Mankwe v Nowosenetz and Others (JR483/06) [2010] ZALCJHB 59 (29 July 2010)
The court held that the commissioner was faced with conflicting facts and was required to make a credibility finding. The commissioner preferred the evidence of the employer, noting that the applicant’s evidence was substantially uncorroborated. The award was found to be rational and reasonable, meeting the Sidumo...
Source-derived case information.
- Citation
- [2010] ZALCJHB 59
- Parties
- Applicant: Mothibe A Mankwe; Respondent: Commissioner Nowosenetz; Respondent: CCMA Pretoria; Respondent: Clicks Stores
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR483/06
- Procedural Posture
- Review Application / Judgment
- Outcome
- Application for review dismissed with costs.
- Judges
- Pillay D
- Legal Topics
- Review of Arbitration Award, Credibility Assessment, Sidumo Test, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mothibe A Mankwe
Applicant
Commissioner Nowosenetz
Respondent
CCMA Pretoria
Respondent
Clicks Stores
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the arbitration award issued by the commissioner is reviewable under the Sidumo test.
- 2 Whether the commissioner’s credibility findings and preference for the employer’s evidence were reasonable.
Ratio Decidendi
The court held that the commissioner was faced with conflicting facts and was required to make a credibility finding. The commissioner preferred the evidence of the employer, noting that the applicant’s evidence was substantially uncorroborated. The award was found to be rational and reasonable, meeting the Sidumo test. Accordingly, the application for review was dismissed.
Court Disposition
Application for review dismissed with costs.
Orders
- The application for review is dismissed.
- The applicant is ordered to pay the costs.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AND BRAAMFONTEIN
CASE NO: JR 483/06
HEARD AND DELIVERED: 2009.09.16
EDITED: 29 JULY 2010
NOT REPORTABLE
In the matter between
MOTHIBE A MANKWE Applicant
And
COMMISSIONER NOWOSENETZ
First
Respondent
CCMA PRETORIA Second
Respondent
CLICKS STORES
Third
Respondent
J U D G M E N T
PILLAY D, J:
This is an application to review and set aside the award of the first respondent commissioner. The test set in Sidumo & Another v Rustenburg Platinum Mines Ltd & Others 2007 12 BLLR 1097 CC applies. That test is that an award is reviewable if the decision reached by the commissioner is one that a reasonable decision maker could not reach.
In this case the commissioner was faced with conflicting facts. He had to make a credibility finding. He preferred the evidence of the third respondent employer. The applicant employee’s evidence was substantially uncorroborated. The award itself is rational and reasonable.
It meets the Sidumo test in that it is a reasonable award that could be reached by a commissioner.
The application for a review is dismissed with costs.
Pillay D
Judge
Appearances:
For Applicant: Retail and Allied Workers Union: Mr Khoza
For Respondent: Adv M J Van As : Instructed by Deneys Reitz