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[2009] ZALCJHB 16
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Jula v Commissioner Khoza NO and Others (JR1162/05) [2009] ZALCJHB 16 (16 March 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: JR1162/05
In
the matter between:
DONA
JULA
APPLICANT
and
COMMISSIONER
KHOZA S,
N.O.
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
2
ND
RESPONDENT
SOUTH
AFRICAN POST OFFICE LTD
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set
aside the arbitration award, made by the First Respondent (the
Commissioner), under case
number GA 18292-04, dated the 31
st
of March 2005.
[2]
The Third Respondent (the Post Office)
applied for condonation for the late filing of its answering
affidavit. The explanation provided
for the late filing of the
answering affidavit is both reasonable and acceptable, particular
regard being had to the period of
delay which was only ten days. The
late filing of the answering affidavit is accordingly condoned.
Background facts
[3]
The Post Office operates as one of its
services the bank with its head office located in Bloemfontein. The
bank was established
to target the poor and to give them banking
facilities at affordable rates.
[4]
The Applicant who was employed as a
cashier/ teller at the bank’s De La Rey branch was dismissed on
26
th
April 2004, for misconduct related to fraud. She was charged with the
fraudulent withdrawals from the bank’s accounts belonging
to
seven account holders
(“the
clients”).
The fraudulent
withdrawals were discovered further to an investigation which was
triggered by a complaint made by one of the seven
clients. The client
complained that a fraudulent withdrawal had been made from her
account. She alleged that she had never visited
the De La Rey branch
of the bank to make any transaction on her account.
[5]
The investigations which had been
instituted by the Post Office during 2003, revealed that all seven
transactions in question were
processed by the Applicant and that the
total amount withdrawn from the clients' accounts, within a very
short period of about
seventeen days, was approximately R72 000.00,
broken down as follows:
·
R9 000,00 on 14 October 2003;
·
R6 000,00 on 21 October 2003;
·
R20 000,00 on 21 October 2003;
·
R7 500,00 on 23 October 2003;
·
R11 000,00 on 24 October 2003;
[6]
The charge against the Applicant was
formulated as follows:
“
(F3)
fraud - wilful and unlawful misrepresentation by an employee in
whatever form that will have the effect of damaging/harming
or
potentially damaging/harming the company. In that on various dates
you performed fraudulent withdrawals out of savings bank
accounts,
the account holders are disputing the transactions, no entries were
made in the SB6 book. No corresponding surpluses
were recorded.”
[7]
Mr Brechman on behalf of the Post Office
testified that the clients’ SB6 books were never reported lost
or stolen. The same
applies to the clients’ book. This was
confirmed in an affidavit deposed to by one of the clients, whose
complaint triggered
the investigation.
[8]
He testified further that there was no
circular that had been circulated by the Post Office to its various
braches including the
De La Rey branch, regarding duplication of SB6
books. This evidence contradicted a claim by the Applicant that there
were duplicate
books that could have been used to get her to process
the fraudulent transactions. The testimony of Brechman was that the
employer
would have circulated a circular to warn staff members about
the existence of such duplicate SB6 books if they indeed existed.
[9]
According to Brechman, the withdrawals of
the “
huge amounts of money”
within a space of a period of about "a week and a half' should
have raised “
alarm bells”
on the part of the Applicant.
[10]
Ms Swanepoel confirmed that there was no
evidence of any duplicate SB6 books in circulation. She also
confirmed that there would
have been a “
warning
circular”
if that had been the
case.
[11]
She said that it was possible for a teller
to withdraw money from a client's account without a client’s
SB6 book. She explained
the manner in which this can be done.
According to her all that you need is the information regarding the
client account number,
the identity number and the balance that is
available in that book. What the teller would then do is to withdraw
a mini statement
from the computer. The mini statement will show the
personal details of the account holder namely, the person’s
name, address,
identity number and the balance available in that
account.
Grounds
for review and award
[12]
The Applicant complained that the
Commissioner failed to take into account the defect in the
administration or management system
of the Post Office. In this
respect the Applicant’s representative argued during the
arbitration hearing that there
was no specimen signature and
photograph of the customer on the computer.
