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[2012] ZALCJHB 80
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National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 2512/2007) [2012] ZALCJHB 80; (2013) 34 ILJ 945 (LC) (16 August 2012)
3
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 2512 / 2007
In the matter between:
NATIONAL UNION OF
MINEWORKERS
…............................................
First
Applicant
STEWART SOLOMON
MANTHATA
…..............................................
Second
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
…........................................................................
First
Respondent
FRANCOIS VAN DER MERWE
N.O.
….........................................
Second
Respondent
DRIEFONTEIN
CONSOLIDATED (PTY) LTD
…................................
Third
Respondent
Heard:12 July 2012
Delivered:16 August
2012
Summary:
CCMA arbitration proceedings –
Review of proceedings, decisions and awards of commissioners –
Test for review –
Section 145 of LRA 1995 – Requires the
commissioner rationally and reasonably consider the evidence as a
whole – determinations
of commissioner compared with evidence
on record – commissioner’s decision entirely reasonable
and regular –
award upheld
CCMA arbitration
proceedings – Review of proceedings, decisions and awards of
commissioners – assessment of evidence
by commissioner –
apply balance of probabilities – credibility findings by
commissioner – principles stated
CCMA arbitration
proceedings – Review of proceedings, decisions and awards of
commissioners – application for postponement
– refusal of
postponement by commissioner – decision upheld
Misconduct –
dishonesty – principles applicable to dishonest conduct –
conduct of the employee constituting an
offence of dishonesty –
dismissal justified
Misconduct –
procedural fairness – employee contending insufficient
particularity of charge and insufficient time to
prepare – not
compromising overall fair hearing – dismissal procedurally fair
JUDGMENT
SNYMAN AJ:-
Introduction
[1] This matter concerns
an application by the applicants to review and set aside an
arbitration award of the second respondent
in his capacity as a
commissioner of the CCMA (the first respondent). This application has
been brought in terms of Section 145
of the Labour Relations Act
1
(“the LRA”).
[2] The second applicant
was dismissed by the third respondent by way of a notice dated 2
August 2005, for misconduct relating to
an issue of dishonesty. In an
award dated 3 September 2007, the second respondent determined that
the dismissal of the second applicant
by the third respondent was
substantively and procedurally fair, and dismissed the applicants’
case. It is this determination
by the second respondent that forms
the subject matter of the review application brought by the
applicants.
Background facts
[3] The second applicant
was employed by the third respondent as a human resources officer,
commencing employment with the third
respondent in 1983.
[4] One of the specific
duties of the second applicant was to process medical disability
applications of employees of the third
respondent that had become
medically disabled. This entailed completing the necessary
documentation, conducting a comprehensive
and structured interview,
compiling supporting documents, making recommendations as to the
merit of the application for medical
disability, and then submitting
the same for approval. The approval of a medical disability
application has clear benefits for
the employee so applying, as the
employee, if the application is approved, will receive a package
similar to a retrenchment package.
[5] The medical
disability application process is shortly as follows:
5.1 There is a
distinction between out patients and patients in hospital, when it
comes to the process;
5.2 In the case of
patients in hospital, the doctor conducts the medical incapacity
interview with the patient in the hospital.
The patient’s ward
and bed is recorded. The medical report is then completed and the HR
department of the third respondent
is telephonically informed of the
medical incapacity. Once so informed, an officer from the HR
department will then come to the
hospital itself, and interview the
employee for medical incapacity there in hospital. The HR officer
conducting the interview will
complete a medical incapacity interview
form in hospital, and this will be signed by the officer and the
employee;
5.3 In the case of an out
patient, the employee will be referred to the third respondent’s
service department. The service
department will then contact the
relevant HR department at the employee’s shaft and schedule an
interview with the HR officer.
The HR officer will then conduct the
medical incapacity interview with the employee and complete the
relevant form in this regard,
which will be signed by both the
officer and the employee. A medical report is obtained from the
hospital in support of the application.
[6] The events giving
rise to this matter concerned one of the employees of the third
respondent, being one Fosi Mahlalela (“Mahlalela”).
It
was common cause from the evidence that Mahlalela was not feeling
well, that he wanted to stop working to go back to his home
in
Swaziland, and that he was looking to be medically boarded so that he
could be paid a package and then go home.
[7] It is also common
cause that Mahlalela then came to be introduced to the second
applicant with regard to his medical disability
application. What
happened between the second applicant and Mahlalela lies at the heart
of the matter, and is the subject of the
core factual dispute in this
matter, and will be addressed hereunder. In fact, and other than the
factual dispute as to what happened
between the second applicant and
Mahlalela, most of the background facts in this matter are either
undisputed or common cause.
[8] This matter came to
the fore on 19 May 2005, when one of the third respondent’s HR
Officers, being Hendrik Mulder (“Mulder”),
was contacted
by the client services administrator at the Leslie Williams Private
Hospital (“the hospital”), being
Belinda Robinson
(“Robinson”), enquiring about the medical termination of
Mahlalela. Mahlalela had in fact attended
hospital for treatment on
19 May 2005, but it was found to be recorded on the employee
information system that the employment of
Mahlalela had already been
terminated for medical reasons. As Robinson in the normal course was
the responsible person to actually
draw up the medical termination
letters issued by the hospital, she was concerned, as she had no
knowledge of the matter and did
not attend to the same. Robinson
required from Mulder to investigate the situation.
[9] Mulder then obtained
the supporting documents in this matter, which included a medical
termination report issued by health services
(being the report
Robinson would be responsible for).
2
This report was then sent
by Mulder to Robinson for comment, and she then informed Mulder that
the report was irregular and could
not have been done by her. There
were six individual irregularities on the form, being a difference in
date format, the form was
not properly completed, the form had the
template of a patient in the hospital ward whilst Mahlalela was an
out patient, the signature
was irregular, and the patient concerned
was never examined or treated by the Dr Dimati referred to. In any
event, and in the evidence
at the arbitration, it was common cause
that this form was entirely irregular and a forgery.
[10] Mulder then
investigated the matter further. He sought to interview both the
second applicant and Mahlalela on 24 May 2005,
being the two persons
involved in the process. In this initial interview, the second
applicant informed Mulder that it was Mahlalela
who brought the
medical report to him and asked that he be considered for medical
disability. According to the second applicant,
in terms of the
statement he gave to Mulder, is that he then conducted a proper
medical disability application process with Mahlalela,
conducted a
full and proper interview as required by the process, and that he did
not question the medical report.
[11] Mulder, as stated,
also interviewed Mahlalela. Mahlalela stated that he went to the
hospital where he was examined by a “white
doctor” who
gave him the report. Mahlalela further stated that he then brought
that report to the second applicant. Mahlalela
was asked if he could
identify the doctor, and he answered that he would be able to.
[12] Mahlalela was taken
by Mulder to the hospital. Mahlalela could not identify the doctor.
Mulder also procured the attendance
record of Mahlalela from the
hospital. It appeared that he was never examined on 6 May 2005 as
recorded on the report, but was
examined only on 17 and 19 May 2005
and was seen by Doctors Swart and Volkers
3
.
Also, Doctor Dimati referred to in the medical report was a black
female. Mahlalela was then confronted by Mulder with all these
facts,
and asked to explain himself.
