About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 36
|
|
Shoprite Checkers v Commission for Conciliation Mediation And Arbitration and Others (JR2259/11) [2014] ZALCJHB 36 (13 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR2259/11
DATE:
13 FEBRUARY 2014
REPORTABLE
In
the matter between:
SHOPRITE
CHECKERS (PTY)
LIMITED
................................................
Applicant
And
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
...................................................................
First
Respondent
LERATO
SIKWANE
N.O
.....................................................
Second
Respondent
RETAIL
AND ALLIED WORKERS UNION
..........................
Third
Respondent
LIZZY
MOFOMME
..................................................................
Fourth
Respondent
Heard:
31 May 2013
Delivered:
13 February 2014
Summary:
Review application: application of the Sidumo test; relevant issues
in relation to hearsay evidence and its admissibility
JUDGMENT
GAIBIE,
AJ
Introduction
[1]
This is a case in which an employee was found guilty of misconduct
and in relation to which the employer had almost in its entirety
secured her conviction on the basis of hearsay evidence. This
judgment therefore traverses the admissibility of hearsay evidence
in
terms of section 3 of the Law of Evidence Amendment Act 45 of 1988
(“The Hearsay Act”)
Background
[2]
Lizzy Mofomme, the fourth respondent (“Mofomme”) was
employed by the applicant as a receiving clerk at the time
of her
dismissal on 31 March 2011. In this position, she was responsible for
receiving goods on behalf of the applicant. Thereafter,
Lerato Aphane
(“Aphane”) a double checker was responsible for double
checking the goods received by Mofomme. Unlike
Mofomme, Aphane was
employed by International Business Intelligence (“IBI”),
an external security company who rendered
services to the applicant.
[3]
On 8 February 2011, Joey Molefe (“Molefe”), a security
officer employed by IBI, informed Mr Johannes Mynhardt (“Mynhardt”),
the area manager for IBI that he saw Aphane taking money from a
supplier of the applicant. The following exchange between the
Commissioner and Mynhardt captures the thrust of his evidence.
‘
Mynhardt:
On the 8th of February when one my employees called me Joel Molefe he
was the LCM the Loss Control Manager working in
that shop
......
Mynhardt:
Okay, he informed me that day that he noticed the double checker
working for us.
……
Mynhardt:
Lerato Aphane
……
Mynhardt:
And the receiving clerk Lizzy Mofomme on the sales floor of the shop.
Commissioner:
On the what?
Mynhardt:
On the sales floor of the shop, because they are normally working at
the back at receiving so he saw them on the sales
floor.
Commissioner:
Sales floor?
Mynhardt:
Sales floor of Shoprite Queenswood. Okay, he also noticed the
employee supplier of Clarabelle’s also on the sales
floor and
he saw the double checker Lerato taking money from the supplier.
Commissioner:
Taking money from Clarabelle?
Mynhardt:
The supplier of Clarabelle.
Commissioner:
Yes
1
[4]
Under cross-examination, Mynhardt’s evidence in regard to this
matter was amplified. The following exchange is informative:
‘
Respondent
representative: Did maybe Joel testify that maybe she - he saw the
supplier giving the money to Lizzy or to Lerato, the
two of them who
was receiving the money from the supplier?
Mynhardt:
Lerato was receiving the money.
Respondent
representative: So how did Lizzy benefit on that?
Mynhardt:
How did who benefit?
Respondent
representative: How Lizzy benefit on that money that Lerato was
receiving?
Mynhardt:
How did Lizzy benefit?
Respondent
representative: Ja.
Mynjardt:
I can’t answer I don’t how did she benefit.
Respondent
representative: Is it? But when you look at the charge, I know you
didn’t write the charge sheet, am I right?
Mynhardt:
Ja.
Respondent
representative: It is saying that she benefited on participating on
that thing, so what proof did you get besides Joel
that she was
benefitting?
Mynhardt:
That she was benefitting?
