Banda v General Public Service Sectoral Bargaining Council and Others (JR3273/2009) [2014] ZALCJHB 71 (26 February 2014)

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[2014] ZALCJHB 71
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Banda v General Public Service Sectoral Bargaining Council and Others (JR3273/2009) [2014] ZALCJHB 71 (26 February 2014)

REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 3273/2009
In the matter between:
RESTIN PASKA BANDA
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
First

Respondent
THULANI AKIM N.O.
Second

Respondent
DEPARTMENT OF HOME
AFFAIRS
Third

Respondent
Heard:

15 August 2013
Delivered:
26 February 2014
Summary:
Bargaining Council arbitration proceedings – Review of
proceedings, decisions and awards
of arbitrators – Test for
review – application of review test set out –
determinations of arbitrator compared
with evidence on record –
arbitrator’s award regular and sustainable – award upheld
Bargaining
Council arbitration proceedings – Review of proceedings,
decisions and awards of arbitrators – assessment
of evidence
and legal principles by arbitrator – assessment and
determination reasonable – award upheld
Misconduct
– dishonesty – principles applicable to dishonest conduct
– conduct of the employee constituting an
offence of dishonesty
– dismissal justified
Inconsistency
– allegations of inconsistent treatment of employee by employer
– principles considered – no inconsistency
shown
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This matter concerns an application by the applicant to review and
set aside an arbitration award of the second respondent in
his
capacity as an arbitrator of the GPSSBC (the first respondent). This
application has been brought in terms of Section 145 of
the Labour
Relations Act
[1]
(“the LRA”).
[2]
This matter concerned an unfair dismissal dispute. The applicant
contended that he had been unfairly dismissed by the third
respondent
and pursued a dispute to the first respondent as the applicable
bargaining council. The matter came before the second
respondent for
arbitration, pursuant to which arbitration proceedings the second
respondent determined that the applicant’s
dismissal was fair
and dismissed his referral. It is this determination by the second
respondent that forms the subject matter
of the review application
brought by the applicant, which application was ultimately filed some
32 days out of time. As such, the
issue of condonation for this late
referral needs to be considered.
Condonation
[3]
The applicant contends his union received the award on 17 September
2009. This corresponds with the telefax transmission report
appearing
on the award as attached to the founding affidavit. The review
application was served and filed on 2 December 2009, which
makes it
more than a month late, which insofar as it concerns review
applications, can be considered in general to be material.
I
n
Academic
and Professional Staff Association v Pretorius NO and Others,
[2]
even a three weeks’ delay was found to be excessive when it
comes to review applications. Because the delay is material,
a
comprehensive and proper explanation is required for the delay.
[4] T
he
Labour Appeal Court in
A
Hardrodt
(SA) (Pty) Ltd v Behardien and Others
[3]
dealt with a condonation application for the late filing of a review
application. The Court
referred
with approval to the judgment in
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
[4]
and
said:
‘
The
principles laid down in that case included, firstly that there must
be good cause for condonation in the sense that the reasons
tendered
for the delay had to be convincing. In other words the excuse for
non-compliance with the six-week time period had to
be compelling.
Secondly, the court held that the prospects of success of the
appellant in the proceedings would need to be strong.
The court
qualified this by stipulating that the exclusion of the appellant's
case had to be very serious, ie of the kind that
resulted in a
miscarriage of justice.’
[5]
What is clear from the judgment in
A
Hardrodt
is that in seeking condonation for the late filing of
a review application, the explanation that needs to be submitted must
be compelling
and the prospects of success need to be strong. Where
it comes to the issue of prejudice, the applicant in fact has to show
that
a miscarriage of justice will occur if the applicant’s
case is not heard. The reason for these particular considerations is

that review applications occur after the parties have already been
heard, presented their respective cases and a finding has been
made.
Under such circumstances, considerations of justice, fairness and
expedition require that challenges of such findings must
not be
delayed and must be completed as soon as possible, especially
considering that no appeal lies against such findings.
[6] The Court in
Academic
and Professional Staff Association,
[5]
developed the principles applicable to the consideration of
condonation in the context of review applications even further, and

held as follows:
‘
The
factors which the court takes into consideration in assessing whether
or not to grant condonation are: (a) the degree of lateness
or
non-compliance with the prescribed time frame; (b) the explanation
for the lateness or the failure to comply with time frame;
(c)
prospects of success or bona fide defence in the main case; (d) the
importance of the case; (e) the respondent's interest in
the finality
of the judgment; (f) the convenience of the court; and (g) avoidance
of unnecessary delay in the administration of
justice. See
Foster
v Stewart Scott Inc
(1997)
18 ILJ 367 (LAC).
It
is trite law that these factors are not individually decisive but are
interrelated and must be weighed against each other. In
weighing
these factors for instance, a good explanation for the lateness may
assist the applicant in compensating for weak prospects
of success.
Similarly, strong prospects of success may compensate the inadequate
explanation and long delay.’
[7] The applicant
explained the delay in this matter as follows: (1) the applicant
himself only became aware of the award on 7 October
2009; (2) the
applicant was told by Mnguni from his union NEHAWU that the award was
reviewable and that he (Mnguni) would call
him on 9 October 2009 to
pursue the matter further; (3) the drafting process was delayed
because NEHAWU had to procure the services
of an attorney; (4) Mnguni
was often unavailable prompting the applicant to  approach
Pandelani Attorneys himself; (5) the
applicant collected his file
content from NEHAWU on 30 October 2009, and handed the same to
Pandelani Attorneys on the same day
to proceed with the review.
[8] I consider the above
explanations to be wholly insufficient. In particular, the entire
period from 30 October 2009 to 2 December
2009 is unexplained. It
also appears that the applicant blames his union and his erstwhile
attorneys for the failures and it is
now trite that in the absence of
proper explanation of the applicant that he actually regularly
pursued and follow up on the matter
with his representatives, he must
stand or fall by the conduct of his chosen representatives.
[6]
The explanation is lacking to the extent that it could justifiably
lead to conclusion that condonation be refused on this basis
alone.
What however, in my view saved the applicant’s review from
failure on this basis is the fact that the third respondent
did not
oppose this condonation application and the issue of condonation was
not raised by the third respondent when the matter
was argued before
myself. Therefore, and despite the lack of proper explanation, the
absence of opposition to condonation, and
the fact that the matter
was fully and properly ventilated and argued before me on the merits
thereof, convinces me to consider
the issue of the prospects of
success of the review application and this in turn
entails
a determination of the merits of the applicant’s review
application, which I will now proceed doing. I will thus record
that
condonation is granted for this purpose.
Background facts
[9]
The applicant was employed by the third respondent as a chief
administration clerk in the third respondent’s customary

