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[2013] ZALCCT 7
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NUM obo Smith v Commission for Conciliation Mediation and Arbitration and Others (C 489/12) [2013] ZALCCT 7 (20 March 2013)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
case
no: C 489/12
In the matter between:
NUM obo Johan SMITH
Applicant
and
CCMA
First Respondent
ELVISO ADAM N.O.
Second Respondent
NAMAKWA SANDS,
A DIVISION OF EXXARO TSA SANDS (PTY) LTD
Third Respondent
Heard
:
5 March 2013
Delivered
:
20 March 2013
Summary:
Review –
Sidumo
– not
unreasonable. Practice and procedure – admissibility of
supplementary affidavit. Evidence – most plausible
inference.
JUDGMENT
STEENKAMP J
Introduction
The applicant, the National Union of Mineworkers (NUM) represents
its member, Mr Johan Smith (the employee). The employee was
dismissed by the third respondent, Namakwa Sands. He referred an
unfair dismissal dispute to the CCMA (the first respondent).
The
second respondent (the Commissioner) confirmed that the dismissal
was substantively fair. Procedural fairness was not in
dispute. The
applicants (NUM and Smith) seek to have that award reviewed and set
aside.
There is also a preliminary point to be decided, and that is the
admissibility of a supplementary affidavit that the applicants
filed
together with their heads of argument.
Background facts
The employee was a plant operator. After a disciplinary hearing he
was dismissed because of the following incidents of misconduct:
falsifying records at weighbridge;
conspiring in the theft of pig iron;
breach of the contract of employment and undertakings.
It emerged subsequent to the arbitration hearing that, at the
disciplinary hearing, the employee was found not to have committed
misconduct styled as “conspiring in granting site access to a
contractor under a false name”. That aspect was addressed
in
the supplementary affidavit to which I shall return later.
The employee’s duties included working at the weighbridge. The
purpose of the weighbridge is to weigh and record consignments
entering and leaving the employer’s premises on a database. It
is the responsibility of the weighbridge operator to enter
details
about the product and its destination.
The employee was on duty on 12 May 2011. While he was on duty, a
load of pig iron destined for Atlantis Foundries was stolen
by
Pietie Mouton, a driver working for his brother’s company,
Mouton Transport. During the investigations leading to the
discovery
of the theft, a former employee, Shaun Coetzee, admitted that he had
been involved in stealing pig iron previously.
He also conspired
with Mouton to steal the load in question and sold it to a scrap
yard in Atlantis.
Mouton testified at the arbitration that, while his truck was
standing outside the premises of Namakwa Sands, Coetzee phoned
him
and arranged with him to steal the consignment. Coetzee assured him
that his “inside contacts” would take care
of the paper
trail and the CCTV footage. The transaction in question was amended
on the database from the weighbridge office
at 21:16 on 12 May 2011
to reflect that oxygen (instead of pig iron) was transported out of
the premises by Afrox (and not by
Mouton transport).
The employer produced documentary evidence showing that a number of
telephone calls were made to Coetzee from the weighbridge
office on
the night that the theft took place. One telephone call was also
made from the tea room. The call that aroused the
most suspicion was
a call lasting 11 minutes at the time when changes were effected to
the database in the weighbridge office.
Although there was no direct evidence implicating Smith, the
employer argued that he had committed the misconduct in question
on
a balance of probabilities, given the following circumstantial
evidence:
Smith was the supervisor in charge on the night and he was the only
employee on shift that at any knowledge or competency to
operate
the weighbridge.
Effecting changes to the system required a basic understanding of
the weighbridge system. Smith possessed such knowledge and
he had
obtained a 100% pass mark in a test on the weighbridge system.
Mouton testified that Smith had put an access card to the premises
in his (Mouton’s) car (albeit after the theft had
occurred).
A person telephoned him and identified himself as “JJ”.
Mouton knew Smith as JJ and he had recognised
Smith’s voice.
1
The arbitration award
The arbitrator accepted Mouton’s evidence that he acted in
concert with Coetzee to steal the shipment of pig iron on 12
May
2011 and that Coetzee assured him that “insiders” would
look after the paperwork. On the probabilities, the arbitrator
accepted that the outsider conspiring with Mouton was Coetzee.
