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[2013] ZALAC 8
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South African Breweries Ltd v Retail and Allied Workers Union and Others (JA 10/2010) [2013] ZALAC 8 (29 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Case No JA 10/2010
In the matter between:
SOUTH AFRICAN BREWERIES LIMITED
...........................................................
Appellant
(Amalgamated Beverage Industries
Limited,
Soft Drink Division)
and
RETAIL AND ALLIED WORKERS UNION
..............................................
First
Respondent
ELLINGTON MVUMA
.........................................................................
Second
Respondent
COMMISSOPNER FOR RECONCILIATION,
MEDIATION AND ARBITRATION
..........................................................
Third
Respondent
COMMISSIONER THULANI DUBE N.O
..............................................
Fourth
Respondent
Heard: 29 May 2013
________________________________________________________________
JUDGMENT
JAPPIE, JA
[1] I have read the judgment of
Molemela AJA and I do not agree with her conclusion.
[2] The learned Judge came to the
conclusion;
‘
I
am satisfied that the fourth respondent’s credibility findings
were justified. In my view, the court
a
quo
correctly found that the fourth respondent’s decision was one
that a reasonable decision-maker could reach. It also correctly
dismissed the application for review. I would accordingly dismiss the
appeal with costs.’
[3] Molemela AJA correctly concluded
that the outcome of the appeal is dependent on a finding in regard to
credibility. The issue
of credibility has been identified correctly
by the second respondent in paragraph 23 of the second respondent’s
heads of
argument where the following submission is contained:
‘
It
is submitted that in coming to his conclusion, the Commissioner was
faced with two versions hereto and had to accept one over
the other.
Therefore, Mvuma’s version was accepted as most probable on the
basis of evidence and facts before the Commissioner
as evident from
the award and on the record. It is further submitted that this
finding was based on finding of credibility in favour
of (the) Mvuma
against the Applicant’s witnesses. Having due regard to the
record, evidence led, and considerations given
to the evidence and
weighing up same, the conclusion derived at was reasonable based on
logical reasoning as can be gleaned from
the award.’
[4] The chronology of the events
giving rise to the appeal is set out succinctly in paragraph 3 to 9
of Molemela AJA’s judgment
and there is no need for repetition.
[5] The second respondent was
dismissed from his employment by the appellant for dishonesty in that
‘on the 24
th
January 2003- 49 cases of 340ml cans
were found in the vehicle without documentation.’ It is common
cause that when the delivery
vehicle driven by the second respondent
was stopped it had on it 49 cases of 340ml cans which could not be
accounted for on the
delivery vehicle. It is this fact which gave
rise to the second respondent being disciplined and dismissed from
his employment.
[6] There are two versions as to how
the 49 cases came to be loaded on the delivery vehicle. The
appellant’s version as testified
to by Zelda Goosen who was
supported by Rezelle Van Der Westhuizen, Dawid Dippennar and
Magdalena Haywood is as follows;
‘
On
the 23
rd
January 2003, the second respondent approached Goosen with a proposal
that they i.e. (Goosen and the second respondent) should
collaborate
in stealing stock (soft drinks) from the depot. This resulted in a
meeting between Dippenaar, Haywood and Goosen during
which it was
agreed that Goosen would be given indemnity and that she should play
along with the second respondent.’
[7] On the 27
th
January
2003, Goosen reverted to the second respondent and informed him that
she was prepared to go along with him. The second
respondent was
required as a driver to deliver goods to customers. It was in this
context that Van Der Westhuizen gave the second
respond a load order
sheet on the understanding that the load would be prepared and
thereupon be delivered by the second respondent.
The order was duly
loaded on a truck. Upon completing the loading the load sheet was
signed by Goosen and as the truck, driven
by the second respondent
was leaving the depot, it was stopped by Haywood after apparently
being tipped off by Goosen who confronted
the second respondent. The
truck was searched and it was found that it contained 90 cases of
soft drinks of which 49 cases were
in excess of the order. The second
respondent was then suspended and charged with misconduct.
[8] The second respondent’s
account as to how extra stock came to be found on the back of the
delivery truck was not articulated
by him at the arbitration but
rather appears in the course of Goosen’s cross-examination by
the second respondent’s
representative and what was put to her
reads as follows:
‘
MR
KHOSA
:
the question is, at the time when the applicant went to collect the
invoices at the office, he was informed that you have the
invoices,
and when he came to you he found you busy checking the truck.[Y]ou
are the one who informed the applicant that the truck
was short of
stuff and you [had] already requested the warehouse to bring those
items, and in indeed the forklift came., Those
items were loaded in
front of you, and you signed that everything was okay’.
