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[2011] ZALCJHB 179
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Minister of Correctional Services v Baloyi and Others (JR46/09) [2011] ZALCJHB 179 (17 March 2011)
Reportable
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.: JR46/09
In the matter between:
MINISTER OF CORRECTIONAL SERVICES
Applicant
and
ABEL MONTGOMERY BALOYI
First Respondent
MIKE MBADA N.O.
Second Respondent
GPSSBC
Third Respondent
JUDGMENT
Rabkin-Naicker, A.J.
[1] This is an application to review and set aside the arbitration
award issued by second respondent (the Arbitrator), in which
he found
the dismissal of the first respondent to have been substantively
unfair. An application for condonation is also before
court in
respect of the delay in filing the review – a delay of 13
weeks.
CONDONATION APPLICATION
[2] It was submitted on behalf of the first respondent that the
reasons provided for the delay were lacking in candour. The founding
papers did not reveal that the attorney of record for first
respondent sent correspondence to the applicant dealing with the time
frames for filing review papers. The issue was also not dealt with in
reply.
[3] Mr van Graan, for first respondent urged the court to refuse
condonation based on the length of the delay and the unreasonable
explanation therefore. He also addressed the court on the merits of
the review. I find it necessary to deal with the merits in
some
detail as set out below.
BACKGROUND
[4] In brief, the material facts of the dismissal dispute were as
follows. First respondent, Mr Abel Montgomery Baloyi (Baloyi)
was
employed as a correctional official at Pretoria Local Prison.
[5] During October 2005, Baloyi’s supervisor received a
complaint from two inmates that Baloyi owed them R500.00 for “dagga”.
Baloyi denied this was true or that he was smuggling dagga into
applicant’s premises during the night shift.
[6] On 13 October 2005, Baloyi was apprehended by applicant’s
Emergency Supportive Team (EST) after allegedly throwing a
bag of
dagga onto the parking roof of one of the facilities at Pretoria
Central Prison. He was charged at a disciplinary hearing
and
dismissed. The dismissal was upheld on appeal.
[7] Baloyi was caught after his colleagues in the EST saw him meet
some men in the visiting area of the facility, and became suspicious
because he did not work there. One of these men was driving a green
Corsa. He got out and shook Baloyi’s hand and then went
into
the visiting room for a few seconds and then he came back to join
Baloyi. A white bakkie arrived and parked next to the
Corsa. One
of the people in the bakkie gave Baloyi a packet of samba chips.
Baloyi was then given the keys to the white Corsa,
and the men got
into the bakkie and drove off.
[8] Baloyi proceeded to drive the Corsa and entered through Gate
five, past the central prison and towards the men’s changing
rooms. Believing his behaviour was suspicious, the EST followed him
and hid behind some trees.
[9] At the arbitration procedings, Hendrik Sekwati Seremane
(Seremane) of the EST testified that he saw Baloyi throw a black
plastic
bag onto the parking roof. He was the only witness to the
bag throwing who gave evidence at the arbitration. Inside the bag,
were “small brown papers wrapped dagga”. His two
colleagues who were with him at the time of the incident did not
testify.
[10] Baloyi testified that he had never smuggled dagga and the
inmates were lying. On the day in question he was supposed to go
to
Thembisa after work. He borrowed a car from his cousin Melville
because his microbus was going to transport people. Melville
phoned
him and told him that he was at the parking area outside the prison.
Melville gave him the keys to the green opel corsa
and then left with
his friend Sakke in a white bakkie.
[11] He decided to test the corsa for breaks. He drove to gate 5,
where the boot of the car was checked by security. He proceeded
on
and decided to check the spare wheel of the car after he parked the
car opposite garage 11, which had been his garage. Seremane
came from
nowhere and asked him what he was doing. He told him that he was
checking the spare wheel. Seremane said he saw him throwing
the black
plastic bag on the roof. The reaction unit was called by Seramane and
they climbed on the roof and removed the black
bag. They found sticks
of dagga and showed it to him. He did not know anything about the bag
or its content.
THE AWARD
[12] In assessing the evidence before him, the Arbitrator found that
Seremane failed to answer questions satisfactorily when
cross-examined.
In particular, when cross-examined Seramane could
not justify why he testified in the disciplinary hearing that Baloyi
had pleaded
with him to “make a plan” and make “a
false statement”. He could not explain why he never mentioned
this
in the statement he wrote 2-3 hours after the incident, or in
his evidence-in-chief at the arbitration. As a result, his evidence,
in the view of the Arbitrator, was not credible.