[13] Mahlalela then “came
clean”, so to speak. He stated that he was feeling sick and did
not want to continue working
on the mine. He wanted to go home, but
also wanted a medical disability package. He said he came into
contact with the second applicant,
and asked the second applicant to
help him with medical disability. The second applicant then told him
that he would assist him
and he had to return later to collect the
documents. Mahlalela said that no medical disability interview was
conducted with him
by the second applicant. Mahlalela finally said
that he did initially not tell the truth, because the second
applicant told him
to leave immediately and what to say, and that he
was scared of the second applicant.
[14] Based on this
statement by Mahlalela, Mulder then pursued his investigation
further. He drew the attendance (clocking) reports
of Mahlalela and
the second applicant. He obtained all the documents relating to the
medical incapacity interview.
4
The medical incapacity
interview form was wholly inadequate and lacking in any
particularity. The form also recorded that it was
signed at 8 shaft
on 9 May 2005. The form is signed by the second applicant, and
appears to have been signed by Mahlalela. The
clocking reports showed
that both the second applicant and Mahlalela clocked in at 8 shaft on
9 May 2005 at about the same time
of just after 14h00 (14h03 and
14h05 to be precise), and Mahlalela again clocked out at 14h10.
5
Mulder concluded that it
was not possible to have a proper medical incapacity interview in
what would be less than five minutes.
[15] Mahlalela told
Mulder he did not sign any form with the second applicant. Mulder
then investigated the issue of Mahlalela’s
signature on the
medical incapacity interview form. Mulder then procured other
documents signed by Mahlalela in the past, and asked
him to sign on a
blank page as well. Mulder compared all these signatures, and in his
own view there were material discrepancies
in the signature of
Mahlalela on documents he actually signed and the signature on the
medical incapacity interview form.
6
[16] Mulder then went
further and sought to investigate other instances of medical
incapacities attended to by the second applicant.
Of importance to
this matter is the issue of one Ramoolla. In this case, the second
applicant also conducted a medical incapacity
interview, and there
was an obvious difference between the purported signature of Ramoolla
on the medical incapacity interview
form, and other documents
actually signed by Ramoolla.
7
According to Mulder, this
was once clear to him on a simple perusal of the documents, and
indicated a pattern.
[17] The matter has one
final nuance. In the documentary evidence, there is a termination
notice dated 12 May 2005 in terms of which
the employment of
Mahlalela appears to have been terminated as a result of medical
incapacity, and this document appears to also
bear the signature of
Mahlalela
8
.
Considering the denial by Mahlalela that he signed any documents in
this regard, the similarities between the purported signature
of
Mahlalela on this document and the forged signature on the medical
incapacity interview document is immediately apparent. This
termination document also bears the second applicant’s
signature.
[18] According to Mulder,
it was then clear to him that the second applicant was involved in
dishonest conduct with regard to the
issue of the processing of
medical incapacity applications. It was decided to charge the
applicant with two charges. Only the first
charge is relevant to
these proceedings, as the second applicant was not found guilty of
the second charge in the disciplinary
hearing which followed. The
relevant charge relevant in this matter is: ‘Gross dishonesty
in that you fraudulently initiated
and carried out a medical
interview with Mr Mahlala (sic) on 9 of May 2005.’
[19] The disciplinary
hearing took place on 21 July 2005. The second applicant was
represented by one of the full time shaft stewards.
The disciplinary
process was detailed and comprehensive, and the second applicant and
his representative fully participated in
the same. The hearing
endured to 27 July 2005 and on 2 August 2005 the second applicant was
then dismissed. A reading of the record
in this matter, and in
particular the disciplinary hearing record, clearly shows that second
applicant received a fair and proper
opportunity to state his case
and presented all the evidence he wanted to present, in the
disciplinary hearing. The second applicant
also made written
submissions as the merits of the matter in the disciplinary hearing,
and made submissions in mitigation. Overall,
it has to be said that
the second applicant received a fair and proper disciplinary hearing.
[20] For the purposes of
the arbitration proceedings in this matter, the third respondent also
engaged the assistance of a handwriting
expert, Landman. Landman gave
a written report,
9
and the upshot of this
report was that the signature of Mahlalela on the documents he
actually signed and the signature as reflected
on the medical
incapacity interview form was not the same and the latter signature
was forged. Landman also concluded that the
signature of Ramoolla on
that medical incapacity interview form was forged, and that the
person who forged the signature of Mahlalela
was the same person that
forged the signature of Ramoolla. This evidence was before the second
respondent in the arbitration, and
Landman also testified in the
arbitration.
[21] The applicants also
raised one procedural challenge in the arbitration. The procedural
issue the applicants raised was that
the charges against the second
applicant contained insufficient particulars to enable him to
properly prepare his defense, and
he was given insufficient prior
notice before the commencement of the disciplinary hearing to prepare
for the hearing.
[22] The second
respondent subsequently dismissed the applicants’ claim, giving
rise to these proceedings.
The relevant test for
review
[23] In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
10
Navsa AJ held that
in the light of the constitutional requirement (in s 33 (1) of the
Constitution) that everyone has the right
to administrative action
that is lawful, reasonable and procedurally fair, ‘the
reasonableness standard should now suffuse
s 145 of the LRA’.
The majority of the Constitutional Court set the threshold test for
the reasonableness of an award or
ruling as the following: ‘Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?’
[24] In
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others,
11
O'Regan J held: ‘It
is clear . . . that a commissioner is obliged to apply his or her
mind to the issues in a case. Commissioners
who do not do so are not
acting lawfully and/or reasonably and their decisions will constitute
a breach of the right to administrative
justice.’
[25] The Labour Appeal
Court in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
12
specifically interpreted
the
Sidumo
test. The Court held as
follows:
‘
To
this end a CCMA arbitration award is required to be reasonable
because, if it is not reasonable, it fails to meet the constitutional
requirement that an administrative action must be reasonable and,
once it is not reasonable, it can be reviewed and set aside.’
[26] In applying the
above principles, Van Niekerk J in
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others,
13
held as follows:
’
In
summary, s 145 requires that the outcome of CCMA arbitration
proceedings (as represented by the commissioner's decision) must
fall
within a band of reasonableness, but this does not preclude this
court from scrutinizing the process in terms of which the
decision
was made. If a commissioner fails to take material evidence into
account, or has regard to evidence that is irrelevant,
or the
commissioner commits some other misconduct or a gross irregularity
during the proceedings under review and a party is likely
to be
prejudiced as a consequence, the commissioner's decision is liable to
be set aside regardless of the result of the proceedings
or whether
on the basis of the record of the proceedings, that result is
nonetheless capable of justification.’
[27] In
Lithotech
Manufacturing Cape - A Division of Bidpaper Plus (Pty) Ltd v
Statutory Council, Printing, Newspaper and Packaging Industries
and
Others,
14
Basson J held:
‘
Even
where the reasoning of the arbitrator may be criticized, this in
itself does not render the award reviewable particularly where
the
ultimate result arrived at by the arbitrator is sustainable in the
light of the record. I must, however, qualify this statement
by
pointing out that there may be cases where, although the ultimate
conclusion reached by the commissioner or arbitrator is reasonable,
the reasoning adopted by the arbitrator or commissioner is so flawed
(even if the ultimate result is reasonable), that it cannot
be
concluded that the arbitrator duly exercised his or her functions as
an arbitrator by taking due consideration of matters that
are vital
to the dispute. In such circumstances the reviewing court may well be
inclined to review and set aside the award.’
[28] Against the above
principles and test, the award of the second respondent in this
instance must be determined, especially considering
the grounds of
review as articulated by the applicant.