The contention of the second
respondent is that Goosen had framed him by loading 49 additional
cases of soft drinks into the truck
without his knowledge.
[9] When the fourth respondent (the
Arbitrator) had to assess the two versions and in doing so he came to
the following conclusion;
‘
I
find no sufficient evidence to prove that the applicant had made
proposition to defraud the respondent. The respondent’s
witnesses Mr Dippenaar and Ms Haywood fell short to prove that the
applicant on 24 January 2003
had
intentionally left the respondent’s premises with extra
stock...
In
this matter there was insufficient evidence placed at the arbitration
hearing that the applicant had the intention to defraud
the
respondent and had intentionally loaded the vehicle with extra stock.
There was insufficient evidence proving that he had taken part in
the loading of the vehicle.’
(My emphasis).
[10] In the Labour Court, one of the
grounds upon which the appellant sought to review and set aside the
fourth respondent’s
award was that the fourth respondent had
failed to apply his mind to the material facts which constituted both
gross irregularity
and an act of unreasonableness.
[11] The Labour Court dismissed the
review having come to the conclusion that:
‘
In
view of the fact that the fourth respondent was charged with the
responsibility to determine the fairness of the dismissal, it
would
be improper for the reviewing court to find then that where he had
find that there was
insufficient
evidence
,
it should upset that finding simply because the aggrieved party, the
applicant in this regard, has a different interpretation
of the
evidence that was before the Arbitrator.’
[12] In my view, the fundamental error
made both by the fourth respondent and the Labour Court is the
failure to have regard to
the minutes of the disciplinary enquiry. At
the disciplinary enquiry, held on 6 February 2003, the second
respondent gave the following
account as to how the delivery truck
was loaded:
‘
I
checked at the point and this load report was with Zelda [Goosen]. I
gave her the hand written order and went out to pack my load.
When I
was done Zelda checked my load and said I was short of 50 cases. I
enquired which flavour was short and she said Coke. As
Rezell [Van
Der Westhuizen] has said I must hurry, I grabbed the 50 cases [of]
coke and loaded these onto the truck. We signed
and I was ready to
leave.’
[13] It is clear from this account,
which is the second respondent’s first account as to how the
extra 49 cases were loaded
in the truck that there is no suggestion
that Goosen had done so without his knowledge. In fact he stated that
he had loaded the
50 cases. If this is indeed so there can be no
suggestion that Goosen had arranged for the loading of the 50 cases
without his
knowledge in order to frame him.
[14] Moreover, there is the additional
evidence given by Kenneth Tshabebi at the disciplinary enquiry. His
testimony is as follows:
‘
[Mvuma]:
Do you still remember what happened on 24 January 2003?
[Tshabedi]:
Yes.
[Mvuma]:
Who made the order for us?
[Tshabedi]:
The two of us.
[Mvuma]:
What type of paper were we using?
[Tshabedi]:
One paper-1 full scrap (A4).
[Mvuma]:
When loading the truck, who was with us?
[Tshabedi]:
A white lady.
[Mvuma]:
How did we get the extra 50 cases?
[Tshabedi]:
We loaded 3 pallets, everything was there
[Mvuma]:
Who instructed us to get the 50 cases?
[Tshabedi]:
There was no extra 50 cases, everything was there.’
It is apparent from the Tshabedi
evidence that Goosen had nothing to do with the order that was
loaded, that she had instructed
extra 50 cases to be loaded and that
she had arranged for such to be loaded.
[15] It is common cause that the
aforesaid material was placed before the fourth respondent and indeed
was available for the Labour
Court. It is further apparent from the
award and from the judgment of the Labour Court that the aforesaid
material had not been
taken into account. In my view, if the fourth
respondent had applied his mind to the aforesaid material, he could
not reasonably
have concluded that ’there was insufficient
evidence proving that he (the second respondent) had taken part in
the loading
of the vehicle.’
