IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 1910/20
In the matter between:
SIBANYE GOLD LIMITED t/a SIBANYE STILLWATER Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
NASIMA RAFFEE N.O. Second Respondent
AMCU obo MBHEKI MLOBELI Third Respondent
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email and publication on
the Labour Court’s website. The date and time for hand -down is
deemed to be on 19 January 2024
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1] In this opposed application, t he applicant (Sibanye) seeks an order reviewing
and setting aside the arbitration award issued by the second respondent
(Commissioner) acting under the auspices of the first respondent, the
Commission for Conciliation Mediation and Arbitration (CCMA). In the award,
the Commissioner found that the dismissal of the individual third respondent,
Mr Mbheki Mlobeli (Mlobeli) was substantively unfair and further order ed his
reinstatement together with back-pay.
Background:
[2] Mlobeli is a member of the Association of Mineworkers and Construction
Union (AMCU). He commenced his employment with Sibanye on 17 April
2007 and had occupied the position of a Winch Driver. On or about 21 May
2019, he was served with a notice to attend a disciplinary enquiry to answer to
allegations of misconduct. The allegations were;
‘Gross Misconduct and/or acting with common purpose to commit such
acts in that on or about 23 and 26 November 2018, you:
(1) Attempted to assault an employee due to his union affiliation
and the fact that he was reporting for work.
(2) Committed unlawful acts design ed to intimidate and harass
non-striking employees in that he threatened to kill an
employee due to his union affiliation and unless he joined
AMCU.’
[3] Mlobeli was found guilty and dismissed . Following an appeal hearing,
Mlobeli’s dismissal was confirmed on 22 July 2019. AMCU on his behalf
referred an alleged unfair dismissal dispute to the CCMA. When the dispute
could not be resolved at conciliation , it came before the Commissioner for
arbitration, resulting in the impugned arbitration award.
The proceedings and evidence before the Commissioner:
[4] It was common cause before the Commissioner that members of AMCU had
embarked on a protected strike action which commenced on 21 November
2018. NUM did not take part in the strike. The strike action that had lasted
about five months was characterised by violence including acts of intimidation,
assault, murder, arson, and general malicious damage to propert y. At the
commencement of the strike, and in anticipation of how the strike action might
turn out, Sibanye’s management had issued briefs warning employees
against acts of intimidation, violence, and assault whether verbal or physical
during the strike . Due to the on -going union rivalry, it is alleged that AMCU
members committed acts of intimidation towards those of NUM, who were in
certain instances reported to have been assaulted and murdered. This had
resulted in NUM members not reporting for duty out of concern for their
safety.
[5] The applicant had relied on the evidence of Mr Thozamile Simolonjane
(Simolonjane) and his nephew, Mr Sibusiso Jeke (Jeke) to prove the
allegations of misconduct against Mlobeli. Jeke is not employed by Sibanye.
Simolonjane and Mlobeli were colleagues and lived in the same premises
(compound) in different rooms for over two years. Simolonjane was a member
of the National Union of Mineworkers (NUM) , and he and Mlobeli agreed in
their testimony that despite being members of rival unions, they generally had
an amicable relationship prior to the strike and the alleged incident leading to
the dismissal.
[6] Simolonjane in his evidence in chief relied on his written statement in which
he stated that on 26 November 2018 in the morning , Mlobeli arrived at his
place and told him that he was going to kill him since he was a ‘rat’
(igundwane) and a member of NUM. Another incident took place on 22
November 2018 when Mlobeli came to his room whilst he was playing cards
with Jeke . Simolonjane testified that Mlobeli insulted him , told him that he
should leave NUM and join AMCU. When Simolonjane refused, Mlobeli left
and came back carrying a stick with which he attempted to assault him. He
however managed to avoid the assault by repossessing the stick from him.
Simolonjane, was then told that he was not allowed to stay in the premises
because he was an NUM member , and that he will be killed if he continued to
stay in the premises. Simolonjane further testified that the incidents of threats
and intimidation on 22 November 2018 took place on no less than five
occasions in the presence of Jeke.
