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[2010] ZALCJHB 46
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NUM obo Manganye v Commission for Conciliation Mediation And Arbitration and Others (JR793/2007) [2010] ZALCJHB 46 (8 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JR 793/2007
In
the matter between
NUM
obo WINSTON BUSISWE
MANGANYE Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION & ARBITRATION 1st
Respondent
MATTHEW
RAMOTSHILA
N.O. 2nd
Respondent
ESKOM
HOLDINGS (PTY)
LTD 3rd
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
1.
The applicant wishes to review the arbitration award of the second
respondent in which the arbitrator found that his dismissal
was both
procedurally and substantively fair. The third respondent
(‘Eskom’) had also filed an application to
dismiss the
review application because of the applicant's tardiness in
prosecuting the matter.
2.
The applicant was formerly employed by the third respondent, Eskom as
an investigator in its Protective Services Division.
He was
dismissed in 2003 after being found guilty of eight counts of
misconduct. Following extensive internal disciplinary
proceedings, including a full appeal hearing.
3.
The arbitrator found that the employer had succeeded in proving that
the employee had committed various acts of misconduct for
which
dismissal was an appropriate sanction. Essentially, the
arbitrator accepted the evidence of the employer's witnesses
that the
applicant had been acting in cahoots with persons involved in eagerly
connecting members off the public with the power
distribution
network. The applicant’s role involved, among other
things, providing equipment to those involved in making
the legal
connections and taking payments from members of the public. The
arbitrator found that consequently the applicant had
committed
misconduct in a number of respects, namely:
3.1. he
conducted himself in an improper or disgraceful manner or behaved in
a manner which harmed the image of Eskom
;
3.2. he used
Eskom’ the Labour materials transport or equipment and access
to his own advantage or to the advantage
of others;
3.3. he was
in the unauthorized possession or attempted removal off property from
Eskom;
3.4. he
accepted compensation in cash, without the written consent of his
employer resulting from the above arrangements,
and
3.5. more
specifically, during December 2002 and September 2002 he entered into
an agreement with persons that illegally
did installations and
connections for customers . In terms of these agreements the
employee received money from them in order
not to arrest them.
He sold equipment including meter cables stolen from Eskom to be used
in the illegal connections and
arranged with prospective customers to
have them connected illegally and demanded and received money from
them.
4.
It is evident from the charges that the last mentioned charge
effectively includes the factual foundations of all the previous
ones, even though each one of the other charges of which the
applicant was found guilty could stand as a charge on its own.
5.
In his evaluation of the evidence the arbitrator largely discounted
the character evidence of the applicant’s witnesses
as a proper
counterweight to the evidence of the employer’s witnesses,
because the applicant’s witnesses’ evidence
did not
challenge the evidence of the employer's witnesses relating
specifically to the charges.
6.
The arbitrator referred to the witnesses of P Malaudzi and B Vukea
who testified that the applicant had effectively agreed to
not to
prosecute them in exchange for his involvement in their illegal
activities. They and another witness T P Malongwe
gave evidence
that on the 16 September 2003 the applicant was arrested after
selling a prepaid meter and related equipment to one
of them for R
1500. Although there was video footage relating to the
transaction, the arbitrator based his findings heavily
on the oral
evidence of the witnesses which was not successfully challenged in
his view.
7.
The arbitrator also found that there was unchallenged evidence that
the applicant supplied materials to the persons involved
in making
illegal connections, which the arbitrator found was tantamount to
theft. There was also evidence of customers from
whom the
applicant had quite irregularly collected money from them without
issuing any receipts, which the arbitrator took to be
evidence of his
improper conduct whilst on duty, which harmed the image of his
employer.
The
prosecution of the review application
8.
Before considering the merits of the review application, it is
necessary to deal with the application to dismiss it on account
of
the delays by the applicant in prosecuting the matter. The
employer raises a number of problems about the applicant’s
prosecution of the review application. Firstly, it complains
that the original founding affidavit ought to have been filed
on 27th
of March 200,7 but was only filed on 4 April 2007 making it six days
after the time in terms of the six week time limit
prescribed in
section 145(1)(a) of the Labour Relations Act ('the
LRA’). No condonation application was filed
by the applicant
for this late submission, as required by section 145(1A) of the LRA.
9.