Respondent
representative: Ya. Lizzy?
Mynhardt:
No, I have got no proof.’’
2
[5]
Upon receipt of the information from Molefe, IBI undertook an
investigation and although Aphane was initially unwilling to
co-operate, she later made two statements to IBI. She also confirmed
the information recorded in the statements (‘the affidavits’)
on video and apparently undertook a polygraph test.
[6]
In consequence of the information received from Aphane, Mofomme was
issued with a notice to attend a disciplinary hearing in
respect of
the following charges of misconduct:
‘
Serious
misconduct in that on but not limited to 27/07/2010, 15/11/2010,
17/11/2010 and 25/11/2010 –
1)
You did not follow company receiving procedures by short receiving
stock leading to a financial loss to the company; and/or
2)
You financially benefited by participating in contact that lead to
financial/potential financial loss to the company; and/or
3)
You did not report contact of supplier and/or service provider that
lead to a financial/potential financial loss to the company’.
3
[7]
Pursuant to the disciplinary hearing, the chairperson found Lizzy
guilty of the charges of misconduct and she was summarily
dismissed
on 30 March 2011.
[8]
It appears that the only witness who gave evidence on behalf of the
applicant in the disciplinary proceedings was Mynhardt.
Through his
evidence, the applicant relied on the statements made by Aphane for
the purposes of securing a conviction of guilt
against Mofomme.
[9]
Much the same evidence was led during the arbitration proceedings,
and neither Molefe nor Aphane were called as witnesses on
behalf of
the applicant. No explanation was tendered as to why Molefe was not
called to give evidence, and insofar as any explanation
was tendered
in relation to Aphane, it was sparse and lacked cogency. It was
Mynhardt who contended that Aphane was simply reluctant
to get
involved in the arbitration proceedings, but he stopped short of
indicating whether any steps were taken to secure her presence
at the
arbitration proceedings either by way of subpoena or any other
alternative means.
[10]
In her first affidavit, signed on 8 February 2011 at 16h30, Aphane
contends that she was in collusion with Mofomme in a scheme
that was
aimed at receiving deliveries for the applicant less than what had
been ordered, that arrangements were made with the
driver’s
assistant of various suppliers including Sunbake, Blue Ribbon and
Clarabelle, to retain some of the stock, to sell
such stock and to
share the proceeds of such sales between her, Mofomme and the
relevant driver’s assistant of the suppliers.
She also
indicated in some detail the manner in which the deals were done and
the process that was involved in extracting a financial
benefit for
each of them from the scheme. According to Aphane, and in
contradiction with the evidence of Mynhardt, once the stock
was sold,
the truck driver and his assistant would return to the applicant’s
premises and hand a certain percentage of the
money made from the
sale of such stock to Mofomme. According to her, Mofomme was the one
who shared the takings for the day with
her. The nature of the
benefit and the extent of the theft was described by Aphane as
follows:
‘
We
stole stock approximately twice per month from each supplier, and on
average approximately sixty (60) loaves of bread, and approximately
thirty (30) 2 liter, ten (10) 1 liter, and one hundred (100) I liter
sachets of milk on each occasion. I received between R40.00
and
R70.00 (depending on the amount stolen) as my share. The driver’s
assistants with whom the deals were done are THAMI
(Sunbake), MOSS
(Blue Ribbon) and NATHI (Clarabelle).’
4
[11]
It is apparent from her affidavit that Aphane had no direct knowledge
of the nature or the extent of the involvement of another
employee,
Lucky Mahlangu (“Mahlangu”), the Trio Data Loss Control
Manager, in the scheme. However she makes the following
assertion, in
her affidavit, in relation to the relationship between Mofomme and
Mahlangu:
‘
I
also noticed that Lizzy and Lucky seemed to be very involved with the
driver’s assistants of TFD who delivers the Canderel,
and RTT
who delivers the Vital products. These are high risk items which are
only checked by the Shoprite Receiving Clerk (LIZZY)
and the Loss
Control Manager (LUCKY), and as such I in my position as a double
checker never checked these items. It is possible
that LIZZY and
LUCKY had deals with them of which I was excluded from sharing in.
