About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2014
>>
[2014] ZALAC 57
|
|
National Union of Mine Workers obo Smith v Namakwa Sands, A Division of Exxaro Tsa Sands (Pty) Limited and Others (CA12/2013) [2014] ZALAC 57 (23 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case no: CA12/2013
In the matter
between:
NATIONAL UNION OF
MINE WORKERS
OBO JOHAN
SMITH
...............................................................................................................
Appellant
and
NAMAKWA SANDS, A
DIVISION OF
EXXARO TSA SANDS
(PTY)
LIMITED
.................................................................
First
Respondent
THE COMMISSION
FOR CONCILIATION
MEDIATION AND
ARBITRATION
.....................................................................
Second Respondent
ELVISO ADAM
N.O
...................................................................................................
Third
Respondent
Heard: 27
February 2014
Delivered: 23
October 2014
Summary: review
of arbitration award- employee dismissed for misconduct- employee
electing not to answer questions relating to his
alleged accomplice
during arbitration proceedings. – Commissioner drawing adverse
inference against employee- Commissioner
finding dismissal fair-
Labour Court upholding award- Appeal – evidence showing that
employee made aware that adverse inference
may be drawn against him –
commissioner’s drawing of adverse inference against employee
reasonable. Appeal dismissed
with costs.
CORAM: Tlaletsi
DJP, Hlophe
et
Coppin AJJA
JUDGMENT
TLALETSI DJP
Introduction
[1]
In this matter, the appellant, acting on
behalf of Johan Smith (the employee), appeals against the decision of
the Labour Court
(per Steenkamp J) dismissing the review application
brought by the appellant in respect of the award issued by the third
respondent
(the Commissioner) under the auspices of the Second
Respondent (the CCMA). In the award, the commissioner upheld the
dismissal
of the employee by the first respondent (“the
respondent”), his employer.
[2]
The appellant relied on three grounds of
review, namely; that the commissioner committed a reviewable
irregularity in mentioning
to the employee that he may refuse to
answer questions relating to one Shaun Coetzee (Coetzee) without
warning him that an adverse
inference may be drawn about his failure
to answer such questions; that the commissioner failed to conduct a
proper assessment
of the evidence before him and, lastly, that the
commissioner’s finding was one that a reasonable decision-maker
could not
have made.
[3]
The appellant is in this Court with leave
of the Labour Court. However, in its ruling on the application for
Leave to Appeal, the
Labour Court did not specify the reasons why
leave to appeal was granted.
Background
[4]
Except where otherwise indicated, the
following background facts are largely common cause. The employee was
employed by the respondent
as a Plant Operator from 5 January 2009 at
its Namakwa Sands plant smelter. He was summoned to a disciplinary
hearing on 8 August
2011 on the following misconduct charges:
a.
Falsifying records at weighbridges;
b.
Conspiring in theft of pig iron;
c.
Conspiring in granting site access to a
contractor under a false name;
d.
Breach of the contract of employment and
undertakings; and
e.
Breach of the trust relationship between
employer and employee.
[5]
The employee failed to testify at his
disciplinary hearing. He elected to give no account of his actions
contending that it was
up to the respondent to prove his guilt. He
was found guilty of the instances of misconduct and was subsequently
dismissed on 29
September 2011.
[6]
Aggrieved by his dismissal, the appellant,
acting on behalf of the employee, referred a dispute to the CCMA
contending that his
dismissal was substantively unfair. The
respondent opposed the referral, contending that the employee’s
dismissal was fair.
The matter was arbitrated on 4 May 2012 after an
unsuccessful conciliation. At the arbitration, the employee was
assisted and represented
by two trade union officials. The respondent
was represented by an official of the “Afrikaanse Handels
Instituut”,
an employers’ organisation.
[7]
The respondent tendered the evidence of
several witnesses, namely, Claudene Bouwer (Bouwer), who was employed
as the Logistics Coordinator;
Frederick Johannes Potgieter
(Potgieter), who was the head of Risk Management and Internal
Investigations; Pietie Mouton (Mouton),
the truck driver employed by
Mouton Transport; Pierre Cornelissen (Cornelissen), who was the
respondent’s Information Technology
technician, Devern Isaacs
(Isaacs), the Training Practitioner and Junior Koegelenberg
(Koegelenberg). The employee testified in
his defence this time
around.
[8]
The employee’s duties entailed among
others, working at the smelter’s weighbridge office and
supervising the bagging
of orders. The purpose of the weighbridge is
to weigh and process consignments of materials, either leaving
Namakwa Sands on their
way to various clients, or coming in to
Namakwa Sands from some or other suppliers.
[9]
It is common cause that the weighbridge
operated through an IT system, which automatically generated and
stored a transaction number
for each consignment that is weighed. The
times and date of each weighing and the weight of each consignment
were automatically
recorded. The respondent’s version was that
the information on the IT system was capable of being manipulated.
Further details
namely, the product, pig iron or oxygen, for example,
and its source or destination were entered into the system by the
weighbridge
operator through a computer located in the weighbridge
office.
[10]
According to the evidence, the weighing and
processing of each consignment was termed a “transaction”.