Mouton’s version in this regard was bolstered by the fact
that
somebody from within the company – probably the “insider”
who changed the documentation – phoned
Coetzee en number of
occasions during the night of 12 May 2011 at the time when the
changes were made to the weighbridge system.
The arbitrator noted that the next question was whether the
employee, Smith, could be connected to Coetzee and the theft of the
pig iron. He found that Mouton was a reliable witness. There was
nothing for him to gain; instead, he incriminated himself. Mouton
was confident that Smith had subsequently telephoned him and
delivered an access card to him, saying that it was from Coetzee.
The arbitrator found that, on a balance of probabilities, the inside
contact referred to by Coetzee must have been Smith. This
emerges
from the following:
Smith was on night shift on 12 May 2011.
Smith was the supervisor working with outside contractors who would
not ask questions if he left them for a short period.
He was tasked with driving the forklift, which meant that he was
mobile and not confined to one area.
He tried hard to disguise his knowledge of the weighbridge system
when in fact he had gone through quite an intensive theoretical
training course with full marks.
As early as 5 May 2011 Smith signed off huge consignments, which
indicated that he was trusted with such responsibility and
was
competent to work the system.
It could be inferred that Coetzee gave him guidance over the
telephone on how to make changes to the database.
Smith was the only weighbridge staff member on duty.
Smith refused to answer questions relating to Coetzee, even after
Mouton connected him with Coetzee. An inference could be
drawn that
he did not want to implicate Coetzee or himself.
Taking all of these factors into account, the arbitrator found that
the most probable inference was that Smith had made the changes
to
the weighbridge system on 12 May 2012 or at the very least he was
aware of it. On a balance of probabilities, it was more
probable
than not that Smith was the one who changed the data on the system
to conceal the theft or was at least aware of the
person changing
it.
Having found that, on the probabilities, Smith had committed the
misconduct, the arbitrator agreed that dismissal was the appropriate
sanction as it had led to an irreparable breakdown in the trust
relationship. The theft was premeditated, carefully planned and
involved thousands of Rands.
Evaluation / Analysis
The applicants raised the following grounds of review:
the arbitrator committed a gross irregularity in the conduct of the
proceedings “by advising Smith not to answer questions
about
Coetzee and then using it against Smith that he had refused to
answer questions about Coetzee”;
2
the arbitrator could not have come to a reasonable finding that
Smith had committed the misconduct, as it was based on
circumstantial
evidence and that evidence was not conclusive.
There is a further aspect, not foreshadowed in the applicants’
founding or supplementary affidavits in terms of rule 7A,
and that
is that, at the disciplinary hearing, Smith was found not guilty of
the charge of “conspiring in granting site
access to a
contractor under a false name”. This aspect was addressed in
the supplementary affidavit that was only filed
together with the
applicant’s heads of argument. Namakwa Sands objected to the
admissibility of that affidavit. I will
first deal with that aspect.
In limine: admissibility of supplementary affidavit
Ms
Ralehoko
relied on
MISA/SAMWU v Madikor Drie (Pty) Ltd
3
for the argument that the applicants’ further supplementary
affidavit (filed after the pleadings had closed and simultaneously
with their heads of argument) should be admitted. In that case, the
court noted that, as a general rule, there are three sets
of
affidavits in motion court proceedings. Rule 7 of the Labour Court
rules incorporates this general rule. Under certain circumstances,
though, the filing of further affidavits is permitted. The court has
a discretion as to whether further affidavits will be permitted.
This discretion must be exercised judicially, having considered
whether a proper explanation for its belated filing exists; whether
the material contained in the affidavits are relevant; and whether
the finding of such affidavits would be prejudicial to the
other
party.
Ms
Viljoen
pointed out that
Madikor Drie
dealt with a
case concerning an application for specific performance and not an
application to review an arbitration award. In
the review of an
arbitration award the Labour Court rules specifically provide in
rule 7A(8) that the applicant may, after the
registrar has made the
record available, deliver an affidavit supplementing its founding
affidavit. The principles, however,
remain the same.
