About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2015
>>
[2015] ZALCPE 24
|
|
Senqu Municipality v South African Local Government Bargaining Council and Others (P621/2010) [2015] ZALCPE 24 (27 March 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case no: P621/2010
DATE: 27 MARCH 2015
Not Reportable
In the matter between:
SENQU
MUNICIPALITY
........................................................................................................
Applicant
And
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL and
OTHERS
..........................................................................
Respondent
Heard: 3 February 2015
Delivered: 27 March 2015
Summary: Review.
Incomplete
record. Held that, in fact, record not incomplete.
Where bargaining council commissioner
ignores relevant and material evidence; misconstrues relevant and
material evidence; and takes
account of speculative considerations in
respect of which there is no evidence; cumulative effect rendering
the conclusion reached
in award so unreasonable that no reasonable
commissioner could have reached the same conclusion.
Award reviewed and set aside and a
decision substituted that the dismissal of the individual employees
is fair.
JUDGMENT
EUIJEN, AJ
Introduction
[1] This is an application in terms of
Section 145 of the Labour Relations Act no. 66 of 1995 (the LRA), to
review an award of the
second respondent, a bargaining council
commissioner (the Commissioner) in which he found the dismissal of
the members of the third
respondent (to whom I shall refer as the
employees or the dismissed employees) to be unfair. The Commissioner
consequently ordered
the dismissed employees to be reinstated into
the applicant municipality’s employ, together with payment of
six month’s
salary as compensation.
[2] The dismissed employees are all
employed in the licence testing section of the applicant
municipality. At their disciplinary
hearing, they faced numerous
charges of fraudulently issuing learner’s; as well as temporary
and permanent driver’s
licences, to members of the public who
had not been tested and were not present at the testing station when
the examiners certified
their presence at the test in question. At
the arbitration hearing held in terms of the LRA, the employer
decided to limit its
case to a single charge in the case of two of
the dismissed employees, namely Mesdames Mabizela and Dada. The third
dismissed
employee, Mr Yalezo, faced 20 counts of issuing temporary
driver’s licences and receipts for payments to applicants who
were
not present at the testing station at the time, contrary to
required procedures.
[3] The Commissioner found, in essence,
in regard to the charges faced by Mesdames Mabizela and Dada, that
another person, closely
resembling the person to who the respective
license was issued, must have attended the required test at the
Barkley East testing
station on the day in question on their behalf.
As far as Mr Yalezo is concerned, the Commissioner found that
irregularities had
been common-place at the testing station for some
time, to the knowledge of the head of department, since these had
been drawn
to his attention by Mr Yalezo himself. The Commissioner
accordingly found all three of the dismissed employees to be not
guilty
of the offences with which they were charged and ordered their
reinstatement on the terms I have indicated.
[4] The test which this Court must
apply in review applications of this nature is now well established
by the Constitutional Court
in the matter of Sidumo and Another v
Rustenberg Platinum Mines Ltd & Others
[2007] 12 BLLR 1097
(CC);
as well as the Supreme Court of Appeal in the decision of Herholdt v
Nedbank Ltd
[2013] 11 BLLR 1074
(SCA); and in the Labour Appeal Court
in the case of Goldfields Mining SA (Pty) Ltd v CCMA and others
[2014)
[2007] ZALC 66
;
1 BLLR 20
(LAC).
[5] That test is, in essence, as it was
put in Sidumo:
“The question that must be asked
is whether or not the decision or finding reached by the arbitrator
is “one that a
reasonable decision-maker could not reach”.
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 liable to be set aside.”
[6] On this test, as emphasized in the
Supreme Court of Appeal’s decision in Herholdt, the reasons
given by the arbitrator
assume less importance, unless it can be said
that it renders the conclusion reached via those reasons unreasonable
within the
meaning of the passage in Sidumo which I have just read
out. (Herholdt at 1080 para [12])
[7] The dismissed employees have also
raised a point in limine in these proceedings that the record is
incomplete and that for this
reason alone, the application ought to
be dismissed, or if successful, not decided by this Court, but
referred back for a re-hearing
before a different commissioner. They
also seek condonation for the late filing of their answering
affidavit. These issues are
considered at the outset.