[7] According to Simolonjane, and still in reference to the events of 22 November
2018, he and Jeke were on their way back from a shop to their premises .
They were confronted by Mlobe li who appeared to have been intoxicated and
was holding a stick , and who had without provocation, had assaulted
Simolonjane with that stick. A scuffle ensued and they (Simolonjane and
Jeke) were able to wrestle the stick from Mlobeli causing them to fall t o the
ground.
[8] Simolonjane had the following day reported the matter to the police station
and presented the stick to the South African Police Service ( SAPS) as
evidence. The SAPS came to the premises and warned Mlobeli not to contact
Simolonjane. Mlobeli’s however continued with his threats and attempts to
assault Simolonjane on 26 November 2018. Simolonjane again approached
the SAPS and made a statement. This had resulted with Mlobe li’s arrest.
Simolonjane further testified that because of the incidents, he had also
reported them to his landlord who did not want to get involved. He and Jeke
ended up moving to another place of residence out of fear of the repeated
threats and harassment.
[9] Under cross examination, Simolonjane denied that he made the allegations
against Mlobeli for the sole purpose of justifying his absence from duty during
the strike, or for the purposes of claiming a reward for reporting allege
perpetrators of acts of violence and intimidation during the strike. He testified
that after the initial threats, he had called the police who came to his
residence and took him to a police station where he opened a criminal case
against Mlobeli . He con firmed that he did not report for duty from 22
November 2018 until 26 November 2018.
[10] Simolonjane was cross -examined at length about the contradictions in the
dates on which the incidents took place arising from his statements and his
evidence before the Commissioner , and about the specific dates as recorded
in the charges as formulated by Sibanye. In this regard the incidents were
alleged to have taken on 23 and 25 November 2018, and whilst he
(Simolonjane) had only testified regarding events having allegedly taken place
on 22 and 26 November 2018 . Further contradictions were raised with him to
the extent that the Police documents recorded that Mlobeli was arrested on 25
November 2018, and had appeared in court on 26 November 2018 , with the
latter date being the date on which Mlobeli had allegedly assaulted and
threatened him . His response was to insist that the incidents took place
between on 22 and 26 November 2018 , and attributed the confusion
regarding the dates to Sibanye when formulating the charges , errors on the
part of the members of SAPS when they took a statement from him, and when
the docket was prepared.
[11] Jeke testified that he had visited Simolonja ne for a week and left on 2 3
November 2018. He testified regarding the events of 22 November 2018. His
version was that Mlobeli came to Simolonjane’s residence and found them
sleeping. He kicked the door open and said that he was there to fetch him
(Simolonjane) to sign up for AMCU membership , further telling him that he
must stop being a ‘sell-out’ as ‘sell-outs’ would be killed. Mlobeli left and came
back after some time and told Simolonjane that there was a vehicle waiting
outside to take him to join AMCU. Simolonjane refused to go with him. Mlobeli
then left and returned at some point whilst he and Simolonjane were playing
cards. He was carrying a stick and intended to assault Simolonjane , and
continued telling him that he should join AMCU. Other people that saw Mlobeli
restrained him and he left. Again, on the same day at about 18h00, and as
Simolonjane was coming out of a toilet, Mlobeli stopped him from going to his
room by blocking his path and placed his hands on him. When Somolonjane
told him not to touch him, Mlobeli swore at him and went to his room. .
[12] Jeke also testified that a t some point during 22 November 2018, he and
Simolonjane were going to a shop when Mlobeli confronted them in the street
holding a stick and was about to strike Simolonjane with it when he (Jeke)
intervened. All three of them were jostling to grab the stick and Mlobeli fell on
the ground face first in the process after the stick was again taken from him.
Jeke and Simolonjane then went about their business and upon returning to
their room/residence, they reported the matter to the landlord. Because the
landlord did not want to get involve d, Simolonjane and Jeke then decided to
sleep at a friend’s room that night.
[13] On 23 November 2018, Sim olonjane went to the police to report the previous
day’s events to obtain a protection order. He later came back with the police,
who went to Mlobeli and warned him that he would be arrested should he
persist in harassing Simolonjane . Jeke then left on that day to his own
residence and could not testify regarding events beyond 23 November 2018.
