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[2024] ZALCJHB 105
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Palaborwa Mining Co v Commission for Concilation, Mediation and Arbitation and Others (JR2076/17) [2024] ZALCJHB 105 (6 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No:
JR2076/17
In
the matter between:
PALABORWA
MINING COMPANY (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
MOGANAFASE NEGROES
NONYANE
N.O.
Second Respondent
NUM
obo SALMA
MALATJI
Third Respondent
Heard:
14 November
2023
Delivered:
06 March 2024 (This judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email, publication on the Labour Court website and
release to SAFLII. The date and time for handing-down is deemed to be
10h00
on 06 March 2024.)
JUDGMENT
PHEHANE,
J
Introduction
[1]
The
applicant brings an application in terms of section 145 of the Labour
Relations Act
[1]
(LRA)
to review and set aside the arbitration award by the second
respondent in which he found the dismissal of the third respondent
(Ms. Salma Malatji, to whom I refer as “SM”) to be
procedurally fair but substantively unfair and ordered retrospective
reinstatement.
[2]
The
history of this application reveals a long and tedious account of
missing arbitration records and a reconstruction thereof from
the
notes of the second respondent.
[2]
At
a point, the third respondent filed an application in terms of rule
11 to dismiss the review application – this application
was not
pursued when the matter was heard.
[3]
The
review application is opposed by the third respondent.
Brief
factual background
[4]
SM
was employed by the applicant as a pension officer. She was dismissed
on 29 November 2016 for dishonesty and the abuse of her
position for
soliciting and receiving a bribe from Ms. Dikeledi Malatji (DM)
[3]
,
the widow of a deceased employee of the applicant, Mr. Marupeng David
Munisi. In addition, SM was dismissed for sending an incorrect
benefit schedule to Sanlam, which was not approved by the applicant’s
board of trustees, resulting in the deceased’s
mother being
underpaid her due benefit.
[5]
For
clarity, the charges of misconduct against SM read:
‘
Dishonesty
and/or Abuse of a Privileged Position
–
in that, in your capacity as a Pension Officer:
1.
On
or about 22
nd
of May 2013, you solicited and received money from Ms Dikeledi
Malatji for payments made to her in terms of Mr Maropeng David
Munisi’s accident fund insurance;
And
2.
On
or about 6
th
August 2013 you submitted an unauthorised the benefit distribution
form to Sanlam in respect of Mr. Marupeng David
Munisi.’
[4]
[6]
Pursuant
to a dismissal, SM referred a dispute to the first respondent, the
outcome of which is the subject matter of this application.
Arbitration
proceedings
[7]
At
the arbitration hearing, the applicant called four witnesses, namely,
DM, Mr. Sydney Kopong, who chaired the internal disciplinary
enquiry,
Mr. William Laing, an elected trustee of the pension fund and
initiator of the disciplinary hearing of SM and Ms Elena
van
Huysteen, the financial planner at First National Bank (FNB),
Phalaborwa. The applicant’s main witness, DM, then gave
evidence in chief but failed to present herself to be cross-examined
as the arbitration proceedings progressed. The witnesses for
the
employee party were SM, Ms. Precious Ndobe (also a pension officer of
the applicant at the time), and Mr. Jabulane Makhubela,
a member of
the pension fund board of trustees.
[8]
The
evidence of DM insofar as the first charge is concerned, is that SM
and her colleague, Ms. Ndobe, solicited a bribe from her
in the
amount of R100 000,00 each in order that she could receive the
pension benefit of the deceased, as she was not in possession
of a
marriage certificate. SM assisted DM in obtaining funds from the Road
Accident Fund (RAF). Once the funds were deposited in
DM’s bank
account, she proceeded to the bank, First National Bank (FNB) to
withdraw R100 000.00, but she was not permitted
to draw this
amount of money as it had recently been deposited. SM contacted her
to enquire if she had withdrawn the money. She
explained that she did
not. SM then advised her to return to the bank the next day and to
approach a different teller, which she
did and she successfully
withdrew the R100 000.00. SM phoned her while she was inside the
bank to ask if she had withdrawn
the money, to which she answered in
the affirmative. SM told her to meet her outside the bank. She later
handed the cash to SM
in SM’s car. During her evidence, DM
stated that she had attended at the bank to withdraw bribe money of
R100 000.00
for Ms. Ndobe. When the applicant’s
representative sought clarity as to whether it was SM or Ms. Ndobe
who gave her instructions
to withdraw the bribe money, the second
respondent and the representative for SM stated that he must wait for
cross-examination
to ask questions for clarity.