Merits of the review:
substantive fairness
[29] The applicants
raised a number of issues as to why the second respondent committed a
reviewable irregularity in finding that
the dismissal of the second
applicant was substantively fair. In broad terms, the applicants
contend that the second respondent
did not evaluate and determine the
evidence properly, his decision to accept the evidence of Mahlalela
was irregular and reviewable,
the second respondent exhibited bias
against the second applicant, and that it was never proven that the
second applicant was involved
in the falsification of the medical
report. The applicants contended that the second respondent was
speculating when he came to
the conclusions that he did and made
assumptions not supported by the evidence. The applicants also
contended that the second respondent
misconstrued the issue of the
onus, in that the second respondent held it against the second
applicant when the second applicant
could not provide a reasonable
explanation for the discrepancies / irregularities referred to above.
[30] It must always be
kept in mind that what must be determined in this matter is an
application to review a determination by a
CCMA commissioner. This is
done by way of the application of the review test as defined above.
It is therefore important to consider
the actual reasoning of the
second respondent, as embodied in the award . In this regard, the
first difficulty for the case of
the applicants is that from the
award, it is clear that the second respondent preferred the evidence
of the third respondent’s
witnesses, and in particular
Mahlalela, over that of the second applicant. The second respondent
specifically said so, and motivated
why he so found. The second
respondent made proper credibility findings, as was his duty to do.
As was said in
Sasol
Mining (Pty) Ltd v Ngqeleni No and Others
:
15
‘
One of the
commissioner's prime functions was to ascertain the truth as to the
conflicting versions before him.’
In
this matter, there is simply no basis to interfere with such
credibility findings and no proper submissions were made by Mr
Maunatlala, who represented the applicants in Court, or in the
applicants’ heads of argument, as to why such interference
would be warranted (see
Rex
v Dhlumayo
1948
(2) SA 677
(A);
Fidelity
Cash Management Services (Pty) Ltd v Muvhango NO and Others
(2005) 26 ILJ 876 (LC);
Scopeful
21 (Pty) Ltd t/a Maluti Bus Services v SA Transport and Allied
Workers Union on behalf of Mosia and Others
(2005)
26 ILJ 2033 (LC);
Custance
v SA Local Government Bargaining Council and Others
(2003) 24 ILJ 1387 (LC)).
In this regard, I further refer to
Standerton
Mills (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
16
where the Court said:
‘
The
adverse credibility findings against Twala appear to have been
justified and reasonable given that her evidence was contradictory
on
a number of material aspects. Credibility issues are indeed difficult
to determine in motion proceedings such as these. The
commissioner is
undoubtedly in a better position to make a finding on this issue. In
Moodley
v Illovo Gledhow and Others (2004)
25 ILJ 1462 (LC)
at
1468C-D Ntsebeza AJ observed in this regard as follows:
'Sitting
as I do as a review judge, I fail to understand, in this case, how I
could decide to set aside an award given by an arbitrator
who sat at
the hearing, observed the witnesses, their demeanour and the manner
in which they came across. I cannot see that I can
interfere merely
on an assessment of whether she misdirected herself by reason of the
fact that she considered whether the witnesses
were credible before
determining what the probabilities were in the light of their
testimonies... I should be extremely reluctant
to upset the findings
of the arbitrator unless I am persuaded that her approach to the
evidence, and her assessment thereof, was
so glaringly out of kilter
with her functions as an arbitrator that her findings can only be
considered to be so grossly irregular
as to warrant interference from
this court.’
[31] The issue of the
importance of credibility findings made by commissioner being
accepted in this Court on review was made by
Mr Snider, who
represented the third respondent. He submitted that it was the
commissioner who sat in the arbitration proceedings,
looked at the
witnesses, listened to them, and assessed their credibility, and on
review, this Court should not readily interfere
with this, as the
commissioner was in the best position to make these findings. I agree
with these submissions. This Court should
not readily interfere with
credibility findings made by CCMA commissioners, and should do so
only if the evidence on the record
before the Court shows that the
credibility findings of the commissioner are entirely at odds with or
completely out of kilter
with the probabilities and all the evidence
actually on the record and considered as a whole. Findings by a
commissioner relating
to demeanor and candour of witnesses, and how
they came across when giving evidence, would normally be entirely
unassailable, as
this Court is simply not in a position to contradict
such findings. Even if I do look into the issue of the credibility
findings
of the second respondent in this case, I am of the view that
the record of evidence in this case, if considered as a whole, simply
provides no basis for interfering with the credibility findings of
the second respondent. There is simply nothing out of kilter
between
the evidence by the witnesses on record and the credibility findings
the second respondent came to. The evidence on record
in my view
actually supports the second respondent’s credibility findings.
The credibility findings of the second respondent
therefore must be
sustained.
[32] I am further
compelled to mention, as I pointed out to Mr Maunatlala, that I found
the evidence as presented by the second
applicant even as it appears
on the typed record to be entirely unsatisfactory. The second
applicant’s evidence, on record,
was in my view evasive to say
the least. He sidestepped several pertinent questions put to him, and
there were material contradictions
in his evidence when it came to
the critical issue as to when he actually held the medical incapacity
interview he alleged he held
with Mahlalela, and when the documents
were completed and signed. In the end, and when the second applicant
could simply not answer
what was clearly a difficult situation for
him to explain, he simply reverted to standard answers that he did
not remember. As
opposed to this, Mahlalela’s evidence was
straight forward and consistent. He never shied away from the fact
that he initially
lied to Mulder. He remained consistent in his
explanation that the reason for this was because (in essence) the
second applicant
told him to and he was afraid of the second
applicant, and this explanation remained steadfast under what, on the
record, was vigorous
cross examination. On a simple reading of the
record of evidence with regard to these two witnesses in the
arbitration, the preference
by the second respondent of the evidence
of Mahlalela over the evidence of the second applicant was entirely
rational, reasonable
and justified, even if it could be argued that
this Court should consider whether such credibility findings were
justified and
reasonable, or not.
[33] Once the evidence of
Mahlalela is to be preferred, this then leaves the applicants with a
difficulty. The reason for this is
what actually lies at the heart of
this matter. As Mr Snider correctly stated, the charge against the
second applicant did not
relate to the medical report which on the
common cause evidence was fraudulent. The charge related to the fact
that the second
applicant fabricated the medical incapacity process,
and directly linked to that, thus forged the medical incapacity
interview
form. In this regard, and where it concerns direct evidence
by witnesses, there were only two persons who can say what happened.
On the one hand is Mahlalela, who said that he was introduced to the
second applicant, had asked the second applicant for help
to obtain
medical incapacity, the second applicant stated he would help him and
advised Mahlalela to return on 9 May 2005 to collect
the relevant
documents which Mahlalela then did. Mahlalela, as stated, was adamant
there was no interview and he signed no documents.
On the other hand
it is the second applicant, who said Mahlalela came to him with the
medical report, it was not his duty to question
the medical report,
and he conducted a full and proper interview with Mahlalela who
signed all the documents. If the version of
Mahlalela is preferred,
the second applicant committed fraud, as simple as that. That is one
of the approaches followed by the
second respondent in coming to his
ultimate conclusion, and in my view properly and justifiably so. I
therefore conclude that the
second respondent’s credibility
findings are entirely sustainable and certainly reasonable.
[34] However, the case is
not just determined on the basis of credibility. As was said in
SFW
Group Ltd and another v Martell et Cie and Others.