Secondly, the employer points out that the applicant served and filed
the transcribed record of the arbitration proceedings on
13
March 2008 and in terms of rule 7 A(8) of the Rules ought to have
filed its supplementary notice of motion and affidavit within
10 days
thereafter. However, this was only done on 5 February 2009
almost a year later. The employer argues that, as
in the case
of the original founding affidavit, this late filing of the
supplementary affidavit required a successful condonation
application
before it could be said to be properly before the court.
10.
For its part, the employer filed its opposing affidavit on 19
February 2009, but the applicant only filed its replying
affidavit on
the 20th of April 2009 which was some seven weeks late, and again
without seeking condonation from the court for not
complying with the
time periods in the court rules.
11.
Lastly, the employer points out that the applicant did not respond
timeously to the directive's of the court registrar
to file his heads
of argument and only did so 19 days out of time.
12.
On the 20 October 2008, the employer filed its application to dismiss
the review. The applicant filed a notice of
opposition to this
application but did not file any answering affidavit. The applicant
eventually filed his supplementary affidavit
over three months after
that, without any attempt to explain his delays in prosecuting the
review. The only occasion, when
he proffered an explanation on
oath is when he filed his replying affidavit in the main review
application. Before considering
the explanation offered in that
reply, it is useful to summarize the key points of the chronology
above.
13.
The review application was filed in mid April 2007. By 25 April
2007, the CCMA had advised the parties that tapes
and the records had
been filed with the registrar of the court. A couple of weeks
later, the employer's attorneys inquired
whether the applicant was in
the process off transcribing the tapes and the applicant's attorneys
confirmed on the same day that
this was indeed what they were doing.
On 5 June 2007 the CCMA lodged another twelve tapes, and on 12 July
2007 lodged a further
six tapes and a video recording.
14.
The applicant’s current attorneys of record at the time
withdrew from the matter. After receiving the notice of
the
withdrawal, the employer's attorneys wrote to the applicant’s
union asking for information on the progress of the review
application and threatened to bring an application to dismiss the
matter if no response was received. A similar letter was
sent
to the applicant’s new attorneys of record on 29 October 2007,
which they acknowledged receipt of and advised they would
revert on
shortly. Four months later, the transcript of the proceedings
was filed on 13 March 2008. A few days after
filing the
transcript, the applicant's attorneys advised that the applicant
would supplement his founding affidavit, but owing
to the complexity
of the record they would only be in a position to do so on or before
4
th
April 2008
15.
However, instead of filing the supplementary affidavit as promised,
the applicant's attorneys advised the respondent late
in April 2008
that they had consulted with senior counsel, who has advised that the
applicant ought to bring a substantive application
to the CCMA to
re-open the applicant's case based on new evidence, which the
applicant alleged had emerged during the course of
the criminal
proceedings relating to the same alleged illegal activities for which
he had been dismissed. The purpose of
the letter was to seek
the employer's consent to the substantive application following which
the applicant would withdraw his review
application so the matter
could be reopened at the CCMA. Within a week of receiving the
proposal, the respondent advised
that it was not acceptable.
There was no further communication about the proposal after this.
16.
Accordingly, on 3 June 2008 the employer's attorneys inquired of the
applicant's attorneys whether or not the application
was still
proceeding, and again reiterated the previous warning that it would
bring an application to dismiss the matter.
There was no reply
to this letter and a follow-up letter was sent to the applicant’s
attorneys on the 30th of July 2000.
Having heard nothing
further, and not having received a supplementary affidavit, the
employer launched the application to dismiss
the review on 20 October
2008.
17.
As mentioned previously, it was only on 5 February 2009 that the
applicant filed its amended supplementary affidavit.
Thus, the last
communication to the company’s attorneys from the applicant
prior to filing his supplementary affidavit about
nine months later,
was the letter of 24 April 2008, proposing the reopening of the
matter. The applicant failed to respond at all
to any of the further
correspondence from the third respondent, it even when the third
respondent threatened to launch the application
to dismiss the
review. All the applicant did was to file a notice of
opposition to the dismissal application and made no
attempt to
expedite the filing of its supplementary papers.
18.