5
”’
[12]
It is evident from this affidavit that Aphane, to the extent that she
had information relating to this scheme, she was incredibly
vague
about Mofomme and Mahlangu’s involvement in the scheme in
relation to the high risk items and it was unclear on what
basis the
applicant’s investigation into this matter included attempts to
obtain the co-operation and further information
from the driver’s
assistants named as Thami, Moss and Nathi.
[13]
Two days later on 10 February 2011 at 11h45, Aphane signed a second
affidavit. In this affidavit she dealt with two issues:
13.1.
First, she attempted to create the impression that the scheme was one
in which she, Mofomme and Mahlangu were involved in
the form of a
tripartite arrangement. In the first affidavit this assertion was
visibly lacking.
13.2.
Secondly, she dealt with the process of how Mofomme recorded the
receipt of stock on behalf of the applicant, in the context
of the
scheme.
[14]
In the first affidavit, Aphane indicated that Mofomme would either
record on the relevant invoice that all the quantities of
goods
delivered was received
6
or alternatively Mofomme would indicate a shortage on the delivery
note by encircling the particular product and indicating how
many
items were short, and she would thereafter institute a claim, but
that the real shortage would be much more than the indicated
amount.
7
In the second affidavit, she provided a somewhat different version of
how Mofomme used the alternative process for indicating any
shortages. She explained that Mofomme would sometimes indicate on the
relevant invoice that there was a shortage in the products
delivered
by writing the word “short” next to the item but that no
quantities would be indicated by her.
[15]
However, given that Aphane effectively played the role of a double
checker of the goods received, she explained (in the second
affidavit), that once Mofomme exited the cage after checking the
stock, she informed Aphane what quantities she needed to record
on
the invoice for the purposes of the scheme. According to her, a claim
would then be raised for half of the recorded missing
stock and the
actual stock left behind in the truck would be sold by the crew and
the monies received in respect thereof would
be shared by the four of
them (Mofomme, Mahlangu and Aphane and the driver’s assistants)
who were involved in the deal. For
whatever it is worth, there is
clearly a different version in the second affidavit about the manner
in which the scheme operated
and the details of those who were
involved therein.
[16]
Nevertheless, and predictably so, Mofomme in the arbitration
proceedings denied any involvement in the scheme. Prior to the
arbitration proceedings and in the process of investigating the
matter, Mahlangu also signed an affidavit in which he denied any
involvement in the scheme or in any criminal activities at the
applicant.
8
The
Commissioner’s findings
[17]
In the context of the evidence led at the arbitration proceedings,
the Commissioner made the following findings:
17.1.
That the evidence led on behalf of the applicant constituted hearsay
evidence;
17.2.
That there was no evidence as to why Molefe was not called as a
witness, and no reasonable explanation was given as to why
steps were
not taken to secure Aphane’s evidence at the arbitration
proceedings. In this regard the Commissioner stated the
following:
‘
There
is no evidence before me as to why Joey Molefe was not called as a
witness in this matter. Lerato Aphane had the courage to
adduce a
written affidavit on two occasions, she was bold enough to can be
captured in a video adducing her confession despite
having been
informed about the consequences of implicating herself. There is no
evidence that she was threatened with harm should
she avail herself
for the arbitration. The evidence of both Johannes Mynhardt and
Thomas Louw is against the above backdrop rejected.
The applicant
cannot be found guilty on the basis of the video recording of Lerato
Aphane’s confession. If that can be
the case, it would mean
that the applicant was found guilty on the evidence she could not
challenge. There is no way in which
a video recording can be
cross-examined by the opposing party’.
9
17.3.
That in light of Mofomme’s contention regarding the
authenticity of the documents submitted by the applicant in order
to
demonstrate that she had not complied with the receiving procedures,
the applicant did not prove their authenticity, the originals
were
not handed up and only uncertified photocopies thereof were produced;
17.4.