[14] After Jeke had testified, and Mlobeli’s new representative from AMCU made
an application to recall Simolonjane, and the Commissioner allowed it despite
Sibanye’s representative strenuous objection s. Simolonjane was again re -
examined at length about the specific dates on which the alleged incidents
took place and as recorded in charges preferred against Mlobeli, the contents
of the police docket , and in particular the incidents of 26 November 2018 as
he had testified. It was put to him that he had in fact only reported the incident
at the police station at 17h10 on 26 November 2018 after he had been absent
from duty between 22 and 25 November 2018 . It was put to him that he only
went to the police station on that date because he was looking for an excuse
to justify and explain his absence from work after Sibanye had enquired about
the reasons for his absence. Again, Simolonjane repeated his assertions that
Mlobeli was arrested because of the case he had opened against him, and he
could not explain the reason why the docket and the charge sheet issued to
him at work had different dates. He denied any contention that he opened the
case at the police on 26 November 2018 and solely for the purpose of
explaining his absence from work . He further denied when it was put to him
that it was, he and Jeke that had attacked and assaulted Mlobeli and took his
stick hence he (Mlobeli) had sustained injuries.
[15] Mlobeli was the sole witness in his case . He confirmed that he and
Simolonjane previously occupied the same residential premises. He denied all
the allegations against him as made by Simolonjane and Jeke. He testified
that on 22 November 2018 he was on his way to the shops carrying his stick
when he met Simolonjane and Jeke. Simolonjane then told Jeke that he
(Mlobeli) always ‘abused’ him and it is at that point that the two had without
provocation, grabbed his stick from him and assault ed him. He sustained
injuries on his arm and between his eye and ear. He denied that he had ever
harassed Simolonjane or had gone to his room on various occasions . He
conceded that he had consumed alcohol when his alleged assault took place
took place. After the assault they took his stick and he thereafter went to his
room to sleep.
[16] Mlobeli testified as a result of the injuries he had sustained he admitted
himself at a hospital on 23 November 2018 for treatment. On 24 November
2018, the SAPS had arrived at his residence to question him about the
incident of 22 November 2018. He conceded that the police arrive d at his
place and asked him what had happened and after he had explained to them
and showed them his injuries they left. He further testified that members of the
SAPS came back to his premises on 25 November 2018 and arrested him. He
was detained at the police station until his first court appearance on 26
November 2018. He was granted bail in the amount of R2 000.00, and was
only released from custody on 28 November 2018 when he secured the bail
amount.
[17] Under cross -examination, Mlobeli conceded that at no stage had he had
issues with Simolonjane or with Jeke . He further conceded that he did not
report his alleged assault by Simolonjane and Jeke, despite his injuries being
of a serious nature hence he went to hospital. He further conceded that he
was intoxicated on 22 November 2018 when he was allegedly assaulted by
Simolonjane. He recalled that he fell to the ground during a scuffle when
Simolonjane and Jeke took his stick.
[18] He denied that he ever went to Simolonjane’s room where he found him and
Jeke playing cards . He confirmed that it was Simolonjane that had called the
police, and that they came to his room on 24 November 2018 to arrest him as
Simolonjane had complained to them that he (Mlobeli) was harassing him.
The police had left and came back on 25 November 2018 to arrest him . He
disputed the record of the internal disciplinary enquiry that indicated that he
had blamed the incident of 22 November 2018 on the fact that he was under
the influence of alcohol
The Commissioner’s findings:
[19] The Commissioner accepted that there were mutually destructive versions
regarding the allegations against Mlobeli. The Commissioner however
concluded that based on a balance of probabilities, Ml obeli was not guilty of
the charges against him in the light of the contradictions, inconsistencies, and
untruths in the versions of both Simolonjane and Jeke. The Commissioner
concluded that their evidence was not precise regarding the dates and place
when the alleged assault and harassments took place ; that they had
consistently changed their versions ; lied; and that Simolonjane sought to
apportion blame on the SAPS for his confusion regarding the dates when the
alleged incidents took place.
