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[2011] ZALCJHB 92
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Northam Platinum Mines v Shai NO and Others (JR 435/08) [2011] ZALCJHB 92; (2012) 33 ILJ 942 (LC) (10 November 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Case No: JR 435/08
Reportable
and of interest to other judges
In
the matter between:
NORTHAM
PLATINUM MINES
…
.......................................................
Applicant
and
P SHAI (
N.O.
)
…....................................................................
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
…......................................................
Second
Respondent
NUM obo P SENYATSI
…
.....................................................
Third
Respondent
JUDGMENT
HEAD NOTES: (review -
cautionary rule - single witness - set aside)
LAGRANGE,
J
Introduction
On 3 November 2011, I
handed down the following order with a summary of my findings, which
appears at the end of these full reasons
for the judgment:
“
In
the circumstances,
The arbitration award
of the first respondent issued on 17 March 2008 under CCMA case
number LP 2308-04 is reviewed and set
aside.
The findings of the
arbitrator are substituted with a finding that the third respondent’s
dismissal was substantively fair.
No order is made as to
costs.”
The applicant company
applied to set aside and review an arbitration award by the first
respondent handed down on 1 January 2008
under CCMA case number
LP2308 - 04. The third respondent, Mr P Senyatsi, was dismissed by
the applicant after being found guilty
of decanting a sample and
using unmarked containers and without using identification tags for
the samples he was handling. Senyatsi
was employed as a sampler by
the applicant and was fully conversant with what was required of him
in the performance of his duties.
The samples in question are
production samples which are taken at regular intervals to determine
the production quality. Errors
or inaccuracies in the measuring of
samples which produce misleading results about the product quality
can result in decisions
being taken with serious financial
implications. The samples are collected in the form of a muddy
slurry.
The charges arose from
an incident on 18 April 2004. The plant supervisor, Mr PJ Swart,
said he observed Senyatsi sitting on his
heels decanting a sample
bucket some 10 or 20 m from stairs leading up to the laboratory
where tests are conducted on the samples.
The effect of decanting a
sample, apart from reducing the weight of the bucket, is that the
sample measured would give an inaccurate
reading of the quality of
output. The plant supervisor then followed Senyatsi up the stairs to
the lab where he observed him
preparing the remainder of the sample
from the bucket which he had decanted for testing. At this point he
stopped him from proceeding
further.
Swart testified that the
marking of the sample in the bucket showed a clear ‘V’
mark indicating that the slurry had
been poured from the bucket. If
the bucket had been dropped as Senyatsi alleged, there would have
been splash marks and not clean
lines on the rim of the bucket.
At that stage Swart
called another sampler, one ‘Stanley’, to verify the
markings of the slurry on the bucket which
Senyatsi had allegedly
decanted and to observe the spot where the decanting had taken
place. He was not called as a witness at
the arbitration.
Swart advised Senyatsi
orally that he would be charging him with decanting a sample. Swart
also testified that it was impossible
to determine if there had been
contamination of a sample without doing laboratory tests.
Later the same day,
Senyatsi was observed decanting a sample yet again. This time he was
observed by Breidenbach who whistled
at him to catch his attention
and interrupted him in what he was doing. Breidenbach reported this
incident to Swart, but the
latter said he would not take it any
further because he had already charged Senyatsi for the incident
earlier that day which
he had observed. Breidenbach also called two
colleagues to confirm the decanting, but they were not called to
confirm his testimony
at the arbitration. According to Breidenbach,
Senyatsi told him he had slipped and fallen.
Senyatsi’s
account, as recorded by the arbitrator, is that he was taking two
samples of concentrate to the lab and while
walking he tripped and
fell. When he fell the sample fell as well and some spillage
occurred. He inspected the samples to see
if any contamination
occurred. He maintained that he could identify contamination simply
by examining the samples himself as
he worked with them all the
time.
