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[2013] ZALCJHB 114
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South African Revenue Services v Commission for Conciliation Mediation and Arbitration and Others (JR658/12, J1086/12) [2013] ZALCJHB 114; (2014) 35 ILJ 249 (LC) (24 May 2013)
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE NO
: JR658/12 & J1086/12
DATE
: 2013/05/24
In the
matter between
SOUTH
AFRICAN REVENUE SERVICES
................................................................
Applicant
and
CCMA
............................................................................................................
First
Respondent
C A
MANNDE, N.O.
.................................................................................
Second
Respondent
LEGATO
BENNY RAMOKGOLA
................................................................
Third
Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
STEENKAMP J
:
This is an
application to have an arbitration award dated 19 February 2012
reviewed and set aside. Together with this application,
an
application by the employee, Mr Benny Ramokgola, who is cited as the
third respondent in these proceedings, is also enrolled
where Mr
Ramokgola is the applicant. That matter is enrolled under case number
J1086/12 in which the employee asks the court to
have the arbitration
award made an order of court in terms of Section 158(1)(c) of the
Labour Relations Act.
The
arbitration award arises from the dismissal of the employee by his
employer, The South African Revenue Services or SARS, in
circumstances where it was alleged that the employee had solicited
and received a bribe from a member of the public, Mr Willie
Boltmann.
At the
arbitration SARS led four witnesses, being Mr Boltmann; a clearing
agent, Ms Cornelia Smith; a Mr Alex Mosia, the team commander;
and Ms
Tricia Alfred, who was initially alleged to have been an accomplice
to the bribe.
However,
in an internal disciplinary hearing chaired by an outside chairperson
appointed by Tokiso Dispute Resolution, it was found
that Ms Alfred
did not participate in the misconduct. The same chairperson, however,
found that Ramokgola had committed the misconduct
and that is what
led to his dismissal.
Mr
Ramokgola gave evidence on his own behalf at the arbitration. He did
not call any witnesses.
At the end
of the arbitration the arbitrator found that the employee's dismissal
was substantively unfair and ordered SARS to reinstate
him.
The
arbitrator came to that conclusion after considering the evidence
before him. Firstly, and perhaps most importantly, he found
that the
evidence of Tricia Alfred, who was called as a witness by SARS, was
destructive of SARS's case. The arbitrator went so
far as to find:
"Tricia's testimony absolved the [employee] of the charge."
It is so
that Ms Alfred did not support SARS's case. She denied having seen
Ramokgola accepting an amount of R1 000 in R200
notes from
Boltmann as was alleged by Boltmann, and thus by SARS. However, when
SARS's representative at the arbitration, Mr Lekganyane,
indicated to
the commissioner that Ms Alfred appeared to be a hostile witness, the
commissioner said the following:
"No she is not. She is not. From the onset you said tell me what
happened on the day in question. She explained. No hostility
from the
witness. The witness is just explaining what she heard."
Under
those circumstances Mr Lekganyane, who is not legally trained,
carried on with leading the evidence of Ms Alfred in circumstances
where she was not declared a hostile witness.
The
arbitrator then took into account the evidence of Ms Smith, the
clearing agent, in whose regard he found:
"In my view the credibility of Cornelia [Smith] is
questionable."
He appears
to have come to this conclusion because there was a discrepancy in a
previous affidavit and in her evidence before the
arbitration with
regard to the car that she got into initially when following Mr
Boltmann, when he was directed to go and park
his car in an area that
is normally reserved for abnormal load vehicles.
Thirdly,
with regard to Mr Boltmann's evidence, the arbitrator took into
account that neither Alfred nor Smith saw Ramokgola giving
Boltmann
R1 000. He then comes to the following conclusion:
"It is highly probable that Boltmann did not give the applicant
[the employee] R1 000. On balance of probabilities I
find that
the applicant is not guilty as charged."
Fourthly,
with regard to the evidence of Mosia, the commissioner simply finds
that Mosia mainly testified about the procedure to
be followed; that
the employee was not charged with not following the procedure; and
that:
"I do not find Mosia's evidence of assistance in these
proceedings."
In coming
to these conclusions the arbitrator failed to properly apply his mind
to the evidence before him and to weigh up the probabilities
and the
credibility of the witnesses.