[5]
[9]
DM’s
evidence was that, at a later stage in September 2015, she went to
the applicant’s offices and SM informed her
that she should
withdraw R40 000.00 and pay it into the applicant’s
account. She explained that Ms. Ndobe instructed
her to change her
bank account from Standard Bank to FNB to receive her pension payout
because Standard Bank “
interrogates
a lot
”.
She did. She proceeded to state that Ndobe demanded the R100 000.00
bribe, but the bank did not permit her to withdraw
it. As a result,
she did not pay Ms. Ndobe the bribe money. She then changed her
version and stated that Ms. Ndobe visited her
at her home and
informed her that her mother-in-law was underpaid and she instructed
DM to pay R40 000 to the applicant. Her
evidence was that the
pension money she received in the approximate amount of R280 000.00
was reversed.
[6]
[10]
When
the arbitration proceedings continued, DM did not present herself for
cross-examination. The further witnesses of the applicant
testified.
[11]
The
evidence of Mr. Laing is that, before the disciplinary hearing of SM
commenced, he discussed the facts of the case with DM,
who informed
him that SM assisted her in obtaining insurance funds from the
applicant arising from the death of the deceased. He
stated that the
deceased died in a motor vehicle collision, drove off the road and
drove into a tree. SM told DM that DM would
not receive the insurance
funds as the accident happened off the road and she could alter the
records to make it appear as though
the accident occurred on the road
for DM to receive the insurance payout from the applicant. SM wanted
bribe money for this “assistance”.
DM was married to the
deceased customarily. SM also informed DM that she would not receive
the pension benefits of the deceased,
as she was not in possession of
a marriage certificate and the benefits would be received by the
deceased’s mother. SM wanted
bribe money from DM to ‘assist’
her with this. The bribe money SM wanted was R100 000.00.
[12]
The
insurance payout was deposited in DM’s bank account held at
Standard Bank. DM could not withdraw R100 000.00 on her
first
attempt. She told SM, who told her to return to the bank the
following day. Mr. Laing referred to the Standard Bank records
of DM
that reflect R100 000.00 was withdrawn by her on 22 May 2013. SM
contacted her and they met, at which point, DM handed
the R100 000.00
cash over to SM in SM’s car.
[13]
Mr.
Laing stated that DM also told him that Ms. Ndobe demanded
R100 000.00 bribe money from DM when the pension fund money
was
paid into DM’s FNB account. She did not succeed in withdrawing
this amount from FNB, as she disclosed to the FNB bank
officials that
the applicant’s pension officers wanted the money and they
discouraged her from withdrawing it.
[14]
Much
is made in the transcribed record by SM’s representative about
Mr. Laing’s evidence being that R200 000 was
paid by DM to
the pension officers or to SM. Mr. Laing corrected his evidence with
reference to DM’s Standard Bank records
and clarified that the
second R100 000.00 that was demanded as bribe money by Ms. Ndobe
was not paid due to the interception
by the FNB bank officials who
reported the incident on the applicant’s hotline through a
platform called “speak out”.
[15]
SM’s
representative made several attempts to confuse Mr. Laing by
referring to a payment to SM of R80 000.00. Mr. Laing
was
consistent in his evidence. (Ms. van Huysteen’s evidence
clarifies the facts surrounding the bribe of R80 000.00
by the
pension fund officers. I deal with this below).
[16]
Mr.
Laing’s evidence in relation to the second charge, is that SM
and Ndobe’s role as pension officers is to compile
a resolution
for the approval of the applicant’s board of trustees on the
distribution of pension benefits to beneficiaries
of a deceased
employee. The pension officers prepare a benefits schedule that forms
part of the resolution. They present the resolution
to the board for
approval. As is required by the Pension Fund Act
[7]
,
the board of trustees apply their mind to the resolution and benefits
schedule and distribute the benefits in a responsible manner.
Thereafter, the pension officers send the resolution to Sanlam, the
administrator of the applicant’s pension fund, to pay
the
funds.
[17]
Mr.
Laing confirmed that SM was at training and did not make a
presentation to the board on the resolution and benefits schedule,
but maintained that both SM and Ms. Ndobe prepared the resolution.
[18]
The
board approved the benefit schedule of the payment of R50 000
for the deceased’s mother. SM sent an incorrect and
unapproved
schedule for the payment of R10 000 to Sanlam, the administrator
of the applicant’s pension fund. This resulted
in an
underpayment to the deceased’s mother.
[19]
The
pension payout ultimately was reversed, as well as the benefit that
was paid to the trust for the minor children of the deceased.
The
necessary corrections were effected and the deceased’s mother
was paid the correct amount from the reserves of the applicant,
as
the R40 000 underpayment could not be recovered. The benefit of
the minor children was also paid out to the trust.
