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[2020] ZALAC 29
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Moqhaka Local Municipality v IMATU obo Thebe and Others (JA65/18) [2020] ZALAC 29 (22 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JA65/18
In the matter between:
MOQHAKA LOCAL
MUNICIPALITY
Appellant
and
IMATU
OBO EM THEBE & 13 OTHERS
Respondent
Delivered:
22 May 2020
Coram: Jappie, Musi
et
Coppin JJA
JUDGMENT
COPPIN JA
[1]
On 17 February 2014 the appellant dismissed a number of its
employees, including the
14 that are represented in this matter by
the respondent union (“IMATU”), on the grounds, inter
alia, that they were
participants in an illegal strike. As a
consequence, IMATU brought a claim in terms of section 191 of the
Labour Relations Act
[1]
on
behalf of those employees in the Labour court, seeking their
reinstatement.
[2]
The Labour court (per Moshoana J), in a judgement dated 26 April
2018, found that
the dismissal of the employees was procedurally and
substantively unfair and ordered the appellant to reinstate them
without any
loss of benefits, effectively, from the date of the
dismissal. Each party was ordered to pay its own costs. This is an
appeal against
that decision, leave to appeal having been granted on
petition to this court. IMATU is opposing this appeal on behalf the
employees.
[3]
In addition to contesting the merits of the appeal the respondent has
raised two legal points,
only one of which it persisted with at the
hearing. I shall first set out a brief background and then deal with
the legal point.
The
background facts
[4]
It is common cause that on or about 13 December 2013 a group of the
appellant’s
employees stormed into the office of the
appellant’s Director of Corporate Services, Mr Eric Mtwalo and
forcefully removed
him from the premises.
[5]
On 6 January 2014 employees of the appellant engaged in an illegal
strike. A group
that styled themselves “The Progressive
Moqhaka Municipality Employees” (“Progressive
Group”) consisting
of employees who were members of the
South African Municipal Workers Union (SAMWU) and of IMATU called a
meeting at the local
town hall where a letter, addressed to the
Municipal Manager and certain Directors of the appellant, was read
out. One of the demands,
in essence, was that those officials should
resign voluntarily or be forced by the group to do so. One of the
employees represented
by IMATU in this matter, Mr EM Thebe, was the
elected spokesperson for the Progressive group at the meeting and he
read the letter
to the audience.
[6]
The appellant alleges that the employees engaged in an illegal strike
from 6 January, which
was not limited to the withdrawal of their
labour, but also included widespread acts of intimidation, threats of
violence and interruptions
of service delivery. According to the
appellant, the striking employees had from time to time entered the
offices of the Directors
and had removed them and threatened them
with violence and other grievous consequences, if they were to come
back. The strikers
also blocked the entrance to the appellant’s
offices. Out of concern for the safety of the Municipal Manager and
the affected
Directors, arrangements were made for those officials to
work from a guesthouse in Kroonstad.
[7]
On 17 January 2014 the appellant obtained an interim interdict from
the High Court
against certain of the employees involved in the
strike, which included four of the employees in this matter, namely,
Mr Thebe,
Ms Selebogo (the Human Resources Manager), Ms Motsamai and
Ms S Stokkie. The order was returnable on 13 February 2014.
[8]
According to the appellant, from 17 January 2014 up to the date of
the dismissals,
the High Court order was breached. On 11 February
2014 it issued an ultimatum (the first ultimatum) calling upon those
employees
on strike to return to work within an hour, failing which
they would be issued with letters of dismissal. On 12 February 2014 a
second and final ultimatum was issued calling upon the employees who
were on strike to return to work by 11h00 on that day, failing
which
they would be issued with letters of dismissal.
[9]
On 14 February 2014 letters of dismissal were drafted in respect of
those employees,
who did not comply with the last ultimatum, and they
were served by the Sheriff on the affected employees who were present
on the
appellant’s premises. The others collected their letters
of dismissal on 17 February 2014. The employees were dismissed for
two reasons, namely, for being in breach of the High Court order
and/or for continued participation in an illegal strike, despite
the
ultimatums.
[10]
In the Labour court the appellant, who bears the onus to prove that
the dismissal of the employees
was both procedurally and
substantively fair, called several witnesses. They were, Mr
JeremiahTshibulane (a constable of the SAPS),
who made a video
recording of the activities inside and outside the appellant’s
premises during the strike; Mr Mtwalo, the
Director of Corporate
Services, Ms Connie Mazibuko, a security officer at the appellant’s
premises who was stationed at the
main office and Cash Hall, and who
was responsible for opening the appellant’s gates and for the
safety and security of its
buildings, Mr Andre Kotze, the Records and
Administration manager, Mr Godfrey Mogorosi, the Resort Manager, Mr
Nicholas Van Zyl,
the appellant’s Chief of Security Services,
who was responsible for the protection of the appellant’s
employees
and Councillors, and Ms Portia Tshabalala, the Director of
Community and Social Services. For the respondent each of the
employees
represented in this matter by IMATU also testified.
Labour
Court’s Findings
[11]
The Labour Court found, in essence, that the appellant had failed to
prove that any of the employees
in this matter had committed
misconduct. It found that “[t]he difficulty with the
[appellant’s] evidence is that since
it was common cause that
during the period there was an ongoing strike it cannot [in the
Labour court’s] view, follow that
the dismissed individual
[employees] participated in that strike action. By doing so this
court would simply be assuming that [the
employee’s] were
guilty of misconduct, without making a determination on whether the
applicants were indeed guilty of misconduct.”
[12]
According to the Labour Court, it was confronted with two conflicting
versions, i.e. the appellant’s
version that some of the
employees represented herein were in breach of the High Court order,
and that all of them continued to
engage or participate in the strike
despite the ultimatums that were issued, and the versions of the
individual employees denying
such a breach or participation. Having
briefly considered the evidence the Labour Court rejected the version
of the appellant’s
witnesses as being improbable and accepted
the respondent’s version that they were at work, as the most
probable version.
It concluded that the appellant had failed to
discharge its onus.
[13]
Notwithstanding that conclusion, the Labour Court went on to further
fortify its findings –
being especially critical of the
appellant’s allegation that all the employees breached the High
Court order for a period
of a month after it had been obtained. The
Labour Court found that improbable, especially since nothing had been
done by the appellant
concerning such contravention. The Labour court
was also critical of the fact that not all the employees had been
cited as respondents
in the High Court proceedings, and that there
was no evidence about the Progressive group’s membership and
whether it continued
to exist beyond 6 January 2014. It was even more
critical of the fact that there was no evidence that the High Court
order had
been served on each of the employees.
[14]
The Labour Court hence concluded: “For all the reasons set out
above, I am not satisfied
that the dismissal of the [employees] was
for a fair reason. In relation to procedure I’m not convinced
that this is a matter
where a hearing should not have been held.
Since there was no hearing, the dismissal was effected without
following a fair procedure.”
The Labour court then went on to
make an order reinstating the employees.
Point of law:
authority to appeal
[15]
The respondent did not proceed with a point in limine relating to the
date of the filing of the
notice of appeal, but persisted with a
point that the Municipal Manager, Mr Mncedisi Simon Mqwathi, did not
have the necessary
power to act on behalf of the appellant in
appealing the matter.
[16]
It is not disputed that the Municipal Manager signed a special power
of attorney, dated 30 April
2018, in terms of which he warranted that
he was duly authorised by the appellant to institute the appeal
proceedings, to nominate
and appoint Lebea & Associates Attorneys
(“the appellant’s attorneys”) as the attorneys and
empowering them
to appeal against the whole of the Labour Court’s
judgement and to do everything necessary to finalise this appeal.
