Coega Development Corporation (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others (PR270/14) [2015] ZALCPE 64; (2016) 37 ILJ 923 (LC); [2016] 2 BLLR 151 (LC) (2 December 2015)

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[2015] ZALCPE 64
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Coega Development Corporation (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others (PR270/14) [2015] ZALCPE 64; (2016) 37 ILJ 923 (LC); [2016] 2 BLLR 151 (LC) (2 December 2015)

THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
/ not reportable
Case
no: PR270/14
In
the matter between:
COEGA DEVELOPMENT
CORPORATION
(PTY) LIMITED
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
JULIA CAMERON N.O.
Second Respondent
JACQUELINE FORT
Third Respondent
Heard:
11
August 2015
Delivered:
2
December 2015
Summary:
Section
145 review application – commissioner finding senior manager
not guilty of charges relating to a conflict of interest
in the
appointment of two employees and reinstating her – award found
unreasonable, set aside on review and replaced with
an order that
employee’s dismissal fair – various review principles
considered
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
This
is a section 145 review application. The commissioner
[1]
presided over a long arbitration – the matter ran for the
better part of two weeks with the record comprising some 2000 pages
–
and issued a comprehensive award, in which she ostensibly applied
herself to the matter in finding that the dismissal of
the employee
(Ms Fort
[2]
) by the company
[3]
was substantively unfair because she was not guilty of misconduct.
But according to the company, on a proper analysis of the evidence

and the award, the commissioner’s decision that the employee
was not guilty of misconduct was wrong and unreasonable. This
is thus
what may be termed a review going to guilt.
[2]
At
all material times Ms Fort was employed by the company as the unit
head: SHEQ
[4]
operations, and
was dismissed in November 2013 after having been found guilty of
serious charges of misconduct relating to a conflict
of interest in
the appointment of Ms Coetzer and Talha Ebrahim.
[5]
At the heart of the charges was that Ms Fort had (allegedly) been
involved in a relationship with Adnaan Ebrahim at the time of
the
appointments, that Talha Ebrahim is his brother and Ms Coetzer his
cousin, and that Ms Fort had disclosed none of this during
the
selection interviews that she had participated in that led to the
appointment of the two employees.
[3]
Only
the substantive fairness of Ms Fort’s dismissal was in issue
before the commissioner. The commissioner found for Ms Fort,
and
reinstated her with full retrospective effect. On review, the company
seeks an order reviewing and setting aside the award,
and the
substitution thereof with an order that the dismissal of Ms Fort was
substantively fair. Ms Fort opposes the review application.
[4]
In
what follows, I deal with the following main topics: the factual
matrix and chronology of the main events; the commissioner’s

award; the company’s attack on review; relevant review
principles; and my evaluation and findings.
The
factual matrix and chronology of the main events
[5]
The
company is a largely state-funded entity regulated by the PFMA.
[6]
The company has two main functions: its primary function is to run
the Coega deep water harbour and IDZ
[7]
outside of Port Elizabeth, with a secondary function being the
servicing of various construction and development programmes or

projects around the country. The company is headed by a CEO (Mr
Silinga), who has a number of executive managers reporting to him,

including Mr Koza, the executive manager: operations business unit.
Ms Fort reported directly to Mr Koza in her capacity as
the unit
head: SHEQ operations. She was a senior manager within the
organisation earning around R1-million per annum, and had some
20
subordinates reporting to her.
[6]
On
25 June 2012, Ms Fort’s ex-husband sent her the contact details
of Adnaan Ebrahim (aka Tony Corleoni), who at the request
of her
ex-husband, Ms Fort had said she would help with some
“environmental stuff”. At the time, Ms Fort
had been
divorced for a couple of years, and was, according to her, dating
Mr Du Plessis. (In substantiation of this,
Ms Fort relied
on a photograph of her and Mr Du Plessis taken at a Springbok rugby
match on 23 June 2012, where she had introduced
Mr Du Plessis to
members of management as her boyfriend. However, on Ms Fort’s
own version, their relationship ended on 30 June
2012.)
[7]
On
27 June 2012, Ms Fort contacted Adnaan Ebrahim telephonically. It
transpired that his problem was that a service station owned
by his
family had been shut down, and he had been refused a licence to
restart it and was unaware as to what was going on with
the appeal
against that decision. Ms Fort then set about attempting to
assist Adnaan Ebrahim.
[8]
[8]
Also
in June 2012, the company advertised a vacancy internally for a
document control officer (DCO), who was accountable to Ms Ford.
The
vacancy arose as a consequence of Mr Magotsi (a quality control
manager) having been seconded to the CSS
[9]
in Pretoria (a development programme), which resulted in Ms Bakker
(who was then the DCO) being promoted (to an integrated management

systems coordinator) and her position becoming vacant. The vacant
position of a DCO was a so-called contractual position, and was