[20]
His
evidence is that SM’s submitting the unapproved benefit
schedule to Sanlam was not an error – it was a calculated
move
on the part of SM and DM. Such conduct is reputational for the
applicant, as it requires its employees to conduct themselves
with
utmost trust in rendering their services as they serve members of the
community with death benefits. He stated that there
was no basis for
preparing two benefit schedules – the rules of the Pension Fund
Act and the applicant’s processes
permit only one benefits
schedule to be prepared. Following this incident, the applicant has
tightened up the manner in which resolutions
are prepared and
authorised to prevent unapproved schedules from being submitted to
Sanlam.
[21]
Mr.
Laing was referred to DM’s written undertaking to refund the
R40 000 and confirmed that she did not pay this money
back to
the applicant.
[8]
Mr.
Laing’s evidence is that when DM was told to return the pension
fund money, she complained that she already made payment
to SM and
Ms. Ndobe.
[22]
The
evidence before the second respondent shows that the deceased’s
mother was paid from the applicant’s reserves due
to DM having
“
squandered
”
the pension payout.
[23]
The
further evidence before the second respondent in relation to the
second charge is the evidence of Ms. van Huysteen, who stated
that DM
approached her for financial advice following the pension payout. SM
phoned Ms. van Huysteen to enquire why DM was unable
to withdraw cash
from the bank tellers. Ms van Huysteen told SM she did not know the
reason and would follow up. On the following
day, she enquired from
the operations manager at FNB about the withdrawal, and she was
informed that DM wanted to withdraw funds
in excess of the amount of
R50 000 to hand it over to the applicant’s pension officers, SM
and Ms Ndobe. The bank did not
permit the withdrawal as the requisite
24-hour notice for the withdrawal of funds in excess of R50 000.00
was not provided
by DM. The operations manager, at a later stage,
informed Ms. van Huysteen that the applicant wanted to withdraw
R80 000.00
from FNB.
[24]
The
further evidence of Ms. van Huysteen is that it was not uncommon for
clients to withdraw large amounts of money after receiving
pension
payouts. Her evidence was that widows presented themselves to
withdraw funds to pay pension officers for obtaining
pension payout
speedily. She had enquired from a client (Mrs. Sodi) on a previous
occasion as to whether pension officers had solicited
a bribe in the
amount of R80 000.00 from her. Mrs Sodi hung up the call and SM
phoned Ms. van Huysteen thereafter and lambasted
her for asking
customers such questions.
[9]
Thereafter,
Ms. van Huysteen reported the suspicious conduct to “speak
out”,
[10]
the
applicant’s hotline, and was subsequently interviewed by
forensic investigators. She received no feedback from the
investigators
but was a witness in SM’s disciplinary hearing.
[25]
Ms.
van Huysteen stated that DM told two FNB officials that she had paid
money to SM and she confirmed this with one of them. In
her evidence,
Ms. van Huysteen mentioned a withdrawal of R100 000.00 by DM
from her Standard Bank account and a failed attempt
by DM to withdraw
R80 000.00 from her FNB account for the pension officers.
[26]
It
transpires from the reconstructed and typed record of the second
respondent’s notes containing the evidence of SM, that
SM
denied soliciting and receiving a bribe from DM and denied contacting
DM while she was at the bank. It is noteworthy that she
denies
meeting DM near FNB
[11]
when
on the facts, the bribe money was handed over to her near Standard
Bank. Her evidence was that both she and Ms. Ndobe drafted
the
recommendation to the board containing the deceased’s
beneficiary schedule. Two schedules were drafted. Ms. Ndobe conducted
the presentation to the board while she was attending training. On
her return from training, she collected the board resolution
from Ms.
Ndobe’s desk and sent the resolution to Sanlam. She later
discovered the wrong beneficiary schedule was sent to
Sanlam. The
board was subsequently informed that an error had been made and SM
was penalized in her performance reviews that followed
and the
correct payment to the deceased’s mother was made.
[27]
Ms.
Ndobe’s evidence was that two distribution schedules of R10 000
and R50 000 were prepared. She presented the
recommendation to
the trustees who approved the amount of a R50 000.00 payment to
the deceased’s mother. There was no
need to present the lesser
amount because the higher amount was approved. As she was busy with
work, she left the file on SM’s
desk and forgot to remove the
unapproved benefits schedule. SM submitted the file to Sanlam
containing both unapproved and approved
benefits schedules. She later
found out, after SM informed her that Ms. van Huysteen was querying
their conduct, that the deceased’s
mother was paid the lesser
amount. She reported the error. She was penalised in her next
performance rating for this ‘error’.
[28]
One
of the trustees of the pension fund, Mr. Makhubela, testified that
the conduct of the pensioners in submitting two recommendations
to
the board of trustees was an honest mistake. The evidence Mr.
