About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 45
|
|
Kok v Commission for Conciliation, Mediation And Arbitration and Others (JR 2475 / 2010) [2015] ZALCJHB 45 (20 February 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 2475
/ 2010
DATE: 20 FEBRUARY
2015
Reportable
In the matter
between:
MALAKO WOULDRIEN
KOK
..............................................................................................
Applicant
And
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
..................................................................................................
First
Respondent
JOSEPH TSABADI
N.O. (AS
COMMISSIONER)
...............................................
Second
Respondent
ABSA BANK
LTD
.......................................................................................................
Third
Respondent
Heard:16
October 2014
Delivered:
20 February 2015
Summary:
CCMA arbitration proceedings – review of proceedings, decisions
and awards of arbitrators – test for review
– section 145
of LRA – requires the arbitrator to rationally and reasonably
consider the evidence as a whole and arrive
at reasonable outcome –
determinations of arbitrator compared with evidence on record –
arbitrator’s decision
not irregular and constitutes a
reasonable outcome – award upheld
Evidence
– consideration of contradictions – principles stated –
consequences to credibility
Misconduct
– sexual harassment committed by employee – probabilities
support conclusion of such misconduct
Arbitration
proceedings – allegations of misconduct and bias on the part of
the arbitrator – provisions of section 138
considered –
conduct of arbitrator proper – no misconduct or bias shown
Practice
and procedure – conclusion of arbitrator on substance
sustainable – award upheld – review application
dismissed
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 a commissioner of the CCMA (the first respondent). This
application has been brought in terms of Section 145 of
the Labour
Relations Act
[1]
(‘the LRA’).
[2]
The applicant was dismissed by the third respondent for misconduct
relating to sexual harassment. The applicant then pursued
his
dismissal as an unfair dismissal dispute to the first respondent. The
matter came before the second respondent for arbitration
on 18 August
2010, and in an award dated 26 August 2010, the second respondent
determined that the dismissal of the applicant was
substantively fair
and dismissed his dispute referral to the first respondent. The
applicant was dissatisfied with this finding
of substantive fairness
by the second respondent and brought the current review application
to the Labour Court on 29 September
2010.
Background facts
[3]
The background facts in this matter are straight forward. The
applicant was employed by the third respondent as the branch manager
of its Silverton branch. Also working at the branch was one S......
T............. (‘T.............’), being a contract
cleaner employed by Kalanga Cleaners CC, a cleaning contractor
engaged to render cleaning services to the third respondent at the
branch.
[4]
It appears from the evidence that the applicant developed a
particular liking for T.......... In the period between February
and
March 2010, the applicant actively solicited the affections of
T.......... In February 2010, the applicant approached T.........
in
the ground floor kitchen at the branch and touched her buttocks,
saying to her that “I must have you’. In March
2010, the
applicant called T............. to the boardroom. In the boardroom,
the applicant touched T........’s breasts,
buttocks and private
parts, and told her that he was unable to hold himself back anymore.
The applicant also exposed his penis
to T.......... and forced her to
touch it. After the fact, the applicant told T........... that if she
revealed anything that happened,
he would ensure she would be
dismissed.
[5]
Another incident took place in the boardroom kitchen in March 2010.
The applicant, after calling T............ to the kitchen,
again
proceeded to touch T............ inappropriately and proceeded to rub
himself against her until he ejaculated on her uniform.
Again, the
applicant told T.............. that he could not hold himself back
and needed to ‘relieve’ himself.
[6]
On 8 March 2010, the applicant called T.............. to the office
and in the office he suggested to her that she would be
‘safe”
in her job for 12 months, and that after this period, he would ‘make
a plan’ for her. When T...............
tried to leave, the
applicant locked the door, told T.......... not to make any noise,
and proceeded to touch T’s private
parts and said he wanted to
have intercourse with her. T............ told the applicant she was
menstruating, and the applicant
insisted on checking this, which he,
to the great embarrassment of T..............., then did. Realizing
what T...............
said was true the applicant then again
proceeded to rub himself up against T.......... until he ejaculated.
The applicant then
let T.............. out of the office and offered
her taxi money, which T............. refused.
[7]
It was this last mentioned incident that drove T............. over
the edge, so to speak. She broke down and began to cry. After
she
composed herself and changed her clothing, she reported what had
happened to her at the hands of the applicant to S........
M.........
at the branch, and the matter was escalated to the regional office.
T................. was asked to give a statement,
which she did.
[8]
On 12 April 2010, the applicant was then notified to attend a
disciplinary hearing to be held on 28 April 2010, on a charge
reading
‘It is alleged that you acted in a manner unbecoming of an ABSA
branch manager (employee) by sexually harassing S.......
