National Union of Mineworkers obo Masondo v Commission for Conciliation, Mediation and Arbitration and Others (JR2242/18) [2022] ZALCJHB 283 (10 October 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

CASE No: JR2242/18

In the matter between:

NATIONAL UNION OF MINEWORKERS obo MASONDO

Applicant

And

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First Respondent

COMMISSIONER M RAMOTSHELA N.O

Second Respondent

EXXARO (PTY) LTD

Third Respondent

Date Heard: 24 February 2022

Date Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website and release to SAFLII. The date and time for hand-down is deemed to be on 10 October 2022 at 10h00.

Summary: Review application – reasonableness of the award – employee dismissed for assaulting a passer-by during industrial

action – whether this was a case of mistaken identity by the assaulted individual.

JUDGMENT

MKWIBISO AJ

INTRODUCTION:

[1]. In this matter, the applicant (“Mr Masondo”) claims that his dismissal by the third respondent (“the employer”) was substantively unfair and seeks to set aside on review an award by the second respondent (“the Commissioner”) declaring his dismissal to have been fair.

[2]. The issue is whether the Commissioner’s award was reasonable, based on the evidence that served before him.

RELEVANT FACTS:

[3]. Mr Masondo was employed by the employer in April 2012 as an Operator.

[4]. On 14 September 2017, employees including Mr Masondo participated in picketing action against the employer, at its premises in Marapong, Lephalale, Limpopo.

[5]. The picketing employees occupied the main road by the intersection that leads into the employer’s premises, thus causing a traffic jam on the main road.

[6]. One of the people who were driving-by in the traffic jam, at about 12h30 on the day in question, was Mr Disang – a Driver employed by Medupi Rotek. Mr Disang was on his way from the Rotek premises in

Medupi to Marapong to handover the vehicle he was driving to his colleague, in order for the colleague to commence his shift.

[7]. As Mr Disang was about to cross the intersection that leads to the employer’s premises, Mr Masondo came out of the crowd and stopped his vehicle, forcing him to park on the side of the road. Mr Masondo slammed the bonnet of his vehicle several times, man-handled Mr Disang, slapped Mr Disang around, and broke the ignition key of the vehicle while trying to wrestle it out of the ignition. Mr Masondo was then pulled away by some members of the picketing crowd. Mr Disang was able to use the key to drive away, despite it being broken. The cost of repairing the key was approximately R8 000.00.

[8]. Mr Masondo was wearing silver-grey jeans and a Kaizer Chiefs T-shirt. He also had a big scar across his face and was physically well-built, which were features that helped Mr Disang to identify him.

[9]. When Mr Disang arrived at Marapong, he informed his colleague about the events that led to the broken ignition key. The two, who were joined by Mr Disang’s brother, then decided to drive back to the intersection by the employer’s premises to find out the identity of the person who had assaulted Mr Disang. Upon their arrival, the picketing was still in progress and Mr Masondo was still wearing his silver-grey jeans and Kaizer Chiefs T-shirt, moving amongst the other picketing employees.

[10]. Mr Disang, together with his colleague and brother were parked next to a group of employees who were drinking alcohol. Mr Disang identified Mr Masondo and pointed him out to his colleague and brother. Mr Disang’s colleague and brother then stepped out of their vehicle and approached Mr Seleka, among the group of employees who were drinking alcohol. They invited Mr Seleka to their vehicle, where Mr Disang asked him for the name of the gentleman who was wearing silver-grey jeans and a Kaizer Chiefs T-shirt, and Mr Seleka responded by saying it was Mr Masondo. Mr Seleka further informed them that Mr Masondo drives a red VW Polo GT. Later that afternoon when Mr Disang and his colleague had returned to their initial meeting point, they saw Mr Masondo drive past in a red VW Polo GT, which was another opportunity to confirm the identity of Mr Masondo.