Makhubela was missing and it is reconstructed from the typed notes
of
the second respondent. It is scant and his evidence does not deal
with Mr. Laing’s detailed and consistent evidence that
the
conduct of SM and Ms. Ndobe in submitting two recommendations was
improper and submitting an unapproved benefits schedule to
Sanlam
bearing the signatures of the trustees was deceptive and serious.
[29]
On
the documentary evidence before the second respondent, the same page
bearing the signatures of the trustees appeared on both
distribution
schedules, although the evidence of Mr. Laing and Ms. Ndobe was that
only one schedule was signed. The reason for
this was not explained
by SM or Ms. Ndobe. The applicant accordingly contends that the
reasonable inference is that both pension
officers did this with the
intention “
to
fabricate the error
”
so that DM was overpaid as they solicited a bribe from her.
[30]
The
second respondent was of the view that the applicant had not proved
the second charge against SM, at best, she was guilty of
negligence.
He found that the error was corrected and dismissal was not the
appropriate sanction. In respect of the first charge,
the second
respondent found that the failure of DM to present herself for
cross-examination without any reasonable explanation
deprived SM of
her right to cross-examination. The evidence of DM was untested. The
second respondent found that DM was the only
witness to provide
direct evidence in relation to the first charge. In the
circumstances, he disregarded the evidence in
toto
and found
that the applicant failed to prove its case against SM on the first
charge.
Grounds
of review and opposition
[31]
The
applicant pleads four grounds of review.
[32]
The
first is that the second respondent committed a gross irregularity by
failing to consider material evidence and arrived at an
unreasonable
finding that the submission of the incorrect beneficiary distribution
schedule was a genuine error and was not calculated
to deceive.
[33]
The
second and third grounds of review are that the second respondent
committed a gross irregularity in totally disregarding the
evidence
of DM for the reason that her evivence-in-chief could not be tested
in cross-examination owing to her failure to appear
at the
arbitration hearing for cross-examination. The applicant contends
that the second respondent should have admitted and considered
the
hearsay evidence of Mr. Laing and Ms. van Huysteen as the documentary
evidence of the phone and bank records in substantiating
the charges
against SM.
[34]
SM
denies that the bank withdrawal by DM proves that she solicited a
bribe and she denies that there are any phone records to prove
she
had contact with DM at the time DM made the withdrawal at Standard
Bank.
[35]
The
fourth ground of review, linked to the last two, is that the second
respondent committed a gross irregularity when he failed
to consider
hearsay and circumstantial evidence to determine whether a
solicitation of a bribe took place. In this regard, the
applicant
contends that the second respondent, in addition to failing to
consider Ms. van Huysteen’s evidence and the phone
and Standard
Bank records, failed to consider the evidence of Mr. Laing regarding
the payment of the R100 000.00 bribe by
DM to SM after she
withdrew the money from Standard Bank.
[36]
The
applicant contends that a reasonable commissioner would have had
regard for the applicant’s attempts on several occasions
to
contact DM and would not have disregarded DM’s evidence in
toto
.
The applicant avers that DM had been through a significant ordeal and
was afraid to return for cross-examination. This is denied
by SM, who
contends that no explanation was proffered for the failure of DM to
attend the arbitration hearing for cross-examination
and the
applicant speculates that DM was afraid to return. SM contends that
had the second respondent considered the untested evidence
of DM, SM
would have been denied her right to cross-examine DM and this would
have resulted in an unfair hearing.
[37]
In
essence, SM contends that the second respondent committed no
irregularities and his decision is reasonable.
Legal
framework
[38]
It
is trite that a review Court is tasked, in adjudicating a review
application, to consider whether the decision of the commissioner
is
one that a reasonable commissioner could not arrive at on the
totality of evidence that was before him or her.
[12]
To
have an appreciation of the totality of evidence that was before the
commissioner, the review Court considers the mechanical
and
non-mechanical record of the arbitration proceedings filed by the
body under whose auspices the arbitration proceedings were
held.
[39]
It
is now settled in our law, that for a decision to be reviewed and set
aside on the grounds of an irregularity committed by the
commissioner, the irregularity, if found to exist, is insufficient to
set the decision aside – the irregularity must distort
the
outcome. If this is found to be the case, the review succeeds. The
review, in short, is outcome-based, entailing a stringent
test aimed
at ensuring that arbitration awards are not lightly interfered
with.
