Luthuli v Portnet (DA18/2000) [2001] ZALAC 21 (29 June 2001)

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[2001] ZALAC 21
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Luthuli v Portnet (DA18/2000) [2001] ZALAC 21 (29 June 2001)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: DA18/2000
In
the matter between
Sitimu
Luthuli
Appellant
and
Portnet

Respondent
JUDGMENT
VAN
DIJKHORST AJA
This appeal is
against an order of the Industrial Court which upheld the dismissal
of the appellant on the grounds of theft.
At the
commencement of this appeal counsel for the appellant moved for a
postponement of the hearing on the grounds that the appellant
had
now changed his attorneys and had been advised by his present
attorneys that he should have given evidence in the Industrial
Court, which he, allegedly on the advice of his previous attorney,
had failed to do. We were told that the purpose of the postponement
was to lead such evidence, to our surprise, in this Court. The
application did not set out what the content of the proposed
evidence
was to be, or the reasons for this advice of the erstwhile
attorney, and we were wholly unable to determine the weight and
materiality
of this evidence.
It is essential
that trials come to finality. Unless there are exceptional
circumstances, a litigant must stand or fall by the evidence
he
adduces at the trial. A Court will be very reluctant to allow new
evidence after a case has been tried. Shein v Excess Insurance
Company Ltd
1912 AD 418
, 428-9: Colman v Dunbar
1933 AD 141
, 160-1;
Oosthuizen v Stanley
1938 AD 322
, 333; Mkwanazi v van der Merwe
1970 1 SA 609
(A) 626E-H; The fact that on the advice of his
attorney a party presents evidence or refrains from doing so, is not
an exceptional
circumstance. It is the way in which litigation is
normally conducted. A client is bound by the decision of his legal
representative
to call or not to call a witness, including the
client himself. R v Matonsi
1958 2 SA 450
(A) 456-7: S v Louw
[1990] ZASCA 43
;
1990
3 SA 116
(A) 124A-125E. To hold that this fact is a ground for
reopening would create chaos and open the door to fraud and perjury.
For these
reasons we dismissed the application for a postponement. Thereupon
counsel, who had only been briefed for that purpose,
withdrew and
the appellant argued his case in person through an interpreter.
We granted
condonation to the appellant for the late filing of the record and
the notice of appeal.
The appellant
worked for the respondent as a “hyster” driver in shed 100 on
the respondent’s premises at the new pier section
of the Durban
harbour. One Johan Mantengu also worked for the respondent as a
hyster driver although he worked at Maydon Wharf.
During December
1995 a large quantity of nickel sheets was stored in shed 101 which
was adjacent to shed 100 where the appellant
worked. On 15 December
1995 the appellant had to work from 14H00 to 22H00.
During that
evening the operations manager of the respondent was informed
telephonically that nickel was being removed from shed
101. He
alerted the security personnel. Whilst two security guards were
driving towards shed 101 they observed a BMW vehicle
coming in their
direction from the direction of shed 101. Mr Mantengu was the
driver of the BMW. The vehicle was searched and
nickel was found
inside the vehicle as well as in the boot thereof. Mantengu
informed them that he had been hired by the appellant.
He was
taken to the security office and the police were called. Mantengu
indicated that the appellant could be found at the MHA
garage and
they went there in search for him. When they arrived there they saw
a hyster that was left with its lights on and with
nickel sheets in
its bin. Enquiries were made by the security personnel from the
people inside the bathroom area and the reply
was received that the
appellant had already left. He was later arrested.
At a
disciplinary enquiry that commenced on 24 January 1996 the appellant
and Mantengu were charged with theft. The appellant was
not present
on that day and the matter was adjourned to secure his presence.
Telegrams were sent to the address that the appellant
had supplied
to the respondent, but when the enquiry was reconvened on 2
February 1996 there was still no appearance by the appellant.
The
matter was adjourned to 19 February 1996 for further attempts to be
made to secure his attendance. On 19 February 1996 there
was again
no appearance by the appellant and the matter proceeded in his
absence.
Mr Pillay, the
investigating officer on behalf of the respondent testified that at
court, where the criminal proceedings were pending,
he had spoken to
the appellant and had told him that his disciplinary enquiry would
be held on 19 February 1996 and that his attendance
was required.
As stated, the
enquiry proceeded in the appellant’s absence. Mantengu pleaded
guilty to the charge and stated the following.
The appellant had
hired him to convey nickel to the MHA garage for an amount of
R1000.00. The appellant indicated to him that
he wanted to use the
nickel sheets to build a squatter shack. The appellant had loaded
the nickel into Mantengu’s vehicle and
Mantengu was on his way to
the MHA garage when he was stopped by security officers. Prior to
that the appellant was following
him, but upon him being stopped
turned off towards shed 101. Mr M P Shabalala informed the enquiry
that he and his colleague after
stopping Mantengu’s car and taking
Mantengu to the security office, were told by the South African
Police to go back to the scene
and look for the hyster used. They
could not find it and upon advice from Mantengu, who was in the van,
that the appellant dressed
for work at the MHA, they went there and
were shocked to see a big hyster carrying an iron bin and inside it
a lot of nickel sheet,
stationary but with the engine idling and no
driver. They were informed that the appellant had left.
