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[2006] ZALCJHB 9
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Marko Pretoria West v Commission for Conciliation Mediation And Arbitration and Others (JR1232/03) [2006] ZALCJHB 9 (30 June 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
CASE
NO: JR1232/03
In
the matter between:
MAKRO
PRETORIA
WEST APPLICANT
AND
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
1
ST
RESPONDENT
COMMISSIONER
SIPHO
RADEBE 2
ND
RESPONDENT
JOSEPH
MAFA 3
RD
RESPONDENT
ANDRIAN
KEKANA 4
TH
RESPONDENT
JUDGMENT
SANDI
AJ
[1]
At the arbitration conducted under the auspices of the Commission for
Conciliation, Mediation and Arbitration,
the second respondent (“
the commissioner”) issued an award setting aside the dismissal
of the third and fourth respondents
(“the respondents”)
and replaced it with an award granting the respondents compensation
equivalent to their 12 months’
salary and, in addition, ordered
the applicant to pay the respondents any annual increases that the
applicant would have qualified
for between the date of their
dismissal and the date of the hearing.
[2]
It is against this award that the review
application has been launched.
[3]
The third and fourth respondents were employed by the applicant as
detailed checker and receiver, respectively.
At about 16h00 on 8
September 1998 one of applicant’s suppliers delivered to it a
consignment of grandpa powder. Procedures
laid down by the applicant
when receiving orders were followed. After the supplier’s
driver had parked the delivery vehicle
in the parking allocated to
it, he produced documents to the booking office, which confirmed that
the supplier’s order number
matched the order made by the
applicant. The driver’s name and the registration number of the
vehicle were recorded. The
goods were unpacked and were counted by
the fourth respondent, who together with the driver of the delivery
vehicle signed the
delivery slip certifying that 840 units had been
received by the applicant. The next step was that the consignment was
subjected
to a detailed check by the third respondent who confirmed
that 840 units had been received. Both the third and fourth
respondents
said that the consignment was contained in two
pallets. The third and fourth respondents did
not play any
role in what happened to the consignment thereafter. The
goods were placed in a cage which was locked up and sealed by one
Ramutla
, a
security guard. On the morning of 9 September 1998 the cage was
opened without the seal on the lock having been disturbed. A
stock
taking revealed that in the whole of the applicant’s
establishment there were 688 units of grandpa powder instead of
1111.
This does not refer only to the grandpa powder in question.
[4]
After the shortage was discovered the third respondent was charged
and found guilty of the offence of
gross negligence in the
performance of his duties as a stock-controller. The fourth
respondent, on the other hand, was found guilty
of gross misconduct
in the performance of his duties as receiver. As a result, the
respondents were dismissed from their employment.
[5]
At arbitration the respondents were successful.
[6]
It is common cause that there is no direct evidence linking the
respondents to the misconduct with which
they were charged and found
guilty and that in support of its case the applicant relied on
circumstantial evidence.
[7]
Two rules must be followed when dealing with circumstantial evidence.
They are stated in
R v Blom
1939 AD188 at 202-203 as follows:
(a) the inference sought
to be drawn must be consistent with all the proved facts. If it is
not, then no inference can be drawn.
(b)
The proved facts should be such that they exclude every reasonable
inference to be drawn from them save the one that is sought
to be
drawn. If they do not exclude other reasonable inferences, then there
must be a doubt whether the inference sought to be
drawn is the
correct one.
[8]
In civil cases where a lesser onus applies, the second rule is stated
as follows: “the proved
facts should be such as to render the
inference sought to be drawn more probable than any other reasonable
inference. If they allow
for another more or equally probable
inference, the inference sought to be drawn cannot prevail. See
:
Macleod v Rens
1997 (3) SA 1039[E]
, and
Zeffert, the South African Law of
Guidance at p105.
[9]
In
AA Onderlinge Assuransie Assossiasie Beperk v De Beer
1982
(2)SA603 at 614 G-H Viljoen JA said that:
“
It
is not necessary for a plaintiff invoking circumstantial evidence in
a civil case to prove that the inference which he asks the
Court to
make is the only reasonable inference. He will discharge the onus
which rests on him if he can convince the Court that
the inference he
advocates is the most readily apparent and acceptable inference from
a number of possible inferences.” (headnote)
[10]
Applicant’s counsel submitted that the shortage was an
indication that the goods were either
stolen or never reached
the applicant.
[11]
As pointed out to counsel during argument I have certain difficulties
with his argument. There is nothing
to gainsay the respondents
evidence. It has to be accepted, as the commissioner did. Moreover,
the respondents’ version is
corroborated materially by the
evidence of
Ramutla
who saw at least two pallets of the powder before the cage was locked
up and sealed, and no evidence was led to show what quantity
of the
powder was locked up in the cage and what quantity was removed from
it the next morning. Such evidence was vital for an
investigation to
determine the movement of the grandpa powder after it had been
checked by the respondents.
[12]
I disagree with counsel’s argument that the only reasonable
inference that can be drawn from the facts
of the matter is that the
third respondent did not receive all the units set out in the
delivery document.
[13]
In my view, 840 units were delivered to applicant’s premises
whereafter they were placed in a cage.
If any shortage of such goods
occurred, it occurred after the respondents had checked them.
[14]
The award issued by the commissioner is rational and justifiable on
the evidence placed before him and there
is no reason to interfere
with such finding.
[15]
In the circumstances the review application should fail. The parties
agreed that if the review application
is unsuccessful, the portion
thereof that grants applicants compensation in the form of annual
increases should be set aside. I
propose to do so.
[16] In the
result the following order is made:
(i) The commissioner’s
award is upheld save that the following is deleted from it:
“
in
addition to 4.4 above the respondent is ordered to pay the
applicant’s any annual increases that applicants would have
qualified for since their dismissal”
(ii)
The applicant is to pay the costs of the application.
___________________
B
SANDI
Acting
Judge of the Labour Court
Date of hearing: 23 June
2006
Date
of judgment: 30 June 2006
Applicant’s
representative: Adv G.A Fourie
(instructed
by Perrot Van Niekerk &
Woodhouse)
Respondent’s
representative: Mr Jabulani Motau
(instructed
by SACCAWU)