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[2024] ZALCJHB 225
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City of Johannesburg v Ramushowana N.O and Others (JR 1631/20) [2024] ZALCJHB 225 (7 May 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 1631/20
In
the matter between:
CITY
OF JOHANNESBURG
Applicant
And
COMMISSIONER
S RAMUSHOWANA N.O First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
BETHANI
MARIA
CHALA
Third Respondent
Heard:
31 October 2023
Delivered:
This judgment was handed down electronically by circulation to the
parties by email and release to SAFLII. The date
of hand down is
deemed to be 7 May 2024.
Summary:
CCMA arbitration
proceedings – Review of proceedings, decisions and awards of
arbitrators – Test for review –
Section 145 of
Labour
Relations Act, 1995
– application of review test set out.
CCMA
arbitration proceedings – assessment of evidence by arbitrator
–arbitrator unreasonably and irrationally considering
and
determining evidence – case for review made out – award
set aside on review.
JUDGMENT
MAHALELO
AJ
Introduction
[1]
This
is an application in terms of section 145 of the Labor Relations
Act
[1]
to review and set aside
an award of the first respondent dated 12 September 2020 under the
auspices of the second respondent in
case number JMD111904.
[2]
The
arbitrator found that the dismissal of the third respondent was
substantively unfair. The arbitrator ordered the applicant to
reinstate the third respondent to her original position on the same
terms and conditions which existed before her dismissal by
allowing
her to report for duty on 1 October 2019 and further ordered her
backpay in the amount of R39 600.
[3]
Aggrieved
by the award, the applicant launched this review application to set
aside the award and for the Court to find that the
third respondent’s
dismissal was fair, alternatively to remit the matter back to the
second respondent for hearing afresh
before an arbitrator other than
the first respondent.
[4]
The
applicant impugns the award on grounds that the commissioner ignored
the material evidence that was before him and consequently
rendered
an unreasonable decision. The application is opposed by the third
respondent.
Background
facts
[5]
The third
respondent was
previously
engaged by the applicant as a trainee in its Metropolitan Police
Department (JMPD). During 2018, the applicant received
a complaint
that the third respondent had been soliciting bribes from people to
provide them with opportunities to become trainees
at the JMPD. The
scheme that was reported to the applicant was that the applicant, in
conjunction with somebody called Katleho
allegedly from JMPD's Human
Resource Department, could, on payment of a fee, arrange for the
person paying the fee to be engaged
as a trainee. A Ms Khubeka
(Zanele) is alleged to have paid the applicant in this regard. Ms
Evelyn Kalimoni(Mmabatho) is alleged
to have been approached in this
regard but she had not paid any money.
[6]
Pursuant
to an investigation conducted by JMPD, the third respondent was
charged with misconduct in that she had “
acted
unlawfully and intentionally in that you asked or demanded or
solicited”
money in exchange for a job opportunity. At a properly constituted
disciplinary hearing, the third respondent was found guilty
of
misconduct and was dismissed on 19 July 2019.
[7]
The third
respondent thereafter referred an unfair dismissal dispute to the
second respondent. Conciliation failed and the matter
was referred to
arbitration. Arbitration came before the commissioner on 26 August
2020. At the arbitration,
Mr
Motheni a councillor, testified that he was approached by Herbert,
the husband of Ms Kubeka in connection with the bribery money
which
Ms Kubeka had allegedly given to the third respondent. Herbert wanted
a refund of the money to his wife. He approached Mr
Kgaswane, a
senior member, who reported to him that Katleho was unknown at JMPD.
He then spoke to the third respondent about the
allegations and
requested her to meet with Ms Kubeka. The third respondent admitted
that she owed Ms Kubeka money which she had
borrowed from her. She
agreed to refund the money in monthly instalments of R1000. After
some time, he was approached by Ms Kubeka
who complained to him that
the third respondent had not paid all her money as agreed. He advised
her to go the legal route.
