Southern Sun Hotels (Pty) Ltd v South African Commercial Catering & Allied Workers Union and Another (JA33/99) [2000] ZALAC 11 (7 March 2000)

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[2000] ZALAC 11
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Southern Sun Hotels (Pty) Ltd v South African Commercial Catering & Allied Workers Union and Another (JA33/99) [2000] ZALAC 11; (2000) 21 ILJ 1315 (LAC) (7 March 2000)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no : JA 33/99
In
the matter between
SOUTHERN
SUN HOTELS (PTY)LTD Appellant
and
SOUTH
AFRICAN COMMERCIAL CATERING 1
st
Respondent
&
ALLIED WORKERS UNION
DAVID
APHANE 2
nd
Respondent
___________________________________________________________
JUDGEMENT
___________________________________________________________
Zondo
AJP:
Introduction
[1] This
is an appeal against a determination made by the industrial court in
terms of sec 46(9) of the Labour Relations Act, 1956
(Act no 28 of
1956)(
“the
old Act”
)
in a dispute between the appellant and the second respondent. The
dispute was whether the dismissal of the second respondent
constituted
an unfair labour practice and what relief the second
respondent should be granted if his dismissal did constitute an
unfair labour
practice. The determination of the industrial court was
to the effect that the dismissal did constitute an unfair labour
practice
and that the appellant should reinstate the second
respondent. It is against this determination and order that the
appellant now
appeals to this Court.
The
background facts
[2] It
is necessary to give a summary of the facts relating to the dispute
in respect of which the industrial court gave the determination
appealed against. The appellant owns an hotel in Sandton,
Johannesburg. Until the 6
th
September 1996 the second respondent was employed as a waiter in the
room service department of the hotel. The appellant also employed
at
all times material to this matter one Mr Phillip Moremi, one Mr
T.Goebel and one Mr Lawrence Phakathi. Mr Phillip Moremi was a
supervisor in the room service department. Mr Goebel was a senior
assistant manager. Mr Lawrence Phakathi was the room service manager.
[3] At
a certain point on the 29
th
June 1996 Mr Goebel noticed that the second respondent was not in the
room service department which was his workstation. He set out
to look
for him and found him in the staff canteen. He instructed him to
return to the room service department. The second respondent
then
left the canteen and returned to the room service department. It
would appear that there was some delay on Mr Goebel’s part
in
returning to the room service department. According to Mr Goebel’s
evidence, which was not challenged, when he arrived back
in the room
service department, he found Mr Moremi
“shaken
up”
or
“nervous”
.
Mr Goebel then asked Mr Moremi what had happened. The latter reported
to him that, on returning to the room service department,
the second
respondent was very upset. Mr Moremi told Mr Goebel that the second
respondent accused him (i.e. Mr Moremi) of reporting
to Mr Goebel
that he (i.e. is the second respondent) had gone to the staff
canteen. Mr Moremi then told Mr Goebel that the second
respondent had
then threatened him.
[4] Mr
Goebel had later on gone to a restaurant with Mr Phakathi. Mr Moremi
had joined them. Mr Moremi had then relayed to them what
had
occurred. There had been no eye-witnesses to what Mr Moremi alleged
the second respondent had said to him. Subsequently a disciplinary
inquiry was convened against the second respondent. The second
respondent was charged with two acts of misconduct. These were
deserting
his workstation and threatening Mr Moremi. He pleaded not
guilty.
[5] Mr
Moremi testified in the inquiry in the presence of the second
respondent. His evidence was to the effect that the second respondent
had threatened him. The second respondent did not give evidence in
the inquiry. Accordingly he failed to deny Mr Moremi’s evidence
that he had threatened him. The second respondent was found guilty
and dismissed. The second respondent noted an internal appeal
but
the appeal failed. A dismissal dispute arose between the appellant
and the second respondent. The latter referred it to the
industrial
court which gave the determination and order I have referred to
above.
[6] During
the trial in the industrial court the appellant led the evidence of
Mr Goebel which was to the effect I have outlined above.