The applicant’s explanation for the delay in filing of the
record, which was admittedly voluminous, is that his
attorneys of
record were waiting for funds from his union, which were only
forthcoming in January and February 2008. As far
as the
subsequent delay in filing the supplementary affidavit is concerned,
the applicant contends in the replying affidavit that
his union had
further discussions with the employer in May 2008 with a view to
trying to settle the dispute. Whatever transpired
in those
discussions, they had failed by 1 July 2008 when the employer sent a
letter to the union advising it that it wasn't prepared
to reinstate
the applicant and believed that the legal process should run its
course. From this, it would appear that a parallel
process of
communication might have been taking place between the company and
the union during June 2008, but it did not extend
beyond that month.
When the employer's attorneys wrote to the applicant again at the end
of July 2008, asking them to advise
what was happening with the
review application they were simply unresponsive. In its
replying affidavit, the applicant and
the union make no attempt to
explain the failure to respond to the employer's attorneys, though it
is apparent from the account
of the backdoor stratagem which the
applicant’s attorneys were pursuing as to why they never
responded as they should have.
This is recounted below.
19.
Nearly six weeks after receiving the letter from the third
respondent's attorneys asking about the progress of the review,
the
applicant’s attorneys unilaterally approached the Commissioner,
and requested him to vary his award in the light of what
was
established in the criminal proceedings in which the applicant had
been acquitted. The applicant was not advised of this approach
to the
CCMA. On 19 December 2008, the CCMA responded to this letter, by
which stage the applicant contends his attorneys’
offices were
closed. It was only a month into the following year that the
applicant and filed his supplementary affidavit.
20.
The applicant and his attorneys knew that the third respondent was
expecting a response on the progress of the review
application, but
instead of being candid and replying that he wanted to first exhaust
efforts to reopen the matter with the CCMA,
they said nothing and
proceeded on an
ex parte
basis with the alternative strategy.
Two things may be inferred from the conduct of the applicant in this
regard. Firstly,
he had placed all his hope on reopening the
case and only revived his pursuit of the review application, when the
backdoor approach
to the CCMA failed. Secondly, the applicant
and his attorneys acted in bad faith in this regard. It is
clear that they
did not respond to the third respondent's inquiries
about the progress of the review application because they were busy
pursuing
an alternative strategy and did not want to alert the third
respondent to this. Thirdly, it was improper for the
applicant’s
attorneys to have approached the CCMA to re-open
the matter without keeping the third respondent fully advised of all
the steps
it was taking in this regard. It is obvious, that the
third respondent had no inkling of this approach, and was putting the
applicant on terms regarding the finalization of the review
application.
21.
In answering the question whether or not the applicant diligently
pursued the review application, I accept that a reasonable
but not
entirely satisfactory explanation was offered for the delay in filing
the transcript of the proceedings, which consisted
of some 2278 pages
and which would have cost a significant sum to transcribe.
22.
The same cannot be said for the delay in filing the supplementary
affidavit. The applicant’s attorneys were well
aware when this
should have been filed originally, but failed to meet even the
extended deadline which they had set themselves.
Even if some
legitimate delay might have been justified when they approached the
third respondent’s attorneys with a proposal
to re-open the
matter, they received a firm rejection of this proposal by the end of
April 2008. If some further allowance is made
for the period during
which the union was trying to negotiate a settlement with the
employer, those discussions had run their course
by the end of June
2008. Thereafter the applicant pursued a backdoor strategy of having
the matter re-opened without advising the
respondent what was
happening and without responding to its enquiries about the long
awaited supplementary affidavit. Even if he
had wanted to
approach the CCMA to re-open the matter before having to file his
supplementary affidavit, his attorneys should at
least have asked the
respondent not to oppose the late filling of his affidavit on account
of any delay caused by that application.
Instead, the applicant
simply decided to do nothing about it until after hearing from the
CCMA. In the new year the applicant
should have acted with more
haste in filing his affidavit, given the length of the delay by that
time.
23.
The principles governing the dismissal of review applications for
lack of diligent prosecution are now well established.
