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[2011] ZALCCT 64
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Isaacs v Education Labour Relations Council and Others (C 460/2008) [2011] ZALCCT 64 (13 September 2011)
7
Not reportable
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO C460/2008
In
the matter between:
KLAAS
ISAACS
...........................................................................................
APPLICANT
and
EDUCATION
LABOUR RELATIONS COUNCIL
.............................
1
ST
RESPONDENT
BELLA
GOLDMAN N.O
..................................................................
2
ND
RESPONDENT
WESTERN
CAPE EDUCATION DEPT.
...........................................
3
RD
RESPONDENT
JUDGMENT
VAN
NIEKERK J
Introduction
[1] This is an
application to review and set aside an arbitration award made by the
second respondent, to whom I shall refer as
‘the commissioner’.
[2] The applicant was
employed by the third respondent at the Meiring Primary School,
Riebeeck Kasteel. On 4 August 2006 the applicant
was suspended on
full pay pending an investigation to an act of indecent assault. The
charges related to an incident on 17 March
2006, when the applicant
was alleged to have indecently assaulted a learner at the school,
Zelmarie Filander, by placing her hand
on his penis and touching her
breast. The applicant was dismissed on 3 November 2006 after a
disciplinary enquiry. A subsequent
appeal to the MEC failed. The
applicant thereafter referred an unfair dismissal dispute to the
first respondent for arbitration.
On 22 May 2008, the commissioner
ruled that the applicant had been fairly dismissed. Her award is the
subject of these proceedings.
Condonation
[3] The applicant has
applied for condonation for the late filing of his review
application, and the third respondent has applied
for the condonation
of the late filing of its answering affidavit. Turning first to the
applicant, he states that he received the
award on 27 May 2008. The
present application was delivered on 18 August 2008 some five weeks
late. In support of the application
for condonation, the applicant
cites difficulties that he experienced in obtaining legal advice,
occasioned in the main by the
fact that the applicant’s cover
under a Legalwise policy had been exhausted.
[4] The third respondent
has also contended that the applicant’s supplementary affidavit
was filed late, in that it was filed
without an application for
condonation four months after the date on which it appears that the
transcription of the arbitration
proceedings was completed. Although
the LRA does not establish a time period within which a record must
be filed following the
filing of the review application, Rule 7A(8)
requires the delivery of any supplementary affidavit within ten days
of the date on
which the registrar has made the record available. It
is not clear from the papers precisely when the record was made
available
to the applicant, but he has provided details of the delay
occasioned by the cost of the transcription, and efforts that he made
to raise the money for the transcription itself and the time that he
required, as a lay person, to familiarise himself with a lengthy
record and to compile his supplementary affidavit.
[5] In so far as the
third respondent’s application for condonation for the late
filing of its answering affidavit is concerned,
the reason for delay
is ascribed to the late briefing of counsel and to counsel’s
unavailability. It is submitted further
that it is the interests of
justice that the delay be condoned
[6] The court has a
discretion to condone the late filing of process, and ordinarily does
so by considering the degree of lateness,
the reasonableness of the
explanation for the delay that is proffered, and the prospects of
success. In so far as the filing of
the application and the answering
affidavit are concerned, in neither instance is the delay in filing
the relevant process excessive,
and in both cases, the explanation
for the respective delays are, in my view, reasonable The prospects
of success in each case
are at best a neutral factor. In these
circumstances, the late filing of the application and the answering
affidavit are condoned.
To the extent that it is necessary, the late
filing of the applicant’s supplementary affidavit is condoned.
The rule 11
application
[7] In February 2010, the
applicant filed what was termed a ‘notice of exception’
in which he contended that any reference
to his disciplinary record
and any annexures in respect of that record are inadmissible, since
these were never brought before
the commissioner and do not form part
of the present dispute. The applicant sought the striking from the
‘statement of case’
of all complaints and references to
his disciplinary record. In March 2010, the notice was supplemented
by further submissions
relating to the matters raised in the
‘exception’.