[8]
Ms
Kubeka testified that she had met with the third respondent who told
her about a learnership job at JMPD. The third respondent
told her
that she would have to pay R5000 as she had paid the same amount to
get the learnership. She informed her that the amount
was for fees,
uniform, fingerprints etc. and that she would speak to Katleho, the
HR official, who deals with the employment of
learnerships at JMPD.
Ms Khubeka had become interested in the learnership as she had wanted
to be a traffic officer for many years
with no success. She received
a call from a private number, from a person who called herself
Katleho, wanting to know if she was
serious about the learnership.
Katleho urged her to pay the money or else the spaces would be
filled. She gave the third respondent
a cash amount of R3000. She
further deposited R2050 into the third respondent’s bank
account. The extra R50 was for banking
fees. After the payment,
Katleho called her again assuring her that she got the position and
requested her to be patient as their
boss was monitoring them. The
third respondent then approached Mmabatho, her colleague, and told
her about the same learnership
job offer at JMPD. The third
respondent told Mmabatho that she needed to pay R6000 for her to get
in at JMPD. Ms Kubeka was shocked
to hear that the price had changed
in just a month. She kept on making enquiries from the third
respondent about the learnership
and was told to be patient. At some
stage, the third respondent collected documents from her for the
promised learnership job.
[9]
When
she did not get positive feedback from the third respondent, she
asked her to pay her money back. In Mr Motheni’s presence,
the
third respondent agreed to pay Ms Kubeka back in monthly instalments
of R1000. The third respondent gave Mr Motheni the first
R1000 to
give to her. Thereafter, the third respondent further paid her back a
portion of the money, which all amounted to R2000
but refused to pay
the outstanding balance. A day before the arbitration, the third
respondent’s brother settled the balance
which the third
respondent still owed to Ms Kubeka. Ms Kubeka confirmed that she and
the third respondent knew each other and that
she used to lend the
third respondent small amounts of money (far less than R5000) for
transport. Ms Kubeka had lent the third
respondent an amount of R600
and could not have done the same with R5000 because she knew that the
third respondent would struggle
to pay her back as she was not
earning much per month. The third respondent still owed her R200 from
the R600 that she had borrowed
from Ms Kubeka. Ms Kubeka had to take
a loan from ABSA Bank in order to give the third respondent the
R5000.
[10]
The
third respondent testified that she knew Ms Kubeka from primary
school. She used to borrow money for transport and things from
her.
She met her and they spoke about the learnership at JMPD, and she got
interested as she stated that she had been trying to
get through.
They became very close and Ms Kubeka would always drive to her house
as they stayed at the same location. Ms Kubeka
would assist her with
things and money. She borrowed money from her which reached more than
R5000.
[11]
She
was doing a course on NRTA and she decided to keep her distance from
Ms Kubeka because she wanted to concentrate on her studies
as Ms
Kubeka was drinking too much. Ms Kubeka started threatening her that
she should pay back the money she owed her. One day,
Mr Motheni came
to her house to inform her about the money she owed Ms Kubeka and she
agreed to pay her in monthly instalments.
She disputed that she took
money from Ms Kubeka in exchange for a learnership job at the JMPD.
She stated that she borrowed small
amounts from her until it became
R5000. She paid back about R2000 and she was informed that her
brother paid the balance to Ms
Kubeka but she was not involved. She
does not know any person by the name of Katleho. She feels that she
was unfairly dismissed
as she did not solicit a bribe from Ms Kubeka
for a learnership job.
[12]
On 12
September 2021, the commissioner handed down the award which is the
subject of this review application.
The
award
[13]
The
arbitrator summarized the evidence and recorded the issue that he was
required to
decide
as
whether
or not the third respondent had committed any act of misconduct, and
whether the dismissal was the appropriate sanction.
