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[2004] ZALCJHB 1
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Moloko v Ntsoane and Others (JR1568/02) [2004] ZALCJHB 1 (20 April 2004)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE NO: JR 1568/02
In
the matter between
MOLOKO
SALPHINA Applicant
and
Commissioner
NTSOANE
DIALE 1
st
Respondent
CCMA 2
nd
Respondent
HYPERAMA
(MAYVILLE) 3
rd
Respondent
JUDGMENT
TOKOTA
AJ:
[1]
The applicant was employed by the third respondent since 26 January
1981 until she was dismissed on 21 February 2002.
[2]
The events leading to the dismissal can be summarized as follows:
Whilst on duty on 16
February 2002 she was called to the office of the Administrative
Manager of the third respondent one Mr. Botha.
In that office she was
confronted with an allegation that she had “bumped” a
customer at the fruit and vegetable section.
This bumping was
interpreted as an assault on the customer. The applicant immediately
denied that she had “bumped”
or assaulted anybody. She
was then served with a suspension letter and was ordered to leave the
store immediately. She was then
told to come to the disciplinary
hearing on 20 February 2002.
At the disciplinary
enquiry Mr. Botha represented the employer Mr. De Beer one of the
Sales Manager of the employer presided. An
interpreter for the
applicant was used. Applicant was not represented. The only evidence
that was led in support of the charges
was an unsworn statement of
the alleged complainant one Ms E Van Zyl and a video footage. Despite
the denial of the incident by
the applicant Ms Van Zyl was not called
as a witness. The reason advanced for failure to call Van Zyl was
because “she gave
a statement” and a videocassette was
used. I will revert to this later.
The applicant was then
found guilty and dismissed.
[3]
As the applicant was not satisfied with dismissal she declared a
dispute of unfair dismissal, which culminated in the arbitration.
The
arbitrator found that although there was a fair reason to discipline
the applicant and a fair procedure followed, the sanction
was too
harsh and an order of re-employment was made.
[4]
The applicant brought this review application seeking an order
setting aside the arbitration award and substituting the same
with an
order which the court deems fit. The review is based on a number of
grounds. The main ground, which was pressed in argument
by Mr Khoza
who represented the applicant was that, the arbitrator committed a
gross irregularity in relying on a statement by
Ms Van Zyl, who was
never called as a witness either at the disciplinary enquiry or at
the arbitration. Furthermore, so the argument
ran, the video footage
was of such a poor quality that no clear vision of an assault could
be seen on it.
[5]
The employer opposed the applicant and brought a counter-application
reviewing and setting aside the arbitration award to the
extent that
an order for re-employment was made. The grounds of review include
that the commissioner exceeded his powers by interfering
with the
sanction imposed by the employer. The fate of this counter
–application must depend on the main application. Consequently
I deem it expedient to first deal with the main application.
[6]
In my view the applicant was dealt a severe blow where no reliable
admissible evidence was led to support the allegations against
her.
Firstly when she was confronted with the allegations on 16 February
2002 she asked where the customer was and was told that
there was
nothing to discuss with her. She should go and ask these questions at
the disciplinary hearing. When the alleged customer
made a complaint
she did not know the applicant. Mr. Botha stated that they looked for
the applicant in the store and she was pointed
out to him at a
distance as he was investigating the complaint. The statement that
was relied upon both at the disciplinary hearing
and at the
arbitration was clearly unreliable as hearsay. It was an unsworn
complaint. There was no authentication of the video
footage, which
was clearly a copy. I am mindful of the fact that disciplinary
enquiries do not have to imitate courts of law by
applying strict
rules of evidence. However, it is incumbent upon the employer to
establish at least a valid reason for the dismissal
of its employee.
[7]
I have not been able to find an authority for the admissibility of
video and audio recordings both in disciplinary enquiry and
arbitration proceedings and I was not referred to any. In my view
where, as this case, the applicant denies the picture in the
video
recording, for the admissibility thereof, it must be established
that:
(i)
the recording device was capable
of taking the testimony.