[11]. A complaint was ultimately lodged with the employer subsequent to a criminal case being open at the police station, regarding Mr Masondo’s assault of Mr Disang and Mr Masondo’s damage of the ignition key to the vehicle that Mr Disang was driving. This complaint led to disciplinary action against Mr Masondo, who faced the following allegations of misconduct:

“Charge 1:

The employee is charged with an alleged contravention of clause 4.6 of the disciplinary code and procedure in that on 14 September 2017 at the Marapong/Exxaro robot he had allegedly committed the following acts which constitute crimes in terms of South African Law: -

Assaulting Mr L.P. Disang and/or;

Maliciously causing damage to the key of the vehicle which Mr Disang was driving to the value of R8 000.00.

The above conduct has a direct impact on the trust relationship between the employee and the employer and/or poses the threat to the interest of the employer.

Charge 2:

The employee is charged with an alleged contravention of clause 6.1 of the disciplinary code and procedure in that the improper behaviour described in charge 1 above damaged the image/interest of the employer in the Waterberg/Lephalale business community given the fact that Mr L.P. Disang was employed by Rotek and renders services to Eskom’s Medupi power station, a client of the employer.

The above charges, if proven, will destroy the trust relationship between the employee and the employer”.

[12]. Mr Masondo was dismissed following the disciplinary action against him. Unsatisfied with that outcome, he referred an unfair dismissal dispute to the first respondent, which led to an arbitration hearing before the Commissioner and the arbitration award that is the subject of the review application in this matter.

[13]. During the arbitration, the employer’s witnesses were Mr Disang together with his colleague, as well as Mr Seleka.

[14]. In summary, Mr Disang confirmed that he had been assaulted by Mr Masondo, and that Mr Masondo had broken the ignition key for the vehicle he was driving, as set out above. When asked whether there were any features of Mr Masondo that he remembered from the assault, Mr Disang said “a tall giant with a scar in the face”. He said the scar was on the top left of Mr Masondo’s face. He further said there was no possibility that he had pointed out the wrong person and he had no motive to falsely implicate Mr Masondo.

[15]. When Mr Disang was cross-examined, the following vague version was put to him: “[i]t is our case that the Applicant on the day you mentioned and the time you mentioned was not available at the area that you are mentioning”. No further elaboration of this point was put to Mr Disang, and Mr Disang effectively disputed this version.

[16]. Mr Disang’s colleague (Mr Lesenya) testified and confirmed the pointing out of Mr Masondo, as set out above. During his cross-examination, it was not put to him that Mr Masondo was not present at the picketing area at the time of the pointing out.

[17]. Mr Seleka testified but his testimony had to be reconstructed because the recording of his testimony was lost. From the reconstruction of his evidence, the following appears under his evidence-in-chief:

“Question: Did you see Petrus again that day?

Answer: He came when he came for a second time, it was Petrus and two others. They came and asked about the whereabouts of the Applicant.

Question: What did you tell him?

Answer: I said I did not know where he was”.

[18]. Mr Seleka conceded, under cross-examination, to have been drinking alcohol. He agreed when it was put to him that “[y]our drinking condition, you could not see what was going on”. Importantly, he had testified after the testimony of Messrs Disang and Lesenya, but he was not asked to comment on their version of the pointing out of Mr Masondo.

[19]. Mr Masondo testified on his behalf and relied on the testimony of Messrs Bophela and Kgathi. Essentially, their testimony was that Mr Masondo was not there at the time when Mr Disang alleges he was assaulted, because he had to drive Mr Kgathi home due to Mr Kgathi having fallen ill during the picketing. Mr Masondo said he could not think of any motive that would cause Mr Disang to falsely implicate him.

[20]. The Commissioner rejected Mr Masondo’s alibi defence as untrue on the probabilities.