[16] Moreover, by failing to take into
account as to what had occurred at the disciplinary enquiry the
assessment of the fourth
respondent as to the credibility of the
second respondent is therefore unreasonable. If the first version
given by the second respondent
at the disciplinary hearing that
Goosen was not involved at all in the loading of the truck and
supported to that extent by the
evidence of Tshabedi then, in my
view, the second respondent’s claim that he had been framed by
Goosen is not credible. The
only credible version as to what occurred
on 24 January 2003, is that the second respondent had loaded 49 extra
cases into the
delivery truck without having the necessary
documentation and consequently ought to have perpetrated an act of
dishonesty. In my
view, the fourth respondent ought to have confirmed
the dismissal of the second respondent as being both procedurally and
substantively
fair. Consequently, the Labour Court had erred by not
allowing the review.
[17] In the result, I make the
following order:
That the appeal be upheld.
That the order of the Labour Court is
set aside and is replaced with an order as follows;
The review succeeds and the decision
of the fourth respondent is set aside and replaced with an award
which reads as follows:
The dismissal of the second
respondent is found to be both procedurally and substantively fair.
There is no order as to costs.
______________
Jappie JA
I agree
_____________
Waglay DJP
MOLEMELA AJA
[18] This is an appeal against the
whole judgment of the labour court in terms of which the appellant’s
application for review
was dismissed with costs. The review
application was directed at the fourth respondent’s award in
terms of which he found
that the second respondent’s dismissal
was substantively unfair and ordered his re-instatement. The court
a
quo’
s dismissal of the review was on the basis that the
fourth respondent’s award was one that a reasonable
decision-maker could
reach and thus did not warrant to be set aside.
[19] Before dealing with the merits of
the appeal, I wish to comment on the state of the record that was
placed before this Court
for purposes of the appeal. Page 29 –
44 of the record is replete with what the transcription services
company has termed
“inaudibles”, i.e. inaudible parts of
the recording. Rule 5(7) of the Rules regulating the conduct of
proceedings of
the Labour Appeal Court provides that the appellant
shall file a copy of the record with the registrar of the court. It
has been
held in a plethora of cases that the record filed by the
appellant must be in order. Where an appellant is represented, the
responsibility
to place a proper record before the court rests with
the appellant’s attorney of record. It is expected of the
attorney to
peruse the record and satisfy himself that it is
complete. Given the state of the record filed in this matter, I can
only infer
that the appellant’s attorneys did not peruse it
before filing it. When the appellant’s counsel was questioned
about
the state of the record at the hearing of the appeal, no
satisfactory explanation was advanced, save to mention that only a
few
pages were in that state. For my part, reading a record in this
state was quite an onerous task. Be that as it may, I will leave
it
at that.
[20] I now turn to deal with the
merits of the appeal. At the disciplinary hearing constituted by the
appellant, the second respondent
was charged with: ‘dishonesty
in the course of employment in that on the 24
th
January
2003, 49 cases of 340ml cans were found in the vehicle without
documentation.’
[21] The appellant’s key witness
was one Goosen, a security guard and site manager in the employ of
Fidelity Guards Security
Company but posted at the appellant’s
depot premises. In a nutshell, Goosen’s evidence was that on 23
January 2003,
the second respondent approached her and proposed that
she collaborates with him in stealing stock (soft drinks) from the
appellant’s
depot, after which the two of them would equally
share the proceeds of the stolen stock. Goosen reported the second
respondent’s
proposition to her immediate supervisor,
viz
Haywood, who in turn reported same to the appellant’s depot
manager,
viz
Dippenaar.
[22] According to Goosen, a meeting
was held, which was attended by herself, Haywood and Dippenaar. This
meeting resolved that a
trap should be set for the second respondent,
with Goosen being promised indemnity from disciplinary steps in
return for playing
along in the entrapment. She agreed to partake.
She reverted to the second respondent the next day and accepted his
proposal on
the understanding that he would let her ‘know when,
what, where’ with regards to execution of the plan.
[23] Goosen’s version regarding
the second respondent’s proposition was corroborated by Haywood
and Dippenaar. According
to Goosen, in terms of the appellant’s
rules, the driver of the delivery truck and the “checker”
(security guard
checking the stock) were jointly responsible for
ensuring the accuracy of the amount of stock loaded on the delivery
truck. She
was the “checker” on that day. She checked the
stock with the second respondent and knew that there was extra stock
on the truck but since she was playing along she did not query this
excess and perfunctorily perused the delivery documents. The
second
respondent drove the truck out of the loading area. As he was trying
to drive out of the depot, the truck was stopped by
Haywood. It is
common cause that a subsequent search of the truck revealed that it
had 90 cases of soft drinks, this being 49 cases
in excess of the
order.