At that stage, he was
approximately 12 m away from the laboratory having carried the
samples some 100 odd metres by then. He thought
that Swart saw him
and did not think it was necessary to report the incident as he
should have because he had been seen by the
plant supervisor. He
took the 25 litre container and emptied it in the laboratory
drainage then washed it out with water, which
caused Swart to become
angry. The applicant had emptied the container because he intended
to take new samples as contamination
of the samples had occurred as
a result of the spillage when he slipped. He denied that he had been
decanting a sample when he
had been seen sitting with the bucket by
Swart.
According to the
arbitrator, Senyatsi also denied ever saying to either Swart or to
Breidenbach that he had tripped and fallen
which resulted in a
spillage. When asked what motive Breidenbach or Swart might have for
implicating him falsely in tampering
with samples by decanting them,
Senyatsi could not identify any reason why Breidenbach would have
said what he did, but believed
that Swart had an agenda to implicate
him because previously Swart had found him not guilty on another
charge of decanting a
sample, when Swart had been the chairperson of
the disciplinary enquiry.
The crux of the dispute
was about the decanting of the sample, which was a dismissable
offence. There was no dispute that the
sample had not been properly
tagged and the buckets were not marked, but it was also agreed those
acts did not amount to dismissable
misconduct.
The arbitrator’s
evaluation
The arbitrator accepted
that the applicant had admitted his guilt on the lesser charges of
not tagging and labelling the samples
and confirmed the findings of
the chairperson of the disciplinary enquiry in that respect.
He noted that none of
the witnesses who corroborated Swart or Breidenbach’s evidence
at the internal inquiry were called
to testify at the arbitration
and therefore correctly found that Swart’s and Breidenbach’s
account of their testimony
was hearsay. He also observed that no
reasons were given why they were not called to corroborate the
testimony.
The arbitrator mentioned
that Senyatsi had contradicted his earlier version at the
disciplinary enquiry about why he did not report
his fall as he was
supposed to. At the enquiry he had said he did not report it because
Swart was angry with him, whereas now
he said it was because he was
aware Swart had seen him. In evaluating the evidence of Swart and
Breidenbach, the arbitrator accepted
that there were no
contradictions in their evidence. On the question of whether Swart
had a motive to falsely implicate Senyatsi
because he had previously
acquitted him on the same charge when he chaired a disciplinary
enquiry, the arbitrator held that he
could either infer from this
that Swart was “
...a fair person, secondly may have had a
motive to implicate the applicant to make up for the previous
finding as the applicant
suggested.
” (
sic
)
Although he accepted
that the evidence of the Breidenbach was not contradictory the
arbitrator held that it was unlikely he could
have seen what
Senyatsi was doing from a distance of 80-100metres, and he also
found it was unlikely that Senyatsi had the same
explanation for
what had happened when Breidenbach observed him, when he had already
given the same explanation in the morning
to Swart for the earlier
incident and was facing charges for this. He also found it strange
that Senyatsi was not charged for
this second incident as well.
As mentioned, the
arbitrator was also concerned about what he described as the lack of
corroboration of the evidence of Swart
and Breidenbach and the lack
of any explanation for the non-attendance of the witnesses who
previously corroborated their respective
accounts in the
disciplinary enquiry. Lastly, he was concerned why Senyatsi would
have waited until he was within 12 metres of
the stairs to the
laboratory before he decanted the sample if he wanted to minimise
the weight of the samples.
The arbitrator agreed
that the evidence of Senyatsi was contradictory on his explanation
for failing to report the incident to
his supervisor but accepted
his explanation for the contradiction that it happened a long time
ago. He found a similar discrepancy
with the evidence of the Swart
in that he had used the word ‘pitter’ in the previous
enquiry whereas he referred
to ‘decanting’ in the
arbitration. He decided this was also attributable to a lapse in the
time between the two hearings.
Having made this finding the
arbitrator then equated the two discrepancies and found the
contradictions in both Senyatsi and
Swart’s evidence were not
material.
