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[2015] ZASCA 7
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Mkhize v Department of Correctional Services and Others (128/2014) [2015] ZASCA 7; (2015) 36 ILJ 1447 (SCA) (11 March 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
no: 128/2014
In
the matter between:
SITHEMBISO
SIPHELELE
MKHIZE
.......................................................................
Appellant
and
DEPARTMENT
OF CORRECTIONAL
SERVICES
...........................................................................................................
First
Respondent
SILAS
RAMUSHOWANA
N.O
......................................................................
Second
Respondent
GENERAL
PUBLIC SERVICES SECTORAL
BARGAINING
COUNCIL
...............................................................................
Third Respondent
Neutral
citation:
Mkhize v Department of
Correctional Services
[2015] ZASCA 7
(11 March 2015)
Coram:
NAVSA ADP, LEWIS, WALLIS AND PILLAY JJA and MAYAT
AJA .
Heard
:
6 March 2015
Delivered
:
11 March 2015
Summary:
Dismissal – upheld by Sectoral
Bargaining Council – Labour Court dismissing review and Labour
Appeal Court refusing
leave to appeal – limited scope for
interference by Supreme Court of Appeal – new material evidence
tendered on appeal
– need to be presented and tested –
remittal to Sectoral Bargaining Council
ORDER
On
appeal from:
Labour Court
(Rabkin-Naicker J sitting as court of first
instance, leave to appeal having been refused by the Labour Appeal
Court):
1.
The appeal is upheld and the order of the
Labour Appeal Court refusing leave to appeal, the order of the Labour
Court dismissing
the review and the decision by the arbitrator given
on 30 October 2008, are all set aside.
2.
There will be no order in regard to the
costs of the proceedings in the Labour Court and the Labour Appeal
Court.
3.
The dispute concerning Mr Mkhize’s
dismissal is remitted to the General Public Services Sectoral
Bargaining Council to continue
the arbitration before the second
respondent or, if he is unable to continue with the arbitration,
another arbitrator appointed
by the Council, on the sole question
whether Mr Mkhize’s dismissal was substantively unfair.
4.
In the resumed hearing the evidence heard
to date will remain as evidence on the record and the arbitrator will
hear the evidence
of Mr G Sibiya, such further evidence as
may be tendered by either party in the light of that evidence and
further evidence
from or, if requested, cross-examination of, any
witness who has already testified in the arbitration.
5.
In the event of Mr Mkhize obtaining an
order for his reinstatement or an order for compensation in excess of
that permitted by
s 194(1)
of the
Labour Relations Act, 66 of
1995
, as amended, and such order becomes final and binding on the
Department of Correctional Services, the Department shall pay Mr
Mkhize’s
costs of this appeal.
6.
Apart from the circumstances in para 5 of
this order there will be no order for costs in this appeal.
JUDGMENT
Wallis
JA (Navsa DP, Lewis and Pillay JJA and Mayat AJA concurring)
[1]
Mr S S Mkhize, the appellant, was formerly
employed by the first respondent, the Department of Correctional
Services (the Department)
as a warder at the Johannesburg
correctional centre. In January 2008, after a disciplinary enquiry,
most of which he had refused
to attend, he was found guilty on a
charge of bringing dagga into the prison and was dismissed. He
challenged his dismissal in
terms of the Labour Relations Act 66 of
1995 (the LRA), but on 30 October 2008, after a hearing, the second
respondent, sitting
as an arbitrator in the General Public Services
Sectoral Bargaining Council, held that it had been both procedurally
and substantively
fair. Mr Mkhize reviewed the award in terms of the
LRA, but, on 21 June 2012, Rabkin-Naicker J in the Labour Court
dismissed the
review application. The Labour Appeal Court dismissed a
petition for leave to appeal on 28 February 2013. This further appeal
is
with the special leave of this court.
[2]
In this appeal Mr Mkhize asked us to
revisit the arguments that failed before the arbitrator and in the
Labour Court and Labour
Appeal Court. In addition he sought leave to
introduce new evidence in the form of an affidavit sworn on 1 October
2012 by one
Gilbert Sibiya, who was also employed as a warder at the
time of the incident leading to Mr Mkhize’s dismissal. It was
Mr
Sibiya who had first made a report that led to the investigation
of Mr Mkhize, his suspension from duty and his eventual dismissal.
