South Africa: Cape Town Labour Court, Cape Town

IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

                                                                                                Not Reportable

                                                                                            Case no: C480/2019

In the matter between:

MASHANYANA THOMAS RAMAHLELE                                         Applicant

and

WISEMAN IMPORT AND EXPORT (PTY)

LTD T/A WISEMAN MIDAS                                                                First Respondent

CL DICKENS N.O.                                                                              Second Respondent

MOTOR INDUSTRY BARGAINING COUNCIL                                  Third Respondent

Date heard: 11 March 2021 on the papers

Delivered:  14 June 2021 by means of email

JUDGMENT

RABKIN-NAICKER J

[1]     This is an opposed application to review an arbitration award under case number MINT 6230. In terms of the Award the second respondent (the Commissioner) found the dismissal of the applicant to have been procedurally and substantively fair. There is also an unopposed application for condonation for the late filing of the review. The review was filed some 2 weeks late. Given the short delay, I exercise my discretion to grant condonation and deal with the review on the merits.

[2]     The applicant was employed as a picker/storeman by the first respondent (the company) and had been employed by the company since December 2012. He earned a salary of R5 342-96 a month. He was dismissed on the 31 March 2018 after he was found guilty of the following charges:

          “(1) Gross insolence and insulting behavior in that on/or about February 2018 at on/or about 13:00 you showed disrespect to management by challenging the employer’s authority by screaming and shouting at the employer.

          (2) Gross dishonesty in that on/or about 28 February 2018 at on/or about 13.00 you made a false statement to the police that the employer assaulted you.”

[3]     The second respondent (the Commissioner) found that the dismissal of the applicant was substantively fair. He accepted the evidence of the witnesses for the company (the co-owner and manager of the company) and rejected that of the applicant who testified that he was assaulted by the co-owner of the company in the presence of the Manager and reported same to the police, having visited a doctor the same day. The events occurred after the applicant had refused to sign a warning for picking the wrong parts for a customer.

[4]     I have read the transcribed record of the arbitration. Unfortunately for the applicant, it is not up to the Court to establish a case for review of an Award. In this matter, although the applicant was represented by an attorney^[1] and counsel in the application before me, there is simply no case made in the papers and submissions, for the review of the Award. The founding affidavit makes general allegations regarding the failure of the Commissioner to take material evidence into account. In the supplementary affidavit, no emphasis is placed on any examples of same in the transcript. One additional issue is raised, and that is the Commissioner is affiliated to a legal firm that originally referred the dispute to the Council on behalf of the applicant. An allegation that the Commissioner thus committed misconduct is made as it is alleged that she should have declared a conflict of interest.

[5]     The heads of argument on behalf of the applicant run to some 94 paragraphs. Of these, 63 paragraphs relate to the unopposed condonation application. The rest of the submissions deal with the test on review, with much reference to case law. No reference is made to what is contained in the transcribed record and the same issues are repeated i.e. that the Commissioner did not evaluate the evidence properly and did not declare her interest in a firm that originally represented the applicant in referring the dispute. The record of the arbitration does not reflect that she was informed of this issue or was aware of it. This afterthought contained in the supplementary affidavit does not amount to a ground of review.

[6]     The following dictums by Van Niekerk J in Mooki v CCMA and Others are apposite^[2]

             [9]       In the present instance, the applicant’s grounds for review are not cast in terms that reflect the enquiry that the court must undertake. In particular, the grounds articulated both in the founding and supplementary affidavits do not make out a case to the effect that the outcome of the proceedings under review was one that fell outside of the band of decisions to which a reasonable decision-maker could come on the available material. It is not sufficient, as the applicant has done, to record a litany of complaints that amount to no more than assertions that the commissioner came to conclusions that were wrong. Commissioners are allowed to be wrong; the review test affords them this latitude, provided that the outcome is not compromised in the sense that is an unreasonable one. The two-stage test referred to above preserves the all-important distinction between appeals and reviews. Further, in an application such as the present, the basis on which the outcome of arbitration proceedings subject to review is alleged to be unreasonable must be specifically pleaded - a failure to do so reflects a failure to establish a cause of action. The applicant’s failure to frame his grounds for review on the proper basis and to rely in piecemeal fashion on a series of alleged misdirections, in my view, is in itself a reason to dismiss the present application.”

[7]     Had the review application before me been of a requisite standard, the Court may have been able to properly consider whether the outcome was susceptible to review or not. Unfortunately, I cannot perform that role and must therefore dismiss the application without more. No grounds have been properly pleaded or argued before me.

[8]     The Company has asked for costs to be awarded in this matter. This is mainly premised on the fact that the case was brought in Cape Town, while neither of the parties are Cape Town based. Given this matter was heard on the papers, I do not consider this to be of relevance. However, I am of the view that it would be an affront to the legal profession should the applicant have to pay any fees to his legal representatives in the review. He should be shown this Judgment and my view thereon.

[9]     In all the circumstances, I make the following order:

          Order

1.    The application for condonation is granted

2.    The review application is dismissed

____________

                                                                                                            H.Rabkin-Naicker

                                                                                                  Judge of the Labour Court

Representation on the papers

Applicant:  Advocate Olivier instructed by Louis Block Inc

First Respondent: Snymans Attorneys