Having found the
applicant not guilty the arbitrator proceeded to reinstate Senyatsi
with a final written warning. Although it
was argued by Mr Bekker,
who appeared for the applicant that it was inconsistent for the
arbitrator to acquit Senyatsi but to
issue him with a final warning,
on closer examination it appears that the arbitrator issued the
warning for the lesser offences
of not marking the buckets and
tagging the samples. This is evident from paragraph 7.14 of his
award where he stated: “
What remains is the determination
of whether dismissal is for a fair sanction for the commission of
the admitted offences namely:
using unmarked containers and the
failure to use identifying tags.
”
In concluding his
evaluation, the arbitrator stated:
“
7.13
Taking into account what I said above and taking into account the
fact that all witnesses are single witnesses and cautionary
rule
applies thereto I have come to the conclusion that both versions are
equally probable. In other words the evidence is reasonably
balanced.
The onus lies with the respondent to prove on a balance of
probabilities that the applicant has committed the offence
and
therefore the dismissal is fair. In the circumstance the respondent
fails.
”
(
sic
)
Grounds of Review
The applicant attacks
the arbitrator’s findings in respect of whether Swart had a
motive to implicate Senyatsi on account
of the previous enquiry in
which he had acquitted Senyatsi. I agree with the submissions made
by the union on Senyatsi’s
behalf that the arbitrator did not
go so far as to actually make a finding that he had an improper
motive, but I am also not
persuaded it had no bearing on the outcome
of the arbitrator’s decision because he then failed to take
this into account
in considering the credibility of Swart’s
testimony when weighing the two versions.
Despite supposedly
leaving the question of bias open, the arbitrator said he was
concerned about the fact that Swart chaired the
previous hearing. He
posited two possible inferences that may be drawn from that fact:
one that Swart was fair, and the other
that he may have tried to
implicate Senyatsi to make up for the previous acquittal. By
suggesting both possibilities were equally
plausible, it is also
difficult to escape the inference that the arbitrator took the view
that there remained a question mark
over whether or not Swart had an
ulterior motive.
In truth, the inference
that Swart was trying to make up for the previous enquiry was simply
not a reasonable one, in the absence
of other evidence tending to
show that Swart regretted not being able to find Senyatsi guilty. I
agree with the applicant that
the inference he postulates was a
logical
non sequitur
on the evidence available and at the
very least he should have accepted that there was no adverse
inference that could have been
drawn on what he had before him.
I further agree that it
was never put to Swart directly that he had an improper motive in
seeking to implicate Senyatsi, which
should have been done and the
arbitrator failed to consider this in considering the issue of
improper motive. This was all the
more reason for the arbitrator not
to have considered the possibility that an adverse inference might
be drawn from Swart’s
acquittal of Senyatsi at the previous
inquiry. By leaving the issue open ended, instead of deciding if
there was any reason why
Swart would have falsely implicated
Senyatsi, the arbitrator acted unfairly towards the applicant,
because the evidence of Senyatsi’s
previous enquiry, clearly
supported a positive finding on Swart’s credibility.
A similar issue is
raised in relation to the critical evidence concerning the shape of
the residue rim of the sample in the container.
Swart’s
testimony about the circular stain on the floor and distinctive ‘V’
shape in the bucket, which was
strongly indicative of decanting,
rather than spilling caused by dropping the bucket, which would have
left a splash pattern,
was not tested in cross-examination, but only
contradicted by Senyatsi in his evidence in chief. Senyatsi was
represented by
an attorney at the time and this was crucial evidence
he should have tested Swart on. The arbitrator seems not to have
taken
this into account when weighing the evidence on this issue.
Moreover, it is telling
that the arbitrator failed to make a finding on this conflicting
evidence which he ought to have because
it was fundamental to his
task of deciding if the charge of decanting the sample was proven or
not.
Once more, when he dealt
with what happened immediately following the alleged decanting
incident, the arbitrator did not evaluate
the evidence in the light
of the failure to put Senyatsi’s denial of any confrontation
over the decanting to Swart. Similar
criticisms can be made of the
failure to confront Swart when he testified that contamination could
only be detected by analysis,
whereas Senyatsi said in his testimony
he could identify contamination simply based on his knowledge of
working with the samples.
