Modikwa Platinum Mine v Commission for Conciliation, Mediation and Arbitration and Others (JR1924/20) [2023] ZALCJHB 108 (11 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR1924/20

In the matter between:

MODIKWA PLATINUM MINE Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent ISAIAH NYATHI, N.O. Second Respondent MODUPI SAMSON Third Respondent NATIONAL UNION OF MINEWORKERS Fourth Respondent

Heard: 14 March 2023

Delivered: 11 April 2023

JUDGMENT

VOYI, AJ

[1] This is an application, by Modikwa Platinum Mine (Modikwa), to review and set aside an arbitration award issued by the second respondent, Commissioner Isaiah Nyathi (Commissioner) on 22 October 2020 under case number LP7692-19.

[2] The application is opposed by the third and fourth respondents, being Samson Modupi (Modupi) and the National Union of Mineworkers (NUM).

[3] By way of background, Modikwa employed Modupi in the year 2010. He was dismissed on account of misconduct on 27 May 2019. At the time of his dismissal, he was employed in the position of Miner.

[4] The event which resulted in Modupi being disciplined by his employer occurred on 4 April 2019. It was contended by Modikwa that, on this date, the installation of support in one of the sections for which Modupi was responsible, in his position as a Miner, was substandard.

[5] The nub of the substandard was that the sticks which formed the support were installed without the necessary jackpots. It is common cause in this matter that the installation of support at one of Modupi’s sections, called the Manong Section (Manong), was of a substandard nature. The employer pinned responsibility for this on Modupi, as the responsible Miner.

[6] The charge levelled against Modupi was stated as follows in a notification to attend a disciplinary hearing dated 12 April 2019:

‘Failure to observe and compliance [sic] with security & safety regulations where it is life threatening to self or others in that on 4/4/19 Mr Makofane found that at the first line … from the face, only 3 sticks were installed without jackpot on top of the ASG, Cluster support along the centre gully were substandard.’

[7] The chairperson of the disciplinary enquiry found Modupi guilty as charged and imposed dismissal as the appropriate sanction. Modupi’s appeal against this outcome was unsuccessful. On behalf of Modupi, NUM challenged the fairness of the dismissal before the second respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA).

[8] The unfair dismissal dispute came before the Commissioner for arbitration on 4 August 2020 and 12 October 2020. As mentioned before, the arbitration award under review was issued on 22 October 2020. In his award, the Commissioner accepted it as common cause that the support was installed without the necessary jackpots. In this regard, he found that there was “substandard work performance”. Having so found, he held as follows:

‘7.6 [Modikwa], as a result thereof, was within its right to take action. The question which needs to be asked is whether the actions or the steps instituted by [Modikwa] were within the confines of the law.’

[9] The case advanced by Modupi is that he was not aware that the ‘sticks’ were installed without jackpots. He testified that his instruction to the employees reporting to him was that they

“… should install support until where the available jackpot will reach”. He further testified that his team was “… supposed to stop and not continue until the outstanding jackpots were to be delivered”.

[10] At arbitration, Modikwa called two witnesses to prove its case, namely Joseph Makofane (Makofane) and Vincent Mnisi (Mnisi). Makofane testified that he was employed by Modikwa as the Operations Supervisor. On the day in question, being 4 April 2019, he went underground as usual and “… found [Modupi] at the panel with the crew installing the sticks without the [jackpots]”.

[11] Makofane testified further that he asked Modupi, as the responsible Miner, why he was installing the sticks without the jackpots and the answer he received was that they did not have jackpots. As a result of the sticks being installed without jackpots, Makofane testified that he stopped the whole crew and sent Modupi to the stores to fetch the jackpots.

[12] It was Makofane’s evidence that when he arrived at Manong, he found the crew, the team leader and the Miner, being Modupi. The relevant team leader was Mnisi. It was put to Makofane under cross-examination that Modupi was not at Manong on 4 April 2019. In this regard, the transcript reveals the following exchange:

‘MR CHUENE: And again we are going to lead evidence that is saying Mr Modupi on that particular day was not on the square in question, was at the other square.

MR MAKOFANE: No, he is lying. I found Modupi inside of the stope with the team leader and the safety rep, all the crew.’[1]

[13] It was the evidence of Mnisi that the sticks were installed as support without the requisite jackpots. In this regard, he testified as follows:

‘MR MASHEGO: Who gave the instruction to install those sticks without jackpots?

MR MNISI: The Miner instructed us to cut the sticks and insert them, he will go and look for jackpots.

…

COMMISSIONER: So now you are saying it is the Miner who instructed that they should not install jackpots?

INTERPRETER: No, they should install the sticks without jackpots.

COMMISSIONER: Ja, that is what I am saying.

INTERPRETER: Ja’[2]

[14] Further in his testimony, Mnisi was asked about the lawfulness of the instruction to install the sticks without jackpots. The evidence went as follows:

‘MR MASHEGO: So as you are saying you were given instruction by the Miner to install those sticks without jackpot so will you agree with me if I say the instruction was unlawful?

MR MNISI: I agree.

MR MASHEGO: So do you agree with me that the Miner, Mr Modupi risked your life and other life of your employees by giving instruction to install the stick without jackpot?

COMMISSIONER: Whether they ask you a question 20 times, you just have to answer.