[13]
[40]
The
concept of ‘gross irregularity’ in review applications
was explained by the Labour Appeal Court (LAC) in
Head
of Department of Education v Mofokeng and Others
[14]
as
thus:
‘
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the enquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result. Whether the irregularity
or error is material must be assessed and
determined with reference
to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry,
the delimitation of the
issues to be determined and the ultimate outcome. If but for an error
or irregularity a different outcome
would have resulted it will
ex
hypothesi
be material to the
determination of the dispute. A material error of this order would
point to at least a
prima facie
unreasonable result. The reviewing
judge must then have regard to the general nature of the decision in
issue; the range of relevant
factors informing the decision; the
nature of the competing interests impacted upon by the decision; and
then ask whether a reasonable
equilibrium has been struck in
accordance with the objects of the LRA. Provided the right question
was asked and answered by the
arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity or
error material to the determination
of the dispute may constitute a
misconception of the nature of the enquiry so as to lead to no fair
trial of the issues, with the
result that the award may be set aside
on that ground alone. The arbitrator however must be shown to have
diverted from the correct
path in the conduct of the arbitration and
as a result failed to address the question raised for determination.’
Evaluation
[41]
The
grounds of review in the main, are that the second respondent
committed gross irregularities that render his decision unreasonable.
[42]
From
the transcribed record (including the typed notes of the second
respondent), DM’s evidence is riddled with inconsistencies.
[43]
Initially,
she stated that she went to FNB to withdraw R100 000.00 for SM
after SM assisted her in receiving money from the
RAF. She succeeded
in withdrawing the cash on the second attempt and handed it over to
SM. She then muddies the waters and says
the R100 000.00 cash
was intended for Ms. Ndobe, which funds she attempted to withdraw
from FNB after the pension funds were
paid into the FNB account, but
the bank officials at FNB discouraged her from withdrawing the money.
At a later stage, Ms. Ndobe
visited her at her home and said that her
mother-in-law’s money, in the amount of R40 000.00, was
paid into her bank
account by mistake and she must withdraw it from
the money she received and pay it into the applicant’s bank
account.
[44]
She
is unclear as to who instructed her to attend at which bank to
withdraw what amount of money.
[45]
From
the transcribed record, it transpires that DM was not taken through
any documentary evidence that the applicant relies on,
being her
Standard Bank account reflecting the withdrawal of R100 000.00
on 22 May 2013 and the phone records reflecting a
series of phone
calls from SM to herself in that time frame.
[46]
The
second respondent was enjoined by section 136 of the LRA to resolve
the dispute through arbitration. Section 138(1) of the LRA
provides:
‘
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the
dispute
fairly and quickly, but must deal with
the substantial merits of the
dispute
with the minimum of legal formalities.’
[47]
The
second respondent states that DM was the applicant’s key
witness on the first charge and the only witness who could provide
direct evidence on the bribe and the evidence of Mr. Laing and Ms.
van Huysteen in respect of the first charge constitutes hearsay
evidence.
[15]
He
states that once DM completed her evidence-in-chief , the hearing
adjourned to a later date for the purposes of her cross-examination,
but she failed to appear. The matter stood down to the following day,
but again, without explanation, she failed to appear and
the
applicant closed its case after the testimony of Mr. Laing and Ms.
van Huysteen.
[16]
The
second respondent proceeds to state that the failure of DM to present
herself for cross-examination deprived SM of her right
to
cross–examine her; he concludes that her evidence is thus
untested for any probative value. He accordingly rejects it
and finds
that the applicant failed to substantiate the first charge.
[48]
SM
agrees that the evidence of DM is untested and that the second
respondent was correct to disregard it totally; had he not done
so,
her right to cross-examine would have been infringed. In this regard,
SM relies on the matter of
President
of the Republic of South Africa and others v South African Rugby
Football Union and thers
[17]
that,
if a point in dispute is left unchallenged in cross-examination, the
party calling that witness is entitled to assume that
the
unchallenged witness’ testimony is accepted as correct.
[49]
From
the transcribed record, it transpires that the applicant explained
that the whereabouts of DM could not be ascertained as she
could not
be traced. The second respondent suggested that the applicant proceed
with its next witness. This was agreed.
[18]
On
the next occasion when the proceedings resumed, DM could still not be
located and the matter stood down until the following day
in order to
locate the whereabouts of DM. When the hearing resumed, it was
postponed for this purpose.
[19]
The
transcribed record ends with the evidence of Ms. van Huysteen on p
146. At the conclusion of Ms. Huysteen’s evidence,
the second
respondent enquires if the next witness for the applicant is present.
The applicant asks for ten minutes to confirm.
He is granted the
indulgence. The Record does not reveal any discussions thereafter.
The proceedings conclude on that day (14 August
2017). The record is
incomplete. It does not reflect what the discussions were after the
applicant requested time to establish
if his next witness was
present, presumably DM. Nothing is reflected in the Record pertaining
to how it was resolved that the arbitration
proceedings would
continue in the absence of DM and how her evidence-in-chief would be
treated and no ruling is made on the hearsay
evidence of Mr. Laing
and Ms. van Huysteen on charge one.
