About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2010
>>
[2010] ZALCJHB 3
|
|
Sasol Mining (Pty) Ltd v Commissioner Nggeleni and Others (JR1595/08) [2010] ZALCJHB 3 (1 October 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
REPORTABLE
DELIVERED
0110210
CASE
NO: JR 1595/08
In
the matter between:
SASOL
MINING (PTY) LTD
APPLICANT
and
COMMISSONER
M NGGELENI
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
2
ND
RESPONDENT
UPUSA
obo MOSES MABE
3
RD
RESPONDENT
JUDGMENT
VAN
NIEKERK J
INTRODUCTION
[1]
This is an application to review and set aside an award made by the
first respondent, to whom I shall refer as ‘the commissioner’.
In his award, the commissioner found that Mr. Mabe, whom the third
respondent represents, was unfairly dismissed. The basis for
the
review is that the commissioner committed a gross irregularity in the
conduct of the proceedings and that as a result, he reached
a
conclusion which no reasonable decision-maker could reach. The attack
on the award is fact-specific – the applicant contends
that the
commissioner erred in reaching a finding that the applicant had
failed to prove that Mabe was not residing at [……]
and
that he was therefore not entitled to a travel allowance.
THE
FACTS
[2]
It follows from the introduction that the facts assume some
significance in these proceedings. Mabe’s conditions of
employment
entitled him to lease premises in Kinross from the
applicant, on condition that he resided in those premises with his
family. The
accommodation leased in terms of the applicant’s
policy was [……]. Mabe also qualified for a travelling
allowance,
on the basis that he occupied the accommodation in
Kinross, in respect of his travel between Kinross and the mine. The
applicant
claimed that Mabe was residing in Embalenhle, and that in
contravention of its policy, he was subletting the premises in
Kinross.
The applicant claimed further that Mabe fraudulently claimed
a travel allowance in an amount of R17 575.76. After a disciplinary
hearing on these charges, Mabe was dismissed. He disputed the
fairness of his dismissal, and referred the dispute to arbitration.
[3]
At the arbitration hearing, the applicant led the evidence of four
witnesses. For the purposes of these proceedings, the relevant
evidence is that of a Mr. Conradie (a security official) a Mr.
Lesoetsa, also a security officer and a Ms Zulu, Mabe’s
subordinate
and also a resident of [.......]. Conradie testified that
he visited [.......] and that at [.......], a woman opened the door.
On enquiry, she stated that Mabe did not live there. Further,
neighbors that Conradie spoke to and from whom he took a statement
confirmed that Mabe did not stay at [.......]. Conradie stated
further that on enquiry to the SAPS, he ascertained that Mabe had
been arrested in March 2007 and that he had furnished his residential
address as stand […….].
[4]
Lesoetsa testified that he lived at No 2 [.......]. He denied that
Mabe lived at [.......], and testified that a woman named
Thoko lived
there with a boyfriend and her daughter. Zulu stated that she lived
at No 12 [.......]. She testified that a woman
named Thoko lived at
[.......], and that Mabe did not stay there, but that he came there
once a month to visit Thoko, whom she
thought was Mabe’s
girlfriend. Mabe testified on his own behalf, and called two
witnesses. These were a Mr. Mpondo, who lives
at No 1 [.......]. He
testified that his neighbours were Lesoeta at No 2 and Mabe at
[.......]. Mabe stayed there with a woman
and her daughter, Petunia.
He was aware that Mabe had a business in Embalenhle and that he had
another wife who lived there. A
Mr. Cindi testified that he was aware
that Mabe lived at [.......] with Thoko, whom he assumed to be Mabe’s
lover. Mabe testified
that he had lived at [.......] since 2004 and
that he had a tuck shop in Embalenhle. He lived at [.......] with his
second wife,
Thoko. He had an elder wife who lived in Polokwane but
who stayed in Embalenhle when she came to visit. He denied subletting
the
premises at [.......]. Under cross-examination, Mabe conceded
that for the purposes of bail application, he gave the police
an Embalenhle address, and that at his disciplinary enquiry, he had
testified that he gave the police that address because his
car was
registered there.
