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[2019] ZALAC 52
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Exxaro Coal (Pty) Ltd v Chipana and Others (JA161/17) [2019] ZALAC 52; [2019] 10 BLLR 991 (LAC); (2019) 40 ILJ 2485 (LAC) (27 June 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA161/17
In the
matter between:
EXXARO
COAL (PTY) LTD
Appellant
And
GABRIEL
CHIPANA
First
Respondent
DONALD
NKADIMENG
N.O Second
Respondent
COMMSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Third Respondent
Heard:
23 May 2019
Delivered:
27 June 2019
Summary: Review of
arbitration award made in terms of the Labour relations Act
-exclusion of hearsay evidence-ruling made in arbitration
award-hearsay evidence not objected to or disallowed when first
produced-dealt with as if it was admitted evidence-timing of ruling
crucial-to be made when evidence first produced- hearsay inadmissible
unless admission consented to or it is in the interest of
justice-latter involves the exercise of a discretion-invoking the law
requires reasonable accuracy-Misstating the law in those
circumstances is a reviewable irregularity-late ruling on
admissibility unfair-purported exercise of the discretion by a
reviewing
or appeal court incapable of curing the fundamental
unfairness that occurred in the arbitration proceedings when the
evidence been
ruled upon was let in unchecked-arbitrator or
commissioner not to remain passive when hearsay evidence produced by
a party.
Appeal succeeded,
matter remitted to the CCMA for a fresh hearing before a different
commissioner.
CORAM: Coppin JA,
Murphy
et
Savage AJJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against the judgment of the Labour Court (Baloyi
AJ) in which an application
to review and set aside an award of the
second respondent (“the commissioner”), declaring the
dismissal of the first
respondent (“Mr Chipana”) by the
appellant (“Exxaro”) as substantively unfair and
reinstating him, was
dismissed. Leave to appeal to this Court was
granted on petition.
[2]
A substantial portion of the evidence produced by Exxaro to prove
charges of misconduct
against Mr Chipana, at both the disciplinary
hearing and subsequent arbitration at the Commission for
Conciliation, Mediation and
Arbitration (“CCMA”), was
essentially hearsay. The commissioner effectively found that the
hearsay evidence was to
be excluded because it had not been
introduced with the consent of Mr Chipana. The Labour Court agreed
with the commissioner.
[3]
Thus, the main issue raised on appeal concerns the regularity of the
commissioner’s
ruling on the admissibility of the hearsay
evidence. This pertains not only to the commissioner’s failure
to consider whether
the evidence was admissible in the interests of
justice as contemplated in section 3 of the Law of Evidence Amendment
Act
[1]
(“the LEAA”),
but also the timing of the commissioner’s ruling on the
admissibility of the evidence; and the correctness
or efficacy of
ruling on such admissibility by invoking the provisions of the said
section, either at the stage of review, or on
appeal. The appeal also
concerns the consistency between section 138 of the Labour Relations
Act (“the LRA”) and rulings
by commissioners on
admissibility of evidence relying on the rules of evidence applicable
in courts of law.
Factual Matrix
[4]
Until his dismissal on 14 May 2014 for misconduct, Mr Chipana, a shop
steward for
the National Union of Mineworkers of South Africa
(“NUMSA”), was employed by Exxaro in its human resources
department.
The misconduct he was charged with related to him,
allegedly, selling jobs to members of the public in breach of the
disciplinary
code that was binding on him.
The charges
[5]
The first charge of misconduct was for dishonesty. It was alleged
that he was dishonest
in that during 2012 he had indicated to a Ms
Mange that he was working in human resources at Exarro; and/or that
he would assist
her to obtain employment for her niece, Ms Thobane at
Exxaro; and/or by demanding or soliciting payment of R 3000 and R
2000, respectively,
from Ms Mange and/or Ms Thobane; by accepting
such payment and then submitting Mr Thobane’s curriculum vitae
(CV) to his
colleague Mr Jiyane for the payment received. As an
alternative to the first charge, it was alleged that Mr Chipana
misused his
position in soliciting or requesting the R 5000 from Ms
Mange and/or MsThobane when such payment was not due and payable.
