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[2012] ZALCJHB 101
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South African Custodial Management (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR3075/09) [2012] ZALCJHB 101; (2013) 34 ILJ 1255 (LC) (21 September 2012)
REPUBLIC OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
JUDGMENT
Reportable
CASE NO: JR3075/09
In the matter between:
SOUTH AFRICAN CUSTODIAL MANAGEMENT (PTY) LTD
....................................
Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION
......................................................................................
First
Respondent
DONALD KGALAKE NKADIMENG,
N.O.
................................................
Second
Respondent
KLAAS KGATLE
Third Respondent
Date of hearing: 18 September 2012
Date of judgment: 21 September 2012
JUDGMENT
Review of CCMA award – commissioner applying unjustifiable
cautionary rules in relation to evidence of prisoners – latent
gross irregularity committed – award set aside – court to
finally determine matter in terms of section 145(4) in a
separate
process.
MYBURGH AJ:
Introduction
This is an
application in terms of section 145 of the LRA
1
to review the arbitration award issued by the second
respondent (‘the commissioner’). In his award the
commissioner
found that the dismissal of the third respondent
(‘Kgatle’) by the applicant (‘SACM’) was
substantively
unfair on account of Kgatle being not guilty of
misconduct, and accordingly reinstated him.
Given the order that I intend to make in this matter, I
will not deal with the merits of Kgatle’s dismissal and
evidence
relating thereto in any more detail than I have to for the
purposes of this judgment.
Relevant background
As its name denotes, SACM manages correctional centres.
One of these centres is the Kutama-Senthumule Correctional Centre
(‘KSCC’)
in Louis Trichardt which accommodates some 3000
prisoners. Kgatle was employed there as a unit manager in charge of
a unit of
prisoners.
On 6 March 2007, Kgatle was charged with three counts
of misconduct, with the only one of any relevance for present
purposes being
count two, which reads: ‘unprofessional conduct
by organising, or making available, or arranging to make available
intoxicating
substances to offender Pitso Bomi.’ In simple
terms, Kgatle was accused of supplying a prisoner (Bomi) with dagga
in or
about May 2006.
On 2 July 2008, following a marathon disciplinary
enquiry (enduring for 62 days) at which he was found guilty of the
aforesaid
charge, Kgatle was dismissed.
An arbitration hearing before the commissioner followed
intermittently for 12 days during the better part of 2009.
At the arbitration, the SACM called a number of
witnesses, including Bomi and Leso, who is a prisoner in the
Zonderwater prison
in Pretoria and had been a prisoner at the KSCC
in 2004-2005.
Bomi’s evidence was that, in about May 2006,
Kgatle had provided him with dagga as a
quid pro quo
for
having made a false statement implicating Motsoeneng (a female unit
manager) in having engaged in a sexual activity with
a prisoner, and
that he had sold the dagga to fellow prisoners. According to Bomi,
Kgatle’s scheme was motivated by the
fact that he was jilted
by Motsoeneng only being romantically interested in prisoners, and
not security staff (like himself).
Leso testified, in turn, that, in about September 2005,
he had caught Kgatle and Motsoeneng kissing, and that in return for
not
disclosing their affair, Kgatle and Motsoeneng had provided him
with dagga. This developed to the extent that the three of them
dealt in dagga for a time, until the relationship between Kgatle and
Motsoeneng soured. (The link between the incidents that
Bomi and
Leso testified about is readily apparent.)
On 1 October 2009, the commissioner issued his award.
He found that Kgatle’s dismissal was procedurally fair, but
substantively
unfair (on account of Kgatle not having been guilty of
misconduct) and ordered his reinstatement with full back-pay. In the
process,
the commissioner rejected the evidence of both Bomi and
Leso.
The present application is aimed at setting aside and
correcting this award.
Relevant aspects of the commissioner’s award
For present purposes, there are only two parts of the
commissioner’s award which need to be set out.