[14]
The
arbitrator
referred
to the first witness of the applicant, Mr Motheni, as having been a
hostile witness. He stated that Mr Motheni testified
that he was
resolving the money issue between Ms Kubeka and the third respondent,
not money for the bribe. He said that this differed
from the
statement which Mr Motheni initially made. The arbitrator found that
the
applicant had failed to prove misconduct on the part of the third
respondent. His reasoning appears from paragraph 18 of the
award as
follows:
‘
where
the commissioner is faced with two conflicting versions, a finding on
a credibility of a witness should be made. The respondent
in this
case failed to carry evidentially burden, in that there was no proof
that the money given to the applicant was for bribe
or the money
owed. There were no deposit slips provided. The evidence of the
respondent was not corroborated as Mmabatho was not
called to give
her version. It is absurd that the complainant could pay such money
to a person who is still a trainee, not an officer.
On the other
hand, the applicants (sic) version was consistent, credible and the
applicant was a reliable witness and did not contradict
herself in
the evidence. The mere fact that other (sic) witness who was part of
the disciplinary hearing denied to testify on the
fact that the first
witness was unwilling to take an oath attracts some concern.’
The
Applicant’s case
[15]
The
applicants
contended
that the award was reviewable on a variety of grounds namely:
a)
The
commissioner failed to take into account material aspects of
evidence;
b)
The
commissioner was influenced by his finding that no deposit slips were
provided;
c)
The
commissioner made no attempt to analyse the evidence placed before
him and simply assumed, without foundation, that the applicant
had
not discharged the onus of proof;
d)
The
commissioner failed to appreciate the evidential weight that should
have been attached to the incriminating response of the
third
respondent;
e)
The
commissioner was entitled to consider inconsistencies in the
affidavit of Motheni and his testimony at arbitration proceedings;
and
f)
Alternatively,
the commissioner committed an irregularity in the conduct of the
proceedings by failing to extend a helping hand
to the applicant’s
representative who was simply a Labour Relations official and not
well versed in arbitration procedures.
[16]
The
applicant contended that the commissioner failed to properly analyse
the evidence presented before him in that he failed to
take into
account, let
alone
properly consider, that
the scheme of which the third respondent was accused was not that the
third respondent, as a trainee, could
provide job opportunities at
JMPD but that she had connections with people that could arrange it.
Accordingly, there is nothing
upset in the person soliciting the
bribe as they are not the person that arranges the gratuity. Further
that the commissioner was
correct to be suspect of the credibility of
Mr Motheni and his evidence should have been rejected as unreliable.
Ms Kubeka’s
evidence was required to be judged for its own
credibility. The applicant furthermore contended that, because it was
common cause
that money had been paid by Ms Kubeka to the third
respondent, there was no relevance as to whether deposit slips had
been provided
to prove the payment as the payment was not in dispute.
According to the applicant, the commissioner took into account
irrelevant
evidence by questioning the presence of the deposit slips.
The applicant submitted that the commissioner once more failed to
properly
analyse the evidence before him because he did not even
consider that it was strange that the last amount owing to Ms Kubeka
was
repaid a day before the arbitration. According to the applicant,
the commissioner failed to appreciate the evidential weight that
should have been attached to the incriminating response of the third
respondent because he failed to consider that, at the disciplinary
hearing, the third respondent’s version was that she had
received only a total amount of R2200 from Ms Kubeka and that this
amount had already been repaid before the disciplinary hearing. The
applicant therefore contended that the commissioner failed
to apply
his mind to all the relevant factors when resolving conflicting
versions before him, thereby committing a gross irregularity
and the
award he rendered is unreasonable.
[17]
Alternatively,
the commissioner committed an irregularity in the conduct of the
proceedings by failing to extend a helping hand
to the applicant’s
representative who was simply a Labour Relations official and not
well-versed in arbitration procedures.
The
third respondent’s case
[18]
The
third respondent’s
contention is that the arbitrator was correct in his findings, and
based on the material before him, he
made a decision that a
reasonable commissioner could have reached.
