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[2012] ZALCJHB 2
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR 2327/09) [2012] ZALCJHB 2; (2012) 33 ILJ 1898 (LC) (20 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 2327/09
In the matter between:
NATIONAL UNION OF
MINEWORKERS
…....................................................
First
Applicant
MPHEZULU MAPHANGA
….......................................................................
Second
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
…...........................................................
First
Respondent
MARK HAWYES N.O.
…........................................................................
Second
Respondent
NKOMATI JOINT VENTURE
…..................................................................
Third
Respondent
Heard on: 02 November
2011
Delivered on: 20
January 2012
JUDGMENT
BOQWANA AJ
Introduction
This is an application
to review and set aside an arbitration award issued by the second
respondent (“the commissioner”)
under case number
MP8002-08 on 28 May 2009 in terms of section 145 of the Labour
Relations Act
1
(“the
LRA”). The commissioner found that the dismissal was both
substantively and procedurally fair.
The applicants filed an
application for condonation for the late filing of the review
application. The third respondent opposed
the condonation
application.
Background facts
The second applicant was
employed by the third respondent as a Load Holding Dumping (“LHD”)
Operator at the time of
his dismissal.
The second applicant was
a member of the first applicant (“the union”) and had
been elected as a shop steward employed
by the third respondent.
He was dismissed by the
third respondent subsequent to the following charges:
‘
(1)
Fraud and/or
dishonesty in that on the 11
th
September
2008 you booked (8) hours overtime which you were not entitled.
(2)
Intimidating/threatening
behaviour and/or gross insubordination in that on the 22
nd
September 2008 you acted
disrepectuly/threaningly towards your supervisor (George Ferns) and
two other company officials.
(3)
Intimidation/threatening
behaviour in that on the 25 September 2008 you threatened your
supervisor Patrick Sihlangu over the phone.
’
2
The union referred the
second applicant’s dismissal to the first respondent (“the
CCMA”). The commissioner dismissed
the application finding the
dismissal to be both substantively and procedurally fair.
The third respondent
alleges that on or about 09 September 2008, the second applicant
asked for permission from one George Ferns
(“Ferns”), a
shift supervisor, not to work night shift of 10 September 2008, as
he wished to attend a meeting scheduled
for 11 September 2008
between the union and management of the third respondent in his
capacity as a shop steward. Ferns testified
that he agreed to this
proposal and it was understood between him and the second applicant
that the shift of 10 September 2008
to the morning of 11 September
2008 would not be overtime. The second applicant however claimed for
overtime of eight hours whereas
he had not worked.
The alleged overtime
claimed appears in a gang register report dated 11 September 2011.
3
The practise with regard
to overtime was that employees who worked overtime were required to
capture their names, signature and
the amount of overtime worked on
the gang register report. The third respondent alleges that the
second applicant affixed eight
hours on the aforesaid gang register.
The second applicant disputes this.
A statement from one
Glory Nkosi (“Nkosi”) was considered at the arbitration
hearing. Nkosi stated that the second
applicant came asking for
overtime from her when she asked him to complete the gang register
report, he did not complete the
section on hours worked. The
following day,
Nkosi
asked the second applicant to complete the hour’s section.
Nkosi alleged that she did not see the second applicant
entering the
hours as she was busy doing work in her office. The gang register is
kept at the conference room in order to allow
the shift to have
access of signing even if time keeping personnel is not in their
offices.
The second applicant
contented that the numeral eight was affixed by someone else and not
him. The said figure was apparently
written with a red colour pen
whereas the rest of the document was written in a blue colour pen.
The third respondent
employed the services of the handwriting expert, Leon Esterhuizen.
Esterhuizen gave expert evidence at the
arbitration hearing.
Esterhuizen concluded that in his opinion the numerical figure eight
in the gang register reported was inserted
by the second applicant.
With regard to the
second charge, the third respondent contended that, when the second
applicant was confronted about the allegations
of claiming overtime
that was not worked, he yelled and swore at Ferns and others
adopting a threatening and an insolent stance
towards Ferns and
other officials of the third respondent. He allegedly threatened
members of the third respondent with a strike
if any charges were
brought against him.
With regard to the third
charge, Patrick Sihlangu (“Sihlangu”) testified that
whilst he was off duty he received a
phone call, which he believed
to have been from the second applicant because he recognised his
voice. The person told him that
‘either one of us must die’.
Sihlangu further testified that he later received a call from a
person who identified
herself as the second applicant’s wife.