T........,
not an ABSA employee but a cleaner at the branch’. The
disciplinary hearing ultimately took place over two days
on 29 and 30
April 2010, pursuant to which the applicant was found guilty of the
charge against him and was dismissed on 30 April
2010, on one months’
notice. As stated above, the applicant took issue with his dismissal,
and pursued the same as an unfair
dismissal dispute to the CCMA, and
it is this dispute that came before the second respondent for
determination.
The award of the
arbitrator
[9]
The second respondent, as arbitrator, found against the applicant
based on a number of considerations. The first consideration
was
that, according to the second respondent, the probabilities where
overwhelmingly against the applicant. In particular, the
second
respondent considered that there was simply no cause or reason for
T.............. to fabricate a case against the applicant,
the most
senior person at the branch, and she simply could gain nothing by
doing so.
[10]
The second respondent then also made a credibility finding,
preferring the evidence of T........... which the second respondent
considered to have remained largely intact despite grueling cross
examination by the applicant in the arbitration. As to the evidence
by the applicant, the second respondent concluded that he in essence
offered nothing else but a bare denial as opposition to the
evidence
of T..............
[11]
The second respondent considered a further probability on the
evidence, being the fact that there were two other contract cleaners
from Kalanga Cleaners at the branch, other than T........., and that
these other cleaners did not receive the same 'opportunities’
from the applicant as T.......... did. The second respondent further
considered that the applicant made an average of nine telephone
calls
to T..........., but none to the other cleaners, and that the
applicant had also promised to advantage T............... The
second
respondent concluded that none of this evidence was challenged by the
applicant under cross examination, and thus had to
be accepted.
[12]
The second respondent came to the ultimate decision that the
applicant had indeed sexually harassed T............, and considering
his particular position of trust as a branch manager, determined that
his dismissal was entirely justified. The second respondent
held that
the applicant’s dismissal was substantively fair. The question
now is whether all the above reasoning and ultimate
conclusion by the
second respondent is reviewable, in terms of the review application
brought by the applicant.
The applicant’s
review application
[13]
In considering the applicant’s review application, I must
decide if the award of the second respondent is, in short,
reasonable. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
Navsa
AJ held that the threshold test for the reasonableness of an award
as: ‘Is the decision reached by the commissioner
one that a
reasonable decision-maker could not reach?’. What the
Constitutional Court meant in
Sidumo
was
a review test based on 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.
[3]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[4]
applied
the
Sidumo
test
as follows:
[5]
‘
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 to which a reasonable
decision maker could come to on the available
material’
Any
review grounds advanced by the applicant must therefore pass muster
based on the review test as set out above.
[14]
The principal review ground of the applicant, as advanced in the
founding and supplementary affidavits, is that the second
respondent
committed misconduct in the manner in which he conducted the
arbitration proceedings. This case of misconduct is founded
on a
contention that the second respondent, at the start of the
arbitration, told the applicant that he would refuse to consider
the
evidence of the applicant’s witnesses if they did not have
first hand knowledge of the events giving rise to the applicant’s
dismissal. According to the applicant, the second respondent also had
an issue with the fact that because the applicant intended
to call so
many witnesses, this would cause the arbitration to take too long.
The applicant complained that because of these approaches
adopted by
the second respondent at the outset, this then influenced (or even
compelled) him not to call the seven witnesses he
had subpoenaed to
attend at the arbitration, and intended to call. The applicant
further submitted that these witnesses would have
‘discredited’
the testimony of T..............., and were thus relevant and
important witnesses. The applicant makes
a final point that he had
the ‘
bona fide’
belief that the second respondent
actually tampered with the recording of the arbitration to disguise
his transgressions.
[15]
The next review ground raised by the applicant is that he was not
afforded the opportunity to ask T............. relevant questions
during cross examination. The applicant contends that the
representative of the third respondent ‘attacked’ him
during
cross examination and stopped him from asking questions, and
the second respondent did nothing to intervene. According to the
applicant,
the second respondent’s failure to intervene caused
a disruption of his cross examination which prevented him from
properly
dealing with the merits of the dispute.
[16]
The applicant raised a third ground of review that there were
contradictions between the evidence given by T............ in
the
arbitration, and the statement she had written at the time when this
matter was investigated by the third respondent before
disciplinary
proceedings were instituted. This applicant said that statement was
in evidence before the second respondent, but
the second respondent
did not consider the contradictions. The applicant also did question
T............ on these contradictions,
and according to him, these
contradictions and the answers given by T.......... when being
question about this, showed that her
evidence was not true. The
thrust of the applicant’s complaint is that the second
respondent failed to consider this, and
this was completely
irregular. In short, the applicant’s case was that because of
the contradictions, T..............’s
version should not have
been accepted.
[17]
The remainder of the review grounds by the applicant, in summary,
effectively all relate to his dissatisfaction about the credibility
findings made by the second respondent, and his contention that the
second respondent committed a reviewable irregularity in not
finding
that the evidence of T............. lacked credibility per se.