Each transaction
was recorded in three databases; the “local
database” (from the Personal Computer (PC) in the weighbridge
office);
a “master database” and an “archive
database”. The latter two were located in a server room in the
administrative
section of the company.
[11]
It is further common cause that the system
was designed to allow for corrections to be made to the product
description, as well
as to the customer’s name, which had been
entered into the database in respect of any given transaction.
However, it did
not allow any changes to be made to the automatically
generated data, namely, the transaction number, the weight of the
consignment
and the time and date. Furthermore, the system did not
allow any changes whatsoever to be made to a transaction, unless a
“reason”
for making the change was specifically recorded.
[12]
In addition, the original entry in respect
of each transaction was automatically recorded on the central
database, notwithstanding
any changes that may subsequently have been
made to the record of the transaction. The system was designed not to
allow any modifications
to the record of the original entry. The
effect was that while the local database would reflect a transaction
as modified, the
central database would separately record the
original entry and any subsequent modifications. The modifications
would be classified
under the headings “Original Transactions”;
“First Modifications”; “Second Modifications”
and
so on.
[13]
The standard procedure for processing a
shipment at the Namakwa Sands was as follows:
13.1 Namakwa Sands
used external contractors to transport its products. The empty truck
due to transport the shipment arrives at
the smelter and is weighed
at the weighbridge. At this stage a transaction number is generated.
13.2 The truck is
then loaded with pig iron, oxygen, or whatever the product may be,
and weighed again. The difference between the
weights of the truck
when loaded and when empty gives the weight of the consignment.
13.3 All three
weights of the truck before and after loading and of the consignment
itself, are automatically recorded, as are the
times of the
weigh-ins. The other details, the customer’s name and the type
of product are entered into the system by the
weighbridge operator.
13.4 Three tickets
are then printed out, reflecting all of the details of the
transaction. Each ticket is signed over carbon paper
by the driver
and on behalf of the company, creating two additional copies of each.
Each transaction is thereby recorded in hardcopy
form in three sets
of tickets, each set in triplicate as well as electronically on the
database.
13.5 One set of
tickets is left at the security gate by the truck driver on his way
out. The hard copy of a ticket would be forwarded
to Namakwa Sands
internal departments, such as the marketing department on the evening
following the day on which the ticket was
generated.
[14]
Access to the smelter was controlled by
requiring employees to use access cards. Other visitors had to sign
in at a security gate.
There was no further access control to R&D’s
weighbridge office and tea room. The tea room was housed in a
separate building,
situated about 50 metres away from the office.
These buildings were always open to all smelter staff and shift
workers. It is common
cause that there would be a number of smelter
staff and shift workers on duty at any given time. However, the
respondent’s
version is that the employee was the only employee
in his shift on the evening of 12 May 2011 that had the knowledge to
operate
and possibly to “manipulate” the weighbridge
systems.
[15]
What follows is what led to the dispute in
this case. During April 2011, someone phoned the respondent. He
presented himself as
a client who intended to purchase pig- iron from
an undertaking called Reclamation Group. He was enquiring on the
specification
of the respondent’s pig-iron. The enquiry aroused
some suspicion as the respondent never supplied Reclamation Group
with
pig iron. An investigation was initiated by Potgieter as the
head of Risk Management. He began by checkinging all transactions
involving pig iron with some special care and attention.
[16]
During June 2011, a certain weighbridge
ticket with transaction number 45669, which was considered
suspicious, was brought to the
attention of Potgieter. The latter’s
investigation into the circumstances of that transaction revealed the
following facts:
16.1 The electronic
record of the transaction reflected an incoming shipment of 21 tons
of oxygen on 12 May 2011 with Afrox recorded
as the “handler”
(the undertaking contracted to transport the consignment). The truck
had first been weighed shortly
before 14:00; and again at around
14:27, this time loaded.
16.2 The original
hard-copies of the corresponding weighbridge ticket were apparently
missing, and only one carbon copy located
at security, could be
found.
16.3 The security’s
copy of the ticket reflected a consignment of pig-iron bound for a
company called Atlantis Foundaries
(Pty) Ltd and showed the
transporter to have been Mouton’s Transport. The ticket was
signed by the driver and by Chris de
Wee, who had been working as the
weighbridge operator at the relevant time. The transaction, number,
date, times and tonnage were
all similar to those shown on the
electronic database.
16.4 Mouton’s
Transport replied to enquiries that they had not invoiced for this
shipment as it had been cancelled. Atlantis
Foundaries, for its part,
had not received the shipment. Further investigations, which included
an examination of the CCTV footage,
revealed that there had been no
Afrox trucks at the smelter on 12 May 2011. A Mouton’s
Transport truck had, however, arrived
at the smelter. It had
apparently been loaded with pig iron and had remained parked outside
the premises until 17:00, when it had
driven off.
16.5 It is common
cause that the electronic records showed that changes had been made
to the transaction at around 21:16 on the
evening of 12 May 2011. In
other words, the data showing a shipment of 21 tons of oxygen
transported by Afrox and so on, was not
the original record of the
transaction. This was evident because a reason had been entered into
the system at 21:16 being the word
“CHANGER”, which could
only have been provided as a reason why changes had been made.
