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[2024] ZALCJHB 139
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Association of Mineworkers and Construction Workers Union v Commission for Conciliation Mediation and Arbitration and Others (JR2132/21) [2024] ZALCJHB 139 (18 March 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 2132 / 21
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
WORKERS UNION (AMCU)
obo
O J EYARABANG
Applicants
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
DAVID
PETERSON
N.O.
(AS COMMISSIONER)
Second
Respondent
ASSMANG
LTD (BLACKROCK MINE OPERATIONS)
Third Respondent
Heard:
24 October 2023
Delivered:
18 March 2024
T
his
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 18 March 2024
Summary:
CCMA
arbitration proceedings – review of proceedings, decisions and
awards of commissioners – s 145 of LRA 1995 –
determination of conduct of arbitrator, gross irregularities and
reasonable outcome
Evidence
– evaluation and determination thereof – proper
assessment of evidence and probabilities by arbitrator –
no
basis to interfere with arbitrator’s conclusions on the
evidence, credibility and preferring particular evidence
Dismissal
– breach of rule – principles and evidence considered –
conduct of employee constituting clear contravention
of essential
company rule –constitutes serious misconduct placing employer
at risk and causing financial harm – employee
clearly
obstructing proper search of his bag – conduct of employee
highly unusual – arbitrator drawing proper inference
from such
conduct in finding that employee committed misconduct
Dismissal
– conduct of employee – conduct tantamount to dishonesty
– dismissal justified
Dismissal
– fairness of sanction – issue not placed in dispute in
arbitration – not competent to raise such issue
on review –
dismissal of employee in any event fair and justified if fairness of
sanction is considered
Review
of award – conclusion of arbitrator correct and/or reasonable –
arbitration award upheld
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
The
applicant has brought an application to review and set aside an
arbitration award issued by the second respondent in his capacity
as
an arbitrator of the Commission for Conciliation, Mediation and
Arbitration (CCMA), the first respondent. In terms of this
arbitration award, the second respondent found that the dismissal of
the individual applicant by the third respondent was substantively
fair (procedural fairness was not in issue). The review application
has been brought in terms of section 145 of the Labour Relations
Act
[1]
(the LRA).
[2]
The
applicants were dissatisfied with the finding of the second
respondent that the dismissal of the individual applicant was
substantively
fair. The applicants have therefore applied that the
determination of substantive fairness made by the second respondent
be reviewed
and set aside, and the applicants seek consequential
relief to the effect that a finding be made that the individual
applicant’s
dismissal was substantively unfair, and he be
retrospectively reinstated to the date of his dismissal.
[3]
The
arbitration award of the second respondent is dated 12 July 2021 and
was handed down that same date. The applicants’ review
application was filed on 12 October 2021. However, such review
application, by virtue of the provisions of section 145(1) of the
LRA, had to have been brought within six weeks of 12 July 2021, thus
being on or before 23 August 2021. It follows that the review
application is seven weeks late, and condonation was required.
Condonation
[4]
The
applicants applied for condonation by way of a separate application
for condonation filed within a week of the review application
itself.
The requirements for condonation are trite and are set out in the
well-known judgment of
Melane
v Santam Insurance Co Ltd
[2]
.
These requirements entail a consideration of the length of the delay,
the explanation for the delay, the importance of the case
(prejudice)
and the prospects of success of the applicant. The requirements are
interrelated, and must be holistically considered,
with the proviso
that if there is no explanation for the delay, then the prospects of
success may well become irrelevant.
[3]
[5]
I
will first consider the length of the delay. It is true that a delay
of seven weeks is the kind of delay that would border on
becoming
excessive, and thus required a proper explanation.
[6]
Turning
next to the explanation for the delay, it was explained that the
arbitration award was received on 12 July 2021 in the AMCU
region,
and then sent to the legal department on 30 July 2021. This delay is
explained on the basis that before an award is sent
to the legal
department for its attention, it is first properly assessed in the
region, which does take some time. However, and
when the award was
received by the legal department of AMCU, it acted promptly. It was
finally assessed by a paralegal in such
department, Nomkhosi Khumalo
(Khumalo), and then sent to the applicant’s attorneys a few
days later on 2 August 2021 to provide
a legal opinion as to whether
there were prospects of success in proceeding with a review.
[7]
The
award was sent to Nicole Musiker (Musiker) at the applicants’
attorneys by e-mail on 2 August 2021. She explains that
her practice
is largely made up of AMCU work, and she provides many legal opinions
to AMCU every week. She received many communications
from Khumalo,
and in this case, she received two other instructions from Khumalo on
2 August 2021, however she did not receive
the instruction relating
to this matter. Musiker explained why she did not receive this
communication, which was a service provider
problem. As a result of
miscommunication between Khumalo and Musiker, it was only realised on
22 September 2021 that the instruction
never came to the attention of
Musiker, when Khumalo called Musiker, and it was immediately sent
again that same date.
[8]
Musiker
then immediately attended to the matter, and provided opinion on 23
September 2021. The opinion was forwarded to the region
of AMCU to
consider, and the region then instructed on 27 September 2021 that
the review be pursued. This however also required
the approval of the
national office, which was then provided on 6 October 2021, when
Musiker was instructed to proceed with the
review. The review
application was then filed less than a week later.
[9]
In
my view, the explanation for the period between 2 August and 22
September 2021 is rather thin. Whilst I accept that Musiker was
not
aware of the matter, Khumalo could have done a lot more to follow up
on the matter when no opinion was forthcoming from Musiker.
However,
it cannot be ignored that when receiving the award from the region,
Khumalo at least did act promptly in sending the same
to Musiker for
opinion. Therefore, although one can say the Khumalo’s
attendance to the matter after having sent the same
to Musiker lacked
the necessary diligence, I do not believe it is of a sufficient
magnitude to non-suit the applicants where it
comes to the
explanation provided. And finally, when the miscommunication was
realised, the award was immediately again sent to
Musiker, opinion
provided, approval obtained, and the review filed, all within the
space of about three weeks, which in my view
is prompt and
expeditious action.