Likewise, the applicant rightly criticises
the arbitrator for making a finding about Swart’s ability to
observe what Senyatsi
was doing when this was never challenged
during the hearing and was not even raised by Senyatsi.
In relation to the
arbitrator’s finding that it is unlikely the applicant would
have waited until he got near the stairs
to the laboratory to decant
some of the sample on account of its weight, the applicant submits
that the arbitrator ignored Swart’s
uncontested evidence that
Senyatsi should only have been carrying one sample bucket whereas he
was carrying four. The arbitrator
failed to consider that it is
equally possible that, when faced with ascending the stairs with
this load, Senyatsi would have
sought to lighten it by decanting
some of the contents of largest bucket before proceeding further.
The applicant also
claims the arbitrator failed to appreciate that the evidence of
Breidenbach corroborated that of Swart, in
the sense that it showed
a propensity of Senyatsi to decant samples. The applicant claims
that the arbitrator ignored this facet
of their evidence.
Implicitly, it argues that this offsets any concerns the arbitrator
might have had about the absence of the
previous witnesses’
testimony which directly corroborated Swart and Breidenbach’s
evidence. In my view it was not
unreasonable for the arbitrator to
have had concerns that none of the other witnesses who had
previously corroborated Swart and
Breidenbach’s evidence were
called, without any explanation.
The arbitrator’s
concern about the lack of corroboration in turn affected his
weighing of the probabilities. In paragraph
7.13 of his award the
arbitrator concluded:
"
Taking into
account what I said above and taking into account the fact that all
witnesses are single witnesses and cautionary rule
apply thereto I
have come to the conclusion that both versions are equally probable.
In other words the evidence is balanced. The
onus lies with the
respondent to prove on a balance of probabilities that the applicant
has committed an offence and therefore
the dismissal is fair. In the
circumstances the respondent fails.
" (
sic
)
In
S v Carolus
[2008] ZASCA 14
;
2008 (2) SACR 207
(SCA)
, the SCA summarised the current
interpretation of the cautionary rule relating to evaluating the
evidence of a single witness
in criminal matters. The current
interpretation differs significantly from the previous more
stringent standard of requiring
a single witness’s evidence to
be “clear and satisfactory in every respect” before it
could be relied on for
a conviction:
“
There
is no formula to apply when it comes to the consideration of the
credibility of a single witness. The trial court should weigh
the
evidence of the single witness and consider its merits and demerits
and, having done so, should decide whether it is satisfied
that the
truth has been told despite the shortcomings or defects or
contradictions in the evidence.
”
1
In applying the
cautionary rule, the arbitrator in this instance simply treated the
evidence of Swart and Breidenbach, compared
with that of Senyatsi,
in nominal and monolithic terms: each incident had one witness for
the applicant and one for the third
respondent and accordingly the
evidence for each party was of equal value and the probabilities
were balanced in the absence
of independent corroboration by other
witnesses. The arbitrator ought to have weighed the probabilities of
the respective versions
and if necessary made credibility findings
to arrive at an outcome. Implicitly, the arbitrator took the absence
of independent
corroboration of Breidenbach and Swart’s
versions to have been fatal instead of applying a more nuanced
evaluation of the
single witnesses’ evidence in keeping with
the principles laid down by the SCA in
Carolus
.
There was no obligation
on the applicant to lead evidence of all available witnesses. If it
was satisfied that a witnesses’
evidence remained
fundamentally intact after cross-examination, it did not have to
lead further corroborative evidence.
The ‘corroborative’
character of Breidenbach’s evidence in relation to Swart’s
is of a different character
because it was led to try to show a
propensity on Senyatsi’s part to decant samples, rather than
for the purpose of directly
confirming the respective eyewitness
testimony of Swart and Breidenbach. I do not think that the
arbitrator erred in failing
to treat this evidence as a substitute
for the corroborative evidence of other eyewitnesses to the two
incidents Swart and Breidenbach
testified to.