marriages section. The principal part of the duties of the applicant
is the actual registration of customary marriages, which act
of
registration clearly, as a matter of common sense, has material
implications to the applicable parties.
[10]
Where it comes to customary marriages, it is the registering officer,
in this case the applicant, that has a discretion whether
to register
the marriage or not. The applicant’s position therefore carries
with it a duty of integrity, honesty, and also
responsibility. The
applicant in fact decides on the status of individual citizens coming
before him.
[11]
The third respondent, in the past, had experienced difficulties with
the registration of customary marriages, and in particular,
there
were instances where the husband in a customary marriage was not
present or refused to be present, before the registering
official, in
order to sign the required application documents. The normal process
is that both parties must be present, ask for
the marriage to
registered, and both parties then complete and sign the relevant
documents in the presence of witnesses of each
party. However, and as
a result of the deliberate non attendance by the husband parties or
the refusal to co-operate by husband
parties, which would then abort
the registration process, the third respondent issued a directive on
21 September 2001 in the form
of Department Circular 34 of 2001. In
terms of this directive, the registration officer of the customary
marriage was given a discretion
to decide to register a customary
marriage in the absence of the husband party (or for that matter the
wife party), provided certain
requirements are met. The first is that
the husband party must be given the opportunity to respond to the
application. This of
course, as a matter of simple logic, means that
it has to be shown that the husband party was aware of the
application. Then independent
evidence that is available to establish
the customary marriage exists must be considered, and the date of the
marriage established.
If the registering officer still decides to
refuse to register the marriage, reasons must be given for such
refusal.
[12]
There is also a prescribed application process and application form
which must be completed by the parties and the registering
officer to
register such marriages, known as form BI – 1699. Some
attention must be paid to this application form itself,
and the
accompanying application process. Firstly, the date of the marriage
must be considered. Once the date of marriage is determined,
the BI –
1699 form must be completed. Part A consists of the particulars of
the husband. Part B is a declaration by the husband,
and of relevance
to this matter, if the husband refuses to participate details of the
circumstances should be furnished, and where
applicable the response
to the application recorded in the application. Parts C and D are the
particulars of the wife and declaration
by the wife, with the same
provisions mutatis mutandis applicable is she refuses to participate.
Finally, and as a general proposition,
the registering officer must
be able to substantiate any decision he or she made in this
registration application process in a
Court.
[13]
A final consideration is the provisions of the Recognition of
Customary Marriages Act 120 of 1998 (“the Marriages Act”)

itself. In terms of Section 4(3)(b) of the Marriages Act, any
marriage entered into after the Marriages Act came into operation,

must be registered within 3 months after conclusion of the marriage,
otherwise it cannot be registered.
[14]
Dealing then with the particular background facts of this matter, the
issue concerned an alleged customary marriage between
one Sydwell
Mfeka (“Mfeka”) and Lugile Octavia Nkosi (“Nkosi”).
According to the evidence, this marriage
was concluded on 6 December
2003. Nkosi then came before the applicant only in 2007 to register
this customary marriage with Mfeka.
[15]
The first and most immediate difficulty is that this marriage was
concluded in 2003. The Marriages Act had by that time been
in
operation for some years. The appearance before the applicant in 2007
was therefore way beyond the 3 month time limit prescribed
by Section
4(3)(b) of the Marriages Act. The date of the marriage was the first
thing the applicant had to determine and surely
he must have known of
the 3 month time limit, that this time limit had passed, and there it
was simply not competent for him to
have registered the marriage.
[16]
This then leads to a consideration of the registration application
itself before the applicant in 2007. The application form
was
completed by the applicant. There is no evidence or indication that
the applicant satisfied himself that Mfeka was even aware
of the
application. In fact, all the applicant did was to obtain an
affidavit provided by Nkosi which recorded that Mfeka was refusing
to
register the marriage because Nkosi caught him cheating with another
woman. This affidavit was dated 14 August 2007 and was
part of the
documentary evidence.
[17]
In completing the form itself, the applicant merely recorded under
the declaration by Mfeka (Part B of the form) under the
paragraph
dealing with possible other customary marriages that this information
was “unavailable” and did not record
anything to the
effect that Mfeka refused to participate in the process or what steps
were taken to ensure he was aware of the
process or what his
contentions with regard to the process may have been. There is no
evidence that the applicant ever contacted
Mfeka. In addition, the
applicant signed part B of the form as registering officer as if
Mfeka had made a declaration in part B
of the application as the
husband party. Under the representative (witness) for Mfeka, the
applicant also only simply records “unavailable”.
The
applicant duly registered this marriage on 15 August 2007.
[18]
What was common cause is that Mfeka subsequently attended at the
offices of the third respondent to express his dissatisfaction
with
the registering of the marriage to Nkosi without his knowledge. It is
also clear that Mfeka laid a charge with the SAPS about
this. In
addition, the entire incident formed the subject matter of an article
appearing in the Soweto Newspaper of 9 June 2008.
The third
respondent was compelled, in the end, to deregister the marriage and
the entire saga then led to High Court litigation.
[19]
On 24 July 2008, the applicant was then charged by the third
respondent on two charges of misconduct. The first charge was
essence
one of fraud relating to the applicant’s processing and
registering of the customary marriage of Mfeka and Nkosi
on 15 August
2007 and his completion of the application form in the manner that he
did. The second charge related to misconduct
in that the applicant
registered the marriage outside the time limit prescribed by the
Marriages Act.
[20]
The disciplinary hearing took place on 4 August 2008. On 14 October
2008, the outcome of the disciplinary hearing was conveyed
to the
applicant and his dismissal was recommended. The applicant appealed
against his dismissal and on 9 January 2009, the applicant’s

dismissal was upheld on appeal.
[21]
The applicant the referred his dispute to the first respondent which
dispute then came before the second respondent for arbitration.
The
applicant challenged his dismissal only on the basis that it was
substantively unfair. The second respondent ultimately determined

that the applicant’s dismissal was substantively fair and
dismissed his application. This determination then gave rise to
the
current proceedings before me.
The relevant test
for review
[22]
The proper test for review test came about following the judgment of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[7]
where
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, and that ‘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?’
[8]
Following on, and in
CUSA
v Tao Ying Metal Industries and Others,
[9]
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
.’
[23]
The review test set out in
Sidumo
(and
Tao Ying
Metal Industries
)
envisaged a comparison by a review court of the totality of the
evidence that was before the arbitrator as well as the issues
that
the arbitrator was required to determine, to the outcome the
arbitrator arrived at, in order to ascertain if the outcome the