The first part are these findings made by the
commissioner in the process of rejecting the evidence of Leso:
‘
18.37 Some features of
[Leso’s] evidence are –
18.37.1 He would not testify until some agreement was
reached on his payment and safety.
18.37.2 One of the reasons for his refusal to testify
was that the [SACM] wanted him to speak things about [Kgatle] which
were not
true.
18.37.3 Having ultimately agreed to testify after some
two hours of persuasion, I had to wonder if his demands for payment
and guarantees
for his safety were met, and if so, what the terms
thereof were.
18.37.4 Needless to say, the evidence
of a witness who demanded payment before he would testify
must
be approached with great caution, and I did so in this arbitration
.
18.37.5 In addition to this, I have
evaluated Mr Leso’s testimony that he admitted that he was a
member of the Big 5 Gang,
he smoked dagga in prison, he sold dagga to
other prisoners for profit, he threatened a female prison official,
Ms [
Motsoeneng]
and was prepared to extort
money and dagga from [Kgatle] and Ms
[Motsoeneng]
in
exchange for not reporting them to Mr Kopman’ (emphasis added).
The second part of the commissioner’s award that
needs to be set out are these findings made by the commissioner in
relation
to Leso and Bomi having been members of the Big 5 Gang:
‘
18.40
It
would be extremely dangerous to rely on the evidence of prison gang
members
to destroy
the future of decent prison officials.
Normally,
such prisoners have nothing to lose by lying
.
18.41 Expert evidence before me was that the Big 5 Gang,
to which both Bomi and Leso belonged, collaborated with prison
officials
in order to safeguard their smuggling and sodomy. The
gang’s stated objectives included,
inter alia
, engaging
in manipulation and deception.
18.42 Both Bomi and Leso were,
by definition,
manipulators and deceivers, smugglers and sodomisers
.
18.43 Both Bomi and Leso admitted to breaking various
prison regulations, and
accepting their uncorroborated versions
would offend against the principles of fairness
, upon which this
arbitration is premised’ (emphasis added).
Latent
2
gross irregularities: the law
In his minority judgment in
Sidumo
,
3
Ngcobo J held as follows about the meaning of a gross irregularity
in terms of section 145 of the LRA:
‘
It follows, therefore, that
where a commissioner fails to have regard to material facts, the
arbitration proceedings cannot, in
principle, be said to be fair
because the commissioner fails to perform his or her mandate. In so
doing …
the
commissioner’s action prevents the aggrieved party from having
its case fully and fairly determined
.
This constitutes a gross irregularity in the conduct of the
arbitration proceedings, as contemplated in section 145(2)(a)(ii)
of
the LRA.
And the
ensuing award falls to be set aside not because the result is wrong
but because the commissioner has committed a gross irregularity
in
the conduct of the arbitration proceedings
’
(emphasis added).
4
Despite this
dictum
being in the minority judgment in
Sidumo
,
5
it is firmly entrenched in our labour law – it having been
cited with approval by the full Constitutional Court in another
judgment
6
and by the LAC in at least five judgments.
7
It is important to appreciate that a commissioner can fall foul of
this
dictum
not only by directly failing to consider material
facts (or by considering materially irrelevant ones
8
)
but also indirectly by placing erroneous constraints on the process
of evaluation of evidence, such as to cause him not to consider
material facts or issues.
Examples of gross irregularities falling into the latter category
are where a commissioner applies the wrong evidentiary test,
9
or unduly narrows the inquiry by misconstruing the scope of an
applicable rule.
10
In both of these instances, the error results (or potentially
results) in material facts or issues being ignored, and the losing
party consequently being deprived of its right to have its case
fully and fairly determined.