Mr
Sibiya furnished a statement to the investigators who compiled an
investigation report and gave evidence at both the disciplinary
enquiry and the arbitration. In his affidavit he confessed that, out
of personal antagonism towards Mr Mkhize, he had given false
evidence
against him at the disciplinary hearing and arbitration. He said that
a prisoner, one Zola, had planted the dagga seeds
found in a bag
thought to belong to Mr Mkhize, which contained his windbreaker and
newspaper. He had seen Zola doing this and instead
of taking steps to
deal with Zola’s misconduct he had made a report to Mr Dlamini,
the assistant head of the prison, that
there was dagga in Mr Mkhize’s
bag. This had led to the investigation that in turn had the
consequences already described.
[3]
Apart
from the introduction of new evidence, Mr Mkhize wanted this court to
revisit the two issues that had been ventilated before
the
arbitrator, the Labour Court and the Labour Appeal Court. These were
that there was a procedural time bar that prohibited the
institution
of disciplinary proceedings against him in terms of the Department’s
disciplinary code and that the arbitrator
had erred on the evidence
in holding that his dismissal was both procedurally and substantively
fair. On the established jurisprudence
of this court
[1]
neither argument raised any special circumstance warranting
interference by this court with the decisions of the specialised
labour
tribunals. Accordingly, and counsel on his behalf accepted
this, the only questions for decision in this appeal revolved around
the attempt to introduce the evidence of Mr Sibiya.
[4]
It
must be accepted that if Mr Sibiya is now telling the truth –
and on any basis he is a self-confessed liar – and
he had said
to the arbitrator what is said in his affidavit, that may possibly
have affected the outcome of the arbitration. The
evidence is
material and indicates the possibility of there having been a
miscarriage of justice, although courts are with good
reason
reluctant to place much reliance on the evidence of a recanting
witness.
[2]
However, the
affidavit cannot simply be accepted at face value.
[3]
Its contents must be tested if it is still feasible to do so. In that
regard not only will Mr Sibiya need to give evidence and
be
cross-examined, but witnesses who gave evidence before the
commissioner might need to be recalled to give further evidence or
to
be cross-examined in the light of his evidence. In addition, the
alleged perpetrator, the prisoner called Zola, will need to
be
identified and will also have to give evidence. The circumstances in
which Mr Sibiya’s affidavit was prepared and by whom,
[4]
as well as the circumstances in which it came to the attention of Mr
Mkhize’s lawyers will also have to be explored
[5]
The
need to test Mr Sibiya’s evidence raises problems in the
disposition of this appeal. But the powers conferred on this
court by
s 22 of the Supreme Court Act 59 of 1959 (under which this
matter must be disposed of because it was pending in this
court
before the repeal of that Act)) are extremely broad. In the ordinary
case where a court of appeal is faced with a similar
situation it
sets aside the decisions of the courts below it and remits the
hearing of such evidence to the trial court. The trial
court then
hears the evidence and such further evidence as may arise therefrom,
including further evidence from witnesses who gave
evidence at the
original trial, and determines the case
de
novo
.
[5]
That is in my view the only proper way to address the present case,
subject only to the qualification that the remittal is limited
to a
de
novo
determination
of whether Mr Mkhize’s dismissal was substantively unfair. It
does not extend to permitting him to re-argue
the technical point
that the disciplinary proceedings were instituted out of time.
[6]
Accordingly the appeal must succeed and the
orders by the Labour Appeal Court and Labour Court, as well as the
decision of the arbitrator,
must be set aside. Normally that would
carry with it an order for costs, but in this case that would not be
appropriate. On the
evidence before the arbitrator the decision he
reached was a proper one and the Labour Court was correct not to set
it aside on
review. The Labour Appeal Court was likewise correct not
to grant leave to appeal from the Labour Court’s judgment. The
only
reason why the proceedings below are to be set aside is because
of the possibility that the new evidence might result in a different
conclusion.
[7]
In
those circumstances Mr Mkhize has not at this stage achieved
substantial success. Even if the evidence is admitted and found
to be
reliable his success may be limited. Given the lapse of time since
his dismissal it is improbable that reinstatement would
be ordered as
a remedy for any procedural or substantive unfairness and any
compensation would be limited to twelve months’
remuneration.
[6]
If he pursues
reinstatement but only obtains limited compensation, the game will
not have been worth the candle and the pursuit
of reinstatement will
have been unreasonable. It is perfectly possible that the fairness of
the Department’s treatment of
Mr Mkhize may be reiterated.
