Geerdts v Multichoice Africa (Pty) Ltd (JA88/97) [1998] ZALAC 10 (29 June 1998)

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[1998] ZALAC 10
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Geerdts v Multichoice Africa (Pty) Ltd (JA88/97) [1998] ZALAC 10 (29 June 1998)

27
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG Case Number: JA 88/97
In the
matter between
PETRO
MAGDA GEERDTS Appellant
and
MULTICHOICE
AFRICA (PTY) LIMITED Respondent
JUDGMENT
Nicholson
JA
[1] The appellant was employed by the respondent as a public
relations manager. She reported to her manager Mr Cobus Scholtz from
January 1995. During the course of her employment Ms Robyn de
Villiers of Arcay Corporate Communications, an outside consultant,
was engaged to do an assessment of appellant’s department, whilst
the appellant dealt with certain special projects.
[2] On 23 May 1996 the appellant was given notice to attend a
disciplinary enquiry which proceeded on 27 and 28 May 1996. The
appellant was charged with unlawfully recording a private business
meeting held by Scholtz and two other persons. The appellant
disputed making the recording. She was found guilty at the enquiry
and dismissed on 28 May 1996.
[3] On 31 May 1996 the appellant lodged an appeal against the
decision of the disciplinary enquiry. She also brought proceedings
in terms of sections 17(11), 43 and 46(9) of the Labour Relations
Act, No. 28 of 1956, (“the Act”). In the last mentioned

proceedings she sought a declaration that her dismissal was an
unfair labour practice and that pursuant to such a declaration she
be reinstated in her former position. Urgent relief sought in terms
of section 17(11) was refused. The application in terms of
section
43 resulted in a reinstatement order which was not put into effect.
[4] Initially only appellant testified in the industrial court on
her own behalf. After Scholtz, De Villiers and Ms Kumarie Naranjee

had testified for respondent, appellant successfully applied to
reopen her case and called Ms Kezanne Riley. After a 13 day trial
in
the industrial court her section 46(9) application was refused and
the court made an order that she pay the costs of the respondent
on
the High Court scale. The decision by the industrial court was
handed down on 6 August 1997 and reasons were furnished on 5
September 1997. No findings were made on credibility and the court
a quo found that on a conspectus of all the relevant facts
and
probabilities appellant’s version fell to be rejected. This is an
appeal from that decision.
Procedural unfairness
[5] Mr Bruwer, who appeared in this court as well as the industrial
court for the appellant, submitted that it was procedurally
unfair
that the respondent did not lead the evidence at the disciplinary
enquiry and in the industrial court of Dr Jansen, an
expert who
examined the tape used to record the meeting to see if anyone had
tampered with it. Although appellant was not allowed
the services of
a legal practitioner at the disciplinary enquiry as the disciplinary
code made no allowance for that, it was common
cause that appellant
was receiving advice from counsel during that period. As the
evidence of Dr Jansen was never led it was not
clear what his
findings encompassed and that his examination had been conducted at
the time of the enquiry. Assuming that it had
been, I am not
convinced that appellant was prejudiced by the failure by company to
call such evidence. Appellant could always
have called Dr Jansen at
both proceedings and declined to do so despite being advised at the
time by counsel. Scholtz identified
the original tape and it was
handed in as an exhibit. He categorically denied that anyone had
tampered with it. There was no evidence
to contradict this. In any
event, given the issues that emerged in the industrial court, namely
whether appellant recorded the
meeting accidentally or whether
Scholtz taped it to frame appellant, it does not seem to me to
matter whether the tape was tampered
with or not.
[6] The second instance of procedural unfairness relied on by Mr
Bruwer related to the alleged failure of respondent to afford
appellant the right of appeal guaranteed her in the disciplinary
code. That such a right existed admits of no dispute. Appellant
could have utilised such a right. The respondent made an offer of
such an appeal to be held during the week of 15 July 1996 in
a
letter dated 3 July 1996. The offer of the appeal was made subject
to the appellant withdrawing her section 43 application. This
letter
records Mr Bruwer as having addressed the industrial court on the
section 43 application on the basis that the appeal had
been
abandoned. Appellant declined the offer of the appeal subject to the
withdrawal in a letter dated 5 July 1996. The appellant
was entitled
to exhaust her domestic remedies first and then utilise the
machinery of the Act. There was no question that she
would have
lost any right to use section 43 after her internal appeal hearing.
She chose rather to embark on an application in
terms of section 43.
By invoking this section she waived reliance on her domestic right
of appeal.