[17]
It was contended that the Municipal Manager had the necessary power
to do so by virtue of the
appellant’s written “Delegation
of Powers, Policy and Principles of Delegation” and the
incidental powers delegated
to him. According to the appellant’s
(i.e. Council’s) minute, dated 13 October 2009, it was resolved
that the delegation
of powers as contained in the said document was
approved. It is also common cause that the Council that approved that
delegation
ceased to exist on 3 August 2016, and that a new (i.e. the
current) Council of the appellant was elected into office and
installed
on 4 August 2016.
[18]
The essence of the legal point is the following: (a) Section 11(1) of
the Local Government: Municipal
Systems Act
[2]
(“the Systems Act”) provides that the executive and
legislative authority of a municipality is exercised by the Council
of the municipality and the Council’s decisions are taken
subject to section 59; (b) Section 59(2)(b) of the Systems Act
requires delegations to be in writing; (c) Section 59(2)(f) requires
the delegations, or instructions, contemplated in that section
to be
reviewed when a new Council is elected; (d) The delegation relied
upon by the appellant in these proceedings (thus) elapsed
when the
previous Council ceased to exist and a new Council was elected; (e)
No review as contemplated in section 59(2)(f) had
ever taken place;
(f) Accordingly, the delegation relied upon by the Municipal Manager
was not valid or of any lawful effect, and
the Municipal Manager,
therefore, lacked the necessary standing to represent the appellant
in the current proceedings and to instruct
attorneys on its
behalf.
[19]
This point has no merit for the simple reason that the Systems Act
does not provide that the
delegation approved by the previous Council
lapses when a new Council is elected. The view that it does lapse is
an unjustified
inference drawn by the respondent from section
59(2)(f) of the Systems Act which provides that the delegation or
instruction, contemplated
in that section, “must be reviewed
when a new Council is elected or, if it is a district council,
elected and appointed.”
The interpretation contended for by the
respondents could result in confusion and chaos if, for example, the
delegation of the
previous council is not reviewed in time, or if the
review itself would take time to finalise. It would essentially mean
that the
business of the municipality would be hamstrung thereby, not
to speak of the uncertainty that may result therefrom.
[21]
The whole system of delegation is to ensure maximum administrative
and operational efficiency
and to provide for adequate checks and
balances. If the failure to review the delegation of the previous
Council automatically
resulted in the lapse of that delegation, the
consequence would not be maximum administrative and operational
efficiency, but the
exact opposite.
[22]
In any event, in terms of section 59(3)(a) a Council is to review any
decision taken by, inter-alia,
an office bearer or staff member, in
consequence of a delegation or instruction and may either confirm,
vary or revoke that decision.
There is no suggestion that the new
Council of the appellant revoked or varied the decision to appeal the
decision of the Labour
Court. And it is unlikely that the present
Council would be unaware of the current appeal, or is not supportive
of it. For all
of the above reasons the point is dismissed.
Regarding
the merits
[23]
The dismissal of the employees in this matter was not in issue and it
was therefore incumbent
upon the appellant to commence and,
ultimately, prove on a balance of probabilities that their dismissal
was both procedurally
and substantively fair.
[24]
It is indeed so that in the letters of dismissal the appellant stated
that each of the employees
were dismissed for participating in the
strike, particularly on 11 and 12 February 2014, and for being in
breach of the High Court
order. But the second ground of dismissal
could not fairly and validly apply to those employees who were not
cited in the High
Court order. Nevertheless, this ground of dismissal
must be understood in the context of the appellant’s case that
the employees
participated in the strike on 11 and 12 February 2014
and would not have been dismissed if they complied with the
ultimatums issued
on 11 February or 12 February.
[25]
The evidence that there was a strike at the appellant from about 6
January 2014 until about 17
February 2014, when the dismissal letters
was served on employees, is overwhelming. It is further incontestable
that the strike
was not peaceful and that acts of violence were
perpetrated against officials, property and other employees of the
appellant. There
were threats of physical violence made by some of
those who participated in the strike, acts of arson were perpetrated
and there
were acts of bullying by some strikers and general
disrespect shown for officials of the appellant. There is also no
question that
the strike was unprotected and that it was necessary
for the appellant to seek an interdict which was granted by the High
Court
against particular individuals on 17 January 2014.
[26]
Ultimately the appellant wants this Court to overturn the Labour
court’s findings of fact
concerning the employee’s
participation in the strike. It is trite that an appeal court’s
powers in reviewing such
findings is limited to some extent, because
findings of fact depend on the credibility of witnesses and is not
confined to what
is on record. The appeal court does not have the
same benefit as the trial court of seeing and hearing the witnesses
as they testified.
[27]
However, where the findings do not depend on credibility, but on
inferences from other facts,
the appeal court may be somewhat better
placed than the trial court, not only because the facts are recorded,
but because of the
further sifting and refinement of issues brought
about by the process of appeal, which may cause the appeal court to
see facts,
previously overlooked or undervalued, in a completely new
light
[3]
.
[28]
Consequently, while the appeal court will generally respect and not
interfere with the trial
court’s factual findings, it may
interfere with those findings and replace them with its own where the
trial court has misdirected
itself, or if the appeal court is of the
view that the inferences it is able to draw are more apposite and
that the trial court
was clearly wrong
[4]
.
The
Evidence
[29]
It is therefore necessary to consider the employer’s evidence
implicating the fourteen
employees in the misconduct alleged by the
appellant, and the exculpatory evidence of those employees, in order
to determine whether
the appellant had discharged its onus.
[30]
Mr Mtwalo testified, inter alia, that on 13 December 2013, prior to
the commencement of the strike,
he was forcefully evicted from his
office by a group of employees who stormed into his office; he was
insulted and told that he
was no longer wanted at the municipality;
in addition, the employees threatened to shoot and stab him. He
identified Ms Selebogo,
Ms BC Malema, Ms MW Khau Khau, Ms S Stokkie
and Mr P Gaje as having been part of that group of employees. He also
testified that
a Ms Otloa was part of the group but later confirmed
that that was an error. He further identified the following persons
as part
of those that were one strike between the period 6 January to
17 February 2014: Ms Khau Khau, Mr Tshisane, Ms BC Malema, Ms Bhape,
Ms Utla (or “Otloa”), DC Moleofi, Ms MS Ramabope (or “Ms
Sekonela”), Ms PE Ntlokotsi, Ms S Stokkie, and
Mr Gaje (or
“Kgaje”or “Mr Masita”). Under
cross-examination he also testified that Ms Mokemane was also
on
strike during the period 12 to 14 February 2014. His evidence was
detailed concerning the misconduct of each of those employees.
[31]
Ms Mazibuko, who worked in the Cash-hall of the appellant, which is
located on the ground floor
at the entrance, also identified specific
employees who participated in the strike. Her work hours were from
6h00 to 18h00 and
she was particularly well-placed to identify those
who entered and left the building during the period. She testified,
inter alia,
that the following respondent employees participated in
the strike over the crucial period namely Mr Tshisane, Ms Selebogo,
Ms
Motsamai, Ms Bhape, Ms Utla or Otloa, Ms Mokemane, Ms Moleofi, Ms
Ramabope (or “Ms Sekonela”), Ms Khau Khau, Ms Ntlokotsi,
Ms Stokkie, Mr Gaje (or “Kgaje” or “Mr Masita”)
and Mr Thebe. She testified that the latter was one of
the leaders of
the strike.