This
included Mr Goebel’s evidence that when he returned from looking
for the second respondent in the staff canteen, he had found
Mr
Moremi in the room service
“shaken
up”
and nervous. Mr Goebel’s evidence had included that, when he had
asked Mr Moremi what was wrong, Mr Moremi had told him that he
had
been threatened by the second respondent for allegedly reporting to
Mr Goebel that he (i.e. second respondent) had gone to the
staff
canteen. Obviously this part of Mr Goebel’s was hearsay evidence in
so far as it related to what Mr Moremi had told him the
second
respondent had said to him.
[7] An
affidavit which was signed by Mr Moremi was handed up in court. In
that affidavit Mr Moremi stated that the second respondent
had
threatened him on the 29
th
June 1996. He said he feared for his life if he were to come to
court and testify against the second respondent. For that reason
he
said he was not prepared to go to the industrial court and testify.
He said the second respondent had threatened him again into
not going
to court to testify. Whether the second respondent had or had not
threatened Mr Moremi on the 29
th
June 1996 depended on whether or not the industrial court would admit
the hearsay evidence given by Mr Goebel about what Mr Moremi
told him
on the day of the alleged incident and/or the contents of the
affidavit by Mr Moremi which was submitted to the industrial
court.
The industrial court had to decide whether the hearsay evidence was
admissible. If it admitted the hearsay evidence, there
would be a
sufficient basis for a finding that the second respondent did
threaten Mr Moremi. If the hearsay evidence was not admitted,
there
would be little to support such a finding.
[8] The
industrial court came to the conclusion that the hearsay evidence
should not be admitted and found that the dismissal constituted
an
unfair labour practice and ordered the reinstatement of the second
respondent. The reason given by the industrial court for refusing
to
admit the hearsay evidence even on the basis of sec 3 of the Law of
Evidence Amendment Act, 1988 (
“the
Evidence Act”
)was
that it related to too fundamental an issue of the case for such
evidence to be admitted. During the proceedings in the industrial
court the minutes of the disciplinary inquiry had been admitted as
accurately reflecting what had transpired in the inquiry. This
had
included Mr Moremi’s evidence which the second respondent had
failed to contradict. The second respondent who was subjected
to
cross-examination gave evidence in the court a quo and denied having
threatened Mr Moremi.
[9] Before
us two grounds were advanced in argument on why we should uphold the
appeal and set aside the determination of the industrial
court. The
one, which was the main ground, was that the court a quo had erred in
refusing to admit the hearsay evidence. The second
was that there had
been sufficient circumstantial evidence before the court a quo in any
event to justify a finding that the second
respondent had threatened
Mr Moremi. I propose dealing with the main point first. Depending on
my finding on that point, it may not
be necessary to deal with the
second point.
Should
the court a quo have admitted the hearsay evidence?
[10] The
appeal was argued on the basis that, if the court a quo was wrong not
to admit the hearsay evidence, then its determination
cannot stand
and will fall to be set aside. The only basis on which the appellant
urged us to come to that conclusion is the power
which the provisions
of sec 3 of the Evidence Act, confer on a court to admit hearsay
evidence in certain circumstances. In this
regard Mr Franklin, who
appeared for the appellant, drew our attention to certain aspects of
this case in support of his submission
that the court a quo erred in
not admitting the hearsay evidence. On behalf of the second
respondent the argument presented was that
the aspect of the case in
respect of which the appellants wanted the court a quo to admit the
hearsay evidence was so fundamental
that it would be extremely unfair
to the second respondent to admit it.
[11] Sec
3 of the Evidence Act provides as follows:
“
(1) Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless
(a) each
party against whom the evidence is to be adduced agrees to the
admission thereof as
evidence
at such proceedings;
(b) the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(
c) the
court, having regard to-
(i) the
nature of the proceedings;
(ii) the
nature of the evidence
;
(iii) the
purpose for which the evidence is tendered;
(iv) the
probative value of the evidence;
(v) the
reason why the evidence is not given by
the
person upon whose credibility the probative value of such evidence
depends;
(vi) any
prejudice to a party which the admission of such evidence might
entail; and
(vii) any
other factor which should in the opinion of the court be taken into
account,
is
of the opinion that such evidence should be admitted in the interests
of justice.