Recently, in
Herholdt
,
11
the LAC set the test for interference in the case of a latent
irregularity as follows:
‘
There is no requirement that
the commissioner must have deprived the aggrieved party of a fair
trial by misconstruing the whole
nature of the enquiry. The threshold
for interference is lower than that; it being sufficient that the
commissioner has failed
to apply his mind to certain of the material
facts or issues before him,
with
such having potential for prejudice and the possibility that the
result may have been different
’
(emphasis added).
12
In the case of a latent irregularity, an applicant on review thus
does not need to establish that the result of the award would
necessarily have been different if the commissioner had acquitted
himself properly, but only that it might have been.
In summary, the legal position in relation to latent irregularities
is this: where a commissioner fails to have regard to material
facts
or issues, this deprives the losing party of a fair trial and
constitutes a gross irregularity warranting the setting aside
of the
award, provided it can be said that the commissioner may have come
to a different conclusion if he had not misdirected
himself.
Reviewable defects in this matter
Returning now to the commissioner’s findings quoted above, at
least two related misdirections are clearly apparent.
Firstly, there was no evidence before the commissioner that Leso
demanded payment for his testimony (or was paid therefor) with
the
result that there was no basis for the commissioner’s decision
to treat Leso’s evidence with ‘
great caution
’.
(The representatives of the parties were
ad idem
about this
in argument before me.)
Secondly, the commissioner’s decision that it was ‘
extremely
dangerous
’ to rely on the evidence of Bomi and Leso simply
on account of their membership of a prison gang, and his
stereotyping
of them as probable liars, and as
manipulators,
deceivers, smugglers and sodomisers on the same basis, is utterly
unreasonable.
13
In respect of both sets of findings, the commissioner misdirected
himself in placing an erroneous constraint on the process of
evaluation of evidence in the form of a self-created and
unsustainable cautionary rule. (The error is analogous to a
commissioner
applying the wrong evidentiary test or misconstruing a
rule resulting in the undue narrowing of the inquiry.
14
)
Not only did this result in the commissioner not undertaking a full
analysis of the evidence in accordance with the rules of
evidence,
but the commissioner’s cautionary rules were, in effect,
biased against the acceptance of the evidence of Bomi
and Leso. In
the result, the commissioner deprived the SACM of its right to a
fair trial and thereby committed a gross irregularity
(as per Ngcobo
J’s
dictum
in
Sidumo
15
quoted above).
Turning then to the threshold for interference set in
Herholdt
,
16
given the material role that his cautionary rules played in the
commissioner’s determination of the matter, it is clear
that
he
may
have come to a different conclusion if he had not
misdirected himself. (I put it no higher than this because this is
all that
Herholdt
17
requires, and because a finding on any higher basis would
potentially compromise this court’s impartiality when it comes
to the next stage of these proceedings – see further below.)
In these circumstances, there is no need to consider the balance of
the grounds of review advanced by SACM, save to state that
a number
of them would appear to have merit.
What is to be done?
In terms of section 145(4) of the LRA, I have decided to exercise my
discretion
18
in favour of finally deciding the matter myself instead of referring
it back to the CCMA for a hearing
de novo
for these reasons:
Kgatle’s dismissal occurred as far back as 2 July 2008 (more
than four years ago);
the CCMA arbitration ran for 12 days (having been preceded by a
62-day disciplinary enquiry) over almost an entire year –
and
a repeat thereof would cause undue delay in the finalisation of the
matter;
two of the main witnesses in this matter (Bomi and Leso) are
long-term prisoners, which would obviously give rise to logistical
challenges if this matter was referred back to the CCMA;
Kgatle does not have the funds to become embroiled in another
lengthy arbitration – this being apparent from the fact that
he is being represented
pro bono
;
this court has all the necessary evidence before it, with the record
having been read in preparation for the review; and
given that a full transcription of the evidence is before court, it
is in a position to evaluate the evidence.
19
In circumstances where the review record in this matter runs to in
excess of 3500 pages and where the parties’ heads of
argument
filed to date address only the merits of the review, the parties are
in agreement that fresh heads of argument should
be drafted on the
merits of Kgatle’s dismissal and the matter set-down for a
separate hearing thereon.