THE
ARBITRATION AWARD
[5]
The commissioner correctly identified that he was required to
establish whether Mabe stayed at [.......]. In his analysis of
the
evidence, he says the following:
The respondent’s
witness, Riaan Conradie, testified that he visited the Kinross flat
on 13/7/07 and found a black lady who
said the applicant was staying
in Embalenhle, neighbours, Solomon Lesoetsa and Maria Zulu also
testified to this effect. The applicant
on the other hand, contended
that he was staying at No.3 [.......] and that he also had another
property in Embalenhle, which he
used as a tuck shop.
The respondent’s
case is based on investigation by Riaan Conradie. It is my view that
this investigation was inconclusive.
He failed to get the name of the
lady he met at the flat. He did not enquire as to her relationship
with applicant. He also did
not take a statement from her as he did
with Solomon Lesoetsa and Maria Zulu.
As a result, neither
the visit nor the identity of the person he allegedly met can be
confirmed. I also find it strange that the
investigator did not
interview a caretaker or anyone responsible for the residence.
Solomon Lesoetsa
testified that he stayed at flat No.2 [.......] and he denied that
the applicant stayed at No.3. He also testified
that a lady called
Thoko stayed with her daughter. He admitted that he never asked the
lady about her relationship with the applicant.
I find it strange
that as a security officer employed by the respondent, he did not
report the alleged unauthorised residents at
flat no.3 to the
authorities.
Maria Zulu testified
that she stays at flat No.12 [.......]. She also testified that a
lady called Thoko stayed at flat No.3. She
maintained that the
applicant did not stay there but only came for visits about “once
a month.” I find this testimony
unreliable. It is unrealistic
for a tenant at a block of flats to claim to be aware of who goes in
and out of the individual flats
at all times.
The respondent also
tended a document on page 50 of the bundle whereby the applicant had
given an Embalenhle address to the police
as his domicile. It is
common cause that the applicant had property in Embalenhle. The issue
in contention is whether he stayed
in Embalenhle or in Kinross. He
argues that he used the property in Embalenhle as a tuck shop, but
stayed in Kinross.
The applicant on the
other hand called Lucas Mpondo and Jerry Cindi who testified that he
stayed at the Flat in Kinross, Lucas Mpondo
testified that he stayed
at flat No.1 [.......] and that the applicant stayed at No. 3 with
his second wife. He further testified
that he used to catch a ride to
work in the applicant’s car. This gives credence to the
applicant’s version that he
stayed in Kinross, as the applicant
wouldn’t have travelled from Embalenhle to Kinross and then to
work.
After this analysis
of the evidence, the commissioner reached the following conclusion:
In view of the above,
I find that the respondent as the bearer of onus, failed to establish
that the applicant was not staying at
the Kinross flat. In view of
this, he cannot be found guilty of claiming travelling allowance
between Kinross and his workplace
fraudulently, or of subletting the
company property and for giving untrue or erroneous information in a
written or verbal form
to claim petrol money for call-outs.
ANALYSIS
[6]
The commissioner’s analysis is singularly unhelpful, and the
conclusion that flows from it is flawed. The commissioner
appears to
have considered that the mere existence of a factual dispute (in this
instance, whether Mabe lived at [.......]) must
inevitably lead to a
finding that the onus of proving that a fair dismissal has not been
discharged. This is obviously and simply
not so. It does not follow
that because the accounts of the parties’ respective witnesses
disagree, that the party bearing
the onus of proof of a fair
dismissal (in this case, the applicant in these proceedings) has
failed to discharge that onus.