[32]
They would assemble outside the cash office and move towards the
entrance; they would remove
managers from the building and chase away
members of the public who came to pay their accounts, as well as
other employees who
were willing to work; they would enter the
building at times and threaten to assault (i.e. ‘sjambok’)
employees that
were working, unless they left. They shouted and
screamed at officials and tried to force them to leave the premises
and would
at times even accompany them to their vehicles, forcing
them to take their belongings with them. They would even use pepper
spray
to get other working employees out of the building.
[33]
Mr Kotze was able to identify the voices of certain employees who
participated in the strike
and identified Ms Motsamai and Ms Stokkie,
as having been amongst those who came to remove him from his office
on 22 January 2014.
He testified that he also saw the following
employees participating in the strike on different occasions: Mr
Thebe, Ms Selebogo,
Ms Malema, Ms Motsamai, Ms Ramabope (or “Ms
Sekonela”), Ms Khau Khau, Ms Ntlokotsi, and Ms Stokkie.
[34]
Mr Mogorosi and Ms Tshabalala also testified about the nature of the
strike. As they feared for
their lives they did not identify
particular individuals. Mr Van Zyl also testified about the nature of
the strike. He confirmed
that it was marked by violence and threats
of violence. He identified the following employees as having
participated in the strike
Mr Thebe, Ms Stokkie, Ms Khau Khau, Ms
Selebogo, Ms Ramabope (or “Ms Sekonela”), Ms Motsamai, Ms
Malema, Ms Bhape,
Ms Ntlokotsi and Mr Tshisane.
[35]
Mr Mtwalo testified that the ultimatums were emailed to staff and
were placed on notice boards
at entrances to the municipal building
and at individual workstations. Mr Thebe even responded to the email,
according to Mr Mtwalo.
All of these employees knew of the ultimatums
because they would also enter the building, sign the attendance
register, access
their emails and then leave. The ultimatums were
also served on IMATU, which, in response, addressed a letter to its
members calling
on them to cease participating in the strike.
According to Mr Mtwalo the respondent employees did not cease from
striking, and
their summary dismissal was therefore justified.
[36]
Each of the employees testified in person and a union representative,
Ms De Bruyn, was also called.
Surprisingly, these employees falsely
testified that there was no strike, even though it that was otherwise
a common cause fact.
They denied ever being on strike and alleged,
essentially, that they were at work performing their duties as
normal. Some, such
as, for example Ms Moleofe, admitted that there
was a strike, but testified that she was not part of it and was at
work during
work hours, performing her work as normal. Most, if not
all of them, denied receiving the first and second ultimatums, or
ever
seeing them. While some acknowledged attending the COGTA meeting
on 11 February 2014, others feigned ignorance about its purpose.
Some
alleged that the meeting they attended was approved by the municipal
manager, while the IMATU representative and shop steward,
Ms De
Bruyn, conceded that such approval had never been obtained, and that
the meeting was held during working hours.
[37]
Some, for example Ms Bhape and Ms Moleofe testified that they were
locked out of the municipal building
after they returned from the
meeting. The defences of the employees were essentially a denial of
any misconduct, i.e. of participating
in the strike, even though they
were implicated as participants in the strike.
Conflicting
Versions
[38]
Confronted with these conflicting versions the Labour Court was
required to analyse the evidence
of all the witnesses of the employer
and of the individual employees in order to determine, in each
instance, what the true version
was. It is necessary to consider the
approach of the Labour Court and to determine whether interference
with the factual finding
of that court, that the individual employees
(i.e. in this matter) were not on strike, is justified.
[39]
It is apparent from the record that the evidence of each of the
employees was relatively lengthy
and must have taken up a number of
days. All of their evidence takes up about ten volumes of the
seventeen volume record. Notwithstanding,
the judgement of the Labour
Court only relates the evidence of the witnesses of the appellant,
and deals with the evidence of the
employees in one paragraph, being
of the view that it was not necessary to repeat the evidence,
although some aspects of Ms De
Bruyn’s evidence was repeated.
One of the grounds of appeal relied upon by the appellant is that the
Labour Court “erred
in not dealing with, analysing and
assessing the evidence of each of the individual” employees in
relation to the evidence
proffered by the employer.
[40]
The Labour Court seems to have accepted as a basic tenet that
“participation is the act
of sharing activities with a group”
and that this implied that “on – lookers are not
participants”. For
it, to be “participants” they
had to be “a condition of sharing in common with others”.
Therefore, according
to the Labour Court “it cannot be said
that if an employee is spotted amongst the strikers, he or she is
participating in
the strike”.
[41]
The Labour Court also accepted as another basic tenet that if an
employee “does not have
a grievance or dispute he or she cannot
be said to be on strike”. This was so, according to the Labour
Court, because “strike
action was a power-play” resorted
to with the aim of achieving a purpose, such as compelling an
employer to yield to a demand
or grievance.
[42]
The Labour Court then went on to select specific factors as being
indicative of the employer’s
version being improbable, namely,
the following: (a) the fact that the employer only issued an
ultimatum for the first time more
than a month from the time the
alleged strike commenced (according to the Labour Court this fact
indicates that there was no continuous
strike and it also lends
credence to the employees’ version that they did not
participate in the strike); (b) the supervisor,
who was not shown to
be in cahoots with the relevant employees, endorsed a register
indicating that workers were present and that
this supports the
employees’ version that they were not on strike; (c) an
employee, i.e. Ms Selebogo, could not have applied
for leave of
absence for the period 10 February 2014 to 10 March 2014 if she had
“withdrawn her labour” (According
to the Labour Court
that would have been “futile”); (d) In the Labour Court’s
view, the evidence of the employer’s
witnesses “[are]
wholly unsatisfactory when it comes to the alleged participation”.
The Labour Court cited as an example
the fact that Mr Thebe was not
seen by Mr Mtwalo, and that Mr Van Zyl found Mr Thebe sitting behind
his desk on 7 January 2014.
[43]
The Labour Court reasoned that these observations were sufficient to
cause it to conclude that
the version of the employer’s
witnesses was improbable and to, consequently, reject it and accept
the employees’ version,
that they were at work and not on
strike, as the more probable version. The Labour Court, nevertheless,
went on to reason as follows:
that if any of the employees who were
cited in the High Court order had breached it, they would have been
arrested; and reasoned
that the fact that they were not arrested lent
credence to their version that they did not contravene the order. The
Labour Court
also went to find that there was no evidence that any of
the employees before it were members of the Progressive Group; or
that
the Group continued to exist beyond 6 January 2014, or that the
employees before it had been served with the High Court order. It
resultantly concluded that the appellant had failed to discharge its
onus and that its failure to hold a hearing was not justified.
The
Correct Approach
[44]
Of significance, the Labour Court ordered reinstatement and did not
at all consider whether the
employment relationship had been rendered
intolerable – clearly because of its finding that the employees
were not on strike
and had not contravened the High Court order.
[45]
It is apparent that in determining whether to accept the version of
the relevant witnesses of
the appellant, i.e. where it contradicted
the version of the employees, the Labour Court confined itself to the
assessment of the
probabilities and overlooked the aspect of
credibility and taking into account all the evidence. It is trite
that the approach
to be adopted when confronted with conflicting
versions involves an assessment of both the probabilities and
credibility. In certain
instances the credibility findings may point
in one direction while the evaluation of the probabilities point in
another direction.