16.6 When the
transaction was traced to the central database, it was discovered
that the modified entry referred to above was saved
as the original
transaction, which indicated that the original transaction had
somehow been deleted and the modified version saved
in its place.
This was however something that the IT system was not supposed to
allow. An IT employee employed by the respondent
confessed that he
could not comprehend how this had been achieved.
[17]
From the above information, the respondent
suspected that a consignment of pig-iron had indeed been loaded onto
a Mouton’s
Transport truck on the afternoon of 12 May 2011,
that the pig- iron had been stolen, and that the electronic record of
the transaction
had been altered and manipulated that night in order
to conceal the theft. According to the respondent, the employee was
the only
one on duty that evening that had knowledge as to how the
weighbridge system operated.
[18]
Potgieter managed to establish through the
investigations that Mouton was the driver of the particular truck
that had been parked
outside the premises until 17h00. Mouton was
interviewed on the recommendation of the owner of the truck, Abraham
Mouton. Mouton
confirmed that he was the one who drove the truck,
stole the consignment and delivered it to a scrap yard in Atlantis on
the instruction
of Coetzee who is the respondent’s former
employee.
[19]
Further investigation by Potgieter
confirmed that the employee was working on the night of 12 May 2012
and had access to the weighbridge
system on which the information was
changed at 21h16. He drew all the reports and noticed that the
employee started working at
18h37 for the 19h00 to 07h00 nightshift.
He further discovered that the last dayshift employee left the
premises at 21h13. Potgieter
drew telephone records made from the
weighbridge tea room and office telephones and discovered that
numerous telephone calls were
made to Coetzee with the most
suspicious one being at 21h08 lasting 11 minutes. This is the time
when the changes were made to
the system.
[20]
Although every transaction is normally
completed in triplicate, Potgieter could only get a carbon copy at
the security gate. But
for this carbon copy, his investigation would
have been impossible. According to him, only a person who had the
knowledge of the
electronic system would have been able to change the
information on the system. He testified that during his interview
with Mouton,
he received an access card from him, which he claimed to
have obtained from the employee as a present from Coetzee. Mouton
told
him further that the employee phoned him to arrange for the
access card to be dropped in his motor vehicle.
[21]
Mouton testified that he knew Coetzee from
a previous occasion when the two of them stole a truck load of ash.
He confirmed that
he signed the document identified as A16 being the
original weighbridge ticket for the pig-iron transaction of 12 May
2011. A certain
Chris’ signature is also on the document. He
confirmed that Coetzee stole the consignment in issue. Mouton
testified that
his truck was loaded and parked outside the premises
of the respondent. He then received a telephone call from Coetzee who
enquired
about the consignment. He undertook to phone him again.
Coetzee phoned him again later, after about 10 minutes, and told him
to
drive away with the load and drop it at West Coast Metals in
Atlantis. He was reluctant to do so but Coetzee told him that he must
co-operate as he never “dropped him” in the past. He
assured him his inmates at the respondent (who he did not mention
by
name) would sort out the paperwork and the cameras. Mouton mentioned
further that Coetzee threatened to hurt him and his family
if he did
not co-operate. As a result of the threat, he drove the truck and off
loaded the pig- iron as planned.
[22]
Mouton testified that he was at some stage
phoned by the employee. He identified him by his voice, which was
familiar to him. The
employee told him that he had a small present
from Coetzee that he wanted to put in his motor vehicle. He later
found that an access
card had been placed in the ashtray of his motor
vehicle. He had been told that the reason for the access card was
that no one
at the respondent would notice the time he entered the
premises. He did not personally see the employee placing the access
card
in his motor vehicle.
[23]
Cornelissen’s evidence related to the
workings of the IT system. He was responsible for designing the IT
systems at the weighbridge.
He traced the information path of
document A17,(the changed document), but could not trace A16, which
is the original transaction.
He was unable to explain how it happened
that the information on A16 was not in the system. He conceded that
it could only have
been done by someone “cleverer” than
him. The loophole had now been closed. He confirmed that it would
require someone
with a basic understanding of the weighbridge system
to make changes on the system. He was referred to transactions on
documents
A6 and C1 which were two different transactions and could
not explain why they were made more or less at the same time. He,
however,
maintained that even if there was a system failure, the
information such as the product details, vehicle registration etc. on
the
system, would not change.
[24]
Isaacs’ evidence was tendered to show
that the employee had some training in the weighbridge system. He
testified that although
he could not confirm that the employee
received practical training, he obtained 100% mark in the theoretical
component of the training.
Furthermore, the undisputed copies of the
weighbridge tickets in the bundle of documents were proof that the
employee ought to
have been subjected to practical training as he
would not have been allowed to sign off those consignments without
the practical
component.
[25]
Koegelenberg confirmed that the employee
was the only employee of the respondent who was on duty on the night
of 12 May 2011 and
was in charge of the team of contractors. Their
functions that night were ‘bagging’, which involved
“hanging
up”, “filling up”, stacking pallets
and their transportation by forklift to the warehouse. He mentioned
that
although there were five employees, the work they were doing
could be done by three people. He confirmed that there were no
shipments
for the night and as such no one was supposed to be in the
weighbridge office. He could not explain why there were two telephone
calls made almost simultaneously to Coetzee from the office and the
tea room respectively. He however, mentioned that the telephone
calls
did not show the duration of the calls i.e. in terms of the seconds.
