Xstrata South Africa (Pty) Ltd v National Union of Mineworkers obo Lekubu and Others (JR2101/13) [2016] ZALCJHB 131 (22 March 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

CASE NO: JR 2101/13

In the matter between:

XSTRATA SOUTH AFRICA (PTY) LTD

Applicant

(HELENA MINE)

and

NATIONAL UNION OF MINEWORKERS

obo BERNARD LEKUBU

First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Second Respondent

PIET SHAI N.O.

Third Respondent

Heard: 10 September 2015 (In Chambers)

Delivered: 22 March 2016 (In Chambers)

(RULING ON THE APPLICATION FOR LEAVE TO APPEAL)

BALOYI AJ

Introduction

[1] The Applicant is seeking leave to appeal against the whole of the judgment made by myself wherein the Applicant’s review application filed under the same case number was dismissed with costs. The Third Respondent opposed the application and both parties have duly filed their written submissions as required in terms of the practice manual.

Background

[2] Detailed background of facts of the matter is already captured in the main judgment. For the sake of convenience the salient issues of the dispute relate to dismissal of Bernard Lekubu whom together with his trade union, NUM were cited as First Respondent in the review application as is the case now. Lekubu’s dismissal was found to be unfair by the Arbitrator (Third Respondent)

whose award was challenged by way of review by the Applicant. The issue in contention was whether Lekubu committed the misconduct

he was charged with, that is, incitement of the Applicant’s workforce not to go underground after the Department of Minerals and Energy gave what is known as section 54 clearance notice that the site was safe for resumption of work.

[3] According to Lekubu and his witness who testified during arbitration proceedings, Lekubu with a certain group of workers went underground after being clarified on the question he asked regarding the lifting of section 54 notice. When the Applicant’s operations manager, Mr Mnisi was called to address the remaining workers, Lekubu had already gone underground. The Applicant through statements of two persons, Mr Magolela and Mr Mangele who were reportedly unavailable during arbitration, stated that Lekubu told the workers not go underground as the lifting of section 54 notice was issued by management instead of the Department of Minerals and energy. It is worth repetition that Lekubu was a member of the trade union NUM, while Magolela and Mangele were members of AMCU.

The grounds for Leave to Appeal

[4] In summary the Applicant’s complaints are heavily rested on;

- the Court’s misapplication of the test for review in respect of reasonableness,

- the Court’s not having recognized the Arbitrator’s misconception of nature of enquiry,

- the Court not having rejected the employee’s contradictory evidence in favour of Applicant’s hearsay evidence, and

- that the rivalry between trade unions AMCU and NUM was within the public knowledge constituted misdirection.

The test for Leave to Appeal

[5] The prospect that another Court may reach a different conclusion has been and still to a large extent the crux of the test for granting of leave to appeal. In order to arrive at finding to the effect, the provisions of section 17(1) of the Superior Courts Act 10 of 2013 form part of a crucial tool deserving consideration which reads as follows:

“Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgements on the matter under consideration;

(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[6] The test when considered with section 17(1) undoubtedly places this court on the same reasoning adopted in Oasys Innovations (Pty) Ltd t/a GL Event Oasys v Henning and Another C536/15 handed on 6th November 2015 where the court had this to say in paragraph 8;

8] The traditional test applicable whether leave to appeal should be granted is whether there is a reasonable prospect that another Court may come to a different conclusion to that reached by the Court whose judgment is sought to be taken on appeal.[3] The possibility that another court may come to a different conclusion has to be assessed with reference to the facts and the law, and will involve the consideration of factors such as whether they have satisfied the Court that there is a reasonable prospect of the appeal succeeding.[4] And another aspect for consideration for leave to appeal is whether the matter is of substantial importance for the applicants or both the applicants and the respondent.[5]

[7] On misapplication of the test for review which according to the Applicant’s analogy overlaps into the Court’s inability

to recognize the Arbitrator’s failure to appreciate the nature of the dispute, in Applicant’s view the Court erred in not reviewing the award based amongst others on these grounds. These grounds will simultaneously be dealt with in conjunction with that relating to the Court’s misdirection regarding the Court’s noting of rivalry between trade unions AMCU and NUM. The Applicant relied on Heroldt v Nedbank Limited [2013] 11 BLLR 1074 SCA as well as Palluchi Home Depot (Pty) Ltd v Herskowitz & Others [2015] 5 BLLR 484 LAC.

[8] The underlying issue on these grounds is that the Court ought not to have accepted that onus as a means to diffuse the stalemate where the Arbitrator was faced with evenly balanced versions. The Applicant’s argument effectively suggests that the Arbitrator used onus as a shortcut to arrive at its decision without assessing the probabilities. In support of this argument the Applicant relied on Assmang LTD V CCMA & Others 2015 (6) BLLR 589 LC on the understanding that it is a conflicting decision on a similar question for determination. In Assmang the award was reviewed after the Arbitrator was found to have decided the matter without assessing the credibility of witnesses. In this instant matter, this could not be possible since the Applicant did not call witnesses. The probabilities were clearly articulated in the record in so far as the motive for the two AMCU Shopstewards to implicate Lekubu, that is the two trade unions did not see eye to eye. The basis for the Court’s noting of the rivalry between the two trade unions lied within what was placed before the Arbitrator in addition to what is in the public domain. The said evidence of Lekubu remained uncontested. The Arbitrator’s

settlement of the dispute on onus in this respect remains within the bands of reasonableness.

[9] It is so that the arbitrator’s failure to appreciate the nature of the dispute

renders the award reviewable. The Applicant’s mere mentioning of such failure without substantiation, as is the case herein, is as much as nothing being said. In the Applicant’s written submissions it is apparent that the Applicant is more critical of what is contained in paragraph 10 of the main judgment regarding the test for review. This ground and the underlying factors appear to be incoherent with each other, as such nothing is established as to Arbitrator’s misconception of the nature of enquiry which the Court is said not to have recognized. In my view no misdirection is found in this regard.

[10] Regarding the Court not having rejected the employee’s contradictory evidence in favour of Applicant’s hearsay

evidence, it appears that the Applicant was looking at the acceptance of hearsay solely on the basis of complaints of contradiction of evidence tendered by a direct evidence witness, Lekubu in this respect. The Third Respondent’s finding that the evidence was evenly balanced is certainly indicative of him having accepted the very hearsay evidence of the Applicant. Such hearsay evidence cannot be said to be sufficient to assist the Applicant to discharge its onus of proving the fairness of the dismissal. The most notable factor being Mnisi’s inability to confirm if Lekubu was still persisting with refusal to go underground when he came out to address the workers. It appears according to the Applicant that the mere spotting of contradiction in the other party’s version exonerates the party bearing onus from discharging its burden of proof, which is highly incorrect. The Arbitrator’s decision as pointed out above remains reasonable and this ground is also bound to fail.

[11] The cumulative effect of the above is that the appeal would have no reasonable prospect of success for no prospect of another Court arriving at a different conclusion. As result the application for leave to appeal cannot under the circumstances succeed.

[12] The following order is therefore made;

12.1 The application for leave to appeal is dismissed with costs.

___________________

Baloyi AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. F Boda

Instructed by: Edward Nathan Sonnenberg Inc.

For the Respondent: Adv. P L Mokoena SC with Adv. M Z Makoti

Instructed by: Mothobi Attorneys