That there was no direct evidence against Mofomme that she had
committed the misconduct which led to her dismissal and in
the
circumstances her dismissal was substantively unfair;
17.5.
That Mofomme could not be found guilty on the basis of Aphane’s
affidavits because that would mean that she would be
found guilty on
the evidence that she could not challenge.
10
Grounds
of Review
[18]
It appears from the applicant’s founding affidavit that the
grounds of review are formulated in terms of the “process
related review test” developed by the Labour Court in various
decisions including that of the Labour Appeal Court in Herholdt
v
Nedbank.
11
In terms thereof, the applicant submits that the arbitrator failed
to cumulatively consider and place relevance on the following
factors:
18.1.
The commissioner ignored the company’s evidence in which it
presented a document entitled “company rules”
which
clearly states that breach of company policy and procedure will
result in disciplinary action and possible dismissal. In
that regard
the commissioner ignored the fact that the applicant produced
invoices signed and stamped but not ticked by Mofomme,
in direct
breach of the receiving procedure;
12
18.2.
That although the arbitrator detailed the provisions of the Hearsay
Act, he failed to place any probative value on the evidence
led by
the applicant’s witnesses;
13
18.3.
The commissioner failed to consider why Aphane would not have been
truthful about the confessions that she made;
14
18.4.
The commissioner did not consider and place any relevance on the
prejudice that was suffered by the applicant in such matters
and that
misconduct of this nature could lead to serious repercussions to the
applicant both financially and professionally.
15
The
Review Test
[19]
As is common knowledge now, the Supreme Court of Appeal (SCA), has
set aside the ‘process related review test’
articulated
by the LAC. In its decision, the SCA in Herholdt v Nedbank
16
stated the test in the following terms:
‘
That
test (the test in Sidumo) involves the reviewing court examining the
merits of the case ‘in the round’ by determining
whether,
in the light of the issue raised by the dispute under arbitration,
the outcome reached by the arbitrator was not one that
could
reasonably be reached on the evidence and other material properly
before the arbitrator (a more stringent test than asking
whether the
decision is one that the arbitrator could reasonably reach). On this
approach the reasoning of the arbitrator assumes
less importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside. The reasons are
still considered in order to
see how the arbitrator reached the result. That assists the court to
determine whether the result
can reasonably be reached by that route.
If not, however, the court must still consider whether, apart from
those reasons, the
result is one a reasonable decision-maker could
reach in the light of the issues and the evidence.’
The
Hearsay Act
[20]
This brings me to what I regard as the crux of the issue in this
matter, it turns on the admissibility of the hearsay evidence
in the
form of the affidavits attested to by Aphane, and her confirmation
thereof in a recorded video. In this regard, section
3(1) of the
Hearsay Act provides as follows:
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless
–
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings; or
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail;
(vii)
any other factor which should in the opinion of the court be taken
into account, is of the opinion that such evidence should
be admitted
in the interests of justice.
[21]
Sub-sections 1(a) and 1(b) of section 3 clearly have no bearing on
the issues in this matter. This then heralds the determination
of the
central issue: whether the Commissioner should have, in the
circumstances of this matter, accepted the affidavits submitted
to by
Aphane as the total sum of the evidence against Mofomme and should
have in that process considered that the applicant had
discharged its
onus in terms of section 192 of the Labour Relations Act 66 of 1995
(“the LRA”). In at least two reported
judgments,
17
the Labour Appeal Court (“LAC”) has accepted that section
3 of the Hearsay Act should be applied in determining whether
to
admit hearsay evidence in statutory arbitration proceedings. In terms
of the common law, hearsay evidence was inadmissible.
However, the
Hearsay Act allows a more nuanced approach to the admission of
hearsay evidence.