Firstly,
he failed to weigh up Tricia Alfred's credibility as against that of
Boltmann. Even where they were both called by SARS,
that did not
absolve him from going through that exercise.
Secondly,
the arbitrator failed altogether to appreciate the probabilities
based on the evidence before him.
The
principles in this regard are well-known. In the second edition of
The South African Law of Evidence
, formally Hoffman and
Zeffertt, now edited by Zeffertt and Paizes at page 901 under the
heading "Unfavourable and hostile
witnesses" and further
under subparagraph (a) the learned authors state the following:
"A party cannot adduce evidence (other than in order to prove
the making of a prior inconsistent statement) which is relevant
only
to show that his own witness is unworthy of credit, but there is
nothing to prevent him from calling other evidence to contradict
the
witness on matters relevant to the issue:"
And the
learned author then quotes from Buller’s
Nisi Prius
7
th
edition at 297:
'…
if a witness prove facts in a cause which make against the party who
called him, yet the party may call other witnesses
to prove that
those facts were otherwise; for such facts are evident in the cause,
and the other witnesses are not called directly
to discredit the
first witness, but the impeachment of his credit is indirect and
consequential only.'
I carry on
with the quote from Hoffmann and Zeffertt:
"It would be quite unreasonable if a party were bound by the
evidence of the first witness he called, since if this were so
the
fortunes of his or her case would depend upon the accident of which
witness he or she happened to call first."
Calling
further witnesses is exactly what SARS did in this instance. Having
been presented with the evidence of the first witness
it chose to
call, namely Ms Alfred, and having been prevented by the
commissioner from declaring her a hostile witness, SARS
nevertheless
carried on to call its further witnesses.
With
regard to the evidence of Smith, it is so that her evidence with
regard to when she got into the bakkie with the two SARS officials,
that is Ramokgola and Alfred, was not entirely consistent compared to
her earlier statement. However, she did explain that in the
arbitration. Firstly she explained that she did get into the bakkie
with them when it was parked at the abnormal load area, that
is when
Ramokgola suggested to her that she should convey to Boltmann that
they could "make a plan", which she understood
to mean that
Ramokgola solicited a bribe. Secondly she explained that she
initially gave her statement in Afrikaans, her home language;
that
was translated into English, and when she reread the English version
she did not pick up the discrepancy. That is not improbable,
especially when having regard to the evidence of the misconduct
itself, namely the payment of the bribe. In this regard her evidence
is entirely consistent with that of Boltmann. That she explained in
her evidence at the arbitration at some length, both in chief
and
under cross-examination.
With
regard to the evidence of Mosia, the arbitrator also misdirected
himself. That evidence was not irrelevant, as Mosia explained
the
proper process to have been followed in circumstances like this, i.e.
that Boltmann's bakkie or SUV and trailer should have
been driven to
the ramp where a different customs official should have inspected it.
That is not what happened, which leads to
the further probability
that Ramokgola followed a process that was favourable to him
soliciting a bribe.
Turning to
the evidence of Ramokgola himself, the exculpatory evidence that he
gave turned on an invoice that was supposedly presented
to him by
Smith, and on the basis of which he then released Boltmann.
When
regard is had to that invoice as against the manifest that was
previously objected to, that evidence does not make any sense.
The
manifest that initially led to the objection to the declared freight
on Boltmann's trailer referred to "other furniture
and parts
thereof – other metal furniture". The objection was that
that did not reflect a diamond cutting machine that
was in fact on
the trailer.
The
invoice on the strength of which Ramokgola supposedly saw fit to
release Boltmann refers to the following articles of freight:
"station glove box; stainless steel milk cans; Ziploc bags;
pairs of sorting gloves; and transport costs." The only
reference to anything made of stainless steel on that invoice is milk
cans. How that could conceivably satisfy a customs official
that that
should refer to a diamond cutting machine is inconceivable.
Most
tellingly when regard is had to the probabilities, is the evidence of
Boltmann himself. He is the person who paid the bribe.
He had nothing
to gain from giving evidence other than to implicate himself in the
serious crime of corruption. Not only did he
do so, but he travelled
at great cost, both in terms of time and money, firstly to Beit
Bridge in order to give evidence at the
disciplinary inquiry, and
secondly to Makhado, previously called Louis Trichardt, to give
evidence at the arbitration.
