Suncrush v Nkosi (DA39/97) [1998] ZALAC 3 (4 March 1998)

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[1998] ZALAC 3
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Suncrush v Nkosi (DA39/97) [1998] ZALAC 3 (4 March 1998)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT DURBAN)
CASE NO: DA 39\97
IN THE MATTER BETWEEN:
SUNCRUSH LIMITED APPELLANT
AND
SICELO BRIAN NKOSI RESPONDENT
______________________________________________________________________________
JUDGMENT
______________________________________________________________________________
KROON JA
:
[1] During September 1994 a large section of the appellant company’s
workforce engaged in a strike. Towards the end of October
the
striking workers returned to work, but pursuant to their refusal to
work overtime under a certain supervisor, the company excluded
the
workers from its premises.
[2] The striking workers blockaded the company’s premises in order
to prevent non-striking workers from working. The company increased
its security arrangements by enlisting the services of a firm styled
Green Force Security.
[3] The atmosphere was tense and the relationship between the company
and the workers excluded was strained.
[4] On 28 October a rumour circulating amongst the striking workers
came to the ears of the respondent, one of the strikers. It
was to
the effect that Mr Gould, the general manager of the company, and Mr
Mkhize, a supervisor who did not participate in the
strike, had paid
Green Force Security the sum of R7 000,00 to kill the shop stewards
at the plant and a number of the other employees.
In the court
a
quo
the respondent was unable to recall from which other workers
he had heard the rumour.
[5] The respondent approached Mr Ngwenya, a shop steward, in
connection with the rumour. The latter advised him that the source
of the rumour was a particular person, but Ngwenya refused to
disclose the name of the person.
[6] A series of meetings were held with the striking workers to
discuss what should be done concerning the fact of the rumour.
The
upshot was that Ngwenya and the respondent were mandated to report
the matter to the police.
[7] Ngwenya and the respondent duly attended on the police on 1
November and conveyed the existence of the rumour to them. Ngwenya
did not, however, reveal the name of his informant to the police.
According to the respondent he regarded the threat to workers’
lives as serious and felt that his life was in danger.
[8] On 2 November, the day on which the shut-out was terminated and
the striking employees returned to work, Ngwenya and the respondent
approached Gould and handed him a piece of paper received from the
police. It would seem that this paper recorded that a report
had
been made to the police. Gould was advised simply that the workers’
lives had been endangered and that they, i.e., Ngwenya
and the
respondent, had gone to the police. Gould was not advised that he
or Mkhize were implicated in the matter.
[9] A few days later Gould and Mkhize were contacted by the police
and advised of the allegation against them and that a docket
relating to a charge of conspiracy to commit murder had been opened.
Both of them made statements denying the charge.
[10] On 12 November Gould addressed a letter to the shop stewards at
the company’s premises reading as follows:
“I wish to bring the following important points to your attention;
(i) There is a Grievance procedure within Suncrush.
(ii) I have been informed by you and by the Police, that a docket
was opened against me on 1 November 1994.
(iii) The contents of the allegation [constitute] Malicious
Prosecution.
(iv) As a member of the Management, I wish to inform you that we
reserve all of our Rights.
(v) We will challenge this Malicious Prosecution.
(vi) If found to be malicious, you are given notice that management
will consider our relationship irreparably damaged.”
A copy thereof was sent to the relevant trade union. A notice to
the same effect, also addressed to the shop stewards, had earlier
been placed on the notice board at the company’s premises.
[11] It was the evidence of the respondent in the court
a quo
that he and Ngwenya did not lay a charge against Gould and Mkhize
when they went to the police, nor had it been their intention
that
the police should undertake any investigation at that stage. The
respondent claimed that they had merely reported the matter
to the
police so that if something did in fact happen later the police
could utilise the report in the investigations they then
undertook.
The claim, if true, would speak of a marked degree of naïveté on
the part of the respondent. The acceptable inference
is that he
must have realised that the police would act on the information
received and investigate the matter.
[12] At a further meeting between Ngwenya and the police the former
persisted in his refusal to name his informant.
[13] The police conducted their investigation and referred the
matter to the Attorney-General for his decision. During May 1995
the police advised Gould that the Attorney-General had decided that
no prosecution should be instituted.
[14] During June or July a Mr Marillier, an employee of the company,
conducted an internal investigation on behalf of the company
into
the matter. During his questioning of the respondent the following
was recorded:
“------------
Q. Did Mr Gould pay for you to be shot?
A. I don’t know, but its possible
------------
Q. Do you believe Mr Gould would kill his employees?
A. Yes, it is possible.”
[15] During August Ngwenya and the respondent appeared at a joint
disciplinary inquiry, chaired by Mr Reynor, the Human Resources
Manager of the company. The charge was: “Malicious discrediting
of the General Manager and a Supervisor (Jameson Mkhize) by
reporting them to the SAP on the grounds of conspiracy to murder.”