This apparently led to Sihlangu laying a charge of intimidation
against the second
applicant with the police.
Grounds for review
The applicants allege
that the commissioner committed misconduct, gross irregularities and
had exceeded his powers. Applicants
have listed 26 grounds for
review many of which are repetitive. The list of grounds can be
summed up as follows:
The first set of
grounds deals with the allegation of fraud that the second
applicant had inserted an eight in the gang register
claiming
overtime for which he did not work. In this regard, the
commissioner’s finding is attacked on the following
grounds:
The commissioner should
have found that Esterhuizen was not well qualified as an expert and
that the evidence given by him was
not sufficient but merely based
on assumptions.
The commissioner failed
to assess and compare Esterhuizen’s evidence with direct
evidence led on behalf of the second
applicant in light of
undisputed facts before him. He failed to deal with the credibility
of witnesses and reliability of different
versions. His findings on
the probabilities of the dispute were improperly made and no
sufficient reasons were given in relation
to that.
The commissioner’s
finding that the second applicant had in fact affixed the eight for
overtime in the gang register is
not substantiated by evidence but
based on assumption. In this regard, the commissioner failed to
take into account undisputed
evidence led by the second applicant.
He failed to
investigate the use of two different colour pens used in a gang
register. This difference should have suggested
to the commissioner
that two people would have written in the gang register.
The commissioner failed
to caution the applicants to also bring an expert witness and to
warn the applicants to put their full
version to the applicants’
witnesses.
The commissioner failed
to determine whether the second applicant had worked on 11
September 2011 take into account that it
was humanly impossible to
work for 20 hours.
The second set of
grounds for review deals with allegations of intimidation and
threatening behaviour and/or alleged gross insubordination
by the
second applicant towards his supervisor George Ferns and two other
officials and subsequently to Patrick Mahlangu over
the telephone.
In this regard, the applicants allege that the commissioner took
into account irrelevant evidence of the NUM’s
branch attitude
and this constitutes misconduct and demonstrated bias on the part
of the commissioner.
The commissioner should
not have drawn an inference from the second applicant raising his
voice when answering questions under
cross-examination.
The commissioner failed
to warn the applicants’ representatives against their failure
to put their full version on third
respondent’s witnesses and
on their failure to fully respond to the third respondent’s
case against the second
applicant.
The commissioner failed
to investigate the motive behind the charges.
The commissioner failed
to determine the sanction and simply deferred to the decision of
the employer.
The third ground for
review related to the finding that the third respondent failed to
consult with the NUM before charges were
laid. This ground was
later abandoned by the applicants.
The Arbitrator’s
award
The commissioner found,
inter alia
, that the evidence led in relation to the first
charge was circumstantial in nature and that the inference to be
drawn (i.e.
the second applicant was the one who affixed the eight
in the gang register) must be consistent with the facts proven and
that
the inference must exclude all other possible inferences. The
commissioner was satisfied that the expert evidence and other
documentary
evidence relied upon by the third respondent excluded
all other inferences and found that on the balance of probabilities
the
eight was affixed by the second applicant in the gang register.
In relation to the
second and third charges, the commissioner found that the evidence
led was more direct in nature. He also took
into account the
demeanour of the second applicant and the tone of the letter written
by the NUM threatening the third respondent
with a strike if they
did not drop the charges against the second applicant.
The commissioner found
that the trust relationship had broken down and that dismissal was
an appropriate sanction.
Evaluation
The first issue to be
determined in this matter is whether the applicants have made out a
case for condonation for the late filing
of the review application.
If the condonation application is not successful that would be the
end of the matter. If it is successful,
then the court would
determine whether the commissioner’s arbitration award is
reviewable for unreasonableness or irregularity.
It is trite that the
factors that must be taken into account by the court are: (a) the
degree of lateness, (b) the explanation
for the lateness; (c)
prospects of success or
bona
fide
defence;
(d) the importance of the case; (e) the respondents’ interest
in the finality of the judgment; (f) the convenience
of the court;
and (g) avoidance of unnecessary delay in the administration of
justice.
4
In
NUM
v Council for Mineral Technology
5
it was stated that in
considering an application for condonation a court has a discretion,
to be exercised judicially upon a consideration
of all the facts,
and in essence it is a matter of fairness to both parties. Among the
facts usually relevant is the degree of
lateness, the explanation
therefore, the prospects of success and the importance of the case.