[10]
It
is clear to me that at all relevant times, the applicants more or
less actively pursued the matter, and were always intent on
pursuing
it to finality. Was it not for the miscommunication that accounted
for a period of about seven weeks, I am convinced that
the review
application would have been filed in time. Although AMCU would be
open to legitimate criticism for not following up
more actively when
nothing was forthcoming from Musiker, I do not believe this should be
attributed to the individual applicant
in this case. Whilst the
explanation provided is on the edge of being considered unacceptable,
what saves the applicants, in my
view, is the prompt and decisive
action that was taken once the miscommunication was realised. Overall
considered, the applicants
have thus, in my view, provided a proper
explanation for the delay in this instance.
[11]
On
the issue of prejudice, it is undoubtedly so that this consideration
favours the applicants. If condonation is not granted, the
review
application will fail, in an instance where I believe it concerns an
issue that should be finally determined by this Court.
Fairness
dictates that the applicants must be given an opportunity to present
their review case in this regard to this Court. It
may be added that
when this matter was argued in Court before me, condonation was not
strenuously opposed by the third respondent,
and both parties instead
chose to rather focus on the merits of the review.
[12]
Finally,
the issue of prospects of success is interwoven with the merits of
the review application, and should not be considered
separately in
this instance. Condonation is thus essential to enable the merits of
the review application to be properly and fairly
ventilated.
[13]
I
am therefore inclined to grant the applicants’ application for
condonation for the late filing of their review application,
and I
shall now attend to deciding this review application by first setting
out the relevant background facts.
[14]
For
ease of reference, I will refer in this judgment to the applicant
trade union as ‘
AMCU
’
and the individual applicant as ‘
Eyarabang
’.
The
relevant background
[15]
The
third respondent conducts business as a manganese mining operator.
Eyarabang was employed by the third respondent as a support
worker at
the third respondent’s Multi-Skilled and Blast Section at its
mine near Hotazel, in the Northern Cape Province.
Eyarabang commenced
employment with the third respondent on 13 November 2011.
[16]
The
manganese material mined by the third respondent has substantial
value. It is material that carries with it a severe risk of
being
pilfered by employees. For this reason, the third respondent has
strict security measures in place by way of a detailed security
policy. One of the rules contained in the security policy is that all
times, without exception, when an employee leaves the premises,
any
bag carried by the employee must be thoroughly searched by security
guards posted at the shaft exit gate.
[17]
In
this instance, Eyarabang was on night shift duty on 24 / 25 November
2020. It was common cause that he left work at around 01h28
in the
early morning of 25 November 2020, which was well before his shift
ended. The third respondent submitted into evidence undisputed
CCTV
surveillance footage (the footage) of the movements of Eyarabang that
early morning when leaving the workplace with a backpack.
The footage
will be dealt with in more detail later in this judgment.
[18]
What
is however clear from the footage is that Eyarabang is seen entering
the security room at the shaft exit gates at around 01h24
on 25
November 2020, without carrying any backpack, where he loiters for
about a minute simply talking to one of the two security
guards on
duty, before leaving the security room and walking back to the area
of his workplace at the shaft. He is then seen walking
back from the
shaft about a minute later to the security room at the shaft exit
gates, carrying a backpack, which backpack even
on the footage
appearing to be bulky and heavy, considering how it was carried by
Eyarabang.
[19]
According
to Maggy Seikaneng (Saikaneng), one of the security guards on duty in
the security room, and who testified for the third
respondent, when
Eyarabang had earlier came to the security room without a backpack,
he was speaking to her colleague also on duty
trying to establish who
the security guards were that were on duty. This testimony was backed
up by the other security guard on
duty in the security room, being
Isagwe Dithebe (Dithebe), who also testified for the third
respondent. Dithebe testified that
Eyarabang came to the security
room and asked him who was on duty. This appears in line with the
footage, as Eyarabang is seen
speaking to Dithebe before leaving the
room.
[20]
Seikaneng
testified that when Eyarabang returned to the security room with his
backpack, he appeared frightened, and refused to
allow his backpack
to be searched. Again, this testimony arrears in line with the
footage. The footage shows Eyarabang placing
his backpack on a table
as if to allow it to be searched, but the backpack is then never
searched, because Eyarabang removed it
off the table virtually
seconds after placing it on the table and before any security guard
could get near to it. The footage shows
that he then keeps hold of
the backpack and certainly does not present it to any of the two
security guards to open and search.
In fact, the footage showed that
one of the colleagues of Eyarabang, Victor Seleleko (Seleleko)
entered the security room at more
or less the same time as Eyarabang,
and it was clear from the footage that Selekelo also had a bag which
he placed on the table
and he left it there, where it was opened and
thoroughly searched by Dithebe. By way of simple comparison, this
never happened
where it came to the backpack of Eyarabang.
[21]
Next,
Seikaneng specifically testified that Eyarabang refused to allow his
backpack to be searched. This testimony was confirmed
by Dithebe.
Unfortunately, and from the footage, one cannot hear the exchange
between Seikakeng and Eyarabang at this time, but
it is clear from
the footage that there was some kind of debate between them with
Seikaneng gesturing towards the backpack, whilst
Eyarabang is seen
effectively clinging to the backpack.
[22]
According
to the testimony of Seikaneng, and when Eyarabang refused to allow
his backpack to be searched, she then decided to go
to the telephone
in the security room to call the control room to report this refusal.
The footage shows her in fact walking away
from Eyarabang to the back
of the security room. whilst he was still standing at the table
holding the backpack. Whilst she is
walking away, the footage shows
Eyarabang rapidly exiting the security room thought the shaft exit
gate, with the backpack.
[23]
Dithebe
testified that when Eyarabang and Seleleko were rapidly exiting
through the shaft exit gates, he tried to call them back,
but they
refused to co-operate. The footage shows that Dithebe certainly
turned into their direction as they existed the gates.
[24]
What
the next stage of the footage shows is also highly unusual. It shows
Eyarabang and Seleleko rapidly moving away from the shaft
exit gate.
The pace was almost a jog. The distinct impression created is that
they were running away. They are then seen jumping
into a silver-grey
pickup vehicle, which vehicle then in turn rapidly sped away from the
premises and out the gate into the adjacent
public road. Dithebe
confirmed in his testimony that he saw Eyarabang and Seleleko jumping
into this vehicle which then sped away.
