Summary of Judgment

1. Introduction

This was an appeal to the Labour Appeal Court against a judgment of the court a quo which had found that the dismissal of the employee constituted an unfair labour practice and had ordered the employee’s reinstatement.

The appellant was the Administrator of the Province of KwaZulu-Natal (the employer). The respondent was S. Lot (the employee), who at the time of the events was employed as a pharmacy assistant at Addington Hospital.

The dispute arose from events on 3 November 1994, followed by an internal disciplinary inquiry held on 10 July 1995 in which the respondent was found guilty of unlawful possession of pharmaceutical products belonging to the employer. The presiding officer recommended a fine and a transfer. An internal appeal against the finding of guilt was dismissed by letter dated 5 September 1996. The proceedings in the court a quo commenced in early 1997, and the matter was heard at some stage in 1999, culminating in the reinstatement order that was challenged on appeal.

The general subject-matter of the dispute concerned whether the employer had proved, on the evidence, that the respondent unlawfully possessed hospital pharmaceutical products and, if so, whether the dismissal was unfair.

2. Material Facts

The events giving rise to the dismissal were alleged to have occurred while the respondent was leaving the hospital premises. The employer’s case relied primarily on the evidence of Mr T Zulu, a security guard on duty at the gate in front of Addington Hospital.

On the employer’s version, Mr Zulu observed the respondent leaving the hospital carrying a jacket under his arm, with apparent bulges in it. Mr Zulu asked to see the jacket; the respondent continued walking and then ran when Mr Zulu followed him. Mr Zulu pursued and apprehended him near a police station, where members of the South African Police Service searched the jacket at Mr Zulu’s request and found pharmaceutical products in its pockets. Mr Zulu summoned Mr H.J. Coetzee (a senior security officer), after which Mr Zulu, Mr Coetzee, and the respondent returned to the hospital security office. Mr D.R. Gooden (principal/chief pharmacist) was called to identify the products as hospital property and determine their cost. Thereafter Mr Zulu and Mr Coetzee took the respondent back to the police station, where he was charged.

On the respondent’s version, he had arranged to leave work at 12h00 and was expecting a lift from a friend whose car would be parked in front of the hospital. He had additionally agreed to assist a colleague, Mr B.W. Munsamy, in recovering excess medicines from certain wards. He placed the excess medicines in a plastic bag. While returning to the pharmacy, he walked towards the exit to check whether his friend’s car was present, confirmed that it was there, and turned back to go to the pharmacy. He maintained that he was still within the hospital premises when Mr Zulu approached, grabbed him, and took him to the police station. The respondent asserted that he was wearing a white jacket as part of his hospital attire and that he did not have a jacket under his arm.

The court a quo regarded neither Mr Zulu nor the respondent as good witnesses, but assessed the respondent as slightly better, and treated the other employer witnesses as of limited assistance because they were not eye-witnesses to the initial apprehension. It ultimately preferred the respondent’s version as slightly more probable.

On appeal, the Labour Appeal Court treated certain evidence as materially corroborative of Mr Zulu’s account. In relation to the clothing issue, Mr Zulu said the respondent carried a jacket under his arm and emphasised it was not white. Mr Coetzee testified that at the police station he saw a leather jacket on the counter and did not see a white jacket. Mr Gooden testified that in the security office the respondent was not wearing a jacket and that he did not see a white jacket; he described the respondent as wearing a windbreaker. Although the descriptions differed, the Labour Appeal Court emphasised the concurrence that the respondent was not wearing a white jacket.

In relation to the container in which the medicines were held, the respondent claimed the products were in a plastic bag, whereas Mr Zulu’s version was that they were in the pockets of the jacket. Mr Coetzee testified that the products were taken back to the hospital in a large official envelope, and Mr Gooden did not see a plastic bag of the kind used to collect medicines from wards in the security office.

Finally, Mr Coetzee testified that, while the respondent did not expressly admit stealing the products, he apologised and asked that the charges be dropped. Mr Gooden testified to a similar effect.

3. Legal Issues

The central legal questions were whether, on the evidence, the employer had discharged the onus of proving on a balance of probabilities that the respondent was guilty of the misconduct, namely the unlawful possession of pharmaceutical products belonging to the employer, and whether the court a quo had erred in concluding that the dismissal constituted an unfair labour practice.

The dispute was primarily concerned with fact and the application of the civil standard of proof to conflicting versions, including whether corroborative evidence supported one version over the other. It also implicated a limited evaluative question regarding the appropriateness of sanction; however, it was expressly noted on appeal that it was not contended for the respondent that dismissal would be an inappropriate sanction if guilt were established.