[13] In addition, the Arbitrator records that the failure to call the
two other members of the EST meant that he “had to
make an
inference that the respondent was aware that these officials were
going to contradict Seremane’s testimony”.
[14] The Arbitrator sets out his approach to the evidence of Seremane
as a single witness. He states in the award that: ‘
in
applying the cautionary rule, what is required of me when dealing
with the evidence of a single witness is to apply caution which
will
assist me to decide whether or not guilt of the applicant was proved
on a balance of probabilities’.
GROUNDS FOR REVIEW
[15] The grounds for review raised by the applicant included the
Arbitrator’s reliance on the transcript of the disciplinary
hearing at the arbitration, and the allegedly unreasonable inferences
drawn by him in regard to the evidence before him. However,
in the
court’s view it is the material mistake of law by the
Arbitrator that renders the Award susceptible to review.
[16] Where a point of law is apparent on the papers, but the common
approach of the parties proceeds on a wrong perception of
what the
law is, a court is not only entitled, but is in fact obliged, mero
motu, to raise the point of law and require the parties
to deal with
it.
Commercial Workers Union of SA v Tao Ying Metal Industries and
Others (2008) 29 ILJ 2461 (CC) at paragraph 68
.
[17] In this case the Arbitrator made a material error of law in
applying the ‘cautionary rule’ to the evidence of
Seremane. In so saying, I refer to the approach taken by Basson, J
in the matter of
Barlowworld Coachworks Wynberg v Motor
Industries Bargaining Council (JR327/07)
handed down on 5 May
2009 when she stated at paragraphs 13 and 15 that :
“13. I am in agreement with the submission that the
Arbitrator erroneously relied on the cautionary rule in respect of
single
witnesses. I am further in agreement that this amounted to a
material legal error and constituted a gross irregularity in the
proceedings and resulted in the Applicant being denied a fair trial.
More in particular, I am in agreement that this erroneous
approach
had a material influence on the ultimate outcome of the proceedings
as the ultimate “purpose of the cautionary rules
is to assist
the court in deciding whether or not guilt has been proved beyond
reasonable doubt” (Law of Evidence at 798).
The cautionary
rule against a single witness cannot be applied as a general rule.
15. It is clear from the authorities that the cautionary rule
only applies in circumscribed circumstances and is confined to
criminal
proceedings. It has no place in civil / arbitration
proceedings.”
[18] Mr van Graan, for Baloyi, conceded that reliance on the
cautionary rule was misplaced, but submitted that it had not been
prejudicial in that the Arbitrator had arrived at a reasonable
finding on a balance of probabilities. I cannot agree.
[19] The Arbitrator does not appear to have given any regard to the
inherent probabilities of Baloyi’s version, and while
describing him as ‘also a single witness’, merely states
that Baloyi ‘made a good impression during his testimony
and
the manner in which he answered questions during cross-examination’.
Oral evidence can only be properly evaluated by
testing it against
the inherent probabilities of the evidence presented. The failure to
do so amounts to a misdirection.
Cohen and Another v Lench and
Another
2007 (6) SA 132
SCA at paragraph 9
[20] In dealing with the probabilities, the Arbitrator approached the
evidence of the witness carrying the burden of proof (Seramane)
guided by the cautionary rule (a material error of law). This
approach was coupled with an evaluation of the evidence of Baloyi,
based on his credibility and demeanour only, with no reference to the
inherent probabilities of his testimony. In my view a fair
trial of
the issues could not ensue.
[21] Should condonation be granted in view of the above? While
acknowledging the explanation for the delay was far from
satisfactory,
I am of the view that it is in the interests of justice
that condonation be granted. The merits of the main application have
clearly
tipped the scales in this regard. Moreover, the public
interest requires that the material issues in dispute receive a fair
trial.
There is no transcribed record of the arbitration proceedings
and the court is not in a position to substitute the decision of the
Arbitrator.
[22] In the result I make the following order:
The applications for condonation and review are granted;
The award under case number PSGA153-08/09 is hereby set aside and
sent back to Third Respondent to be heard by an Arbitrator
other
than Second Respondent;
There is no order as to costs.
______________________________
Rabkin-Naicker A.J.
Date of Hearing: 17/3/2011
Date of Judgment:
Appearances:
For the Applicant: Adv M.B. Matlejoane
Instructed by: The State Attorney
For the First Respondent: Adv ESJ van Graan SC
Instructed by: Rudi Kuhn Attorneys