[7]
Regrettably, the commissioner’s logic (or, more accurately, the
lack of it) permeates many of the awards that are the
subject of
review proceedings in this court. Some commissioners appear wholly
incapable of dealing with disputes of fact –
their awards
comprise an often detailed summary of the evidence, followed by an
‘analysis’ that is little more than
a truncated
regurgitation of that summary accompanied by a few gratuitous remarks
on the evidence, followed by a conclusion that
bears no logical or
legal relationship to what precedes it. What is missing from these
awards (the award under review in these
proceedings is one of them)
are the essential ingredients of an assessment of the credibility of
the witnesses, a consideration
of the inherent probability or
improbability of the version that is proffered by the witnesses, and
an assessment of the probabilities
of the irreconcilable versions
before the commissioner. As Cele AJ (as he then was) observed in
Lukhnaji Municipality v Nonxuba NO &
others
[2007] 2 BLLR 130
(LC), while
the LRA requires a commissioner to conduct an arbitration hearing in
a manner that the commissioner deems appropriate
in order to
determine the dispute fairly and quickly, this does not exempt the
commissioner from properly resolving disputes of
fact when they
arise.
[8]
In
SFW Group :Ltd & another v
Martell et Cie & others
2003 (1) SA
11
, the proper approach to the resolution of factual disputes was
explained by the Supreme Court of Appeal (per Nienaber JA) in the
following terms:
On
the central issue, as to what the parties actually decided, there are
two irreconcilable versions. So, too, on a number of peripheral
areas
of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to
(a), the court’s
finding on the credibility of a particular witness will depend on its
impression about the veracity of the
witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness’
candour and demeanour
in the witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv)
external contradictions with
what was pleaded or put on his behalf, (v) the probability or
improbability of particular aspects
of his version, (vi) the calibre
and cogency of his performance compared to that of other witnesses
testifying about the same incident
or events. As to (b), a witness’
reliability will depend, apart from the other factors mentioned under
(a) (ii), (iv) and
(v) above, on (i) the opportunities she had to
experience or observe the event in question and (ii) the quality,
integrity and
independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of the assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it. The hard case,
which will doubtless be a rare one, occurs when a court’s
credibility findings compel it in one direction and its evaluation
of
the general probabilities in another. The more convincing the former,
the less convincing will be the latter. But when all factors
are
equipoised probabilities prevail
(at
paragraph 5 of the judgment).
[9]
One of the commissioner’s prime functions was to ascertain the
truth as to the conflicting versions before him. As I have
noted,
this much the commissioner appears to have appreciated. What he
manifestly lacked was any sense of how to accomplish this
task, or
which tools were at his disposal to do so. The commissioner was
obliged at least to make some attempt to assess the credibility
of
each of the witnesses and to make some observation on their
demeanour. He ought also to have considered the prospects of any
partiality, prejudice or self-interest on their part, and determined
the credit to be given to the testimony of each witness by
reason of
its inherent probability or improbability. He ought then to have
considered the probability or improbability of each
party’s
version. The commissioner manifestly failed to resolve the factual
dispute before him on this basis. Instead, he
summarily rejected the
evidence of each of the applicant’s witnesses on grounds that
defy comprehension. For example, Zulu’s
evidence that Mabe did
not live at [.......] and that he visited there about once a month is
rejected on the basis that ‘[I]t
is unrealistic for a tenant at
a block of flats to claim to be aware of who goes in and who goes out
of the individual flats at
all time’. This observation
obviously begs the question of the knowledge that one permanent
resident in a block of flats
will inevitably have of another and in
particular, of other permanent residents. Lesoetsa’s evidence
that he stayed in flat
No 2 and that Mabe did not stay in No. 3, on
the face of it the uncontroverted and damning evidence of a neighbour
of the residents
of flat [.......], is disregarded by the
commissioner on a similarly incomprehensible basis: “
I
find it strange that as a security officer employed by the
respondent, he did not report the alleged unauthorised residents at
flat [.......] to the authorities.”