18
[22]
In Makhathini v Road Accident Fund,
19
the Supreme Court of Appeal (“the SCA”) stated that in
the application of the Hearsay Act in the context of a civil
case,
the Act requires the Court to take a contextual approach. The SCA
indicated that the statutory pre-conditions for the reception
of
hearsay evidence are now designed to ensure that the evidence is
received only if the interest of justice justifies its reception.
In
determining whether it is in the interest of justice to admit hearsay
evidence, the Court must:
‘
Have
regard to every factor that should be taken into account, more
specifically, to have regard to the factors mentioned in section
3(1)(c). Only if, having regard to all these factors cumulatively,
it would be in the interest of justice to admit the hearsay
evidence,
should it be admitted’.
20
[23]
Whether statements or affidavits of this kind should be admitted at
all and, if so, what weight should be given to them must
depend on
the outcome of the application of the statutory test to the facts.
[24]
I turn now to consider the application of section 3(1)(c) to the
facts of the present case. As appears from sub-section 3(1)(c)(i),
that sub-section requires a consideration of the nature of the
proceedings. Even though section 3(1) of the Act makes it clear
that
it applies to both criminal and civil proceedings, sub-section (i)
requires a consideration of the nature of the proceedings,
for
instance whether they are civil, criminal, trial or motion
proceedings. Given that arbitration proceedings are in essence in
the
form of a civil trial, the commissioner may consider the absence of
the testing power of cross-examination which will always
be a factor
when hearsay evidence is a contentious issue, but the commissioner
may nevertheless admit such evidence if the party
against whom it is
sought to be admitted can counter the effect of such evidence by
other means. However, in light of the fact
that section 192 requires
that the onus of proving that a dismissal is substantively and
procedurally fair is on the applicant,
the introduction and reliance
solely on hearsay evidence must be assessed squarely. Issues such as:
whether the applicant was able
to explain and provide a reasonable
justification for the absence of such witness is relevant; and
whether the applicant provided
any corroborating evidence on which
the hearsay evidence was premised is yet another issue. So for
instance the lack of any explanation
as to whether any attempts were
made to secure the evidence of the drivers’ assistants named by
Aphane (Thami, Moss and Nathi)
and those drivers’ assistants
who were un-named must impact on whether the applicant was able to
obtain other evidence in
support of its case against Mofomme.
[25]
Section 31(1)(c)(ii) requires that the nature of the hearsay evidence
be considered. In Makhathini, the SCA referred with approval
to the
academic writing of Schmidt & Rademeyer in Bewysreg who suggested
that this requirement relates mainly to the reliability
of the
evidence sought to be introduced. But as indicated by the SCA,
reliability is perhaps more pertinent to the enquiry in terms
of
section 3(1)(c)(iv) which in any event must be considered as an
interrelated factor to all the other factors indicated in this
sub-section. In the SCA’s view, what is required by section
3(1)(c)(ii) is a characterisation of the evidence sought to be
introduced.
[26]
In this case, the hearsay evidence is the sum total of the evidence
produced in the form of two affidavits attested to by Aphane
against
Mofomme, and to a lesser extent against Mahlangu. It was common cause
between the parties that Mahlangu had, in terms of
an affidavit
attested to by him, denied any involvement in the scheme referred to
by Aphane. In any event, as indicated earlier
in this judgment,
Aphane’s evidence in relation to two matters at least, was
contradictory. That was in relation to the precise
role of Mahlangu
in the ‘tripartite scheme’, and secondly in relation to
the process developed by Mofomme for the purposes
of such a scheme.
Perhaps more fundamentally however, we have been reminded by the
Constitutional Court in S v Molimi,
21
that when addressing the safeguards that must be adhered to when
receiving hearsay evidence under the Act, courts must be careful
to
ensure respect for the fair trial rights in section 35(3) of the
Constitution. Quoting the decision of the Supreme Court of
Appea
l
in Sv Ndhlovu and Others
22
,
it said-
‘
First,
a presiding judicial officer is generally under a duty to prevent a
witness heedlessly giving vent to hearsay evidence.