[6]
In the second charge, the employer alleged that Mr Chipana was guilty
of dishonesty
in that he had indicated to a Mr Nong that he would
obtain employment for him at Exxaro; in demanding and/or soliciting
payment
of an amount of R 6000 from Mr Nong; and/or accepting such
payment. In the alternative, it was alleged that Mr Chipana had
misused
his position by soliciting and requesting the payment of R
6000 from Mr Nong when it was not due and payable. In respect of both
the charges and the alternatives the charge sheet stated that if any
of the charges were proven it would “effectively destroy
the
trust relationship between the employee and the employer”.
The Disciplinary
hearing
[7]
At the disciplinary hearing, which commenced on 17 April 2014, Exxaro
called three
witnesses to prove the charges, a Mr Pieter Steyn,
senior manager of a forensics auditing team employed by Ernest and
Young; Mr
Paul Claasen, a colleague of Mr Steyn who assisted in the
investigation; and one of the complainants, Ms.Thobane. Ms Mange and
Mr Nong were not called as witnesses. Mr Chipana gave evidence in his
defence. The evidence of Messrs Steyn and Claasen was essentially
hearsay in that they had no first-hand knowledge of Mr Chipana’s
alleged wrongdoing. In essence, they merely related what
they had
been told, or what they had heard from others. They also relied on
affidavits allegedly made by the complainants. The
reason given for
the failure to call the two complainants was that they had been
intimidated by Mr Chipana. He was found guilty
of the main and
alternative counts of misconduct and his dismissal was recommended.
As already mentioned, Mr Chipana was dismissed
by Exxaro on 14 May
2014.
The Arbitration
[8]
He referred an unfair dismissal dispute to the CCMA, and after a
failed conciliation
the matter went to arbitration. There Exxaro
relied on a bundle of documents, including the affidavits allegedly
made by the complainants,
Mr Chipana’s official telephone
records, and the like. It also called Messrs Steyn and Claasen, to
prove that the dismissal
was fair, and called a Mr Nyaka to prove
that the trust relationship between Mr Chipana and Exxaro had been
broken.
[9]
Mr Chipana, who was legally represented for a substantial portion of
the hearing,
gave evidence in his defence and called no other
witnesses. The commissioner concluded as follows in his award:
“
6.3
In their closing arguments, both parties admitted that the evidence
sought to be relied upon by the respondent was hearsay.
While the
respondent argued that such evidence was admissible under the Law of
Evidence Amendment Act, and in terms of certain
Labour Court
decisions, the applicant argued for an opposite finding.
6.4 The applicant was
accused of bribery, which is a crime in our law. The person giving
the bribe and the one receiving it, are
co-conspirators in an
unlawful act. It would be extremely prejudicial to the person against
whom the evidence on affidavit is given,
to accept it without testing
such evidence through cross-examination.
6.5 The applicant denied
any wrongdoing, and there was nothing during his cross-examination
that showed that his version was not
probably true.
6.6
Hearsay evidence cannot be admitted against a
person without his consent, especially where it is not corroborated
by independent
evidence. This is the law of the land, and
disciplinary enquiries are not exempted from the application of the
law of evidence.
The standard of proof in disciplinary proceedings is
the same as that in civil matters, and not something lower than that.
The
standard must also be observed in arbitration proceedings in the
CCMA.
6.7
Once the hearsay evidence against
the applicant is excluded, which I hereby do, there remains no
shred of evidence in support of the respondent’s
allegations against him.
6.8 This dismissal of the
applicant was, accordingly, not for a fair reason within the purview
of section 188 of the Act.”
(Emphasis added).
[10]
The commissioner went on to order Mr Chipana’s full
reinstatement retrospective to the
date of his dismissal, with
backpay in the amount of R 95,000-00, which was to be paid by Exxaro
on or before 31 October 2014.
The Review in the Labour
Court
[11]
In October 2014 Exxaro brought an application in the Labour Court to
review and set aside the
commissioner’s award and to replace it
with an order upholding Mr Chipana’s dismissal. Mr Chipana
opposed the application
and filed an answering affidavit to which
Exxaro replied by affidavit. The matter was eventually heard on 4 May
2017 and the Labour
Court handed down its judgement on 6 September
2017.