[25]
As
to the explanation provided by Eyarabang for all the aforesaid, he
stated that he had permission from his supervisor to leave
work
early. He explained that he went to the security room to check if
someone had left something for him there, being a Tupperware
container. He insisted that his backpack was properly searched and
that he never refused to have it searched. As far as he was
concerned, and when he left the security room and out the shaft exit
gate, everything was fine.
[26]
Eyarabang
was suspended on 28 November 2020. On 18 January 2021, he was
notified to attend a disciplinary hearing to be held on
21 January
2021. He would face two charges in the disciplinary hearing. The
first charge was that he seriously breached security
procedures, in
that he refused to be searched and left in a ‘
runaway
vehicle
’.
The second charge was unauthorised possession of manganese associated
specimen stones, which change was based on the probability
that he
was carrying such items in the backpack he left with on 25 November
2020. The disciplinary hearing then ultimately took
place on 1
February 2021, and concluded on 10 February 2021 when the chairperson
recommended the dismissal of Eyarabang, and he
was then dismissed on
the same date.
[27]
On
9 March 2021, AMCU referred an unfair dismissal dispute to the CCMA
on behalf of Eyarabang. The dispute was unsuccessfully
conciliated on 6 April 2021. The dispute was then referred to
arbitration by AMCU on 7 April 2021.
[28]
The
dispute came before the second respondent as CCMA arbitrator on 26
May and 1 July 2021. In the arbitration before second respondent,
it
was contended that the dismissal of Eyarabang was substantively
unfair. Eyarabang sought fully retrospective reinstatement as
consequential relief. It may be added that the parties also concluded
a pre-arbitration minute on 26 May 2021. As to why the dismissal
of
Eyarabang was substantively unfair, the cause of complaint was that
it could not be proven that Eyarabang committed any misconduct.
Procedural fairness was not in dispute.
[29]
In
his award, the second respondent held that the dismissal of Eyarabang
was substantively fair. The second respondent in essence
rejected all
the defences offered by Eyarabang as being false. The second
respondent considered the footage, and held that it properly
corroborated the version presented by the third respondent through
its two witnesses. The second respondent also preferred the
evidence
of Seikaneng and Dithebe over that of Eyarabang, where the same
differed. He also considered that Eyarabang had failed
to call
crucial witnesses to corroborate his version. These conclusions by
the second respondent prompted the current review application,
which
I will now turn to deciding by first setting out the applicable test
for review.
The
test for review
[30]
The
test for review is trite. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[4]
the
Court held that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’,
and that the threshold test for the reasonableness of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...’
[5]
.
This
means that the award in question is tested against the facts before
the arbitrator to ascertain if it meets the requirement
of
reasonableness.
[6]
In conducting
this test it is always necessary and important for the Court to
enquire into and consider the merits of the matter
and the entire
evidence on record in deciding what is reasonable.
[7]
In
Herholdt
v Nedbank Ltd and Another
[8]
the
Court said:
‘…
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 the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.’
[31]
In
sum, applying the correct review test has a logical chronology.
First, is there a failure or error on the part of the arbitrator.
Second, and where there is such a failure or error, it must be shown
that the outcome arrived at by the arbitrator was unreasonable,
based
on all the evidence and issues before the arbitrator, even if it may
be for different reasons or on different grounds as
those referred to
by the arbitrator.
[9]
Third, it
would only be if the consideration of the evidence and issues before
the arbitrator shows that the outcome arrived at
by the arbitrator
cannot be sustained on any grounds, and the irregularity, failure or
error concerned is the only basis to sustain
the outcome the
arbitrator arrived at, that the review application would succeed.
[10]
Analysis
[32]
At
the outset of the arbitration, the second respondent engaged with the
parties to narrow the issues in dispute. The second respondent
was
presented with a signed pre-arbitration minute dated 26 May 2021,
which minute recorded that the applicants disputed substantive
fairness on the basis that no rule was transgressed by Eyerabang. In
terms of this minute, the issue of the fairness of the sanction
of
dismissal was not disputed. Based on the further engagement between
the second respondent and the parties, it was established
that the
rule in the third respondent that employees and their bags must be
searched upon leaving the premises was in existence,
was valid and
reasonable, that Eyarabang was familiar with this rule, and the rule
had been consistently applied by the third respondent
in the past.
The only issue to be determined was whether the rule had been
contravened by Eyarabang. There was an extensive debate
between
Ponatshego Tau (Tau), the AMCU representative in the arbitration, and
the second respondent, about whether it was disputed
that dismissal
was an appropriate sanction in this case. Although Tau states in the
course of this exchange that he disagrees that
the sanction of
dismissal was appropriate, it turned out that he was challenging the
fairness of the sanction on the basis that
there was no breach of the
rule.
[33]
It
is a trite principle that an issue placed beyond contestation by way
of a pre-arbitration agreement (minute) cannot be raised
as an issue
in the arbitration, as the parties are bound by the limitation of the
issues they have agreed to.
[11]
As specifically said in
Filta-Matix
(
Pty)
Ltd v Freudenberg and Others
:
[12]
'…
If
a party elects to limit the ambit of his case, the election is
usually binding …
’.
The applicants would similarly be bound by the case as articulated in
the opening address at the arbitration.
[13]
In
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman NO and Others
[14]
the Court held:
‘
The
effect of the events at the commencement of the arbitration, as
specifically
set out above, is similar to a
pretrial agreement and has the same
consequences. As there are no
pleadings in CCMA arbitrations, the court has
specifically dealt with the significance of opening
addresses.
…’
[34]
Based
on the content of the pre-arbitration minute, as well as the exchange
between the second respondent and Tau as well as Tau’s
opening
address in the arbitration, the second respondent believed that the
fairness of the sanction of dismissal was not in issue
and need not
be decided by him. In my view, he cannot be faulted for so
concluding. To have such understanding based on the opening
exchanges
is certainly reasonable, especially if considered in the context of
the pre-arbitration minute, which was never sought
to be corrected.