[8] The steps taken by
the applicant are misguided. First, the applicant’s objections
have their root in an affidavit. There
is no statement of case in the
present proceedings, and the rules relating to exceptions do not
apply. Disciplinary action taken
against the applicant on previous
occasions was introduced into evidence by a number of witnesses,
without objection; this is captured
in the commissioner’s
summary of the evidence. To the extent that the applicant’s
complaint is that the third respondent
has attempted to introduce
material into these proceedings that did not form part of the record
of proceedings before the commissioner,
the function of this court,
as will appear more fully below, is to assess the commissioner’s
award against the material before
her, and to decide whether the
award passes a threshold of reasonableness. It is ordinarily not
appropriate therefore for a review
court to have regard to material
not before a commissioner. The present application was argued on the
basis of the record, and
will be decided on that basis. In any event,
the applicant’s disciplinary record was not referred to by the
commissioner
in her award, and it clearly did not form part of her
reasoning. Save to state that the applicant’s notices
constitute an
irregular step and that no regard will be had to
material other than that before the commissioner, I need deal no
further with
this issue.
The commissioner’s
award
[9] The arbitration
proceedings continued for some 8 days. The record of the arbitration
exceeds 1600 pages, excluding the bundles
of documents. In her award,
the commissioner sets out a summary of the evidence. Four witnesses
gave evidence on behalf of the
respondent, the third respondent in
these proceedings. These were the complainant, Zelmarie Filander, Mr
Cupido, the head of department,
Ella Filander, the complainant’s
mother, and the principal of the school, Mr Heynse. The applicant
then gave evidence, and
called four witnesses. They were Hilton
Carolus, Julian Charles Jacqueline Joubert and Grivenia Manuel. I do
not intend to burden
this judgment with a repetition of the evidence
led by each witness. I have made a careful study of the record, and
the commissioner’s
summary is a sufficiently accurate précis
of the evidence led.
[10] The commissioner
framed the issue that she had to decide as whether the applicant had
breached a rule by indecently assaulting
the complainant in the
manner described in the charge. It was not disputed that dismissal
was an appropriate sanction for this
misconduct, should the applicant
be found guilty of the charges against him.
[11] After her summary of
the evidence, the commissioner drew a number of conclusions that
warrant repetition in full:
“
92.
I found the complainant Zelmarie Filander to be very consistent and
credible witness. Her evidence with respect to what took
place on 10
March 2006 did not deviate from that she gave at the disciplinary
hearing and her evidence remained consistent despite
rigorous cross
examination. On the other hand the applicant’s evidence and
that of his witness was riddled with inconsistencies
of which I will
give some examples of below. It was put to the complainant and to
Heynse that various witnesses would be called
to give evidence
relating to the statements the complainant and Heynse were supposed
to have made yet the applicant did not call
those witnesses. The
witnesses in question were Magdalena, Joniver and Chrissie. The
applicant as he was giving evidence appears
to have been fabricating
things as he went along for the reasons stated below. The applicant’s
evidence was at times vague
and difficult to follow. Further the four
witnesses he called appeared to have been coached by him for reasons
which I refer to
below.
93. The applicant
relied heavily on various letters which either he was supposed to
have written to Mrs. Filander or that the Principal,
Heynse was
suppose to have written to indicate that since February 2006 he was
concerned about Zelmarie to participate in remedial
programme, yet in
none of these letters did he refer to the remedial programme. Further
there are two letters which dated 23 February
2006 that he wrote to
Mr. Filander both of which apparently should have been dated 13
February 2006. The letter which was in the
respondent’s bundle
does not make mention of the alleged appointment on 10 March 2006 and
appears to be asking Mr. Filander
to agree to a meeting whilst the
one in the applicant’s bundle is confirming the meeting of 10
March 2006. The applicant’s
submission that the one in the
respondent’s bundle was a draft and that he always keep a draft
is nothing short of preposterous.
What would be the point of keeping
a draft letter in a file of which the contents bears little
resemblance to the actual letter
sent.