[16] During the inquiry Ngwenya confirmed that the name of the
informant had been withheld from the police on the grounds that
he
was “an informer”. In response to a comment by Reynor that the
issue could have been resolved if the name of the informant
had been
revealed and the law allowed to take its course, Ngwenya, after
having been afforded an opportunity to caucus with the
respondent,
stated that they wanted to go back to the workers, but that a
guarantee was required that both he and the informant
would be safe
if the name of the latter was revealed. Ngwenya added that the name
of the informant could not be revealed without
an instruction to
that effect by the workers. He would not even say whether or not
the person was employed by the company. The
request for a guarantee
of safety was repeated later. Reynor’s response was that it was
not possible for the company to issue
such a guarantee. Ngwenya’s
statement that it was desired to revert to the workers for
instructions did not receive further
attention.
[17] During the exchange between Reynor and Ngwenya the former put
on record “that any person was entitled to go to the SAP and
in
fact [he] had been supporting this when he said that the case could
have been handled properly if the name had been revealed.”
[18] The inquiry was adjourned for nine days to allow Reynor to
consider his verdict. In the interim Ngwenya resigned from his
employment with the company.
[19] On 17 August the respondent was found guilty as charged and the
sanction imposed was dismissal together with one month’s
notice
pay, i.e., until 30 September 1995.
[20] In a confirmatory letter to the respondent, dated 18 August
1995, Reynor stated as follows:
“-----------
I stated that my decision regarding whether the alleged offence had
occurred or not was taken against the background of acknowledging
that:
1. Citizens have a right to report issues to the South African
Police particularly such serious issues as conspiracy to murder.
2. Shop stewards have a right to represent workers (in this case you
stood in for a Shop Steward).
However it is also reasonable to expect that responsibility be taken
when exercising these rights.
Conspiracy to murder is an extremely serious issue. When it is the
General Manager and a Supervisor who are alleged to have conspired
to have some employees murdered, it is then also an extremely
serious issue from an Employee, Company and Industrial Relations
point of view.
I believe you (and Vusi Ngwenya) are guilty of the alleged offence
as you knowingly initiated an issue which you knew could never
be
satisfactorily finalised as long as the name of the informer was
withheld.
I do not find it acceptable that the name of the informer could not
be released without the consent of the workers or that it had
to be
withheld for security reasons.
The mitigating circumstances which I took into account were the
following:-
1. You stated you would have problems with your bond repayments and
supporting your children if you were dismissed.
2. You stated that I should adopt the same approach as President
Mandela in forgiving people.
3. Your length of service was 18 years.
4. Your disciplinary record on your personal file was clear.
In considering an appropriate sanction I mentioned the following
points:-
1. The Company wrote to the Trade Union in November 1994 saying that
if the report to the SAP was found to be malicious then the
Company
would regard the relationship as irreparably damaged. I confirm
that I was not mentioning this because of the intended
sanction but
to indicate that the Company had clearly stated that they would
regard the issue as serious and you therefore had
plenty of time to
reconsider your approach.
2. Apart from the SAP investigation a further investigation in June
1995 by Eian Marillier provided a further opportunity for you
to
give information so that the matter could be dealt with properly -
possibly by referring the matter back to the SAP. Once again
you
refused to give relevant information.
3. As mentioned previously the malicious discrediting of the General
Manager and a Supervisor in the context of this case is serious
and
has an impact on all parties concerned. The company cannot afford
to have individuals in our employ who engage in such matters.
4. Taking into account your long service of 18 years and your good
disciplinary record I believe an appropriate sanction would
be your
dismissal with one months notice pay, i.e. until 30 September
1995.”
[21] It may be noted that during the investigation undertaken by
Marillier there was only one question that the respondent “refused”
to answer. In answer to the question what the informer was wearing
he replied that that was “police information”.
[22] The respondent thereafter instituted proceedings in the
industrial court in terms of section 46(9) of the Labour Relations
Act 28 of 1956. He contended that his dismissal had been unfair and
he claimed an order for his reinstatement plus his wages from
the
date of his dismissal to the date of his reinstatement.
[23] The determination of the industrial court was that the
respondent’s dismissal constituted an unfair labour practice and
that the respondent was, with effect from the date of the judgment,
reinstated in his employment with the company on terms and
conditions no less favourable that those which governed his
employment prior to the date of his dismissal.
[24] It is that determination that is the subject of this appeal.
[25] In essence it was the view of the industrial court that in
reporting the fact of the rumour to the police the respondent had
acted reasonably and that in all the circumstances the employment
relationship between the parties had not broken down irreparably.
[26] During argument counsel for the company sought on a number of
grounds to question the genuineness of the respondent’s version.

The submission was in fact that the respondent’s evidence of the
existence of the rumour was to be doubted. The corollary thereof
was that the report made to the police was a made up one and was
therefore malicious. The submission is without substance. The
existence of the rumour was clearly established.
[27] It was not contended that if the rumour did exist it was
unreasonable for the employees to cause same to be reported to the
police or that they did not have the right to do so. That stance
was clearly correct. So much was in fact conceded, correctly,
by
both Reynor and Gould.