The more convincing the credibility findings, the
less convincing the evaluation of the general probabilities will be.
It is only
if they are equipoised that the probabilities will
prevail. It is also a trite principle that the assessment of
probabilities requires
a consideration of all the evidence and does
not occur in a vacuum, or by only taking into account selected
facts
[5]
.
Misdirection
[46]
The Labour Court’s failure to assess, or adequately assess
credibility, to weigh up credibility
findings against its
evaluation of the general probabilities, and in respect of the
latter, to take all the evidence into account,
is a misdirection that
justifies intervention by this Court.
[47]
The tenets of the Labour court are not necessarily correct. Strikers
for a particular cause are
generally intolerant of their colleagues,
who do not participate, but also stand to benefit from that strike.
So the idea of colleagues
being among strikers as mere onlookers
could be a bit far – fetched. It is more probable that they
would be participants
rather than mere onlookers.
[48]
It is so that to constitute a lawful strike for the purposes of the
LRA the agreed, concerted
refusal to work must be “for the
purposes of remedying a grievance or resolving a dispute in respect
of any matter of mutual
interest between employer and employee”
[6]
.
The strike the employees went on in this matter was not lawful, or
protected. The employees formulated or shared the grievances
contained in the letter of 6 January 2014 that were read at the
meeting of that date by Mr Thebe, and attended a subsequent follow-up
meeting on 11 February 2014. They, inter alia, withheld their labour
to force compliance with their demands, but also engaged in
other
acts in conjunction with such withholding, to try and achieve their
objectives. The letter of 6 January specifically threatens
that if
the managers and directors of the appellant did not want to resign
voluntarily then “phase 2” of the action
would kick in.
It then goes on to clearly imply that there would be a forceful
removal of those persons, and other action in order
to force them to
leave. The workers mentioned in the letter (which would have included
Mr Thebe and others of the 14 in this matter)
agreed with those
demands and the follow-up action that was to be adopted to obtain the
stated goal of removing those officials.
It is significant that the
employees in this matter were very evasive about what action was
envisaged in “phase 2”.
[49]
Furthermore, as mentioned, in order to assess the probability of a
particular version all the
(relevant) evidence needs to be
considered. Concluding that the strike could not have been continuous
because the first ultimatum
was only issued on 11 February 2014,
ignores the direct evidence, which was not discredited, to the effect
that the strike commenced
on 6 January 2017 and endured until the
dismissal letters were served on 17 February 2014. It is possible
that the intensity (and
dimensions) of the strike action fluctuated
over this period, but that does not mean that the strike was not
continuous.
[50]
It is perhaps presumptuous to conclude that if those who were alleged
to have breached the High
Court order, indeed did so, they would have
been arrested. That is not what happens in reality. The appellant
would have had to
bring another application to the High Court in
which it made out a case of contempt by those persons. It may have
taken a long
period before a decision on that matter could be made,
depending on whether it was opposed, et cetera. But ultimately, if
the High
Court found that a case of contempt had been proved –
it would have had a wide discretion in imposing an appropriate
sanction,
and the sanction may never have required those persons to
be arrested. So the fact that those persons were never arrested
cannot
serve to prove their version that they did no wrong.
[51]
It was not necessary to establish that any of the 14 employees were
members of the Progressive
Group or that the group continued to exist
beyond 6 January 2014. The evidence was, however, overwhelming that
the employees in
this matter (as individuals) identified with the
grievances in the letter of 6 January and also attended the alleged
report back,
or COGTA, meeting of 11 February 2014. Mr Thebe not only
acted as spokesperson of the meeting on the 6 January 2014, but some
of
the employees in this matter played a major role in the
formulation of the grievances that were contained in the letter. The
four
employees in this matter, who were cited in the High Court
interdict proceedings, were aware of that application, but did not
oppose
it. Neither did the union, IMATU. The order was obtained on an
unopposed basis, meaning that averments of the appellant, including
those concerning the conduct of those four employees, which
necessitated the interdict, was taken as accepted or admitted, and
the order was binding on them. There was no attempt made by them to
challenge those averments, suggesting that they possibly could
not
dispute engaging in the conduct sought to be interdicted.
[52]
The futile attempts of the employees in this matter to deny that
there was strike, undermines
their credibility profoundly. The claim
of those that played a leading role, not only in formulating the
grievances (or some of
the grievances) in the letter of 6 January,
but that they continued with their work as normal, notwithstanding
the strike, cannot
possibly be true. Witnesses of the appellant that
identified them as participants in the strike knew them as
individuals, and there
was no suggestion that there was a possibility
of a mistake in their identification. The appellant’s
identifying witnesses
were also senior employees, in responsible
positions and it is very unlikely that they would have made up
versions about particular
individuals, and falsely implicate them in
the strike. In fact, it was not put to any of those witnesses that
they had a motive
to falsely implicate the employees that were
identified as participants in the strike. Instead, there was evidence
from some of
the employees of a good relationship between them and
those officials who implicated them.
[53]
One does not expect all of the identifying witnesses to have seen the
same persons. It is not
strange or improbable that they could have
seen them from different perspectives and at different times. In
fact, the slight differences
which the Labour court alluded to, but
treated as reflecting negatively on their credibility, such as what
Mr Mtwalo and Mr Van
Zyl saw Mr Thebe do, may, in fact, be indicative
of the fact that these officials never colluded in the implication of
Mr Thebe
and that they were honest about their observations. If Mr
Mtwalo was intent on falsely implicating Mr Thebe he could easily
have
done so, but he was honest about what he saw.
The employees’
evidence
[54]
Mr Thebe’s evidence is marked by prevarication, a lack of
candour and material contradictions.
His evidence, that he was not on
strike and inter-alia worked on 11 and 12 February 2014, is not
probable viewed in light of all
the evidence. He was one of the
leaders of the strike, having been chosen to be spokesperson with the
responsibility of reading
the letter of 6 January. For him to have
been allotted such an important task he must have been, or otherwise
portrayed himself
to the others of the Progressive Group as one who
aligned himself with the demands and threats contained in the letter
and would
have been a prime instigator of the action threatened in
the letter. Yet he also craftily pretended not to be strike. He
initially
denied that there was a strike at all, even though its
occurrence was a common cause fact. He also claimed that he only got
to
know of the strike when he received the ultimatum on 11 February
2014, but this cannot be true given the dimensions and intensity
of
the strike and his involvement from the outset.
[55]
Mr Thebe also denied attending the meeting of 11 February 2014, but
elsewhere testified that
the minutes of that meeting were recorded in
a book that he personally kept since 2013. There is also evidence
that he was one
of the convenors of that meeting. Beside his verbal
assurances, Mr Thebe could not produce any evidence objectively
showing that
he was engaged in doing his work as normal during the
period of the strike, including the period 11 to 14 February 2014.
The occurrence
book he relied on is not objective evidence and false
entries therein cannot be excluded. His contention that he could only
receive
emails in his office, even though he had 3G connectivity, is
not probable. In his evidence he also gives the impression that he
was concerned about informing the Municipal Manager of his
whereabouts, such as of the fact that he was going on sick leave (the
bulk of which would have been over the weekend preceding 17 February
2014), but it is not convincing, especially in light of the
fact that
he did not consult the Manager, who had to consent, about holding the
meeting of 11 February during working hours, and
also attended that
meeting even though it was not authorised by the Municipal Manager.