According to him, the tea room was about 50 metres from
the office.
He contended that the employee never tendered evidence that he was at
all times at the “bagging”, as he
now contended in order
to remove himself from the weighbridge office.
[26]
As pointed out already, the employee
elected to testify in the arbitration proceedings. His evidence, in a
nutshell, was that on
12 May 2011, he was “on bagging duty”
with four contractors. Their orders were set out and each member of
the team
had his duties on the plant. His duties entailed operating
the forklift. Their target was 200 bags for the night and as such
they
had a lot to do and had no time to waste. They only had two
breaks at 22h55 and at 02h55. He testified that he never received any
practical training on the weighbridge. He was therefore assisted by a
competent fellow worker at all times. Because of the role
he played
he had to have his signatures on the weighbridge slips. The employee
admitted that he obtained a 100% mark on the theoretical
component of
the training, but explained that it was an open book test. Although
he agreed under cross-examination that he was
a weighbridge operator
for the night and in charge of the LO Rall contract workers, he
deviated from this version in re-examination
and mentioned that he
was the supervisor and not the weighbridge operator as there were no
shipments for the night. He mentioned
that the weighbridge stayed
open and was accessible to everybody.
[27]
The employee refused to answer any question
relating to Coetzee. He was only prepared to admit that he knew him
as an ex-employee.
He questioned why Coetzee was not called as a
witness. With regard to Mouton, he contended that the latter was
uncertain about
who phoned him and further that there were no
telephone numbers to prove the telephone call.
The Arbitration
Award
[28]
The commissioner analysed the evidence and
considered the respective submissions made by the parties. He
accepted Mouton’s
incriminating evidence that he was the driver
of the truck that was used to steal the pig-iron; that Atlantis
Foundaries did not
receive the load or paid for it; that the changed
documents relating to the transaction confirmed Mouton’s
evidence that
he operated with an insider who dealt with the
paperwork as promised; that the insider, who changed the
documentation, phoned Coetzee’s
telephone number on numerous
occasions during the night and at the relevant time when the
weighbridge system had changes made to
it, thereby connecting Coetzee
to the theft, and that the latter aspect confirmed the reliability of
Mouton’s testimony as
well as the witness.
[29]
The commissioner continued thus;
‘……
.Pietie
Mouton appeared to be a reliable witness. There was nothing
personally for him to gain, but to incriminate himself. He was
confident that it was [the employee] who phoned him as he recognised
his voice and the [employee] said that it was him. The access
card
was indeed subsequently delivered with reference to Shaun Coetzee and
the witness gave it to Mr Potgieter.’
[30]
On the suggestion that workers from other
departments also had access to the weighbridge and could have
tampered with the system
by making changes to the transaction, the
commissioner held that:
‘…
.this
would have been risky for another person to take this chance knowing
that a weighbridge staff member was on duty. Unless of
course this
staff member was aware of the scheme of things.’
[31]
On the suggestion that system failure could
have caused the changes, the commissioner accepted the uncontroverted
version that system
failure would not only cause a specific data
field change, but would completely erase the data and that it would
be too much of
a coincidence that only this transaction was altered
that night. On the employee’s refusal to answer questions, the
commissioner
held:
‘
The
[employee’s] outright refusal to answer questions relating to
Shaun Coetzee was also a matter of concern, in particular
after
Pietie Mouton connected him with Coetzee. This made it difficult for
the respondent to test the credibility of the applicant’s
contention that they were only work colleagues. An inference could be
drawn that he did not want to implicate Coetzee or himself
under oath
in considering the possibility of criminal proceeding. An isolated
denial was not good enough under the circumstances.’
[32]
The commissioner concluded thus:
‘
It
appeared that based on the above that the most probable inference was
that the [employee] made the changes to the weighbridge
system on 12
May 2011 or at the very least was aware of the scheme of things. It
appeared right through proceedings that the applicant
was assessing
his case based on the criminal standard of proof as he kept on
referring to an outside court. It is correct that
the onus of proof
was on the respondent, but the standard was that of proof on a
balance of probabilities. What was required was
that the
probabilities in the case be such that, on a preponderance, it was
probable that a particular state of affairs existed.
It is my finding
looking at the circumstances of this case and weighing up the
evidence that it was probable that the applicant
was the one who
changed the data on the system to conceal the theft or was at least
aware of the person changing it and that he
was connected to Shaun
Coetzee in terms of this transaction or aware that Coetzee was
running the scheme.’
The
commissioner concluded that dismissal was the appropriate sanction as
there was irreparable breakdown in the trust relationship.
The theft
was premeditated, carefully planned and involved substantial amount
of money.
The Review
[33]
The appellant instituted review proceedings
contending that the award of the commissioner was reviewable on the
grounds that (a)
the commissioner committed an irregularity in the
conduct of the proceedings by failing to consider material evidence
and misconduct
in relation to her duties, by advising the employee
not to answer any questions put to him in cross-examination about
Coetzee and
then using his refusal to answer questions to draw an
adverse inference against him; (b) the commissioner failed to conduct
a proper
assessment of the evidence before him; (c) the
commissioner’s finding was one that a reasonable decision-maker
could not
have made.