Substantive unfairness
[7] Mr Bruwer has criticised the finding of the industrial court
that the dismissal of appellant involved no unfair labour practice
on a number of grounds. It is necessary to look at the version of
the appellant and the other evidence in the case to determine
whether these criticisms are justified. In the industrial court the
appellant testified as follows with regard to the events of
21 May
1996. She arrived at work at 6am and took her husband’s son to
school. On her return she worked at Naranjee’s desk
until the
phone rang. The call was from Scholtz who advised the appellant that
he would be late for a meeting and that she should
advise De
Villiers of this fact. Naranjee arrived and unlocked Scholtz’s
office. The appellant followed her into the office
explaining that
she had arranged with Scholtz the previous day that she would fetch
a bottle of wine for Mr Marius Steyn. The
appellant was shown where
the wine was kept and she took a bottle and left. She had a sling
bag with her which she left there
accidentally.
[8] The first bottle of wine was to replace one taken from the
managing director Mr Koos Bekker and she went into Scholtz’s
office a second time to fetch another bottle which would be from
Scholtz to the colleague. At the time of this second visit Scholtz
had two people with him and the appellant took the wine, with
Scholtz’s permission, and left immediately. Appellant’s reason
for fetching the second bottle of wine in the disciplinary enquiry
changed once it became clear that Steyn had already received
a
bottle of wine the previous day.
[9] The appellant then proceeded with her work. She had used a
dictaphone in the car to dictate notes to herself and this was
in
her sling bag. As she could not find her sling bag, she asked
Naranjee if she had seen it. She had not and the two then looked
through the window, which separated Naranjee’s office from that of
Scholtz, and saw the bag against the cupboard that housed
the wine.
The appellant asked Naranjee to fetch the bag when she took tea into
the meeting. Naranjee explained that she had already
made tea. The
appellant then said that she would fetch it after the meeting.
[10] When the meeting was over she went in and Scholtz asked her why
she was recording his meeting. She enquired as to why she
would
want to record the meeting and suggested that Scholtz might have
turned the dictaphone on accidentally, when removing it
from the
bag. On playing back the tape it became clear that parts of the
meeting had been recorded. Two members of the human
resources
department and the head of security were called and appellant was
subsequently suspended.
[11] From the above account it is clear that appellant was relying
on accidentally recording the meeting and at the disciplinary
hearing, the section 17(11) and 43 proceedings, she persisted in
such a defence, including suggesting a number of ways in which
the
dictaphone could have been switched on. An example of her evidence
at the disciplinary enquiry reads as follows
“Its been on my mind since Tuesday and the only thing I could’ve
done was when I rewinded it, okay, I must’ve stopped it,
either by
that method - I normally do it by the stop button off - rewind it
and then put it into my bag like that. All I can think
that is that
I would’ve pressed the top button ‘record’ which automatically
takes the play button with it. Some dictaphones
you’ve got to
physically press both, at the same time. But, all I can think is
that the record button, as I put it into my pocket
here, it went
down like that. Okay, that’s all I can think of. I cannot offer
any other explanation, at this stage of the game
and believe me,
I’ve tried to rack my brains.”
[12] In the replying affidavit filed by the appellant in section 43
application appellant deals with the allegation by Scholtz
that she
deliberately taped the meeting. She points out that the meeting
lasted an hour and that only seven minutes thereof were
recorded.
This she concludes “reflects that the tape recording was not
intentionally put on the record mode by myself.”
[13] In the pleadings filed in terms of section 46(9) of the Act she
abandoned the defence of accident and suggested that Scholtz
had set
off the tape in a deliberate attempt to frame her and secure her
dismissal. She alleges the following:
“
29.1.1 On
21 May 1996, Mr Scholtz, motivated by an ulterior motive, searched
the Applicant’s sling bag, which was accidentally
left in Mr
Scholtz’s office, in her absence.
29.1.2 Mr Scholtz then took the Applicant’s dictaphone, activated
it by switching it on to the voice activating mode.
29.1.3 Mr Scholtz then put the dictaphone into the Applicant’s
bag again.
29.1.4 Mr Scholtz then commenced a meeting with Mesdames Robyn de
Villiers and Chirstine Bailey with the dictaphone in the voice
activated mode in the Applicant’s bag.
29.1.5 After the meeting had terminated and after Mesdames de
Villiers and Bailey had left, Mr Scholtz presented and pretended
to
his secretary that he had been unaware of the presence of the
applicant’s bag in his office, requested her to bring the bag
to
him, made reference to the dictaphone and took the dictaphone out
from the bag, whereafter Mr Scholtz gave out and pretended
to the
secretary that the Applicant had recorded his private meeting.”