[50]
The
record moves on to the evidence of the second witness for the
employee party. However, SM was the first witness for the employee
party and her evidence is contained from p 518 of the Record. Even
the second respondent’s typed notes do not shed light
on what
was discussed at the conclusion of the proceedings on 14 August 2017.
[51]
In
view of the aforegoing, it is not correct that the applicant gave no
explanation for DM’s failure to appear for cross-examination
–
the explanation was she could not be found.
[52]
Our
Courts enjoin an arbitrator to admit hearsay evidence if it is in the
interests of justice to do so, taking into consideration
the factors
listed in section 3 of the Law of Evidence Amendment Act
[20]
(LEAA)
which reads:
‘
3.
Hearsay
evidence
(1)
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless—
(a)
each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c)
the
court, having regard to—
(i)
the
nature of the proceedings;
(ii)
the
nature of the evidence;
(iii)
the
purpose for which the evidence is tendered;
(iv)
the
probative value of the evidence;
(v)
the
reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any
prejudice to a party which the admission of such evidence might
entail; and
(vi)
any
other factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence should
be admitted
in the interests of justice.
(2)
The
provisions of subsection (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such
evidence is
hearsay evidence.
(3)
Hearsay
evidence may be provisionally admitted in terms of subsection (1) (b)
if the court is informed that the person upon whose
credibility the
probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such person
does not later testify
in such proceedings, the hearsay evidence shall be left out of
account unless the hearsay evidence is admitted
in terms of paragraph
(a) of subsection (1) or is admitted by the court in terms of
paragraph (c) of that subsection.
(4)
For
the purposes of this section—
‘
hearsay
evidence’ means evidence, whether oral or in writing, the
probative value of which depends upon the credibility
of any person
other than the person giving such evidence;
‘
party’
means the accused or party against whom hearsay evidence is to
be adduced, including the prosecution.’
[53]
In
Makhathini
v Road Accident Fund,
[21]
the Court stated as follows regarding the admission of hearsay
evidence:
‘
[27]
The purpose of the Act is to allow the admission of hearsay evidence
in circumstances where justice
dictates its reception. In
Metedad
v National Employers’ General Insurance Co
Ltd
1992 (1) SA 494 (W) it was stated as
follows at 498I–499G:
“
It
seems to me that the purpose of the amendment was to permit hearsay
evidence in certain circumstances where the application of
rigid and
somewhat archaic principles might frustrate the interests of justice.
The exclusion of the hearsay statement of an otherwise
reliable
person whose testimony cannot be obtained might be a far greater
injustice than any uncertainty which may result from
its admission.
Moreover, the fact that the statement is untested by
cross-examination is a factor to be taken into account in assessing
its probative value… There is no principle to be extracted
from the Act that it is to be applied only sparingly. On the
contrary, the court is bound to apply it when so required by the
interests of justice.”
In
each case the factors set out in section 3(1)(c) are to be considered
in the light of the facts of the case. The weight to be
accorded to
such evidence, once it is admitted, in the assessment of the totality
of the evidence adduced, is a distinct question.
[28]
The
factors set out in section 3(1)(c)(i)–(vii) should not be
considered in isolation. One should approach the application
of section 3(1)(c) on the basis that these factors are
interrelated and that they overlap. See
Hewan v Kourie NO and
another
1993 (3) SA 233 (T) at 239B–C
and Schmidt and Rademeyer’s Bewysreg (supra) at 481…’
[54]
In
Exxaro
Coal (Pty) Ltd v Chipana and Others
[22]
(Exxaro)
,
the LAC held that a commissioner is to rule at a stage in the
arbitration hearing when the question of hearsay evidence arises,
whether or not such evidence will be admitted in order that the
opposing party has an opportunity to deal with that hearsay evidence.
A ruling is not to be made at the conclusion of the hearing. This is
what the commissioner did in
Exxaro
,
in addition to misapplying the rules of evidence relating to the
admission of hearsay evidence in terms of section 3 of the LEEA.
The
LAC remitted the matter to the CCMA to be heard afresh.
[55]
From
the record (with all its missing pieces and scant reconstruction), it
is unclear whether the second respondent made a ruling
on the
admission of hearsay evidence taking into consideration the factors
in section 3 of the LEAA when the issue arose at the
failure of DM to
appear for cross-examination. The missing Record and his typed notes
do not shed any light on what discussions
took place at the
arbitration hearing. In my view, given the grounds of review, this
missing piece is crucial to determine what
the second respondent
ruled on the progress of the arbitration proceedings from this point.