[10]
In
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC), Ngcobo J stated:
[W]here
a commissioner fails to have regard to the material facts, the
arbitration proceedings cannot, in principle, be said
to be fair
because the commissioner fails to perform his or her mandate. In so
doing, in the words of Ellis the commissioner’s
action prevents
the aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in
the conduct of the
arbitration proceedings, as contemplated by section 145 (2) (a) (ii)
of the LRA. And the ensuing award falls
to be set aside not because
the result is wrong but because the commissioner has committed a
gross irregularity in the conduct
of the arbitration proceedings
(at
paragraph 268).
The
same considerations apply to a commissioner who fails properly to
resolve an irreconcilable dispute of fact. For these reasons,
the
commissioner’s award falls to be reviewed and set aside.
[11]
The applicant’s grounds for review are process-related, i.e.
the applicant seeks to set aside the award on the basis
of
process-related reasons rather than the result of the award. Adv
Anton Myburgh, writing recently in the
Industrial
Law Journal
,
(see ‘Determining and Reviewing Sanction after Sidumo’
(2010) 31
ILJ
1
at 16) suggests that if the act of process-related unreasonableness
equates to a latent gross irregularity, then, in order to
succeed on
review, the applicant would have to establish no more than that the
result of the award
may
(and not would) have been different if the commissioner had properly
acquitted him or herself.
[1]
[12]
In the present instance, it is sufficient to observe that had the
commissioner properly acquitted himself, he would have applied
his
mind to the material contradiction between Mabe’s evidence at
the disciplinary hearing when he stated that his reason
for
furnishing his Embalenhle address to the SAPS at the time of his
arrest (for furnishing fraudulent payslips to third parties)
was
because his motor vehicle was registered at that address and his
evidence during cross-examination in the arbitration proceedings
when
he stated that he furnished the Embalenhle address to the SAPS
because his lawyer had advised him that he would not be granted
bail
if he furnished a lease property as his residential address. The
commissioner records this evidence in his award, but simply
failed to
deal with what appears to be a material contradiction in Mabe’s
version. Had the commissioner dealt with this contradiction,
and had
he brought it into account in the assessment of Mabe’s
credibility, the result of the award may well have been different.
Further, had he properly acquitted himself, the commissioner would
have had regard to the fact that there was no challenge to the
evidence of Lesoetsa (that a woman renamed Thoko lived at 3 [.......]
with her children and boyfriend), nor was there a challenge
to the
evidence of Zulu, who testified that Mabe did not live at [.......]
but occasionally visited there.
[13]
In short: the arbitrator failed to have any regard to the credibility
and reliability of any of the witnesses, nor did he have
regard to
the inherent probabilities of the competing versions before him. That
failure, and the fact that the award clearly may
have been different
had the commissioner properly acquitted himself, renders the award
reviewable on account of a gross irregularity
committed by the
commissioner in the conduct of the arbitration proceedings.
[14]
Mr Cook, who appeared for the applicant, urged me to substitute the
commissioner’s award with a ruling to the effect
that Mabe’s
dismissal was fair. The record is not in a state for me to make any
detailed assessment of the merits, nor am
I in a position to make any
finding based on demeanour or any other aspect that goes to their
credibility. For this reason, I intend
to remit the matter for
rehearing before another commissioner. Finally, there is no reason
why costs should not follow the result.
I
accordingly make the following order:
1.
The arbitration award made by the first respondent on 29 May 2008 is
reviewed
and set aside.
2.
The matter is referred to the CCMA for a rehearing before another
commissioner.
3.
The third respondent is to pay the costs of these
proceedings.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application: 17 September 2010
Date
of judgment: 1 October 2010
Appearances:
For
the applicant: Adv A Cook, instructed by Anthony Hinds Attorneys
For
the respondent: Mr. JP Mahlangu, Mahlangu Attorneys.
[1]
In
SA
Veterinary Council & another v Veterinary Defence Association
2003 (4) SA 546
(SCA), the court said the following:
In
view of the fact that it is clear that the tribunal adopted an
erroneous approach to the matter the proceedings can be saved
only
if it is clear that despite the irregularity Dr Krawitz was not
prejudiced because the finding would have been the same
if the
correct approach had been applied…
(at
para 40).