Makhalanyane v Department of Education, Free State and Others (JR988/18) [2021] ZALCJHB 428 (8 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No.: JR 988/18

In the matter between:

LETSEMA EPHRAIM MAKHALANYANE Applicant

And

DEPARTMENT OF EDUCATION, FREE STATE First

Respondent

MPE NGCOSANE N. O Second

Respondent

GENERAL PUBLIC SERVICE

SECTORAL BARGAINING COUNCIL Third

Respondent

Heard: 7 July 2021

Delivered: 08 November 2021

JUDGEMENT

PHAJANE, AJ

Introduction

[1] This is a review application in terms of which the applicant seeks to review and set aside the arbitration award issued by the second respondent (the arbitrator) under case number GPBC1487/2017. The first respondent opposes the relief sought by the applicant.

[2] The main question in this matter is whether the applicant has established the grounds for review as prescribed under section 145 of the Labour Relations Act 66, 1995 as amended, in respect of the impugned arbitration award.

Factual Background

[3] The applicant, a former employee of the first respondent was charged in an internal disciplinary hearing and dismissed for receiving bribes from a job seeker, namely Mr Sello Thipe, in connection with the latter’s placement in the position of educator at two public schools. He extorted the payment of bribes to him by Thipe.

[4] The applicant disputed his guilt in respect of both counts of misconduct which formed the basis of his dismissal.

[5] He did admit, however, that various payments of up to R8 500.00 were received by him from Thipe through bank deposit into his personal bank account.

[6] Aggrieved with the outcome of the disciplinary hearing, the applicant referred an alleged unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA). The unfair dismissal dispute at arbitration essentially turned on which of the two mutually exclusive versions advanced by Thipe and the applicant respectively should prevail.

[7] On 15 March 2018, the arbitrator issued an arbitration award in terms of which the arbitrator concluded that the dismissal of the applicant by the first respondent was substantively fair but procedurally unfair. It is against this decision by the arbitrator, that the applicant brings this application.

Grounds for review

[8] The grounds for review are contained in paragraphs 27 to 40.3 of the applicant’s founding affidavit.

[9] In summary, the grounds of review are in essence, that the arbitration award is unreasonable, as the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings in that his legal representative was allegedly not allowed to properly conduct cross examination and test Thipe’s credibility, committed a misconduct in relation to his duties as a commissioner; and exceeded his powers.

[10] During argument, the applicant was unable to make specific reference to the record of arbitration to substantiate the grounds of review. The applicant’s legal representative was requested to show on the record evidence to support the grounds of review, but he was not able to do so. This is because whilst the applicant’s heads of argument contain various legal principles, such heads of argument were not of assistance because an argument in respect of each ground of review contended for was not developed. It is trite that litigants in a review application are to refer to the record to substantiate their claim.[1]

[11] The evidence before the arbitrator established that: The allegation that the applicant’s legal representative was prevented from having his case fully ventilated is not borne out by the transcribed record. The applicant only knew Thipe for 15 days and money was paid by the latter into his personal bank account. It is indeed a remote possibility that him and his wife would loan a significant amount of money to someone he had known for such a short period of time. The first respondent is correct in contending that even more remote is the possibility that the applicant would have done so at a cost to himself, pertaining to the interest liability on the purported loan, which on the applicant’s version was used by him to provide a loan to Thipe. The applicant’s own wife who was called to testify on behalf of the applicant did not know the details of his relationship with Thipe. She also contradicted the applicant’s version when she testified that an amount of R6 000.00 was loaned to Thipe out of the sum of R10 000.00 which she was holding on behalf of the stokvel to which she is a member. Thipe perceived the applicant

to be a high ranking official in a position of power hence he paid monies into the applicant’s account in order for the applicant

to secure him a job as a teacher not as a repayment for the purported loan.

[12] On the issue of procedural fairness of the applicant’s dismissal, it appears from the applicant’s papers that he is seeking to vitiate the entire award, which includes the arbitrator’s conclusion that his dismissal was procedurally unfair. This may be an oversight. In any case, the respondent does not seriously challenge the arbitrator’s conclusion in this regard in their papers and certainly not during argument. Further, if the first respondent sought to challenge this aspect of the arbitration award, the first respondent would have delivered a cross review application.

[13] In as much as I am loath to sustain the decision reached by the arbitrator on the procedural unfairness finding, given the egregious and gross misconduct which the applicant has been found guilty of and the failure to accept responsibility and show some remorse, there is not much that I can do because the issue was not properly pleaded by the first respondent. In this regard, the applicant is extremely fortunate because he has been awarded three months’ compensation for the procedural defect by the arbitrator, in circumstances where he should not have been compensated, given the nature of his misconduct.

Legislative Framework

[14] The test in review applications is whether, on a totality of evidence before him or her, the decision of the arbitrator is one which a reasonable decision maker could not have arrived at.[2] The decision must be determined objectively by the review Court.[3]

Analysis

[15] There are no reviewable irregularities in this matter. In fact, no case has been made out to support the allegations of gross irregularity, misconduct on the part of the arbitrator on the applicant’s papers, in as much as the allegations that the arbitrator exceeded his powers are contrived.

[16] Accordingly, I find that there is no basis to interfere with the arbitration award. The grounds of review lack merit. The arbitrator’s finding is well reasoned and certainly one that a reasonable arbitrator could arrive at on the material before her.

[17] The transcribed record of arbitration proceedings clearly indicates the evidence that was before the Commissioner. The application for review is without merit, misconceived and frivolous. In the circumstances, a cost order is warranted.

Order

1. The application for review is dismissed.

2. The applicant is to pay the cost of the review application.

GK Phajane

Acting Judge of the Labour Court of South Africa

Appearance

For the Applicant: JG Keyl of Lovius Block Attorneys

For the Respondent: Adv. AIB Lechwano

Instructed by: The State Attorney, Bloemfontein

[1] In Naidoo v National Bargaining Council for the Chemical Industry and Others (2012) 9 BLLR 915 (LC).

[2] Sidumo and Another v Rustenburg Platinum Mines Ltd and others [2007] 12 BLLR 1097 (CC)

[3] Fidelity Cash Management Services v CCMA and others [2008] 3 BLLR 197 (LAC)