arbitrator came to was reasonable. The
Sidumo
review
test was applied in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[10]
,
and the Court, as to what would be considered to be unreasonable for
the purposes of this test, said:
[11]
‘
The Constitutional
Court further held that to determine whether a CCMA commissioner's
arbitration award is reasonable or unreasonable,
the question that
must be asked is whether or not the decision or finding reached by
the commissioner 'is one that a reasonable
decision maker could not
reach' (para 110 of the
Sidumo
case). If it is an award or
decision that a reasonable decision maker could not reach, then the
decision or award of the CCMA is
unreasonable, and, therefore,
reviewable and could be set aside. If it is a decision that a
reasonable decision maker could reach,
the decision or award is
reasonable and must stand. It is important to bear in mind that the
question is not whether the arbitration
award or decision of the
commissioner is one that a reasonable decision maker
would
not
reach but one that a reasonable decision maker
could
not reach
...’
The
Court in
Fidelity
Cash Management Service
concluded:
[12]
‘…
It seems
to me that,… there can be no doubt now under
Sidumo
that the  reasonableness or otherwise of a commissioner's
decision does not depend - at least not solely - upon the reasons

that the commissioner gives for the decision. In many cases the
reasons which the commissioner gives for his decision, finding
or
award will play a role in the subsequent assessment of whether or not
such decision or finding is one that a reasonable decision
maker
could or could not reach. However, other reasons upon which the
commissioner did not rely to support his or her decision
or finding
but which can render the decision reasonable or unreasonable can be
taken into account. This would clearly be the case
where the
commissioner gives reasons A, B and C in his or her award but, when
one looks at the evidence and other material that
was legitimately
before him or her, one finds that there were reasons D, E and F upon
which he did not rely but could have relied
which are enough to
sustain the decision.’
[24]
One of the most recent instances of consideration of the review test
can be found the SCA judgment of
Andre
Herholdt v Nedbank Ltd
[13]
where the Court concluded as follows:
[14]
‘
In summary the
position regarding the review of CCMA award is this: A review of a
CCMA award is permissible if the defect in the
proceedings fall
within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have
misconceived the nature of the inquiry or
arrived at an unreasonable
result. A result will only be unreasonable if it is one that a
reasonable arbitrator could not reach
on all the material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached
to the particular facts, are not in and
of themselves sufficient for an award to be set aside, but are only
of consequence if their
effect is to render the outcome
unreasonable.’
What
the Court was saying, simply put, is that if the arbitrator ignored
material evidence, and in considering this material evidence
together
with the case as a whole, the review court believes that the
arbitration award outcome cannot now be reasonably sustained
on any
basis, then the award would be reviewable.
[25] Following the
judgment of the SCA in
Herholdt
,
the Labour Appeal Court has now in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[15]
again interpreted and applied the
Sidumo
review
test and held as follows:
[16]
‘
Sidumo does not
postulate a test that requires a simple evaluation of the evidence
presented to the arbitrator and based on that
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator. … In other words, in a case
such as the present,
where a gross irregularity in the proceedings is alleged, the enquiry
is not confined to whether the arbitrator
misconceived the nature of
the proceedings, but extends to whether the result was unreasonable,
or put another way, whether the
decision that the arbitrator arrived
at is one that falls in a band of decisions a reasonable decision
maker could come to on the
available material’
The Court concluded:
[17]
‘
In short: A review
court must ascertain whether the arbitrator considered the principal
issue before him/her, evaluated the facts
presented at the hearing
and came to a conclusion which was reasonable to justify the decision
he or she arrived at.’
[26]
In the light of the above, t
he first step in a
review enquiry is to consider or determine if an irregularity indeed
exists. A review court determines whether
such an irregularity exists
by considering the evidence before the arbitrator as a whole, as
gathered from the review record and
comparing this to the content of
the award and reasoning of the arbitrator as reflected in such award.
The review court must also
at this stage apply all the relevant
principles of law in order to determine what indeed constituted the
proper evidence that the
arbitrator, as a whole, would have had to
consider. Once an irregularity is identified, the materiality of the
irregularity then
becomes relevant and must be considered. This means
that the irregularity committed by the arbitrator must be a material
departure
from the acceptable norm or a material deviation from the
actual evidence before him or a material departure from the proper
principles
of law or a material failure to consider and determine the
evidence or case, in order to constitute an irregularity of
sufficient
magnitude to satisfy this first step in the enquiry. If
the review court in conducting this first step enquiry should find
that
no irregularity exists in the first instance, the matter is at
an end, no further determinations need to be made, and the review

must fail.
[27]
Should the review court however, conclude that a material
irregularity indeed exists, then the second step in the review test

follows, which is a determination as to whether if this irregularity
did not exist, this could reasonably lead to a different outcome
in
the arbitration proceedings. Put differently, could another
reasonable decision-maker, in conducting the arbitration and arriving

at a determination, in the absence of the irregularity and
considering the evidence and issues as a whole, still reasonably
arrive
at the same outcome? In conducting this second step of the
review enquiry, the review court need not concern itself with the
reasons
the arbitrator has given for the outcome he or she has
arrived at, because the issue of the arbitrator’s own reasoning
was
already considered in deciding whether an irregularity existed
being the first part of the test. The review court, in essence, takes

the proper evidence as a whole, as ascertained from the review
record, considers the relevant legal principles and decides whether

the outcome that the arbitrator arrived at could nonetheless
reasonably be arrived at by another reasonable decision-maker, even

if it is for different reasons. If, and pursuant to this second step
in the review enquiry, the review court is satisfied that
the same
outcome could not reasonably follow even for any other reasons, then
the review must succeed, because, simply put, the
irregularity would
have affected the outcome. The end result always has to be an
unreasonable outcome flowing from an irregularity
for a review to
succeed.
[28]
I will now proceed to determine the applicant’s review
application on the basis of the above principles and the two step