[14] The section 46(9) pleadings go on to allege that Scholtz put
into motion a false charge and fabricated evidence against the
appellant. There was not a jot or tittle of evidence to substantiate
these wild and scurrilous allegations and the appellant gave
no
evidence to show why Scholtz had the alleged ulterior motive. The
industrial court found that appellant’s placing of the bag
was not
accidental or done to frame appellant but deliberate : in order to
record the proceedings at the meeting. The industrial
court relied
on circumstantial evidence and the probabilities in arriving at the
conclusion that appellant deliberately recorded
the meeting.The test
remains whether the appellant’s version is the more plausible
amongst several conceivable ones.
Ocean Accident Guarantee
Corporation v Koch
1963 (4) SA 147
(AD) at 159C.
[15] Mr Bruwer submitted that the evidence never revealed that the
meeting was actually taped. Although the taping process was
not done
very professionally the evidence established clearly that the seven
minutes could only have related to the meeting in
question. Scholtz
identified incidents which were mentioned by the participants at the
meeting which were recorded on that occasion.
De Villiers also
recognised her voice on the tape telling the persons present about
being locked out of her office. It is clear
that the seven minutes
on the tape constituted parts of the conversation at the meeting.
[16] Mr Bruwer criticised the industrial court’s finding that the
appellant had attempted to record the meeting. He submitted
that she
was charged at the disciplinary hearing with actually recording the
meeting. This submission is without substance. The
industrial court
was not suggesting that appellant was merely involved in acts of
preparation. The industrial court was implying
that there was an
actual recording but that it was so poor it constituted an
unsuccessful attempt to comprehensively tape the proceedings.
That
appellant taped the meeting badly does not alter the fact that she
taped it.
[17] Mr Bruwer submitted that the industrial court ought to have
found that it was Scholtz that activated the recorder and not
the
appellant. He placed emphasis on the fact that initially appellant
recognised the voice of Scholtz and that this was an indication
of
her innocence. It seems to me that appellant was alert to the
dilemma in which she found herself and devised a strategem to
extricate herself.
[18] Mr Bruwer also criticised the fact that Scholtz did not cry out
with anguish when he discovered the dictaphone. His reaction
was
consistent with a calculated move and not shock and dismay at having
his privacy invaded, so the argument ran. It is difficult
to predict
how people react to different situations. Stunned silence is a
frequent response to shocking revelations. The fact that
Scholtz
immediately summoned Mardia van der Walt, the General Manager Human
Resources, and Kallie Jacobs from security does not
necessarily
imply that he planned the entire exercise. In themselves these
factors are neutral and it is necessary to look at the
whole
conspectus of the evidence including the probabilities to evaluate
whether Scholtz is the ogre he has been made out to be.
[19] Mr Bruwer suggested that Scholtz contradicted himself with
regard to the discovery of the dictaphone. These relate to whether
Scholtz immediately recognised the dictaphone, or saw a ‘black
instrument’ and then asked Naranjee to put down the bag or saw
the
machine after the bag was put down. The final version, so the
argument ran, was that Scholtz only observed the object once
the bag
was put down by Naranjee. Similar criticisms were levelled at the
fact that Scholtz could not have seen the dictaphone
from the
position where he was sitting. These criticisms and others led Mr
Bruwer to stigmatise Scholtz as an arrogant psychopathic
liar.
[20] This accusation is as breathtaking as it is unfounded. Myburgh
JP deals with the costs aspect in this matter and the manner
of
cross-examination of Scholtz by Mr Bruwer. I share his views
completely. That minor discrepancies creep into the testimony of
every honest witness needs little authority. In fact exactness of
recitation often bespeaks rehearsal and contrivance. The important
point in relation to Scholtz and any other witness is to test the
evidence against the proved facts and the probabilities.
[21] It is common cause that the dictaphone was found in voice
activation mode. The question which arises is whether Scholtz would
have had an adequate opportunity to arrange his nefarious plan.
Scholtz would have had to have foreseen that the appellant would
accidentally leave her bag where she did and utilise the twenty odd
seconds he was alone to activate the machine. He would also
have to
foresee that the appellant would not remove the bag on her second
visit to fetch the second bottle of wine. I must say
that I find it
most improbable that, given the dimensions of the office, appellant
would not have noticed her bag the second time
she visited the
office. Appellant conceded that there was no reason to take the bag
into the office and the probabilities favour
her doing so
deliberately to facilitate the taping. It is also improbable that
she would have left it in Scholtz’s office given
that, on her
version, it had the dictaphone in it with the notes she would be
typing out.