According to the court these factors
are interrelated and are not
individually decisive. What is needed is an objective conspectus of
all the facts. A slight delay
and a good explanation may help to
compensate for prospects of success which are not strong. The
importance of the issue and
the prospects of success on the other
hand may tend to compensate for a long delay. These principles
referred to by the Labour
Appeal Court are consistent with the
approach adopted in
Melane
v Santam Insurance Co Ltd
(supra).
In the
NUM
case the Labour Appeal
Court also pointed out that there is a further principle which is
applied and that is that without a reasonable
and acceptable
explanation for the delay, the prospects of success are immaterial,
and without prospects of success, no matter
how good the explanation
for the delay, an application for condonation should be refused.
6
Degree of lateness
The applicants filed
their review application on 24 August 2009 having received the
arbitration award on 03 June 2009. The six
week period expired on 15
July 2009. The application was accordingly filed almost six weeks
later than the prescribed period.
Explanation for the
delay
The explanation given by
the applicants is that the late filing of the review application is
due to human error by two union officials,
George Ledwaba
(“Ledwaba”) and one Mabapa. It is alleged that on 03
June 2009, Ledwaba received the award from the
first respondent and
immediately sent it to Burgersfort for it to be reviewed. On 22 June
2009, Mabapa called Ledwaba to discuss
the matter on the phone. The
two then agreed to send the award to the head office of the NUM.
Ledwaba did not follow
up thinking that Mabapa would lodge the review application based on
the information given to him by Ledwaba.
Nothing happened until the
second applicant inquired from Ledwaba on 18 August 2009 about the
progress of the case. Mabapa told
Ledwaba that he had instructed
Ledwaba to lodge the review application.
The NUM Head office gave
a go ahead for attorneys to be appointed. Attorneys were instructed
on 21 August 2009 and the review
application was then lodged on 24
August 2009.
This explanation is
clearly not satisfactory. The applicants cannot refer to their
failure to lodge the application timeously
as human error. In my
view, this is a clear case of negligence or not just an error.
Failure to follow up
with the hope that the other official has lodged the matter is not
an acceptable explanation. It is unfortunate
that the second
applicant finds himself embroiled in the failure by union officials
whom he depended on to lodge the review application
on his behalf.
For his part,
the
second applicant at least seems to have followed up on 18 August
2009 to check on the progress on his case. It is not clear
when the
officials advised the second applicant of the decision of the
commissioner,
if
they did, in the first place. This court has held numerous times
that there is a degree beyond which a litigant cannot hide
behind
the remissness of his legal
representative.
7
In
the circumstances, however, my inclination is to excuse the actions
of the second applicant in that he did take steps to check
on his
case, to his surprise the officials had not taken it on review and
in any case they may not even have informed him about
the outcome of
the arbitration. In view of the second applicant’s actions in
following up with the union,
it
is clear that he had always wanted to proceed with his case but was
let down by the two union officials Mabapa and Ledwaba.
The degree
of lateness also does not seem to be too excessive.
In
the matter of
South
African Transport and Allied Workers Union and Others v Conree
Transport (Pty) Ltd,
8
Bhoola
J held as follows:
‘
The degree
of lateness cannot be said to substantial in the context of the
explanation advanced and although the explanation for
the delay is
not compelling, it is in my view reasonable and acceptable. It does
not have to be ‘extremely cogent’
as the respondent
submits, but enough to persuade the court that it would be reasonable
to finally determine the main matter on
that basis. I must point out
however, that the conduct of the applicant does reveal a somewhat
dilatory approach to represent the
interests of its members
effectively.’
Bhoola J went on further
to state that:
‘
Finally,
this matter falls outside the ambit of the dictum in
Queenstown
Fuel Distributors CC v Labuschagne N.O and Others
(2002) 21 ILJ 166 (LAC) at para [24], where it was held that:
“
Condonation in the case of
disputes over individual dismissals will not readily be granted. The
excuse for non-compliance will have
to be compelling, the case for
attacking the defect in the proceedings would have to be cogent and
the defect would have to be
of a kind which will result in a
miscarriage of justice if it were allowed to stand
.”’
It is in my view in the
interest of justice to grant condonation in this case. In light of
my finding, I will not deal with other
factors that need to be taken
into account in considering whether good cause has been shown to
grant condonation.
The review application
Having granted
condonation for the late filing of the review application, I now
proceed to deal with merits of the case.
It is now settled law
that the standard to be followed in review of arbitration awards was
set out by the Constitutional Court
in the case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd
and
Others.