(ii)
there were no changes, additions or deletions
that have been made to
the recording.
(iii)
on the evidence as a whole there exists no reasonable possibility
of
interference.
(iv)
the tape recordings relate to the occasion to which they allegedly
relate and no other.
[8]
Wide use of video films in entertainment industry has resulted in the
techniques of illusion and deception being brought to
powerful
perfection. For this reason any such video recordings used in any
tribunal should be authenticated if reliance is to be
placed upon
them.
[9]
As indicated above there is a dearth of authority in the civil
context regarding admissibility of video recordings. In
S v
RAMGOBIN and OTHERS 1986(4) SA 117 (N) at 125 G – I,
it was
stated that it is not objectionable to ask a witness whether he
recognizes a scene or a person in a photograph, even if he
did not
take the photograph, or was not present when it was taken, or even if
the origin of the photograph is unknown, but if the
witness says he
does not recognize any person or scene in the photograph, it will not
be admissible in the absence of proof that
it is what it purports to
be. The case of
S v W
1975 (3) SA 841
(7) ( ) at 842H
establishes
that photographs and films must be identified as true representations
of the objects and persons, which they purport
to represent before
they can be said to be real evidence. Objects do not prove themselves
anymore than documents do.”
[10]
The videocassette was brought to court and I had an opportunity to
observe it. The recordings are so poor that I could not
recognize any
assault on any person. I have watched the videocassette in different
video machines for several occasions. Despite
this I could not be
able to identify any person being assaulted.
[11]
Regard being had to inherent dangers of accepting, without further
ado, evidence of this nature I am of the view that the arbitrator
committed a gross irregularity in relying thereon. The arbitrator
found that “the applicant conceded under cross examination
that
she was the person in white clothes on the video footage. However,
she denied bumping the customer.” This finding is
factually
incorrect. The record reveals the following:
“
Q; Have you ever
denied that it was you on that video when the respondent’s
witnesses testified and when you testified?
A: I don’t
understand.
Q: What don’t you
understand?
A: What you want to ask.
Q: When the witness
testified you never disputed that it was you on the footage.
A: What I dispute is that
the person on the video is me.”
In view of his findings
the arbitrator obviously ignored this evidence
thus
he committed misconduct in relation to his duties by disregarding the
evidence placed before him. In my view in the absence
of any
authentication of this video recording and identification by Ms Van
Zyl this evidence should have been excluded.
[12]
With regard to the so-called statement of Ms Van Zyl there was no
basis in law why the arbitrator admitted this hearsay evidence.
There
was no explanation as to why Ms Van Zyl was not called as a witness.
In that statement she left a Cell phone number where
she could be
contacted. There was no evidence that any attempt was ever made to
secure her attendance. On 16 February 2002, the
date of the incident,
there is no satisfactory explanation why she had to secretly point
out the applicant to Mr. Botha. Furthermore,
this evidence did not
fall within the ambit of exceptions against the admission of hearsay
evidence as envisaged in section 3 of
the Law of Evidence Amendment
Act No. 45 of 1988.Why applicant was not afforded an opportunity to
admit or deny in her presence
any assault is a mystery. This
statement ought to have been excluded as well.
[13]
As to procedure, which was followed, I make the following
observations: The employer called the applicant on 16 February 2002
and confronted her with the allegations, which were “immediately
denied.” A decision was taken to suspend her with
immediate
effect. She was not afforded any hearing before that decision was
taken. She was given only four days, including the
date of hearing,
to prepare for the hearing. This deprived her sufficient opportunity
to consult for proper advice. In my view
there was no proper
procedure followed, as the time was too short to reflect.
[14]
In judging fairness the court must ultimately apply a moral or value
judgment regard being had to the established facts and
circumstances
of the case under consideration.