In
Associated
Institutions Pension Fund & others v Van Zyl & others
2005 (2) SA 302
(SCA)
, Brand AJ set the principle out thus:
“
[46] It
is a longstanding rule that courts have the power, as part of their
inherent jurisdiction to regulate their own proceedings,
to refuse a
review application if the aggrieved party had been guilty of
unreasonable delay in initiating the proceedings. The
effect is that,
in a sense, delay would 'validate' the invalid administrative action
(see eg Oudekraal Estates (Pty) Ltd v City
of Cape Town & others
2004 (6) SA 222
(SCA) ([2004]
3 All SA 1)
at para [27]). The raison
d'étre of the rule is said to be twofold. First, the failure
to bring a review within a reasonable
time may cause prejudice to the
respondent. Secondly, there is a public interest element in the
finality of administrative decisions
and the exercise of
administrative functions (see eg Wolgroeiers Afslaers (Edms) Bpk v
Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41).
[47]
The scope and content of the rule has been the subject of
investigation in two decisions of this Court.
They are the
Wolgroeiers case and Setsokosane Busdiens (Edms) Bpk v Voorsitter,
Nasionale Vervoerkommissie, en 'n ander
1986 (2) SA 57
(A). As
appears from these two cases and the numerous decisions in which they
have been followed, application of the rule requires
consideration of
two questions:
(a)
Was there an unreasonable delay?
(b)
If so, should the delay in all the circumstances be condoned?
(See Wolgroeiers at
39C - D.)
[48]
The reasonableness or unreasonableness of a delay is entirely
dependent on the facts and circumstances
of any
particular case (see eg Setsokosane at 86G). The investigation into
the reasonableness of the delay has nothing to do with
the Court's
discretion. It is an investigation into the facts of the matter in
order to determine whether, in all the circumstances
of that case,
the delay was reasonable. Though this question does imply a value
judgment it is not to be equated with the judicial
discretion
involved in the next question, if it arises, namely, whether a delay
which has been found to be unreasonable, should
be condoned (see
Setsokosane at 86E-F).”
[1]
24.
I am satisfied that the delay from June 2008 to February 2009
was unreasonable and in view of the fact that nothing
prevented the
applicant from filing his supplementary affidavit while his attorneys
followed a questionable backdoor stratagem
at the CCMA while keeping
the applicant in the dark, the failure to file the supplementary
affidavit in June or at the very latest
July 2009 is unjustified.
25.
The last thing that needs to be considered in order to determine
whether or not the application to dismiss the review
should succeed,
is the applicant’s prospects of success on review. As will
become apparent from the discussion below on the
merits of the
application, even if I am wrong, in dismissing the review
application, on account of the applicant’s delay
in prosecuting
the matter to dismiss the review application on its merits.
The
merits of the review application
26.
In the applicant’s amended affidavit he lists a number of the
typical grounds of review relied on these type of
proceedings.
Thus, he says the arbitrator committed a host of irregularities
including failing to apply his mind to
the evidence, making findings
of fact that could not be supported on the evidence before him,
admitting irrelevant evidence and
giving undue weight to it,
and failing to consider or impermissibly rejecting relevant and
competent evidence that was placed
before him. As with many
applications for review stated in these terms, it is difficult to
consider grounds which are so
broadly stated. An applicant must set
out the specific factual basis for which it makes these submissions
in the founding papers,
as amended by any supplementary affidavit.
27.
However, the applicant does raise some specific factual instances of
the arbitrator’s allegedly reviewable
conduct and these
are set out in summary below.
Reliance
on unreliable evidence
28.
The applicant argues that the arbitrator failed to apply his mind to
evidence presented by the employer’s witnesses
or,
alternatively, relied on the testimony of unreliable witnesses. The
applicant is referring here to the testimony of B Vukea
and other
witnesses who admitted they had been engaged in making illegal
electricity connections for a long time.
Failure
to consider evidence of certain witnesses
29.
The evidence of community leaders from the Nhlabeni area relating to
illegal electricity connections and the influence
which was brought
to bear on the community by the persons investigating illegal
connections was ignored.
30.
So, too the applicant claims that the arbitrator completely ignored
the evidence of his witnesses, namely P Phooko, L
P Maimela, F
Sebatjane and S Manyane.
31.
Phooko testified that it was B Vukea who collected money from persons
paying for illegal connections and that when the
applicant started
working for the employer, he curtailed white collar crime at Eskom
and arrested employees and third parties resulting
in some employees
being fired. He also testified that the applicant had told him that
he was arrested because people wanted to
frame him. Phooko testified
also that an amount of R 8900-00 allegedly stolen by the applicant
was banked by him.
32.
Maimela testified that illegal connections were being done by B Vukea
and that the latter admitted in a meeting that he
had done them.