[24] In his version, the second
respondent vehemently denied the alleged proposition and the
existence of any collaboration to defraud
the appellant as asserted
by Goosen. According to him, he barely knew Goosen and could in any
event not have made any proposition
to her on 23 January 2003, as he
was away from the depot doing merchandising duties on that day. He
denied that he was unwilling
to stop the truck when Haywood signalled
to him to stop. He testified that as he was employed as a
merchandiser and not a driver,
he was not
au fait
with company
procedures governing the loading of the delivery truck and
accordingly did not take any responsibility for the accuracy
of the
stock that was on the truck. According to him, Goosen was the one
that checked the load
vis-à-vis
the order-sheet or
invoices and was the one who gave him the go-ahead to leave the depot
with the load on the truck.
[25] Under cross-examination, it was
asserted that the second respondent could not have made the
proposition because: (a) he was
not driving the delivery truck on 23
January 2003 (the day the proposition was allegedly made) and thus it
was not possible to
steal anything on that day; (b) he was away from
the depot merchandising at the time; (c) he did not know Goosen well;
(d) he had
not known that he would be doing deliveries the day after
the proposition and it was therefore unlikely that he would have made
the proposition; and (e) if there had been a plot to steal, this
would have occurred during the first delivery he made on 24 January
2003.
[26] It is common cause that although
the second respondent was employed as a merchandiser, he would, from
time to time, carry out
the functions of a driver by delivering stock
to the appellant’s customers whenever so instructed by the
appellant. It was
not disputed that the second respondent did not
receive any training pertaining to the loading and checking of stock
intended for
delivery. It is also common cause that on 24 January
2003, the appellant was instructed by his line manager to assist with
driving
the company delivery truck as the sales department was short
of a driver. He successfully completed the first delivery and
returned
to the workplace. He was subsequently instructed to do a
further delivery and was provided with an order sheet on the
understanding
that the load would be prepared and then be delivered
by the second respondent.
[27] In his award, the fourth
respondent, having referred to the fact that the company had the
onus
of proof, held as follows:
‘
In
this matter there was insufficient evidence placed at the arbitration
hearing that [Mvuma] had the intention to defraud the [company]
and
intentionally loaded the vehicle with extra stock. There was
insufficient evidence proving that he had taken part in the loading
of the vehicle. I find that the [company] has failed to discharge the
burden of proof. I therefore find that the dismissal was
substantively unfair.” … “I find no sufficient
evidence to prove that [Mvuma] had made [a] proposition to defraud
the [company]. The [company’s] witnesses... Dippenaar and...
Haywood fell short of proving that [the second respondent] on
24
January 2003 had intentionally left the [company’s] premises
with extra stock.’
The fourth respondent also found that
Goosen’s evidence was ‘unclear, unreliable and quite
unbelievable’.
[28] In dismissing the review
application, the court
a qu
o
inter alia
found that:
‘…
The
finding of the [commissioner] that the [company] failed to discharge
the burden of proof cannot be faulted. ...It is clear that
the case
of the [company] was strongly based on what Goosen had to say. It was
therefore important for the [commissioner] in determining
the alleged
dishonesty to consider the evidence of Goosen and where necessary be
critical of it as he did. Before making a conclusion
that her
evidence was unclear, unreliable and quite unbelievable, the
[commissioner] made reference to certain portions of her
evidence
which the [commissioner] found make her evidence quite unclear and
unreliable. I cannot fault that finding.’
[29] It was argued on behalf of the
appellant that the fourth respondent’s award was not a
conclusion that a reasonable decision-maker
could have made given the
evidence that was before him. It was argued that he rejected Goosen’s
evidence based on an erroneous
finding that she had not communicated
her willingness to collaborate in the theft to the second respondent.
It was also argued
that such a rejection of her version was made
without due regard being paid to the probabilities.
[30] Having considered the entire
record and the evidence put before the fourth respondent, I am not
persuaded that he committed
any irregularity that vitiates his
finding. For the reasons set out hereunder, I agree that Goosen’s
evidence was unclear,
unreliable and incredible. The version that she
presented at the disciplinary hearing was sketchy with regards to the
second respondent’s
proposition. While the version that she
presented at the arbitration hearing had more detail, the detail of
Goosen’s communication
of her agreement to the proposal only
emerged during cross-examination.
[31] What is clear
from her evidence is that she was not present when the truck driven
by the second respondent was loaded with
stock on 24 January 2003.