[20] The Commissioner accepted that Mlobeli could not have intimidated
Simolonjane on 26 November 2018 as he was in jail at the time until
28 November 2018. She drew a negative inference from the fact that
Simolonjane only made the allegations against Mlobeli when he returned to
work on 26 November 2018 following his absence since 22 November 2018.
She further concluded that Simolonjane had a motive to frame Mlobeli to
explain his absence from duty between 22 and 25 November 2018 , despite
not having participated in the strike action.
[21] In respect of Mlobe li’s evidence, the Commissioner found his evidence to be
honest, clear, and consistent, and that his injuries supported his version that
he was attacked by Simolonjane and Jeke whilst on his way to a shop. On the
other hand, Simolonjane did not have any injuries to support his version that it
was Mlobeli that had assaulted him. In the end, the Commissioner concluded
that the balance of probabilities did not favour a finding that Mlobeli had
committed the alleged misconduct.
The legal framework:
[22] The test on review is well-known. The primary enquiry before the reviewing
Court is whether the conclusion arrived at by the commissioner is one that a
reasonable decision -maker could not have reached based on the material
before him or her .1 In Herholdt, the SCA reaffirmed the need to preserve the
distinction between review and appeal. The SCA appreciated that inasmuch
as the reviewing court must necessarily scrutinise the evidence to determine
whether the outcome was reasonable, it must guard against 'judicial
overzealousness’ in setting aside administrative decisions that do not coincide
with the judge's own opinions. The SCA further reaffirmed that the test on
review is stringent, as it ensures that awards are not lightly interfered with ,
and that emphasis is on the result of the case rather than the reasons for
arriving at that result. The SCA reiterated that on the Sidumo test, there would
be justification to set aside an award on review if the decision was ‘entirely
disconnected with the evidence or was unsupported by any evidence’ and
involved speculation by the commissioner2.
[23] To the extent that the Commissioner had accepted that she was confronted
with mutually destructive versions, it is accepted that the approach in
resolving this conundrum is that as set out in Stellenbosch Farmers' Winery
Group Ltd and Another v Martell & Cie SA and Others 3, which entails an
1 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1 097 (CC) at
para 110. See also Herholdt v Nedbank Ltd and Congress of South African Trade Unions (Amicus
Curiae) (701/2012) [2013] ZASCA 97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34
ILJ 2795 (SCA) at para 25, where it was held;
“… A review of a CCMA award is permissible if the defect in the proceedings falls within one of
the grounds in s 145 (2)(a) of the LRA. For a defect in the conduct of proceedings to amount to a
gross irregularity as contemplated in section 145 (2)(a) of the LRA, the arbitrator must have
misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was
before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to
particular facts, are not in and of themselves sufficient for an award to be set aside, but are only
of any consequence if their effect is to render the outcome unreasonable.
2 At para 13.
3 [2002] ZASCA 98; 2003 (1) SA 11 (SCA) at para 14I – 15E, where it was held that;
“To come to a conclusion on the disputed issues a court makes findings on (a) the credibility
of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the
court's finding on the credibility of a particular witness will depend on its impression about
the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv)
external contradictions with what was pleaded or put on his behalf, or with established fact
or with his own extracurial statements or actions, (v) the probability or improbability of
particular aspects of his version, (vi) the calibre and cogency of his performance compared
to that of other witnesses testifying about the same incident or events. As to (b), a witness'
reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on
(i) the opportunities he had to experience or observe the event in question and (ii) the
quality, integrity and independence of his recall thereof. As to (c), this necessitates an
analysis and evaluation of the probabilities and improbabilities of each party's version on
assessment of the evidence in relation to the credibility of the various factual
witnesses; their reliability; and the probabilities.
The grounds of review and evaluation:
[24] The applicant contends that the Commissioner committed a gross irregularity
in making probability findings without having applied her mind to the material
facts placed before her. In this regard, it was contended that despite her
findings, it was never the applicant’s case or the charge against Mlobeli that
he had assaulted Simolonjane, a s the charge that led to his dismissal was
one of attempted assault . This therefore implied that the issue of whether
Simolonjane was assaulted and had not sustained injuries was irrelevant to
the enquiry.