[12]
One of the primary challenges raised by Exxaro in respect of the
award was the fact that the
commissioner had not accepted the hearsay
evidence and it argued, in particular, that the commissioner had
failed to apply his
mind to the provisions of section 3 of the LEAA.
It submitted further that the arbitrator had also ignored other
evidence, including
the affidavits of the ‘complainants’,
the oral evidence given by Messrs Steyn and Claasen, text messages,
voice recordings
of an alleged conversation between Mr Chipana and Ms
Mange, evidence confirming Mr Nong’s visit to Mr Chipana’s
workplace,
and a transcript of the disciplinary hearing.
[13]
The Labour Court found that the issue before the commissioner was not
whether Mr Chipana consented
to the admission of the hearsay
evidence, but concerned the reasons for Exxaro’s failure to
call particular witnesses to
testify. It held that the commissioner’s
failure to determine whether there was a good reason for those
witnesses’
failure to testify did not “ordinarily render
the award unreasonable” and that what had to be considered was
whether
in light of all the material placed before the commissioner,
his decision could be said to be one which a reasonable
decision-maker
could not make
[2]
.
The Labour Court reasoned that the next test to be applied, alongside
the “
Sidumo
test”
[3]
, was to ask
“whether the irregularity is so gross to such an extent that it
was calculated to prejudice the aggrieved party,
if so proved the
decision is then liable to be set aside”. As authority for this
additional test the Labour Court referred
to a statement in “
Erasmus
Superior Court Practice
”
[4]
.
The Labour Court went on to explain that in dealing with this
question it also sought guidance from this Court’s decision
in
Fidelity
Cash Management Service v CCMA and Others
[5]
,
where it is pointed out that a reviewing court must bear in mind that
interference with the decisions or findings of a commissioner
is not
justified merely because the reviewing court would come to a
different decision, or finding.
[14]
The Labour Court then went on to itself determine whether any good
reason for the failure of
the witnesses to testify was evident from
the record. Having referred to, inter alia, the evidence of Messrs
Steyn and Claasen
and the affidavit of Ms Thobane the Labour Court
concluded that there was nothing to indicate that the “alleged
intimidation
was ongoing” and found that there was “no
credible evidence” that the “alleged threat was
imminent”.
The Labour Court further noted that Mr Nong’s
affidavit contained no allegation of intimidation and finally
concluded that
“the cumulative effect of all that”,
irrespective of whether the commissioner’s reason for excluding
the hearsay
evidence was satisfactory, was that Exxaro had “failed
to genuinely establish a compelling case for the admission of such
evidence”.
[15]
On the assumption that it may have been wrong in that finding, the
Labour Court went on to consider
another question, namely, “whether
the evidence sought to be admitted was of value toward proving
fairness of the dismissal”.
In answering that question, the
Labour Court considered the following – that the content of the
affidavits of the complainant
was disputed; and if those contents
were weighed against Mr Chipana’s denial of misconduct and his
undisputed version that
he had a love relationship with Ms Mange, who
did not want to testify – Exxaro
’
s
case “was about to crumble for lack of evidence in rebuttal of
his version”. The Labour Court also considered that
the
evidence tendered by Messrs Steyn and Claasen “was based on
untested allegations received from the complainants”.
Referring
to the decision in
Herholdt
v Nedbank
[6]
the Labour Court, in effect, found that the irregularities in the
arbitration were not “susceptible to the court’s
interference”, and held that in those circumstances it was
“constrained” to dismiss Exxaro’s review
application.
The Labour Court subsequently dismissed Exxaro’s
application for leave to appeal to this Court.
The Appeal
[16]
It was submitted in heads of argument filed on behalf of Exxaro that
the Labour Court had erred
in its approach, conclusion and order.
Exxaro persisted with its argument that the arbitrator failed to have
proper regard for
section 3 of the LEAA; had ignored the totality of
the evidence and had merely excluded the hearsay evidence on the
ground that
Mr Chipana had not consented to its admission, but had
ignored the reasons given for the complainants not testifying. It was
further
submitted that the commissioner’s award was one which a
reasonable decision-maker would not have made taking into account
all
of the evidence.