Condonation
[8] The review application was served
on 15 November 2010, within the time periods prescribed by the LRA.
The supplementary affidavit
in terms of rule 7 A (8) was served on 21
April 2011. The answering affidavit was only served on 29 May 2012,
which is the approximately
1 month late. The principal explanation
advanced for this delay is that the review application was originally
served only on the
union (SAMWU) and not the individual employee’s.
This contention is true. However, it is of little significance since
on
1 December 2010 the dismissed employees advised that they had
withdrawn their mandate given to the union to appear on their behalf
and instead appointed Mili attorneys of Grahamstown. Those attorneys
admit that they were in possession of the review application
by 13
April 2012, as they uplifted a copy from the court file. They ought
to have been in a position to file the answering affidavit
timeously.
[9] There is no explanation at all from
the attorneys why the answering affidavit is late. Doubtless the
length of the record has
something to do with it, but this is not
stated to be the case. Nevertheless and since heads of argument have
been filed on behalf
of the dismissed employees and serious
submissions have been advanced at least about the state of the
record, I consider it in
the interests of justice for condonation to
be granted and that the matter proceed on an opposed basis.
Incomplete Record
[10] The submission on behalf of the
dismissed employees that the transcript of the evidence led at the
bargaining Council hearing
is incomplete, is based solely on the
transcriber’s certificate which accompanies the transcript of
the evidence. That certificate
notes that there was one blank tape;
that cross examination of one of the witnesses, Ms Trompeter, ended
abruptly; and that there
are a number of instances during the
evidence of Xhosa speaking witnesses, (particularly the dismissed
employees), where they give
their answers in isiXhosa and this is not
translated.
[11] Although this issue is raised in
the answering affidavit, no further particularity than that stated
above is provided. In particular,
it is not noted which portions of
the record are identified as deficient; neither do any of the
dismissed employee’s say
in what respects their case has been
prejudiced, or what evidence is missing from the transcript which
could influence the outcome
of these proceedings. This was
supplemented in argument, to some extent, by Mr Simoyi, who appeared
on behalf of the dismissed
employees, who provided me with references
to the evidence of one of the dismissed employees, Ms Mabizela, where
it is noted that
her answers are given in isiXhosa, without a
translation provided. He submitted that similar instances are to be
found in the evidence
of the other two dismissed employees too.
[12] It does not seem that the
untranscribed (blank) tape is of significance, since it is not
obvious that any substantial portion
of the record is missing. It
seems to be a tape that was just not used. As far as Ms Trompeter’s
evidence is concerned, there
is no indication at all that her cross
examination was cut short. On the contrary, she was extensively
cross-examined both by Ms
Mabizela, as well as the union official Mr
Jika. If anything, the portion of her evidence which has not been
transcribed is re-examination,
which can only prejudice the
applicant’s case and not that of the dismissed employees.
[13] This leaves the allegation that
many of the dismissed employee’s replies during their evidence
were given in isiXhosa
and not translated. I have considered the
references to the transcript given to me by Mr Simoyi and I have also
read the transcribed
evidence of the three dismissed employees. It is
true that particularly during Ms Mabizela’s evidence, there are
a number
of instances where she answers in isiXhosa and her answers
are not translated. It is also clear that the Commissioner
understands
isiXhosa and on each occasion he will either ask a
follow-up question, or seek clarity about the answer given. These
follow up
questions convey the essence of the untranslated portion of
the answer. On other occasions, the Commissioner simply instructs the
interpreter to interpret the answer, which is then done, as is the
case in the portion of the evidence of Ms Bongwana, to which
I was
also referred.