According to her testimony,
whenever the warehouse receives an
order sheet, the order-makers ‘make up the order, then the
forklift drivers bring it to
the truck and then the driver checks
with them if everything is in order and they load it onto the truck.
Then the checker comes
in…checks with the driver…’
Being conversant with company procedures and
having agreed to be part of the appellant’s plot to trap the
second respondent,
she did not witness the loading process. According
to her, when she arrived at the truck, the loading was already
complete. She
did not know who was responsible for the loading of the
delivery truck on that day.
[32] None of the appellant’s
witnesses testified about what happened during the process of loading
the delivery truck on that
day. For his part, the second respondent
testified that he was not continuously present during the loading
process, as he at some
point had to collect the computer-generated
invoice from the office. That he was paged to the office to collect
the computer-generated
invoice was corroborated by one of the
appellant’s senior sales employees, Lezelle van der Westhuizen.
[33] Significantly, Goosen admitted
under cross-examination that there were instances, previously, when
the stock brought from the
warehouse by the forklift drivers did not
tally with the stock on the order-sheet, i.e. when it was either
deficient, or in excess.
Significantly, too, there is no evidence
that the second respondent signed any documentation acknowledging the
amount of stock
that was loaded on the truck. This is evident from
the record of the evidence adduced at the disciplinary enquiry, where
the second
respondent was asked why he had not signed the loading
sheet.
[34] The second respondent’s
evidence that someone else (Kenneth) assisted him with the loading
was corroborated by Kenneth.
The appellant’s contention that
the fact that the truck was loaded at the loading bay and not at the
checkpoint cast suspicion
on the second respondent was refuted by
Buthelezi, who corroborated the second respondent’s evidence
that he (second respondent)
had previously loaded the delivery truck
at the same spot without any censure. In my view, there is clearly a
missing link in the
evidence adduced by the appellant. I am therefore
inclined to agree with the fourth respondent that there was
insufficient evidence
placed before him to prove the second
respondent’s dishonesty and thus to sustain the charge.
[35] It was argued
on behalf of the appellant that Goosen’s version was borne out
by the common cause fact that she reported
the second respondent’s
proposition to both Haywood and Dippenaar and that, given the fact
that there was no bad blood between
Goosen and the second respondent,
she had no reason to lie about the proposition and to place her job
in jeopardy by making a false
report to Haywood and Dippenaar. When
questioned as to why Goosen would lie about him, the second
respondent contended that Goosen
framed him in an attempt to answer
criticism by the company that Fidelity Guards had not been performing
adequately. Pressed further,
the second respondent contended that
other persons had been involved in a plan to get him out of their
way. H
e ended up
speculating that perhaps Goosen wanted to stamp her authority and to
show that she was doing her job.
[36] The reason advanced by the second
respondent is, in my view, not inconceivable, given that Dippenaar
testified that he had
on numerous occasions called staff meetings
where he highlighted the shrinkage problem that the company was
experiencing.
Although
the appellant made heavy weather out of the second respondent’s
responses under cross-examination on this aspect,
I find nothing
sinister about them. In
S
v Ipeleng,
1
Mahomed, J stated
as follows: ‘It is dangerous to convict an accused purely on
the basis that he cannot advance any reasons
why the state witnesses
would falsely implicate him. The accused has no
onus
to provide such
explanation. The true reason why a state witness seeks to give the
testimony he does, is often unknown to the accused
and sometimes
unknowable.’ In my view, the second respondent’s
inability to furnish what the appellant could consider
a plausible
explanation for being falsely implicated plays no role on the
probabilities of this matter.
[37] In my view, it
is not fair for the appellant to contend that the fourth respondent
wrote off the entire evidence of Goosen
on the basis of two
contradictions. The fourth respondent correctly criticised the lack
of detail in the evidence Goosen presented
at the disciplinary
hearing. This omission was indeed curious. T
here
seems not to be a stage when Goosen and the second respondent agreed
that they were going to execute the plan. The fourth respondent
aptly
asked the question:
‘
After
his proposition (inaudible) think about it did you go back to
(inaudible) to talk about (inaudible)?
The response was as follows:
‘
No,
(inaudible) after I’ve discussed it with Mr Dave Dippenaar, we
saw each other, it was in the morning, we saw each other
and I said
ok,
but
he must actually let me know when, what, where’
(my emphasis).
Goosen further testified that she
wanted
the second respondent
to tell her
when he was ready to execute the plan. What is strange is that
despite the fact that she had told him that she would
await the
detail of the execution
of
the plan from him
, he allegedly went ahead without
engaging
her any further
.