(2) Hearsay
evidence may be provisionally admitted in terms of subsection(1)(b)
if the court is informed that the person upon whose
credibility the
probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such person
does not later testify
in such proceedings, the hearsay evidence shall
be
left out of account unless the hearsay evidence is admitted in terms
of paragraph (a) of subsection (1) or is admitted by the court
in
terms of paragraph (c) of that subsection.
(4)
For
the purposes of this section-
“
Hearsay
evidence” means evidence, whether oral or in writing, the probative
value of which depends upon the credibility of any person
other than
the person giving such evidence;
“
party”
means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution.”
[12] In
argument, Mr Franklin referred us to
Hlongwane
v Rector, St Francis College
1989 (3) SA 318
(D), in particular at
326 D-F; S v Mpofu
1993 (2) SACR 109
(N), Metedad v National
Employers General Insurance Company Ltd
1992 (1) SA 494
(W), in
particular, at 498I-500A and Hewan v Kourie N.O. &
Another
1993
(3) SA 233
(T) in particular at 238G -
241E
and an unreported judgement of the industrial court. I do not
consider it necessary to discuss those cases in any specific manner
but will refer to any one of them in the course of this judgement
where to do so appears to be warranted.
[13] The
provisions of sec 3 of the Evidence Act which are relevant to this
appeal are those of sec 3(1)(c). It seems clear to me
that the
legislature enacted the provisions of sec 3 in order to create a
better and more acceptable dispensation in our law relating
to the
reception of hearsay evidence. The wording of sec 3 makes it clear
that the point of departure is that hearsay evidence is
not
admissible in civil and criminal proceedings. However, because the
legislature was conscious of various difficulties associated
with the
reception of hearsay evidence in our law up to that stage and wanted
to bring about a better dispensation, it created a
mechanism to
determine circumstances when it would be acceptable to admit hearsay
evidence.
[14] The
legislature also decided that the test whether or not hearsay
evidence should be admitted would be whether or not in a particular
case the court thought it would be in the interests of justice that
such evidence be admitted. It also decided on what factors a
court
should take into account in determining whether or not in a
particular case it would be in the interests of justice to admit
a
particular piece of hearsay evidence. The factors which a court must
take into account in order to determine this are those which
are set
out in sec 3 (1)(c)(I)-(vii) which includes any other factor which,
in the opinion of the court, should be taken into account.
Accordingly, in a criminal case, for example, it is neither the
interests of the State nor those of an accused person nor is it,
in a
civil case, those of the plaintiff, nor, those of the defendant which
are decisive. This is not to say that a court will disregard
those
interests. Indeed, it will consider them but in doing so it must not
lose sight of the fact that it is the interests of justice
which are
decisive.
[15] At
this stage it is necessary to consider the factors mentioned in sec
3(1)(c) in the context of this appeal. However, before
I can do so I
wish to point out that the industrial court was not a court of law.
[16] For
the reason stated above, it is possible that the unfair labour
practice proceedings which were conducted before it in terms
of sec
46(9) of the old Act could not be described as civil proceedings as
contemplated in sec 3(1) of the Evidence Act. The sec
46(9)
proceedings in the industrial court could, obviously, not be
described as criminal proceedings. However, in some way, they
could
also be seen as an inquiry. Although in practice legal representation
was normally allowed, the proceedings were characterised
by a certain
degree of informality. Indeed, it had even been said that the
statement of case which an applicant had to file, and,
the statement
of defence, which a respondent had to file, in those proceedings were
not pleadings as we know them in courts of law.
However, the
presiding officers were required to be appointed on the basis of
their knowledge of law. I think the nature of the proceedings
in the
industrial court would support the admission of the hearsay evidence
under consideration.
(b) The
nature of the evidence
[17] The
hearsay evidence was that of Mr Goebel who testified that Mr Moremi
had told him that the second respondent had threatened
him. Mr
Goebel’s hearsay evidence was corroborated by Mr Moremi’s
evidence on affidavit which was also to the effect that the
second
respondent had threatened him. This was not evidence on some
secondary issue in the proceedings but evidence that was central
to
the fairness or otherwise of the dismissal of the second respondent
because, to a very large extent, the substantive fairness
or
otherwise of the dismissal of the second respondent depended on it.