[13]
The second complaint of the Applicant is
that the Commissioner failed to comprehend that the duplicate saving
books were in circulation
and because of the weakness in the system
it was easy to perpetuate fraud against the bank. The third complaint
is that the Commissioner
failed to take into account the concessions
made by the Post Office witnesses.
[14]
The other factors which the Applicant
contends should have been taken into account by the Commissioner are:
·
That the Post Office was aware well before
the incident that there was a syndicate operating within the bank;
·
The uncontested evidence of the Applicant
that she is the one who alerted the Post Master about the suspicious
customer, including
the impounding of the book;
·
That the balance of probabilities in
particular because the Post Office failed to institute criminal
proceedings against her favoured
her;
·
The Commissioner ignored the facts which
were put before him.
[15]
The Commissioner in his arbitration award
rejected the version of the Applicant that she did not commit the
offence but was a victim
of a syndicate which used to duplicate
savings books and false identity documents to obtain money from the
bank. The Commissioner
also rejected the document alleged to be
a memo introduced by the Applicant which sought to suggest that the
management of the
bank was aware of the duplicate books. The
Commissioner rejected the document for two reasons. The first
is that the
Applicant failed to show how she obtained this document
except to say that she obtained it from the shop-steward. The second
reason
for rejecting the Applicant’s version was that she did
not dispute the Post Office’s version that its memo’s are
required to be signed by the author thereof.
Special Plea
[16]
The Post Office has raised as a point
in
limine
relating to the unreasonable
delay in prosecuting the review application. The Applicant
together with her representatives
seems to have confused this point
with Rule 11 of the Rules of this Court.
[17]
It is now well established in this Court
that a litigant that fails to prosecute his or her claim speedily
could be barred from
proceeding further with the matter unless good
cause is shown for the delay. It has also been held in this respect
that depending
on the circumstances of a given case, administration
of justice may dictate that if an Applicant party delays in the
prosecution
of its claim and fails to provide a satisfactory
explanation, penalty may be that of dismissing the claim. See
National Union of Metal Workers of South
Africa obo Nkuna and Others v Wilson Drills-Bore (Pty) Ltd t/a A &
G Electrical (2007)
28 ILJ 2030 (LC) and NUMSA and Others v AS
Transmission and Steering Pty Ltd
(1999) 12 BLLR 1237(LC).
[18]
In
Solidarity
& Others v Eskom Holdings Limited (2008) 29 ILJ 1450 (LAC),
Zondo JP, writing a separate judgment to that of Khampepe AJA held
that “
the unreasonable delay rule
does apply in review matters”.
The learned Judge President however found that the rule did not apply
to the case that was subject to the
Prescription Act 68 of 1969
.
[19]
The applicant in the present instance
instituted the review application on 20
th
May 2005. The notice in terms of
Rule 7A
(3) by CCMA was filed
on the 30
th
August 2005, a period of three months from the date of filing the
review application.
[20]
There is no evidence of the applicant
taking any steps to enquire or call upon the CCMA to file the notice
in terms of
Rule 7A
(3) of the Rules of the Court.
[21]
It took the Applicant a period of not less
than ten months (10) to transcribe the record when the CCMA had made
the same available. The
arbitration proceedings were transcribed
on 8 June 2006. After transcribing the record the applicant took 22
months to serve and
file the record together with the supplementary
affidavit and that was done on the 30
th
April 2008.
[22]
The Third Respondent raised the point
in
limine
regarding the delay in the
prosecution of the review application in his answering affidavit
served and filed on the 17
th
June 2008. In the answering affidavit the Post Office contended
that:
“
6. By
judging from the manner in which the applicant has handled this
matter and in the absence of any condonation application,
I submit
that there are unreasonable, unjustified and unacceptable delays,
which occurred due to the applicant’s tardiness
in pursuing the
review application expeditiously. Accordingly I respectfully
contend that the applicant is barred by the
vigilantibus non
dormientibus lex subverniunt [the law comes to the aid of the
vigilante and not the indolent) from proceeding
with the review
application.”