9
The first ground for
review relates to the finding by the commissioner that the second
applicant did indeed affix the eight in
the gang register claiming
overtime that he did not work for.
The first attack to the
commissioner’s finding is levelled at the credentials and the
evidence of the expert witness.
The commissioner has a
duty to assess expert evidence brought before him or her.
In
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another,
10
the
Supreme Court of Appeal in dealing with the approach to be adopted
when dealing with expert opinion held that:
‘
The court is
not bound to absolve a defendant from liability for allegedly
negligent medical treatment or diagnosis just because
evidence of
expert opinion, albeit genuinely held, is that the treatment or
diagnosis in issue accorded with sound medical practice.
The court
must be satisfied that such opinion has a logical basis, in other
words that the expert has considered comparative risks
and benefits
and has reached “a defensible conclusion.’’
11
At paragraph 39 of the
judgment, the SCA further said:
‘
A defendant
can properly be held liable, despite the support of a body of
professional opinion sanctioning the conduct in issue,
if that body
of opinion is not capable of withstanding logical analysis and is
therefore not reasonable
.
’
12
In
Schneider
NO and Others v AA and Another
,
13
the
Court per Davis J held that an expert witness comes to court to give
the court the benefit of his or her expertise. The commissioner
was
therefore enjoined to scrutinise the expert evidence taking into
account all the evidence placed before him.
The issues are whether
the commissioner satisfied himself of Esterhuizen’s expertise
as a witness, whether he assessed Esterhuizen’s
evidence to be
evidence that was capable of ‘withstanding logical analysis’
or he simply based his findings on assumptions
as alleged by the
applicants’ and whether he ignored all other evidence led and
simply accepted Esterhuizen’s evidence
without giving any
reasons for his conclusions.
The allegations that
Esterhuizen was not qualified are in my view without substance.
There is plenty evidence on record to substantiate
the findings of
the commissioner that Esterhuizen was qualified as an expert. His
credentials were not challenged. Esterhuizen
testified that he was a
forensic document examiner, commonly known as a handwriting expert.
He has a number formal qualifications
and his experience in the
field of forensic document examinations extends to a period of
thirty years during which time he has
examined approximately 10 000
cases. He testified that he has appeared 800 times as an expert
witness during his career
in courts of law in both the Republic of
South Africa and abroad. To suggest that the commissioner should
have found that Esterhuizen
was not qualified in the absence of any
contradicting evidence to challenge his credentials is quite bizarre
to say the least.
I am also satisfied that
the commissioner applied his mind on the evidence led by
Esterhuizen. He analysed the evidence to ascertain
whether there was
any logical basis to it. The record reveals that Esterhuizen took
the commission into great detail in explaining
the specimen figures.
He referred to the uniqueness of the figures zero and the eight
showing that they were connected in a certain
way and a sequence of
movement. The size of the zero to the eight was said to be
significant. Esterhuizen was consistent and
maintained his testimony
in his evidence under cross-
examination.
The commissioner found that Esterhuizen forensic report and
supporting documentation provided a lucid explanation
for his
findings. The commissioner took into account that his credibility
was not challenged under cross-examination. The commissioner’s
acceptance of Esterhuizen’s expert evidence cannot be said to
have been one of those falling under the band of unreasonableness.
I am also satisfied that
the commissioner did not only take into account the evidence of the
expert witness. Not all the factors
he would have taken into account
appear from the award although this
per
se
does
not render it unreasonable.
14
He did outline all the
material evidence.
In
his analysis he referred to the evidence relating to the use of a
different pen by stating that there was a distinct possibility
that
a different pen was used to affix the figure eight when the second
applicant inserted the eight the following day. To suggest
that the
commissioner did not investigate the possibility that someone else
might have affixed the eight because of the use of
different colour
pen is not correct.
The commissioner also
found that it was highly improbable that anyone else may be
motivated to complete the timesheet on behalf
of the second
applicant. This is supported by the fact that expert evidence
established that the writer of the figure eight was
the second
applicant. This could not be said to have been said to be an
assumption.
The submission that the
commissioner should have found that it was humanly impossible to
work 20 hours is irrelevant in my view.
The commissioner found that
the second applicant might have misrepresented the facts to the
third respondent with the hope that
his actions would go undetected.
The arbitration award details evidence of Ferns and the second
applicant relating to whether
the second applicant was allowed to
take overtime, whether he did work and ultimately whether he affixed
the eight in the gang
register. The statement made by Nkosi is also
quite significant. The commissioner, having been faced with the two
versions, the
forensic expert evidence seems to have provided
answers to the crux of the question which is whether the second
applicant was
the person who wrote the figure eight on the gang
register.