[8]
In addition, Mr Sibiya’s dishonest
implication of Mr Mkhize in misconduct cannot be laid at the door of
the Department. It
had no reason to believe that he was being
duplicitous and protecting the misconduct of the prisoner, Zola.
Accordingly, it was
entitled to defend the proceedings before the
arbitrator and to resist the review and the appeal from the Labour
Court.
[9]
In those circumstances, I do not think that
Mr Mkhize should recover his costs in respect of the proceedings in
the Labour Court
and the Labour Appeal Court. As to his costs in this
court I propose to make the recovery of those costs dependent upon
his obtaining
substantial success in the resumed arbitration going
beyond the limited compensation that is recoverable in terms of s
194(1) of
the LRA. In other words, if he recovers no more than the
statutory maximum compensation that will not count as substantial
success.
If he achieves such success an order that he recover his
costs in this court will be appropriate. On the other hand, the need
for
the remittal to the arbitrator is, in part, because of the
failure of the Department to deal with the affidavit of Mr Sibiya. It
did not oppose the application for special leave to appeal to this
court nor did it seek to place any evidence before us, either
in
regard to its contents, or the appropriateness of it being admitted
at this late stage of matters. Accordingly there will be
no order in
its favour in regard to any of the costs incurred thus far. In any
event it is the general practice in labour disputes
arising from
individual dismissals, not to make an order for costs in favour of
the successful employer.
[10]
I make the following order:
1.
The appeal is upheld and the order of the
Labour Appeal Court refusing leave to appeal, the order of the Labour
Court dismissing
the review and the decision by the arbitrator given
on 30 October 2008, are all set aside.
2
.
There will be no order in regard to the
costs of the proceedings in the Labour Court and the Labour Appeal
Court.
3.
The dispute
concerning Mr Mkhize’s dismissal is remitted to the General
Public Services Sectoral Bargaining Council to continue
the
arbitration before the second respondent, or if he is unable to
continue with the arbitration another arbitrator appointed
by the
Council, on the sole question whether Mr Mkhize’s dismissal was
substantively unfair.
4.
In the resumed hearing the evidence heard
to date will remain as evidence on the record and the arbitrator will
hear the evidence
of Mr G Sibiya, such further evidence as
may be tendered by either party in the light of that evidence and
further evidence
from or, if requested, cross-examination of, any
witness who has already testified in the arbitration.
5.
In the event of Mr Mkhize obtaining an
order for his reinstatement or an order for compensation in excess of
that permitted by
s 194(1)
of the
Labour Relations Act, 66 of
1995
, as amended, and such order becomes final and binding on the
Department of Correctional Services, the Department shall pay Mr
Mkhize’s
costs of this appeal.
6.
Apart from the circumstances in para 5 of
this order there will be no order for costs in this appeal.
M
J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellant: D Z Kela
Instructed
by:
Ndumiso
Voyi Inc, Midrand
Webbers,
Bloemfontein
For
respondent: S Hassim SC (with her M B Matlejoane)
Instructed
by:
The
State Attorney, Pretoria and Bloemfontein.
[1]
National
Union of Mineworkers and another v Samancor Ltd (Tubatse
Ferrochrome) and others
(2011)
32 ILJ 1618 (SCA) para 14;
Herholdt
v Nedbank Ltd (COSATU as Amicus Curiae)
2013
(6) SA 224
(SCA) para 6.
[2]
R
v Van Heerden and Another
1956
(1) SA 366
(A) at 372H-373A;
S
v N
1988
(3) SA 450
(A) at 464E-H.
[3]
The order granting special leave to appeal to this court included a
provision that if the contents of Mr Sibiya’s affidavit
was
not objected to within 21 days leave would be given to Mr Mkhize to
adduce this evidence on appeal. However, that order,
added
mero
motu
by the judges dealing with the application, was clearly incompetent
in the light of the provisions of s 22
(a)
of
the Supreme Court Act 59 of 1959 (
Shein
v Excess Insurance Co Ltd
1912
AD 418
at 429) and the parties accepted that it could be
disregarded.
[4]
A consideration of its terms suggests that someone other than Mr
Sibiya and possibly someone with a modicum of legal training
may
have drafted it.
[5]
R
v Mhlongo and Another
1935
AD 133
at 134;
R
v Kanyile and Others
1944 AD 293
at 295;
R
v Jantjies
1958
(2) SA 273
(A) at 279F-H.
[6]
Section 194(1)
of the
Labour Relations Act 66 of 1995
.