The
issue of the misconduct by the arbitrator
[18]
I will first deal with the review ground raised by the applicant with
regard to the alleged misconduct of the second respondent,
in the
form of the second respondent having unduly influenced or coerced
against him calling the witnesses he wanted to call. The
point of
departure in determining this ground of review is simply whether the
second respondent actually did this. I have little
hesitation in
rejecting this ground of review as entirely unsubstantiated and
spurious. The transcript of the arbitration proceedings
provides no
support of any kind for such a case. In fact, a proper consideration
of the transcript shows completely the opposite
to what the applicant
is seeking to contend, as I will now elaborate on.
[19]
Considering the transcript from the very point of the start of the
arbitration, and once introductions were done on the record,
the
proceedings commenced with a short opening statement by the second
respondent. The second respondent firstly recorded that
he
established from the parties beforehand that the existence of a
dismissal was not in dispute. And because dismissal was not
in
dispute, the second respondent recorded that it had been agreed that
only substantive fairness of the dismissal was in issue,
and he need
not consider the issue of procedure. The second respondent made no
mention of any other limitation of issues or any
prior discussion
about witnesses being called, or not being called for that matter.
The second respondent however, does say that
the applicant has asked
to make an opening address, and then handed over to the applicant to
say his piece.
[20]
The applicant immediately starts with his opening address. This
address was a lengthy and emotive affair, containing a plethora
of
entirely irrelevant information. However, and of direct relevance to
the consideration of the review ground raised by the applicant,
are a
number of statements the applicant actually made in his opening
address about the calling of witnesses. Of importance is
the fact
that these statements made by the applicant in his opening address is
irreconcilable with any proposition of him having
been discouraged
from or coerced into not calling witnesses. I will touch on the
following pertinent examples where the applicant
dealt with the issue
of the calling of witnesses:
20.1
The applicant, after a lengthy introduction as to his background,
informs the second respondent: ‘However I am not trying
to tell
you through this opening statement in front of you this morning what
the evidence is, it is not (inaudible) the witness
and the exhibits
will do that.’ To my mind, the applicant was clearly intending,
when making his opening statement, to call
witnesses, and was
informing the second respondent accordingly.
20.2
Further, the applicant said: ‘I am going to cross examine some
of the witnesses to show that the evidence the employer
relied upon
…is not true’. The applicant added that ‘I will
also cross examine some of the witnesses to prove
that some crucial
evidence that proves my innocence was not considered …’.
Again, such statements are simply irreconcilable
with a litigant that
was discouraged from calling witnesses and has decided not to do
this;
20.3
The applicant next refers to what he is going to raise with two
specific witnesses he intends to call, being M........... and
D.....
W............, both of whom he subpoenaed, when they testify. As to
the other witnesses he intended to use, the applicant
says he had to
subpoena all of them to get them to testify, and they are all there
to testify. Now if this was the case, based
on the applicant’s
own opening address, then how can there be any merit in any
proposition that the applicant had been discouraged
from calling
witnesses and as a result had decided not to call them, before the
arbitration even started? It simply makes no sense.
20.4
The applicant, in the latter part of his opening address, deals with
some of the background facts of this case. The applicant
submitted
that some of the staff had a vendetta against him, and then says that
the ABSA HR and the person who investigated the
allegations against
some of these staff, who were there to testify, would testify about
this. The applicant refers to a meeting
held on 15 February in this
regard and confirms that ‘the same HR business partner’
would testify about this meeting.
20.5
In dealing with the incident with T........... itself, the applicant
submitted there were witness statements from other witnesses
that had
disappeared under circumstances he considered ‘highly
suspicious’. The applicant said this submission would
be proven
through ‘witness testimony’. The applicant in fact says
that “I will leave it to my witnesses to prove
those statements
….’ and that this would show his innocence. Surely there
can be no other inference drawn from such
statements than the
applicant always being of the intention to call witnesses to testify
on his behalf.
20.6
Then, and towards the end of his opening address, the applicant says
‘I was told telephonically by one of the witnesses
present
today and they will testify to that that the ER consultant who
investigated the case … re-interviewed some of the
witnesses
again after the disciplinary hearing.’ (sic)
20.7
The applicant concludes with the following statement: ‘….
I feel and believe that the employer actually manipulated
the process
in order to find me guilty and I will try though witnesses who are
here hum to show that …..’.
In
short, the applicant’s opening address makes it clear that he
intended calling witnesses to present evidence in support
of his
case. He even referred to what these witnesses would testify about.
The applicant never said in what was an extensive opening
address
that anything stood in his way to the calling of his witnesses. But
also, not once is the applicant contradicted or interrupted
by the
second respondent when talking about his witnesses, which would
certainly have been expected if the second respondent has
such an
issue with this. In short, if the applicant had been coerced before
the arbitration even started into not calling witnesses,
then surely
he would never say in his opening address that he would do so. I also
mention one final issue where, and in the course
of the applicant
cross examining Tshabalala, the applicant actually put to her that
J....... d... L........... was going to testify
about the content of
what he was putting to her under cross examination.