[25] It was contended that the Commissioner further failed to consider the
probabilities that Mlobeli sustained his injuries after falling to the ground
during his altercation with Simolonjane and Jeke when he attempted to
assault Simolonjane with his stick, particularly since he had conceded that he
was intoxicated at the time. In this regard, it was further submitted that at the
internal disciplinary inquiry, at no stage did Mlobeli contend that he was
assaulted by Simolonjan e. F urthermore, it was submitted that despite his
injuries, Mlobeli did not report his alleged assault, whilst on the other hand,
Simolonjane had reported the incidents of harassment, intimidation, and
attempted assault to the SAPS, resulting in a warning to Simolonjane and his
subsequent arrest.
[26] In regards to the above ground of review, it was submitted on behalf of
Mlobeli that the applicant’s review application was a disguised appeal as the
Commissioner’s reasoning and conclusions were unassailable. It was
submitted that the Commissioner’s findings in regards to whether there was
an assault are also supported by the applicant’s averments in the founding
each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened with the onus of proof has
succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs
when the court's credibility findings compel it in one direction and evaluation of the general
probabilities in another. The more convincing the former, the less convincing will be latter.
But when all factors are equipoised probabilities prevail.”
affidavit that Mlobeli had on 23 and 26 November 2018, assaulted and
threatened to kill Simolonj ane due to his union affiliation, and that the latter
had in fact testified at the arbitration proceedings that Mlobeli had assaulted
him. It was contended that it was relevant that Simolonjane had not sustained
injuries in that it was not disputed that Mlobeli on the other hand had suffered
injuries, and there was no need for him to provide documentary evidence in
that regard.
[27] In considering whether the Commissioner committed a gross irregularity in
regards to the findings on the allegations against Mlobeli , it is trite that a n
enquiry into substantive fairness of a dismissal requires an examination of
what the essence of the charges proffered against him were, and whether the
employer had discharged its onus in that regard . Thus, the question to be
answered is what were the allegations against Mlobeli 4. This approach had
long been stated in Fidelity Cash Management Service v CCMA5 as follows;
“It is an elementary principle of not only our labour law in this country
but also of labour law in many other countries that the fairness or
otherwise of the dismissal of an employee must be determined on the
basis of the reasons for dismissal which the employer gave at the time
of the dismissal.”
[28] Mlobeli as per the charge sheet and the reasons for the dismissal was that on
or about 23 and 26 November 2018, he had a ttempted to assault an
employee (Simolonjane) due to his union affiliation. He was further charged
with having c ommitted unlawful acts design ed to intimidate and harass non -
striking employees in that he threatened to kill an employee (Simolonjane)
due to his union affiliation, and unless he joined AMCU.
[29] Clearly from the charges, the issue before the Commissioner was whether it
was proven that Mlobeli had attempted to assault Simolonjane, and whether
4 Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others
(2019) 40 ILJ 773 (CC); 2019 (4) BCLR 506 (CC); [2019] 6 BLLR 524 (CC) at para 57
5 (2008) 29 ILJ 964 (LAC) para 32.
he had conducted himself in a manner that was meant to intimidate and
harass Simolonjane coupled with threats to kill him due to his union affiliation.
The Court accepts from the evidence led by Simolonjane that he had testified
that at some point between 22 and 26 November 2018, Mlobeli had assaulted
him. This however was not what Mlobeli was charged with.
[30] Crucially however is that the Commissioner was required to assess all the
incidents of misconduct testified to by Simolonjane and Jeke against Mlobeli
holistically, without being bogged down by minute details as if a trial court was
being conducted. It has long been stated in Gold Fields Mining South Africa
(Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and
Arbitration and Others6, that a commissioner is to deal with the matter with the
minimum of legal formalities , and is required to act fairly in the determination
of unfair dismissal disputes , by affording the parties a fair tria l in the sense
that they are accorded their right to have their cases fully and fairly ventilated.