[14] Neither Ms Dada, nor Mr Yalezo
lapse into isiXhosa, with the same frequency as Ms. Mabizela. When
they do, the Commissioner
is alive to the prejudice which this causes
the applicant municipality’s representative, Mr Terblanche, who
does not understand
isiXhosa. The Commissioner’s practice, as
happens throughout the arbitration hearing, is immediately to ask a
further question
to clarify the untranslated answer given. From the
question asked by the Commissioner in clarification, the essence of
the untranslated
answer itself becomes apparent.
[15] I conclude that the deficiencies
in the record, such as they are, are not so serious as to make it
impossible to render a fair
and just decision on this review
application.
The Commissioner’s Award
[16] The case against the dismissed
employees is based on an investigation by the Special Investigation
Unit (SIU) which was triggered
when it was noticed that the applicant
municipality was issuing more drivers’ licenses per month than
the population of the
district warranted. During that investigation,
the home of a certain Mr Mawa Fezi, who runs a driving instructor’s
school,
was searched and a number of incomplete original learners and
temporary driver’s licenses were discovered, which were traced
as issued by the applicant municipality. It needs be mentioned that
it was common cause at the arbitration hearing that the said
Mawa
Fezi is romantically involved with one of the dismissed employees, Ms
Mabizela.
[17] Two of the documents which were
discovered at the home of Mawa Fezi, were traced as issued by two of
the dismissed employees,
namely Mesdames Mabizela and Dada. In the
case of Ms Mabizela, this was a temporary driver’s license
issued to Ms Bongwana
from Port Elizabeth on 20 March 2009. In the
case of Ms Dada, an incomplete learner’s license issued by her
to Ms Maki-Plaatjies
on 11 December 2008 was also found at Mawa
Fazi’s home.
[18] Both Mesdames Bongwana and
Maki-Plaatjie gave evidence. Both testified that they paid Mawa Fezi
to obtain their respective
licenses for them, without undergoing any
official test. In the case of Ms Mabizela, she paid Mr Fezi R1 500,00
and a further R
2500,00 to Ms Mabizela, at a later stage. Ms
Maki-Plaatjie paid R1 000,00 to Mr Fezi. Both testified that they
never attended at
the applicant municipality and were given their
licenses later by Mr Fezi. Significantly, in the light of the
Commissioner’s
findings, neither stated that they requested or
knew anything about another person being sent to write or undertake
the test on
their behalf. None of this evidence was pertinently
challenged by the dismissed employees.
[19] The SIU investigator, Mr Allie,
also testified that he investigated the records of the applicant
municipality and could find
no record of Ms Bongwana’s
attendance at the testing centre on the day she is alleged to have
passed her test, namely 13
March 2009. In the case of Ms
Maki-Plaatjies, her name was reflected on the attendance register for
11 December 2008, but there
were material discrepancies between the
copy of the learner’s license held at the municipality and that
in Ms Maki-Plaatjie’s
possession, that led him to believe that
these documents had been fraudulently manufactured at the
municipality.
[20] In his award, the Commissioner
ignores or misconstrues completely, the import of the above evidence.
In the first instance,
he does not consider the significance at all
of the complainants’ testimony that they had bribed an official
and/or her partner
not to take the test. Secondly, the Commissioner
fails to consider that it was no part of the arrangement that anyone
else take
the test on their behalf; simply that they be issued with
the relevant license for payment of a fee.
[21] The Commissioner also fails to
appreciate the irregularity and significance attendant upon the
discovery of incomplete official
documents at the home of Mawa Fezi,
when these ought not to leave the testing centre in that state.
Coupled with the fact that
when compared with the documents at the
testing centre itself, (or the absence thereof in the case of Ms
Bongwana) they cast further
doubt on the authenticity of such
documents.
[22] The Commissioner also embarks upon
a speculative examination as to why one of the employees implicated
in what must have been
a conspiracy amongst virtually all of the
testing centre employees, Mrs Buys, was allowed to take early
retirement rather than
be charged along with her colleagues. He
concludes that this casts doubt on the reliability of the SIU
investigation. There was
no evidence at all about the involvement of
Mrs Buys, or the employer’s reasons for not taking disciplinary
action against
her, since inconsistency was not an issue at the
arbitration proceedings. More glaringly, this is the decision of the
employer
and has no bearing on the SIU investigation. This influences
the Commissioner’s findings about the reliability of the SIU
investigation, without any material or relevant justification for
doing so.