94. The applicant
stated in his evidence that in retrospect he should have sought the
permission of the farmer at Zongausdrift farm
to visit the farm but
did not. He then said that he asked Heynse to get permission for him
and he referred to an alleged minute
of a meeting he had with Heynse
on 4 May 2006 in which Heynse allegedly undertook to contact the farm
owner to get permission for
the applicant to visit the farm the next
day. The next day the applicant said that he and Zelmarie again went
to Zongausdrift to
keep an appointment he had with Mrs. Filander but
the applicant did not check that Heynse had sought the permission and
thus could
have just gone onto the farm the following day as he had
no reason to believe that Heynse had not sought and obtained
permission.
When Zelmarie told him that her mother was not at home he
left without going to check for himself even though he did not
believe
her.
95. I asked the
applicant why he had not after 10 March 2006 phoned Mrs. Filander or
posted a letter. The applicant said that the
school does not pay for
stamps or phone calls easily. This answer is not logical as it would
have been cheaper for him to bear
the cost of a phone or a stamp
which would be less that the cost of the petrol he used to drive to
Zongausdrift.
96. The applicant on
his grounds for appeal submission stated that he wanted to call a
witness who saw him travel to Zongausdrift
with Zelmarie on 5 May
2006. When Carolus testified he said that he saw the applicant and
Zelmarie drive past him on 10 March 2006,
when asked to prove he saw
the applicant and Zelmarie drive past on 10 March and not 5 May 2006
Carolus said that he had diarised
the journey as being on 10 March
2006 but that he has since lost his diary. This appears to be rather
a convenient loss. The applicant
said that he had mistakenly referred
to 5 May instead of 10 March 2006 in his appeal submission.
97. The applicant
stated that he never asked Zelmarie or any other pupils to buy him
grapes or to enquire about buying grapes, yet
Grivenia stated that he
did on occasion ask learners to buy him grapes and that he did ask
Zelmare to buy him grapes.
98. The applicant and
his witness made much of the fact that one of the main reasons that
Zelmarie did not want the applicant to
see her mother was that he
heard her and Grivenia discussing their sex lives. Grivenia said that
the applicant gave both she and
Zelmarie letters to give to their
parents relating to their inappropriate discussion about sex, yet the
applicant never referred
to such letters.
99. The applicant made
much of the fact that Heynse was out to get him and that Heynse had
orchestrated Zelmarie’s allegations
I am left confused as to
what the applicant believed were the motives for Zelmarie’s
alleged fabrication. Was it Heynse’s
vendetta or was it the
fact that Zelmarie did not want her mother to find out that her
school work and attendance were poor or
was it because she did not
want her mother to know she was sexually active or was it all three?
The applicant appeared to be clutching
at straws. In any event
Zelmarie’s mother said that she was aware that her daughter’s
poor attendance record at school
as she asked her to stay at home and
she also knew that this had a bearing on Zelmarie’s school
work. The applicant appeared
to use the classical defence to a case
of sexual misconduct allegation which is to imply that the
complainant has loose sexual
morals.
100. Julian’s
evidence relating to him obtaining the documents for the applicant
from a cupboard also appeared to be contrived.
The chances of
randomly choosing documents from a lever arch file which related to a
number of learners being to those to Zelmarie
are slim.
101. Zelmarie
allegedly told three of the applicant’s four witnesses that she
fabricated the allegations against the applicant
as she was scared of
her mother. All three were apparently good friends of the applicant
yet none confronted her about her behaviour
and both asked her twice
about her allegations. It is also quite a coincidence that Julian
just happened to overhear Zelmarie telling
Jacqueline of her
fabrications at Bricks.
102. Heynse denied
being the author of the majority of the letters which were in the
applicant’s bundle and which bore his
signature he also denied
that he placed his signature on the letters which the applicant wrote
although he said that the signature
on the papers appears to be his.
The documents which were in the applicants bundle were all
photocopies and as the documents are
in dispute the original of the
documents should have been produced. I find in the light of the above
that it is conceivable that
the applicant could have placed the
signature on the documents using photocopies.