[56]
Mr Thebe, like the other employees in this matter, must have realised
that his participation
in the unprotected strike may have serious
implications for him, especially after IMATU did not condone it, and
caused him to fabricate
a version. Nevertheless, the denial of the
strike, an objectively confirmed fact, undermines the veracity of his
entire version.
[57]
Mrs De Bruyn, who testified on behalf of the employees, is an IMATU
shop steward, and not one
of the 14 employees. She could not say who
was, and who was not at work, but what is more evident from her
testimony is that she
did not want to implicate any of the employees
as participants in the strike. Her evidence that the unauthorised
meeting of 11
February did not take place, is not
supported by the evidence of other employees. They also contradict
her concerning the purpose
of the meeting. Mrs De Bruyn was
principally called to testify that on 12, 13 and 14 February she
attended a conference was Mr
Tshisane and Ms Ntlokotsi. She tried to
convince the Labour Court that IMATU members were not on strike, but
that version is undermined
by the letter of IMATU calling upon its
members not to participate in the unprotected strike, and also by her
evidence that a Mr
Kgaje (Mr Masita) had refused to distribute a
letter informing the employees to return to work, because he was
afraid of the strikers
as they could get violent. She prevaricated
and was evasive when asked why Mr Kgaje could not identify IMATU
members amongst the
strikers, but what is more strange is why she
gave him the task in the first place, if there were no IMATU members
on strike.
[58]
Further, Mrs De Bruyn sought to give the impression that Ms Ntlokotsi
and Mr Tshisane were at
work before going to the conference,
including on 12 February, but she also testified that she collected
Ms Ntlokotsi from her
home on 12 February, i.e. Ms Ntlokotsi was not
at work. She could also not have known whether Mr Tshisane was at
work on 12 February.
She testified initially that he left work at
16h00 on 12 February, but almost in the same breath, testified that
on 12 February
they left for the conference before or not later than
lunchtime. Conventionally lunchtime would be at midday, or at about
13h00.
In any event, she could not know whether, either Ms Ntlokotsi
or Mr Tshisane had permission to leave work early on that date. It
is
also strange that those persons were not locked out as, inter-alios,
Ms Selebogo testified she was.
[59]
Ms Selebogo also aligned herself with the demands and threats
contained in the letter of 6 January.
She also attended that meeting
and testified that Mr Thebe spoke on behalf of everyone that was
present there. However, her evidence
is also marked by evasion and
obfuscation. She was cited in and was served with the High Court
application but chose not to oppose
it, even though she was
implicated in serious conduct perpetrated in pursuit of the strike.
In light of all the evidence, her version
that she never participated
in the strike and was at work, as normal, is not credible. Her
version that she was to go on leave
on 10 February seems to be
opportunistically concocted. As Human Resources Manager she worked
with the leave forms and would not
have had any difficulty in
obtaining them. She testified that she applied for leave, but the
form is not dated to indicate when
this occurred. The leave was also
never approved. It was also coincidental for her intended leave to
have started just before 11
February and for it to straddle the dates
when the first and second ultimatums were served.
[60]
Ms Selebogo also contradicted the other employee witnesses and Mrs De
Bruyn in material respects
about what happened over the period 11 to
14 February 2014, the purpose of the meeting of 11 February, and
whether it was authorised.
She testified that it was authorised and
that she attended it, but the evidence of both Mr Thebe and Mrs De
Bruyn was that it was
not authorised. She also testified that on 12,
13 and 14 February she went to work as usual but was locked out; that
she sat outside
and never received the ultimatum because she had no
laptop. If she was indeed at work on 11 February there is no reason
why she
would not have known about it otherwise, because of her
position. In any event, on 12 February, on her own version, her
laptop
was brought back at about 11h00 or 12h00, but she never used
it. How could she, having been at work and given her position, have
been ignorant of the ultimatums, and be surprised by the letters of
dismissal, unless she was really not at work and did not know
what
was happening at the very place where she worked. As Human Resources
Manager one would have expected her to have been at work
and to have
assisted with the management of the crisis brought about by the
strike, including monitoring the register and providing
advice
regarding disciplinary hearings, but she absented herself from work
during that very crucial time, and participated in the
strike,
according to witnesses.
[61]
Ms Khau Khau also worked in the Labour Relations Department of the
appellant. Her duties included
the processing of documentation and
typing. Her absence must therefore also have been conspicuous. In her
evidence she tried to
extricate and distance herself from the actions
of the strikers. She confirmed that during December 2013 fellow
employees had been
to Mr Mtwalo’s office and had demanded that
he leave and that they accompanied him to his motor vehicle, but
denied that
she was part of that group and gave the impression that
she was merely a spectator who had been called by his secretary and
told
that Mr Mtwalo wanted to see them. But Mr Mtwalo identified her
as being part of that group; a co-perpetrator of those misdeeds.
This
is also confirmed by other witnesses. Her evidence that she was never
involved in any kind of strike, in light of all of the
evidence, is
false. She too was conveniently outside on 11, and 12 February,
(allegedly) because of being locked out. She also
attempted to deny
the fact of the strike on 11 and 12 February, stating that she never
saw any strikers outside, only persons (about
200) standing in
groups. She never considered it necessary to ask those people why
they were standing there.
[62]
Ms Khau Khau did not give any reason why Mr Mtwalo and Ms Mazibuko
would falsely implicate her
in the unprotected strike. Mr Mazibuko
identified her as one of the persons gathered at the front of the
main building, who sang
and shouted slogans and would, from time to
time, enter the premises, to remove directors, other officials and
non-striking employees.
On her own version, she contributed to the
contents of the letter that was read on 6 January, but she was
evasive about what was
meant in the letter by the statement that it
was decided to “force” the municipal manager and his
directors to resign,
and particularly, what was meant by “phase
2” if the directors did not heed the first request.
[63]
Ms Miratwe Ramabope Sekonela (also referred to as “Ms
Ramabope”) was an internal
auditor who reported
(administratively) to the Municipal Manager and (functionally) to the
Audit Committee. She testified that
she was at work and performed her
duties as normal on 11 and 12 February, but on the latter date left
at 14h00. She left, on her
version, after being pepper sprayed. She
also left early on 13 February because of pepper spray and testified
that there was also
pepper spray on 14 February. Notwithstanding, on
her evidence she was not locked out, but on 17 February 2014, during
lunchtime,
she was phoned by a fellow employee Ms Motsamai who told
her to come outside to collect her dismissal letter. She went out,
but
never signed out. She also admitted receiving the first ultimatum
through her computer. The evidence against her was, inter alia,
that
she was one of those who participated in the strike, who would enter
the office, sign the register and then join in the strike.
She was
seen amongst the strikers. There was no reason suggested why she
would be falsely implicated as having participated in
the strike.
[64]
Ms Motsamai was employed as senior payroll clerk. Her supervisor was
Ms Bhape, who was also implicated
in the strike. She was identified
by Mr Mtwalo as one of those who stormed into his office on 13
December 2030 and threatened him
with violence unless he left. She
was also cited as one of the respondents in the High Court interdict
proceedings and the order
was also made against her. She testified
that she went to work as normal on 11 February and attended the COGTA
meeting, which on
the evidence of, inter-alia, Mrs De Bruyn, while
not authorised, was held during working hours. She left the meeting
at about 12h00
and found the door closed but managed to gain access
to her workplace. She denied ever receiving the first ultimatum or of
seeing
the ultimatum posted on the notice board in the building, even
though she was inside the building on her version. According to her
testimony on 12 February she arrived for work only to find the doors
closed. She stood outside and when her manager phoned to find
out
where she was she informed him that she was outside because the doors
to the building were locked. On 13 February she again
returned to
work but remained outside because the access gate was locked.