[17]
It was submitted on behalf of Mr Chipana that neither the
commissioner, nor the Labour Court
could be faulted for finding that
if the hearsay evidence was excluded there was not a “shred of
evidence” on which
Exxaro could rely to prove that Mr Chipana’s
dismissal was fair. It was further submitted that even if the
commissioner had
erred in failing to take into account certain
electronic messages (SMS’s) and recordings as corroboration for
the content
of the affidavits of the complainants, it was an error of
law that did not constitute a gross irregularity, because it did not
cause the commissioner to misconceive the nature of the enquiry, or
his duties in relation thereto. It was further argued that the
voice
recording and SMS’s were uncorroborated and constituted hearsay
and that since Mr Chipana denied their veracity they
do not have any
probative value. A number of court decisions were relied on in
support of the argument that it was not in the interest
of justice to
receive the hearsay evidence, including
Makhatini
v Road Accident Fund
[7]
;
S v Shaik and others
[8]
;
S v Molumi
[9]
.
Reference was also made to a passage in
S
v Ndhlovu and Others
[10]
where trial courts in criminal matters are cautioned to be scrupulous
when applying the hearsay provisions in the LEAA, so as to
ensure
respect for an accused’s fundamental right to a fair trial.
Discussion
[18]
The Labour Court erred in a number of respects and I shall address
those in due course. With
reference to the award itself, if a
commissioner purports to apply the law then it is incumbent upon the
commissioner to at least
make an effort to ascertain what the law is.
In this matter the commissioner avowed in his award that it was the
law of the land
that uncorroborated hearsay evidence could not be
admitted without Mr Chipana’s consent. Perhaps the commissioner
had in
mind an oversimplified view of the law as it stood before the
enactment of section 3 of the LEAA, because the position described
by
the commissioner is and was at the time of the award certainly not
the law of the land. Because of that fundamental error the
commissioner also misconceived the enquiry into the admissibility of
the hearsay evidence. Section 3 provides:
‘
3
Hearsay evidence
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless
–
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b) the person upon whose
credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
(c) the court, having
regard to –
(i) the nature of the
proceedings;
(ii) the nature of the
evidence;
(iii) the purpose for
which the evidence is tendered;
(iv)
the probative value of the evidence;
(v) the reason why the
evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a
party which the admission of such evidence might entail; and
(vii) any other factor
which should in the opinion of the court be taken into account,
is
of the opinion that such evidence should be admitted in the interests
of justice.
(2) the provisions of
subsection (1) shall not render admissible any evidence which is
inadmissible on any ground other than that
such evidence is hearsay
evidence.
(3) Hearsay evidence may
be provisionally admitted in terms of subsection (1) (b) if the court
is informed that the person upon
whose credibility the probative
value of such evidence depends, will himself testify in such
proceedings: Provided that if such
person does not later testify in
such proceedings, the hearsay evidence shall be left out of account
unless the hearsay evidence
is admitted in terms of paragraph (a) of
subsection (1) or is admitted by the court in terms of paragraph (c)
of that subsection.
(4) For the purposes of
this section –
“
hearsay
evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of
any person
other than the person giving such evidence;
“
party”
means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution.’
[19]
It is accepted that this section essentially means that if there is
no agreement to receive hearsay
evidence it is to be excluded unless
the interests of justice requires its admission
[11]
.
Hearsay evidence that is not admitted in accordance with the
provisions of this section is not evidence at all.
[12]
This Court
[13]
held: “Section
3(1) of the Act has ushered our approach to the admissibility of
hearsay evidence into a refreshing and practical
era. We have broken
away from the assertion–orientated and rigid rule–and–exception
approach of the past. Courts
may receive hearsay evidence if the
interests of justice require it to be admitted”. This section
still retains the “caution”
concerning the receiving of
hearsay evidence, but changed the rules about when it is to be
received and when not.
[14]
[20]
Hearsay evidence is a common form of evidence encountered in
disciplinary proceedings. In many
cases, it might be the only
evidence available to supplement other direct evidence in making out
a case of misconduct or to sustain
a defence to a charge of
misconduct. It is therefore not unreasonable to expect commissioners
to be familiar with it and to be
in a position to identify it
readily. That the provisions of the section are not a novelty or
mystery to commissioners or arbitrators,
is evident from reported
decisions
[15]
.