Order
In the circumstances, the following order is made:
the arbitration award issued by the second respondent is set aside
on review;
the applicant shall deliver heads of argument on the merits of the
third respondent’s dismissal by 22 October 2012;
the third respondent shall deliver heads of argument on the merits
of his dismissal by 22 November 2012;
argument on the merits of the third respondent’s dismissal
will be heard at 10h00 on 30 November 2012;
costs are reserved.
___________________________________
A.T. MYBURGH
ACTING JUDGE: LABOUR COURT
For the applicant: JFA Nel (instructed by Coxwell, Steyn, Vise &
Naude Inc Attorneys)
For the third respondent: J Duba (Johannesburg Justice Centre)
1
Labour
Relations Act 66 of 1995
.
2
There
are two types of gross irregularities – those that occur
during the course of the proceedings (patent irregularities)
and
those that occur in the mind of the decision-maker in the process of
writing his judgment (latent irregularities). I am dealing
here with
the latter.
3
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
(2007) 28
ILJ
2405 (CC);
[2007] 12 BLLR 1097
(CC).
4
At
para 268.
5
Fn
3 above.
6
Commercial
Workers Union of SA v Tao Ying Metal Industries & others
(2008) 29
ILJ
2461 (CC);
[2009] 1 BLLR 1
(CC) at paras 76,
134.
7
Ellerine
Holdings Ltd v CCMA & others
(2008) 29
ILJ
2899 (LAC)
at 2905G-I;
SAMWU v SALGBC
[2012] 4 BLLR 334
(LAC) at para
10;
Gaga v Anglo Platinum Ltd & others
(2012) 33
ILJ
329 (LAC);
[2012] 3 BLLR 285
(LAC) at para 44;
Afrox Healthcare
Ltd v Commission for Conciliation, Mediation & Arbitration &
others
(2012) 33
ILJ
1381 (LAC);
[2012] 7 BLLR 649
(LAC)
at para 21;
Herholdt v Nedbank Ltd
(2012) 23
ILJ
1789
(LAC) at para 38.
8
Failing
to consider material facts and placing reliance on materially
irrelevant ones has the same effect. Both have long since
been
recognised as a ground of review. See
Johannesburg Stock
Exchange & another v Witwatersrand Nigel Ltd & another
1988 (3) SA 132
(A) at 152A-E.
9
Avril
Elizabeth Home for the Mentally Handicapped v CCMA & others
[2006] 9 BLLR 833
(LC) at 837E-F; (2006) 27
ILJ
1644 (LC) at
1650C-E (and the case collected there).
10
Gaga
(fn 7 above) at para 44.
11
F
n
7 above.
12
At
para 39. This test was first set by Van Niekerk J in
Southern Sun
Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2010) 31
ILJ
452 (LC);
[2009]
11 BLLR 1128
(LC) at para 17.
13
As
held in
S v Bull & another
;
S v Chavula & others
2002 (1) SA 535
(SCA) at para 34: ‘The
trial court attached much weight to the fact that both appellants
were gang members. In my view,
however, gang membership,
per
se
, is not necessarily indicative of
dangerousness since it is well-known that some people join gangs for
no other reason than self-protection
or peer pressure. For these
reasons the trial court misdirected itself in declaring the
appellants to be dangerous criminals.’
Read
mutatis
mutandis
, this appeal equally in the
present matter.
14
See
paras 17-18 above.
15
Fn
3 above.
16
Fn
7 above.
17
Fn
7 above.
18
For
a statement of the applicable considerations, see
Rustenberg
Platinum Mines Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2007) 28
ILJ
417 (LC) at paras 9-25 (and the cases collected
there).
19
See
generally
Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty)
Ltd & another
2002 (4) SA 408
(SCA) at para 24.