[18]
My initial view was that the nature of the hearsay evidence was such
as to support the exclusion of the non-hearsay evidence.
However, on
reflection I think this need not be so. I say this because it seems
that there can’t be, or, ought not to be, any basis
for any
suggestion that in the light of the nature of the hearsay evidence it
would be more in the interests of justice to admit
the hearsay
evidence than it would be to exclude it.
[19] If
one admits the hearsay evidence, then the prejudice to the second
respondent is very serious because the evidence goes to
the heart of
his defence, and, yet, he may well be innocent. However, also, if the
evidence is excluded, then the appellant and Mr
Moremi would suffer
serious prejudice because (a) the appellant has no way of proving the
guilt of the second respondent on what
is clearly a very serious
offence in circumstances where the second respondent may well be
guilty
and
(b)
to exclude the hearsay evidence may well play into the hands of bad
elements in the workplace or in society in that it may mean in
effect
that people can indulge in all kinds of acts of misconduct or
criminal conduct with impunity if they ensure that complainants
and
witnesses to their deeds are either killed or intimidated into not
coming to court to testify against them. That is totally unacceptable
and is an evil because, if it becomes part of our life, it will
destroy the very foundations on which our society is built. That
does
not mean that, just because of those considerations, hearsay evidence
must be admitted without due regard being had to the rights
and
interests of those alleged or accused of offences or acts of
misconduct. If that were to be allowed to be part of our life,
more
often than not many persons will be condemned as guilty and punished
or dismissed from their jobs for deeds of which they may
well be
innocent simply because evidence is admitted which they cannot
challenge in any effective manner. Accordingly by making the
interests of justice to be the decisive factor, the legislature has
sought to ensure a balancing act will have to take place before
the
court can finally say what is in the interests of Justice.
(c) The
purpose for which the evidence is tendered.
[20] The
purpose of the hearsay evidence was to establish that the second
respondent was guilty of threatening Mr Moremi. Whether
the evidence
is admitted or excluded, one of the parties would be seriously
prejudiced. This was not a case of the appellant trying
to shield Mr
Moremi from cross-examination for fear that he might not survive the
cross-examination. Indeed the bona fides of the
appellant in this
whole exercise have never been challenged. It also has not been
suggested that the appellant did not try its best
to secure Mr
Moremi’s attendance in the industrial court to testify.
(c) The
probative value of the evidence
[21] On
the whole I think that the hearsay evidence in question in this
matter is reasonably good. I say this because:-
(a) it
was presented in simple and straight forward manner;
(b) the
second respondent only offers a bare denial of the allegation that he
threatened Mr Moremi;
(c)
the second respondent did not challenge or deny the evidence of Mr
Goebel that, when, on the day of the alleged incident, he
returned
from the staff canteen, he found Mr Moremi
“shaken
up”
and nervous, also the second respondent offers no reason why Mr
Moremi, who obviously was not
“shaken
up”
and nervous when Mr Goebel left the room service department to look
for him, would have suddenly become
“shaken
up”
and nervous; the second respondent also did not challenge the
veracity of Mr Goebel’s evidence that the explanation which Mr
Moremi
gave him for his condition was that he (i.e the second
respondent) had threatened him.
[22] Although
Mr Moremi did not testify in the industrial court, he had testified
in the disciplinary inquiry. In his evidence there,
Mr Moremi had
stated that the second respondent had threatened him. He gave this
evidence in the presence of the second respondent
and yet the second
respondent did not cross-examine him. In fact the second respondent
elected not to give evidence in the enquiry
to rebut Mr Moremi’s
evidence.
[23]
When the second respondent was asked under cross-examination in the
industrial court why he had not given evidence in the inquiry
to
challenge Mr Moremi’s evidence, the explanation he gave was highly
unsatisfactory. His explanation was that the allegation that
he had
threatened Mr Moremi was
“very
much scary things to me, it was a shock to me and so I became
humbled: I did not know actually what
to
ask him.”
Accordingly, in so far as the basis for objecting to the hearsay
evidence of Mr Moremi may be that the second respondent would not
have an opportunity to challenge and to cross-examine Mr Moremi, the
answer is that is not very bad because it is not as if the second
respondent had never had an opportunity to cross examine Mr Moremi.