It may be added that no evidence was presented by any of the parties
on the issue of dismissal as an appropriate
sanction, which appears
to also be in line with the above understanding of the issues in
dispute. And finally, the issue was not
raised in the closing
argument presented by Tau. I do not believe this should be a live
issue on review, as it simply was not required
that the second
respondent decide it. As held in
Brodie
v Commission for Conciliation, Mediation and Arbitration and
Others
[15]
:
‘…
Reference
is made to
Albany
Bakeries Ltd v Van Wyk & others
(2005)
26 ILJ 2142 (LAC), where it was held that it was prohibited for a
review applicant to raise on review a case never
placed before the
arbitrator. …’
But
in any event, I shall nonetheless deal with dismissal as an
appropriate sanction in this case, in order to be complete, later
in
this judgment.
[35]
Starting
with the core dispute as to whether Eyabarang breach the rule and
thus committed the misconduct with which he had been
charged, the
second respondent was faced with mutually destructive versions. This
factual dispute had to be decided by the second
respondent in line
with the following principles enunciated in
SFW
Group Ltd and Another v Martell et Cie and Others
[16]
,
where the Court said:
‘…
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities ...’
[36]
Advocate
Cook, representing the applicants, invited me to carefully consider
the footage because, as far as he was concerned, this
footage
actually showed that Eyarabang never refused to have his backpack
searched and that the backpack was in fact searched and
nothing
untoward was found in it. He appeared to accept that if the footage
showed the opposite, the applicants’ case would
actually be
shot. I have accepted this invitation, and unfortunately for Advocate
Cook, I am of the firm view that the footage
indeed shows the
opposite, to the fatal detriment of the applicants’ case.
[37]
But
before I deal with the footage, I would like to start with one
pertinent anomaly leading up to the incident. This anomaly is
that
Eyarabang left work early before the end of his shift. He then
attempted to explain it by saying he had permission from his
supervisor. However, he did not call his supervisor to testify to
confirm his version, an issue the second respondent was very
much
alive to, having referred to it in his award. So why did he leave
early? This must weigh heavily against the applicants when
deciding
which probabilities to accept with regard to the second charge.
[17]
As said in
ABSA
Investment Management Services (Pty) Ltd v Crowhurst
:
[18]
‘
...
it is long established that the failure of a party to call an
available witness may found an adverse inference, the inference
being
that the witness will not support - and may even damage - that
party's case. Compare Zeffertt et al SA Law of Evidence (5
ed) at
128-30.’
[38]
Turning
next to the footage, it is in my view appropriate, considering the
invitation extended by Advocate Cook, to weigh it up
against the
explanation presented by Eyabarang for the events on 25 November
2020. The first part of the explanation was that he
came to the
security office to check if someone had left a Tupperware container
for him. The second part of the explanation is
that he never refused
that his backpack be searched. The third part of the explanation is
that his backpack was searched to the
satisfaction of the security
guards. And finally, he contends that he left as normal and did not
hurry away.
[39]
In
my view, and as the second respondent correctly appreciated, the
footage spoke for itself. And the footage was undisputed evidence.
Having viewed this footage, I am quite satisfied that the explanation
that Eyabarang came to the security office at the shaft exit
gates,
before he left, to check if someone left a Tupperware container for
him, is false. It is quite apparent from the footage
that Eyabarang
is not looking for anything in the security office. He simply loiters
around, speaks shortly to Dithabe, and leaves.
If he came there to
ask if someone left a Tupperware container for him, then surely it
would take a few seconds to just ask the
security guards if there was
something for him, and they could answer yes or no. This is not what
happened. The first part of the
explanation by Eyarabang is thus
entirely improbable and actually lacking in credibility.
[40]
There
is also another probability that works against Eyabarang’s
version as to why he went to the security office earlier.
Why would
he first go to the security office to check if someone left a
Tupperware container for him there, then go back to the
shaft to
collect his belongings, and then go back to the security office to
exit the workplace. Why not simply check if someone
left the
Tupperware container for him at the same time when he is leaving.
What he did makes no sense in such context. And this
is even without
considering the corroborated evidence of Seikaneng and Dithebe about
what Eyabarang was actually doing there earlier.
The second
respondent, based on this, finds ‘…
it
probable that the applicant did not ask for Tupperware at the gate
during his first visit there, but rather to check on the security
strength at the gate …
’.
In my view, the second respondent cannot be faulted for so finding.
It is a rational and reasonable conclusion, fully supported
by the
facts.
[41]
The
next consideration is whether Eyabarang refused that his backpack be
searched. I do not understand how the applicants can say
that the
footage showed that Eyabarang’s backpack was searched. This is
simply not what the footage shows, which footage
is in my view as
clear as day. The footage shows that Eyabarang placed the backpack on
a table as if it was being made available
to be searched. But the
backpack was on the table for a few seconds, and before any of the
security guards could even touch it,
Eyabarang picked it up, and held
it. It is equally clear that the backpack was never searched, and not
one of the security guards
was given an opportunity to even look
inside the backpack. In fact, if one compares the manner in which the
bag of the Seleleka
was searched right next to Eyabarang, it is
patently apparent that Eyabarang’s backpack was not searched.
Add to this footage
the testimony of Seikaneng and Dithebe that
Eyabarang refused that his backpack be searched, there is little
doubt that Eyabarang
indeed deliberately prevented that his backpack
be searched. And finally, Seleleka, who was with Eyabarang at the
security office
at the same time, and who could have corroborated
Eyabarang’s version that he never refused that his backpack be
searched,
was never called as a witness. The second respondent
considered all this evidence in his award, and in my view correctly
concluded
that the version presented by the third respondent that
Eyabarang refused to have his backpack searched was true. His finding
in
this regard is certainly a reasonable conclusion, based on the
facts.
[42]
The
footage also shows that there is some debate between Eyabarang and
Seikaneng whilst he is holding his backpack, and that she
is
gesturing towards his backpack. The fact is that whilst Eyabarang is
still standing at the table holding his backpack, without
it as yet
having been searched, Seikaneng walks away to call the control room.
As soon as she moved away, Eyabarang basically scampers
out the gate.
Dithebe testified that he called Eyabarang back but Eyabarang did not
comply. The footage suggests that Dithebe was
indeed calling
Eyabarang, considering the manner in which he turned to Eyabarang
whist he was exiting the shaft gate.