4. Court’s Reasoning

The Labour Appeal Court considered the unusual procedural and temporal history relevant to assessing the evidence. It noted that the events occurred in 1994 but that witnesses for the employer testified more than four years later, which could reasonably affect memory and clarity. It also observed that the respondent’s personal interest in the events might keep his memory more focused, although the passage of time could still affect him.

The Labour Appeal Court held that the court a quo misdirected itself in treating the respondent’s version as more probable. It characterised the respondent’s account as having an inherent improbability, particularly because it did not satisfactorily explain why Mr Zulu would allegedly behave in the manner described by the respondent, especially where the respondent expressly disavowed any mala fide motive on Mr Zulu’s part. The appeal court’s critique focused on the logic and plausibility of the competing narratives rather than merely demeanour.

A significant aspect of the Labour Appeal Court’s reasoning was that the court a quo failed to take proper account of evidence that tended to corroborate Mr Zulu’s version. Although the employer’s additional witnesses were not eye-witnesses to the apprehension itself, their evidence was treated as supporting objective elements of Mr Zulu’s account and undermining central components of the respondent’s narrative.

First, the appeal court treated the evidence relating to the absence of a white hospital jacket as corroboration. Despite variations in descriptions (leather jacket, windbreaker, and an unspecified jacket), the appeal court placed weight on the common feature that none of the witnesses corroborated the respondent’s claim that he wore a white jacket at the relevant times. It rejected the notion that the differing descriptions necessarily undermined reliability, attributing those differences plausibly to the lapse of time, and found it important that no conspiracy against the respondent was suggested.

Secondly, the appeal court treated the evidence about the container used for the pharmaceutical products as corroborative of Mr Zulu. If, as the respondent claimed, the products were carried in a plastic bag, the appeal court considered it probable they would have been transported in that same bag rather than transferred into a large official envelope. The absence of evidence of the plastic bag in the security office, combined with Mr Coetzee’s evidence about the envelope, was regarded as inconsistent with the respondent’s explanation and supportive of the employer’s version that the products were found in the jacket pockets.

Thirdly, the appeal court relied on the evidence that the respondent apologised and asked that the charges be dropped. It reasoned that, while there might not have been an explicit admission, the apology in context was tantamount to a confession and was, in any event, inconsistent with the respondent’s account of being wrongfully apprehended. On the respondent’s version, the appeal court reasoned, it would have been expected that he would seek an apology rather than offer one.

Having considered these corroborative features, the Labour Appeal Court concluded that Mr Zulu’s evidence, although not that of a “good witness” and potentially affected by the passage of time, could not be rejected and in fact had to be accepted when viewed alongside the corroboration. It held that, when the probabilities were weighed properly, the employer had discharged the onus.

On that basis, the Labour Appeal Court held that the court a quo ought to have found that the respondent was guilty of the unlawful possession of the pharmaceutical products and that the dismissal therefore did not constitute an unfair labour practice. The appeal court also noted that the appropriateness of dismissal as sanction was not placed in dispute if guilt were proved.

5. Outcome and Relief

The Labour Appeal Court upheld the appeal.

It set aside the order of the court a quo and substituted it with an order dismissing the respondent’s application. The reinstatement order granted by the court a quo was therefore overturned.

As to costs, the Labour Appeal Court held there was no good reason to depart from the principle that costs follow the result, and it awarded costs against the respondent in both courts.

Cases Cited

No external cases were cited in the judgment.

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The Labour Appeal Court found that the court a quo misdirected itself in preferring the respondent’s version as more probable and in failing to give proper weight to corroborative evidence supporting the employer’s version. On a balance of probabilities, the employer proved that the respondent unlawfully possessed pharmaceutical products belonging to the employer. Consequently, the dismissal was not an unfair labour practice. The appeal was upheld with costs, and the application in the court a quo was dismissed with costs.

LEGAL PRINCIPLES

The judgment applied the principle that, in employment misconduct disputes of this kind, the employer bears an onus to prove the alleged misconduct on a balance of probabilities, and that the adjudicative task requires a comparative assessment of competing versions in light of inherent probabilities and corroboration.

It further applied the principle that a court may err where it treats a version as probable without properly confronting its inherent improbabilities, particularly where the version depends on unexplained and unlikely conduct attributed to another witness without any alleged motive.

The judgment also applied the evidentiary principle that corroborative evidence from non-eye-witnesses may still be materially relevant where it supports or undermines central aspects of contested versions, such as objective features relating to clothing, the handling of items, and post-incident conduct (including an apology), and that apparent inconsistencies in peripheral description may be explicable by lapse of time without negating the corroborative effect.

Finally, the judgment reflected the principle that where misconduct is proved and no argument is advanced that dismissal is an inappropriate sanction, a finding that the dismissal constituted an unfair labour practice cannot stand, and the successful party will ordinarily be awarded costs absent a demonstrated reason to depart from that outcome.