103. Much was made
from the time lapse between the incident and when the applicant
reported the incident to Mr. Cupido. The respondent’s
representative referred to the case of
R v Valentine
( no
citation provided) where the judge stated that victims of sexual
males and females, often need time to tell what has been
done to
them……other may find it quite impossible to tell their
parents or family members’. It has been widely
documented that
in these type of cases the victim and especially if the victim is a
child feels guilty about the incident and that
he or she was
responsible for it and hence the time span is not unusual.
104. There are other
examples of inconsistencies that I can refer to but I believe that
the above is enough to indicate the non
credibility of the
applicant’s and his witnesses’ evidence and that on a
balance of probabilities Zelmarie’s
version of what took place
on 10 March 2006 is more probable than that of the applicant and the
applicant is not on a balance of
probabilities of both the first
charge and alternate charge.”
The grounds for review
[12] The applicant’s
grounds for review, as disclosed in his founding affidavit, suggest
primarily that the commissioner failed
properly to apply her mind to
the facts, that she refused to allow the applicant to lead all of his
witnesses, that she erred in
disbelieving the applicant’s
witnesses, and that she was biased in her assessment of the evidence.
The applicant hereafter
filed a lengthy supplementary affidavit in
which he elaborated on these grounds...
[13] On the day of the
hearing the applicant produced a 160 page document which appeared to
comprise submissions that he wished
to make in support of both his
application for condonation and the main application. Ms Nyman, who
appeared for the third respondent,
objected to what amounted to the
introduction of heads of argument at this late stage. I permitted the
applicant to address the
court on the basis of the document that he
had prepared, and to hand it up to form part of the record.
Applicable legal
principles
[14] To the extent that
the applicant appears to have misconceived the nature of review
proceedings, two points ought to be affirmed
at the outset. The first
is that in an arbitration hearing such as the one that is the subject
of this application, i.e. a dismissal
for misconduct, the existence
of misconduct is determined by a commissioner on a balance of
probabilities. Second, the commissioner
is required to determine the
dispute informally
The functions of a
commissioner were recently spelt out by the Constitutional Court:
[
65] Consistent with
the objectives of the LRA, commissioners are required to ‘deal
with the substantial merits of the dispute
with the minimum of legal
formalities’. This requires commissioners to deal with the
substance of a dispute between the parties.
They must cut through all
the claims and counter-claims and reach for the real dispute between
the parties. In order to perform
this task effectively, commissioners
must be allowed a significant measure of latitude in their functions.
Thus the LRA permits
commissioners to ‘conduct the arbitration
in a manner that the commissioner considers appropriate’. But,
in doing so,
commissioners must be guided by at least three
considerations. They must resolve the real dispute between the
parties. Second,
they must do so expeditiously. And, in resolving the
labour dispute, they must act fairly to all the parties as the LRA
enjoins
them to do.
1
[15] It is now
well-established that this court is entitled to set aside an
arbitration award if and only if the commissioner’s
decision
falls outside of a band of decisions to which no reasonable person
could come on the available evidence (see
Sidumo
& another v Rustenburg Platinum Mines Ltd & others.
2
At paragraph [110] of the
judgment, the test is set out thus:
To summarise, Carephone held that section 145 of the LRA was
suffused by the then constitutional standard that the outcome of an
administrative decision should be justifiable in relation to the
reasons given for it. The better approach is that section 145
is now
suffused by the constitutional standard of reasonableness. That
standard is the one explained in Bato Star: Is the decision
reached
by the commissioner one that a reasonable decision-maker could not
reach? Applying it will give effect not only to the
constitutional
right to fair labour practices, but also to the right to
administrative action which is lawful, reasonable and procedurally
fair
.
[16] In other words, this
court is not concerned with the correctness of the arbitrator’s
decision - what matters is whether
the result of the proceedings is
reasonable. This is what distinguishes an appeal from a review. In
short: whether this court would
have arrived at a different
conclusion to that reached by the arbitrator on the same evidence is
irrelevant- what matters is whether
the conclusion falls within a
band of decisions to which reasonable people
could
come on
that evidence.