[22] Scholtz’s evidence was that the red light on the dictaphone,
which illuminates when recording, was covered in prestik.
The
appellant was not able to explain this with any degree of conviction
and belatedly suggested that the prestik was on the volume
button.
In the disciplinary enquiry Scholtz dealt with the prestik and said
“... The fact is what I want to say it [was] on one spot - on one
particular spot over the red light.”
The appellant responded by saying that she was not denying that.
The presence of the prestik very strongly suggests that the person
wished to record the meeting clandestinely. The red light would
warn any person at the meeting of the presence of the dictaphone.
That prestik might inadvertently attach itself to that precise part
of the dictaphone seems to me to be improbable in the extreme.
[23] The evidence revealed that the appellant was on very good terms
with De Villiers . According to the latter, the appellant
had told
her after the incident that Scholtz had caught her out on something
that she did not think she was going to get away with.
De Villiers
did not tell the chairman of the disciplinary enquiry about this
conversation and her explanation was that she was
not asked any
specific questions about it. She did not volunteer it at the time as
she regarded it as a private conversation and
she was on friendly
terms with appellant. The first time she made mention of it was when
she was precognised by counsel, Mr Franklin,
who appeared for the
respondent in both the industrial court and this court, in
preparation for her evidence before the industrial
court. At the
time she was in her husband’s office. The cross-examination of De
Villiers by Mr Bruwer suggested that the words
‘caught out’ in
the context meant that she had been arrested. This, of course,
posited the notion that she admitted saying
the words - which was
never her version - and was implying a different construction. Mr
Franklin, very properly, objected to this
line of cross-examination
and it was disallowed. What appellant told De Villiers during the
same conversation is also of importance.
She urged De Villiers to
not reveal to anyone that appellant was aware of the meeting that
morning. This evidence was given by
De Villiers at the disciplinary
hearing. Despite rigorous cross-examination De Villiers was not
shaken on this and other points
and I have no reason not to believe
her. Her evidence reads well and she was most most candid in her
admission of a reluctance
to divulge the confidence imparted to her
by appellant. Her reluctance to reveal the telling confession made
by the appellant arose
out of her respect for a confidence, not any
mendacity on her part.
[24] The admonition to keep silent about appellant’s knowledge of
the meeting is a serious matter and illustrates very clearly
that
appellant realised that if that fact were known her interest in
taping the meeting would be revealed. That appellant did have
an
interest in taping the meeting admits of no doubt whatsoever. The
three participants in the meeting discussed the future of
the two
persons in appellant’s department. The functions, management and
physical location were considered and a procedure was
agreed in
terms of which De Villiers would take over that responsibility on a
permanent basis. I must say that appellant’s evidence
on whether
she knew that a meeting was to take place was most evasive and
unsatisfactory. Cross-examined by Mr Franklin she said
the
following:
“And Robin de Villiers told you on the 20th of May that she had
been called to a meeting with Mr Scholtz the following day, not
so?
--- She had told me that Mr Scholtz had requested lunch. She could
not make lunch and we left her desk together with her saying,
‘let
me to to Kumarie and see when I can get into his diary’”.
In the disciplinary enquiry she admitted knowing about the fact that
a meeting was to be held.
[25] The gravamen of appellant’s version at the disciplinary
enquiry was that it was beneath her dignity to sink to the level
of
taping the meeting or private conversation of another. She
described such conduct as “unpalatable” and “disgraceful”
and strongly suggested that she would be insane to jeopardise her
job by indulging in such conduct. Under cross-examination she
was
constrained to concede that on a previous occasion she had secretly
recorded the conversation of another, her husband.
[26] The evidence of Naranjee reveals that she reminded appellant to
remove her bag when she left it there on the first occasion
that she
fetched a bottle of wine. There is no reason why Naranjee should not
tell the truth on this point. On this point the appellant
initially
volunteered the same evidence herself in the disciplinary enquiry
when she said “But Cobus you know that Kumarie said
to me “don’t
forget your bag” and you said to Kumarie “get me some
breakfast”.” Appellant sought later to try and distance
herself
from this statement by saying that she did not remember Naranjee
ever reminding her. It seems to me that she had belatedly
tumbled to
the fact that given this reminder it was somewhat surprising -
indeed sinister - that she did not remove the bag. The
probabilities
favour that if Naranjee did remind appellant to remove her bag and
she left it there, she must have done so to record
the meeting.