[21]
The provisions of section 138 of the LRA that give a commissioner a
discretion to conduct an
arbitration in a manner that she, or he,
considers appropriate to determine a dispute fairly and quickly, and
to do so with a minimum
of legal formalities, does not imply that the
commissioner may arbitrarily receive or exclude hearsay evidence, or
for that matter
any other kind of evidence. In the case of hearsay
evidence, even though section 3 of the LEAA, by providing a set of
rules or
principles for the admission or exclusion of hearsay
evidence, assumes some legal formality, it is invaluable. While a
commissioner
is notionally not obliged to apply it because of the
discretion bestowed on him or her by section 138 of the LRA, the
prudent commissioner
does not err by applying it when dealing with
hearsay evidence, rather than conceive of an alternative norm that
will ensure not
only fairness in the process, but also in the outcome
of the arbitration. Applying the common law rules for the reception,
or exclusion,
of hearsay evidence appears not to be the answer,
because those rules have already rightly been jettisoned for their
“rigidity,
inflexibility – and occasional absurdity”
[16]
.
Those epithets in are not consonant with fairness and reasonableness.
[22]
The provisions of section 3 of the LEAA are readily straightforward
and the factors to be considered
under subsection 3 (1) (c) are not a
closed list. The provisions of the section may be adapted
specifically for arbitration
proceedings. For example, in applying
the section “court” may be the readily taken to refer to
the commissioner or
arbitrator; “criminal or civil proceedings”
could be taken to refer to the arbitration proceedings.
[23]
In addition to referring to precautions to be taken by criminal trial
courts in applying the
hearsay provisions of LEAA, the Supreme Court
of Appeal in
S
v Ndhlovu and Others
[17]
referred to safeguards to ensure respect for an accused’s
fundamental right to a fair trial. Cameron JA pointed out that
safeguards, including the following, were important: “First, a
presiding judicial officer is generally under a duty to prevent
a
witness heedlessly giving vent to hearsay evidence. More specifically
under the Act, ‘it is the duty of a trial judge to
keep
inadmissible evidence out, [and] not to listen passively as the
record is turned into a papery sump of “evidence”.’
Second, the Act cannot be applied against an unrepresented accused to
whom the significance of its provisions have not been explained…
Third, an accused cannot be ambushed by the late or unheralded
admission of hearsay evidence. The trial court must be asked clearly
and timeously to consider and rule on its admissibility. This cannot
be done for the first time at the end of the trial, nor in
argument,
still less in the court’s judgement, nor on appeal. The
prosecution must before closing its case clearly signal
its intention
to invoke the provisions of the Act, and the trial judge must before
the State closes its case rule on admissibility,
so that the accused
can appreciate the full evidentiary ambit he or she faces.”
[24]
Those safeguards and precautions, duly adapted, also apply to the
application of section 3 of
the LEAA in civil proceedings. Because of
the similarities between civil proceedings and arbitration
proceedings, the, overwhelmingly,
adversarial nature of arbitration
proceedings under the LRA, and the overarching requirement that such
proceedings be fair, those
safeguards and precautions, duly adapted,
apply equally to arbitration proceedings to ensure fairness and serve
as an invaluable
guide for commissioners and arbitrators when
confronted with hearsay evidence, and, particularly, when applying
section 3 of the
LEAA. Adapted they would include the
following: (1) Section 3(1)(c) of the LEAA is not a licence for
the wholesale
admission of hearsay evidence in the proceedings; (2)
in applying the section the commissioner must be careful to ensure
that fairness
is not compromised; (3) a commissioner is to be alert
to the introduction of hearsay evidence and ought not to remain
passive in
that regard; (4) a party must as early as possible in
the proceedings make known its intention to rely on hearsay evidence
so that the other party is able to reasonably appreciate the
evidentiary ambit, or challenge, that he/she or it is facing. To
ensure compliance, a commissioner should at the outset require
parties to indicate such an intention; (5) the commissioner must
explain to the parties the significance of the provisions of section
3 of the LEAA, or of the alternative, fair standard
and
procedure adopted by the commissioner to consider the admission of
the evidence
[18]
; (6) the
commissioner must timeously rule on the admission of the hearsay
evidence and the ruling on admissibility should not be
made for the
first time at the end of the arbitration, or in the closing argument,
or in the award. The point at which a ruling
on the admissibility of
evidence is made is crucial to ensure fairness in a criminal
trial
[19]
. The same ought to
be true for an arbitration conducted in an adversarial fashion
because fairness to both parties is paramount.