[17] This point was
recently reinforced by the Labour Appeal Court, in
Bestel v Astral
Operations Ltd & others
[2011] 2 BLLR 129
(LAC). The court
stated that what is paramount is the justification for the
arbitrator’s decision, rather than it being considered
correct,
i.e. that what the reviewing court considers to be a better decision
on the available evidence is irrelevant (see paragraph
[18] of the
judgment). This approach maintains the necessary distinction between
an appeal on the one hand and the scope of the
right of review
contemplated by the LRA on the other.
[18] Just how limited the
test for review is was emphasised by Zondo JP in
Fidelity Cash
Management (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2008) 29 ILJ 964 (LAC).)
The test enunciated by
the Constitutional Court in
Sidumo
for determining whether a
decision or arbitration award of a CCMA commissioner is reasonable is
a stringent one that will ensure
that such awards are not lightly
interfered with. It will ensure that, more than before, and in line
with the objectives of the
Act and particularly the primary objective
of effective resolution of disputes, awards of the CCMA will be
finding and binding
as long as it cannot be said that such a decision
or award is one that a reasonable decision maker could not have made
in the circumstances
of the case. It will not be often that an
arbitration award is found to be one which a reasonable decision
maker could not have
made ...
3
Evaluation
[19] With those
principles in mind, I deal first with the ground of review that
appears to suggest that the award is reviewable
because the applicant
was not able to call all his witnesses. This was indeed a complaint
raised by the applicant in relation to
his disciplinary enquiry, but
it is not an issue in relation to the proceedings under review except
to the extent that the applicant
avers, in his supplementary
affidavit, that the bargaining council refused to allocate more days
to the arbitration and that this
prejudiced him. The applicant was
represented at the arbitration by an attorney, who cross-examined the
third respondent’s
witnesses at great length and who called the
applicant and four other witnesses to give evidence. It is not
evident from the record
that the applicant’s representative
stated that he wished to call further witnesses or that he was denied
the right to do
so. To the extent that this ground for review may
relate to the procedural fairness of the applicant’s dismissal,
this was
never put in dispute by the applicant’s
representative. The commissioner records as much, and correctly
identified the issue
before her as being only one of substantive
fairness and in particular, the factual issue of whether the
applicant committed the
misconduct for which he was dismissed.
[20] The commissioner was
confronted with two mutually exclusive versions of the events that
gave rise to the applicant’s
dismissal. Without wishing to
reduce a mass of evidence to the level of the meaningless, in
essence, the complainant stated that
in March 2006 the applicant
sexually assaulted her in his car by placing her hand on his penis
and by fondling her breast, on the
way to the complainant’s
home, after leaving the Constantia farm. The background to the
assault was a request by the applicant
that the complainant accompany
him after school to the Constantia farm to buy grapes, a transaction
that the applicant had requested
the complainant to arrange with the
complainant on the day prior to the incident. The complainant stated
that the applicant told
her that she should not to discuss the matter
with anyone. The complainant reported the incident to Cupido in
August 2006. The
complainant’s version was supported by Cupido,
to whom the complainant ultimately reported the incident and by her
mother,
to whom she made the same report. The applicant’s
version amounted to a denial of the incident and an averment of a
conspiracy
against him– he testified that no arrangement
regarding the purchase of grapes had been made, that he travelled to
the complainant’s
home with the purpose of visiting her mother
to discuss the complainant’s poor academic progress, that he
did not assault
her, and that the entire episode was contrived by the
complainant who was afraid that her mother would be made aware of her
poor
performance and of the fact that she was sexually active. The
applicant further averred that his relationship Heynse had
deteriorated
to the point where Heynse was capable of framing him.
The applicant’s witnesses served largely to corroborate the
applicant’s
denial version, and also to establish that Heynse
had reason to act vindictively toward the applicant.
[21] The commissioner was
obliged to resolve the factual dispute before her in accordance with
the principles set out in
SFW Group Ltd & another v Martell et
Cie & others
2003 (1) SA 11
, where 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.”
4
[22] In other words, the
commissioner’s prime function was to ascertain the truth as to
the conflicting versions before her.