Maimela also said that a Mr Maluleke confirmed Vukea’s illegal
activity in the presence of D Van Wyk.
Maimela also confirmed
that he discovered in the course of his investigations that the
applicant was not involved in illegal connections.
33.
Sebatjane stated that he discovered that one D Rasecabe was involved
in making illegal connections and that he had heard
Vukea mention
that he intended to frame the applicant.
34.
Manyane, who was the applicant’s immediate supervisor confirmed
that it was proper for the applicant to write his
cell number and
name on fines he issues to persons found to have connected their
electricity illegally and that he had mandated
him to do this.
35.
The arbitrator ignored the applicant’s reason for putting his
name and cell number on the fines, namely so that
the persons fined
could contact him if they discovered other persons who were illegally
connecting to the electricity supply. His
openness in putting his
name and number on the fines should have counted in his favour and
not against him.
36.
The arbitrator ignored the applicant’s evidence that he
recovered many stolen meters for the company and returned
them to it
after reporting to the police.
37.
The applicant complains that the arbitrator also ignored his own
evidence that other employees conspired against him or
did not like
him, in particular P Malogwe who refused to give him keys to his
office.
38.
The arbitrator also ignores the fact that once of the witnesses who
testified that he had come to her house on numerous
occasions to
collect money for illegal connections identified the arbitrator as
the person who had visited her.
39.
There was no evidence led that the applicant had actually been seen
making illegal connections or that he had been caught
with Eskom’s
material in his personal possession.
40.
The arbitrator ought not to have considered the evidence of D Van Wyk
who presented a detailed report which the arbitrator
admitted and
accepted as evidence. The applicant submits this was a serious
misdirection on the part of the arbitrator because
Van Wyk’s
evidence was inadmissible hearsay evidence.
41.
The applicant takes issue with the arbitrator’s finding that he
was involved in the misappropriation of the employer’s
property, which was tantamount to theft. Apart from the fact that he
contends the elements of theft were not established, he argues
the
arbitrator could not have relied on Muthelo’s evidence that the
applicant was working in cahoots with him because Muthelo
never
testified to this effect.
42.
The applicant argues that the arbitrator’s award is not
rationally connected to the evidence before him and
failed to
consider if the applicant had been fairly dismissed on the remaining
charges of misconduct, being charges 1, 2 and 26.
He also contends
that it is not clear from the award which of the employer’s
reasons were found to be acceptable and warranted
his dismissal.
43.
The arbitrator also failed to deal with contradictions in the
evidence of P Mulaudzi and B Vukea regarding the amounts
paid to them
according to the applicant.
44.
Lastly, the applicant submits that if the matter is remitted back to
the CCMA for reconsideration, then the arbitrator
should consider the
contradictory evidence given by the employer’s witnesses in the
criminal case relating to the same issues.
In particular, the
applicant relies on the findings of the magistrate who found much of
the testimony of the employer’s witnesses
who also testified
for the prosecution to have been unreliable. He contends that if the
arbitrator was aware what had transpired
in the criminal proceedings
he would not have placed so much reliance on the testimony of some of
the witnesses.
Analysis
45.
For convenience, it will be easier to address the applicant’s
various contentions relating to the evidence of Malaudzi
and
Vukea together. Essentially, the complaint in regard to these
two witnesses is that the arbitrator ought not to
have relied on the
evidence, because they were implicated in illegal connection
activities themselves, their evidence was contradictory
in some
respects, and Vukea had been heard to say that he intended to frame
the applicant.
46.
The first point that needs to be made is that it appears that the
arbitrator was well aware of the involvement of these
two witnesses
in the illegal connection activities, so it cannot be said that he
ignored their role. It is also apparent
from the evidence that
Vukea played an important role in a sting operation in which the
applicant allegedly supplied a meter box
in exchange for a payment
off 1500. In that sense it might well be the case that Vukea
could have said that he was involved
in framing the applicant.
However, the alleged statement by Vukea about the frame up was never
put to him in cross-examination
for him to comment on or to clarify.
47.
It is a
well established accepted rule in the evaluation of evidence that the
evidence of accomplices must be treated with caution.