As
Boltmann himself says in his evidence, and his frustration is
palpable, and I quote from this evidence under cross-examination
(this is when it was suggested to him under cross-examination that he
was fabricating his version):
"You know that is way below my intelligence here man. You know
to think that I could fabricate a story like this. You know
come out
of the blue. I mean to come and sit here in Louis Trichardt, to come
and make up a story that we fabricated somewhere,
you know I feel
that you are insulting my intelligence here man. You know for what
reason do you think would I fabricate a story
like this. You know, at
my own expense. I do not get no benefit from coming here, not at
all."
That
exasperated statement has the ring of truth to it. Throughout his
evidence Mr Boltmann, without this court having seen his
demeanour
but from a reading of the transcript, created the evidence of a
credible witness, a person who had done wrong but was
now doing the
right thing.
In
considering that evidence the commissioner should have but did not
take into account the well-know principles set out in
Stellenbosch
Farmers Winery Group Limited and Another v Martell et Cie and others
2003 (1) SA 11
(SCA) at paragraph 5 where Nienaber JA said:
"On the central issue as to what the parties actually decided
there are two irreconcilable versions, so too on a number of
peripheral areas of dispute which may have a bearing on the
probabilities. The technique generally employed by courts in
resolving
factual disputes of this nature may conveniently be
summarised as follows. To come to a conclusion on the disputed issues
a court
must make findings on (a) the credibility of the various
factual witnesses; (b) their reliability; and (c) the probabilities …
In the light of its assessment of (a), (b) and (c) the court will
then, as a final step, determine whether the party burdened with
the
onus of proof has succeeded in discharging it. The hard case which
will doubtless be the rare one, occurs when a court's credibility
findings compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail."
The
probabilities in this case are not difficult to ascertain. It is
highly improbable that Mr Boltmann would have fabricated a
story
implicating himself in a serious crime and incurred significant costs
in order to pursue a baseless complaint of misconduct
against a SARS
employee that he has never met before.
On the
other hand both Ramokgola and Alfred had every reason to give
exculpatory evidence and to distance themselves from this act
of
misconduct.
On the
probabilities there can be no doubt that Ramokgola did pay the bribe
of R1 000 to Boltmann.
In coming
to the contrary conclusion the arbitrator did not properly apply his
mind to the evidence before him; he applied the wrong
test with
regard to evidence; and he failed to weigh up the probabilities. The
arbitration award therefore falls to be reviewed
and set aside.
Mr
Goldberg
, who appeared for the third respondent, Mr Ramokgola,
suggested that should the court come to that finding the matter
should
be remitted to the CCMA for a hearing
de novo
. He went
so far as to concede that the commissioner did make mistakes and that
certain questions were not considered, which should
be considered
afresh.
I cannot
agree with that submission. All the evidence is before this court and
has been canvassed at some length in oral debate
with the parties
today, and in their heads of argument. It would serve little purpose
to remit the matter; all it would do is to
lead to further costs and
further delay to both parties. It would also entail Mr Boltmann
having to travel once again to Makhado
or some other venue in order
to give evidence for the third time. He should not be subjected to
that. Having committed an offence
initially, Mr Boltmann came clean
and blew the whistle. That conduct should be commended in a society
such as ours that is unfortunately
increasingly rife with corruption.
Attempts by members of the public such as Mr Boltmann to stem that
tide should be rewarded and
not penalised.
With
regard to costs though, I do take into account, in law and fairness,
that Ramokgola had an arbitration award in his favour
and that he is,
as Mr
Goldberg
submitted, of course entitled to defend that
award. In these circumstances I do not believe that an adverse costs
order should
be made.
I
therefore make the following order:
1. The
arbitration award under case number LP3834-11 dated 19 February 2012
is reviewed and set aside.
2. The
order is replaced with an award that the dismissal of the employee,
Mr Benny Ramokgola (the third respondent), was fair.
3. There
is no order as to costs.
And in
case number J1086/12 the necessary corollary is simply that the
application is dismissed.
________________________________
STEENKAMP
J
APPEARANCES
APPLICANT:
Attorney P Maserumule.
THIRD
RESPONDENT: Attorney A Goldberg.