[21]
I am quite confrontable in concluding that the applicant had
fabricated this whole issue of being discouraged to call witnesses
to
try and provide some substantiation for his review application,
because he had decided not to call these witnesses, thinking
his own
testimony, after he had testified, was sufficient. When it turned out
that the applicant’s confidence in his own
credibility was
misplaced, the applicant simply used the fact that he had subpoenaed
all those witnesses to fabricate a review
case. But then, and in
going down this road, the applicant has a problem, being that which
is contained in the transcript of his
very own opening address. The
applicant then tries to get around this obstacle by alleging that the
second respondent had tampered
with the record. When I pointed out to
the applicant that a holistic reading of the transcript showed a
complete record without
any possible tampering, the applicant then
submitted that the exchange between him and the second respondent
about the calling
of witnesses took place before the recording
started, and that is why nothing was recorded.
[22]
I will swiftly dispose of the allegation that the second respondent
tampered with the record. It is just not true. There are
no gaps or
inconsistencies or any kind of deviations in the transcript that
could point to tampering. In fact, and accusing an
arbitrator of
tampering with a record without any substantiation for such a
contention, is simply scandalous. As to the belated
contention by the
applicant that the exchange between him and the second respondent
about witnesses took place before the recording
started, the simple
answer is that the applicant’s own opening address contradicts
this. The same considerations I have already
referred to above, being
that the applicant would simply not have said what he said about the
calling of witnesses in his opening
address if this was indeed the
case, equally holds true. I have no hesitation in rejecting these
issues raised by the applicant
on the basis of being entirely devoid
of any substance or merit. I am satisfied that these contentions were
an afterthought by
the applicant to try and substantiate a review
case about having his right to call witnesses being interfered with,
which never
had merit.
[23]
For the sake of completeness, I explored with the applicant as to
what all these witnesses that he had subpoenaed could say
and
contribute to the arbitration, even if they had been called. I my
view, none of these witnesses could contribute anything material.
In
essence, and as the second respondent actually appreciated, this was
a case of two mutually destructive versions between two
individuals,
who were the only persons present when the events happened. The
matter is, in short, between the applicant, and Tshabalala,
and they
both testified. There was no other witness that could contribute to
this enquiry.
[24]
I will next deal with the applicant’s second review ground
relating to the alleged interference with his cross examination
of
T.............. Again, the simple answer to this case of the
applicant is found in the record itself, which in my view provides
no
support whatsoever for such a case. The instances where the third
respondent’s representative objected to the cross examination
were limited, was entirely justified, and the manner in which the
second respondent dealt with these objections was proper and
even
handed. The key events in this regard emanating from the record are
the following:
24.1
At the outset of cross examination, the applicant sought to put a
statement made by the ‘decision maker’ at his
disciplinary hearing to T............ to establish if she was able to
understand Afrikaans and English. The third respondent’s
representative objected, contending it not relevant. The second
respondent sought to explain the purposes of cross examination
to the
applicant. The applicant thanked the second respondent and decided
not to proceed with the question.
24.2
The applicant later in the course of his cross examination sought to
put a statement by one “Joan” to T..... to
comment on.
The third respondent’s interjected and asked if this person
would be called to testify to confirm the statement
and the applicant
answered that he did not intend calling this person. The third
respondent’s was still in the process of
articulating a further
objection because of the applicant not intending to call this
witness, when the applicant the simply moved
on to another question,
and the matter was left there.
24.3
The applicant sought to question T.......... about some of the
contents of the statement she had made during the investigation
of
the incident, and the third respondent’s representative
objected on the basis of the questions having been asked and answered
already. Before the second respondent could even decide on the
objection, the applicant said that he was going to step off the
question.
24.4
In the end, and in the entire transcript of the cross examination of
T...... spanning some 25 pages, there were a total of
four further
interjections by the third respondent’s representative, other
than those already set out above, none of which
interjections were
unreasonable or irregular. In in particular, in most of these
instances, the applicant did not even wait for
the objection to be
concluded or dealt with, before simply moving on to another question.
[25]
I can simply find no indication that the applicant’s cross
examination had been unduly interfered with. The applicant
mostly did
not even wait for the objection to be dealt with before simply moving
on to the next question. In fact, and in conducting
his cross
examination, the applicant was given virtual free reign by the second
respondent. The limited number objections raised
by the third
respondent were mostly justified, and did not constitute undue or
unreasonable interference. Any contention by the
applicant of the
existence of misconduct on the part of the second respondent, in this
respect, is entirely devoid of any merit.
[26]
I
n
terms of section 138(1) of the LRA, a commissioner may conduct
arbitration proceedings in any manner that a commissioner deems
fit,
provided the commissioner acts overall fairly and comes to grips with
the substantial merits of the dispute.