She was required, in terms of
the approach set out in the
SFW
judgment, to make some attempt
to assess the credibility of the witnesses by reference to any
internal and external inconsistencies
that might exist, to assess
their reliability and to consider the probability or improbability of
each party’s version.
[23] It is evident from
the extract from the award quoted above that the commissioner’s
decision that the applicant’s
dismissal was substantively fair
is principally based on a credibility finding against the applicant
and his witnesses, and what
she considered to be the inherent
improbability of the applicant’s version. It is the
reasonableness of those conclusions
that is at issue in these
proceedings.
[24] Turning first to the
issue of credibility, a review court ought not to interfere with a
credibility finding in circumstances
where the court, unlike the
commissioner, lacks the advantage of first-hand observation of the
witnesses and their demeanour, and
where there is no apparent basis
from the record to justify calling a commissioner’s finding
into question. While the importance
of demeanour as a factor in the
overall assessment of evidence should not be over-estimated, there is
a close link between a determination
by a commissioner of demeanour
and other factors, especially the probabilities. The commissioner’s
found that the applicant
appeared to be ‘fabricating things as
he went along’, that his evidence was ‘vague and
difficult to follow’,
and that his witnesses appeared to be
coached. In so far as these conclusions are supported by visual
observation, the court ought
to defer to the commissioner. The
commissioner’s observations are not gainsaid by the , nor, as
will appear below, by the
probabilities. There is accordingly no
basis to call her conclusion into question.
[25] To the extent that
the applicant relies on inconsistencies in the complainant’s
evidence as a basis for his attack on
the commissioner’s
finding on the probabilities, internal inconsistency is not in itself
an indication of unreliability,
nor is it a valid basis on which to
reject the evidence the evidence of the witness concerned. The
applicant’s contentions
are based largely on a microscopic
examination of the record, and averments of inconsistency in the
evidence proffered by the third
respondent’s witnesses, and
claims of substantiation in respect of his own. In the applicant’s
supplementary affidavit
alone, there are 229 such items raised,
excluding the conclusions drawn by the applicant. I do not intend to
burden this judgment
with an examination of each. The applicant has,
with the benefit of hindsight, scrutinised both the record of the
disciplinary
hearing and the proceedings under review in the minute
and constructed a series of submissions, observations, speculations
and
arguments, the majority of which was never raised in the
arbitration hearing nor importantly, put to the third respondent’s
witnesses for their comment. There is little purpose served in raking
over, at tedious length the evidence of the various witnesses
in
order to uncover contradictions, variances, omissions, discrepancies
differences and inconsistencies. It shows no more than
that witnesses
differ from one another in their accounts and are liable to error.
5
The nature of these averments discloses a failure by the applicant to
appreciate the essence of the review test. As I have indicated,
the
issue is not whether the commissioner was correct or incorrect in
coming to the conclusion that she did - she is entitled to
be
incorrect. It is only when the failure to have regard to relevant
evidence or taking into account irrelevant evidence is such
that an
applicant can be said to be deprived of a fair hearing can it be said
that the commissioner acted other than as a reasonable
commissioner
would. Little point would be served in the present instance in
dealing with each of the inconsistencies that the applicant
claims. I
have perused the record more than once and I am satisfied that the
commissioner’s approach was not unreasonable.
Once she made an
adverse credibility finding against the applicant and his witnesses,
it followed that the applicant’s version
fell to be rejected.
This is not one of those cases where the commissioner’s
credibility findings compelled her in one direction
and the
evaluation of the probabilities in another. The commissioner’s
approach to the latter was to consider the competing
versions as
disclosed by the evidence as a whole. She found that the third
respondent’s version was in its material respects
coherent,
credible and consistent. On the other hand, the inconsistencies, both
internal and external, in the evidence of the applicant
and his
witnesses were of such a magnitude and his version so probable that
it fell to be rejected. The applicant’s version
required the
commissioner to accept that the complaint against him was engineered
by the complainant, motivated by a fear of her
mother, in cahoots
with Heynse, who for reasons of his own had schemed to machinate the
applicant’s dismissal. The magnitude
and nature of the
conspiracy necessary between the complainant, her mother, Heynse and
Cupido to sustain the applicant’s
version beggars belief.