[27] The industrial court, rightly in my view, rejected the evidence
of Riley that appellant had not telephoned her and then handed
the
call over to De Villiers that morning. Riley was employed by the
appellant as a secretary. Any calls during the day for De
Villiers
would come through Riley. Riley conceded that appellant did phone De
Villiers on numerous occasions previously when she
was not in the
office. Riley’s evidence in connection to whether De Villiers ever
spoke to people in the general office was unimpressive
and I got the
impression she was doing all in her power to save the appellant. She
conceded a friendship with the appellant - indeed
her boyfriend
defended appellant in the disciplinary enquiry - and she evidenced a
partiality which makes it difficult to give
her the same credence as
De Villiers on this point.
[28] I am therefore of the view that the industrial court was quite
justified in rejecting the version of appellant and Riley and
in
accepting without qualification the evidence of Scholtz, Naranjee
and De Villiers. The finding by the industrial court that
appellant
did intentionally record the meeting cannot, therefore, be
disturbed.
[29] Mr Franklin has submitted that electronic surveillance is a
serious invasion of the privacy of an individual. He points out
that
it is a criminal offence in terms of section 2 of the
Interception
and Monitoring Prohibition Act
, No 127 of 1992 and constitutes
the commission of a delict and a serious impairment of the
dignitas
of a person. See Mc Quoid-Mason
The Law of Privacy in
South Africa
1978 page 147
,
S v A
1971(2)
SA 293 at 297. Section 13 of the
Constitution of the Republic of
South Africa
,
Act 200 of 1993, dealt with the protection
of privacy and provided that
“Every person shall have the right to his or her personal privacy,
which shall include the right not to be subject to searches
of his
or her person, home or property, the seizure of private possessions
or the violation of private communications.”
The current Constitution, Act 108 of 1996 protects ‘the privacy of
..communications’. See section 14(d).
[30] The managerial prerogative requires that senior employees and
managers should be entitled to evaluate the work of their
subordinates
in circumstances of confidentiality. Any invasion of
this privileged occasion has to be viewed in a very serious light.
Not only
does it reveal a breach of the trust that the manager will
objectively evaluate such work it also destroys the relationship as

such. Clandestine electronic surveillance undermines good faith and
fidelity and betrays a less than honest disposition. It is
difficult to see how the employer can be fairly expected to continue
the employment relationship having regard to such misconduct.
See
Mondi Paper Co Ltd v Paper Printing Wood and Allied Workers’
Union
(1994) 15 ILJ 778 (LAC) at 781
A-B. The
reading of this record leaves a sour taste in the mouth. It may well
be that appellant became desperate after losing her
job and embarked
on the unfounded attack on Scholtz and the other witnesses. Whatever
the reasons may have been, the manner appellant
conducted the case
was unconscionable. I agree, for the reasons set out by Myburgh JP,
that the appeal should be dismissed with
costs, such costs to be on
the attorney and client scale.
NICHOLSON JA
I agree
MYBURGH JP
I agree
FRONEMAN DJP
Myburgh J P
[31] In this judgment costs are dealt with in two respects:
(a) the costs order of the industrial court - that the appellant pay
the respondent’s costs on the High Court scale – which
is
appealed against by the appellant; and
(b) the request by the respondent that the appeal should be
dismissed with costs on an attorney and client scale.
[32] The normal practice in the industrial court in s 46(9)
proceedings is to make no order as to costs. By ordering the
appellant
to pay costs on the High Court scale, the industrial court
deviated from the norm. The court motivated its award by referring

to the reprehensible conduct of the appellant in attempting to
record the meeting; the turnabout in the appellant’s defence from
an averment that the tape was switched on accidentally to a new
defence that it was Scholtz who did so; the appellant’s conduct
in
allowing Mr Brüwer to launch a cross-examination which was ‘a
vicious and venomous, and, more importantly, an unwarranted
and
baseless attack on the integrity of Mr Scholtz’; the fact that
Scholtz had to endure ‘an excessively and unnecessarily
lengthy
cross-examination over six days, to indulge [appellant’s] counsel,
to which the [appellant] was a consenting party’;
and the case
should never have come to court.
[33] In an appeal against costs, the question is whether there was
an improper exercise of judicial discretion, i.e., whether the
award
is vitiated by irregularity or misdirection or is disquietingly
inappropriate. The Court will not interfere merely because
it might
have taken a different view:
Ward v Sulzer
1973 (3) SA 701
(A) at 707A;
Minister of Prisons a.o. v Jongilanga
1985 (3)
SA 106
(A) at 124B-C.
[34] In my view there was no improper exercise of a discretion. On
the contrary, the award was justified on at least three grounds:
the
merits of the case, which are dealt with in the judgment of
Nicholson J A, the baseless and vicious attack on Scholtz, and
the
cross-examination of Scholtz.