I
find it highly unlikely that the second respondent would simply
proceed with the execution of their plan without ‘the when,
what and where’ being discussed with his collaborator
beforehand.
[38] What makes Goosen’s version
about the proposition more improbable is the fact that after Goosen’s
alleged agreement
to co-operate, the second respondent went on to
deliver the first load without taking any extra stock. Considering
that he was
not a regular driver, the likelihood is that if he had
initiated the scheme to defraud the appellant, he would have jumped
at the
first available opportunity to do so. The court
a quo
correctly found that before making a conclusion that Goosen’s
evidence was unclear, unreliable and quite unbelievable, the
fourth
respondent made reference to certain portions of her evidence which
justified that finding.
[39] I agree with the appellant’s
counsel’s submission that where factual disputes have arisen, a
commissioner is obliged
to resolve them by undertaking a balanced
assessment of the credibility, reliability and probabilities
associated with mutually
exclusive versions. He will misdirect
himself if he fails to do so. In his award, the fourth
inter alia
stated as follows: ‘…The respondent alleges that the
applicant had hatched a plot to defraud the respondent in collusion
with Ms Goosen. She admitted that she had no relationship and had
very limited interaction with the applicant in the past. It is
significant to me whether or not she informed the applicant of being
part of the plot. It seems to me that the response that she
had told
the applicant that “it was okay to make a plan” was an
afterthought.’ This part of the fourth respondent’s
evaluation of Goosen’s evidence is undoubtedly an assessment of
the probabilities.
[40] It is clear from the record that
the fourth respondent also opined that Goosen could not
satisfactorily explain why she did
not report the second respondent’s
alleged offer to pay her an amount of R10 000.00 as a bribe to the
police or authorities.
Even though the fourth respondent erroneously
stated that the criminal case preceded the disciplinary hearing,
which was factually
incorrect, it is a fact that the attempted
bribery was never reported to the police. This is another part of the
evaluation of
evidence that is directed at the assessment of the
probabilities. The appellant’s contention that the fourth
respondent in
his assessment of the evidence confined himself only to
the assessment of the witnesses’ credibility is clearly without
any
foundation.
[41] One of the criticisms against the
fourth respondent’s evaluation of evidence in his award is that
he did not pronounce
himself on the probabilities of the second
respondent’s version. Having demonstrated in the aforegoing
paragraphs that he
did assess the probabilities of Goosen’s
evidence, which constituted the crux of the appellant’s case, I
am of the
view that the evaluation of the second respondent’s
evidence is implicit in the fourth respondent’s evaluation of
the
appellant’s version, as the fourth respondent would have
had to juxtapose it against the competing or opposing version. The
second respondent’s version bore no inherent improbabilities.
Its only shortcoming is a single contradiction between his
evidence
at the disciplinary hearing and the evidence adduced at the
arbitration hearing pertaining to an averment that the extra
stock
landed on the delivery truck at Goosen’s instance.
[42] The fact that the second
respondent contradicted an aspect of his earlier version does not, in
itself, warrant a rejection
of his entire version. See
S V
Oosthuizen
1982 (3) SA 571
(T) at 516A. This is more so
because the second respondent was not, during his cross-examination,
confronted with this contradiction
so that he could explain it. See
S
V Mafaladiso
2003 (1) SACR 583
(SCA) at 593J – 594F. In my
view, the version of the second respondent was, notwithstanding this
contradiction, more probable
than that of the appellant and its
shortcoming in no way made up for the missing link in the appellant’s
version.
[43] While there is no doubt that the
fourth respondent’s evaluation of evidence was brief, I am
satisfied that it complies
with the guidelines stipulated in the case
of
SFW GROUP LTD V Martell Et Cie and Others
2003 (1) SA 11
in
that it assesses credibility, reliability and probabilities.
[44] In conclusion, I am satisfied
that the fourth respondent’s credibility findings were
justified. In my view, the court
a quo
correctly found that
the fourth respondent’s decision was one that a reasonable
decision-maker could reach. It also correctly
dismissed the
application for review. I would accordingly dismiss the appeal with
costs.
_______________
Molemela A J A
APPEARANCES:
FOR THE APPELLANT: Adv. A.T. Myburgh
Instructed by Farrell & Associates
FOR THE RESPONDENTS: Mr Khoza
Retail and Allied Workers Union
1
1993
(2) SACR 185
(T) at 189C-D.