Conclusions
It
is well established that a failure to put to a witness the version
of witnesses of the opposing party who are yet to testify
is a
reviewable irregularity
2
,
assuming of course that the witness is in a position to comment on
those versions. As discussed above, the arbitrator failed
to
consider this in respect of important issues,
namely
in deciding that the question of Swart’s bias was an open
ended matter, in deciding on the contours of the sample
residue in
the bucket and the shape of the pattern of spilled liquid, and in
considering whether a confrontation had taken place
between Swart
and Senyatsi immediately after the incident. Also, the arbitrator
failed to consider the fact that it was never
put to Swart that he
could not observe what Senyatsi was doing, yet this played a
significant role in reaching his findings.
Further, in Swart’s
testimony he had testified that the third respondent could never
have replaced the 25 litre sample during
the 20 minutes he was
present at the laboratory because it was an auto sample. It was only
in his own testimony that Senyatsi
then said the sample was a hand
sample, but this was never put to Swart. The arbitrator’s
failure to consider these facts
which were relevant and material to
the issues at hand amounted to an irregularity in his conduct of the
arbitration.
Secondly, the arbitrator
failed to determine the question whether or not the third respondent
had decanted or spilled the contents
of the 25 litre sample bucket,
which was a central issue to determine.
Lastly, the arbitrator
neutralised the effect of the evidence that Swart had previously
acquitted the third respondent of the
same misconduct, by
entertaining as a real possibility the illogical inference that
Swart had a reason to ‘make up for’
the previous
acquittal, when there was no independent evidence supporting such an
ulterior motive. Had there been, there would
have been some
justification for the inference, but in the absence of any other
evidence, the only inference that was justified
on the evidence was
that Swart was not malicious but, in fact, was fair minded.
In the circumstances
there are good reasons to set aside the award and substitute it.
Re-evaluation
To some extent the
reconsideration of the evidence is anticipated in the analysis
above. The factors below seem crucial in re-evaluating
the case.
The arbitrator rightly
accepted that the evidence of Swart and Breidenbach was not
contradictory. In so far as he found that Swart’s
evidence
might have suffered from the defects of memory because he had used
the word ‘pitting’ rather than ‘decanting’
in
the original enquiry, this was based on a misunderstanding. As Swart
testified in the arbitration the word he used in the enquiry
was
‘peuter’ which is an Afrikaans word for fiddling about or
tampering with something. Moreover it was used in the
context of
explaining why he did not suspend Senyatsi immediately, since there
was no possibility of him tampering with the evidence.
On the other hand the
inconsistencies in the applicant’s accounts were significant.
In the original hearing
Senyatsi admitted there were “mud straight lines” in the
sample bucket. In the company inquiry
Senyatsi also said he did not
mention to Swart that he had spilled the sample between the number 1
and 2 conditioners, rather
than between the number 2 conditioner and
the laboratory, because Swart was so angry. Later in his evidence at
the arbitration
he suggested there had only been one spillage.
Senyatsi also claimed
that Swart’s anger was the reason he did not report the
incident, whereas in the arbitration he claimed
he did not report
the accident because Swart had seen him, and only mentioned Swart
being angry when he stopped him processing
the sample. He did not
deny being shown the trace of the sample being spilled or poured
between number 1 and 2 conditioner, a
location which was not near
the steps where he claimed to have mis-stepped.
At the commencement of
the arbitration Senyatsi’s attorney said that his version
would be that when he tripped coming down
the stairs he spilt one of
the samples and poured some out from one of the containers to
determine which one had spilled. Later,
it was put to Swart that
Senyatsi wanted to see if the two samples had become mixed, to which
Swart responded that it would not
be possible to detect this by mere
observation of the samples. Still later it was suggested to Swart
that the applicant had been
pouring out the sample to check if there
had been any contamination, to see if it was necessary to discard
the sample, and that
if there had been no spillage in fact that
would explain a straight line pattern on the rim of the sample
bucket. Still later
it was said that there had been a spillage and
in order to see if there was contamination he spilled some more out
yet he was
still not sure it had in fact spilled out.