17
’
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.’
With the issues of the
reliability of witnesses and their credibility being out of the way,
this then leaves the issue of probabilities.
The second respondent
specifically dealt with the issue of probabilities as well.
[35] The second
respondent concluded that on the probabilities, the fraudulent
medical report did not originate from Mahlalela,
the second applicant
was either involved in or knew of the untruthfulness thereof, and
that the second applicant was involved with
the initiation and/or
processing of the fraudulent medical discharge of Mahlalela. The
second respondent motivated these conclusions,
by way of thirteen
bullet points. Considering that in the end, it was undisputed that
the medical report purportedly from the hospital
dated 6 May 2005 was
in fact a forgery, the most important probabilities referred to by
the second respondent was that (1) it was
highly unlikely that
Mahlalela would obtain the fraudulent medical report from the
hospital and then thereafter report for treatment
again; (2) the
second applicant had the “knowledge, contacts and experience”
concerning matters of this nature; (3)
the clocking system showed
that on the date of the alleged interview, the second applicant and
Mahlalela spent two minutes together,
which is insufficient for an
interview and completion of documents; (4) the second applicant’s
explanation for writing No
8 shaft on the form when he contended the
interview did not happen was not true; (5) the issue of the
fraudulent signatures on
the forms of Mahlalela and Ramoolla, which
all involved the second applicant, and which were forged by the same
person as confirmed
by the handwriting expert, indicated that the
common denominator was the second applicant and this was more than
mere coincidence;
(6) the second applicant could offer no explanation
for the discrepancies in the signatures, despite conceding that it
was clear
that it existed ; (7) there was no explanation or
indication as to why Mahlalela would want to falsely implicate the
applicant;
and (8) there was no indication that any other person with
the required knowledge could be involved. On the face of it, the
probabilities
mentioned would justify the conclusion that the second
applicant indeed committed the misconduct referred to. The question
however
now is whether these probabilities arrived at by the second
respondent was done on the basis that a reasonable decision maker
could
have done, having regard to the evidence before him as a whole.
[36] The difficulty I had
with the case of the applicants, in challenging the issue of the
probabilities arrived at and considered
by the second respondent, and
as put forward by Mr Maunatlala, was that the case was more aimed at
the creation of reasonable doubt
rather that to assess and determine
probabilities. The pertinent points made by Mr Maunatlala, which will
be referred to hereunder,
were all advanced to, in my view, establish
“reasonable doubt” as to the involvement of the second
applicant in the
misconduct. This is however not the proper test in
the arbitration proceedings.
In
Minister
of Safety and Security v Jordaan t/a Andre Jordaan Transport,
18
it was
held that the inference drawn from the evidence just has to be ‘the
most natural or acceptable inference’, and
not the only
inference. In
Bates
and Lloyd Aviation (Pty) Ltd and Another v Aviation Insurance Co
19
it was
held as follows:
‘
The
process of reasoning by inference frequently includes consideration
of various hypotheses which are open on the evidence and
in civil
cases the selection from them, by balancing probabilities, of that
hypothesis
which
seems to be the most natural and plausible (in the sense of
acceptable, credible or suitable)
.’
(emphasis added)
[37]
The locus classicus on this issue is the judgement in
Govan
v Skidmore
20
where
the Court held that it was trite law that:
‘
. . .
in general, in finding facts and making inferences in a civil case,
the court may go upon a mere preponderance of probability,
even
though its so doing does not exclude every reasonable doubt, so that
one may, by balancing probabilities select a conclusion
which seems
to be the more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion
be not the only
reasonable one’.
[38]
The judgment in
Food
and Allied Workers Union and Others v Amalgamated Beverage Industries
Ltd
21
adds a
further dimension to the enquiry, where it was held as follows:
’
The
fact that the evidence is consistent with the inference sought to be
drawn does not of course mean that it is necessarily the
correct
inference. A court must select that inference which is the more
plausible or natural one from those that present themselves
(
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982 (2) SA 603
(A)). In the present case however no alternative
inferences have been advanced which have a foundation in the
evidence. It was
suggested in argument that one or more of the
appellants may have been absent, or may have been unwittingly caught
up in the events.
This, however, is no more than speculation, as
there is no evidence to suggest that this is what occurred. In my
view this is pre-eminently
a case in which, had one or more of the
appellants had an innocent explanation, they would have tendered it,
and in my view their
failure to do so must be weighed in the balance
against them.’
The judgment in
Amalgamated Beverage Industries
means that the second applicant at least had to
provide a feasible explanation to contradict the probabilities
presented by the
third respondent and as referred to above.
[39] In my view, and in
applying the above tests to the determination made by the second
respondent, this can only lead to the determination
that the
conclusions arrived at by the second respondent on the probabilities
was rational and reasonable, and thus sustainable.
There is simply no
basis to interfere with such conclusions. The fact is that all the
bullet points of probabilities set out by
the second respondent in
his award are properly founded and grounded in fact, having regard to
the evidence on record. These probabilities
are probabilities that
properly exist, and which can lead to the “natural and
plausible” conclusion that the second
applicant was involved in
the misconduct. It does not have to be correct or only inference, it
just has to be the most natural
and common sense one. The fact that
other possible scenarios / inferences may or may not exist simply
does not matter, as all the
second respondent has to do is to come to
a
conclusion which appears to be the more natural or plausible
conclusion from amongst several possible conclusions even though
that
conclusion is not the only reasonable one.
That
is clearly the approach the second respondent followed. I can simply
find no cause or reason to interfere, and I uphold the
approach and
findings of the second respondent.
[40] The above conclusion
should be the end of the matter for the applicants. The fact that the
applicants may present other possible
reasonable conclusions that may
be arrived at in considering the facts of this matter is simply not
sufficient to interfere with
the conclusions of the second
respondent. This is in effect what Mr Maunatlala tried to do. He
referred to a number of other issues,
such as the fact that the
second applicant did not know Mahlalela, that the second applicant
derived no benefit, the fact that
Mahlalela initially did not tell
the truth, that it was Mahlalela that wanted to be medically boarded
and go home, that Mahlalela
did not come looking for the second
applicant but was referred to him by one “David”, that
the second applicant would
surely have told Mahlalela not to go back
to the hospital if he (the second applicant) had fraudulently
medically boarded him,
and the second respondent should not have
accepted the evidence of the handwriting expert. The point that must
be made is that
even if all these other contentions do establish
another reasonable conclusion, it simply does not matter. The fact
remains that
the contentions relied on by the second respondent also
established a reasonable conclusion and in the absence of the
applicants
being able to show that the reasonable conclusion relied
on by the applicants was actually the most natural, plausible or
common
sense one, as seen against that of the second respondent, then
there is simply no basis or cause to interfere with the conclusion
of
the second respondent. The applicants have not made out a case that
the conclusion of the second respondent was not the most
natural,
plausible or common sense one. Furthermore, and as stated above, it
is in any event my view that the conclusion of the
second respondent
was the most natural, plausible and common sense one.
[41] Mr Maunatlala also
took issue with the approach of the second respondent that the second
applicant was unable to provide explanations
for the fraudulent
signatures or provided an alternative explanation as to how the
fraudulent medical report could have come about,
and that should be
held against the second applicant. Mr Maunatlala contended that the
onus was on the third respondent to prove
the misconduct, and this
approach of the second respondent was tantamount to the second
applicant having to prove his innocence.