[34]
The Labour Court found that there was no
merit on the contention that the commissioner advised the employee
not to answer questions
but that it was in fact the employee’s
representative at the arbitration, Ms Thomas, who objected to the
employee answering
questions about Coetzee. With regard to the second
ground that the commissioner did not properly consider the evidence
before him
in coming to the conclusion, that on a balance of
probabilities, the employee had committed the misconduct, the Labour
Court found
that the commissioner could not be faulted for having
found Mouton to be a credible witness, because the latter had been
subpoenaed
to testify, did not willingly assist the employer and had
nothing to gain, but all to lose for incriminating himself. The
contention
therefore that he had every reason to lie was rejected.
The further contention that the commissioner found that Mouton’s
evidence was “corroborated” by Coetzee, whereas Coetzee
did not testify, was also rejected because that was not what
the
commissioner found. The Labour Court held that Mouton mentioned that
Coetzee had phoned him and that that was not hearsay but
Mouton’s
first-hand evidence.
[35]
As regards the reasonableness or otherwise
of the commissioner’s award, the Labour Court held that:
‘
The
arbitrator came to the reasonable conclusion, on a balance of
probabilities that the most probable inference from all the evidence
was that [the employee] had committed the misconduct. This was a
reasonable inference and is not open to review based on the civil
and
not criminal, standard of proof’.
and concluded thus
‘…
.the
“most probable inference” to be drawn from the evidence
before him, as the arbitrator found – was that [the
employee]
was involved in the conspiracy to steal pig-iron from Namakwa Sands
on the evening of 12 May 2012. Mouton did not need
access to the
premises for that to occur; he had already stolen cargo. All that
needed to be done on the evening was to change
the information on the
database; and the most probable person to have done that, was [the
employee]. He was the only Namakwa Sands
employee with the necessary
knowledge who had access to the weighbridge; he knew Coetzee; and a
number of telephone calls, including
the one of 11 minutes were made
to Coetzee while the [employee] was on duty. Taking all of these
factors into account and disregarding
the question whether the
[employee] had left an access card in Mouton’s car – the
overwhelming inference is still that
the [employee] was the one who
committed the misconduct.’
The
application for review was consequently dismissed with costs after
both parties had submitted that costs should follow the result.
The Appeal
[36]
The appellant’s grounds of appeal
against the judgment of the Labour Court boils down to that the
Labour Court below erred
in:
36.1 finding that
the Commissioner had not committed a reviewable irregularity by
failing to warn the employee after advising him
that he did not need
to answer questions, that an adverse inference could be drawn from
his silence or that the respondent’s
evidence could be accepted
if not contradicted by him.
36.2 failing to find
as a matter of fact that the commissioner had advised the employee
that he did not have to answer questions.
36.3 finding that
the conclusion of guilt reached was reasonable in all the
circumstances, when the commissioner had misconstrued
the test
relating to proof by way of circumstantial evidence.
[37]
In this Court, the main submission made by
counsel on behalf of the appellant was based on the alleged
reviewable irregularity of
failure to warn the employee that after
advising him that he needed not to testify about the alleged
co-conspirator Coetzee, an
unfavourable inference could be drawn from
his failure so to testify. It was contended that because of this
alleged reviewable
irregularity, a large number of the aspects of the
evidence were tainted by this irregularity which aspects the
commissioner took
into account in reaching his conclusion that, on
the circumstantial evidence in existence, the employee was guilty as
charged.
[38]
Like the Labour Court did, it is, in my
view, appropriate to quote from the relevant extract of the
transcript where the appellant
bases its main ground of appeal. The
extract needs to be extended to cover the relevant parts of the
cross-examination of the employee
by the respondent’s
representative at the arbitration and not limit it to a small portion
quoted out of context by the appellant.
The transcript is in the
Afrikaans language and reads thus:
‘
Mnr
Van Vuuren: Ek sien. Nou kom ons gesels ‘n bietjie oor jou
groot vriend Shaun Coetzee. Vertel ‘n bietjie vir ons
van Shaun
Coetzee Mnr Smith.
Mnr Smith: Hy is ‘n
werkskollega
Mnr Van Vuuren: ‘n
Werkskollega. Hoe lank het julle mekaar geken?
Mnr Smith: Die
tydperk wat ek nog by R&D gewerk het, die tydperk wat ek by R&D
gewerk het.
Mnr Van Vuuren: Hoe
lank was dit?
Mnr Smith: Daai was
sewe maande.
Mnr Van Vuuren: Sewe
maande?
ME Thomas:
Commissioner kan ek gou ‘n objeksie maak, as hy vir hom vrae
vra oor Shaun, ek dink hy moet direkte vrae vir hom vra en nie
vir
hom vra wat weet hy van Shaun nie. Hy moet vir hom direkte vrae aan [
the employee] rig
.