enquiry in the application of the
Sidumo
test as I have set
out above.
The
reasoning of the arbitrator
[29]
The second respondent accepted that the marriage between Mfeka and
Nkosi was contended to have been concluded on 6 December
2003. The
second respondent then considered the provisions of the Marriages Act
and held that the time frame for registering a
customary marriage, as
applicable in this instance, was 3 months from the date when it was
celebrated. The second respondent then
concluded that the applicant
had registered the marriage after the expiry of this 3 month period
and thus committed misconduct
as contemplated by the second charge
against the applicant.
[30]
The second respondent next dealt with the BI – 1699 form
completed by the applicant in registering the marriage between
Mfeka
and Nkosi and his conduct relating to the same. The second respondent
accepted that the applicant misrepresented the facts
on this
application form, with specific reference to the applicant in effect
certifying that Mfeka made a declaration when Mfeka
did not and that
he registered the marriage when no witnesses for Mfeka was present.
The second respondent further concluded
that the applicant had
a duty to confirm that the customary marriage existed with Mfeka and
did not do so and in effect registered
the customary marriage based
on a lie.
[31]
The second respondent also dealt specifically with the applicant’s
two primary defenses raised in the arbitration. The
first defense was
that the applicant was unaware of the provisions of the Marriages
Act, and this defense the second respondent
rejected. The second
defense was that the applicant was not properly trained on how to
complete the registration application or
even trained at all, and
this defense the second respondent also rejected on the basis of
being unlikely and in any event unsubstantiated
by the applicant.
[32]
The second respondent accepted the applicant was in fact guilty of
fraud and that the third respondent was prejudiced as a
result. The
second respondent concluded that the applicant’s dismissal was
justified in the circumstances.
[33]
I may mention that the second respondent made no finding on the issue
of procedural unfairness, as he was not called on by
the parties to
determine the issue of procedural fairness. Inexplicably, the
applicant however, has a lot to say about procedural
unfairness in
his founding affidavit in the review application, but considering
there was no issue about procedural unfairness
before the second
respondent, I shall not regard to any of these contentions of the
applicant.
The
applicant’s grounds of review
[34]
The applicant has raised a number of grounds of review in the
founding affidavit, spanning some 8 pages. I do not propose to
set
out all of these grounds of review individually, some of which are
duplicated and others overlap. In summary, and distilled
to the core,
the applicant’s grounds of review are the following: (1) the
second respondent failed to apply his mind in that
he preferred the
evidence of the third respondent over that of the applicant
(including documentary evidence); (2) the second respondent
failed to
refer in his award to certain documents submitted by the applicant,
and in particular the application forms completed
by other employees;
(3) the second respondent committed misconduct by not considering the
evidence of two of his witnesses (Cooney
and Sibanda), and by not
properly assessing their evidence; (4) the second respondent adopted
a “criminal mode” when
determining the issue of an
appropriate sanction; (5) the second respondent acted irregularly in
not finding that there was nothing
peculiar in the applicant
registering the marriage of Mfeka and Nkosi; (6) the second
respondent erred in his conclusions as the
probabilities favoured the
applicant; (7) the second respondent failed to consider the issue
raised that another employee (Smal)
had also registered customary
marriages in a similar manner as the applicant but was not dismissed;
and (8) the second respondent
ignored the applicant’s
documents.
[35]
In presenting argument, Mr
Malhabathe
, who
represented the applicant, based the applicant’s case on five
basic pillars. Firstly, and according to the applicant,
what the
actual evidence in this matter showed was that the applicant was
never trained in completing the marriage registration
forms.
Secondly, the applicant was not aware of the provisions of the
Marriages Act. Thirdly, the actual provisions of the Marriages
Act
and accompanying regulations did not require that the husband had to
be there or give a declaration. Fourthly, the evidence
showed that
the third respondent was inconsistent in applying discipline to other
employees that did the same as the applicant
were not disciplined.
The final pillar was that the applicant never committed fraud and was
always
bona fide
, and if any fraud was committed it was
committed by Nkosi.
Merits of the
review: substantive fairness
[36]
The first issue to consider is the applicant’s complaints with
regard to the fact that the second respondent preferred
the evidence
and case of the third respondent over that of the applicant.
The
point of departure in determining this ground of review is to state
that w
here
the second respondent prefers the evidence of the third respondent
over that of the applicant’s and his witnesses, this
is in
essence a finding of credibility. As was said in
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others:
[18]
‘One of the commissioner's prime functions was to ascertain the
truth as to the conflicting versions before him.’ In
this
regard, I also refer to
Standerton
Mills (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[19]
where the Court said:
‘
... 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.’
[37]
I also dealt with the very issue of the challenge of credibility
findings of arbitrators in review proceedings, in the matter
of
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
[20]
and said:
‘
The issue of the
importance of credibility findings made by the 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 demeanour
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.’
[38]
I have considered the record of evidence in this matter, as a whole.
There is in my view simply nothing that can be ascertained
from the
record which could serve as a basis to interfere with the second
respondent having preferred any evidence by the third
respondent over
that of the applicant. In order for the second respondent’s
credibility findings to be susceptible to being
assailed on review,
the record of evidence had to reveal that the second respondent’s
preference of the evidence of the third
respondent was completely out
of kilter with the actual evidence as gathered from the transcript.
An example would be where there
are material contradictions in the
testimony of a witness appearing clearly from the record and then,
from a comparison of the
arbitrator’s award to such testimony
on the record, it is apparent that these contradictions were entirely
ignored. The problem
the applicant has is that I can find nothing of
such significance on the record of evidence which can substantiate
any form of
interference with the award of the second respondent. I
hasten to say that I consider the second respondent’s
credibility
finds to be actually correct.
[39]
For the sake of completeness, I am also compelled to state that I
have read the evidence presented by Mr Jimmy Malema (“Malema”),

the witness for the third respondent, as it appears on record, and
have found his evidence to be concise and consistent. Under
cross
examination, Malema was never found wanting and his evidence
corresponded with what he had testified to in chief, and in
any event
made sense as compared to the documentary evidence. It was entirely
proper and rational to have considered him to be
a credible witness.
The applicant, on the other hand, simply did not fare as well as
Malema. I found material contradictions in
the evidence of the
applicant, especially on the issue of training, where the applicant’s
version varied depending on the
questions he was being asked. The
applicant’s evidence on the completion of the application
documents was also entirely unsatisfactory,
and in my view quite self
serving. At one point, and following extensive cross examination by
the third respondent’s representative,
the applicant was
actually compelled to concede that how he testified the form had to
be completed could not be correct, and having
so conceded, the
applicant then contended that he simply did as he was taught (despite
having earlier contended he was taught nothing).
I would not have
considered the applicant to be a credible witness, and as such, I
simply cannot find any substantiation or basis
to interfere with the
second respondent’s conclusions as to what evidence he
preferred. In the end, the second respondent’s
credibility
findings must be sustained.
[40]
I will next deal with the issue of the applicant registering the
customary marriage between Mfeka and Nkosi outside the 3 month
time
period prescribed by the Marriages Act. The undisputed evidence was
that such registration after this 3 month period had elapsed
was
prohibited. In considering this issue, I start by making specific
reference to the contention of the applicant that he was
unaware of
the provisions of the Marriages Act. I find this contention to be
simply unpalatable. In fact, for the applicant, being
the responsible
registering officer that registers customary marriages in terms of
the Marriages Act, to contend that he was unaware
of the provisions
of the very legislation that forms the basis of his duties, is a firm
indictment of the applicant in itself.
The applicant is thus saying
he does not even know the provisions of the very legislation he must
apply every day as part of his
core duties. This kind of contention,
in itself, would go a long way in justifying the termination of
employment of the applicant.
The situation is exacerbated by the fact
that the only reason why the applicant would say this is to get
around the fact that he
proceeded to register the customary marriage
between Mfeka and Nkosi when it was glaringly apparent that it was
long after the
3 month prescribed period and as such, the
registration was actually prohibited. The applicant actually has no
explanation for
this misconduct. It is flagrant, and the applicant’s
attempts to disavow responsibility by pleading ignorance is
manifestly
unacceptable. The second respondent’s findings with
regard to the second charge relating to the registration of the
marriage
outside the 3 month period is not only reasonable, but in my
view actually correct. The second respondent’s conclusion that