[25]
In this matter the timing of the commissioner’s ruling on the
admissibility of the hearsay
evidence occurred so late, that it was
undoubtedly unfair to both, the employer and the employee. It is
apparent from the record
of the arbitration proceedings that the
commissioner was acutely aware from the outset that the main issue in
dispute related to
the admission of hearsay evidence at the
disciplinary enquiry. Exxaro’s representative, in her opening
statement, conceded
that Exxaro had relied on hearsay evidence at the
disciplinary enquiry. Exxaro’s representative proceeded to
adduce hearsay
evidence, through Messrs Steyn and Claasen to prove
the charges of misconduct. No objection was raised to this evidence
being adduced,
neither by Mr Chipana, who was forced to represent
himself for the early stages of the arbitration, nor by the
commissioner. Significantly,
the commissioner appeared to adopt a
passive attitude in that regard. Mr Chipana’s legal
representative appeared after Mr
Steyn had given evidence-in-chief
and he cross-examined Mr Steyn after consulting Mr Chipana, but he
too did not raise any objection
to the hearsay evidence.
[26]
After Exxaro’s third and last witness gave evidence, Mr Chipana
gave evidence in his defence.
He essentially tried to answer what
was, mainly, hearsay evidence adduced against him by Exxaro. For
example, he denied asking
Ms Mange or Ms Thobane for payment for
getting Ms Thobane a job at Exxaro and testified, in essence, that he
had been giving money
to Ms Mange in return for sexual favours; that
their story was a fabrication and that they concocted it out of spite
after he ended
the adulterous love- relationship he had with Ms
Mange. Mr Chipana also denied ever promising a job to Mr Nong, or
taking money
from him in return. Mr Chipana was briefly
cross-examined by Exxarro’s representative and his case was
closed.
[27]
It is only in the closing argument that Exxaro’s representative
again raised the issue
of the admission of the hearsay evidence. She
conceded that Exxaro’s case was based largely on hearsay
evidence and contended
for its admission in terms of section 3 (3) of
the LEAA. The record shows that in support of that contention she
referred to case
authority, although the record does not clearly and
adequately reflect which cases she actually referred to. However, she
went
on to submit that taking into account the totality of the
evidence the charges of misconduct against Mr Chipana had been proved
and his dismissal was thus procedurally and substantively fair.
[28]
The record is not clear regarding the closing submissions made by Mr
Chipana’s representative
(too many ‘inaudibles’),
but there are indications that the admissibility of the hearsay
evidence was addressed. Of
significance is the fact that it is only
in his award that the commissioner makes a ruling on the
admissibility of the hearsay;
ruling, essentially, that it was
inadmissible because Mr Chipana did not consent to its admission.
[29]
The timing of the ruling and the Commissioner’s relative
passivity during the arbitration
when the hearsay evidence was being
adduced is not consonant with a commissioner’s duty to
determine a dispute between parties
fairly, or quickly. If the issue
of admissibility of the evidence been addressed promptly when it was
sought to be adduced or adduced,
the ruling in respect thereof would
not only have assisted both sides to know what the ambit of the cases
were that they had to
meet respectively, but could possibly have led
to a quicker and cheaper resolution of the dispute.
[30]
Mr Chipana was clearly prejudiced by the commissioner’s
passivity regarding the admissibility
of the evidence, in that, he
proceeded headlong to deal with the hearsay evidence risking the
finding that he had thereby consented
(albeit tacitly) to its
admission. The employer also proceeded not knowing whether the
evidence was to be admitted; and both parties
were essentially
deprived of the opportunity of knowing exactly what more was
required, respectively, to make out a case, and what
case had to be
met, timeously, so that alternatives could be considered. By the time
the ruling on admissibility was made it was
too late for either party
to do anything to save their (respective) situations.