[35] Having stated initially that the tape could have been switched
on accidentally by herself or by Scholtz when he removed the
dictaphone from the sling-bag the appellant averred in her statement
of claim, filed five months after her dismissal, that Scholtz,
acting with an ulterior motive, fabricated a case against her. In
essence the averment was that Scholtz framed the appellant.
The
attack on Scholtz did not rest there. It was pleaded that in the
disciplinary enquiry he ‘manipulated the said witnesses,
either
tacitly through his very senior position with the respondent and/or
by blatantly intimidating them and/or by misleading
them and/or
enticing them to commit perjury’ in certain respects.
[36] The appellant did not call a single witness in support of those
allegations nor did she give evidence to substantiate those
allegations. In cross-examination she wavered between testifying
that the frame-up was a possibility, which should be investigated,
to saying that she was ‘95% sure’ that Scholtz had framed her.
It emerged during the cross-examination of Scholtz that the
allegation that he had forced witnesses to change their evidence was
based on a reading of the record of the disciplinary enquiry
and
that the allegation of a frame-up had no factual basis at all. Mr
Brüwer commenced the cross-examination with the intention
to show,
on the basis of Scholtz’s own evidence, that he framed the
appellant.
[37] Not only was no evidence led by appellant of Scholtz’s motive
to frame her: the appellant expressly stated that she knew
of no
motive.
[38] At best for the appellant the attack on Scholtz was
speculative. But the indictment of the appellant is far more
serious.
She knew that the truth was that
she
had
deliberately planted the sling-bag in Scholtz’s office with the
dictaphone switched on in order to tape record the meeting.
Yet she
instructed her legal representatives to accuse Scholtz of having
framed her. At no stage during the trial did she withdraw
that
instruction. She allowed Mr Brüwer to cross-examine Scholtz in the
manner and for the length of time he did so in the knowledge
that
Scholtz was entirely innocent of the scurrilous allegations made
against him.
[39] The cross-examination of Scholtz was an abuse, a travesty in
its duration and in the manner in which it was conducted.
[40] The evidence in chief of Scholtz was recorded on 43 pages. The
cross-examination was recorded on about 480 pages. Scholtz
was in
the witness box under cross-examination over a period of six days:
most of the first day, four full days, and part of the
sixth day. A
conservative estimate of the number of questions Mr Brüwer put to
Scholtz is between 2500 and 3000. The mere duration
of the
cross-examination was an abuse. The cross-examination endured
despite repeated objections by Mr Franklin and the intervention
of
the industrial court. A court is entitled to disallow tedious
cross-examination the only purpose of which would seem to be
to wear
down the witness and to induce him to ultimately make replies
favourable to the cross-examiner as a result of fatigue:
525 (T) at
526
R v De Bruyn a. o.
1957 (4) SA 408
(C) at 412H;
S v
Mngogula
1979 (1) SA H;
S v Mogqaza
1984 (3) SA 377
(C)
at 385G-H. The industrial court tried in different ways to curtail
the abuse. The presiding officer gave numerous ad hoc
rulings,
called Mr Brüwer into his office on one occasion to admonish him,
and on the fifth day of the cross-examination, the
court commenced
the proceedings by warning Mr Brüwer that he would not allow the
trial ‘to deteriorate into a circus’. It
was to little or no
avail.
[41] The remarks of the Master of the Rolls, quoted with approval by
the House of Lords in
Mechanical and General Inventions Company
Ltd a.o. v Austin and the Austin Motor Company Ltd
1935 AC 346
at 359 are apposite: ‘Cross-examination is a powerful and valuable
weapon for the purpose of testing the veracity of a witness
and the
accuracy and completeness of his story. It is entrusted to the
hands of counsel in the confidence that it will be used
with
discretion; and with due regard to the assistance to be rendered by
it to the Court, not forgetting at the same time the burden
that is
imposed on the witness.’ At page 360 of his speech, Viscount
Sankey L C said: ‘It is right to make due allowance for
the
irritation caused by the strain and stress of a long and complicated
case, but a protracted and irrelevant cross-examination
not only
adds to the cost of litigation, but is a waste of public time. Such
a cross-examination becomes indefensible when it
is conducted, as it
was in this case, without restraint and without the courtesy and
consideration which a witness is entitled
to expect in a Court of
law. It is not sufficient for the due administration of justice to
have a learned, patient and impartial
judge. Equally with him, the
solicitors who prepare the case and the counsel who present it to
the court are taking part in the
great task of doing justice between
man and man.’ The weapon of cross-examination was not used in
this case ‘with discretion’,
rather the cross-examination was
without restraint and, as I will demonstrate later, without the
courtesy and consideration which
Scholtz was entitled to expect in
the industrial court. What was entirely lacking in the
cross-examination was ‘pertinent, properly
focussed and accurate
cross-examination’:
S v Tswai
1988 (1) SA 851
(C) at 858H.