[23]
The deponent to the answering affidavit Mr
Jourbet, of the attorneys of record of the Applicant sought to
explain this delay. The
essence of the explanation is that the
Applicant did not have funds to pay her attorneys of record as she
was unemployed and had
a huge medical bill to pay for. Attempts at
borrowing money from the family were unsuccessful according to Mr
Joubert. The
attorneys of record assisted at its own costs to
have the record transcribed but did not, according to Mr Joubert,
proceed further
because the Applicant was still ill with depression.
[24]
In his affidavit Mr Joubert does not
dispute the delay which he states was approximately eighteen months
but contend that it was
due to the loss of tapes, lack of financial
resources on the part of the Applicant and her health problems.
[25]
In
NUMSA obo Ntobeng
& others v Witbank Foundry & others
[2008] JOL 22092
(LC),
this Court dealing with the issue of delay in prosecuting disputes
had this to say:
“
[14] It
has been accepted that inordinate delays in prosecuting review to
finality, protract disputes, damage the interest
of justice and
prolong the uncertainty of those affected by the delay. See
Sontshabo Solomon Sishuba v National Commissioner
of Police Service
(2007) 10 BLLR 988.
It has also been held that depending on the
circumstances of a given case, administration of justice may dictate
that if
an applicant party delays in prosecuting its claim and fails
to provide acceptable explanation for the delay; the penalty may be
that of dismissing the claim. See National Union of Metal
Workers of South Africa obo Nkuna Others v Wilson Drills-N Bore
(PTY)
LTD t/a A & General Electrical- (2007) 28 ILJ 2030 (LC) and Numsa
and Others v AS Transmission and Sterling (Pty) Ltd
(1999) 12 BLLR
1237
(1) SA 673.”
[26]
This Court went further to indicate that
there are two principal reasons why the Court should have the power
to dismiss a claim
at the instance of an aggrieved party who has been
guilty of unreasonable delay. The two reasons are cited in the case
of
Radebe v Government of the Republic
of South Africa & others 1995(3) SA 787 (NPD),
as follows:
“
The first is
that unreasonable delay may cause prejudice to the other parties.
See Hanaker v Minister of the Interior
1965 (1) SA 372
(C) at 380D;
Wolgroeiers Afslaers (EDMS) Bpk v Munisipaliteit Kaapstad
1978 (1) SA
12
(A) at 41. The second reason is that it is both desirable
and important that finality should be reached within a reasonable
time of judicial administrative decisions. Sampson v SA
Railways and Habour
1933 CPD 335
at 338; the Wolgroeiers’ case
at 41D-E; cf Kingsborough Town Council v Thirwell and Another
1957
(4) SA 533
(n) at 538.”
[27]
In
National
Savings Investments SA (Pty) Ltd v Commissioner for Conciliation,
Mediation and Arbitration & Others (unreported case
number
JR171/02),
Basson J when dealing with
the issued had this to say:
“
[13] The first
question to be considered in exercising the discretion is whether
there has been undue or unreasonable delay and
secondly whether the
delay should be condoned. Whether any steps were taken during
the interval, will also be an important
factor [as] that may indicate
the seriousness or commitment of a litigant in bringing his or her
claim to finality.”
The
learned Judge went further to say:
“
In respect of
the question of whether or not the delay was reasonable or
unreasonable, the Court will have to make a value judgment
in the
light of all the circumstances. Once it has been fond that the
delay was unreasonable, the Court will then have to
exercise a
discretion which must be exercised judicially as to whether or not
the unreasonable delay should be condoned.”
[28]
In my view the explanation proffered by the
applicant is not satisfactory, and is not compensated by the
excessive delays.
It is for this reason the Applicant’s
review application stands to be dismissed.
[29]
Even if the above conclusion was to be
incorrect, the Applicant’s review application would still stand
to be dismissed because
the facts and the circumstances of this case
do not support the contention of the Applicant that the Commissioner
committed a misconduct
or gross irregularity. There is also no
support that the arbitration award should be set aside for failing to
meet the reasonableness
standard.