[6]
As the Court said in
CUSA
v Tao Ying Metal Industries and Others:
[7]
‘
Consistent
with the objectives of the LRA, commissioners are required to 'deal
with the substantial merits of the dispute with the
minimum of legal
formalities'… Thus the LRA permits commissioners to 'conduct
the arbitration in a manner that the commissioner
considers
appropriate'. But in doing so, commissioners must be guided by at
least three considerations. The first is that they
must resolve the
real dispute between the parties. Second, they must do so
expeditiously. And, in resolving the labour dispute,
they must act
fairly to all the parties as the LRA enjoins them to do.’
In
my view, and
in casu
, a proper consideration of the transcript
of the arbitration exhibits no conduct on the part of the second
respondent in the conducting
of the arbitration that can be
considered to be inconsistent with the above objectives. At the
commencement of the arbitration,
the second respondent first
established on what grounds the applicant challenged the fairness of
his dismissal. The second respondent
established that procedural
fairness was in fact conceded by the applicant, and that this issue
need not be dealt with in evidence.
And then, in the course of the
arbitration, the second respondent hardly interfered in the conduct
of the proceedings by either
party.
[27]
In
County
Fair Foods (Pty) Ltd v Theron NO and Others,
[8]
the Court said:
‘
For
there to be misconduct, it has been held that there must be some
'wrongful or improper conduct' on the part of the decision
maker, in
this instance the commissioner. … Misconduct has also been
described as requiring some 'personal turpitude' on
the part of the
decision maker. … The basic standards of proper conduct for an
arbitrator are to be found in the principles
of natural justice, and
in particular the obligation to afford the parties a fair and
unbiased hearing. …‘
There
is, in my view, no evidence or indication of any personal turpitude
on the part of the second respondent. I am satisfied that
a proper
consideration of the transcript of the arbitration clearly shows that
the applicant received a fair and unbiased hearing.
I am equally
satisfied that the applicant could lead whatever evidence he wanted,
and asked whatever questions he wanted. I am
equally satisfied that
the applicant himself chose not to call witnesses, despite saying in
his detailed opening address that he
would. Accordingly, there is no
merit in any ground of review that the second respondent committed
any kind misconduct in the course
of and in the conduct of the
arbitration, and any such contention must be rejected.
The merits of the
award
[28]
As the second respondent correctly appreciated, he in essence had two
mutually contradictory versions before him, as presented
by two
individual persons. It was then the duty of the second respondent to
decide which version to accept.
As was said in
Sasol
Mining (Pty) Ltd v Ngqeleni NO and Others:
[9]
‘One of the commissioner's prime functions was to ascertain the
truth as to the conflicting versions before him...’
The second
respondent went about discharging this function by way of a
determination of the probabilities, as well as the credibility
and
reliability of the two witnesses that testified before him. As the
Court said in
SFW
Group Ltd and Another v Martell et Cie and Others,
[10]
which
would be equally applicable in arbitration proceedings such as those
before the second respondent:
‘…
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities...’
[29]
In dealing with the issue of the probabilities, the second respondent
concluded that the probabilities were overwhelmingly
against the
applicant. A reading of the award of the second respondent shows that
he was motivated in coming to this conclusion
by in essence three
considerations, being: (1) there was simply no reason or cause for
T........... to fabricate such an elaborate
version against the
applicant, and she had nothing to gain by doing this; (2) Even on the
applicant’s own version, these
was clearly a marked difference
in the interaction between the applicant and T..........., as opposed
to the applicant and the
other two cleaners; and (3) the applicant
made a number of telephone calls to T............. when there simply
was no basis for
doing so. These are indeed important considerations.
In
Gaga
v Anglo Platinum Ltd and Others,
[11]
the Court said the following on the very issue of the absence of any
cause for fabricating such a version:
‘
The
complainant had no discernible reason to be dishonest about the
pattern of behaviour and her discomfort. Both she and the appellant
confirmed that in all other respects they had a good working
relationship. … For the court to accept the appellant's total
denials as truthful, we would be required to believe that the
complainant and Ms Mogaki, with unknown motives, had conspired to
falsely accuse the appellant of serious misconduct. Neither witness
displayed bias against the appellant of that order...’
In
my view, the same considerations equally apply
in casu
, and
was in fact properly and reasonably appreciated and considered by the
second respondent as well. I must further say that I
find it simply
inexplicable why a branch manager such as the applicant would
telephone a contract cleaner (who does not even work
for the third
respondent) on nine occasions, and even after hours. And also, why
would the applicant take the kind of interest
in T............ as he
did, but took no similar interests in any of the other cleaners. To
say that these issues constitute probabilities
against the applicant
is undoubtedly correct.