MR MNISI: Yes, I agree.’[3]

[15] The evidence of Mnisi regarding who gave the instruction to the crew to install support without the necessary jackpots was not challenged under cross-examination. It was not put to Mnisi that Modupi will deny that he gave the alleged instruction.

[16] Before the Commissioner also served the evidence of Modupi’s witness, Mr Thandazo Matsule (Matsule). When asked who instructed the crew to install the support without jackpots, his evidence was as follows:

‘MR CHUENE: Were you instructed to install the sticker without support?

MR MATSULE: No, we made them so that when we get the jackpots we should be able to put on, install jackpots because there was no material.

MR CHUENE: The company alleged that Mr Modupi instructed the crew on which you were part of the team to install the sticks without the jackpot, what is your take?

MR MATSULE: It’s us who wanted to do short cut in the job and install the sticks without jackpot. It was not the instruction from him.’[4]

[17] It is apparent that there was a stark contradiction in the account of events as given by the parties’ witnesses, particularly the accounts of Mnisi and Matsule. One was saying the instruction to install support without jackpots came from Modupi and the other was saying something quite to the contrary.

[18] The Commissioner was alive to the conflicting versions and at paragraph 6.3 of the award, the following is recorded:

‘[Mnisi] testified that it was the Miner who instructed that sticks must be installed without jackpots, and by so saying he was referring to [Modupi].’

[19] At paragraphs 4.2 to 4.4 of his award, the Commissioner captured the evidence of Matsule on this point as follows:

‘4.2 Further that on the 04th April 2019, two sticks did not have jackpot, the sticks without jackpot are regarded as temporary support.

4.3 [Matsule] stated that they were not instructed but they installed them hoping that they will get a jackpot at a later stage as at that stage there was no material.

4.4 The Witness disputed the allegation that [Modupi] gave them an instruction to install without a jackpot and instead stated that it was their own decision to do so in order to shortcut the process.’

[20] Having correctly identified that there were contradictions in the evidence tendered, the Commissioner made reference to Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and Others,[5] (Stellenbosch Farmers’) as being the leading case on the approach to be adopted in resolving conflicting versions. In Stellenbosch Farmers’, the Supreme Court of Appeal held:[6]

‘To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.’ (Own emphasis)

[21] Both Mnisi and Matsule were factual witnesses who gave evidence at arbitration. At paragraph 7.17 of his award, the Commissioner states that where a commissioner is faced with two conflicting versions before him, the commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies.

[22] However, and in the very same award, no finding on the credibility of either Mnisi or Matsule is made. In this matter, we are dealing with a rather strange situation where a commissioner states what must be done in resolving the factual disputes but inexplicably fails to do what he says ought to be done.

[23] At best, the Commissioner only rejected the evidence of Makofane based on the contradictions emanating from his evidence when compared with that of Mnisi.

[24] I am enjoined by the dictum in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and others[7] (Gold Fields) to ascertain whether the Commissioner considered the principal issue before him, evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decision he arrived at.

[25] In this matter, I am unable to come to the conclusion that the Commissioner dealt with the substantial merits of the dispute. At the heart of the dispute was an allegation that Modupi gave an instruction which resulted in the admitted substandard installation of support.

[26] Instead of dealing directly with this issue and reconciling the mutually conflicting versions of the two aforementioned witnesses using the technique in Stellenbosch Farmers’, the Commissioner went astray to consider the probabilities of the whereabouts of Modupi at the time Makofane arrived at Manong, where the substandard installation of support had occurred.

[27] In assessing the probabilities, the Commissioner ought to have dealt with the key issue of exactly how it came about that there was this substandard installation of support. Before him, there were conflicting accounts as to how it came about. As to which account must be accepted as probable under the circumstances, the Commissioner did not make any finding at all.

[28] In Goldfields, the Labour Appeal Court stated thus:

‘Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome...’[8]

[29] In my view, the Commissioner’s award is certainly not one that a reasonable decision-maker could make. I can but reiterate that a reasonable commissioner would have done the necessary to resolve the mutually conflicting versions. What needed to be determined in this matter was not a trivial issue, in that either Modupi gave the instruction or he did not. A finding in this regard would either exonerate or condemn him.

[30] In the circumstances, it is therefore my considered judgment that the Commissioner’s award falls to be reviewed and set aside. This is a matter that must be remitted back to the CCMA in order that the central issue be properly ventilated and an appropriate decision be made as to the fairness or otherwise of Modupi’s dismissal.

[31] In the exercise of my discretion, I find no basis to make an order for costs against the unsuccessful litigants in this matter. The requirements of the law and fairness do not call for a costs order against Modupi and NUM.

[32] I accordingly make the following order:

Order

1. The arbitration award issued by the Second Respondent on 22 October 2020 under case number LP7692-19 is reviewed and set aside.

2. The matter is remitted back to the First Respondent for arbitration de novo before a commissioner other than the Second Respondent.

3. There is no order as to costs.

N P Voyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv M van As Instructed by: Cliffe Dekker Hofmeyr Inc. For the Third and Fourth Respondent: Adv S Beukes Instructed by: Mohale Incorporated

[1] Transcript of 4 August 2020 at p 67.

[2] Transcript of 12 October 2020 at p 5

[3] Transcript of 12 October 2020 at p 12.

[4] Ibid at pp. 67 – 68.

[5] 2003 (1) SA 11 (SCA)

[6] Id at para 5.

[7] (2014) 35 ILJ 943 (LAC) at para 16.

[8] Gold Fields at para 21.