IN THE LABOUR COURT OF SOUTH AFRICA

(Held at Durban)

Case No: D250/97

In the matter between:

	NATAL SHOE COMPONENTS CC				Applicant

and

	S NDAWONDE						Respondent

J U D G E M E N T

	
	Constitution of the Court	: REVELAS J

	Date of Judgement			: 22 May 1998

	On behalf of Applicant		: ADVOCATE M.A. JACOBS
Instructed by 		: MOONEY FORD AND PARTNETS

	On behalf of Respondent		: IN PERSON

REVELAS J:
	[1]	This is an application in terms of section 145 of the Labour Relations Act, No 66 of 1995 (hereafter “the Act”), to review and set aside the arbitration award under case number KN 4069 and dated 10 September 1997, made by commissioner Mr T Majake, appointed by the Commission for Conciliation, Mediation and Arbitration (hereafter “the CCMA”).

	[2]	The arbitrator made the following award in favour of the respondent who alleged that he was unfairly dismissed by the applicant:

	“1.	The respondent must be reinstated with effect from 27 January 1997 with back pay.

1.	The amount to be paid to the applicant in terms of paragraph 1 above amounts to R9 438,99 (three weeks x R286,03).”

	[3]	The commissioner is not cited in the heading of the application as a respondent.   The commissioner responded in terms of rule 7(7) of the Labour Court Rules.   He filed “Reasons for the Decision” and he also provided his written notes which was the record of the proceedings before him.  He is also properly described in the proceedings and therefore I am satisfied that he is properly before the court.  No party raised this issue either.

	[4]	In this matter the allegation levelled against the respondent was that he had stolen from the applicant.  Mr A.D. Aaron of the applicant alleged that the respondent had abandoned his employment after criminal charges were instituted against the respondent.  The commissioner rejected the evidence of Mr A.D. Aaron who appeared on behalf of the applicant during the proceedings, as well as the evidence of Mrs S Govender, a witness for the applicant.

	[5]	The commissioner found the following:

“ I do not attach any probative value or weight to the evidence of Mrs S.N. Govender as she was repeating what she heard Mr A.D. Aaron stating in the arbitration.  I informed the parties that since she was present when Mr A.D. Aaron was testifying, her evidence will be treated with caution for its corroborative value.” 

	[6]	Mr A.D. Aaron who deposed to the respondent’s founding affidavit, alleged that at the arbitration hearing that Mrs Govender was present when he testified as to the events of 4 December 1997, the date upon which the respondent allegedly stole a grinding machine from the applicant.  He stated that the commissioner, never warned him that Mrs Govender should leave the proceedings and that if she remained present while Mr Aaron testified, her evidence would be of no probative value.  Mr Aaron contends that had he been so warned he would have ensured that Mrs Govender left the room during his testimony, and so he would have avoided the rejection by the commissioner of her evidence on the basis that it had no probative value.  It is the case for the applicant that the commissioner committed a gross irregularity in rejecting Mrs Govender’s evidence in such circumstances.

	[7]	Mr Aaron’s testimony before the arbitration was that the alleged theft had come to his knowledge on 6 December 1996, he laid criminal charges against the respondent where after he never saw the respondent again until January 1997 when he approached Mr Aaron and informed him that he first wanted to find out whether he had been “fired”.  Mr Aaron informed him that he first wanted to establish what had happened to the criminal case against the respondent.  He was informed by the respondent that the theft charges against him had been withdrawn.  He never saw the respondent thereafter until he received a letter on 10 April 1997 from a firm called “Legal Wise” who represented the respondent.  The commissioner also received a letter from Mr Mndaweni, a legal adviser from “Legal Wise” which he addressed to the commissioner on 22 April 1997, accompanying the respondent’s referral forms and which stated the following:

“Kindly be advised that on 11 February 1997 we wrote we wrote a letter to Mr David Aaron managing director of Natal Shoe Components enquiring about Mr Ndawonde’s suspension and only received a response on 10 April 1997, ...hence the reason for the delay in referring Mr Ndawonde to the CCMA.”   

	[8]	The applicant contends that it was an irregularity on the part of the commissioner to take this letter into account since it did not form part of the evidence in front of the commissioner.  Before I deal with the other grounds for review I will deal with this question first.

	[9]	Firstly, the letter accompanied the referral documents to the commissioner.  The commissioner received this letter from an attorney and was entitled to read it.  The fact that the commissioner did not refer to this letter in his award but took the evidence into account is not in itself irregular.  Secondly, it is not apparent what the commissioner took into account in this regard.   Therefore this ground of attack is unsubstantiated.  

	[10]	More important is the question of the rejection of Mrs Govender’s evidence.  The commissioner who did respond to the review application, did not deal with the question of whether he warned Mrs Govender or not, in an affidavit.  In his award the commissioner states that he warned them  but does not state at which stage.   The respondent in his affidavit does not deal with the matter specifically and does not give a version of the events.  There is a denial in respect of paragraph 8.1 of the applicant’s founding papers which does not correspond with the applicant’s allegations in question.  The respondent therefore does not give an explanation in this regard either.  On the evidence in front of me I have to accept the applicant’s version is correct namely that the commissioner did not warn the witnesses for the applicant in advance about the consequences of their simultaneous presence in court and what the effect thereof would be. In weighing up such evidence, I had to take into account that an unchallenged allegation on  affidavit carries more weight than a statement in an award.  Consequently I have to find that the commissioner did not warn Mrs Govender to leave the proceedings, and then rejected her evidence on the basis that she was present when Mr Aaron testified.  In my view, this constitutes a gross irregularity in terms of section 145(2)(a)(ii) of the Act.   Counsel for the applicant argued that the award is also reviewable in terms of sections 159(1)(g) of the Act.  Since the application is brought under section 145 of the Act the court precluded from considering the award in terms of section 158(1)(g) of the Act.

[11] In the circumstances I make the following order:
 	2. September 1997 and issued by  commissioner Mr J Majake of the CCMA, under case 	number KN 4069/97 falls to be set aside in that the commissioner committed a gross 	irregularity in terms of section 145(2)(a)(ii) of the Act.

2.	I am not inclined to make any costs order in this matter.

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REVELAS J

This judgement is also available on the Internet :
http://www.law.wits.ac.za/labourcrt.