[30]
In
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
[12]
the Court said the following as to the establishment of
probabilities:
‘
The
locus classicus on this issue is the judgment in
Govan v Skidmore
where the court held that it was trite law that 'in general, in
finding facts and making inferences in a civil case, the court may
go
upon a mere preponderance of probability, even though its so doing
does not exclude every reasonable doubt, so that one may,
by
balancing probabilities select a conclusion which seems to be the
more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion be not the only
reasonable one'.
In
casu, I am satisfied in accepting that the most natural and plausible
conclusion to be drawn from the evidence in this case is
that the
applicant indeed sexually harassed T...... The second respondent’s
finding that this was indeed the case is thus
entirely sustainable,
and certainly not irregular. It is, in short, a reasonable outcome.
[31]
The second respondent, as said, also specifically dealt with the
issue of the credibility of the witnesses, and on this basis
accepted
the evidence of T.......... The reasons the second respondent gave
for this is that he considered T.........’s version
to have
remained largely intact following gruelling cross examination. The
second respondent said she remained “steadfast
and unshaken’.
As opposed to this, the second respondent reasoned, the applicant
simply offered a bare denial.
In
my view, there is simply no basis to interfere with the second
respondent having preferred the evidence of T............. The
reasons he gave are in my view actually correct, and certainly
substantiated by the transcript.
No
case has been made out by the applicant, in his founding of
supplementary affidavits, as to why such a preferring of evidence
by
the second respondent should be interfered with this instance. In
National
Union of Mineworkers
[13]
the Court 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.’
A
consideration of the evidence presented by the witnesses as contained
in the transcript matter convinces me that the same reasoning
equally
applies
in casu
. There is simply nothing on the transcript to
show that the credibility finding of the second respondent is
completely out of kilter
with the evidence or the probabilities. The
second respondent’s credibility finding remains unassailable.
[32]
According to the applicant, his ‘trump card’, so to
speak, was the existence of several contradictions between
the
contents of the statement given by T... when this matter was first
investigated, and the evidence she ultimately presented
in the
arbitration. The applicant placed considerable emphasis on these
contradictions as a basis for contending that the second
respondent
committed a reviewable irregularity in not preferring his evidence
over that of T......... In essence, the applicant
was subscribing to
the maxim
falsus
in uno falsus in omnibus -
false
in one thing false in all. But, and unfortunately for the applicant,
this maxim has been soundly rejected by the courts as
unreliable and
illogical
[14]
.
Whilst it is of course true that such contradictions are indeed a
consideration when assessing the credibility of witnesses
overall,
[15]
it is simply not the be all and end all the applicant contends it to
be. Further factors for consideration, as specifically set
out in
SFW
Group
[16]
,
are
the
witness's candour and demeanour, the witness’s bias (latent and
blatant), internal contradictions in the evidence, the
probability or
improbability of particular aspects of the version, and the calibre
and cogency of the witness’ performance
compared to that of
other witnesses testifying about the same incident or events.
[33]
The simple answer to the applicant’s contradictions argument is
that Tshabalala was open and honest about the contradictions,
up
front, and when giving evidence in chief. Therefore, this is not a
situation where T.......... was confronted with the contradictions
in
her statement under cross examination and then sought to explain away
the contradictions between her testimony and that which
is contained
in the statement. She identified all the contradictions, and sought
to explain it simply on the basis that there was
a misunderstanding
between her and the person that was assisting her in recording the
statement. But more importantly, these contradictions
all relate to
what can comfortably be called peripheral issues, such as whether
Emily (another cleaner) was in her presence when
one incident
occurred, whether one incident happened in the kitchen which is part
of the boardroom and not the boardroom itself,
and finally which
persons had seen her crying. These discrepancies are of very little
moment in the consideration of this matter.
I am satisfied that on
all the critical and central aspects of her version, the testimony of
T........... was entirely consistent
with her statement and more
importantly, there were no internal contradictions in her evidence in
the arbitration itself. Having
considered T......’s evidence as
it appears from the record, I believe it to be comparable to the
following
dictum
from the judgment in Gaga
[17]
:
‘…
The
probabilities overwhelmingly support a finding that the complainant
was the more credible witness. She offered her testimony
with
candour, conceding a measure of ambivalence and honest recognition
that she had been less than forceful in rejecting his advances.
The
possibility that she was flattered, as I have intimated, cannot be
discounted. But there is one consistent, incontrovertible
thread
which runs throughout her evidence; and that is her allegation that
the appellant regularly and repeatedly made suggestive
remarks and
propositioned her sexually. …’
The
aforesaid
dictum i
s in effect similar to what the second
respondent was saying in his award. And I agree with him.
[34]
However and even considering the fact that these contradictions
undeniably exist, one can do little better than to refer to
the
following
dictum
from the often quoted lecture by Nicholas J on "Credibility of
Witnesses" at the 1984 Oliver Schreiner Memorial Lecture,
which
was published in the
South
African Law Journal
[18]
:
‘
A
witness is proved to be
in error
where
his statements
are contradicted by the proved facts or where he is guilty of
self-contradiction. Where he has made contradictory
statements, since
both cannot be correct, in one at least he must have spoken
erroneously.