[19]
A
ccording
to the third respondent, the charge against her is that on 25 April
2018, she acted unlawfully and intentionally by asking
or demanding
R5000 from Ms Kubeka in exchange for a job opportunity as a JMPD
intended to recruit and not that she had connections
with people who
could arrange the job for Ms Kubeka. Therefore there is no proof that
she had someone who could arrange the job
for Ms Kubeka as Katleho
was unknown at JMPD. Furthermore, Ms Kubeka had created a fictitious
person by the name of Katleho to
create the impression that a third
person who was supposed to provide the job was involved.
[20]
A
ccording
to the third respondent, the contention that the commissioner failed
to reject the evidence of Mr Motheni in order to implicate
the
credibility of Ms Kubeka is curious because the applicant failed, in
its papers, to lay the basis for why the evidence of Mr
Motheni
should have been rejected by the commissioner or to have him declared
a hostile witness. There is no justifiable reason
for the
commissioner to have rejected Mr Motheni’s evidence as his
evidence and that of Ms Kubeka are immensely interwoven,
particularly
with regard to the events that led to the report by Herbert and the
investigation carried out by Mr Motheni. Such
evidence cannot be
separated.
[21]
In
the circumstances, the third respondent submitted that this review
application stands to be
dismissed
with
costs.
Legal
principles, evaluation and analysis
[22]
The review
test is comprehensively spelt out in
Sidumo
and another v Rustenburg Platinum Mines and others
[2]
and subsequently expounded in various
dicta
of both the Supreme Court of Appeal (SCA) and the Labour Appeal Court
(LAC).
[3]
Pertinently, in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[4]
,
LAC underscored the fact that:
‘
[15] …the Labour Court’s
approach to the review of the Commissioner's award transcends the
mere identification of process
related errors to reveal the
Commissioner’s basic failure to apply his mind to
considerations that were material to the outcome
of the dispute,
resulting in a misconceived hearing or a decision which no reasonable
decision maker could reach on all the evidence
that was before him or
her.
[16] Significantly, as was held by the
SCA in
Herholdt
and endorsed recently by this Court in
Head
of the Department of Education v Jonas Mohale Mofokeng and Others
,
“for a defect in the conduct of the proceedings to amount to a
gross irregularity as contemplated by s 145(2)(a)(ii) of
the LRA, the
arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result”.
Thus, as recognised in
Mofokeng
, it is not only the unreasonableness of
the outcome of an arbitrator's award which is subject to scrutiny,
the arbitrator “must
not misconceive the inquiry or undertake
the inquiry in a misconceived manner”, as this would not lead
to a fair trial of
the issues.
In further approval of
Herholdt
,
this Court in
Mofokeng
stated that:
“
Mere errors of fact or law may
not be enough to vitiate the award. Something more is required. To
repeat: flaws in the reasoning
of the arbitrator, evidence in the
failure to apply the mind, reliance on irrelevant considerations or
the ignoring of material
factors etc. must be assessed with the
purpose of establishing whether the arbitrator has undertaken the
wrong inquiry, undertaken
the inquiry in the wrong manner or arrived
at an unreasonable result.
Lapses
in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her”
.’
(Emphasis added and footnotes omitted)
[23]
Based on
the aforesaid, the first enquiry is to establish if there is a
failure or error on the part of the arbitrator. Secondly,
where there
is such a failure or error, it must be shown that the outcome arrived
at by the arbitrator was unreasonable as a result.
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. As said in
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
[5]
:
‘…
. the reviewing court
must consider the totality of evidence with a view to determining
whether the result is capable of justification.
Unless the evidence
viewed as a whole causes the result to be unreasonable, errors of
fact and the like are of no consequence and
do not serve as a basis
for a review.’
[24]
The
applicant challenged the commissioner's reasoning for finding the
dismissal an inappropriate sanction in almost all respects.
It
contends that the commissioner failed to take into account material
aspect of the evidence that was before him in that he adopted
an
armchair approach and made no attempt to question why a person in Ms
Kubeka’s financial position would pay out a considerable
amount
of money to assist the third respondent with food and her sick
mother. According to the applicant, it could hardly have
been
suggested that Ms Kubeka was a person of means. She was aspiring for
a position that only paid a stipend of R3600 per month.