[43]
It
follows that the conclusion by the second respondent that Eyabarang
committed misconduct as contemplated by the first charge,
being a
serious breach of security procedure in refusing to be searched, is
unassailable on review. It is a finding that is fully
supported by
the evidence and the probabilities, and must be upheld on review.
[44]
This
brings me to the second charge, being that of the unauthorised
possession of manganese material. It is true that Eyabarang
was never
actually found in possession of such materials and his backpack was
never opened to see what was inside. Whether Eyabarang
committed
misconduct as contemplated by this charge was therefore determined on
the inferences that had to be drawn from a number
of pertinent
probabilities. What must be considered is what is called the
‘
inherent
probabilities
’.
[19]
The determination of probabilities entails an inference to be drawn
from the evidence as a whole, on the basis of what the Court
said in
SA
Post Office v De Lacy and Another
[20]
:
‘
The
process of inferential reasoning calls for an evaluation of all the
evidence and not merely selected parts. The inference that
is sought
to be drawn must be 'consistent with all the proved facts. If it is
not, then the inference cannot be drawn' and it must
be the 'more
natural or plausible, conclusion from among several conceivable ones'
when measured against the probabilities.’
[45]
Deciding
a matter on the probabilities entails a complete consideration of all
the evidence, as a whole, in order to decide which
outcome is the
most logical, natural and plausible out of a number of possible
different outcomes.
[21]
As
said in
Bates
and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co
[22]
:
‘
The
process of reasoning by inference frequently includes consideration
of various hypotheses which are open on the evidence and
in civil
cases the selection from them, by balancing probabilities, of that
hypothesis which seems to be the most natural and plausible
(in the
sense of acceptable, credible or suitable).’
[46]
What
are then the inherent probabilities
in
casu
relating to this second charge? The first is that it was common
cause, as confirmed by the second respondent, that Eyarabang had
access to the materials and had his backpack with him at his
workplace, as the footage shows him collecting the backpack from
there before going to the shaft exit gate. Second, the bag was heavy,
on the undisputed facts. How can the bag be so heavy if it
only
contained, as suggested by Eyarabang, a lunch box and water bottle?
And third, the manner in which Eyarabang conducted himself
with
regard to the backpack must be the clincher, as will be next
addressed.
[47]
As
stated above, the evidence that is undeniable (being the footage), as
considered with the testimony of Seikaneng and Dithebe
that must be
accepted, makes it clear that Eyarabang refused / prevented his
backpack from being searched, resulting in it never
being searched.
In this context, it must also once again be considered that Eyarabang
in essence conducted a reconnaissance mission
as to the status of
security before collecting and then seeking to depart with his
backpack. I also cannot help but consider that
Seleleka arriving in
the security room at exactly the same time and his bag then being
searched served as a distraction. However,
and what puts matters over
the top, so to speak, is that as soon as Seikaneng turned her back to
call the control room, Eyarabang
did nothing short of bolting with
the bag out the shaft exit gate. The manner in which he and Seleleka
are seen moving at pace
away from the shaft exit gate is telling. It
certainly shows that there was something untoward.
[48]
The
final consideration is what then happens outside the shaft exit gate.
The footage shows that Eyarabang and Seleleka moving at
a rapid pace
towards what is in my view a waiting vehicle, being a silver-grey
pickup. According to the evidence, this was not
a vehicle used by
Eyarabang to travel to work, and the vehicle was waiting at a point
where vehicles are not normally parked. They
then equally rapidly
climb in the vehicle, and the vehicle departs at speed. The last
piece of footage shows the vehicle exiting
the third respondent’s
premisses at high speed into the public road. There events are surely
quite unusual, and if considered
with all that had gone before,
equally indicates something untoward.
[49]
So,
and in sum, the following probabilities are pertinent where it comes
to establishing the misconduct on the second charge. First,
Eyarabang
leaves work early without explanation. Second, there is the highly
unusual behaviour of Eyabarang attending at the security
room at the
shaft exit gate, which was intended to check security strength,
before he actually collected his backpack to leave
the premises.
Third, it is clear that the backpack is heavy and bulky, and unlikely
to simply contain a lunch box and water bottle
as suggested by
Eyabarang. Fourth, Eyarabang refused that his backpack be searched.
Fifth, it is undeniable that Eyabarang did
all he could to prevent
his bag from being searched, and consequently, it was never searched.
Sixth, the rapid manner in which
Eyarabang existed the shaft gate as
soon as Seikaneng in essence turned her back to call the control
room, was telling. And finally,
the rapid exit and then approach of
Eyarabang to a waiting vehicle, which vehicle then exits the premises
at speed, simply adds
it all together. All this considered, the most
plausible and logical inference to be drawn from all of these facts
must be that
that Eyarabang was in unauthorised possession of
manganese material in his backack, and the second respondent’s
finding to
this effect cannot be faulted. As said in
Cooper
and Another NNO v Merchant Trade Finance Ltd
[23]
:
‘…
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 …’
[50]
This
only leaves the issue of credibility. There can be no doubt that the
second respondent preferred the testimony given by Seikaneng
and
Dithebe over the testimony of Eyarabang. The second respondent in
several instances considered the evidence of Eyarabang to
be false.
It weighed heavily on the second respondent that Eyarabang persisted
in contending that his backpack was searched in
the face of the clear
footage that this was not the case.
Insofar
as the grounds of review raised by the applicants include an attack
on the credibility findings made by the second respondent,
it must be
said that this Court should be loath to interfere with credibility
findings of arbitrators who have the opportunity
to observe
witnesses, gauge their demeanour and listen to their testimony in
real time. A review Court, only seized with a record,
does not have
this important benefit.
As
held in
Standerton
Mills (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
:
[24]
‘
...
Credibility issues are indeed difficult to determine in motion
proceedings such as these. The commissioner is undoubtedly in
a
better position to make a finding on this issue. …’
[51]
It
is my view that this Court should only interfere with credibility
findings made by CCMA arbitrators, if the evidence on the record
before the Court shows that the credibility findings of the
arbitrator are entirely at odds with or completely out of kilter with
the probabilities and all the evidence actually on the record and
when considered as a whole.
[25]
A proper conspectus of the record
in
casu
simply does not establish a basis for interference on these grounds.