[2]
Obviously, such witnesses have might be predisposed to try and
minimize their involvement in the joint illegal activity and to
implicate others as the prime instigators. In this instance, a
major difficulty in evaluating the evidence is that the applicant
did
not put a contrary version to Vukea and Malaudzi when they testified
about their involvement with him in the illegal practice
of
connecting electricity users to Eskom’s power distribution
system.
48.
In particular, there is no evidence provided by the applicant or his
witnesses which directly contradicts the evidence
which they gave of
their activities on a particular day in the Mcetheni district where
Vukea and Malaudzi went with the applicant
to the area and effected
approximately twenty unlawful connections. They said they also
collected money in amounts of R 1000 and
R 1500 from the households
they had connected and the money collected was subsequently divided
between the applicant and themselves.
The two witnesses’
account of that day does not seem inherently implausible and the fact
that they could not recall exactly
the same amounts of money which
passed hands in circumstances where there were a number of
transactions does not detract
materially from the importance of
their evidence, in my view, even if they were accomplices. The
value of their evidence
acquired greater weight, when one considers
the applicant’s failure to put an exculpatory version to them
under cross-examination,
and his similar failure to even present a
contrary version in any comparable detail when he testified.
49.
Moreover, when Vukea gave evidence of the transaction involving the
pre-arranged illegal purchase of an electricity meter
from the
applicant, he was also not cross-examined in any detail about what
transpired on that occasion. In his own account of
what happened the
applicant said that Vukea had told him when they met at the
pre-arranged venue, that he was going to show him
the people who were
trying to frame him. The employer’s witnesses to that
event testified that an arrangement had been
made to meet the
applicant to buy an electricity meter from him. This
transaction had been set up when independent investigations
had led
Eskom to discover the involvement of the Vukea and Malaudzi in the
illegal connection racket. In turn, Vukea had implicated
the
applicant in the activity and the ‘sting’ operation was
set up essentially to test the claim that the applicant
was involved
in supplying equipment for illicit connections. It was common
cause that the meeting between Vukea and the applicant,
which was
videotaped, had taken place. In the circumstances, it was
vitally important for the applicant to test Vukea about
his own
version of why the meeting took place and what transpired when the
two of them met.
50.
The applicant never gave any context to explain why Vukea would have
wanted to show him that people that were trying to
frame him in such
an elaborate setup, other than the fact he had previously fined him
in connection with illegal connections.
More importantly, the
applicant never the challenged Vukea’s version about how he
(Vukea) came to be in the possession of
the electricity meter
immediately following his prearranged meeting with the applicant.
51.
Regarding the evidence of Van Wyk, it is true that the applicant
challenged the evidence of Van Wyk as hearsay, but that
was in the
context of asking him whether he had personally seen the applicant
make any illegal connections. Van Wyk gave extensive
evidence based
on the detailed forensic report he had been directly involved in
compiling and this evidence was not addressed in
any depth in
cross-examination.
52.
It must also be mentioned that Van Wyk’s evidence also detailed
the procedure to be followed when fines are imposed
on consumers
making use of illegal connections. Van Wyk provided the analogy
of a traffic policeman who issues a fine to
a motorist: the policeman
does not collect the fine personally, and is not involved in handling
any monies. He further testified
that it was the investigator’s
responsibility to make sure the illegally installed meters were
removed and to return them
to Eskom’s stores.
53.
Two items of circumstantial evidence stand out from his report.
Firstly, only 47% of the 210 fines issued from the
fine books in the
applicant’s possession were received by Eskom.
54.
Although the applicant claimed that he was hiding nothing by putting
his name and number on the written fines issued to
the offending
consumers, his evidence could not explain why he was collecting money
in the first place, nor why of the fines issued
in the fine books
under his control had not been received. While the applicant’s
immediate supervisor, S C Manyane,
defended the applicant’s
practice of putting his name and cell phone number on the fine, even
though it was possible to identify
who issued the fine from the fine
number, he never testified that it was normal practice for the
investigator to receive payment
for the fine. Interestingly,
Manyane did not confirm the applicant’s evidence that the
purpose of putting his name
and number on the fine was so that the
offenders could advise him if they became aware of other consumers
who had illegal connections.
The evidence that it was not the
practice for investigators to collect cash fines remained essentially
uncontested, which meant
that the applicant bore an evidentiary onus
of explaining away why the witnesses who said they had paid him money
would have done
so.
55.