[31]
While both sides may be criticised for not raising the issue of
admissibility early in the proceedings,
i.e. at least as or when the
hearsay evidence was adduced, the criticism is tempered particularly
because these are not court proceedings
and the representatives of
the parties are not necessarily legally trained. Notwithstanding,
ultimately it was for the commissioner
to ensure that the hearing was
fair for both sides. A reasonable commissioner in the position of the
arbitrator in this matter
would not only have known what the law on
the admission of hearsay was, if he sought to invoke the law (i.e.,
the formal rules
for the admission of evidence), but would have been
alert to the introduction of the hearsay evidence and would have
addressed
its admissibility promptly so as to ensure fairness and
expediency.
[32]
The Labour Court did not deal pointedly with the commissioner’s
erroneous view of the law
and, instead, found that there was no basis
for interfering with the commissioner’s award. The Labour Court
seems to have
overlooked the fact that the commissioner had erred
grossly concerning the law on the admission of hearsay evidence and
that his
consequent, erroneous ruling had a direct impact on the
outcome of the arbitration proceedings. Instead, the Labour Court,
seemingly,
sought to find justification for the erroneous ruling in
the supposed informality of the proceedings and sought, belatedly,
and
for the first time, in effect, to embark on the discretionary
exercise necessitated by section 3 (1) (c) of the LEAA, oblivious
to
the fact that such exercise could not cure the unfairness that had
already been wrought in the arbitration hearing by the timing
of the
ruling.
[20]
[33]
On appeal both sides, effectively, also required of us to engage in
the exercise which the commissioner
ought to have timeously performed
in the arbitration, namely, to consider the admissibility of the
hearsay evidence in light of
section 3 (1) (c) of the LEAA. This
Court is in no better position than the Labour Court in trying to
cure the unfairness that
had occurred in the arbitration hearing. In
S
v Ndlovhu
and
Others
[21]
the Supreme Court of Appeal (per Cameron JA) expressed itself as
follows in respect of the timing of the ruling on the admission
of
hearsay evidence: “… The trial court must be asked
timeously to consider and rule on its admissibility. This cannot
be
done for the first time at the end of the trial, nor in argument,
still less in the court’s judgement, nor on appeal.
The
prosecution must before closing its case clearly signal its intention
to invoke the provisions of the act, and the trial judge
must before
the state closes its case rule on the admissibility, so that the
accused can appreciate the full evidentiary ambit
he or she faces”.
[34]
Even though this is not a criminal matter, the principles to be
derived from that decision are
salient and consonant with fairness in
arbitration proceedings where section 3 of the LEAA is invoked. Both,
the employer and the
employee, ought to be able to appreciate the
evidentiary ambit they (respectively) face, so that they are able
conduct their cases
accordingly. Late rulings on admissibility of
evidence are of no assistance to the parties, and result in
unfairness that cannot
be undone on review, or on appeal.
[35]
While this approach appears to introduce some measure of formality
one would rather have that,
than unfairness. Some formality is not
anathema to arbitration proceedings in the CCMA. Section 138 does not
ban all formality
– it merely requires “minimal
formality”. In deciding on how much formality is permissible
one must be careful
not to sacrifice fairness on the altar of
informality. Section 138 not only requires minimal formality, but
also requires fairness
and speed. An equitable balance must be struck
so that none of these pre-eminent values are sacrificed.
[22]
[36]
The Labour Court clearly erred in finding that there was no basis for
interfering with the commissioner’s
award. The commissioner’s
ruling on admissibility, which was wrong in law, was material in that
it clearly impacted the outcome
of the arbitration. Mr Chipana’s
dismissal was held to be substantively unfair because the
commissioner found that there
was “no shred of evidence”
to prove that it was fair. The Labour Court’s belated attempt
to exercise the discretion
which the commissioner ought to have
exercised promptly in terms of section 3 (3) of the LEAA, could not
cure the unfairness that
had been caused by the gross irregularity in
the conduct of the arbitration proceedings. And even in that attempt
the Labour Court
erred by only considering one factor, namely, the
reason for the failure of the ‘complainants’ to testify-
whereas,
in a proper case, where there is no issue of timing, all
other relevant factors (i.e., at least those identified in section 3
(1)
(c) of the LEEA) ought to have been taken into account,
cumulatively, in considering whether the interests of justice (and of
fairness)
required the admission of the hearsay evidence
[23]
.