I am satisfied that the testimony presented by the second
respondent’s two witnesses were credible and concise, and they
corroborated one another in all respects. Their testimony
was also
corroborated by the undisputed footage. Their testimony emerged
virtually unscathed from their cross examination. Therefore,
little
fault can be found in the second respondent, as a general
proposition, preferring the evidence of the third respondent’s
witnesses. Of course, and once the testimony presented by the third
respondent’s witnesses is to be preferred, the applicants
face
a difficulty, because it would then be proven that Eyarabang refused
to have his backpack searched, which would be fatal to
the
applicants’ case.
[52]
Finally,
some comparable examples in the case law bear reference. In
Harmony
Gold Mining Co Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[26]
the Court dealt with evidence led by two security officers in a CCMA
arbitration on behalf of the employer, to the effect that
an employee
disposed of two tins he had been carrying in a white plastic bag
containing his clothing and personal belongings, when
he was pursued
by the security guards, by throwing the tins over a wall. It was
never established what was contained in these tins,
however the
employee was charged and dismissed for misappropriating gold
material. The Court first reasoned as follows:
[27]
‘
Credibility
findings can be important, but it seems that sometimes the principles
governing when recourse should be had to credibility
findings are
misunderstood. The principles set out in
Stellenbosch
Farmers’ Winery Group Ltd & another v Martell et Cie &
others
should not be
misconstrued to suggest that credibility findings are a necessary
foundation of any judgment in proceedings
where viva voce evidence is
led. On the contrary, what the SCA emphasised in
SFW
is
that credibility findings are a tool to be used when a court is faced
with irreconcilable versions and when the general
evaluation of
probabilities does not yield a result …’
The
Court then concluded:
[28]
‘
Had he
first evaluated the relative probabilities of each version, and the
corroborative evidence of Wewege coupled with the
fact that
Valashiya’s version was untested with either Cossa or Wewege,
the arbitrator would have found it impossible to
reasonably arrive at
the conclusion that Harmony could not prove its case on a
balance of probabilities. Given the nature
of the misconduct, which
is attempted theft, there can be little doubt that dismissal was an
appropriate sanction …’
[53]
The
second respondent had regard to the judgment in
Woolworths
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
[29]
,
considering that he specifically referred to it in his award. The
following
dictum
in that judgment is apposite
in
casu
:
[30]
‘
Indeed,
I find it difficult to comprehend the reasonableness of the grounds
on which the commissioner came to the conclusion that
the explanation
furnished by the employee as to her possession or handling of the
blouse and the belt, in the manner that
she did on those successive
days, was honest and probable. In my view, these explanations by the
employee were highly improbable,
on the papers alone without even the
aid of viewing the DVD footage. A viewer of the DVD footage is
left without any doubt
that the employee's version ought to have been
rejected, not only as highly improbable, but as a glaring and
shameless fabrication.
It is also to be pointed out that the employee
herself conceded that concealing her own belt in the manner that she
did was 'a
stupid thing' for her to have done. Therefore, in my
view, it could hardly be imagined that such conduct lent any credence
to the employee's explanation of events, relating to the belt
incident, to warrant or deserve description of her version as honest,
credible and probable, as the commissioner found to be the case
here.’
[54]
For
all the reasons as summarized above, the second respondent’s
finding that Eyarabang had committed the misconduct as contemplated
by the first and second charges is beyond contestation on review. It
is certainly a finding that resorts well within the bands
of a
reasonable outcome, based on all the evidence properly before him.
His assessment and determination of the evidence is beyond
reproach.
His conclusions must therefore be upheld on review.
[55]
As
touched on above, the applicants have taken issue with the second
respondent not considering whether dismissal was an appropriate
and
fair sanction in this case. Despite what I have said earlier in this
judgment about whether this challenge can be competently
brought, I
shall nonetheless consider whether dismissal was a fair and
appropriate sanction in this case. In my view, and for the
reasons
set out below, this is undoubtedly the case.
[56]
In
this case, and overall considered, the offence committed by Eyarabang
with regard to being in unauthorised possession of manganese
material, was a dishonesty offence. It is an offence categorised
under the heading of ‘
theft
and fraud
’
in the third respondent’s disciplinary code. Even the first
charge of a serious breach of security rules must be considered
in
that context, since the act of refusal as contemplated by this charge
was one of the important enablers of the misconduct perpetrated
as
contemplated by the second charge. So, and in short, what Eyarabang
did in this case was nothing short of dishonest. The fact
of the
matter is that as a general proposition, dishonesty is the kind of
misconduct that justifies the sanction of dismissal as
an appropriate
and fair sanction.
[31]
In
SA
Society of Bank Officials and Another v Standard Bank of SA and
Others
[32]
it was held as follows:
‘
Dishonesty
as
an aspect of misconduct is a generic term embracing all forms of
conduct involving deception. This court in
Nedcor
Bank Ltd v Frank & others
defined
dishonesty
as
a lack of integrity or straightforwardness and, in particular, a
willingness to steal, cheat, lie or act fraudulently. Deceitfulness
can manifest itself in various forms, which include providing false
information, non-disclosure of information, pilfering, theft
and
fraud. The fiduciary duty owed by an employee to the employer
generally renders any dishonest conduct a material breach of
the
employment relationship, thereby justifying summary dismissal. …’
[57]
There
can thus be little doubt that Eyarabang’s misconduct was very
serious. He in effect acted in contravention of his duty
of good
faith towards the third respondent as his employer. The circumstances
surrounding the events in this case smacks of maleficence,
and there
is little doubt that Eyarabang sought to escape responsibility based
on a contrived and false defence and explanation.