More
specifically under the Act, ‘it is the duty of a trial judge to
keep inadmissible evidence out and not listen passively
as the record
is turned into a papery sump of evidence’.
[27]
In light of Mahlangu’s denial of his involvement in the
tripartite scheme, it was in my view incumbent on the applicant
to
ensure that some other corroborating evidence was produced by it in
support of the contents of the affidavit attested to by
Aphane. For
instance, the corroborating evidence of the three drivers’
assistants (Thami, Moss and Nathi), could have been
led. In addition,
the evidence of Molefe could also have been led, and the precise
details of what was observed by him was extremely
important, and
finally efforts to ensure Aphane’s attendance at the
arbitration proceedings should have been undertaken with
vigour.
[28]
Section 3(1)(c)(iii) requires scrutiny of the purpose for which the
evidence is tendered. This requires, amongst other things,
a
consideration as to whether the hearsay evidence was being introduced
to prove the culpability of Mofomme, or whether a different
or less
important role was intended for such evidence. The applicant’s
main purpose for the introduction of such evidence
was a central and
a decisive one, that is, to prove that Mofomme was guilty of the
charges that had been proffered against her
and to secure her
dismissal. As such, the hearsay evidence played a central and pivotal
role in her conviction. Relying again on
the academic writings of
Schmidt & Rademeyer in Bewysreg, the SCA indicated that “where
the evidence sought to be admitted
bears on the central issue in the
case a Court should be slow to admit it”. In that regard, the
SCA also referred to the
decision of S v Ramavhale
23
a criminal case that establishes the following principle:
‘
I
do not wish to enter into the debate whether section 3(1)(c) should
or should not be lightly applied, but I would agree with the
remarks
in this and other cases, the effect of which is that a judge should
hesitate long in admitting or relying on hearsay evidence
which plays
a decisive or significant part in convicting an accused, unless there
are compelling justifications for doing so’
.
24
[29]
Section 3(1)(c)(iv) requires that the probative value of the evidence
be considered. Evidence sought to be introduced in terms
of this
sub-section may be such that its probative value, even at first
blush, is minimal and in those circumstances the enquiry
will end
there. The sum total of Aphane’s evidence as it appears in the
two affidavits is that she was involved in the scheme
that was
designed and implemented by Mofomme and participated in by both her
and Mahlangu. The applicant’s difficulty is
that both Mahlangu
and Mofomme deny any such knowledge or participation in the scheme.
According to the affidavits, Aphane does
not clearly indicate the
precise involvement of Mahlangu and insofar as she alleges that it
was Mofomme who received the monies
from the sale of the stolen
goods, that evidence is disputed by the affidavit submitted on behalf
of Molefe and the evidence given
by Mynhardt.
[30]
In the circumstances, the probative value of the affidavits is quite
clearly ridden with contradictions and is minimal in value.
One may
speculate as to why Aphane signed two affidavits, and why she
recorded her evidence on video but was yet unwilling to provide
her
evidence in the arbitration proceedings. There were clearly
contradictions in her affidavits and there were clearly gaps in
the
information that she provided. In the context of this case, the
probabilities of her version are not established and the applicant
clearly cannot contend, on the basis of those affidavits, that its
onus had been discharged. Regard being had to these factors,
one is
led to the conclusion that Aphane’s affidavits lack probative
value.
[31]
Section 3(1)(c)(v) of the Act requires that a Court enquire into the
reasons why the evidence is not given by the person whose
credibility
the probative value of such evidence depends. As recorded earlier in
this judgment, no explanation was given as to
why Molefe was not
called as a witness, and no reasonable justification was given for
the failure of the applicant to produce Aphane
as a witness. To the
extent that the applicant was able to corroborate the information
supplied by Aphane, it did not seek such
corroboration from the
drivers’ assistants who were implicated by Aphane in her
affidavits. In my view, the arbitrator raised
a legitimate point of
criticism against the applicant that it had not provided a reasonable
explanation as to why the witnesses
who could have given evidence and
upon whose credibility the probative value of such evidence depends
were not made available for
the purposes of the arbitration
proceedings.