[37]
The appropriate relief is to set aside the award and to refer the
matter back to the CCMA for
a hearing de novo before a different
commissioner. I am of the view, taking into account the law and
fairness, no costs orders
ought to be made in respect of the
application in the Labour Court, or in this appeal.
[38]
In the result, the following is ordered:
1.
The
appeal is upheld.
2.
The
order of the Labour Court dismissing the review is set aside, and is
replaced with the following order:
‘
1.
The award is reviewed and set aside;
2. The matter is referred
back to the third respondent (the CCMA) for a hearing
de novo
before a different commissioner;
3. There is no costs
order.’
3. No
order is made in respect of the costs of the appeal.
___________________________
P
Coppin
Judge
of the Labour Appeal Court
Murphy
and Savage AJJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT: L
Hollander
Instructed
by Shepstone & Wylie
FOR THE
RESPONDENT:
ME Phooko
Instructed
by Mohale Incorporated
[1]
Act
45 of 1988.
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd
and
Others
[2007] 12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC) paras 78 and 79.
[3]
Ibid.
[4]
PE
Van Loggerenberg’s “
Erasmus
Superior Court Practice
”
(2nd edition) A2-134.
[5]
[2008]
3 BLLR 197
(LAC) para 98.
[6]
[2013]
11 BLLR 1074
(SCA).
[7]
2002
(1) SA 511 (SCA).
[8]
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA) para 170.
[9]
2008
(3) SA 608 (CC).
[10]
2002
(6) SA 305
(SCA) para 17.
[11]
See:
S
v Ndhlovu and Others
(above)
para 12.
[12]
See:
S
v Ndhlovu and Others
(above)
para 14.
[13]
See:
per Musi AJA in
Public
Servant’s Association of South Africa v Minister: Department
of Home Affairs and Others
[2013]
3 BLLR 237
(LAC) para 19.
[14]
See:
S
v Ndhlovu and Others
(above)
para 15, quoting from
Makhatini
v Road Accident Fund
2002 (1) SA 511
(SCA) para 51.
[15]
See
eg.
NUM
and Others v CCMA and Others
[2010] 6 BLLR 681
(LC) paras 22-25
;
Rand Water v Legodi NO and Others
(2006) 27 ILJ 1933 (LC) paras22-23.
[16]
S
v Ndhlovu and Others
(above)
para 15.
[17]
S
v Ndhlovu and Others
(above)
paras 17-18.
[18]
Compare:
Le
Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn and Others
[2007] 10 BLLR 909
(LAC) paras 17-20;
Foschini
Group v Maidi and Others
[2010] 7 BLLR 689
(LAC) para 38. However, the Labour and Labour
Appeal Court have sometimes invoked section 3 of the LEEA to
determine whether
hearsay evidence was correctly admitted or
excluded by a commissioner or arbitrator. See eg.:
Swiss
South Africa Pty) Ltd v Louw NO and Others
[2006] 4 BLLR 373
(LC) and
Edcon
Ltd v Pillemer NO and Others
[2007] ZALC 101
;
[2008] 5 BLLR 391
(LAC) para 15.
[19]
See:
S
v Ndhlovu and Others
(above) para 18 and
S
v Molimi
[2008] ZACC 2
;
2008 (3) SA 608
(CC) paras 38-42.
[20]
Compare:
S
v Ndhlovu and Others
(above) para 18.
[21]
See
(above) para 18.
[22]
See:
CUSA
v Tao Ying Metal Industries and Others
[2009] 4 BLLR 381
(LC) para 22. Compare:
Naraindath
v CCMA and Others
[2000]
6 BLLR 716
(LC) para 26.
[23]
See:
inter
alia
,
S
v Shaik and Others
[2006] ZASCA 105
;
2007 (1) SA 240
(SCA) para 170.