The second aspect of the report that formed part of Van Wyk’s
evidence which is noteworthy concerns electricity
meters that ought
to have been removed from premises in respect of which fines were
issued and for which the applicant was responsible.
56.
When the number of ‘fines’ issued by the applicant
were compared with the meters handed in, 150 of the
210 meters
that ought to have been removed when the fines were issued had not
been returned to Eskom. Investigations were
launched to determine if
some of the missing meters had simply not been removed or had been
reinstalled. An inspection of
premises where the meters had
originally been installed revealed that: in 19 premises the meters
had either never been removed
or had been reinstalled; in 27 other
instances they could not identify if the meter described in the fine
had been removed at the
time of issuing the fine, and at 26 of the
premises in respect of which fines had been issued could not be
located. Accordingly,
the investigators accepted that in 72 of the
150 cases of meters which had not been handed in they could not be
sure the applicant
had removed the meters.
57.
In 10 other premises where the applicant had issued fines the meters
were no longer installed. As the applicant should
have taken custody
of the meter after the fine is issued, and it was unlikely that the
illegally connected users would have removed
the meters themselves,
the probabilities pointed to the applicant as the most likely
possessor of the missing meters.
58.
In 12 other instances, missing meters from premises where the
applicant had issued a fine, were found installed at other
premises
where he had also issued a fine. The report contains details of each
of these ‘meter swaps’ and in half the
cases, Van Wyk
personally interviewed persons at the premises. While his
evidence of the residents’ explanations
of the applicant’s
involvement is hearsay, the circumstantial evidence of these two
groups of missing or swapped meters,
which were the applicant’s
responsibility, directly implicated him and cried out for a response
or innocent explanation by
the applicant. None was forthcoming. The
fact that the investigators could not say they had personally seen
him removing
meters does not diminish the significance of the missing
explanation on the applicant’s part as to the whereabouts of
the
missing meters and in particular how meters, which had been
removed from one group of premises, were being used in illegal
connections
in other premises.
59.
Similarly, even if there was animosity towards the applicant by some
employees, that evidence does not explain away the
evidence pointing
to his direct involvement in facilitating illegal connections and
selling Eskom equipment for that purpose. The
same may be said of the
evidence relating to the interactions between the Nhlabeni community
and the investigative team. To the
extent that the evidence of what
transpired in the community meeting was evidence implicating Vukea in
the practice of making unlawful
connections that merely confirms his
own illicit activity, and that he ought not be readily trusted when
seeking to exonerate his
own role, but the problem remains that the
applicant never provided any meaningful evidence in rebuttal of the
account of his involvement.
There was also no evidence that his
accomplices were in any way favoured for having given evidence
against him.
60.
It is true that one of the employer’s witnesses who claimed
that the applicant had demanded money from her under
threat of
reporting her to a magistrate, after he had removing a meter from her
premises, was unable to identify the applicant
up at the arbitration
hearing because of the poor eyesight. Nonetheless, there were
other witnesses who confirmed paying
various sums of money to the
applicant, and the applicant in cross-examination did not materially
challenge their versions of those
transactions.
61.
What emerges from the above analysis is that the applicant did not
seriously contest significant evidence implicating
him in the
collection of funds, the installation of illegal connections, and the
resale of confiscated electricity meters. While
the arbitrator does
not specifically mention the evidence which the applicant claims he
ignored, those criticisms of the arbitrator’s
reasoning are
insufficient in my view to have displaced the weighty evidence
implicating the applicant. His criticisms of
the arbitrator’s
reasoning, for the most part do not address the most relevant
evidence pointing to his guilt.
62.
The fact that the arbitrator did not deal with every charge on which
he was previously found guilty is neither here nor
there given that
he found that the applicant was indeed guilty of enough serious
misconduct to justify his dismissal. It is not
necessary for the
arbitrator to deal with each and every original charge for which the
applicant was originally dismissed in these
circumstances. It
is also apparent from the award which charges he found the applicant
guilty of so there does not seem to
be a basis for arguing that it is
unclear which reasons the arbitrator found justified the dismissal.
It may be that his comments
about theft were superfluous, but this
does not affect his finding on the charges he considered.
63.