the applicant indeed committed the misconduct as contemplated by the
second charge against him is certainly no irregularity, and
must be
sustained.
[41]
This then leads me to consider the first charge, being the manner of
completion of the BI – 1699 document by the applicant
and his
subsequent registration of the customary marriage of Mfeka and Nkosi
as a result. As I have touched on above, even the
applicant in the
end had to concede that the manner in which he completed the form
cannot be correct. The Circular 34 of 2001 was
also undisputed
evidence and actually made it clear what was required. In any event,
a consideration of the application document
itself, and its
completion, is very much a matter of common sense. It surely cannot
take much insight to appreciate that where
a husband party is not
present to complete his part of the form and make a declaration, as
prescribed, that the registration officer
must at least ascertain if
this party is actually aware of the application and give that party
an opportunity to explain why he
is not there. It was also undisputed
that the registration officer has a discretion to register the
marriage or not and must be
able to substantiate the decision taken
in this regard in Court. Now all of this must result in considerable
difficulties having
regard to what the applicant actually did. He
never made contact with Mfeka. He never asked Mfeka to explain
himself. He did not
even ascertain from Mfeka if he actually knew of
the application. The manner in which the applicant then completed
part A and B
of the form was actually consistent with Mfeka having
been there. The same consideration applies to the absence of the
witness
party for Mfeka. All that the applicant relied on was the
lobola agreement and an affidavit by Nkosi herself, which was
woefully
inadequate. On the undisputed facts, the applicant should
never have registered the customary marriage of Mfeka and Nkosi, and
committed misconduct in doing so The third respondent had thus made
out at least a
prima
facie
case in this regard. The next question then is why did the applicant
do this, and the applicant carried the evidentiary burden
to provide
an acceptable explanation. In
Aluminium
City (Pty) Ltd v Metal and Engineering Industries Bargaining Council
and Others
[21]
the Court held as follows:
‘…
In
Federal
Cold Storage Co Ltd v Angehrn and Piel
1910 TS 1347
at 1352, the
court stated
‘
But the burden of
proving to be honest what admittedly on its face looked dishonest
rested upon the respondents themselves, not
upon the appellants.
Once
the appellants had proved a
prima facie
case of
misconduct
on the part of the respondents in taking, in violation
of their duty, a secret profit of the kind described, the dismissal
stood
prima facie
justified,
the burden of proof was
shifted, and it lay upon the respondents
...’ (emphasis
added)
[42]
In
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
[22]
I said:
‘…
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. …
‘
[43]
The explanation the applicant then proceeded to offer was a lack of
training. I however, have little hesitation in rejecting
this
explanation not only as being unacceptable per se, but also on the
basis of it being false. There are a number of reasons
for this
conclusion. The first is the evidence presented by Malema. Malema
stated that proper training is always provided. He specifically

referred to in occupation training, and training facilitated from
head office. Malema also stated that areas of concern are dealt
with
by memorandums from head office, such as the Circular 34 of 2001.
Malema also referred to a manual in the possession of all
officers
which they are fully acquainted with. Malema was extensively cross
examined on the issue of training and I am satisfied
that his
evidence under cross examination remained entirely consistent with
that presented in chief. Secondly, and when coming
to the applicant,
his evidence on the issue of training left a lot to be desired. The
applicant, in giving evidence, initially
conceded that he received in
occupation training from his supervisor when he started his
appointment as registering officer. The
applicant then contended he
received no training whatsoever and was left to his own devices to
complete the forms. Then, and when
challenged on the fact that the
manner in which he completed the form made no sense considering the
content of the form itself,
the applicant then contended that he
completed the form in the manner that he did because that was how he
was trained to do it.
Then, later on in his evidence, the applicant
again reverted to the version he was not trained at all.  Now,
clearly, this
evidence by the applicant is simply unacceptable. The
applicant can either use an explanation of being incorrectly trained,
or
an explanation that he was not trained. He cannot use both, as
these explanations simply cannot exist in conjunction with one
another.
To prefer the evidence of Malema with regard to the issue of
training is in the circumstances a matter of logic and simple
consequence,
and as a result, the explanation of the applicant of any
lack of training fails.
[44]
The applicant sought to bolster his case of not having been trained
by calling two witnesses, being Cooney and Sibanda. The
applicant
took issue on review with the fact that the second respondent
considered the evidence of these two witnesses of no consequence.
I
however, consider the approach and determination of the second
respondent in this regard to have been entirely justified. Cooney

actually testified that she had no knowledge of the process relating
to the registration of customary marriages or training relating
to
the same, and she did not even deal with it. Sibanda testified that
he ceased to be a registering officer in 2004, and with
the applicant
only becoming a registering officer in 2006, it is difficult to
comprehend how Sibanda can give reliable comment
or testimony on any
aspect or issue of the training of customary marriage registering
officers from 2006 onwards. I am left with
the distinct feeling that
the applicant called these witnesses simply to argue that he had more
witnesses than the third respondent.
I conclude that the testimony of
Cooney and Sibanda did not substantiate the explanation of the
applicant of not being trained
in any manner, and the second
respondent was actually correct in so determining.
[45]
There is in any event an answer founded in simple logic to the
applicant’s lack of training explanation. It is surely
a matter
of common sense that where a customary marriage between two persons
is registered, both parties must be present. It also
has to be common
sense that if one of the parties is not there, then the registering
officer should at least be sure this party
knows about the
application being made and is given an opportunity to explain why, if
the party does not want to be there, the
party has adopted this view.
The considerations of logic is in any event actually recorded in
Circular 34 of 2001. After all, the
decision to register the marriage
or not must be able to be substantiated in Court. The application
form also speaks for itself,
and surely as a matter of common sense
the registering officer cannot sign part B of the form as if the
husband made a declaration,
and the part relating to the husband’s
witness as if his witness was there. In my view, the applicant’s
defense, which
is in essence is one of ignorance, is an artificially
created one. In this context, it cannot be ignored that the
applicant, as
discussed above, even went so far as to contend that he
did not know what the provisions of the Marriages Act was, and sought
to
rely on an affidavit deposed to by Nkosi herself to substantiate
registering the marriage in the absence of Mfeka. Common sense
and
logic thus directly contradicts the explanation of the applicant.
[46]
In the circumstances, the second respondent was entirely justified in
rejecting the lack of training explanation of the applicant
as
unlikely and unsubstantiated. The second respondent was actually
correct in concluding that the applicant’s registration
of the
marriage was based on a lie and constituted fraud. There is simply no
basis to interfere with the conclusion of the second
respondent that
the applicant was indeed guilty of misconduct in respect of the first
charge as well.
[47]
Accordingly, I conclude that there exists no irregularities of any
kind in the reasoning of the second respondent and in the