He had such an opportunity in the inquiry but had chosen not
to use
it.
[24] The
second respondent’s representative in the disciplinary inquiry was
asked by the chairman of the inquiry what the second
respondent had
to say about the version that he
“came
up, went to Philemon [Moremi] and told him you would kill him. In
response to this, the second respondent’s representative
proffered
a version of what had happened. He said that the second respondent
had gone up, “showed Tobi the docket and asked Mr
Moremi why he
said he was gone for so long if it was only 15 minutes and he just
ignored
him.”
When the second respondent was asked under cross-examination about
this version, he denied that that is what he had done but could
not
explain where his representative could have got that version from if
he had not got it from him. In all of those circumstances
it appears
to me that the hearsay evidence had good probative value.
(d) The
reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends.
[25] In
this case the evidence by Mr Goebel that the second respondent had
threatened to kill Mr Moremi could not be given by Mr Moremi
because
Mr Moremi feared for his life if he came to the industrial court and
testified against the second respondent. He feared because
the second
respondent had threatened him that, if he testified against him, he
would kill him. This was a second threat. Since Mr
Moremi was
prepared to state in an affidavit that the second respondent had
threatened him, I have difficulty in accepting that Mr
Moremi was
scared to testify against the second respondent as such.
[26] I
think, strictly speaking, what the second respondent may have been
scared of was to go to court where he knew the second respondent
would be present. Maybe what Mr Moremi feared was that, if he went to
the industrial court, the second respondent could either follow
him
or arrange for someone to follow him and harm him. I say this because
if he was prepared, as he was, to put his evidence on affidavit
and
say what he would have said in the witness box? why could he not have
said the same thing in the witness box. Maybe if he was
given an
opportunity to testify in a place where the second respondent would
not be present and would not know such place, he may
well have been
prepared to give oral evidence. But that would be an extra-ordinary
measure and the parties do not appear to have
thought of it. Not that
necessarily I think such a measure would have been consistent with
the constitution or would have been appropriate.
I say this simply on
the assumption that it would be constitutional to resort to such a
measure.
(e) Any
prejudice to a party which the admission of such evidence might
entail
.
[27] I
have already dealt with this factor when I was dealing with the
nature of the evidence.
(f) Any
other factor which should, in the opinion of the court, be taken
into account.
[28] Another
factor which I think needs to be taken into account is that the
appellant had made serious attempts to secure Mr Moremi’s
attendance in Court to testify but Mr Moremi was not prepared to risk
his life. No one could blame him for that. Furthermore it must
also
be taken into account that, since the legislature intended hearsay
evidence to be admitted in courts of law if to do so would
be in the
interests of justice, it is highly unlikely that the legislature
would demand a higher test before hearsay evidence can
be admitted by
an administrative tribunal like the industrial court than the test
to be applied by courts of law in the admission
of hearsay evidence.
Conclusion
[29] In
the light of all the above I have no hesitation in coming to the
conclusion that the industrial court ought to have admitted
the
hearsay evidence. Once the hearsay evidence was admitted, there can
be no doubt that there would have been more than sufficient
evidence
to find that the second respondent had threatened Mr Moremi and that,
for that reason, his dismissal was substantively fair.
The contrary
was not argued by the respondents in this appeal. Accordingly the
finding of the industrial court that the dismissal
of the second
respondent constituted an unfair labour practice cannot stand and
falls to be set aside. Accordingly I make the following
order:-
(1) The
appeal succeeds with costs;
(2) The
determination of the industrial court is set aside and is replaced
with one in the following terms:-
“
(a) The
dismissal of the applicant did not constitute an unfair labour
practice and the application is dismissed.
(b) there
is to be no order as to costs.”
_________________
RMM
Zondo
Acting
Judge President
I
concur I concur
_____________________ ____________________
J.H
Conradie M.T.R. Mogoeng
Judge
of Appeal Acting Judge of Appeal
Appearances:
For
the appellant : Adv. A. Franklin
Instructed
by : Deneys Reitz, Sandton
For
the respondent : Mr Zibi (A union official)
Date
of hearing : 1 December 1999
Date
of Judgement : 7 March 2000