In his own evidence in
chief, Senyatsi claimed that when he fell on the stairs there had
been a spillage and a contamination and
that thereafter he took the
buckets to laboratory. He makes no mention of pouring any out to
verify the spillage or contamination,
and later denied decanting any
of the sample. Consistent with this version he then denied that the
rim of the slurry in the sample
bucket had displayed a
‘
V’
shape, but rather it displayed a spotted pattern consistent with a
spill. He did not deny that he had been shown the bucket
by Swart in
the presence of another colleague.
What emerges from the
above is that the applicant’s version changed between the
internal hearing and the arbitration, and
the version he put to
Swart was not the same that he testified to. Importantly also,
material parts of his testimony were not
put to Swart, such as the
fact that he would say there was in fact a splash pattern in the
bucket. Moreover, the inconsistencies
go to the heart of the
question of whether he had accidently spilled some of the sample or
had decanted it.
In contrast, as the
arbitrator observed, there were no contradictions in Swart’s
evidence. Without even going into the credibility
of the witnesses,
Swart’s version is more internally coherent than Senyatsi’s
internally contradictory version. Further,
Senyatsi did not give a
convincing explanation for his failure to get permission from Swart,
in the absence of his supervisor,
to obtain a second sample. Nor
does he satisfactorily explain when he could have slipped away from
Swart in the laboratory to
obtain a second sample.
Then there is the
question of the relative credibility of the Swart and Senyatsi as
witnesses. The inference that Swart had no
reason to maliciously
implicate Senyatsi follows from the fact that he previously
acquitted him on the very same charge and there
is no reason to
believe he manufactured his evidence. Senyatsi’s incoherent
and constantly changing version, by contrast,
renders his evidence
less credible.
In all the
circumstances, I am satisfied that the applicant proved its case on
the first charge on a balance of probabilities.
The fact that
Senyatsi was more than proficient when it came to a knowledge of his
duties, and was aware of the seriousness of
decanting samples having
previously faced an enquiry for the same misconduct, and the fact
that he was observed by Breidenbach
the same day decanting another
sample, all tend to suggest that he would not have stopped the
practice if he were only issued
with a final warning. Accordingly
despite his long service I believe dismissal was an appropriate
sanction.
Summary of findings
The arbitrator committed
a number of reviewable irregularities in his evaluation of the
evidence, leading him to fail to consider
certain evidence or to
consider the weight to be attached to it.
He also committed
misconduct in relation to his duties as an arbitrator to determine a
dispute of fact which was highly material
to the central findings he
had to make.
Further, his evaluation
of the evidence was influenced by entertaining an impermissible
inference which no reasonable arbitrator
would have considered.
For these reasons the
award stands to be reviewed and set aside.
In substituting the
arbitrator’s findings and award, an evaluation of the evidence
before the arbitrator leads me to conclude
that, on a balance of
probabilities the applicant did prove that the third respondent
decanted a sample and committed serious
misconduct by doing so
because of the implications of inaccurate sampling.
Consequently, I cannot
find that the third respondent’s dismissal was unfair.
ROBERT LAGRANGE
JUDGE OF THE LABOUR
COURT
Date of hearing: 25
October 2011
Date of judgment: 3
November 2011
Reasons filed : 10
November 2011
Applicant’s
representative: W P Bekker instructed by Van Zyl Le Roux Inc.
Third Respondent’s
representative: P Motaung of Nomali Tshabala Attorneys
1
At
211-212,[15]. The court relied
inter
alia
directly
on the early and more extensive consideration of the rule in
S
v Sauls and Others
1981
(3) SA 172
(A) at 180E – G as authority for this proposition.
2
See
in this regard:
SA
Nylon Printers (Pty) Ltd v Davids
[1998]
2 BLLR 135
(LAC) at 137I-138A;
Absa
Brokers (Pty) Ltd v Moshoana NO & others
(2005)
26 ILJ 1652 (LAC)
(2005)
26 ILJ 1652 (LAC)
;
[2005] 10 BLLR
939
(LAC) at paras 38-42 and
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & Others
(2010)
31
ILJ
452
(LC) at 462, [20]