According to her, the gates were still closed on 17 February
when the
Sheriff served her with the dismissal letter.
[65]
Even though Ms Motsamai conceded that she made an input to the letter
of grievances that was
read on 6 January, and that she played a role
in organising the meeting, she tried to play down her contribution,
giving the impression
that her grievance only related to phones.
Although she testified that she agreed with the contents of the
letter of 6 January,
including the statement that the Progressive
Group had decided to force the municipal manager and all his
directors to resign with
immediate effect, and including the
statement threatening “phase 2 action” if that did not
happen, she was evasive
about what that meant. She denied knowledge
of an incident where the municipal manager and his directors were
forcibly removed
from the appellant’s premises, and denied that
that was what was meant by “phase 2”. She also denied
being on
strike, despite the fact that she had been identified as one
of the strikers by Mr Mtwalo, Ms Mazibuko, and Mr Kotze.
[66]
She denied testimony to the effect that on the evening of 11 February
she was part of a group
which went to remove Mr Mtwalo from his
office. She dismissed this evidence, alleging that Ms Mazibuko only
testified on things
that she was told, and she also alleged that the
testimonies of Mr Van Zyl and Ms Mazibuko “was all lies”.
Notwithstanding,
she could not provide any reason why any of these
witnesses would have falsely implicated her. When Mr Van Zyl
testified that she
(and Ms Bhape) did not process salaries for
January and February 2014, because she was on strike, and that other
people had to
be enlisted to do so, his evidence was not challenged.
Her evidence that she knew nothing about the strike and did not see
any
of the strikers, considered in light of all the evidence, is
false.
[67]
Mr Santje Selwyn Paul Kgaje Masita (also referred to as “Mr
Gaje” or “Kgaje”
or “Mr Masita”) was
senior clerical assistant in the Human Resources Department of the
appellant. On his own version
he did not perform his official duties
during the time he attended the meeting of 11 February and
thereafter, on 12 and 13 February,
and he ascribed this to having
been locked out. He testified that on 13 December 2013 he witnessed
persons telling Mr Mtwalo to
leave and then removing him from his
office, but gave the impression that he was a mere spectator. He went
further and said that
he had actually encouraged Mr Mtwalo to return
to work. He denied participating in the strike, but it is palpably
clear from his
own version that he participated. He testified,
inter-alia, that on 13 February he was summoned to go and see Mr
Mtwalo who instructed
him to hand over his office keys to a secretary
and that when he, on the instructions of Mr Mtwalo’s secretary,
Elmarie,
attended at his office to collect the files of Mr Thebe, he
found someone else there doing his work.
[68]
According to Mr Masita he was in Bloemfontein on 17 February after
getting a call that the sister
died. He testified that he informed Ms
Selebogo. According to him he was absent for the rest of that week,
having obtained permission
from Mr Mtwalo’s office to attend
his sister’s funeral –but this was never put to Mr
Mtwalo. When he returned
to work on about 23 or 24 February he
attempted to get access to his office but was told by the security
that he was not allowed
as he was one of the persons who were
dismissed. The material part of this version was never put to Mr
Mtwalo (the appellant’s
legal representative indicated that Mr
Mtwalo would have denied that version if it had been put to him). The
material part of his
version was clearly a fabrication which had not
been shared with his legal advisor, otherwise it would have been put
to Mr Mtwalo.
[69]
Mr Masita did not suggest any reason why Mr Mtwalo or Ms Mazibuko
would falsely implicate him,
and why it was necessary for someone
else to perform his duties if he was not on strike. His fabricated
version was, nevertheless,
imperfect, in that he does not state that
he told Mr Mtwalo and Elmarie that he was locked-out. It would have
been the logical
thing to do. On his version he voluntarily went
outside and his explanation for remaining outside with the group of
strikers was
because he could not go inside to do his work, but this
rings hollow in light of his evidence that when he was summoned by Mr
Mtwalo
he managed to gain access to his workplace through the motor
vehicle entrance. His suggestion, that his inability to enter on
other
occasions was due to security denying him access, was a further
false adaptation of his version.
[70]
Mr Tshisane was employed as a cashier at the appellant’s Head
Office in town. He was implicated
as a participant in the strike by
Mr Mtwalo, Ms Mazibuko and Mr Van Zyl. He denied participating in the
strike and testified, in
essence, that when he entered the workplace
he never came out, and that he signed the attendance register every
morning up until
12 February. He testified that on 10 and 11 February
he was at work and did not see doors that were locked. On his
version, on
12 February he also went to work without difficulty. This
is contradicted by the evidence of those who say that they were
locked
out on 11 and 12 February. According to his evidence, on 12
February there is no signature indicating that he clocked out,
because
he left after 11h00, after “they” finished
cashing-up for him, because he was going to a union meeting of IMATU
in
Christiana. This essentially contradicted Ms Du Bruyn’s
evidence that Mr Tshisane was at work on 12 February until 16h00.
[71]
Mr Tshisane also testified that his annual leave was to commence on
17 February, so he was at
home on that day when he was phoned by Ms
Seleboge who informed him to collect his dismissal letter from the
office. His response
to her, on his own version, is rather peculiar.
He never expressed any surprise or ask Ms Seleboge what the reason
for his dismissal
was – but told her that he could not go then
because he was busy preparing for his birthday and would only fetch
the letter
on 18 February. Mr Tshisane also relied on an attendance
register to prove that he was at work during the crucial period, but
there
was no evidence, but for his say so, authenticating the
entries. There was uncontested evidence that strikers managed to gain
access
to the premises where they would sign the attendance register
and then go outside to join the other strikers. He could not produce
proof that his leave had been approved. His attempts at distancing
himself from the strikers are not convincing. On the probabilities
he
was on strike.
[72]
Ms Ntlokotsi was a general worker employed in the appellant’s
Public Works section and
she was stationed approximately 4 to 5
minutes away from the appellant’s Head Office. Her version, in
essence, was that she
did attend the meeting of 6 January where Mr
Thebe spoke on her behalf; that she reported to the municipal
manager, with whom she
had a good relationship (although in the same
breath she testified that she never came into contact with him at
all); she attended
a COGTA meeting around 20 or 22 January with other
shop stewards. She was chairperson of the Shop Stewards’
Committee of
IMATU. She attended the meeting of 11 February, but
surprisingly attempts to ascribe this to her supervisor, whom she
says, said
that he was going to close the office where she worked
because all of them were going to attend a meeting at the appellant’s
main office. According to her testimony on 12 February she was not at
work at all and later that day she attended a conference
in
Christiana with Mrs De Bruyn; and they were there until lunchtime on
14 February, whereafter they returned home. According to
her, on 17
February when she returned to work she was told by security, as she
was changing into her overalls, that she would not
be allowed to
enter and was then driven by a supervisor in his vehicle to the
appellant’s main office where she was given
a dismissal letter.
[73]
Ms Ntlokotsi was not frank. She feigned ignorance concerning the
meaning of the content of the
letter of 6 January, in particular
where it states (in essence) that the employees have decided “to
shut – down all
municipal services”. As a shop steward,
and more particularly Chairperson of the Shop Stewards Committee of
IMATU she ought
to have known exactly what that meant. At some point
she testified that she aligned herself with the contents of the
letter and
that she had contributed to it. The impression she sought
to create, that she was merely following her supervisor’s
instructions,
are not convincing. Essential aspects of her version
were not put to the appellant’s witnesses, and she was evasive
concerning
her knowledge about the proper procedures that had to be
followed in dealing with a grievance. She testified that she knew
what
the procedure was, but almost simultaneously testified that she
did not know what it was, and ascribed her (feigned) ignorance to
forgetfulness.
