weak. The standard set by the Constitutional Court in the Sidumo¹ matter, which legal propositions have been applied in judgments of this Court such as the LAC’s judgment in Fidelity Cash Management Service v CCMA & Others², clearly point to the Commissioner having applied his mind to the objective facts of Mtiywa’s complaint. No grounds for the review of the Commissioner’s finding have been placed before this Court.

6. The Sidumo judgment the Court make the pertinent point that

“In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”

7. In assessing the veracity of the versions placed before him by the parties in this matter, the Commissioner took into account all relevant circumstances. There is no evidence to gainsay that he did not do so, or that he was biased in any way, or that the outcome of his consideration was irrational in relation to the evidence placed before him.

8. Harmony has set out in detail the steps that they have taken to ensure that this matter is finalised. They have sought to contact Mtiywa at all the contact numbers that he has utilised since the commencement of the dispute regarding his dismissal, but to no avail. In essence, they have been compelled to approach this Court for relief in terms of Rule 11 of the Rules of this Court.

9. In argument in this Court I was referred to two authorities of this Court that address the unjustifiable delay of Mtiywa in prosecuting his case to finality. Molahlehi AJ (as he then was) expressed the view in Sishuba v National Commissioner of the SA Police Service³ that

“Inordinate delays in litigating protracted disputes, damages the interests of justice and prolong the uncertainty of those affected.”

10. Molahlehi AJ went on to summarise the approach of the Courts to the consequences of applicants who fail to diligently pursue their claims. I agree fully with those considerations.

11. The Mtiywa raised a dispute regarding his dismissal and the consequences thereof. He has failed to take the necessary steps to ascertain that this matter reaches finality.

12. On the evidence available to me, there is no basis for further extending the time frames for the conclusion of this matter, particularly as there is no indication that Mtiywa wishes to proceed with his claim. No condonation for the late filing of his papers has been sought.

13. In the circumstances, in aligning myself with the views expressed by the Court in the matter of Ivor Michael Karan t/a Karan Beef Feedlot & Another v Randall⁴ which counsel referred me to. I have concluded that Mtiywa has unreasonably and unjustifiably delayed in prosecuting his claim.

14. In the premises I grant an order dismissing the review application as prayed for in prayer 1 of the Notice of Motion, with no order as to costs.

_______________________

GCABASHE AJ

14 December 2009

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