SEE:
BOARDMAN BROTHERS (NATAL) v CHEMICAL WORKERS INDUSTRIAL UNION
1998
(3) SA 53
(SCA) 58B
FOOD
& ALLIED WORKERS UNION & OTHERS v CHAPELAT INDUSTRIES (1989)
10 ILJ 552 (IC)
It
is a rule of natural justice that a party should be afforded an
opportunity to present its case and to present evidence in support
thereof or to contradict or challenge evidence, which is against him.
Such evidence includes films video and tape recordings.
SEE:
Baxter Administrative Law p 553.
The
Appellate Division in
Zuma v Jockey Club of South Africa
1974 (3)
SA 633
(A)
it was stated as follows at 646 F&H; “The
principles of natural justice do not require a domestic tribunal to
follow the
procedure and to apply the chemical rules of evidence
observed in a court of law, but they do require such a tribunal to
adopt
a procedure which would afford the person charged a proper
hearing by the tribunal, and an opportunity of producing his evidence
and of correcting or contradicting any prejudicial statement or
allegation made against him (
Marlin’s case, Supra at p. 126;
Becker v Western province sports Club(2nc);
1972 (3) SA. 8
3 (C)
at.p.811)
The
tribunal is required to listen fairly to both sides and to observe
“the principles of fair play”
(Marlin’s
case supra at p 126 and 128).
In addition to what may be observed
as the procedural requirements, the fundamental principles of justice
require a domestic tribunal
to exchange his duties honestly and
impartially (
Dabner v SA Railway & Habours,
1920 AD 583
at
589).
They require also that the tribunal’s finding of the
facts on its decision is to be based shall be ‘fair and bona
fide’
(
Jockey Club of SA v Transvaal Racing Club supra at
p.450).”
[15]
It is needless to say that if the arbitrator’s findings in
respect of the allegations of fact involved were based on the
evidence
before him which he could reasonably and honestly arrive at
a conclusion at which he did this court cannot interfere. In this
regard
it is sufficient to refer to the decision of
Gliksman v.
Transvaal Provincial Institute of the Institute of SA Architects and
Another 1951(4) SA 56 (W)
where Murray J expressed himself as
follows at 62D “
(t)he matter, however, assumes a different
complexion if there is shown to be entire absence of any evidence on
which a reasonable
man, or a body of reasonable men, could have based
such finding. In such a case the position is as stated by DE VILLIERS
CJ in
Mpemvu and Others v Nqasala
26 SC 531
at 533, such statement
being quoted with approval by WATERMEYER CJ in R v Kalogeropoulos
1945 AD 38
at 51:
'Where the lower court
had some evidence before it to justify its verdict this Court will
not disturb that verdict even although
it should consider that its
own verdict would have been different. But what is this Court to do
if there is no evidence whatever
to justify the finding? It appears
to me that it is an irregularity which the Court is bound to correct.
Among the grounds of review
are gross irregularity of proceedings,
the admission of illegal evidence and the rejection of legal
evidence. To give judgment
against a man without any evidence
whatever against him seems to be a greater irregularity
than to reject legal evidence
or admit illegal evidence, for it
ignores the very object for which all the rules of evidence exist.'"
[16]
It follows in my Judgment that the exclusion of the video evidence
and statement of Van Zyl leaves the employer with no evidence
to
prove any assault on any customer. In my view, therefore, the award
cannot stand and falls to be set aside.
In
the result I make the following order:
1.
The award made by the first respondent dated 19 August 2002 is
reviewed and set aside.
2.
The dismissal of the applicant was both substantially and
procedurally unfair.
3.
The applicant is to be re-instated from the date of her
suspension on conditions not less favourable than those that she
enjoyed
before her unfair dismissal.
4.
The counter application is dismissed
5.
No order as to costs is made.
____________________
TOKOTA
AJ
ACTING
JUDGE OF THE LABOUR COURT
Date
of hearing: 26 March 2004
Date
of Judgment: 20 April 2004
For
the applicant: Mr. Khoza Union Official
For
the respondent: Attorney Ms Lindstrom