It was not
disputed that she would lend the third respondent small amounts of
money to attend classes and buy food which the third
despondent would
pay back at the month’s end. According to the applicant, this
is a far cry from the ludicrous suggestion
that Ms Kubeka would be
willing to lend the third respondent R5000 for no rhyme or reason. At
no stage did the third respondent
explain why it was necessary for
her to borrow such a big amount before the end of April 2018.
[25]
There
is merit in the applicant’s contentions. I find it hard to
believe that Ms Kubeka
would
have
gone out to make a loan of R5000 just to lend the money to the third
respondent. In all probability, Ms Kubeka knew that if
it was a
‘goodwill’ loan, she would never recover it from an
indigent third respondent who was only earning R3600 per
month and
who at times could not even afford transport costs to attend classes.
[26]
Ms
Kubeka took a loan of R5000 from ABSA Bank which clearly indicated
that she did not have funds of her own. Moreover, she had
to pay a
substantial interest on the loan which put her further out of pocket.
If it was money lent to the third respondent, there
were no repayment
terms agreed to. There wasn’t even any agreement regarding the
interest to be charged on the R5000. The
repayment agreement came
into existence only after Mr Moteni’s intervention. Even then,
the third respondent did not keep
to
the
agreement.
Given
the circumstances of this matter, the material that was presented
before the commissioner and the disputed facts raised therein,
there
was no basis for the commissioner to conclude that the third
respondent had demonstrated that she had not solicited the amount
of
R5000 from Ms Kubeka for a learnership job.
[27]
It is
improbable that Ms Kubeka would have borrowed the third respondent
small amounts of money until it reached more than R5000
as the third
respondent would want the Court to believe, taking into account the
financial position of Ms Kubeka. She had to make
a loan of R5000
because she was desperate to get the learnership job. On the whole,
the commissioner failed to have regard to the
probabilities in that
he failed to consider that as soon as Ms Kubeka started demanding her
money for a bribe back from the third
respondent, she started to
distance herself from Ms Kubeka because she could not pay her back.
The commissioner also failed to
consider that the third respondent’s
brother paid the outstanding money that the third respondent owed Ms
Kubeka a day before
the arbitration, and it cannot be correct that
the third respondent was not involved. All the probabilities are
stacked against
the third respondent.
[28]
Consequently,
the Commissioner did not properly apply his mind to the evidence and
the probabilities and in the end, his decision
is one that another
decision-maker could not reasonably have arrived at.
[29]
In the
result, the review stands to succeed.
Costs
[30]
In this
case, and considering the dictates of fairness to both parties, I can
see no legitimate reason to depart from the general
principle that
costs do not follow the result in employment disputes before this
Court. Therefore, I consider it to be in the interest
of fairness
that no costs order should be made.
[31]
In the
premises, the following order is made:
Order
1.
The award
of the first respondent dated 12 September 2020 under case number JMD
111904 (Award) to the effect that dismissal of the
third respondent
by the applicant is substantively unfair, is reviewed and set aside,
and substituted with an award that the dismissal
was substantively
fair.
2.
There is no
order as to costs.
M
B Mahalelo
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. Hutchinson
Instructed
by:
Moodie & Robertson
For
the Third Respondent:
Adv B K Hlangwane
[1]
Act
66 of 1995, as amended.
[2]
[2007] ZACC 22
;
(2007)
28 ILJ 2405 (CC) at paras 78 - 79.
[3]
See:
Head
of the Department of Education v Mofokeng
[2014] ZALAC 50
;
[2015] 1 BLLR 50
(LAC);
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[2013]
ZALAC 28
;
[2014] 1 BLLR 20
(LAC);
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] ZASCA 97; [2013] 11 BLLR 1074 (SCA).
[4]
[2014] ZALAC 81
; (2015) 36 ILJ 1511 (LAC) at paras 15 - 16.
[5]
[2014] ZALAC 82
;
(2015)
36 ILJ 1453 (LAC) at para 12.