[31] Stripped off of all the minute details, and bar the contradictions in dates
arising from Simolonjane’s testimony, the facts of this matter which are hardly
in contention were that the latter and Mlobeli had a harmonious relationship in
the premises and at work until the strike action commenced. Simolonjane as a
member of NUM was not on strike, which was characterised by violence,
intimidation and harassment. From the rivalry between NUM and AMCU, it is
apparent that those NUM employees who were not on strike invariably found
themselves at cross -hairs of the violence and intimidation. This is in view of
the evidence that did not appear to be disputed before the Commissioner, that
certain members of NUM were assaulted and even murdered during the
strike.
[32] Simolonjane and Jeke’s evidence was that on 22 November 2018, Mlobeli
had on no less than five occasions arrived at their residence uninvited, had
threatened Simolonjane, insulted him, called him a ‘rat’ for belonging to NUM
and attempted to recruit him to join AMCU . At some point during Mlobeli’s
6 [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para [20]
visits, he came to their room armed with a stick and threatened Simolonjane.
Simolonjane and Jeke had further testified that at some point during that day,
they were on their way to or from the shop when they came across Mlobeli,
who with stick in hand, approached them and had without provocation,
attempted to assault Simolonjane with it. A scuffle had ensued, resulting with
the stick being retrieved from Mlobeli who even on his own version was
inebriated, and had conceded that his stick was taken from him . In the course
of the scuffle and as the stick was being retrieved from him, Mlobeli fell face
first to the ground.
[33] Against the above evidence, even if Simolonjane contradicted himself on the
details of the specific dates, all that Mlobeli did on the other hand was to offer
a bare denial to the essential details of the allegations against him. Other than
denying all of these allegations, Mlobeli simply proffered a clearly improbable
version of events, mainly being that when he came across Simolonjane and
Jeke on his way to the shop , the former accused him of having ‘abused’ him
and the two started assaulting him hence his injuries. This version was clearly
improbable in view of Mlobeli’s earlier contentions that before the strike, he
and Simolonjane had had an amicable relationship over a period of two years.
As to the reason Simolonjane would have started to ‘abuse’ Mlobeli as he had
alleged, and suddenly decided to assault him is not clear. Mlobeli’s version
clearly did not make any sense, and as to how the Commissioner would have
found that he was innocent of any wrong doing is equally unclear.
[34] As to how the Commissioner could have arrived at the conclusion that the
versions of Simolonjane and Jeke were inconsistent, or that they had on the
whole testified to untruths is not clear in the face of the clearly improbable
version of event as attested to by Mlobeli. This is further in view of
Simolonjane’s version, notwithstanding much being made about the
inconsistencies in dates, that after Mlobeli’s persistent threats, intimidation
and harassment, he had reported the matter to the SAPS. Mlobeli conf irmed
that the SAPS came to his room o n 24 November 2018 and questioned him
about the incident of 22 November 2018 as reported by Simolonjane . He had
further conceded that members of the SAPS came back to his premises on 25
November 2018 and arrested him . On the other hand, despite allegedly
having been assaulted and sustaining serious injuries inflicted by Simolon jane
and Jeke there was no evidence of Mlobeli having reported the matter to the
police or to Sibanye. Worst still, he did not even mention any of the alleged
assault at the internal hearing . That version suddenly came up before the
Commissioner.
[35] Against these factors, there was no basis upon which Jeke’s version of events
of 22 November 2018 could be found to be improbable or lacking credibility to
the extent that it corroborated that of Simolonjane in relation to the specific
incidents of misconduct on the part of Mlobeli . The fact that Simolonjane
could not give an exact date of events and could not explain discrepancies in
the dates in his statement at the police or the dates on the charge sheet is in
my view inconsequential, and could not have been the basis for the
commissioner to reject his entire evidence as having been fabricated . The
essential features of his version in regards to the allegations against Mlobeli
(i.e., attempted assault on Simolonjane due to his union affiliation , and
unlawful acts designed to intimidate and harass him by threatening to kill him
due to his union affiliation and unless he joined AMCU ), were more probable
than the latter’s version of events.