Yet error does not in
itself establish a lie. It merely shows that, in common with the rest
of mankind, the witness is liable to
make mistakes. A lie requires
proof of conscious
falsehood, proof that the witness has deliberately misstated
something contrary to his own knowledge or belief.’
[35] The lecture
given by Nicholas J followed on his own judgment in
S
v Oosthuizen
[19]
where the learned Judge said:
‘
The
argument on behalf of the accused would seem to be this: the evidence
of Broodryk is contradicted (whether by other witnesses,
or by
himself in this trial, or by himself in previous statements);
ergo
his evidence should be rejected. The conclusion is a
non
sequitur
. There is no reason in logic
why the mere fact of a contradiction, or of several
contradictions, necessarily leads to the
rejection of the whole of
the evidence of a witness. ….’
The
learned Judge further said:
[20]
‘…
Plainly it is not
every error made by a witness which affects his credibility. In each
case the trier of fact has to make an evaluation;
taking into account
such matters as the nature of the contradictions, their number and
importance, and their bearing on other
parts of the witness's
evidence. Two specific cases must be considered: the case of
deliberate falsehood; and the case of honest
mistake. …’
The
learned Judge concluded as follows, even in the case of a deliberate
falsehood:
[21]
‘
All
that can be said is that where a witness has been shown to be
deliberately lying on one point, the trier of fact
may
(not
must
) conclude that his evidence on another point cannot
safely be relied upon. …’
[36]
The above reasoning in my view still holds true, and is still applied
when considering these kinds of contradictions and their
effect on
the credibility of a witness. A recent example is the judgment in
Mkize
v S
[22]
where the Court applied the above principles and concluded:
‘…
.T
here
is no proof of conscious falsehood on the part of the complainant or
Captain Motshoane. In order for a court to reject the
complainant's
evidence, more is required than the pointing to this contradiction;
there must be proof that this contradiction was
the result of a
deliberate and conscious falsehood. Such
proof
does not
exist. In
the absence of proof of deliberate fabrication a court cannot find
that the complainant or Captain Motshoane were mendacious
and reject
their evidence on this basis. Their contradictions on this aspect are
of such a nature that they are in all likelihood
the result of an
honest mistake.’
And
similarly, I believe that where it comes to the four contradictions
between the statement made by Tshabalala and her evidence
in the
arbitration before the second respondent, the same reasoning applies
and it just cannot be said that there exists deliberate
and conscious
falsehoods on the part of T......... There was simply no evidence of
any kind of a deliberate fabrication of events
of T.......... to suit
her purposes. T......... acknowledged the contradictions, and gave an
honest explanation for it. There is
simply no basis to reject
her evidence with regard to the crucial events in this matter, simply
because of these contradictions.
The applicant’s trump card is
thus not what he thought it was, and simply cannot serve as basis to
interfere with the credibility
finding the second respondent had
made.
[37]
Therefore, I conclude that the second respondent’s decision to
accept the evidence of T......... was entirely reasonable,
and all
considered, actually correct. Once the evidence of T...........
prevails, that is the end of the matter for the applicant.
He thus
sexually harassed T.......... which is entirely indefensible
misconduct.
In
F v
Minister of Safety and Security and Another (Institute for Security
Studies, Institute for Accountability in Southern Africa
Trust and
Trustees of the Women's Legal Centre as Amici Curiae)
[23]
the Court said that:
‘
The
abuse of women and girl-children is rife in this country. ….
This was aptly articulated in
Carmichele
:
"'Sexual
violence and the threat of sexual violence goes to the core of
women's subordination in society. It is the single
greatest threat to
the self-determination of South African women." . . . South
Africa also has a duty under international
law to prohibit all
gender-based discrimination that has the effect or purpose of
impairing the enjoyment by women of fundamental
rights and freedoms
and to take reasonable and appropriate measures to prevent the
violation of those rights. …’
The
situation is made even worse by the fact that the conduct was
perpetrated by the applicant in his capacity as the
de
facto
superior of T.......... at the branch.
[24]
There simply can be no acceptable or plausible explanation that could
serve as justification for what the applicant did. In my
view, he
certainly earned his dismissal, and the second respondent’s
conclusion to this effect is entirely sustainable and
reasonably
arrived at.