I cannot agree with these
contentions of Mr Maunatlala. As stated above, the third respondent
had at least made out a prima facie
case. That meant that there was a
duty on the second applicant to advance and provide a reasonable
alternative explanation. His
failure to do so in my view counts
heavily against him. It is in fact in these circumstances proper to
refer to an explanation
in fact advanced by the second applicant with
regard to the issue of the fraudulent signature. The second applicant
contended in
the arbitration that Mahlalela signed the medical
incapacity interview form in his presence, but Mahlalela himself
deliberately
signed a false signature so he could deny the signature.
This explanation borders on the ridiculous, considering that the name
“Mahlalela” is recorded and it is Mahlalela who wants the
incapacity, and thus the one explanation the second applicant
could
offer was simply untrue. The reliance of the second respondent on the
absence of alternative explanations by the second applicant
in
finding against the applicants is in line with his duty to determine
the evidence as required by law, and is clearly reasonable
and proper
22
.
[42] With all the above
being said, I am in any event of the view that a proper and complete
consideration of the evidence on record
establishes that the second
applicant was indeed involved in the processing of fraudulent medical
discharge of Mahlalela. This
included a fraudulently completed
interview form and termination documents, and also, in my view, the
fraudulent medical report.
This is clearly the most natural and
plausible conclusion, in the circumstances, and on the facts. I wish
to highlight a few pertinent
issues:
42.1 In my view, it is
simply unlikely that Mahlalela would know how to go about processing
a medical disability employment termination.
Mahlalela would not know
what medical report to procure and what documents to complete. The
fact is that on the face of it, the
medical disability claim by
Mahlalela was properly conducted and processed, and was it not for
Mahlalela attending at the hospital
for treatment on 19 May 2005, it
would never have been discovered. The only person who could
reasonably have attended to all of
this was the second applicant,
bearing in mind that no other involvement of anyone else was shown on
the evidence. It is also my
view that the medical report could not
have been completed by someone at the hospital, as it would then not
have contained the
defects that it did. It was however completed by
someone who knew what these forms look like, and again, reasonably
speaking, this
could only have been the second applicant;
42.2 The next important
issue was also specifically touched on by the second respondent. This
is the fact that if Mahlalela was
actively involved in the processing
of a fraudulent medical disability claim, he would not have attended
at the hospital for treatment
on 19 May 2005. This shows that
Mahlalela did in fact not know that his termination of employment had
been processed and what it
meant. It is clear that events were
transpiring without his knowledge and involvement. The termination of
employment of Mahlalela
was effected on the third respondent’s
system by someone that knew how to do it. Once again, this could only
have reasonably
been the second applicant;
42.3 The medical
disability interview form is also of importance. It was common cause
that the second applicant was responsible
for it, and completed it.
It was also the second applicant’s duty to assess the claim,
and to recommend it or not. The undisputed
testimony was that the
third respondent to a material extent entrusted the recommendations
made with regard to medical disability
applications being successful
or not to the second applicant, it being a specific part of his
duties. The second applicant, on
the form in question, did recommend
that the claim of Mahlalela be approved. However, and on the face of
the form itself, it appears
to be entirely inadequate and lacking in
particularity. Then there is the issue of the fraudulent signature of
Mahlalela on the
form. According to the form, the interview was held
on 9 May 2005, but the clocking records of the third respondent
showed that
the second applicant and Mahlalela spent less than five
minutes together on the same day, which is wholly inadequate for the
conducting
on an interview. Once again, the second applicant was
clearly directly involved in all of this;
42.4 The second
applicant, being faced with the above difficulty, and with reference
to the evidence on record, then seeks to offer
a number of versions.
The first is that the interview took place on a different date than 9
May 2005, and this date was only the
date when the form was
completed. The problem of course with this version is that the second
applicant and Mahlalela only met on
the one day for the “interview”
(as alleged by the second applicant), and this explanation would have
meant that, considering
the second applicant’s contention that
Mahlalela actually signed the form in his presence, that Mahlalela
would have had
to return later to sign the form, which did not
happen. The second applicant then contended that he could not
remember when the
form was signed and the interview was held, which
explanation in the face of the clocking record is simply
unacceptable;
42.5 The second applicant
also tried to explain away the completion of the shaft number as
number 8 of the form. The second applicant
contended that the
interview took place at number 7 shaft, and stated that Mahlalela in
his evidence also confirmed that the interview
took place at number 7
shaft. This explanation was clearly made to get away from the
clocking records referred to above, which
records entirely negate the
existence of an interview. In my view, and considering the evidence
on record, the second applicant’s
explanation in this instance
is a deliberate misstatement of the evidence. On the record, what
Mahlalela said was that he first
met the second applicant at number 7
shaft, and it is there that he said to the second applicant that he
wanted medical boarding
and that the second applicant then told him
to return later the week to collect the documents. Nowhere in the
evidence is it recorded
as to where Mahlalela actually returned to
collect the documents, but it was common cause that he did and that
he did meet the
second applicant on that day, and there were no
further meetings thereafter. This could therefore have only been on 9
May 2005
at number 8 shaft, as this corresponds with the clocking
records, the date on the form and the place on the form. In my view,
the
second applicant’s version in this regard was properly
rejected. The second applicant added a further explanation that the
“practice” was that he completed on the form as the shaft
number not the shaft where the interview was held, but where
the
employee came from (Mahlalela came from 8 shaft), which explanation,
on the simple reading of what the form template records,
is entirely
unacceptable. Boshoff who testified for the third respondent disputed
that such practice ever existed, and there is
no reason not to
believe his evidence;
42.6 This then leaves the
issue of the termination of employment form signed on 12 May 2005.
This form also bears a purported signature
of Mahlalela, which is
also fraudulent. It also was completed by, and bears the signature of
the second applicant. When Mahlalela
could have signed this document
is left entirely unexplained by the second applicant, save where the
second applicant stated under
cross examination that he “called”
Mahlalela later to collect all the forms, which version was never
raised or put
before and flew in the face of what was really common
cause. There were, as stated above, no further meetings between the
second
applicant and Mahlalela. The most plausible and logical
conclusion is that it was again the second applicant that forged this
document;
42.7 This then finally
brings the evidence of the handwriting expert, Landman, into play,
and there is no reason to reject such
evidence. The evidence was that
the signatures of Mahlalela were forged, and it was the same person
who forged the signatures of
Mahlalela and Ramoolla. The only common
denominator was the second applicant;
42.8 From the above
factors alone, it is my view that the most plausible and natural
conclusion in this instance is that Mahlalela
wanted to receive a
medical disability employment termination when he was not entitled to
this, and it was the second applicant
who assisted him by forging the
process to enable Mahlalela to get this. It is my view that the
interview was never held by the
second applicant, and the second
applicant just met Mahlalela on 9 May 2005 to hand him the documents.
Mahlalela was not aware
of what this meant, which is why he went to
the hospital later for treatment. Whatever the motive of the second
applicant was for
doing this is irrelevant.
[43] As the second
applicant in fact committed fraud, his dismissal was justified. In
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others,
23
it was held:
’
The
general principle that conduct on the part of an employee which is
incompatible with the trust and confidence necessary for
the
continuation of an employee relationship will entitle the employer to
bring it to an end is a long-established one. See
Council
for Scientific and Industrial Research v Fijen
(1996)
17 ILJ 18 (A)
at
26E-G’
[44]
In
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
24
the Court held as
follows, which in my view is quite apposite to the current matter:
’
Dismissal
is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why supermarket
shelf packers who steal small items are routinely
dismissed. Their
dismissal has little to do with society's moral opprobrium of a minor
theft; it has everything to do with the
operational requirements of
the employer's enterprise’
and:
’
Where,
as in this case, an employee, over and above having committed an act
of dishonesty, falsely denies having done so, an employer
would,
particularly where a high degree of trust is reposed in an employee,
be legitimately entitled to say to itself that the
risk of continuing
to employ the offender is unacceptably great.’