[32]
Section 3(1)(c)(vi) requires a consideration of prejudice to the
party against whom the evidence is sought to be adduced. The
evidence
in this matter, if accepted, would have overwhelmingly placed Mofomme
at an incredible disadvantage in circumstances were
she was simply
unable to test by cross-examination the information provided by
Aphane in the affidavits. This was obviously prejudicial
and in the
absence of any other evidence to corroborate the information provided
by Aphane, a conviction against Mofomme was achieved
without due
regard to her rights to a fair trial as indicated by the
Constitutional Court in Molimi. It is the degree of the prejudice
that must in each case be taken into account to determine whether an
injustice will be done to a party against whom it is sought
to be
adduced and that is a matter of fact to be determined in the
circumstances of each case.
25
In my view, the prejudice is heavily weighted against Mofomme, and in
the absence of any other evidence to corroborate Aphane’s
evidence it must be discounted and be rendered inadmissible.
[33]
Finally, in terms of section 3(1)(c)(vii) of the Act, the Court is
required to take into account any other factor, which must
refer to
any relevant factor not yet covered by any of the preceding
categories. In that regard the applicant did not produce any
further
information which can be had in order to determine this matter.
[34]
When all of the factors enjoined are weighed or taken together, I am
of the view that it is in the interest of justice not
to admit the
hearsay evidence produced by the applicant in this matter and on
which it secured a conviction of guilt and subsequently
dismissed
Mofomme. The deficiencies in the affidavits, together with a lack of
corroborating evidence, and the denials by both
Mahlangu and Mofomme
all have a bearing on this issue. In the circumstances, I have come
to the conclusion, in applying the Sidumo
test, that the decision of
the arbitrator in this matter was a decision of a reasonable
decision-maker. In the circumstances and
for all of the above
reasons, the review application must fail.
[35]
I accordingly make the following order:
(a)
The review application is dismissed with costs.
Gaibie
AJ
Acting
Judge of the Labour Court
APPEARANCES
FOR
THE APPLICANT: Mr B Masuku from Mervyn Tabac Incorporated
FOR
THE THIRD AND FOURTH RESPONDENTS: Mr W Khosa from the Retail &
Allied Workers Union
1
Pages
224 to 225 of the record.
2
Pages
233 to 234 of the record.
3
Page
112 of the record.
4
Page
115 of the record.
5
Page
115 of the record.
6
See
para 3 page 114 of the record.
7
See
para 3 page 115 of the record.
8
Page
117 of the record.
9
Para
31 of the award at page 97 of the record.
10
Pages
96 to 97 of the record.
11
[2012]
9 BLLR 857
(LAC).
12
Para
37.1.1 of the founding affidavit and page 18 of the pleadings
bundle.
13
Para
37.1.2 of the founding affidavit and page 18 of the pleadings
bundle.
14
Para
37.1.3 of the founding affidavit and page 18 of the pleadings
bundle.
15
Para
37.1.4 of the founding affidavit and page 18 of the pleadings
bundle.
16
2013
(6) SA 224
(SCA), at para 12.
17
Southern
Sun Hotels (PTY) Ltd v SACCAWU
2000
21 ILJ 1315 (LAC); and
Edcon
Ltd v Pillermer NO
2008 29 ILJ 614 (LAC).
18
S
v Molimi
2008
(3) SA 608 (CC).
19
2002
(1) SA 511
(SCA).
20
S
v Shaik and Others
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA) at para 170.
21
[2008] ZACC 2
;
2008
(3) SA 608
(CC).
22
2002
(6) SA 305
(SCA) at para 17.
23
1996
(1) SACR 639
(a).
24
At
649 (c) to (d) of that judgment.
25
Page
524 of
Makhatini.