[26] In summary: there is
no basis on which to interfere with the commissioner’s
credibility findings, and there is no basis
for finding that or her
rejection of the evidence of the applicant’s and his witnesses
was unreasonable.
[27] The applicant relies
further on a failure by the commissioner to apply the cautionary rule
applicable to a single witness,
and submits that the commissioner
erred by finding that the complainant’s uncorroborated evidence
was to be preferred, riddled
with inconsistencies as it was. In this
regard, the applicant relies on
SA Municipal Workers Union obo
Petersen v City of Cape Town & others
(2009) 30
ILJ
1347
(LC), in which Molahlehi J set aside an arbitration award in
circumstances where the arbitrator had accepted the evidence of
a
single witness whose credibility had been seriously challenged and
whose version had not been corroborated by any other witness.
The
present matter is clearly distinguishable. The third respondent’s
case was not based only on the complainant’s
evidence. The
version proffered by the complainant was corroborated in material
respects by her mother and by Cupido, to whom she
reported the
incident. As the commissioner observed, it was also consistent with
the version that the complainant had presented
at the applicant’s
disciplinary enquiry. To the extent that the applicant contends that
the commissioner ought to have applied
the cautionary rule on account
of the nature of the incident that formed the basis of the charges
against him, the same considerations
referred to above apply. In any
event, the authorities referred to by the applicant in this regard
have been overtaken by the approach
adopted by the Criminal Law
(Sexual Offences and Related Matters) Act, 32 of 2007, which provides
that a court may not treat the
evidence of a complainant in cases
involving the alleged commission of a sexual offence with caution on
account of the nature of
the offence, nor may the court draw an
adverse inference from the complainant’s failure to make a
complaint concerning a
sexual act at the first reasonable
opportunity. The commissioner referred to the latter issue in her
award, referring to
R v Valentine
to find that a lapse in time
between the incident complained of and the reporting of it was
inconsequential.
[28] In short: the third
respondent’s case did not depend exclusively on the evidence of
the complainant; commissioner had
regard to the evidence of all of
the third respondent’s witnesses, as she was obliged to do.
Costs
[29] The court has a
broad discretion, established by s 162 of the LRA, to make an order
for costs according to the requirements
of the law and fairness. The
fact that the applicant has not been successful militates in favour
of a costs order in favour of
the third respondent. However, I accept
for present purposes that the applicant is a layperson, and that he
did not fully appreciate
the nature of these proceedings or the
hurdles that he was required to overcome. In this sense, I accept
that he has acted in good
faith and that the application was not
brought frivolously but with the purpose of advancing his interests
and to restore his reputation.
The prospect of an adverse costs order
should not serve to discourage applicants in these circumstances from
pursuing their rights.
In these circumstances, I intend to make no
order as to costs. Finally, the third respondent’s answering
affidavit is replete
with unnecessary and gratuitous remarks of a
personal nature directed at the applicant. This is hardly the
standard of professionalism
that is expected from legal
representatives in their preparation of papers filed in this court,
and is a factor that militates
against a cots order in favour of the
third respondent.
In the result, I make the
following order:
The application is
dismissed.
There is no order as to
costs.
ANDRÉ VAN
NIEKERK
JUDGE OF THE LABOUR
COURT
Date of hearing: 8
December 2010
Date of judgement: 13
September 2011.
Appearances:
For the applicant: In
person
For
the third respondent: Adv R Nyman, instructed by the state attorney.
1
CUSA
v Tao Ying Metal Industries & others
[2008] ZACC 15
;
2009 (1) BCLR 1.
2
[2007]
12 BLLR 1097
(CC)
3
At
paragraph [100] of the judgment.
4
At
paragraph 5 of the judgment..
5
See
HC Nicholas ‘Credibility of Witnesses’
(1985) 102
SALJ
32
at