[42] A witness is entitled to ordinary courtesy. No cross-examiner
is entitled to insult a witness. Witnesses must be treated
with
courtesy and respect. Before a witness is attacked, the
cross-examiner must lay a foundation to the satisfaction of the

court that he has grounds for attacking the witness: c.f.
S v
Asov
1974 (1) SA 808
(T) at 810G-811A. It was said of the
attorney in that case at 811D that he was ‘unduly rude, sarcastic
and insulting to the
witnesses’. A witness should not be harassed
or badgered in cross-examination: c.f.
S v Booi a.o
1964 (1)
SA 224
(ECD) at 227H-228A. A proper cross-examination does not
permit the gratuitous intimidation of a witness. A cross-examiner
should
not bully a witness by insulting him, browbeating him or
adopting an overbearing attitude which admits of no contradiction by
the
witness of what is put to him. A cross-examiner should not
unnecessarily ridicule a witness or taunt the witness or offend his
sensibilities or provoke him to anger, or play upon his emotions in
order to place him at an unfair disadvantage and incapacitate
him
from answering question to the best of his ability: c.f.
S v Gidi
a.o.
1984 (4) SA 537
(C) at 539I-540A.
[43] Mr Brüwer had hardly commenced the cross-examination of
Scholtz when he insulted him. Despite the objection of Mr Franklin,
that set the tone for the rest of the proceedings. In addition to
accusing Scholtz of being untruthful, Mr Brüwer referred to
Scholtz
as arrogant and insolent. He accused Scholtz of using the
‘experience that [he] acquired as a journalist to twist facts
and
to suppress the truth’ - thereby gratuitously insulting the
profession of journalists. At one point Mr Franklin objected
to Mr
Brüwer shouting at Scholtz. Mr Brüwer denied that he was shouting
but admitted that he had ‘raised his voice’. And
this,
unjustified, treatment of Scholtz went on day after day.
[44] An illustration of the abuse Scholtz was subjected to is his
cross-examination on the basis of a supplementary affidavit made
by
him in the s 43 proceedings. The affidavit dealt with information
that had come to light after the appellant’s dismissal.
The
information was only peripherally relevant in the s 46(9)
proceedings and was not referred to at all by either counsel in
this
appeal. The cross-examination began with Mr Brüwer questioning
Scholtz on this paragraph in the affidavit:
“In so far as this affidavit contains facts and allegations which
are not within my personal knowledge or belief, such facts
and
allegations are supported by confirmatory affidavits”.
This is an extract from the cross-examination:
‘Q: You did not attach a confirmatory affidavit as far as the car
rental aspect is concerned, is that correct?
A: I don’t understand the question.
Q: What don’t you understand?
A: Exactly what you ask me.
Q: What don’t you understand, Sir?
A: Exactly your question, Sir.
Q: I am asking you, did you attach a confirmatory affidavit
concerning the motor car rental aspect?
A: I don’t understand the question.
Q: What don’t you understand?
A: Your question.
Q: Don’t you understand English?
A: Your question, Sir.
Q: You don’t want to understand it.
A: No, if I understood your question, I would answer it.
Q: Do you know what a confirmatory affidavit is, Mr Scholtz
A: Perhaps I don’t. Could I ask what that would mean?
Q: Did you make an affidavit and you didn’t know what you said in
your affidavit?
A: I know what I said in my affidavit.
Q: What did you say in your affidavit about confirmatory affidavits?
Come now, Mr Scholtz.......Point 3.
A: What?
Q: Point 3. It says: ‘Such facts and allegations are supported by
confirmatory affidavits.’
A: Yes.
Q: Now, what is a confirmatory affidavit?
A: I am uncertain what you are asking otherwise I would answer you.
Q: I am asking you what a confirmatory affidavit is, Sir.
A: Could I please understand the question?
Q: If you - you will not understand the question if you don’t
understand the word. Do you want to speak English or do you want
to
speak Afrikaans?
A: I am happy to speak any language.
Q: But you don’t understand English.’
[45] The cross-examination on that point continued from time to time
for at least another 60 pages, some questions being repeated
over
and over again.
[46] Scholtz was tested under cross-examination about his conduct
during the disciplinary proceedings. An example of what occurred
is
that Naranjee said that Scholtz was sitting behind his desk at a
certain stage whereas on Scholtz’s version, he was standing.