[74]
Ms Ntlokotsi testified that her workplace, where she cleaned offices,
was about a 45 minute drive
from the main office. She initially
conceded that during the period 6 January 2014 to 17 February 2014
(with the exception of 10
January) the Public Works Department was
closed and that its service delivery had come to a standstill,
including at the offices
where she was employed. She also conceded
that she was one of those that gathered in front of the main building
in that period.
However, she then denied those very same facts,
stating “it is not how it is.” Her denial of knowledge of
the ultimatums
is not convincing and the reason for not going to work
at all on 12 February is spurious. She produced no proof that her
absence
was authorised by the management of the appellant.
Remarkably, she tried to convince the court that even though she was
a general
worker, cleaning offices, she had a secretary, one, who,
according to her, had to complete leave forms for her. She was unable
to answer a question put to her by the appellant’s
representative to the effect that there was no record of her having
applied
for leave for the period of her absence and that she was in
fact on strike and participated in the strike during that period.
Subsequently
she testified, in response to a statement put to her,
that she participated in an illegal strike and that her dismissal was
due
to her fault, as follows: “I do not remember having
participated in the strike.” She gave no reason why several
witnesses
of the appellant would have implicated her falsely as a
participant in the strike.
[75]
Ms Mokimane stated that she was a street sweeper. She testified,
inter-alia, that she was not
a member of the Progressive Group and
did not even know that she was a member of IMATU. She recalls being
fetched on 6 January
2014 by her supervisor and taken to a meeting.
According to her, he told them that they must attend. Accordingly,
her version was
mainly that she did not remember, or did not know, or
merely acted on the advice or instructions of her supervisor. She,
for example,
testified that she did not know if she ever received the
High Court interdict and could not remember having intimidated her
managers.
She testified that she could not even remember when exactly
she went to the office. Ironically though, she remembers going to
work
on 11 February and sweeping the streets as she normally does,
although this is also contradicted by evidence that there was no
cleaning of streets during the period 6 January to 17 February,
somewhat confirming Ms Tshabalala’s testimony, which was to
the
effect that it was even necessary to get private contractors to clean
the streets.
[76]
Ms Mokimane testified that he does not know whether she received the
first ultimatum, and that
on 12 February she did not go to work
because her mother was ill. Her version is that the doctor gave her
family responsibility
leave until 14 February and that she only
returned to work on Monday 17 February. There is no evidence that she
applied for family
responsibility leave, and in any event, how could
a doctor give her such leave. She testified that he does not know
whether she
received the second ultimatum and that she could not
remember any strike. She testified as if Ms Tshabalala had absolved
her, which
is clearly not the case. Ms Tshabalala did not do so. Ms
Mazibuko and Mr Mtwalo identified her as one of those that were on
strike.
Her version was a poorly made up story and could not be
accepted as probable, let alone as the truth.
[77]
Ms Sara Utla (or “Otloa”) was working as a clerical
assistant in the Registry Division
of the Department of Corporate
Services. She was to go on pension in December 2014. She was
implicated in the strike by Mr Mazibuko
and Mr Mtwalo. The latter
testified that Ms Utloa was responsible for the keeping of records,
but did not do her work and was on
strike. On her version she
reported for duty on 11 February and attended a meeting with her
colleagues, but after the meeting she
found that the access door to
the office had been locked and as a result sat outside until she was
let in by security at 14h00.
On 12 February she found that the excess
doors were locked but managed to gain access through a back entrance
that was manned by
security. Her version, essentially, was that she
worked as normal on those dates up to and including 14 February. On
17 February,
however, after having the reported for duty as usual
(according to her) she was told that she was one of those who were
dismissed
and she thereafter left. She denies ever participating in a
strike but could furnish no reasons for having been falsely
implicated
by Mr Mtwalo and Ms Mazibuko. She could not remember
attending the meeting of 6 January. Material parts of her evidence,
including
the fact that she managed to gain access through back
entrances, was never put to Mr Mtwalo, or to Ms Mazibuko, or to Mr
Van Zyl.
In light of all the evidence, her version, i.e. that she was
not on strike, is not probable.
[78]
Ms Bhape worked in the account and payroll section of the appellant.
She was implicated in the
strike by Mr Mtwalo, Ms Mazibuko and Mr Van
Zyl. Though she denied participating in the strike she could not
suggest what motive
those witnesses would have had for falsely
implicating her. She testified that on 11 February she went out with
Ms Moleofe after
having obtained permission from her supervisor Mr
Muller, and upon their return had to use a back entrance as the doors
were locked.
On 12 February, according to her, at about 10h00 or
11h00 she and Ms Moleofe took party items to her child’s crèche
after having obtained permission from Mr Muller. They returned after
lunch and again found the doors locked, but managed to enter
through
the back and worked for the rest of the day as normal. She testified
that on 13 February she reported for work but was
not allowed into
the building and that the same happened on 14 February. She could not
remember whether she was able to get to
the office on that day,
although she testified that she had told Mr Van Zyl that if she was
not allowed entry salaries were not
going to be paid. Her version was
that she ensured that salaries were paid for January 2014, but this
version was never put to
the witnesses that implicated her in the
strike. Mr Van Zyl had testified that Ms Bhape did not process
salaries for January and
February 2014 and that a retired manager, Ms
Flora Kgopane, had to be called in to process those salaries. Ms
Kgopane was assisted
by a Ms van Eck of the IT department, as well as
a payroll company contracted to the appellant. Ms Bhape was unable to
produce
any evidence, other than her say so, that she and Ms Motsamai
processed salaries for January.
[79]
Ms Bhape could not say whether she attended the meeting of 6 January,
or whether she identified
with the aims and objectives of the
Progressive Group. At one point she was adamant that Ms Moleofe did
not participate in the
strike, but under cross-examination, when it
was put to her that one of the appellant’s witnesses had
testified that Ms Moleofe
was one of those that entered the building
and forcibly removed officials and others who were not on strike, she
testified that
she did not know. She however persisted with the
version that they were working during that period. She admitted
receiving emails,
but had no comment to make when it was put to her
that she would have received the ultimatums through that medium,
unless she was
not in her office and reading emails. Viewed in light
of all the evidence her version, that she did not participate in the
strike
over the relevant period, is not probable.
[80]
Ms Malema worked in corporate services. She reported to her
supervisor, who reported to a Mr
Kotze, and who, in turn, reported to
Mr Mtwalo. She was implicated by Mr Mtwalo, who testified that he was
not only strike during
the period January 17 February, but was one of
those actively involved in removing officials from their offices. She
was also part
of the group who stormed into his office on 13 December
2013, demanded that he leave and threatened to stab or shoot him if
he
did not do so. Mr Mtwalo also testified that she was the appointed
switchboard operator and that during the period of the strike
she did
not perform her assigned duty on the switchboard, but absented
herself and actively participated in the strike. She was
also cited
as one of the respondents in the High Court interdict and was also
implicated in the strike by Ms Mazibuko, Mr Kotze
and Mr Van Zyl.
[81]
Ms Malema denied being part of the Progressive Group but admitted
attending the meeting of 6
January. She tried to create the
impression that her attendance was coincidental after she had been
informed of it by her supervisor.