[45] The second applicant
clearly did not act with the necessary fiduciary duty, as required by
law, especially having regard to
his position, and the interests of
the employer (third respondent) he was required to serve. In this
respect, reference is made
to
Sappi
Novoboard (Pty) Ltd v Bolleurs
25
where it was held as
follows:
‘
It
is an implied term of the contract of employment that the employee
will act with good faith towards his employer and that he
will serve
his employer honestly and faithfully:
Pearce
v Foster and Others
(1886) QB 356
at 359;
Robb
v Green
(1895) 2 QB 1
at 10;
Robb
v Green
(1895) 2 QB 315
(CA) at 317;
Gerry
Bouwer Motors (Pty) Ltd v Preller
1940 TPD 130
at 133;
Premier
Medical and Industrial Equipment Ltd v Winkler and Others
1971 (3) SA 866
(W) at 867H. The relationship between employer and
employee has been described as a confidential one (
Robb
v Green
at 319). The duty which an employee owes his employer is a fiduciary
one 'which involves an obligation not to work against his
master's
interests' (
Premier
Medical and Industrial Equipment Ltd v Winkler
at
867H;
Jones
v East Rand Extension Gold Mining Co Ltd
1917 TH 325
at 334). If an employee does 'anything incompatible with
the due or faithful discharge of his duty to his master, the latter
has
a right to dismiss him': Pearce v Foster at 359. In
Gerry
Bouwer Motors (Pty) Ltd v Preller
it was said at 133: 'I do not think it can be contended that where a
servant is guilty of conduct inconsistent with good faith
and
fidelity and which amounts to unfaithfulness and dishonesty towards
his employer the latter is not entitled to dismiss him.'
[46] Similarly, reference
is made
Carter
v Value Truck Rental (Pty) Ltd
26
where the Court held as
follows:
’
It
is trite that, both at common law and under the equitable
dispensation created by the LRA, the employment relationship is
regarded
as one of the highest good faith:
Council
for Scientific and
Industrial
Research v Fijen
(1996) 17 ILJ 18 (A) at 26B-F;
Standard
Bank of SA Ltd v Commission for Conciliation, Mediation and
Arbitration
and
Others
(1998) 19 ILJ 903 (LC) at 913E-H;
Sappi
Novoboard (Pty) Ltd v Bolleurs
(1998) 19 ILJ 784 (LAC) at para 7 and the copious authorities there
cited. The success of any enterprise depends on the absolute
integrity and honesty of its employees, and any form of dishonesty or
deception potentially may have more serious and far-reaching
consequences at executive level: see, for example,
JD
Group Ltd v De Beer
(1996) 17 ILJ 1103 (LAC) at 1112-13. 'Honesty' in the employment
context does not merely mean refraining from criminal acts; it
embraces any conduct which involves deceit.’
[47] Clearly, therefore,
the third respondent was entitled to dismiss the second applicant,
and such dismissal was substantively
fair. The second respondent’s
conclusion to this effect was thus reasonable and justified, and
there is no basis to review
and set aside this conclusion.
The merits of the
review: procedural fairness
[48] As set out above,
the case of the applicants when it came to the procedural fairness of
the dismissal of the second applicant
was the issue of sufficient
particularity in respect of the charges against the second applicant
and the issue of sufficient prior
notice of the disciplinary hearing.
It is my view that this case has no substance. I am satisfied that
overall, the second applicant
received a fair and proper disciplinary
enquiry. That is the true and proper test.
[49] The second
respondent fully dealt with this issue. The second respondent
recorded in his award that the second applicant never
raised, in his
disciplinary hearing, that he was uncertain with regard to the
charges or required clarification in respect of the
same. The second
respondent further concluded that the second applicant was an
experienced industrial relations practitioner. The
second respondent
finally concluded that the hearing was in any event delayed on a
number occasions. All of these conclusions of
the second respondent
are justified and confirmed by the evidence on record.
[50] The documentary
evidence shows that the second applicant was first charged on 25 June
2005 and the disciplinary hearing only
commenced on 21 July 2005 and
was completed on 27 July 2005, after having been moved on 7 July and
20 July 2005 .
27
In my view, this is more
than sufficient time to prepare for the disciplinary hearing. Also,
the entire record of the disciplinary
hearing was placed before the
second respondent and formed part of the evidence in this matter.
This evidence shows that the second
applicant was properly
represented by a union representative of his choice who never raised
an issue about there being insufficient
time to prepare or at least
asked for an adjournment so as to give the second applicant more time
to prepare. The record of the
disciplinary hearing shows that the
second applicant and his representative fully participated in the
disciplinary hearing. There
is thus no merit in the contention by the
applicants that the second applicant had insufficient time to prepare
for the disciplinary
hearing.
[51] The next issue is
the issue of the insufficient particularity of the charge. The second
respondent recorded in his award that
the manner in which the charge
was formulated coupled with the preceding investigation in which the
second applicant was involved
in, could have left the second
applicant with no “reasonable uncertainty” about what was
involved and what the allegations
of misconduct were that he was
required to meet. I agree with this conclusion of the second
respondent. The charge is actually
quite clear – the second
applicant fraudulently initiated and conducted a medical incapacity
interview with Mahlalela on
9 May 2005. As Mr Snider for the third
respondent correctly points out, this was always the issue, remained
the issue, and everyone
knew it was the issue. This is clearly
evident from the extensive record of the disciplinary hearing.
[52] The final issue to
refer to is that the record of evidence in the arbitration clearly
showed that the second applicant was
indeed an experienced industrial
relations practitioner. He had been directly involved in a
significant number of disciplinary
hearings. He clearly knew what he
rights of employees in such disciplinary hearings were. He was simply
not an uninformed and ignorant
employee, and the second applicant was
well versed in disciplinary hearing process. Despite this being the
case, the second applicant
never, in the disciplinary hearing, raised
any issues of procedural irregularity as raised in the arbitration. I
conclude from
this that the procedural issues raised were simply
raised to bolster the applicants’ case at arbitration, and were
not actually
real issues.
[53] On the evidence, in
any event, there is simply no indication or any particulars of any
prejudice the second applicant may have
suffered in the conduct of
the hearing because of these issues mentioned.
[54] All the
determinations the second respondent made on the issue of procedural
fairness are thus determinations a reasonable
decision maker could
come to, and thus are simply not reviewable. In fact, my view is that
there determinations are entirely correct,
having regard to the
evidence on record.
[55] Even if it may be
considered that the issue raised by the applicants could feasibly
constitute some or other form of procedural
irregularity, this does
not by automatic consequence mean that the dismissal of the second
applicant was procedurally unfair. Reference
is made to
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation, Mediation and Arbitration and Others
28
,
where the Court held as follows:
‘
To
some extent, chapter VIII of the Labour Relations Act represents a
codification of the jurisprudence that preceded it. The Act
itself is
silent on the content of any right to procedural fairness, it simply
requires that an employer establish that a dismissal
was effected in
accordance with a fair procedure. The nature and extent of a right to
fair procedure preceding a dismissal for
misconduct is spelt out in
specific terms in the Code of Good Practice: Dismissal in schedule 8
to the LRA.