Kommissaris:
Die
getuie wat nou getuig is nie die meneer se getuie nie. Die getuie kan
of saamstem or nie saamstem nie. Dit maak nie saak nie,
verstaan? Hy
hoef nie saam te stem nie. Hy kan sê hy weet nie. Hy kan sê
“moenie vir my sulke vrae vra nie…”
ME Thomas:
So
dit beteken hy hoef ook nie die antwoord te hê, die vrae te
beantwoord nie?
Kommassaris:
Hy
kan se “Ek will nie antwoord nie
.”
Mnr Smith
Ek sal
geen vrae van Shaun Coetzee beantwoord nie, Commissioner
.
Mnr Van Vuuren:
Jammer, u sê Mnr Smith
Mnr Smith: Ek sal
geen vrae in verband met Shaun Coetzee nie
Mnr Van Vuuren:
Waarom nie?
Mnr Smith: Hy is ‘n
werkskollega en hy was gewees, ‘and that is it.’
Mnr Van Vuuren: Ek
sien, nou u se julle het sewe maande saam gewerk.
Mnr Smith: Ek het
nou pas vir jou gesê ek gaan nie oor Shuan praat nie. Shaun is
nie teenwoordig nie.
Mnr Van Vuuren: Ek
sien. So kom ons kry dit net op record Mnr Smith want u se vir ons u
is glad nie beried om enige vrae met betrekking
tot Shaun Coetzee te
antwoord nie?”
Mnr Smith: Kan u die
persoon laat kom meneer? U bly sommer…(tussenbei)
Mnr Van Vuuren:
Mnr
Smith antwoord my vraag asseblief. Se u vir ons op record u is nie
bereid om enige vrae oor Shaun Coetzee to antwoord nie?
Mnr Smith:
Sekere
vrae sal ek antwoord
Mnr Van Vuuren:
Dankie. Nou kom ons kyk watter wil u antwoord.
Kommissaris: Hang
gou vas. Watter vrae meneer – elke keer gaan ek nou moet
‘cover’ watter vrae nie, watter vrae
of wat? How ver is u
beried om te antwoord of sê u u gaan niks vra antwoord nie? Ek
moet weet hoor? Ek wil hê –
ek moet u beskerm en ek moet
weet…..(tussenbei)
Mnr Smith: Ek kan
vir u se Kommissaris…(tussenbei)
Kommissaris: Watter
tipe vrae….(tussenbei)
Mnr Smith: Jammer,
ek vra verskoning.
Kommissaris: Kan u
vir u verteenwoordiger – dis die direkte vrae, moet direkte
vrae vra.
Me Thomas: Direkte
vrae vra….(tussenbei)
Kommissaris: En jy
sal geen vrae antwoord…(tussenbei)
Mnr Smith: Ek sal –
sorry, jammer….(tussenbei)
Kommissaris: Okay,
hang gou vas, ne, hang gou vas. Hou net dit in gedagte wat ek gesê
het met u verteenwoordinger, dan hoor
ons nou watter vrae daar kom
ne. Meneer, meneer, as u weer met die getuie praat dan gaan ek u vra
om buitekant te sit, verstaan
u, Mnr Apools.
Mnr Apools: Ja,
okay.
Kommissaris:
Verstaan u, as u weer met die getuie praat dan gaan ek u vra om
buitekant te sit. Die verhoor het vir die afgelope
twee dae baie goed
afgeloop en ek gaan nou Mnr Van Vuuren vra ook om die ‘temp’
die ‘volume’ ‘n bietjie
af te bring, want die vrae
was rustig gewees die hele verhoor gewees, reg, so….(tussenbei)
Mnr Van Vuuren: Ek
neem kennis Kommissaris.
Kommissaris: So
moenie dat ons hom nou uitrafel nie.
Mnr Van Vuuren: Ek
sal my stemtoon sal ek aanpas. Ek is u dank verskuldig.
Kommissaris: Okay.
Mnr Smith: Kan ek
gou-gou iets ‘clear’ maak?
Kommissaris: Okay
laat ons hoor meneer.
Mnr Smith: Die
meneer kan ek dan so vra, kom laat roep die persoon asseblief, dan
sal ek die vraag antwoord. Ek sal geen vraag antwoord
van Shaun
Coetzee nie.
Kommissaris: U sê
verder gaan u geen vrae beantwoord …(tussenbei)
Mnr Smith: Van Shaun
Coetzee nie.
Kommissaris: Okay
Mnr Van Vuuren: Kan
u kyk na bladsy….(tussenbei)
Kommissaris:
Reg,
staan gou vas, staan gou vas. U sê u gaan geen vrae beantwoord
van Shaun Coetzee nie. Mnr Van Vuuren u het gehoor wat
die getuie sê
en Juffrou Thomas u het gehoor wat die getuie sê. U verstaan
dat van die goeters jou ‘connect’
aan Shaun Coetzee, maar
dit is u reg om nie vrae te vra of te antwoord oor hom nie, hoor.
Goed so. Waar was u?’
[39]
Later on during cross-examination, the
respondent’s representative put the following to the employee.
‘
Mnr
Van Vuuren:
Nou Mnr Smith luister na die
volgende en dit gaan my argument aan die einde van die saak voor die
Kommissaris wees. Jy is die weegbrugoperateur
op skof daardie aand
.