The applicant’s complaint that the arbitrator ignored the
evidence of his witnesses, is largely met by the arbitrator’s
own observation that much of their evidence was evidence of the
applicant’s good character or previous good record as an
effective investigator with integrity. Their testimony did not make
any serious inroads into the evidence relating to the facts
of the
applicant’s alleged misconduct, provided by management’s
witnesses.
64.
The applicant’s acquittal in the subsequent criminal
proceedings and the adverse findings of the magistrate on the
evidence of the employer’s witnesses also do not assist the
applicant. Firstly, the fact of an acquittal in criminal proceedings
relating to the same conduct with which an employee is charged in
disciplinary proceedings does not mean the employee could not
be
found guilty in the disciplinary proceedings, because of the
different standard of proof which is applied, even if the evidence
was identical. So too, if the magistrate made findings about the
credibility of witnesses in the criminal proceedings, those findings
would have been made on the evidence before him, and not what was
before the arbitrator. His conclusions cannot bind the arbitrator.
65.
Having said this, if the criminal proceedings had been concluded
before the arbitration proceedings, then the applicant
might have
obtained a transcript of those proceedings and confronted witnesses
with their evidence in the criminal proceedings.
In review
proceedings the question before the court is whether the arbitrator
in those proceedings on the evidence before
the arbitrator at the
time committed reviewable misconduct. The court cannot fault
the arbitrator’s findings on that
evidence because his findings
might have been different if other evidence had been before him at
the time he issued his award ,
which only became available later.
66.
The applicant did apply in the alternative for an order directing the
matter to be referred back to the arbitrator for
hearing of further
evidence, but did not seek to set aside the ruling by the CCMA not
re-open the matter.
67.
If the applicant has any recourse in respect of re-opening the case,
that could only follow from a successful review of
the CCMA decision
not to re-open the matter, which is quite distinct from the
arbitrator’s award which is the subject matter
of this review.
Whether or not it is possible to re-open arbitration proceedings once
an award has been handed down, particularly
where the request to do
so was made
ex parte
, or what requirements would have to met
is something that is beyond the scope of these proceedings, and is
not necessary to determine
for the purposes of reviewing the award.
Conclusion
68.
Although the award could have been more expansive, the
fundamental reasoning of the arbitrator for his findings
remains
sound and rational. I am not persuaded that he necessarily
failed to consider the evidence raised by the applicant
on review,
because it is apparent he was persuaded by the weight of the evidence
pointing to the applicant’s involvement
in the illicit
electricity connection activities, which none of the other evidence
served to effectively rebut. Moreover, even
if that evidence were
taken into account, it would not have made a significant impact on
the arbitrator’s findings, because
it was not materially
weighty enough to displace the inferences he drew.
69.
On the basis of my assessment of the merits, I am satisfied that
taken together with the unreasonable delay in prosecuting
this matter
and the failure to provide a reasonable explanation for the delay,
the third respondent is entitled to the dismissal
of the review
application. Even if I am wrong in this finding, and if the
review application should not be dismissed on account
of the
applicant’s dilatoriness in prosecuting the application, a
consideration of the review application solely on its own
merits
ought not to succeed in my view for the reasons stated in the
analysis above.
Order
70.
Accordingly, in the light of the findings above –
70.1. The application to
review and set aside the arbitration award issued by the second
respondent on 13 February 2007 is dismissed.
70.2. The applicant is
ordered to pay the third respondent’s costs
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 10 June 2010
Date
of judgment: 8 December 2010
Appearances
–
For
the applicant: M A Chauke instructed by BK Msimeki Attorneys
For
the third respondent: G N Moshoana of Mohlaba & Moshoana
Attorneys
[1]
See also cases dealing with unreasonable delays in prosecuting
reviews before the Labour Court, viz:
Sishuba
v National Commissioner of the SA Police Service
(2007)
28 ILJ 2073 (LC);
Bezuidenhout
v Johnston NO & others
(2006) 27
ILJ
2337 (LC);
Ivor
Michael Karan t/a Karan Beef Feedlot and Another v Randall
(JS347/06)
[2009] ZALC 120
(22 July 2009)
unreported;
Nedcor
Bank Ltd v James George Harris & others (unreported case no. JR
927/01 dated 14 December 2009), and Suricate Security
v K Rambuda
and others (JR 902/06 dated ???)
[2]
See
S
v Hlapezula & Others
1965
(4) SA 439
(A) at 440D-H