.
. . .
It
follows that the conception of procedural fairness incorporated into
the LRA is one that requires an investigation into any alleged
misconduct by the employer, an opportunity by any employee against
whom any allegation of misconduct is made, to respond after
a
reasonable period with the assistance of a representative, a decision
by the employer, and notice of that decision.
This
approach represents a significant and fundamental departure from what
might be termed the 'criminal justice' model that was
developed by
the Industrial Court and applied under the unfair labour practice
jurisdiction that evolved under the 1956 Labour
Relations Act. That
model likened a workplace disciplinary enquiry to a criminal trial,
and developed rules and procedures, including
rules relating to bias
and any apprehension of bias, that were appropriate in that context.
The
rules relating to procedural fairness introduced in 1995 do not
replicate the criminal justice model of procedural fairness.
They
recognize that for workers, true justice lies in a right to an
expeditious and independent review of the employer's decision
to
dismiss, with reinstatement as the primary remedy when the substance
of employer decisions is found wanting. For employers,
this right of
resort to expeditious and independent arbitration was intended not
only to promote rational decision making about
workplace discipline,
it was also an acknowledgment that the elaborate procedural
requirements that had been developed prior to
the new Act were
inefficient and inappropriate, and that if a dismissal for misconduct
was disputed, arbitration was the primary
forum for determination of
the dispute by the application of a more formal process.
The
balance struck by the LRA thus recognizes not only that managers are
not experienced judicial officers, but also that workplace
efficiencies should not be unduly impeded by onerous procedural
requirements. It also recognizes that to require onerous workplace
disciplinary procedures is inconsistent with a right to expeditious
arbitration on merits. Where a commissioner is obliged (as
commissioners are) to arbitrate dismissal disputes on the basis of
the evidence presented at the arbitration proceedings, procedural
requirements in the form that they developed under the criminal
justice model are applied ultimately only for the sake of procedure,
since the record of a workplace disciplinary hearing presented to the
commissioners at any subsequent arbitration is presented
only for the
purpose of establishing that the dismissal was procedurally fair. The
continued application of the criminal justice
model of workplace
procedure therefore results in a duplication of process, with no
tangible benefit to either employer or employee.
.
. . .
On
this approach, there is clearly no place for formal disciplinary
procedures that incorporate all of the accoutrements of a criminal
trial, including the leading of witnesses, technical and complex
'charge-sheets', requests for particulars, the application of
the
rules of evidence, legal arguments, and the like.’
[56] Reference is also
made to
Nitrophoska (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2011) 32 ILJ 1981 (LC);
Munnik Basson Dagama Attorneys v Commission for Conciliation,
Mediation and Arbitration and Others
(2011) 32 ILJ 1169 (LC);
Food and Allied Workers Union on behalf of Kapesi and Others v
Premier Foods Ltd t/a Blue Ribbon Salt River
(2010) 31 ILJ 1654
(LC) with regard to the above.
[57] In the end,
therefore, there is simply no merit in the applicants’
contention of procedural unfairness, on the grounds
raised. These
grounds of review therefore fall to be dismissed.
I
thus conclude that the
dismissal of the second applicant was
procedurally fair. The second respondent’s conclusion to this
effect was thus reasonable
and justified, and there is no basis to
review and set aside this conclusion.
The issue of the
postponement
[58] The applicants in
their review application raised one final issue for consideration.
This issue concerned the second respondent’s
refusal of a
postponement to the applicants at the conclusion of the arbitration
proceedings on 27 August 2007 so the applicant
could procure the
testimony of their own handwriting expert. The applicants contended
that his materially prejudiced the conduct
of the applicants’
case.
[59] It must immediately
be said that this postponement was sought after all the available
evidence in this matter had been led,
and the case was in essence
concluded. Furthermore, it is trite that a postponement is not an
issue of right, but an indulgence
sought by the applicants, and as
such, must be properly substantiated and motivated. The second
respondent is then required to
exercise a judicial discretion in
determining such indulgence sought. It is apposite to first refer to
the judgment in
Carephone
(Pty) Ltd v Marcus No and Others
29
where the Court held as
follows:
‘
In
a court of law the granting of an application for postponement is not
a matter of right. It is an indulgence granted by the court
to a
litigant in the exercise of a judicial discretion. What is normally
required is a reasonable explanation for the need to postpone
and the
capability of an appropriate costs order to nullify the opposing
party's prejudice or potential prejudice. Interference
on appeal in a
matter involving the lower court's exercise of a discretion will
follow only if it is concluded that the discretion
was not judicially
exercised (
Madnitsky
v Rosenberg
1949 (2) SA 392
(A) at 398 9).’
[60] The general
principles applicable to postponements was aptly summarized in the
judgment of
Insurance
and Banking Staff Association and Others v SA Mutual Life Assurance
Society,
30
where it was held as
follows, and which can equally be applied in this instance:
‘
In
an application for postponement, the legal principles established in
the High Court over the years apply equally in practice
in the Labour
Courts. For the purpose of the present application, the following
principles apply:
(a)
The trial judge has a discretion as to whether an application for
postponement should be granted or refused. (
R v Zackey
1945 AD
505
;
Myburgh Transport v Botha t/a SA Truck Bodies
1991 (3) SA
310
(Nm)).
(b)
That discretion must at all times be exercised judicially. It should
not be exercised capriciously or upon any wrong principle,
but for
substantial reasons. (
R v Zackey; Myburgh Transport; Joshua v
Joshua
1961 (1) SA 455
(G) at 457D.)
(c)
The trial judge must reach a decision after properly directing
his/her attention to all relevant facts and principles. (
Prinsloo
v Saaiman
1984 (2) SA 56
(O);
Johannesburg Stock Exchange and
Another v Witwatersrand Nigel Ltd and Another
1988 (3) SA 132
(A).)
(d)
An application for postponement must be made timeously, as soon as
the circumstances which might justify an application become
known to
the applicant. However, in cases where fundamental fairness and
justice justify a postponement, the court may in an appropriate
case
allow such an application for postponement, even though the
application was not timeously made. (Myburgh Transport ; Greyvenstein
v Neethling
1952 (1) SA 463
(C).)
(e)
The application for postponement must always be bona fide and not
used simply as a tactical manoeuvre for the purpose of obtaining
an
advantage to which the applicant is not legitimately entitled.
(f)
Considerations of prejudice will ordinarily constitute the dominant
component of the total structure in terms of which the discretion
of
a Court will be exercised. What the court has primarily to consider
is whether any prejudice caused by a postponement to the
adversary of
the applicant for a postponement can fairly be compensated by an
appropriate order of costs or any other ancillary
mechanisms.
(Herbstein and Van Winsen The Civil Practice of Superior Court in SA
(3 ed) at 453; Myburgh Transport.)
(g)
“The Court should weigh the prejudice which will be caused to
the respondent in such an application if the postponement
is granted
against the prejudice which will be caused to the Applicant if it is
not.’