All of the above
indicate that the commissioner did not ignore other evidence
presented before him and merely confined himself
to the expert
evidence. The commissioner’s finding that he was satisfied on
the balance of probabilities that the numerical
8 found on the
aforementioned gang register report was written by the second
applicant was in my view supported by evidence.
The applicants also
submit that the commissioner should have warned the applicants that
they should also have called an expert
and put their version to the
applicants’ witnesses. Both applicants and the third
respondent were represented at the hearing.
I accept that the
representatives were not lawyers; however, as the representatives of
the applicants it was their duty to put
their version on the
witnesses of the third respondent and cannot blame the commissioner
for the failure to do so.
Further
to that, the applicants had known since the disciplinary hearing
stage that an expert had been called by the third respondent
to
verify the handwriting. It was their duty to ensure that an expert
was called if they wished to rebut Esterhuizen’s
evidence by
way of another expert. They cannot blame the commissioner for their
failure to call an expert. Parties need to go
to arbitration
proceedings prepared with all their witnesses. I would understand
that more would be expected from commissioners
in instances of
applicants that are not represented. In this instance, the second
applicant was represented by a reputable union
who conducts
arbitrations fairly regularly. Even if the commissioner should have
warned the applicants to call an expert, my
view is that his failure
to do so would not render his award reviewable in the circumstances.
This is because the commissioner
is enjoined to scrutinise the
evidence of the expert and not simply accept it as reliable without
applying his mind to it. As
I have already found, the commissioner
did that. He did not abrogate his duty by simply accepting what the
expert led without
applying his mind to it and made the necessary
finding thereto. This is clearly borne out by the arbitration award.
Further the
commissioner in my view applied his mind to other
factors leading to his finding on probabilities.
The allegation that the
third respondent failed to provide the original documents to the
applicants’ attorneys in order
to obtain an expert view, ‘in
preparation for the review’ does not take the case of the
applicants any further as
the applicant would not have been
permitted to bring new evidence at this late stage.
With regard to the other
charges, the commissioner found that the evidence was more direct.
He also took into account the demeanour
of the witnesses at the
arbitration hearing. The letter written by the NUM Nkomati Branch
was not a determining factor. It was
one of the factors that
influenced the finding of the commissioner. The letter was directly
relevant to the case of the second
applicant as it threatened the
third respondent with a strike if charges against the second
applicant were not dropped. The commissioner
did not attribute the
actions of the union to the second applicant he merely commented
that the tone of the letter demonstrates
an aggressive and an
arrogant attitude by the branch that has permeated down to the
structures. Mafokate led direct evidence
to the effect that the
second applicant threatened him with the following words:
‘
Chief you
must be careful with what you are busy with or else you must ask
Derrik Manyisa what happened to him.’
Direct evidence was also
led by Mafokate and Ferns to the effect that during an impromptu
meeting that took place between Mafokate,
Ferns and other two
officials of the third respondent, the second applicant became
confrontational and started shouting when
the issue of overtime
booked was broached by Mafokate. It was quite permissible for the
commissioner to take into account the
demeanour of the witnesses at
the arbitration as this goes to the credibility of the witnesses.
The commissioner observed that
the applicant raised his voice a
couple of times at the hearing. This behaviour could not be reduced
to the second applicant
speaking out loud so that everyone could
hear his voice during the proceedings as it was submitted on the
applicants’ behalf
by Mr Makinta.
Further, Sihlangu led
direct evidence that he received a call and could recognise the
voice as that of the second applicant saying
that ‘either of
us must die’. This was later followed up by a telephone call
from a woman who told him that her husband
was very angry with
Sihlangu. Sihlangu received a further telephone call on the same day
from the second applicant who said he
believed that Sihlangu was
involved in the overtime issue and he was very angry with him. It is
clear from the award that the
commissioner took all that evidence
into account before making his finding. His findings were clearly
not based on assumption
as alleged by the applicants.
In
Sidumo
Navsa J
held :
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that has
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal
...’
15
In applying this test,
Zondo JP set out a list of what is expected of commissioners and
held that:
‘
Once
the commissioner has considered all the above factors and others not
mentioned herein, he or she would then have to answer
the question
whether dismissal was, in all the circumstances, a fair sanction in
such a case. In answering that question, he or
she would have to use
his or her own sense of fairness. That the commissioner is required
to use his or her own sense of justice
or fairness to decide the
fairness or otherwise of the dismissal does not mean that he or she
is at liberty to act arbitrarily
or capriciously or to be
mala
fide
.
