National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR1347/2007) [2010] ZALCJHB 24 (9 November 2010)

National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR1347/2007) [2010] ZALCJHB 24 (9 November 2010)

The court found that the commissioner did not commit reviewable misconduct by noting the applicant's inability to explain why the witness would lie; this did not amount to placing the burden of proof on the applicant. The commissioner properly evaluated the evidence, including the polygraph results, which were considered as one factor among others in assessing credibility and probabilities. The commissioner was alive to all relevant allegations, including the alleged bonus fraud plot, but found no evidence to support it. The award was reasonable and not one that a reasonable decision maker could not have reached. Accordingly, the review application was dismissed.

Citation
[2010] ZALCJHB 24
Parties
Applicant: National Union of Mineworkers; Applicant: Peter Masha; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Mtutuzeli Ngqeleni; Respondent: Tavistock Colliery a division of Xstrata South Africa (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 November 2010
Case Number
JR1347/2007
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review dismissed; no order as to costs.
Judges
AC Basson
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Burden of Proof, Polygraph Evidence, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Burden of Proof Polygraph Evidence Procedural Fairness

Case Brief

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Parties

National Union of Mineworkers

Applicant

Peter Masha

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Mtutuzeli Ngqeleni

Respondent

Tavistock Colliery a division of Xstrata South Africa (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner committed reviewable misconduct by allegedly placing the burden of proof on the applicant to explain why a witness would lie.
  2. 2 Whether the arbitration award was unreasonable in finding the dismissal substantively and procedurally fair.
  3. 3 Whether polygraph evidence was properly considered in assessing credibility and probabilities.

Ratio Decidendi

The court found that the commissioner did not commit reviewable misconduct by noting the applicant's inability to explain why the witness would lie; this did not amount to placing the burden of proof on the applicant. The commissioner properly evaluated the evidence, including the polygraph results, which were considered as one factor among others in assessing credibility and probabilities. The commissioner was alive to all relevant allegations, including the alleged bonus fraud plot, but found no evidence to support it. The award was reasonable and not one that a reasonable decision maker could not have reached. Accordingly, the review application was dismissed.

Court Disposition

Application for review dismissed; no order as to costs.

Orders

  • The application for review is dismissed.
  • No order as to costs.