determination he came to with regard to the misconduct having been
committed by the applicant. There is therefore no basis to review
and
set aside the second respondent’s conclusions in this regard. I
thus uphold the second respondent’s award concerning
the
substantive merits of this matter.
The
issue of inconsistency
[48]
The decision I have come to above then leaves only the applicant’s
case of inconsistency. As was submitted by Mr
Malhabathe
for the applicant, this was the applicant’s “main”
case. I will thus give it particular attention. In deciding
this
issue, I will assume that inconsistency was properly raised as an
issue by the applicant in the arbitration and that the second

respondent did not consider and determine the issue. I will also
assume that this failure by the second respondent to consider
and
determine this issue constitutes a gross irregularity. What I
therefore will do is to consider whether the issue of inconsistency,

considering the record of evidence as a whole, could render the
ultimate outcome arrived at by the second respondent as being an

unreasonable outcome, because if that is the case, then the award of
the second respondent would be reviewable.
[49]
The point of departure in considering the case of inconsistency in
this matter is that the applicant carries the evidentiary
burden to
at least establish a
prima
facie
case of inconsistency before the third respondent is compelled to
supply an answer of a defense. I had the opportunity to deal
with
this issue in the judgment of
Frans
Mashubele v Public Health and Social development Sectoral Bargaining
Council and Others,
[23]
and said:
‘
Mr S M Shaba,
representing the third respondent, contended that the applicant had
the evidentiary burden to at least prove a prima
facie case of
inconsistency, before the third respondent could be expected to
answer the same. Mr Shaba stated that in this instance,
the applicant
failed to even provide prima facie evidence to establish
inconsistency and consequently the third respondent had
nothing to
answer. Mr Shaba stated that the applicant should have led evidence,
and only has himself to blame for not doing so.
I agree with these
submissions of Mr Shaba. The applicant had to at least have provided
a prima facie evidentiary platform to support
his contentions of
inconsistency….’
[50]
The above approach is also in line with what was said in
SA
Municipal Workers Union on behalf of Abrahams and Others v City Of
Cape Town and Others
[24]
where it was held:
‘
This
situation is, in my view, akin to the question of inconsistency where
an employee alleges inconsistency. The employee must
show the basis
thereof, for example he must reveal the name of the concerned
employee and also the circumstances of the case. This
is necessary
for the employer to respond properly to the allegation. Failure to do
so may lead to a finding that no inconsistency
exists or was
committed by the employer. This situation never shifts the onus from
the employer to the employee to prove that there
is no consistency.’
[51]
In
Comed
Health CC v National Bargaining Council for the Chemical Industry and
Others
[25]
the Court said the following:
‘
It is trite that
the employee who seeks to rely on the parity principle as an aspect
of challenging the fairness of his or her dismissal
has the duty to
put sufficient information before the employer to afford it (the
employer) the opportunity to respond effectively
to the allegation
that it applied discipline in an inconsistent manner. One of the
essential pieces of information which the employee
who alleges
inconsistency has to put forward concerns the details of the
employees who he or she alleges have received preferential
treatment
in relation to the discipline that the employer may have meted out.’
[52]
Considering the above duty of the applicant to establish
inconsistency, what was then the evidence presented by the applicant

in this respect? In the arbitration and in this review application,
the applicant introduced as evidence three other application
forms
completed in a manner similar to the application for completed by the
applicant in this matter. The applicant contended that
these three
other application forms completed by other employees in the same
manner as he did, establishes inconsistency. It is
however,
significant that the record shows that the applicant did not seek to
introduce these forms in the arbitration to establish
inconsistency
on the part of the third respondent in dismissing him, but that the
actual reason for the applicant seeking to introduce
these forms was
to prove that other persons were trained to complete the forms in the
same manner as the applicant did. The forms
were thus relied on by
the applicant to prove wrong training, and not inconsistency.
[53]
However, and even accepting that the applicant sought to rely on
these forms to establish inconsistency, one must ask what
was
actually then proven. The second respondent, as is apparent from a
debate between him and the applicant’s representative
reflected
in the record, was very much alive to this issue. It is clear from
this debate that it was made clear to the applicant
by the second
respondent that the mere introduction of the forms cannot establish
inconsistency without calling the persons that
completed these forms
to testify about the actual circumstances under which these forms
were completed. To put it simply –
the mere forms prove nothing
where it comes to inconsistency. For example, it may well be that a
form was completed as it was,
after the registering official made
sure the husband party was aware of the application and actually
extracted an explanation from
him. The applicant had to establish
like for like, and could only do this with testimony by the persons
that completed the forms.
When it was actually made clear to the
applicant’s representative that this was needed, the
applicant’s representative
then again reiterated that the forms
were there to prove the issue of training and not inconsistency. The
applicant’s representative
said in so many words, in the debate
with the second respondent: ‘I understand we are not
questioning consistency’.
[26]
But now in this review the applicant sings a different tune, and this
in my view is unacceptable.
[54]
Malema testified that he was unaware of any instance of a form being
completed as the applicant did, and under the circumstances
the
applicant did. Malema testified that without proper context, he
simply could not comment on the forms. There was certainly
no
evidence that the third respondent was aware that its officials were
completing the forms as the applicant did and conducting
themselves
as the applicant, and took no disciplinary action against officials
or condoned such behaviour. There was no case or
evidence that the
applicant was being singled out for treatment. If anything, the
evidence showed that the third respondent was
entirely unaware that
what the applicant contended was happening, was actually happening.
[55]
The applicant never testified about inconsistency. The applicant
never made out a case in his evidence that the third respondent
was
mala fide
or discriminatory, or had knowledge of what was
happening. All the applicant had to show inconsistency existed was
three forms
which on face value appeared to have been  completed
in the same fashion as the form completed by the applicant in this
case.
That is all. I am thus of the view that the applicant, on the
facts, has not even established a
prima facie
case of
inconsistency, which should be the end of this part of the case of
the applicant.
[56] However, I will
nonetheless apply the relevant legal principles to the above factual
matrix, for the sake to a complete determination.
The judgment in
SA
Commercial Catering and Allied Workers Union and Others v Irvin and
Johnson Ltd,
[27]
aptly determined the principles applicable, as follows:
‘…
In my view
too great an emphasis is quite frequently sought to be placed on the
'principle' of disciplinary consistency, also called
the 'parity
principle' (as to which see eg Grogan Workplace Law (4 ed) at 145 and
Le Roux and Van Niekerk The SA Law of Unfair
Dismissal at 110). There
is really no separate 'principle' involved. Consistency is simply an
element of disciplinary fairness
(M S M Brassey 'The Dismissal of
Strikers' (1990) 11 ILJ 213 at 229). Every employee must be measured
by the same standards (
Reckitt and Colman (SA) (Pty) Ltd v
Chemical Workers Industrial Union and others
(1991) 12 ILJ 806
(LAC) at 813H-I). Discipline must not be capricious. It is really the
perception of bias inherent in selective
discipline which makes it
unfair. Where, however, one is faced with a large number of offending
employees, the best that one can
hope for is reasonable consistency.
Some inconsistency is the price to be paid for flexibility, which
requires the exercise of
a discretion in each individual case. If a
chairperson conscientiously and honestly, but incorrectly, exercises
his or her discretion
in a particular case in a particular way, it
would not mean that there was unfairness towards the other employees.
It would mean
no more than that his or her assessment of the gravity
of the disciplinary offence was wrong. It cannot be fair that other
employees
profit from that kind of wrong decision. In a case of a
plurality of dismissals, a wrong decision can only be unfair if it is
capricious,
or induced by improper motives or, worse, by a
discriminating management policy.... Even then I dare say that it
might not be so
unfair as to undo the outcome of other disciplinary
enquiries. If, for example, one member of a group of employees who
committed
a serious offence against the employer is, for improper
motives, not dismissed, it would not, in my view, necessarily mean
that
the other miscreants should escape. Fairness is a value
judgment. It might or might not in the circumstances be fair to
reinstate
the other offenders. The point is that consistency is not a
rule unto itself.’
[57]
What is meant by
Irvin
and Johnson Ltd
is that in order to ensure inconsistency is not found to exist in the
case of dismissal of employees: (1) Employees must be measured