There are no closing arguments contained
in the record to shed light
on this. None of the parties before me could assist with what
transpired when Ms. van Huysteen concluded
her evidence and what
occurred when it was clear that DM would not arrive. It is seen from
the Record that the applicant’s
representative requests time,
at the conclusion of Ms. van Huysteen’s evidence, to enquire as
to whether his next witness
is ready. This is a classic limping
Record of the arbitration proceedings.
[56]
What
is clear from the Record is that no submissions were made by SM
during the arbitration hearing that the evidence of Mr. Laing
and Ms.
van Huysteen that constituted hearsay evidence should not be
admitted. I emphasize that the charge against SM is one charge
with
two parts. Certain aspects of Mr. Laing and Ms. van Hususteen’s
evidence do not constitute hearsay evidence. I find
that the second
respondent committed a gross irregularity in rejecting their evidence
in
toto
as opposed to assessing it and making a decision on what probative
value he would add to that evidence in light of all the overwhelming
documentary evidence that was before him and in light of SM’s
bare denials.
[57]
It
transpires from the Record that SM, who was legally represented, had
a fair opportunity to deal with the hearsay evidence of
both Mr.
Laing and Ms van Huysteen and this is apparent from their
cross-examination. Nowhere is it stated that any argument will
be
made that their hearsay evidence should not be admitted. The failure
to admit the hearsay evidence and to assess it is a reviewable
irregularity that resulted in the second respondent making an
unreasonable decision.
[58]
I
also find that there was no basis for the second respondent to reject
the evidence-in-chief of DM in totality. Although her evidence
is
untested by cross-examination, its probative value is of a lesser
weight and he ought to have made this assessment. This too,
is an
irregularity.
[59]
The
second respondent does not deal with the circumstantial evidence that
arose from the evidence of Ms. van Huysteen, nor does
he engage with
the overwhelming documentary evidence that was placed before him on
both charges. A further irregularity.
[60]
In
Cooper
and another NNO v Merchant
Trade
Finance Ltd,
[23]
the
Supreme Court of Appeal set out the test for the reliance of
circumstantial evidence as follows:
‘
If
the facts permit of more than one inference, the Court must select
the most 'plausible' or probable inference. If this favours
the
litigant on whom the onus rests he is entitled to judgment. If, on
the other hand, an inference in favour of both parties is
equally
possible, the litigant will not have discharged the onus of proof.’
[61]
The
cumulative effect of all items of evidence was not considered by the
second respondent to draw a reasonable inference that there
was a
motive for SM and Ms Ndobe to prepare a second benefits schedule
which SM sent to Sanlam, all for a hefty bribe, which SM
received and
the R40 000.00 underpayment to the deceased’s mother
remains unaccounted for.
[62]
Mr.
Laing’s evidence on the applicant’s processes regarding
the preparation, presentation and approval of the resolution
and
benefits schedule is not hearsay evidence. There was accordingly no
basis to exclude his evidence.
[63]
The
probative value of Mr. Laing’s evidence carries greater weight
than that of the duo (i.e. SM and Ms. Ndobe) – he
is a trustee
and his evidence was consistent and unchallenged with regard to the
process of the board approving benefits. The evidence
of the duo is
inconsistent as to whether SM collected the file containing both
approved and unapproved benefit schedules from Ms.
Ndobe’s desk
or whether Ms. Ndobe left it on SM’s desk. They also play the
blame game and point fingers at each other
in terms of whose
responsibility it was to check the file and remove the unapproved
resolution. On the evidence of Mr. Laing, there
was simply no need
for a second benefit schedule – the rules of the pension
fund and of the applicant permit only one
benefit schedule to be
prepared. His evidence, that the preparation of the second benefit
schedule without any explanation from
the duo why it was submitted
with the signed board resolution was intended to deceive, is more
probable. On the totality of the
evidence before the second
respondent, tallied with his finding that it is striking that the duo
failed to explain why an unapproved
document was accompanied by the
signatures of the trustees, his decision that the SM committed an
error in submitting the unapproved
benefits schedule to Sanlam is
unreasonable.
[64]
The
manner in which the second and unapproved benefits schedule was
prepared and submitted to Sanlam with the signatures of the
trustees
is tantamount to corruption, is a serious offence and is reputational
for the applicant.
[24]
[65]
The
duo does not challenge Ms. van Huysteen’s evidence that she
contacted SM to ask if pension officers demand money from
widows who
receive pension payouts. They skirt over the issue of such a serious
allegation such as this. It is clear as day that
following this call
by Ms. van Huysteen, the duo attempted to cover their tracks, report
an “error” to their superiors
and require DM to repay the
R40 000.00, which has not been recovered.