Mnr Smith: Dis
korrek
Mnr Van Vuuren:
Sestien minute oor nege word ‘n weeg brug transaksie
verander. Daardie vrag word gesteel. Ons weet mos al, daar is
onbetwiste
getuienis daaroor. Shaun Coetzee word wat ons weet wat
reeds weg is by Namakwa Sands wat deel is van hierdie diefstal van
hierdie
vrag word uit jou weegbrug stasie uit word daardie aand nege
keer gebel. Jy kom en jy sê vir ons jy wil nie vrae oor Shaun
Coetzee antwoord nie. Die enigste afleiding daaruit gaan ek
argumenteer is jy het geweet hierdie transaksie is daardie aand
manipuleer;
of jy het hom gemanipuleer terwyl jy met Shaun Coetzee
oor die foon gepraat het.
Mnr Smith: U
spekuleer nou. U maak….(tussenbei)
Mnr Van Vuuren: Ek
maak ‘n afleiding uit ‘n klomp feite uit.
Mnr Smith: En ek kom
terug na wat ek vir u gesê het, toe dit net – as ons van
die ‘tearoom’ af beweeg ek
en my group, en ek het vir u
die tye al genome, die brug is nie sigbaar vir my daar wat ons werk
nie, dis onmoontlik en die brug
staan oop. Hy is nie uit ‘ge-log’
nie. Enige een kan in die brug beweeg, sekuriteit soos ek gesê
het, die ‘cleaners’,
Eldred se span, die ‘furnace’,
die ‘iron’ daar, enige iemand kan in die brug in gaan.
Mnr Van Vuuren: Ek
sien.
Mnr Smith:
(onduidelik) Ek sê mos daai persoon weet dat hier gebel is
meneer. Hoekom – hy het nie die persoon wat daar
inkom gevra:
“Shaun, wie het vir jou gebel nie?” Wie het hom gebel? U
kan hom in roep en hom bel en vra, Shaun Coetzee.
Kontak vir daai man
en vra vir hom wie het gebel.
Mnr Van Vuuren: Ek
hoef nie vir Shaun Coetzee te bel nie. Die polisie sal Shaun Coetzee
vorentoe met die strafsaak uitsorteer en
wie ook al saam met hom. Ek
is net betrokke met hierdie arbeidsdispuut en ek wil vir u sê
alles dui daarop dat u wat op die
weegbrug gewerk het wat opleiding
gehad het, wat vir Shaun Coetzee geken het, dat u hom daardie aand
gebel het om die transaksie
te kom manipuleer.
Mnr Smith: Wat vra u
my eintlik nou?
Mnr Van Vuuren: Ek
sê alles dui daarop dat u betrokke was by die manipulering van
die transaksie.
Mnr
Smith: Meneer u maak wille allegasies. Kan dit in die
Buitehof
bewys wat u nou daar se meneer? Kan u dit bewys in die buitehof?
Mnr Van Vuuren: Ek
hoef niks in ‘n buite hof te gaan bewys nie.
Mnr Smith: U is
aangewys meneer
Mnr Van Vuuren: Ek
is nie in ‘n buitehof nie, nou ….(tussenbei)
Mnr Smith: Sorry
meneer, kan ek gou iets vra? Dit gaan oor my naam, my
reputasie….(tussenbei)
Mnr Van Vuuren: Nou
maar…(tussenbei)
Mnr Smith: U is nou
besig om my naam weg te vat, my toekoms deur wilde allegasies te
praat, hoekom laat u eers daai persoon laat
kom nie, en vra vir Shaun
wie het vir hom die hele tyd die aand gebel met die ‘change’
van die transaksie.’
[40]
The grounds of review on this aspect are
without merit. It is clear from the quoted excerpts of the transcript
that the employee
was asked about his relationship with Coetzee and
he answered the questions. His representative (Ms Thomas) is the one
who objected
to the line of questioning insisting that direct
questions be asked. It was after this objection that the commissioner
intervened
and said that the employee could agree or not agree. He
mentioned that the employee did not necessarily have to agree to what
was
asked. He could also say that he does not know, or say don’t
ask me such questions. His representative then asked whether
it also
meant that he could respond by saying he is not willing to answer the
question. The commissioner responded that he could
even say “I
will not answer”. The employee then made it clear that he will
not answer any question about Coetzee. The
respondent’s
representative asked him why not and the employee replied that he was
a work colleague and “that is it”.
He was asked if he was
now saying they worked together for seven months and the employee
replied that he had just said to him that
he was not going to talk
about Coetzee, he was not present.
[41]
The employee was questioned further and
asked if he was placing it on record that he was not prepared to
answer any question about
Coetzee and he replied that he will only
answer certain questions. An interaction ensued between the
commissioner, respective representatives
and the deponent to the
founding affidavit, Pretorius. The latter was warned not to speak to
the employee during the proceedings.
The employee having insisted
that he was not going to answer questions about Coetzee, the
commissioner intervened by communicating
that the two representatives
had heard what the witness said and directly communicated as follows
to the employee “You understand
about the things that connect
you to Shaun Coetzee, but it is your right not to ask or answer
questions about him, hear.”