What was actually
required of Eyarabang, and in which he failed, is neatly articulated
in
ABSA
Bank Ltd v Naidu
[33]
as follows:
…
.
it followed that she owed a fiduciary responsibility
vis-à-vis
the appellant towards ensuring that, at
all times, she acted and performed her duties in a manner that was in
the best interests
of both the appellant and its clients. …’
[58]
Insofar
as Eyarabang’s length of service (being some 10 years) and
clean disciplinary record is considered, as referred to
by the
applicants in the founding affidavit, it is simply insufficient to
save Eyarabang from being dismissed. This is because
of the nature of
the misconduct he had perpetrated. This was specifically recognized
in
Toyota
SA Motors (Pty) Ltd v Radebe and Others
[34]
,
where the Court said:
‘
Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal …’
[59]
The
applicants also complain that there was no evidence of the break down
in the trust relationship. This was indeed the case
in
casu
,
because of the issue of fairness the sanction of dismissal not
actually being in dispute. But even in the absence of such evidence,
it simply does not matter where it comes to the dismissal of
Eyarabang being considered fair and justified. For some offences,
such as those relating to dishonesty, dismissal may follow without
evidence about a break down in the trust relationship. As was
pertinently said in
Impala
Platinum Ltd v Jansen and Others
[35]
:
‘
Since
Edcon
,
this court has repeatedly stated that where an employee is found
guilty of gross misconduct it is not necessary to lead evidence
pertaining to a breakdown in the trust relationship as it cannot be
expected of an employer to retain a delinquent employee in
its
employ.’
And
in
Woolworths
(Pty) Ltd v Mabija and Others
[36]
,
the Court held:
‘
The
fact that the employer did not lead evidence as to the breakdown of
the trust relationship does not necessarily mean that the
conduct of
the employee, regardless of its obvious gross seriousness or
dishonesty, cannot be visited with a dismissal without
any evidence
as to the impact of the misconduct. In some cases, the more
outstandingly bad conduct of an employee would warrant
an inference
that the trust relationship has been destroyed. …’
[60]
In
these circumstances, direct evidence about the breakdown in the trust
relationship is not necessary to substantiate dismissal
as a fair
sanction. The misconduct committed by Eyarabang is the kind of
misconduct that justified dismissal, even in the absence
of evidence
concerning the trust relationship. The Court in
Malaka
v General Public Service Sectoral Bargaining Council and Others
[37]
appositely described the position as follows
:
‘
The
evidence reveals that the appellant’s dishonest conduct
rendered continued employment intolerable and incapable of
restitution. Conduct,
such as we have here, is incompatible with
the trust and confidence necessary for the continuation of the
employment relationship.
The Department of Justice was entitled, in
the circumstances, to end the employment relationship …’
[61]
In
my view, the following
dictum
in
Burton
and Others v Member of Executive Council, Department of Health,
Eastern Cape Province and Others
[38]
is equally applicable
in
casu
:
‘
While
the long-service and disciplinary record of the appellants were
relevant considerations, the misconduct committed, and the
harm which
resulted from it, was of a serious nature and underpinned by
dishonesty on the part of senior public sector employees.
In
Naidu
this
court recognised that ‘[g]enerally, a sanction of dismissal is
justifiable and, indeed, warranted where the dishonesty
involved is
of a gross nature’. …’
[62]
In
the end, it was simply too risky for the third respondent to continue
with employing Eyarabang, considering all that transpired
in this
case. It was appropriate, in the context of risk management, to bring
the employment relationship to an end. As said in
De
Beers Consolidated Mines Ltd v Commission for Conciliation
,
Mediation
and Arbitration and Others
[39]
:
‘
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational
response to risk management in the particular enterprise. …’
Conclusion
[63]
Therefore,
based on all the reasons set out above, I conclude that the second
respondent’s arbitration award is simply not
reviewable. I am
satisfied that the second respondent’s findings of facts are
properly supported by the evidence before him,
in particular the
uncontested footage. His views concerning Eyarabang and his conduct
are justified. Insofar as the issue of the
outcome arrived at by the
second respondent may be considered on the basis of it being
reasonable or unreasonable, there is in
my view no doubt that it
would comfortably resort within the bands of reasonableness as
required, in order to be sustainable on
review. The applicants’
review application thus falls to be dismissed.
Costs
[64]
This
then leaves only the issue of costs. In terms of the provisions of
section 162(1) of the LRA, I have a wide discretion where
it comes to
the issue of costs. I am aware of what the Constitutional Court said
with regard to costs in employment disputes as
expressed
in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[40]
.
In exercising this judicial discretion, the same Court recently
re-affirmed the principle set in
Zungu
supra
and stated that ‘
when
making an adverse costs order in a labour matter, a presiding officer
is required to consider the principle of fairness and
have due regard
to the conduct of the parties.
’
[41]
[65]
I
believe that the applicants should not have pursued this case and I
was tempted to make a costs award against the applicants.
However, I
do not believe that the applicants acted in an entirely unreasonable
and frivolous manner in pursuing this case. I also
consider that the
case was prosecuted in a proper manner by the applicants. These
factors, coupled with an overall consideration
of fairness to both
parties, leaves me convinced that it would be appropriate and fair to
make no order as to costs.
[66]
In
the premises, the following order is made:
Order
1.
The
late filing of the applicants’ review application is condoned.
2.
The
applicants’ review application is dismissed.
3.
There
is no order as to costs.
S.
Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants:
Advocate A Cook
Instructed
by:
LDA Inc Attorneys
For
the Third Respondent:
Advocate M Van As
Instructed
by:
Cliffe Dekker Hofmeyr Inc Attorneys
[1]
Act
66 of 1995 (as amended).
[2]
1962
(4) SA 531
(A) at 532C-E. See also, specifically relating to
applications for condonation in the case of the late filing of a
review application,
A
Hardrodt
(SA) (Pty) Ltd v Behardien and Others
(2002)
23 ILJ 1229 (LAC) at para 4.
[3]
See
Moila
v Shai No and Others
(2007)
28 ILJ 1028 (LAC) at para 34;
Colett
v Commission for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 1948 (LAC)
at
para 38.
[4]
(2007)
28 ILJ 2405 (CC).
[5]
Id
at para 110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[6]
See
Duncanmec
(Pty) Ltd v Gaylard NO and Others
(2018)
39 ILJ 2633 (CC) at paras 43.
[7]
Id at para 41.
[8]
(2013)
34
ILJ
2795 (SCA)
at para 25. See also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14;
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[9]
Fidelity
Cash Management Service (supra)
at
para 102.
[10]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016)
37 ILJ 116 (LAC) at para 32;
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
(2015)
36 ILJ 1453 (LAC) at para 12.
[11]
See
GE
Security (Africa) v Airey and Others
(2011)
32
ILJ
2078 (LAC) at para 20 – 21.