It is so that, in this case, the applicants did not deal with the
issue now addressed in the further supplementary affidavit,
either
in its founding affidavit in terms of rule 7A(2)(c) or in its
supplementary affidavit in terms of rule 7A(8). Their argument
is
that it is only during consultation held with their attorneys in
early November 2012 that “it was brought to the attorney’s
attention that in fact the disciplinary hearing had found Smith not
guilty of the charge relating to leaving an access card in
Mouton’s
car”.
It is surprising that the applicants did not bring this to the
attention of the attorneys at any earlier stage. Neither party
dealt
with it in their affidavits before the applicants filed their
supplementary affidavit. Nevertheless, taking into account
the
principles outlined in
Madikor Drie
, I am persuaded that I
should exercise my discretion in favour of admitting it. That is so
because:
the applicants and their attorneys did provide a proper explanation
for its late filing;
the material contained in the supplementary affidavit is relevant
to the review application; and
Namakwa Sands had an adequate opportunity to address any prejudice
by delivering a further answering affidavit.
First review ground: advising the employee not to answer questions
The applicants submitted that the arbitrator “committed a
gross irregularity in the conduct of the proceedings by advising
Smith not to answer questions about Coetzee and then using it
against Smith that he had refused to answer questions about
Coetzee.”
They argued that it was incumbent upon the
arbitrator to warn Smith that, should he elect not to answer
questions about Coetzee,
an inference could be drawn that he was
avoiding incriminating himself and Coetzee.
These arguments would have been persuasive, had the arbitrator
indeed advised Coetzee not to answer questions. On a proper reading
of the record, that is not what he did. When Namakwa Sands’s
representative started cross-examining Smith about Coetzee,
his
representative, Ms Thomas, objected. The following exchange then
occurred:
“
Me
Thomas: Commissioner kan ek gou ‘n objeksie maak, as hy
[employer’s representative] vir hom wil vrae vra oor Shaun
[Coetzee], ek dink hy moet direkte vrae vir hom vra en nie vir hom
vra wat weet hy van Shaun nie. Hy moet direkte vrae aan JJ [Smith]
rig.
Kommissaris: Die getuie wat nou
getuig is nie die meneer [Van Vuuren – employer’s
representative] se getuie nie. Die
getuie kan of saamstem of nie
saamstem nie. Dit maak nie saak nie, verstaan? Hy hoef ook nie saam
te stem nie.hy kan sê hy
weet nie. Hy kan sê ‘moenie
vir my sulke vrae vra nie...’
Me Thomas: So dit beteken hy
hoef ook nie die antwoord te hê, die vrae te beantwoord nie?
Kommissaris: Hy kan sê ‘ek
wil nie antwoord nie’.
Mnr Smith: Ek sal geen vrae van
Shaun Coetzee beantwoord nie, Commissioner.
Mnr van Vuuren: Jammer, u sê
Mnr Smith?
Mnr Smith: Ek sal geen vrae in
verband met Shaun Coetzee nie.
...
Mnr van Vuuren: So kom ons kry
dit net op record Mnr Smith, want u sê vir ons u is glad nie
bereid om enige vrae met betrekking
tot Shaun Coetzee te antwoord
nie?
Mnr Smith: Sekere vrae sal ek
antwoord.
Kommissaris: Hang gou vas.
Watter vrae meneer – elke keer gaan ek nou moet ‘cover’
watter vrae, watter vrae nie
of wat? Hoe ver is u bereid om te
antwoord of sê u u gaan niks vrae beantwoord nie? Ek wil hê
– ek moet u beskerm
en ek moet weet...
...
Mnr Smith: Ek sal geen vraag
antwoord van Shaun Coetzee nie.
...
Kommissaris: U sê u gaan
geen vrae beantwoord van Shaun Coetzee nie. Mnr van Vuuren u het
gehoor wat die getuie sê en
Juffrou Thomas u gehoor wat die
getuie sê. U verstaan dat van die goeters jou ‘connect’
aan Shaun Coetzee, maar
dit is u reg om nie vrae te vra of te
antwoord oor hom nie, hoor.”