[36] Any contention that Simolonjane could have fabricated his version in order to
justify his absence from work for three days during the strike action by AMCU
members is equally without foundation. This is so in the light of the fact that
no evidence was led to the effect that he was required by Sibanye to explain
his absence during the strike . All that was done during Simolonjane’s cross -
examination was simply to put that version and proposition to him, without any
foundation or supporting evidence. To the extent that Simolonjane denied that
proposition, which was in any event not supported by any other evidence,
there was no basis for the Commissioner to draw negative inferences from
that denial that he was untruthful.
[37] Furthermore, it was Simolonjane’s evidence that during the course of the
violent strike, NUM members were targeted and threatened for going to work.
Whether that was the reason for his absence from work on the days in
question was irrelevant to the material enquiry before the Commissioner.
Other than this fact, this was not a case where Simolonjane had raised the
allegations against Mlobeli only when he reported for duty on 26 November
2018. There was no gainsaying that he had reported Mlobeli to the SAPS on
23 November 2018, some three days prior to going back to work , and his
complaints led with the SAPS warning Mlobeli and ultimately arresting him. It
follows that the conclusion by the Commissioner that Simolonjane made the
allegations to give an excuse for his absence was clearly based on
conjecture.
[38] In view of the probabilities having been in favour of the applicant that the
misconduct was proven, it was not even necessary for the Commissioner to
consider the issue of whether evidence was led to demonstrate that the
employment relationship had irretrievably broken down as a result of Mlobeli’s
conduct. It is trite flowing from Impala Platinum Ltd v Jansen and Others7, that
where an employee is found guilty of gross misconduct , it is not necessary to
lead evidence about a breakdown in the trust relationship as it cannot be
expected of an employer to keep a delinquent employee in its employ.
Furthermore, it must therefore be implied from the gravity of the misconduct
that the trust relationship had broken down and that a dismissal was the
appropriate sanction8.
[39] In this case, the invariable conclusion in the light of the evidence before the
Commissioner was that during a violent strike action, Mlobeli had persistently
intimidated, harassed and attempted to assault and force Simolonjane to join
AMCU. His version of events was improbable particularly in the light of his
bare denials in relation to the specific incidents of his misconduct. At the
commencement of the strike, Sibanye had warned its employees against such
conduct, and clearly Mlobeli did not heed that warning. Given the gravity of
the misconduct, especially within the context of the violent protracted strike
7 [2017] 4 BLLR 325 (LAC).
8 At paragraphs 13 and 15.
action, that was sufficient to make any employment relationship
unsustainable.
[40] Against the above conclusions, it follows that the award of the Commissioner
based on what was placed before her , falls outside the band of
reasonableness, as the findings made therein are disconnected with the
evidence and involved speculation by the Commissioner. It follows that the
award ought to be set aside. I also agree with the contentions made on behalf
of the applicant that in the light of the full record of the arbitration proceedings
and the pleadings relied on in this application, the Court , in the light of the
conclusions reached in this judgment, is placed in a position where it is able to
substitute the Commissioner’s award with its own order.
[41] I have further had regard to the requirements of law and fairness in regards to
costs. AMCU was indeed entitled to mount a defence against this review in
the light of its favourable award . There is no basis for any conclusion to be
reached that in opposing the review, AMCU acted mala fide. In this regard, it
is my view that each party must be burdened with its own costs. Accordingly,
the following order is made;
Order:
1. The arbitration award issued by the second respondent under case
number GAJB17587-19 is reviewed, set aside and substituted with an
order that;
‘The dismissal of Mr Mbheki Mlobeli by Sibanye Gold Ltd t/a Sibanye
Stillwaters was fair’
2. Each party is to pay its own costs.
Edwin Tlhotlhalemaje
Judge of the Labour Court of South Africa
REPRESENTATION:
For the Applicant: P. Moll, instructed by Solomon
Holmes Incorporated.
For the Third Respondents: A. Cook, instructed by Larry Dave
Incorporated.