GROUNDS OF REVIEW:

[21]. Mr Masondo contended that the Commissioner’s finding that he had assaulted Mr Disang constituted an irregularity or a misconduct mainly because:

21.1 It was inconsistent with the Commissioner’s finding that no-one corroborated the assault and it was based on the evidence of Mr Disang as a single witness;

21.2 Mr Seleka did not witness the assault, despite being part of the picketing group;

21.3 The Commissioner concluded that Mr Disang’s version was corroborated by the evidence of Messrs Seleka and Lesenya, despite both of them not having witnessed the assault;

21.4 The Commissioner ignored Mr Seleka’s evidence that he had responded by saying he did not know where Mr Masondo was, when Mr Lesenya and Mr Disang’s brother asked him;

21.5 The Commissioner found that Mr Masondo failed to rebut evidence that he was wearing a Kaizer Chiefs T-shirt, when it was not in dispute that Mr Masondo was wearing a Kaizer Chiers T-shirt;

21.6 The Commissioner found that Mr Masondo failed to prove that he was not present at the scene of the incident, despite his evidence being corroborated by Messrs Kgathi and Bophela who had no reason to lie.

[22]. These grounds of review require an analysis of the evidence that served before the Commissioner.

ANALYSIS:

[23]. It is not necessary to fully set out Mr Masondo’s version regarding his alleged absence from the scene. This version was not fully put to the employer’s witnesses when they testified. The manner in which Mr Masondo raised his alleged absence from the scene when cross-examining Messrs Disang and Seleka leaves me with the sense that he needed more time to conjure up an explanation as to why he was saying he was not there. In my view, if he knew to say he was absent from the scene when cross-examining the employer’s witnesses, he would have known of the requirement to put a full version to the employer’s witnesses regarding his alleged absence. His failure to do so is an indication of an afterthought.

[24]. It is trite that evidence that was not put to an opponent under cross-examination cannot be relied upon. In Masilela[1] the Labour Court held that:

“[28] …It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit.

[25]. The Labour Appeal Court, in Ekurhuleni Metropolitan Municipality,[2] recently held as follows:

“[26] The third respondent failed to make it clear to the complainant in cross-examination the precise nature of the imputation raised, in the sense not only that her evidence was to be challenged but how this was to be done. It was not put to her that her version was false or that it was denied by the third respondent. The result was that she was not given the opportunity to respond to such a challenge, including to deny any suggestion as to the falsity of her version” (my emphasis).

[26]. To the extent that the Commissioner was faced with conflicting versions, he was bound to resolve factual disputes in line with the principles set out by the Supreme Court of Appeal in SFW.[3] On those principles, the probabilities had to prevail.

[27]. It is trite that the employer had to prove the fairness of Mr Masondo’s dismissal, on a balance of probabilities. In my view, the Commissioner reasonably found that the employer had met this threshold of a balance of probabilities, based on the evidence that served before him.

[28]. The reconstructed evidence of Mr Seleka, to the effect that when he was asked about the whereabouts of Mr Masondo he responded by saying he did not know, did not in my view tilt the scales of probabilities in favour of Mr Masondo. Mr Seleka admitted to consuming alcohol on the day in question and admitted to not seeing what was going on due to his drinking condition. His reliability is, thus, questionable and the Commissioner was reasonable to prefer Mr Disang’s version over his version when having regard to the balance of probabilities.

[29]. Of importance is that Mr Seleka was not confronted with the testimony of Messrs Disang and Lesenya regarding the pointing out of Mr Masondo, in circumstances where his memory may have been jogged had this been done.

[30]. Mr Masondo did not deny being a giant with a scar on the top left of his face, which are largely immutable physical features that would remain in the mind of Mr Disang after an interaction as close and personal as being assaulted and having to scramble over the ignition key of a motor vehicle he was driving. On the probabilities, Mr Masondo was identified based on these physical features and the fact that he was wearing a Kaizer Chiefs T-shirt was an added advantage to the identifier.