It was Smith’s representative, Ms Thomas, who objected to him
answering any questions about Coetzee. The Commissioner merely
advised them that, should he wish to exercise the right not to
answer questions, he could. It may have been advisable for the
Commissioner to go further and to advise him that an adverse
inference could be drawn; but Smith was represented and the
proceedings
are meant to be informal. The inference that Smith did
not want to implicate Coetzee or himself under oath is not an
unreasonable
one.
This ground of review must fail.
Second review ground: assessing the evidence before the arbitrator
The applicants’ second main ground of review is that the
arbitrator did not properly consider the evidence before him in
coming to the conclusion, on a balance of probabilities, that Smith
committed the misconduct. This review ground is based squarely
on
the test set out in
Sidumo
4
,
i.e. whether the conclusion reached by the arbitrator was one that a
reasonable arbitrator could reach.
Firstly, the applicants argue that the Commissioner ought not to
have accepted Mouton’s evidence. They submit that Mouton
“had
a reason to lie” since he was involved in the theft.
That is a
non sequitur
. The Commissioner cannot be faulted
for having found Mouton to be a credible witness. In fact, Mouton
had every reason to lie.
In testifying under oath to his own
involvement in the theft, he incriminated himself. He had everything
to lose and nothing
to gain. And he did not willingly assist the
employer – he was subpoenaed to testify at the arbitration.
There is no basis
for this aspect of the review application.
Secondly, the applicants object that the arbitrator found that
Mouton’s evidence was “corroborated” by Coetzee,
whereas Coetzee did not testify.
But that is not what the arbitrator found. Nowhere in the award
could I find a statement to that effect by the arbitrator. When
he
did refer to Coetzee, it was with reference to Mouton stating that
Coetzee had phoned him. That is not hearsay; it is Mouton’s
first-hand evidence.
What the arbitrator did, is to weigh up the evidence before him and
to assess what the most probable inference was. That is exactly
what
an arbitrator should do when assessing the evidence on a balance of
probabilities. As the commissioner pointed out in his
award, “it
appeared right through the proceedings that the [employee] was
assessing his case based on the criminal standard
of proof ... it is
correct that the onus of proof was on the [employer], but the
standard was that of proof on a balance of probabilities.
What was
required was that the probabilities in the case be such that, on a
preponderance, it was probable that a particular
state of affairs
existed.”
The arbitrator did exactly that and came to the reasonable
conclusion, on a balance of probabilities, that the most probable
inference from all the evidence was that Smith had committed the
misconduct. That was a reasonable inference and is not open
to
review based on the civil, and not criminal, standard of proof.
The difference between criminal and civil cases in this regard was
succinctly summarised by Zulman JA in
Cooper and Another NNO v
Merchant Trade Finance Ltd:
5
“
It is
not incumbent upon the party who bears the
onus
of proving an absence of an intention to prefer to eliminate by
evidence all possible reasons for the making of the disposition
other
than an intention to prefer. This is so because the Court, in drawing
inferences from the proved facts, acts on a preponderance
of
probability. The inference of an intention to prefer is one which is,
on a balance of probabilities, the most probable, although
not
necessarily the only inference to be drawn. In a criminal case, one
of the 'two cardinal rules of logic' referred to by Watermeyer
JA in
R
v Blom
is
that the proved facts should be such that they exclude every
reasonable inference from them save the one to be drawn. If they
do
not exclude other reasonable inferences then there must be a doubt
whether the inference sought to
G
be
drawn is correct. This rule is not applicable in a civil case. If the
facts permit of more than one inference, the Court must
select the
most 'plausible' or probable inference. If this favours the litigant
on whom the
onus
rests he is entitled to judgment. If, on the other hand, an inference
in favour of both parties is equally possible, the litigant
will not
have discharged the
onus
of proof. Viljoen JA put the matter as follows in
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
:
'Dit is, na my oordeel, nie nodig
dat 'n eiser wat hom op omstandigheidsgetuienis in 'n siviele saak
beroep, moet bewys dat die
afleiding wat hy die Hof vra om te maak
die enigste redelike afleiding moet wees nie. Hy sal die bewyslas wat
op hom rus kwyt indien
hy die Hof kan oortuig dat die afleiding wat
hy voorstaan die mees voor-die-hand liggende en aanvaarbare afleiding
is van 'n aantal
moontlike afleidings.'