[42]
The commissioner, in my view, did explain
to the employee that there were things that connected him to Coetzee.
It should have been
clear to the employee and his two representatives
that he was also implicated through Coetzee in the commission of the
misconduct
and as such his failure to deal with that evidence would
be fatal to him. To say therefore that the commissioner should or
ought
to have told the employee if he failed to answer questions
about Coetzee an adverse inference would be drawn is in my view
taking
the matter too far. It is clear from the quoted transcript
that the employee understood that he was implicated by the evidence
relating to Coetzee and did not want to implicate himself further. He
was selective in answering questions electing to answer those
that
did not implicate him. To now contend that the commissioner advised
the employee not to answer questions is not only false
but
misleading. What the commissioner said is quoted out of context with
most of what he said in response to the objection by Ms
Thomas and
the employee’s refusal to answer being excluded.
[43]
It is not correct to say that the employee
was not at all made aware of the consequences of him not answering
questions about Coetzee.
The respondent’s representative from
the quoted excerpt did indicate to him that he was going to argue to
the commissioner
at the end that the employee was the weighbridge
operator that evening and he replied in the positive. He continued to
say 16 minutes
after nine the weighbridge transaction was changed;
that Coetzee who was no longer employed at Namakwa Sands who was part
of the
theft was phoned nine times from your weighbridge station and
yet “you come and say to us you do not want to answer questions
about Coetzee”. He mentioned further that “the only
inference therefrom, I am going to argue, is that you knew that
this
transaction was manipulated that night, or you manipulated it whilst
you and Coetzee were speaking on the telephone. The employee’s
answer was that he was speculating. To say therefore that the
employee was not made aware or warned that an adverse inference would
be drawn against his refusal to answer questions about Coetzee is
therefore incorrect. The commissioner may not have said it word
by
word as contended, however the employee’s attention thereto was
drawn by the commissioner and the respondent’s representative.
[44]
The
submission by the respondent’s counsel that the cases relied
upon by the appellant are all distinguishable from the facts
and
circumstances of this case has merit. In
Klaasen
v CCMA and Others,
[1]
the
employee was unrepresented and the irregularity was a failure to
advise him that he had to testify and not merely believe that
his
exculpatory statements constituted evidence. The employee made these
statements during his opening remarks and made an attempt
to put his
version to the witnesses during cross-examination. When asked to
present his case he called eight witnesses to testify
on his behalf.
The evidence of his witnesses was not at all relevant to the issue in
dispute. He did not testify believing that
he had already placed his
version before the commissioner. In his written submissions at the
end of the hearing he again made reference
to his version that he
related during his opening statement. The commissioner without
advising him that he was supposed to place
his version under oath
relied solely on his failure to testify and accepted the employer’s
evidence as uncontroverted. In
casu
,
the employee was represented and had an opportunity to answer
questions relating to Coetzee and consciously refused to do so.
Furthermore, his refusal to answer some of the question is not the
sole reason why he was found guilty of misconduct allegations
against
him.
[45]
In
Consolidated
Wire Industries (Pty) Ltd v CCMA and Others,
[2]
the
Court dealt with laymen who were unrepresented by legal practitioners
and the arbitrator having found in his award that a witness
testified
on an issue when it was in fact common cause that he had not. The
Court remarked that when a version was changed or a
new version was
suddenly presented, the arbitrator must take charge of the
proceedings since there were no pleadings to tie the
parties to a
version or legal representative to advise the parties. These are not
the circumstances in this case.
[46]
The
adverse inference drawn against failure to answer questions about
Coetzee is but one of the many factors that were taken into
account
in finding the employee guilty. There are several reasons which have
been referred to above in the award and in the judgment
of the Labour
Court supporting the award of the commissioner. His decision is
supported by the evidential material on record and
is one that a
reasonable decision-maker can make. What the appellant is trying to
do is to subject the decision of the commissioner
to an appeal and
not review. It in fact challenges the factual findings made by the
commissioner which are supported by the evidence
on record. The rest
of the grounds of the appeal are for the above reasons also without
merit. The inference drawn by the commissioner
to the effect that the
employee is the person that phoned Coetzee and also manipulated the
computer system is supported by the
objective facts outlined above.
These objective facts exclude any other reasonable inference being
drawn.
[3]
[47]
For the reasons set out above, the appeal
should fail. It would be in accordance with the requirements of the
law and fairness that
the appellant should pay the costs of the
appeal.
[48]
In the result, the following order is made:
The
Appeal is dismissed with costs.
_______________
Tlaletsi DJP
Hlophe
et
Coppin
AJJA concur in the judgment of Tlaletsi DJP
APPEARANCES:
FOR
THE APPELLANT: Mr Frans Rautenbach
Instructed by
Cheadle Thompson & Haysom
FOR
THE RESPONDENT: Mr G.C. Pretorius SC
Instructed by
Shepstone & Wylie
[1]
(2005)
26 ILJ 1447 (LC).
[2]
(1999)
20 ILJ 2602 (LC).
[3]
See
R v Blom
1939 AD 188
, Schmidt & Rademeyer:
Law
of Evidence
,
LexisNexis at 3-8.