She denied knowledge of the High
Court order and of ever interfering, obstructing, threatening, or
intimidating officials or management.
She attended the meeting of 11
February and claimed that after the meeting she could not gain entry
to her workplace because the
door was locked and that she then left.
According to her, on 12 February she also found the door locked and
stood outside for the
rest of the day. She also denied having had
access to the emails and denied knowledge of the first and second
ultimatums. According
to her evidence, on 13 February she again found
that they were locked out of the premises of the appellant and as a
result she
remained outside the premises until it was time to knock
off. On 17 February she again found that gates locked, but during the
course of that day a dismissal letter, signed by the municipal
manager, was given to her.
[82]
Ms Malema’s version is palpably false. She never suggested any
possible motive on the part
of the relevant witnesses of the
appellant for falsely implicating her as one of the participants in
the strike. On her own version,
she did not render services at work,
including during the crucial period of 11 to 17 February, but
remained outside the premises
with those who were on strike and made
no effort to actually gain access to the appellant’s premises
for the purpose of doing
her work. She played a prominent role in the
strike.
[83]
Ms Stokkie was senior clerical assistant in the Logistics Section.
She conceded that she was
part of the Progressive Group meeting of 6
January 2014 and that she contributed to the contents of the letter
of that date. She
was implicated by Mr Mtwalo, Mr Mazibuko, Mr Kotze
and Mr Van Zyl. Mr Mtwalo testified that she was one of those came to
his office
to evict him on 13 December 2013; she was also cited in
the High Court interdict, which she admitted receiving. She never
opposed
the matter, or challenged it, but denied in her evidence ever
interfering with, or intimidating any of the officials or staff of
the appellant. She claimed that Mr Van Zyl’s testimony was a
lie that she and Ms Motsamai had contravened the court order
in that
they had smashed his office door in order to open it and had
attempted to remove him from his office. She also claimed
that Mr Van
Zyl’s evidence was a lie which was to the effect that on 11
February 2014 at about 21h00 she, together with Ms
Motsamai had gone
to the Head Office and attempted to eject Mr Mtwalo from his office.
[84]
Ms Stokkie claims to have performed her duties as normal on 11
February. Although she would
have had access to emails in her
workplace she claimed not to have knowledge of the first ultimatum.
Her evidence to the effect
that she was not on strike and worked
normally on 11 to 14 February is not probable viewed in the light of
all of the evidence.
She claimed that she reported for work as usual
and was busy with her work on 17 February when she was told that she
was required
at the main office and upon her attendance a letter of
dismissal was given to her by the Sheriff. Even though Ms Stokkie (on
her
own evidence) appears to have played an important part in the
organisation of the meeting of 6 January and concerning the contents
of the letter that was read there by Mr Thebe, she unconvincingly
tried to downplay her role in that regard. Her attempts at distancing
herself from the contents of that letter were not very successful.
[85]
Even though she was forced to concede that she agreed with the other
demands in the letter, including
the demand that the Municipal
Manager and his directors should resign voluntarily, Ms Stokkie
denied that the group forced anyone
to resign, (that is despite the
fact that she had agreed with the contents of the letter stating that
the Group decided to force
the Municipal Manager to resign with
immediate effect) she refused to state what she understood the letter
meant by its reference
to “phase 2” and feigned
ignorance, claiming that she did not have the power to “shut
down” the municipality.
[86]
Ms Stokkie also performed poorly under cross-examination and could
not give any explanation why
she would have been falsely implicated.
It is improbable that Ms Stokkie, who played a leading role in the
organisation of the
meetings of 6 January and 10 February and who
actively participated in removing officials and others from their
offices, was not
part of the strikers and on strike. She tried by all
means to distance herself from the main office, where according to
the witnesses
of the appellant, she perpetrated the misconduct she
was accused of. Her version is clearly not credible.
[87]
Ms Moleofe was employed as a supply chain procurement officer. Mr
Mtwalo and Mr Mazibuko testified
that she participated in the strike
action. Her version was more or less the same as that of Ms Bhape.
She denied participating
in the strike and gave the impression of
been falsely implicated, but was unable to suggest what would have
prompted such false
implication and how it was that both Mr M and Ms
Mazibuko came to (falsely) implicate her. There was no suggestion
that they colluded.
Her version that she worked during the time,
compiling tender documents and reports, makes no sense, because
during the strike
no tenders were dealt with. She admitted to
attending the meetings of 6 January, and 11 February and her denial
of receiving the
ultimatums is not credible, in particular, as her
version is that she was not locked out and did not know whether any
other IMATU
members were locked out.
Conclusion
[88]
On the appellant’s version, which is the more probable and
credible version and the one
that ought to have been accepted, the
dismissal of the 14 employees in this matter was substantially fair.
The appellant also established
that the dismissal was procedurally
fair. The circumstances in which the dismissal occurred were
exceptional. The strike was violent
and ongoing and marked by total
disregard for the authority and position of the Municipal Manager and
Officials, who were in management,
and in fact had as its main
objective their forceful removal from office. The dismissal was
necessary in circumstances where, inter
alia, the two ultimatums and
the letter addressed by the appellant to IMATU failed to bring an end
to the strike. Key members of
staff who would have played an
important role in the arrangement of hearings were themselves on
strike.
[7]
The employees also
chose not to exercise their rights in terms of the SALGBC
Disciplinary Procedure collective agreement to appeal
against their
dismissals.
[89]
The contention that the appellant acted inconsistently in applying
its discipline is unfounded.
Not only was there evidence that other
employees were also dismissed for participating in the strike, but
there was no evidence
of a specific individual who had participated,
but was not dismissed.
[90]
In the circumstances the appeal must succeed. Notwithstanding this
result, taking all the circumstances,
the law and fairness into
account, I am of the view that no costs order should be made in the
circumstances.
[91]
In the result, the following order is made:
1.
The appeal is upheld.
2.
The order of the Labour
Court is set aside, and is replaced with the following order: “The
dismissal of the 14 employees in
this matter was, both, procedurally
and substantively, fair and accordingly, the applicant’s claims
are dismissed.”
3.
No order is made in
respect of the costs of the appeal.
___________________________
P Coppin
Judge of the Labour
Appeal Court
Jappie and Musi JJA
concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT:
N Cassim SC and
T Govender
Instructed
by Lebea & Associates
FOR THE RESPONDENT:
R M Schmidt
Instructed
by Day & Schilling Attorneys
[1]
Act 66 of 1995.
[2]
Act 32 of 2000.
[3]
See: inter alia,
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 697 – 706; DT Zeffert and AP Paizes
The
South African Law of Evidence
(2003) 782 – 783.
[4]
See the authorities cited above and
Bernert
v ABSA Bank Ltd
2011 (3) SA 92
(CC) at 120 – 122, paras 105 and 106.
[5]
See inter alia
,
Stellenbosch Farmers’ Winery Group Ltd and Another v Martell &
Kie SA and Others
2003 (1) SA 11
(SCA) at 14I-15E.
[6]
See:
Section 213
of the
Labour Relations Act 65 of 1995
which
defines a strike.
[7]
See: inter alia,
Coin
Security Group (Pty) Ltd v Adams and Others
(2000) 21 ILJ 925 (LAC) at 933,935; and
National
Union of Metal Workers of SA & others v Malcomess Toyota, A
Division of Malbak Consumer Products (Pty) Ltd
(1999) 20 ILJ 1867 (LC) at 1883B-F.