[31]. Mr Masondo was, on the probabilities, guilty of serious misconduct that caused his employer significant embarrassment. Resolving the factual disputes in favour of Mr Disang’s version means that Mr Masondo was untruthful and lacked contrition for his misdemeanour. Under those circumstances the employer was justified to dismiss him as an operational response to the risk of him repeating the misconduct or generally failing to conform to its workplace values.[4]

[32]. The threshold of a review is high and should not be easily attained due to the intention to make arbitration awards final and binding. In Booi[5] the Constitutional Court recently emphasised this point in the following terms:

“[50] Before I proceed to the appropriate remedy, I wish to devote a moment to a salient point that ought to be taken away from this judgment. Labour litigation, as envisaged by the LRA, is distinct from any other civil litigation. This is made abundantly clear in the Preamble to the LRA, and through the specialised system and institutions created by that Act. It has also been affirmed by this Court recently. It follows that labour disputes must not be perceived as ordinary civil disputes by the courts that adjudicate them. Our law is clear: labour dispute resolution must be expedient, simple, accessible and cost-effective. It is with this in mind that the LRA carves out unique litigious pathways for disputes that arise pertaining to employment relationships. What the Legislature had in mind when carving out these pathways is evident from the explanatory memorandum to the Draft Labour Relations Bill, to which I once again refer:

“In order for this alternative process to be credible and legitimate and to achieve the purposes of the legislation, it must be cheap,

accessible, quick and informal. These are the characteristics of arbitration, whose benefits over court adjudication have been shown in a number of international studies. The absence of an appeal from the arbitrator’s award speeds up the process and frees it from the legalism that accompanies appeal proceedings. It is tempting to provide for appeals because dismissal is a very serious matter, particularly given the lack of prospects of alternative employment in the present economic climate. However, this temptation must be resisted as appeals lead to records, lengthy proceedings, lawyers, legalism, inordinate delays and high costs. Appeals have a negative impact on reinstatement as a remedy, they undermine the basic purpose of the legislation and they make the system too expensive for individuals and small business.”

[51] It is pertinent that the Legislature deliberately provided for the mechanism of a review, as opposed to an appeal, for arbitration

awards made in respect of labour disputes. As demonstrated above, the intention behind this choice was to prevent labour dispute resolution procedures from becoming costly and time-consuming and, thereby, inadvertently favouring the party that wields greater resources and power. It was a pragmatic decision that serves the ends of justice and protects the rights enshrined in section 23 of the Constitution. Courts undermine these imperatives by readily treating reviews as appeals. Arbitration awards are intended to be final and binding. They are not to be treated as a mere box-ticking exercise, or the first step in a drawn out process that can be exploited by the party who is able to “out-litigate” the other. It is no secret that the Labour Courts are backlogged and that this impedes their ability to adjudicate labour disputes in the swift manner contemplated by the LRA. This problem is, without a doubt, exacerbated when a court fails to distinguish between a genuine review and an appeal disguised as a review” (my emphasis).

[33]. Overall, Mr Masondo’s case has not reached the threshold of review and the Commissioner’s award should be left alone. The review application, thus, stands to be dismissed.

COSTS:

[34]. The general approach in this Court is to not award costs. I see no compelling reason to depart from that approach in this matter.

Order

1. The review application is dismissed.

VG Mkwibiso AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant : Adv AC Diamond

Instructed by Mohale Incorporated

For the Third Respondent : Adv G van der Westhuizen

Instructed by Shepstone & Wylie

[1] Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC), paragraph [28].

[2] Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (2022) 43 ILJ 825 (LAC); [2022] 4 BLLR 324 (LAC), paragraph [26].

[3] Stellenbosch Farmers Winery Group Limited and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA), paragraph [5].

[4] De Beers Consolidated Mines Ltd v CCMA and Others (2000) 21 ILJ 1051 (LAC); [2000] 9 BLLR 995 (LAC).

[5] Booi v Amathole District Municipality (2022) 43 ILJ 91 (CC); [2022] 1 BLLR 1 (CC), paragraphs [50] – [51]. See also: Glencore Operations South Africa (Pty) Ltd (Western Chrome Mines) v NUMSA obo Motsepe and Others (JR 1828/2019) [2022] ZALCJHB 42 (11 March 2022), paragraphs [13] and [18].