[12]
[1997] ZASCA 110
;
1998
(1) SA 606
(SCA) at 614B-D. See also
National
Union of Metalworkers of SA and Others v Driveline Technologies
(Pty) Ltd and Another
(2000)
21
ILJ
142
(LAC) at paras 16 and 83.
[13]
See
Fidelity
Cash Management Service
(
supra
)
at
para 23.
[14]
(2013)
34 ILJ 2347 (LC) at para 62. See also para 61 of the judgment.
[15]
(2013)
34 ILJ 608 (LC) at para 33. See also
Albany
Bakeries Ltd v Van Wyk and Others
(2005)
26 ILJ 2142 (LAC) at para 25;
Uthukela
District Municipality v Khoza and Others
[2015] ZALCD 19 (20 March 2015) at paras 32 – 33.
[16]
2003
(1) SA 11
(SCA) at para 5. See also
Blitz
Printers
v Commission for Conciliation, Mediation and Arbitration and Others
[
2015]
JOL 33126
(LC)
at para 37;
Kok
v Commission for Conciliation, Mediation and Arbitration and Others
[2015]
JOL 32888
(LC);
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2010)
31
ILJ
452 (LC)
at
para 20
[17]
See
General
Food Industries Ltd v Food and Allied Workers Union
(2004)
25 ILJ 1260 (LAC) at para 46;
Simelane
and Others v Letamo Estate
(2007)
28 ILJ 2053 (LC) at paras 22 and 23;
United
People’s Union of SA on behalf of Khumalo v Maxiprest Tyres
(Pty) Ltd
(2009)
30 ILJ 1379 (LC) at para 29.
[18]
(2006)
27 ILJ 107 (LAC) at para 14.
[19]
See
SFW
Group
(
supra
)
at para 5;
National
Union of Mineworkers
(Id
fn 14) at para 34;
Mphigalale
v Safety and Security Sectoral Bargaining Council and Others
(2012) 33 ILJ 1464 (LC) at para 12;
Sasol
Mining
(
Pty
)
Ltd
v Ngqeleni NO and others
Sasol
Mining
(2011)
32 ILJ 723 (LC)
at
para 8.
[20]
2009 (5) SA 255
(SCA) at para 35.
See
also
Govan
v Skidmore
1952
(1) SA 732
(N) at 734A-C;
Food
and Allied Workers Union and Others v Amalgamated Beverage
Industries Ltd
(1994)
15 ILJ 1057 (LAC) at 1064C-E;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2013)
34 ILJ 945 (LC) at para 37.
[21]
See: S
FW
Group
(
supra
)
at
para 5;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2013)
34 ILJ 945 (LC)
at
para 34;
Mphigalale
v Safety and Security Sectoral Bargaining Council and Others
(2012) 33 ILJ 1464 (LC) at para 12;
Sasol
Mining
(
Pty
)
Ltd
v Ngqeleni NO and Others
(2011)
32 ILJ 723 (LC) at para 8.
[22]
1985
(3) SA 916
(A) at 939I-J.
[23]
2000
(3) SA 1009 (SCA)
at
para 7. See also
Minister
of Police v Safety and Security Sectoral Bargaining Council and
Others
(2023) 44 ILJ 1017 (LAC) at para 16.
[24]
(2012)
33 ILJ 485 (LC) at para 18.
[25]
See
National
Union of Mineworkers
(
supra
)
at para 31;
Truworths
Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
(2009) 30 ILJ 677 (LC) at para 25;
Moodley
v Illovo Gledhow and Others
(2004)
25
ILJ
1462 (LC)
at
para 22;
Kgoadi
v Commission for Conciliation, Mediation and Arbitration and Others
[2014]
JOL 31908
(LC) at paras 51 – 52.
[26]
(2018)
39 ILJ 1059 (LC).
[27]
Id
at para 13.
[28]
Id
at para 16.
[29]
(2011)
32 ILJ 2455 (LAC).
[30]
Id
at para 35.
[31]
Toyota
SA Motors (Pty) Ltd v Radebe and Others
(2000)
21
ILJ
340
(LAC) at para 15;
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31
ILJ
901
(LAC) at paras 35 and 37;
Absa
Bank Ltd v
Naidu
and
Others
(2015) 36 ILJ 602 (LAC) at para 52.
[32]
(2022)
43 ILJ 1794 (LAC) at para 17. See also
Continental
Oil Mills (Pty) Ltd v Singh NO and Others
(2013)
34 ILJ 2573 (LC) 29 – 34;
Consani
Engineering (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004) 25 ILJ 1707 (LC) at para 23.
[33]
[2015]
1 BLLR 1
(LAC) at paras 54.
[34]
(2000)
21 ILJ 340
(LAC) at para 15. See also
Schwartz
v Sasol Polymers and Others
(2017)
38 ILJ 915 (LAC) at para 26;
G4S
Secure
Solutions
(SA) (Pty) Ltd v Ruggiero NO and Others
(2017)
38 ILJ 881 (LAC)
at
para 28;
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
(2008)
29 ILJ 1180
(LC) at para 42.
[35]
(2017)
38 ILJ 896 (LAC) at para 13. See also
Schwartz
(
supra
)
at para 30;
G4S
Secure Solutions
(
supra
)
at para 30;
Anglo
Platinum
(
supra
)
at para 19;
Rustenburg
Platinum Mines Ltd v United Association of SA on behalf of Pietersen
and Others
(2018) 39 ILJ 1330 (LC) at para 59.
[36]
(2016)
37
ILJ
1380 (LAC)
at
para 21. See also
Bidserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2017) 38 ILJ 860 (LAC) at paras 34 – 35.
[37]
(2020)
41 ILJ 2783 (LAC) at para 34.
[38]
(2022)
43 ILJ 2284 (LAC) at para 75. See also
Woolworths
(Pty)
Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
(2022) 43 ILJ 839 (LAC) at para 13.
[39]
(2000)
21 ILJ 1051 (LAC) at para 22.
[40]
(2018)
39 ILJ 523 (CC) at para 25.
[41]
Long
v South African Breweries (Pty) Ltd and Others
(2019)
40 ILJ 965 (CC)
at
para 30.