[23] The Commissioner also finds that
the employer did not disprove Ms Mabizela’s version that
another person must have taken
the test on Ms Bongwana’s
behalf, because the employer did not provide the entire attendance
book for that period at the
arbitration. This ignores the evidence of
Mr Allie that during his investigation he did not come across any
such documentary evidence.
Were there documentary evidence to
disprove Mr Allie’s statement, the dismissed employees had an
evidentiary burden of providing
it, not the employer, as erroneously
held by the Commissioner. In the event, it does not appear that any
such request was made
for this document.
[24] Finally, the Commissioner has no
regard for the inherent improbability of Mesdames Mabizela and Dada’s
version that both
had mistakenly tested a look-alike, sent to
undertake the test on another’s behalf. All applicants for
these tests have to
produce their identity documents for
verification, as well as affix fingerprints to the issued documents.
In these circumstances,
it is virtually impossible to mistakenly test
a different person to that represented in the identity document.
[25] For all of the above reasons, I
determine that the Commissioner’s conclusion, upholding the
version of Mesdames Mabizela
and Dada that they must have tested
someone else, mistakenly but bona fide, to be grossly unreasonable
and so at variance with
the evidence led and probabilities considered
above, that no reasonable commissioner could reach such a conclusion.
It follows
that the Commissioner’s conclusions in respect of
these two employees cannot stand and must be reviewed and set aside.
[26] This leaves the case of Mr Yalezo.
His case is on a different footing as he effectively admitted his
guilt on the charge which
he faced, but stated that this was common
practice at the testing centre, which he had previously drawn to
management’s attention.
[27] In his case, the Commissioner
fails to appreciate that because of the checking systems in place at
the testing centre, the
dismissed employees had to act in concert in
order for their scheme to work. Hence Mr Yalezo, as the cashier, was
an essential
cog in this machine, since he had to take money and
issue an official document to a person who was not there. Hence there
could
not simply be an innocent explanation for his participation in
the admitted irregularities that he was part of perpetrating at the
testing station. Nor could he have been unaware of them.
[28] For all of the above reasons, In
my judgment, the result reached by the Commissioner that the
dismissal of the three individual
employees was unfair is so at
variance with the evidence led before him and the probabilities that
emerge from such evidence, that
no reasonable commissioner could
possibly reach such conclusion. It follows that I am satisfied that
the applicant has made out
a case for the award to be reviewed and
set aside.
Conclusion
[29] In my judgment, the guilt of all
three of the dismissed employees, on the charges which they faced, is
firmly established on
a balance of probabilities on the record before
this Court. There is accordingly no purpose to be served in referring
the matter
back to be decided afresh by another commissioner.
[30] As far as costs are concerned, it
is true that the dismissed employees have held out to the very end in
maintaining their innocence
in circumstances where this was not
warranted. At the same time, the errors which have been committed and
which have led to the
applicant’s success in these proceedings,
have been committed by the bargaining council commissioner. In these
circumstances,
it seems to me fair and just not to make any award as
to costs.
Order
[31] I grant the following order:
a. The late filing of the answering
affidavit is condoned.
b. The award of the bargaining council
commissioner issued under case no. ECD 011001, dated 22 October 2010,
is reviewed and set
aside.
c. The award of the Commissioner is
substituted with the following:
“The dismissal of the applicants
is substantively fair.
Their referral of an unfair dismissal
claim to the bargaining council is dismissed.”
d. There is no order as to costs.
TMG Euijen
Acting Judge of the Labour Court of
South Africa
APPEARANCES:
For the Applicant: Adv M Grobler
Instructed by: Kirchmanns Inc
For the Respondent: Adv Simoyi
Instructed by: Mlonyeni Lesele Inc.