Scholtz put his version to her in the disciplinary enquiry and she
then agreed with Scholtz. This happened with other witnesses,
too.
Scholtz admitted that it had been unwise of him to represent the
respondent and to be a witness and that he had intervened
unnecessarily when other witnesses were testifying at the enquiry.
Scholtz said he was inexperienced - this was the first disciplinary
enquiry he had attended - and had confused his two roles. He denied
that there was anything sinister in his conduct. Despite
the
failure by Mr Brüwer to call a single witness to say that she had
been intimidated by Scholtz to change her evidence, Scholtz
was
cross-examined at length for about 60 pages on the basis that the
record of the disciplinary enquiry showed that he had forced
witnesses to change their version of events and so commit perjury.
A case in those terms was not made out by Mr Brüwer. The
case
pleaded, that Scholtz had intimidated witnesses to commit perjury,
was entirely without foundation.
[47] The appeal against the costs order of the industrial court is
dismissed.
[48] In awarding costs on the attorney and client scale, the Court
has a discretion, to be exercised judicially upon a consideration
of
all the facts. As between the parties, it is a matter of fairness
to both sides. Vexatious, unscrupulous, dilatory or mendacious
conduct on the part of an unsuccessful litigant may render it unfair
for his opponent to be out of pocket in the matter of his
own
attorney and client costs:
Nel v Waterberg Landbouwers
Ko-operatieve Vereeniging
1946 AD 597
at 607;
Ward v Sulzer
at 706G-H. A court of appeal must guard against inhibiting a
legitimate right of appeal, and it requires the existence of very
special circumstances before awarding costs of appeal on an attorney
and client scale:
Herold v Sinclair a. o
1954 (2) SA 531
(A)
at 537C-F;
Ward v Sulzer
at 707B-D.
[49] Special circumstances exist in this appeal to award attorney
and client costs against the appellant. Firstly, her appeal
is
entirely without merit. Secondly, the argument on appeal was
presented as if the respondent had made out no case against the
appellant. Neither the evidence she gave in the industrial court
nor the probabilities in favour of the respondent’s case were
referred to in Mr Brüwer’s heads of argument. His heads of
argument consisted of another attack on Scholtz, the submission
being that it had been shown in cross-examination of Scholtz that it
was Scholtz who had deliberately switched on the tape recorder
in
order to frame the appellant. Thirdly, the unrestrained, gratuitous
and defamatory nature of the attack of Scholtz was repeated
on
appeal. Mr Brüwer did not limit himself to accusing Scholtz of
being a liar, he spoke of Scholtz in these terms: ‘ ’n
arrogante
psigopatiese leuenaar’; ‘a koel berekende psigopatiese
leuenaar...gewetenloos in sy optrede en gedrag’. Scholtz
was said
to have had sufficient opportunity ‘...om sy bose plan uit te
voer’; and to be ‘meer as arrogant oor sy slimheid’.
There
was no justification for describing Scholtz in any of those terms.
Fifthly, Mr Brüwer made personal remarks about the
industrial
court. One passage in the judgment was said to demonstrate a
possible bias against the appellant. Another criticism
was that
‘die geleerde lid emosionele oomblikke beleef het gedurende die
verhoor’. The criticism, in those respects, of the
industrial
court was unwarranted. The reference to the industrial court
becoming emotional during the trial is presumably one
to the
industrial court’s attempts to limit the unfair cross-examination
of Scholtz. The industrial court’s frustration is
entirely
understandable.
[50] Lest there be any ambiguity in this judgment, I want to make it
clear that the judgment is a complete vindication of Scholtz.
As
far as he, and his employer, the respondent, is concerned this Court
accepts that he was an honest, if fallible, witness.
The suggestion
that he framed the appellant and intimidated witnesses in order to
induce them to perjure themselves was without
foundation.
[51] I have already found that the personal attacks on the
industrial court were unwarranted. I would add that the industrial
court conducted itself with commendable patience throughout the 13
days of hearing and the judgment was to the point, and in the
result, correct.
[52] The appeal is dismissed, with costs, such costs to be paid on
the attorney and client scale.
MYBURGH J P
I agree
FRONEMAN D J P
I agree
NICHOLSON J A
Date of Hearing: 22 June 1998
Date of Judgment: 29 June 1998
Counsel for Appellant: Adv Brüwer instructed by Wentzel Viljoen &
Swart
Counsel for Respondent: Adv Franklin instructed by Deneys Reitz
This judgment is available on the Internet at:
http://www.law.wits.ac.za/labourcrt.