Selke J expressed the matter in
Govan v Skidmore
thus:
'.
. . (I)n finding facts or making inferences in a civil case, it seems
to me that one may, as Wigmore conveys in his work on
Evidence
3rd ed para 32, 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.'
Holmes JA in
Ocean Accident
and Guarantee Corporation Ltd v Koch
explained that he understood
'plausible', in the context of the remarks of Selke J, to mean
'acceptable, credible, suitable'.”
And as the Labour Appeal Court pointed out in
SA Nylon Printers
(Pty) Ltd v Davids
6
:
“
Circumstantial
evidence, which this is, depends for its persuasive power on its
cumulative effect. There comes a stage when so many
indiciae
point
to the same conclusion that one may properly say that it is the most
probable, or in some cases even the only, proper conclusion
to be
drawn.”
That is exactly what happened in this case. There came a stage when
so many
indiciae
, as discussed by the arbitrator, pointed to
the same conclusion that he came to the only probable conclusion
that Smith did commit
the misconduct. That was a reasonable
conclusion.
It is so that, at the disciplinary hearing, it now appears that
Smith was not found to have “conspired to grant site access
to
a contractor under a false name”. The evidence at that hearing
was not tested at arbitration. It is still not clear
who left the
access card in Mouton’s car. All that the arbitrator found in
this regard is that, at the very least, Smith
was aware of what was
going on when the theft occurred on 12 May 2012. That is not an
unreasonable conclusion, whether or not
Smith was the one who
subsequently left the access card in Mouton’s car. The
misconduct complained of – and the “most
probable
inference” to be drawn from the evidence before him, as the
arbitrator found – was that Smith was involved
in the
conspiracy to steal pig iron from Namakwa Sands on the evening of 12
May 2012. Mouton did not need access to the premises
for that to
occur; he had already stolen the cargo. All that needed to be done
on the evening was to change the information on
the database; and
the most probable person to have done that, was Smith. He was the
supervisor in charge; he was the only Namakwa
Sands employee with
the necessary knowledge who had access to the weighbridge; he knew
Coetzee; and a number of telephone calls,
including the one of 11
minutes, were made to Coetzee while Smith was on duty. Taking all of
these factors into account –
and disregarding the question
whether Smith had left an access card in Mouton’s car –
the overwhelming inference
is still that Smith was the one who
committed the misconduct.
Conclusion
The arbitrator’s finding is one that a reasonable arbitrator
could have come to. It is not open to review.
Both parties asked for costs to follow the result. I agree.
Order
The application for review is dismissed with costs.
_______________________
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Tapiwa Ralehoko of
Cheadle Thompson & Haysom.
THIRD RESPONDENT:
Siobhan Viljoen of
Shepstone & Wylie.
1
Ms
Ralehoko
submitted in her heads of argument that the
telephone call only occurred in June 2012, a month after the theft.
Upon questioning
by the Court, and after having been given an
opportunity to file further submissions after the oral hearing, she
conceded that
no such evidence appears in the transcript of the
record of the arbitration proceedings. It is common cause, though,
that it
was subsequent to the day of the theft.
2
Applicant’s
heads of argument paragraph 36.
3
(2005)
26
ILJ
2374 (LC).
4
Sidumo
& ano v Rustenburg Platinum Mines Ltd & ors
(2007) 28
ILJ
2405 (CC);
Bato Star Fishing (Pty) Ltd
v
Minister of Environmental Affairs & Tourism
[2004] ZACC 15
;
2004 (4) SA 490
(CC).
5
2000
(3) SA 1009
(SCA) at para [7] 1027 E – 1028 D (footnotes
omitted).
6
[1998]
2 BLLR 135
(LAC).