Ndzimande and Others v Didben NO and Others (JR1404/14) [2019] ZALCJHB 73 (2 April 2019)

Ndzimande and Others v Didben NO and Others (JR1404/14) [2019] ZALCJHB 73 (2 April 2019)

The court found that the Commissioner correctly identified and adjudicated the central issue: whether the applicants made false and defamatory statements to the media in breach of Xstrata's communication policy. The applicants belatedly conceded that the voices on the audio recordings were theirs, rendering any hearsay argument moot. Evidence established that the applicants were aware of the communication policy, having been inducted and warned previously. Their statements were found to be false, malicious, and damaging to Xstrata's reputation. The applicants' defence of freedom of expression was rejected, as such rights are not unfettered and do not permit false statements against an...

Citation
[2019] ZALCJHB 73
Parties
Applicant: Joseph Ndzimande & 2 Others; Respondent: Raymond Didben N.O.; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Xstrata Coal South Africa (Atcom North); Respondent: Glencore Operations (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
2 April 2019
Case Number
JR1404/14
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application to review and set aside the arbitration award is dismissed.
Judges
Tlhotlhalemaje
Legal Topics
Unfair Dismissal, Misconduct, Freedom of Expression, Review of Arbitration Award, Costs Award
Labour Law Civil Procedure Unfair Dismissal Misconduct Freedom of Expression Review of Arbitration Award Costs Award

Case Brief

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Parties

Joseph Ndzimande & 2 Others

Applicant

Raymond Didben N.O.

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Xstrata Coal South Africa (Atcom North)

Respondent

Glencore Operations (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner committed reviewable irregularities in the arbitration proceedings.
  2. 2 Whether the dismissal of the applicants for making false statements to the media was substantively and procedurally fair.
  3. 3 Whether the applicants were aware of and breached the employer's communication policy.

Ratio Decidendi

The court found that the Commissioner correctly identified and adjudicated the central issue: whether the applicants made false and defamatory statements to the media in breach of Xstrata's communication policy. The applicants belatedly conceded that the voices on the audio recordings were theirs, rendering any hearsay argument moot. Evidence established that the applicants were aware of the communication policy, having been inducted and warned previously. Their statements were found to be false, malicious, and damaging to Xstrata's reputation. The applicants' defence of freedom of expression was rejected, as such rights are not unfettered and do not permit false statements against an...

Court Disposition

Application to review and set aside the arbitration award is dismissed.

Orders

  • The applicants’ application to review and set aside the arbitration award issued by the First Respondent under case number MP 466-13 dated 25 May 2014 is dismissed.
  • There is no order as to costs.