He or she is required to make a decision or finding that is
reasonable’.
16
The commissioner clearly
determined whether or not dismissal was an appropriate sanction. He
found that:
‘
All
accounts constitute serious misconduct. Respondent’s
disciplinary code makes provision for dismissal should an employee
be
found guilty of these categories of misconduct. Given the high degree
of dishonesty without remorse demonstrated by the Applicant,
compounded by threats of intimidation I have no hesitation finding
that the trust relationship had been irrevocably damaged. In
my view
dismissal is the only appropriate sanction.’
This
accords with the judgment of Molahlehi J in the case of
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
17
where
the learned judge
held that:
‘
...the
presence of dishonesty tilts the scales to an extent that even the
strongest mitigating factors, like long service and a
clean record of
discipline are likely to have minimal impact on the sanction to be
imposed. In other words whatever the amount
of mitigation, the
relationship is unlikely to be restored once dishonesty has been
established in particular in a case where the
employee shows no
remorse. The reason for this is that there is a high premium placed
on honesty because conduct that involves
corruption by the employees
damages the trust relationship which underpins the essence of the
employment relationship.’
It is clear that each of
the charges against the second applicant is very serious. It makes
complete sense why they would attract
a severe sanction such as a
dismissal. I therefore find no reason to interfere with the decision
of the commissioner as it falls
within the band of reasonable
decisions. I therefore cannot see any grounds that necessitate the
review and setting aside of
the arbitration award.
In the circumstances I
make the following the order:
Condonation for late
filing of the review application is granted.
The review application
is dismissed
No order as to costs.
______________
BOQWANA AJ
ACTING JUDGE OF THE
LABOUR COURT
APPEARANCES
FOR THE APPLICANTS: Adv M
E S Makinta
Instructed by: Makinta
Attorneys, Johannesburg
FOR THE THIRD RESPONDENT:
Adv M Van As
Instructed by: Cliffe
Dekker Hofmeyr Inc., Sandton
1
Act
No. 66 of 1995.
2
See
Notice to attend inquiry page 18 of the Bundle of documents
3
See
page 52 Bundle of documents
4
Foster
v Stewart Scott Inc
(1997) 18 ILJ 367 (LAC) at 369C – E;
and
Melane v Santam Insurance Company Limited
1962 (4) SA 531
(AD) at 532 B - F..
5
[1999]
3
BLLR
209
(LAC
)
at para 10.
6
Above
n5 at para 211
7
Saloojee
and Another v Minister of Community Development
1965
(2) SA 135
(A) 141 B-H;
Khan v Cadbury
SA (Pty) Ltd
[2011] JOL 27124
(LC);
Silplat (Pty) Ltd v CCMA and Others
[2008] ZALC 33
;
[2011] 8 BLLR 798
(LC) at para 54.
8
JS
554/08
[2010] ZALC 31
(2 March 2010
),
not
yet reported.
9
(2007)
12 BLLR 1097
(CC).
10
2001
(3) SA 1188
(SCA) at para 37.
11
The
same approach has been followed by the English Courts. See
Bolitho
v City and Hackney Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL) a case
which was followed by the Supreme Court of Appeal in the
Michael
and Another
supra. An example of an instance where the evidence
of an expert witness was scrutinised by the Court, found to have
significant
problems and rejected for lack of credibility and
expertise can be found in the judgment of Davis J in
Schneider v
AA
2010 (5) SA 203
(WCC) at page 213 E-F. See also
Minister
van Veiligheid and Sekuriteit v Geldenhuys
2004 (1) SA 515
(HHA)
at para 38 Representative of
Lloyds v Classic Sailing Adventures
2010 (5) SA 90
(SCA) at para 60.
12
See
Transnet Rail Engineering Bltd v Transnet Bargaining Council and
Others
case number JR 2191/09 , unreported judgement dated 1
December 2011
13
2010
(5) SA 203
(WCC) at 211J.
14
See
in this regard
County Fair Foods (Pty)
Ltd v CCMA and Others
[1999] 11 BLLR
1117
(LAC).
15
Sidumo
supra at para 78.
16
Fidelity
Cash Management Service v CCMA and Others
[2008] 3 BLLR 197
(LAC) at para 95.
17
[2007] ZALC 93
;
[2008]
3 BLLR 241
(LC)
at
para 42.