[30]
In considering whether or not to
interfere with the arbitration award, the Court must ask itself the
question whether or not
the conclusion reached by the Commissioner is
one which a reasonable decision maker could not reach. See
Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC).
[31]
The defence which the Applicant sought to
present during the arbitration hearing was in essence that she could
not be guilty of
the misconduct because she is the first person to
disclose or expose the fraudulent transaction. However a closer
analysis
of the facts reveals that the fact that she informed the
Postmaster is not material in the assessment of the reasonableness of
the conclusion reached by the Commissioner. In fact the facts
indicate that the person who triggered the process that finally
lead
to the Applicant’s discipline was the client who apparently
complained to someone else at the Middlelands Post Office
about the
drawings that had been made on her savings. In this regard the
Applicant testified as follows:
“…
It
was on Friday a teller from Middlelands Post Office phoned me, it was
around four o’clock. He phoned the Post Office
and then I
was left alone at that time. And then he asked me that did I
perform, there is a client in front of him and that
lady says he has
…. (inaudible) money and that she wanted to withdraw money and
that money the customer said it was insufficient
funds. And
then he can go to the system and check and then it was registered to
the Delarey Post Office and then because
of that …(inaudible)
that you saw this.”
“…
.
And then he just saw my reference number. And then he just
asked me do you know a person by the name of, there is a reference
number that is the ID number 2094 and then I said, he said 2090 I say
4 at the end, I said I am the one, I am Dona Jula and that
is my
number that I use, that is my …(inaudible) reference number.”
[32]
Thus the facts do not support the
contention of the applicant that she originated and initiated the
information about the fraud
to the Postmaster. In any case I
know of no principle in law or public policy that says that because a
person is the first
to report an offence he or she will for that
reason be exonerated from any wrongdoing that may relate to that
report. The circumstances
of this case do not rule out the
possibility that in informing the Postmaster the Applicant was
seeking to divert attention from
herself.
[33]
The other defence which the Applicant
sought to rely on was that she was a victim of the fraud with which
she was charged.
She claimed in this regard that she might have
been conned by a fraudster who may have belonged to a syndicate
operative in the
bank. She claimed that she may have processed
the transaction believing that she was doing so for a genuine account
holder
when in fact that was not the case. In support of this
version the Applicant’s representative at the arbitration
hearing
sketched out a number of scenarios. One of the
scenarios was that the Applicant may have been misled by a fraudster
who had
duplicated the SB6 book. This does not assist the Applicant’s
case when regard is had to the fact that the substantial withdrawals
were being made within a very short space of time which should have
raised the alarm bells for the Applicant. The contention
of the
Applicant that the Post Office was aware of a syndicate that was
operative within it does not take the case of the Applicant
any
further. On the facts the Commissioner correctly found that
firstly the Applicant did not prove how she obtained the document
she
alleged to have been a memo from the Post Office. She also did
not dispute the evidence of the Post Office that all its
memos are
required to be signed by authors thereof and that the one
produced by her, in her defence, could not be accepted
because it was
unsigned. The Commissioner also correctly found that the Post
Office was not required to prove beyond reasonable
doubt that the
Applicant was guilty of the offence but had to only prove that fact
on the balance of probabilities.
[34]
In the light of the above discussion, I am
unable to find that the Commissioner committed a misconduct or gross
irregularity, or
for that matter that his award was unreasonable. It
is further for this reason that the review application of the
applicant
stands to be dismissed.
[35]
In the circumstances of this case, my view
is that there is no reason why costs should not follow the result.
[36]
Accordingly the Applicant’s
application to review and set aside the arbitration award issued
by the first respondent
under case number GA18292-04 dated 31
st
March 2005 is dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
16
th
October 2008
Date
of Judgment: 16
th
March
2009
Appearances
For
the Applicant : Adv M
S H Docrat
Instructed
by :
Joubert Attorneys
For
the Respondent: Adv N H Maenetje
Instructed
by :
Mabuza Attorneys