against the same standards (like for like comparison); (2) The
chairperson of the disciplinary enquiry must conscientiously and

honestly determine the misconduct; (3) The decision by the employer
not to dismiss other employees involved in the same misconduct
must
not be capricious, or induced by improper motives or by a
discriminating management policy (this conduct must be bona fide);

(4) A value judgment
[28]
must always be exercised.
[58]
In
Minister
of Correctional Services v Mthembu NO and Others,
[29]
the Court said:
‘
The consideration
of consistency of equality of treatment (the so-called parity
principle) is an element of disciplinary fairness....
When
an employer has in the past, as a matter of practice, not dismissed
employees or imposed a specific sanction for contravention
of a
specific disciplinary rule, unfairness flows from the employee's
state of mind, ie the employees concerned were unaware that
they
would be dismissed for the offence in question.
When two or
more employees engaged in the same or similar conduct at more or less
the same time but only one or some of them are
disciplined or where
different penalties are imposed, unfairness flows from the principle
that like cases should, in fairness,
be treated alike. However,
as
stated by Conradie JA in the
Irvin and
Johnson
case at 2313C-J,
the
principle of consistency should not be applied rigidly....
…
.Consistency is
therefore not a rule unto itself, but rather an element of fairness
that must be determined in the circumstances
of each case...’
[59]
In
Consani
Engineering (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others,
[30]
it was held as follows:
‘…
The
requirement of consistency is not a hard and fast rule. It is
something to be kept in mind as an aspect of disciplinary fairness.

Flexibility in adapting to a changing environment is equally
important. Shifts in policy inevitably introduce standards not
consonant
with past practices. The applicant's change in policy to
one of zero tolerance hence can be fairly regarded as a legitimate
modification
of the operational means for protecting the company from
ongoing stock losses. Any ensuing element of inconsistency cannot be
considered
arbitrary or in bad faith in the circumstances.’
[60]
Of relevance to the current matter, the Court in
Chemical
Energy Paper Printing Wood and Allied Workers Union v National
Bargaining Council for the Chemical Industry and Others
[31]
concluded:
‘…
An
employer can only be accused of selective application of discipline
if, having evidence against a number of individual employees,
it
arbitrarily selects
only few to face disciplinary action.’
(emphasis added)
[61]
In the post
Sidumo
era, the Court in the judgment of
Southern
Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others,
[32]
specifically dealt with the principle of inconsistency, and said the
following:
‘…
The courts
have distinguished two forms of inconsistency - historical and
contemporaneous inconsistency. The former requires that
an employer
apply the penalty of dismissal consistently with the way in which the
penalty has been applied to other employees in
the past; the latter
requires that the penalty be applied consistently as between two or
more employees who commit the same misconduct.
A claim of inconsistency
(in either historical or contemporaneous terms) must satisfy a
subjective element - an inconsistency challenge
will fail where the
employer did not know of the misconduct allegedly committed by the
employee used as a comparator (see, for
example,
Gcwensha v CCMA
and Others
[2006] 3 BLLR 234
(LAC) at paras 37-38). The objective
element of the test to be applied is a comparator in the form of a
similarly circumstanced
employee subjected to different treatment,
usually in the form of a disciplinary penalty less severe than that
imposed on the claimant.
(See
Shoprite Checkers (Pty) Ltd v CCMA
and Others
[2001] 7 BLLR 840
(LC) at para 3). Similarity of
circumstance is inevitably the most controversial component of this
test. An inconsistency challenge
will fail where the employer is able
to differentiate between employees who have committed similar
transgressions on the basis
of inter alia differences in personal
circumstances, the severity of the misconduct or on the basis of
other material factors.
Further, the Labour
Appeal Court has held that employees cannot profit from an
[62]
I also rely on the judgment of
Mphigalale
v Safety and Security Sectoral Bargaining Council and Others
[33]
which in my view would be of direct application to the nature of the
misconduct by the applicant properly found to exist in this
matter,
and the fact that the applicant works in the public service in a
position of trust. The following extract from the judgment
is
apposite:
[34]
‘
The
evidence before the commissioner was that the chairperson's decision
in respect of the two previous instances of corruption
by police
officers had been made in error. Applying the judgment in
SACCAWU
,
the SAPS is not required to repeat a decision made in error or one
which is patently wrong. This is all the more so given the
nature of
the misconduct committed. In
S v Shaik
and Others
the Constitutional Court
warned that corruption is 'antithetical to the founding values of our
constitutional order'. Similarly,
in
SA
Association of Personal Injury Lawyers v Heath and others
[2000] ZACC 22
;
2001
(1) SA 883
(CC) this court held that: '[C]orruption and
maladministration are inconsistent with the rule of law and the
fundamental values
of our Constitution. They undermine the
constitutional commitment to human dignity, the achievement of
equality and the advancement
of human rights and freedoms. They are
the antithesis of the open, accountable, democratic government
required by the Constitution.
If allowed to go unchecked and
unpunished they will pose a serious threat to our democratic State.’
[63]
In applying the above principles to the current matter, there is no
contention by the applicant or case made out by the applicant
that
discipline was not conscientiously and honestly applied and there
were improper motives or capricious behaviour on the part
of the
third respondent. There certainly was no discriminating policy. The
fact is that even if the third respondent was wrong
in not
disciplining the other employees referred to, there was no case or
evidence that the third respondent was still not acting
bona fide
vis-à-vis
the applicant, or even had any prior
knowledge of such similar wrongdoing by other employees. Considering
the conduct of the applicant
in this matter, and especially his false
contentions that he was not trained and was not even aware of the
provisions of the very
legislation he was tasked to apply, there is
simply no cause or reason why the applicant should profit from any
failure on the
part of the third respondent to discipline other
employees, even should it be assumed to exist. Given also the
complete absence
of any factual particularity in respect of the other
employees referred to, it cannot even safely be said that the
misconduct of
the applicant is readily comparable to the other
employees mentioned. Most certainly, there is no case made out or
reference made
to the fact that responsible management at the third
respondent was actually aware of the misconduct by the other
employees referred
to. Therefore, and also in terms of the relevant
provisions of law, the applicant’s inconsistency challenge has
to fail as
well.
[64]
I hasten to make some concluding remarks about this matter,
considering that the applicant also raised as a ground of review
that
his dismissal was not justified. Considering the applicant actually
committed fraud, I refer to
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) and Others
[35]
where 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 & Industrial Research v Fijen
(1996)
17 ILJ 18 (A)
at 26E-G.’
[65]
In
De Beers
Consolidated Mines Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[36]
the Court held as follows, which in my view is quite apposite to the
current matter, considering the false explanations offered
by the
applicant:
‘…
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.’
[66]
I therefore conclude that even where the issue of inconsistency is
considered, by having regard to the record of evidence before
the
second respondent as a whole (including the three forms), the
applicant has not established any case of inconsistency on the
facts
of this matter, or in terms of the relevant principles of law. Any
issue of inconsistency thus cannot affect the outcome
in this matter,
as an outcome a reasonable decision maker could come to. I therefore
conclude that the issue of inconsistency cannot
serve as
substantiation to interfere with the award of the second respondent.
Conclusion
[67] It is therefore my
view and conclusion that the second respondent’s conclusions on
the substantive merits of this matter
and ultimate determination that
the applicant’s dismissal was substantively fair, simply cannot
be an irregularity. It is
further my conclusion that the issue of
inconsistency raised in this matter does not affect the outcome
arrived at by the second
respondent by rendering it unreasonable, and
in fact the outcome remains entirely reasonable. Accordingly, there
is no basis to
interfere with the award of the second respondent, and
it must thus be upheld. The applicant’s review application must
fail.
[68]
In dealing with the issue of costs, both parties asked for an award
of costs. I consider that the second respondent’s
award was a
clear, concise and a properly reasoned award, and it should have been
apparent to the applicant, who was at all times
assisted by his
union, that the review case never had merit. I further consider the
nature of the applicant’s misconduct
and his persistent
reliance on clearly false explanations. In terms of the provisions of
Section 162(1) and (2) of the LRA, I in
any event have a wide
discretion where it comes to the issue of costs. In exercising this
discretion in the current matter, I do
believe a costs order against
the applicant is appropriate.
Order
[69]
In the premises, I make the following order:
The applicant’s
review application is dismissed with costs.
____________________
Snyman AJ
Acting
Judge of the Labour Court of South Africa.
APPEARANCES:
For the
Applicant:

Advocate S Malhabathe
Instructed
by The State Attorney
For the Third Respondent:

Advocate S B Nhlapo
Instructed by Motanya
Madiba Attorneys
[1]
Act No 66 of 1995.
[2]
(2008) 29 ILJ 318 (LC).
[3]
(2002) 23 ILJ 1229 (LAC).at para 4.
[4]
(2000)
21 ILJ 166 (LAC)
.
[5]
Academic
and Professional Staff Association
(
supra
)
at paras 17–18.
[6]
See
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A);
Superb
Meat Supplies CC v Maritz
(2004)
25 ILJ 96 (LAC);
Arnott
v Kunene Solutions and Services (Pty) Ltd
(2002) 23 ILJ 1367 (LC);
Parker
v V3 Consulting Engineers (Pty) Ltd
(2000) 21 ILJ 1192 (LC);
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
(2010) 31 ILJ 1413 (LC);
GIWUSA
obo Heynecke v Klein Karoo Kooperasie
BPK
(2005)
26 ILJ 1083 (LC);
Theron
v AA Life Assurance Association Ltd
[1995] ZASCA 61
;
1995 (4) SA 361
(A) at 365;
Swanepoel
v Albertyn
(2000) 21 ILJ 2701 (LC).
[7]
(2007)
28 ILJ 2405 (CC).
[8]
Id
at para 110.
[9]
(2008)
29
ILJ
2461
(CC)
at para 134.
[10]
(2008)
29 ILJ 964 (LAC).
[11]
Id
at para 97.
[12]
Id
at para 102.
[13]
2013 (6) SA 224
(SCA)
per
Cachalia and Wallis JJA.
[14]
Id
at para 25.
[15]
(JA
2/2012)
[2013] ZALAC 28
(4 November 2013)
(4
November 2013) not yet reported, per Wag
lay
JP.
[16]
Id
at para 14.
[17]
Id
at para 16.
[18]
(2011) 32 ILJ 723 (LC) at para 9.
[19]
(2012) 33 ILJ 485 (LC) at para 18.
[20]
(2013) 34 ILJ 945 (LC) at para 31.
[21]
(2006) 27 ILJ 2567 (LC).at para 20.
[22]
(
supra
)
footnote 20 at para 41.
[23]
Unreported
judgment dated 17 January 2013 under case number JR 1151 / 2008 at
para 29.
[24]
(2011)
32 ILJ 3018 (LC) para 50. See also
Minister
of Correctional Services v Mthembu No and Others
(2006) 27 ILJ 2114 (LC) at para 13 where it was said: ‘The
third respondent placed in issue the fairness of the decision
to
dismiss him and pertinently raised the issue of consistency. He
established a basis therefor by presenting evidence with sufficient

particularity in order to have enabled the applicant to deal
therewith. Faced with a challenge to the consistency of the
applicant's
treatment of employees, the applicant, who bore the onus
of proving the fairness of the dismissal (s 192(2) of the Act),
elected
not to place any evidence before the first respondent
demonstrating that there was no inconsistent disciplining of
employees.’
[25]
(2012)
33 ILJ 623 (LC) at para 10.
[26]
Record
page 291 line 15 – 16
[27]
(1999) 20 ILJ 2302 (LAC) at para 29.
[28]
In
SRV
Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2004)
25 ILJ 135 (LC) at para 31 the Court said: ‘Ultimately,
questions of fairness and, perhaps particularly, issues of

inconsistency require the exercise of a value judgment ...’
[29]
(2006) 27 ILJ 2114 (LC)
at
paras 8 – 9.
[30]
(2004)
25 ILJ 1707 (LC) at para 19.
[31]
(2010) 31 ILJ 2836 (LAC) at para 20.
[32]
(2010) 31 ILJ 452 (LC)
at
paras 10–11.
See also
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
(2008)
29 ILJ 1180 (LC) at paras 36; 40; 41 and 42.
[33]
(2012) 33 ILJ 1464 (LC).
[34]
Id at para 22.
[35]
(2010) 31 ILJ 2475 (LC) at para 23..
[36]
(2000) 21 ILJ 1051 (LAC) at at para 25.