[61] In this case, and
applying the above principles, I can find no fault with the manner in
which the second respondent exercised
his discretion and refused to
grant the indulgence sought by the applicants by refusing the
postponement. The record of evidence
shows that both parties had the
opportunity to make proper submissions to the second respondent in
this regard. The gist of the
grounds for postponement advanced by the
applicants was that their own handwriting expert at the very last
minute indicated that
he had other commitments and was unable to
testify. Despite the fact that this reason is per se unacceptable, as
surely a properly
arranged and reserved expert witness cannot have
last minute alternative commitments, the second respondent
nonetheless dealt with
the issue. The second respondent took issue
with the fact that there was not even an expert witness report
prepared that was submitted
beforehand, as the third respondent did
with its expert witness. The second respondent concluded that the
applicants had more than
sufficient time to ensure the attendance of
an expert witness. The second respondent concluded that the matter
had been dragged
out and it was in the interests of justice not to
prolong the issue any further. All these conclusions of the second
respondent,
are in my view, a proper exercise of his discretion in
respect of the issue of the postponement, and unassailable on review.
[62] I did however
consider the issue of the postponement, in any event, on the merits
thereof. On the record,
31
the second applicant’s
attorney states that the hearing date was reserved with the expert.
However, and even as at the date
of the final hearing, the expert’s
report had still not been completed, and all that existed was a
“rough report”,
whatever this may mean. The second
applicant’s attorney further stated that the expert then “made
a mistake”
when he accepted the instruction and reserved the
date, and when pressed by the second applicant’s attorney to
attend the
arbitration, the expert stated that he would not and would
attend the other matter he was attending to. The second applicant’s
attorney then said that he “was considering his options”
and may even engage another expert. I find these grounds for
seeking
a postponement, right at the end of the matter, to be entirely
unacceptable. In my view, there was simply no basis in granting
the
second applicant’s request for a postponement, for the
following reasons:
62.1 The arbitration
actually already commenced at the end of March 2007. The third
respondent’s expert had testified almost
three months before
the final hearing in this matter, and the third respondent’s
expert report had been available to the
second applicant for almost
two years. It is simply untenable to suggest that at the very end of
the case that the matter be further
postponed in circumstances where
there is not yet even an expert report available, and with no real
prospect of such report being
prepared soon, seeing the second
applicant’s attorney was considering engaging another expert;
62.2 Another
consideration is the issue of prejudice. The fact is that the third
respondent’s expert had concluded his testimony.
The
alternative expert report should have been discovered by then, so it
could be put to the third respondent’s expert for
his comment.
To at the final stage of the hearing, and after all evidence of the
third respondent had been concluded and presented,
to then seek to
for the first time introduce an expert report is simply unacceptable;
62.3 On the documents on
record,
32
the second applicant was
actually forewarned by the third respondent’s attorneys as to
the issue of the difficulties with
its expert witness. It is recorded
on 4 July 2007 by the third respondent’s attorneys that for the
second applicant to now
seek to introduce an expert report after the
third respondent had closed its case is improper, in bad faith and
prejudicial to
the third respondent. I agree. It is further recorded
that even as at this date, the third respondent has still not even
been provided
with an expert report, and that the third respondent
would be entitled to have such expert report before the matter
proceeded,
at the very least, so it could consult its own expert on
it, and possibly recall the expert. Once again, I agree with these
statements.
On 13 July 2007, the third respondent’s attorneys
asked for particulars about the second applicant’s expert
witness,
and that it be favoured with the written opinion before the
recommencement of the matter on 27 August 2007.
33
On 18 July 2007, the
third respondent’s attorneys requested that it be furnished
with the expert opinion by 6 August 2007,
so it could consult its own
expert on it and on 20 and 24 July 2007 again asked for the name of
such expert.
34
On 7 August 2007, the
third respondent’s attorneys again asked for the expert report
and the expert’s particulars, and
recorded its prejudice in not
having received the same despite several requests.
35
The same request was
repeated on 16 and 17 August 2007.
36
Not once was these
requests responded to, or complied with by the second respondent’s
attorney. This conduct is entirely unacceptable.
62.4 The first response
from the second applicant’s attorney is a letter on 23 August
2007, recording its expert is unavailable,
and requesting that the
matter be postponed because of this. The second applicant’s
attorney did not even tender costs for
this postponement, still did
not provide even the expert report or the identity of the expert, and
adopted this approach of a postponement
being sought despite
recording on 17 August 2007 that the second applicant was ready to
proceed with the arbitration
37
.
The third respondent objected to the matter being postponed and still
the second applicant’s attorneys did not even prepare
and
submit a proper postponement application or even provide the
particulars asked for.
62.5 It is clear from the
above that the second respondent was entirely justified and correct
in refusing to allow the matter to
be delayed any further.
[63] Accordingly, there
is no reviewable irregularity in this instance in the second
respondent refusing to postpone the matter
on 27 August 2007. I fully
agree with the reasoning of the second respondent, and the conclusion
he came to. This ground of review
of the applicants therefore also
fall to be rejected.
[64] Therefore, and in
conclusion, there is simply no basis to review and set aside the
award of the second respondent, and the
award of the second
respondent in its entirety is upheld. I can see no reason why costs
should not follow the result in this matter.
Order
[65] In the premises, I
make the following order:
1 The review application
of the applicants is dismissed with costs.
____________________
Snyman AJ
APPEARANCES:
For the Applicant: Adv L
Maunatlala
Instructed by: E S
Makinta Attorneys
Third Respondent: Adv A
Snider
Instructed by: Webber
Wentzel Attorneys
1
66
of 1995.
2
Bundle
of documents page 131.
3
Bundle
of documents page 142 – 143.
4
Bundle
of documents page 120 – 128.
5
Bundle
of documents page 151 – 152.
6
For
these other documents see bundle of documents page 144 ; 199
7
Bundle
of documents page 172 – 183; 198.
8
Bundle
of documents page 130.
9
Bundle
of documents page 185 – 188.
10
(2007)
28 ILJ 2405 (CC)
11
(2008)
29 ILJ 2461 (CC)
12
(2008)
29 ILJ 964 (LAC)
13
(2010)
31 ILJ 452 (LC)
14
(2010)
31 ILJ 1425 (LC) at para 18.
15
(2011)
32 ILJ 723 (LC) at para 9.
16
(2012)
33 ILJ 485 (LC) at para 18.
17
2003
(1) SA 11
(SCA) at para [5]
18
(2000)
21 ILJ 2585 (SCA) at 9H.
19
1985
(3) SA 916
(A) at 939I-J.
20
1952
(1) SA 732
(N) at 734A-C.
21
(1994)
15 ILJ 1057 (LAC) at 1064C-E.
22
See
also
Aluminium City (Pty) Ltd v Metal and
Engineering Industries Bargaining Council and Others
(2006) 27 ILJ 2567 (LC)
23
(2010)
31 ILJ 2475 (LC) para [23]
24
(2000)
21 ILJ 1051 (LAC) at para 22 and 25.
25
(1998)
19 ILJ 784 (LAC).
26
(2005)
26 ILJ 711 (SE) at par [44].
27
See
Bundle of documents pages 163 – 166.
28
(2006)
27 ILJ 1644 (LC) 1651 C-D.
29
(1998)
19 ILJ 1425 (LAC) at 1439 [54].
30
(2000)
21 ILJ 386 (LC) at 394-5.
31
Transcribed
record page 277 – 284.
32
Bundle
of documents pages 4 – 5.
33
Bundle
of documents pages 9 – 10.
34
Bundle
of documents page 15 ; 16 ; 17.
35
Bundle
of documents page 23.
36
Bundle
of documents page 26 ; 30.
37
See
Bundle of documents pages 28 ; 32.