A witness, Mr S
David, informed the enquiry that he had accompanied Shabalala, and
corroborated his evidence. He further said that
on two occasions
they met the appellant at court. He informed the appellant of the
hearing of the enquiry and the dates thereof.
On 14 February 1996
he informed him that the enquiry would resume on 19
February
1996. The appellant acknowledged to David that he understood this
information.
At the end of
the enquiry the appellant and Mantengu were both found guilty and
dismissed from the respondent’s employ. After
the usual number of
postponements the criminal case was heard in the magistrates court
on 17 October 1996. Mantengu in protesting
his innocence, became
an unsatisfactory witness. The appellant did not give evidence.
Mantengu was convicted and the appellant
acquitted. Only thereafter
did the appellant approach the respondent through his attorneys and
ask for another enquiry to be convened
to establish whether he was
guilty of misconduct. This request was refused.
After further
lengthy delays of which the particulars are not relevant to this
appeal, the hearing before the Industrial Court
in terms of section
46(9) of Act 28 of 1956 took place on 26 and 27 June 2000, the
Portnet Bargaining Council having failed to
resolve the matter. The
appellant was represented by an attorney and by agreement evidence
for the appellant was led first. The
appellant did not testify but
called one Khumalo as a witness who testified that somebody else and
not the appellant had loaded
the nickel into Mantengu’s car. He
stated that this was Mantengu. He knew the appellant and heard that
he had been arrested
but did not report this to the police. There
were various other unsatisfactory aspects in his evidence and he was
rightly labeled
a mendacious witness. On behalf of the respondent
Mantegu testified, as did a number of other witnesses. Mantengu
repeated his
version that the appellant had loaded the nickel into
his BMW but stated that this was done without any prior arrangement.
When
questioned the appellant had indicated that he would
remunerate him to the tune of R1000.00 for transporting the nickel
to Kwa-mashu.
Mr Shabalala gave the evidence which I have already
set out, as did Mr Pillay. Pillay further testified that he took
Mantegu
out of the police cells on 15 December 1995 and that
Mantengu took him to shed 101 where he saw a hyster outside the
shed. Mantengu
identified the hyster as belonging to the appellant.
Pillay took the registration number of the hyster and went to the
MHA garage
to check whether the information was correct. The
records proved that it was. The hyster was booked out in the
appellant’s
name. The appellant’s shift was from 14H00 to
22H00. It was not yet 22H00 and he waited for the appellant to
arrive, but the
appellant never came. At the MHA garage there was
another hyster with nickel in its bin which had been booked out to
one Biyela
against whom another case was still pending. During the
course of his investigations Mr Pillay questioned the appellant, who
elected
to remain silent.
Mr Bosch, the
appellant’s supervisor, testified that on 15 January 1996 he had
handed the appellant a notice to attend the disciplinary
enquiry on
24 January 1996. The appellant refused to sign a copy acknowledging
receipt. Mr Masinga testified that he had sent
telegrams to the
appellant’s address notifying him of the enquiry. It was put to
him that the appellant’s address had changed
and that the
appellant never received them. No evidence of a change of address
was led.
On the basis of
the facts set out the Court found that there was a clear need for
the appellant to testify during the hearing and
that as he had
failed to do so there were strong indications that his version as
put to the respondent’s witnesses was false.
The Court found that
the charge of which the appellant was found guilty was a serious one
that warranted the sanction of dismissal.
It rejected the argument
that the procedure was unfair because the disciplinary enquiry was
held in the appellant’s absence
and because the respondent
thereafter refused to convene another one. For that the appellant
had only himself to blame. It concluded
that the appellant’s
dismissal was substantively and procedurally fair.
Short shrift
can be made of this appeal. Procedurally the disciplinary hearing
is unassailable. Due notice was given to the appellant
and he
failed to attend. In these circumstances the respondent had no
option but to proceed. Substantively the dismissal was
fair. The
theft of nickel, some 22 sheets at night by a hyster driver at the
docks, is very serious misconduct indeed. It warrants
dismissal.
On the merits the appellant did not present any acceptable evidence.
His guilt was proven unequivocally.
The appeal is
dismissed with costs. The costs include the costs of the
applications for postponement and condonation.
Van
Dijkhorst AJA
I
agree I
agree
Zondo
JP Comrie
AJA
For
appellant: Adv A M Kwitshana
Instructed
by Mathe Zondo Inc
Durban
For
Respondent: Adv S R Balton
instructed
by Hughes-Madondo Attorneys
Durban
Date
of argument: 13 June 2001
Date
of judgment: 29 June 2001