[66]
Had
the second respondent admitted the hearsay evidence of Mr. Laing and
Ms. van Huysteen in the interests of justice and had he
considered
the circumstantial evidence and documentary evidence before him, he
would not have found that the first charge was unsubstantiated
and
that the submission of an unapproved benefits schedule was an error.
[67]
I,
therefore, find merit in the grounds of review.
[68]
A
number of factors, which are not necesssary to elaborate, have
contributed to the delay in disposing this review application.
[69]
Remitting
the matter to the first respondent for a hearing
de
novo
in
light of the irregularities above serves no purpose, as the record
before this Court is sufficient for this Court to make an
order
substituting the decision of the first respondent.
[70]
From
the Record, it transpires that SM gives bare denials to serious
allegations of soliciting and receiving a bribe from DM. She
conveniently denies receiving the bribe money near FNB, when the full
conspectus of the evidence is that she received the bribe
money near
Standard Bank. She does not deny receiving the money near Standard
Bank. She gives a bare denial and says she did not
phone DM when DM
was inside Standard Bank, withdrawing the bribe money. This, in light
of a number of calls from her work phone
to DM days before and on the
day when DM was at Standard Bank. SM does not deny ‘assisting’
DM to get insurance money
and amending the accident records of the
deceased in return for money. She does not deny a phone call by Ms.
van Huysteen making
a serious enquiry with her regarding pension
officers soliciting bribes. She made no attempt to refute Ms. van
Huysteen’s
version that she lambasted her for making such a
query.
[71]
There
is no remorse whatsoever shown by SM. She cannot be trusted in an
environment such as that of the applicant that requires
utmost trust
due to the nature of the services it renders to the community in
times of human loss and financial need for surviving
family members,
especially women and children.
[72]
In
view of the aforegoing, the following order is made:
Order
1.
The
arbitration award by the second respondent dated 24 August 2017 under
case number LP9680-16 is reviewed and set aside and is
substituted
with the following order:
‘
1.1
The
dismissal of the third respondent, Salma Malatji is substantively
fair.’
2.
There
is no order as to costs.
M.
T. M. Phehane
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Mr. Andries Kruger of Webber Wentzel Attorneys
For
the Third Respondent:
Adv. Charles Tshepo Malatji
Instructed
by:
Ndekwe Attorneys
[1]
Act 66 of 1995, as amended.
[2]
Strangely, no record of the disciplinary hearing exists, owing to a
theft at the applicant’s offices and the offices of
NUM, which
are adjacent to the applicant’s offices. However, documents
that were used in the disciplinary hearing were
placed before the
second respondent in the arbitration proceedings – see:
Record, pp 5 to 6.
[3]
DM and SM are not related.
[4]
Record, p 244.
[5]
Record, pp 17 to 29.
[6]
Record, pp 515 to 518.
[7]
Act
24 of 1956.
[8]
Record, p 85. The written undertaking by DM appears at p 486 of the
Record.
[9]
Record, p 115.
[10]
Record, p 338. On p 129 of the Record, Ms van Huysteen refers to the
document on p 338 of the record as her tip off (speak out)
on the
applicant’s hotline.
[11]
Record, p 519.
[12]
Sidumo
and another v Rustenburg Platinum Mines and Others
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as
amicus curiae)
[2013] ZASCA 97
;
[2013] 11 BLLR 1074
(SCA)
(
Herholdt
).
[13]
Ellerines
Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[2008]
ZALAC 6
; (2008) 29 ILJ 2899 (LAC);
Fidelity
Cash Management Services v Commission for Conciliation, Mediation
and Arbitration and others
[2007]
ZALAC 12
;
[2008] 3 BLLR 197
(LAC);
Herholdt,
supra.
[14]
[2014] ZALAC 50
;
[2015] BLLR 50
(LAC) at para
[33]
.
[15]
Arbitration award, at para 81, on p 25.
[16]
Ibid
at para 83.
[17]
[1999] ZACC 11; 2000 (1) SA 1 (CC).
[18]
Record, p 30.
[19]
Record, pp 104 to 105.
[20]
Act 45 of 1988.
[21]
[2001] ZASCA 120
;
[2002] 1 All SA 413
(A) at paras [27] and [28].
[22]
[2019] ZALAC 52; [2019] 10 BLLR 991 (LAC).
[23]
[1999] ZASCA 97
;
2000 (3) SA 1009
(SCA) at para
[7]
, cited with
approval in
National
Union of Mineworkers and Another v Mogale Gold, A Division of
Mintails (SA) (Pty) Ltd
(2015) 10 BLLR 1016
(LAC) at para [23].
[24]
Record, pp 41 to 42.