[38]
Considering that the second respondent’s award must be
sustained on the grounds set out above, it is simply not necessary
for me to consider the other reasoning of the second respondent that
the applicant simply offered a bare denial and did not put
certain
aspects of his case to T......... under cross examination to respond
to. What I am however, compelled to refer to is the
applicant’s
entirely unacceptable conduct in the course of being cross examined
in the arbitration. He was most insulting
towards the IR
representative of the third respondent, being Mr V......., and
consistently called him a liar, when this was entirely
unnecessary
and unwarranted. Although there are numerous examples of this on the
record, two bear specific mention. On one occasion,
V...........
sought to simply refer the applicant to an e-mail, and before a
question could even be put by V....... to the applicant,
the
applicant says ‘You are lying man sies man, you are lying
sies’. The second example is that when it was put to
the
applicant by V........ that the applicant’s recordings he
sought to rely on had been shortened by him (which I may point
out he
in the end actually conceded to be the case) the applicant said to
V.........: ‘That you are saying, you are a dishonest
man.’
This is the kind of conduct that is certainly a consideration, in the
light of the
dictum
in
SFW Group
, that would detract
from the credibility of the applicant as a witness. In my view, this
is the kind of conduct by a witness that
goes on the offensive to try
and avoid answering proper questions about the merits of his case.
Most certainly, and if I was the
arbitrator, this behaviour would not
do the applicant any favours.
[39] In conclusion,
the applicant’s review application, even if considered on the
merits thereof, thus has little prospect
of success. The second
respondent’s finding of substantive fairness was substantiated
by the evidence and is not in any way
irregular. This finding must
accordingly be upheld.
Costs
[40]
When it comes to the issue of costs, and in terms of sections 162(1)
and (2), I have a wide discretion. When exercising this
discretion, I
consider a costs award against the applicant to be entirely
justified. I say this for a number of reasons.
Firstly, the
applicant filed heads of argument consisting of 155 paragraphs of
mostly irrelevant and emotive contentions, and containing
references
to evidence that was not even before the second respondent. There
were also detailed references and complaints about
the conduct of his
erstwhile attorney, which could make no contribution to the
determination of this matter. Further, I also regard
the applicant’s
conduct with regard to the third respondent’s attorney, Mr
Yeates, to be an important consideration.
The applicant filed
extensive papers accusing Mr Yeates of impropriety, when there was
simply no basis for such an accusation.
Quite frankly, Mr Yeates was
trying to assist the applicant, who was representing himself. This
led to a further lever arch file
of process, which I had to read, and
which was entirely unnecessary, and on occasion defamatory and
insulting. Finally, and as
I have dealt with above, the applicant
persisted in Court with making submissions entirely unsupported by
the record and accused
the second respondent of tampering with the
record when there was no basis for such a contention. Overall, and
even in the arbitration
proceedings, the manner in which the
applicant chose to conduct his case was entirely unacceptable. The
third respondent asked
for a punitive costs order. If the applicant
was not a lay person, I may well have considered it, but I
in casu
do not intend to go so far. I believe that this is however, an
appropriate instance for a costs award to be made against the
applicant.
Order
[41]
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
APPEARANCES:
For
the Applicant: Appearing in person
For
the Third Respondent: Advocate F A Boda
Instructed
by: Cliffe Dekker Hofmeyr Inc Attorneys
[1]
No 66 of 1995.
[2]
(2007)
28
ILJ
2405 (CC) at para 110.
[3]
See
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96;
Herholdt
v Nedbank Ltd and Another
[2013]
11 BLLR 1074
(SCA) at para 25.
[4]
[2014]
[2007] ZALC 66
;
1
BLLR 20
(LAC)
per
Wag
lay
JP.
[5]
Id
at para 14.
[6]
Section
138(1) reads 'The commissioner may conduct the arbitration in a
manner that the commissioner considers appropriate in
order to
determine the dispute fairly and quickly, but must deal with the
substantial merits of the dispute with the minimum
of legal
formalities.'
[7]
(2008)
29
ILJ
2461
(CC)
at
para 65.
[8]
(2000)
21
ILJ
2649 (LC) at para 7.
[9]
(2011) 32
ILJ
723 (LC) at para 9.
[10]
2003 (1) SA 11
(SCA) at para 5.
[11]
(2012) 33
ILJ
329 (LAC) at para 36.
[12]
(2013) 34
ILJ
945 (LC) at para 37.
[13]
(
supra
)
at para 31.
[14]
See
R
v Gumede
1949
(3) SA 749
(A) at 756;
Mkize
v S
[2010] JOL 26473
(GSJ) at para 58(c).
[15]
See
SFW
Group
at
para 5.
[16]
Id
at para 5.
[17]
Id
at para 35.
[18]
Referred to in
The
President of the RSA and Others v South African Rugby Football Union
and Others
2000
(1) SA 1
(CC) at para 124.
[19]
1982 (3) SA 571
(T) at 575H-576A.
[20]
Id
at 576G-H.
[21]
Id
at 577A-B.
[22]
[2010] JOL 26473
(GSJ) at para 58.
[23]
(2012) 33
ILJ
93 (CC) at para 37.
[24]
See
Gaga
(
supra
)
at para 43;
SA
Metal Group (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2014) 35
ILJ
2848
(LC) at para 15.