[28] What was contended was that if the name of the informant was
not revealed it would be impossible for the police or the company
to
investigate the allegations or for the truthfulness thereof to be
tested and, accordingly, the
bona fides
of the respondent in
making the report to the police without the name of the informant
being disclosed, fell to be questioned.
It would seem that the
argument was recasting the view of Reynor that the right to make the
report was qualified by the rider
that the right had to be exercised
responsibly;
in casu
that rider required allegations not to
be made unless information enabling the allegations to be followed
up was also disclosed;
otherwise the making of the allegations was
to be stamped as malicious.
[29] The submission cannot be upheld. The evidence was that it was
only Ngwenya, and not the respondent, who knew the identity
of the
informant. Notwithstanding that in their discussion Ngwenya kept
the name of the informant to himself, there was no evidence
that the
respondent was aware that Ngwenya would not play open cards with the
police. Even if the respondent was so aware he could
legitimately
have adopted the attitude that that was a matter between the police
and Ngwenya and that it was for the former to
take steps to obtain
the information from the latter. In any event, given the
circumstances then obtaining, i.e., the factual
existence of the
rumour, the tense situation that obtained, the
bona fide
apprehension that the rumour had sufficient basis and the mandate
from the workers, it cannot be said that the respondent acted
maliciously in reporting the matter to the police, even if Ngwenya
intended to keep the identity of the informant to himself.
As
Reynor himself acknowledged, and as the industrial court held,
serious matters such as an alleged conspiracy to commit murder
are
deserving of being reported to the police. The
bona fides
of
the respondent was further demonstrated by the fact that he and
Ngwenya advised Gould that they had made a report to the police.
[30] Accordingly, the charge against the respondent at the
disciplinary enquiry, the subject of which was a
malicious report
to the police
, was not established.
[31] The play that was made on behalf of the company at the
disciplinary inquiry of the alleged fact that during the company’s
internal investigation and at the inquiry itself the respondent
persisted in refusing to disclose the informant’s name, was sought
to be repeated in the company’s statement of defence in the court
a quo
. The short answer thereto is that the refusal in
question was that of Ngwenya, the one who had the information in
question, and
not the respondent who remained ignorant of the
identity of the informant. In any event, if the report was
otherwise not maliciously
made to the police a failure subsequently
to disclose the source of the information on which the report was
faced would not render
the making of the report malicious.
[32] Further, during the inquiry Ngwenya sought an opportunity to
consult with the workers and obtain their instructions as to
whether
the identity of the informant could be revealed. The request was a
reasonable one. It was in effect turned down.
[33] The making of the report to the police could in the
circumstances, where the respondent acted reasonably in going to the

police, as was conceded by Gould, not be found to be an event that
affected the relationship between the Company and the respondent
such as to justify the latter’s dismissal.
[34] In argument, however, counsel for the company, invoking
authority to the effect that an employee owes a duty to his employer
to accord respect to those whom the employer places in authority
over him, sought to rely on the fact that the respondent had not
subsequently approached the company to say that reliance had been
placed on a rumour and that, the matter having been investigated,
he
was happy that there was no substance in the allegation.
[35] It may be noted that there was no evidence that the respondent
was aware of the result of the police investigation. Be that
as it
may, while it might have been served some good purpose, had the
respondent approached Gould and said what counsel suggested
he
should have, the respondent was under no obligation to do so. It is
to be emphasised that this was not a case, as counsel sought
to urge
upon us, of an employee making unfounded allegations against a
superior knowing that they are unfounded.
[36] Counsel finally sought to place reliance on the two statements
made by the respondent to Marillier during the investigation
conducted by the latter, which have been quoted earlier in this
judgment. It was contended that such statements inevitably had
the
result of destroying the employment relationship between the
respondent and the company. It was pointed out that Gould had
repeatedly stated that in the light of those statements it was not
possible for him to work with the respondent.
[37] The difficulty with the submission is two-fold. In the first
place it is not clear whether, in the context of the investigation
the statements, although then couched in the present tense, were not
intended to refer to the time when the report was made to
the police
- in which event they would have been acceptable.
[38] In the second place, and more importantly, a reliance on the
statements was not embraced in the appellant’s statement of
defence in the court
a quo
and the respondent was at no stage
during the hearing in the court
a quo
, taxed with these
statements and asked to deal with the effect which the company
intended to ascribe to them. In the absence of
that having been
done it did not lie in the company’s mouth thereafter to seek to
make capital out of the statements. Had it
intended to do so, it
ought to have sought the recall of the respondent as a witness and
subjected him to the necessary cross-examination.
[39] In the result I am unpersuaded that the industrial court erred
in making the decision referred to above.
[40] The appeal is dismissed with costs.
____________
KROON JA
I agree
_____________
MYBURGH JP
I agree
_______________
FRONEMAN DJP
DATE OF HEARING: 24 February 1998
DATE JUDGMENT DELIVERED: 04 March 1998
FOR APPELLANT: M.G. MAESO of Shepstone and Wylie.
FOR RESPONDENT: P.H.SCHUMANN instructed by M B Gumede and
Associates.
This judgment is available on the Internet at Website:
http://www.law.wits.ac.za/labourcrt.