linked to the duration of the CSS contractual period and paid for by
CSS.
[9]
In
early July 2012, and after the internal recruitment process proved
unsuccessful, the company engaged a number of recruitment
agents to
provide it with their top two candidates by 10 July 2012.
[10]
From
27 June 2012 onwards, Ms Fort appears to have struck up at least a
friendship or sorts with Adnaan Ebrahim. She first met him
on 29 June
2012. Soon thereafter, on two occasions during her lunchtime, she
accompanied him to his attorneys (JR Bester &
Associates) and
waited in reception while he attended a consultation. (She seems to
have found this worthwhile as the two of them
spent some time
chatting in the car while travelling to and from the attorneys.)
[11]
While
waiting in reception at JR Bester & Associates, Ms Fort (on her
version) witnessed Ms Coetzer working at the reception
desk, and was
impressed with her people skills. According to Ms Fort, she then gave
Adnaan Ebrahim a copy of her business card,
and said to him that the
“next time you are in there, if that woman is interested, ask
her to send her CV … if she
would be interested in maybe
applying for a job at the CDC”.
[10]
[12]
Before
10 July 2012, Mr Songongo (a recruitment consultant in the HR
department), who was tasked with dealing with the recruitment
of the
DCO, held a discussion with Ms Fort about the status of the process.
It was in this context that Ms Fort advised him that
she “had
in her possession” a CV of a candidate that she wanted to be
considered for the position of a DCO. In response,
Mr Songongo
advised her that as long as the CV was forwarded before the deadline
(on 10 July 2012), it would be considered together
with other CVs
received from recruitment agents.
[13]
On
12 July 2012, Mr Songongo provided Ms Bakker (who was in recruitment
terms, the requesting line manager) with copies of the CVs
he had
received from recruitment agents by the closing date of 10 July 2012,
which he had screened and determined met the requirements
for the job
of a DCO. After this, Ms Bakker compiled a shortlist and advised Mr
Songongo of the candidates that she wished to interview.
[14]
Also
on 12 July 2012, Ms Coetzer forwarded her CV to Ms Fort under cover
of an email reading: “Please find my CV attached
as per request
from my cousin Tony” (“the first CV”). (The
reference to Tony here is to Adnaan Ebrahim.)
[15]
On
13 July 2012, Ms Fort forwarded the first CV to Mr Songongo and
requested him to “please retain for future positions
in admin
or finance”. The first CV was of a generic nature, and was not
tailored to suit any particular position. Although
referred to on the
cover page as Christa Coetzer, in the body of the CV, Ms Coetzer
recorded her surname as being Ebrahim.
[16]
Between
then and 25 July 2012, Mr Songongo reminded Ms Fort on numerous
occasions that he had not received the CV that she had spoken
about
for the position of a DCO. In this regard, Mr Songongo went on to
testify as follows:
“
I
recall at one point in her office she wanted to give me a hard copy
of the CV, which she had in her possession, but then because
the
closing date had already passed, I was not comfortable with just
accepting the CV without [Ms Bakker] being aware I had
requested
it, to put it down on email, so that [Ms Bakker] is also aware
of when and how the CV came about … .”
[17]
It
was in these circumstances that, on Wednesday, 25 July 2012, Ms Fort
sent another CV of Ms Coetzer (“the second CV”)
to Mr
Songongo and Ms Bakker by email. For a reason that went
unexplained, Ms Coetzer no longer went by the surname of Ebrahim
in
this CV. Ms Fort’s email covering message read: “This is
the lady that I was talking about that I’d like to
have
included for Monday’s interviews (CV not brilliant but I think
she’s excel [sic] in the position).” The
CV was not
forwarded from Ms Coetzer by Ms Fort, but instead the email reflects
that the CV was sent directly by Ms Coetzer to
Mr Songongo and
Ms Bakker. On evidence before me, this appears to be the CV that Ms
Coetzer had a hard copy of at the time
of her exchange with
Mr Songongo that is captured in the quotation above.
[18]
Different
to the first CV, the second CV was specifically tailored to
Ms Coetzer gaining employment as a DCO, with emphasis
being
placed on the document control responsibilities that she had both in
her current position (of an office administrator at
JR Bester &
Associates) and in a number of previous positions. No mention of this
had been made in the first CV, and a comparison
of the two CVs
reveals that the second CV was entirely reworked, and that time and
effort was put into the task. The difference
in the CVs can best be
illustrated by focussing on how differently Ms Coetzer described her
responsibilities at JR Bester
& Associates in the two CVs.
a)
In
the first CV, Ms Coetzer’s responsibilities are described as
follows: “Answering all debtor calls and queries, issuing

estimated balances to debtors and explaining of the procedure of a
settling file. Refunds of debtors, reduction of monthly instalments,

rescissions of files, refund of distributions, explaining of ITC
removals.” (It will be noted that nothing whatsoever is
said
about document control.)
b)
By
way of contrast, in the second CV, Ms Coetzer’s
entire
responsibilities
are described as “document control”, with the following
appearing under the heading “responsibilities”:
“
Document
control
:
developing of filing system in order
to ensure rapid retrieval of
documentation
;
formatting of
documentation
,
both internal and for external clients;
issuing of
documentation
to
external clients;
data capturing;
preparation of court
documents
;
liaising with clients with regards to
document
queries;
training of clients with regard to
document
processes;
communicating with clients and
creditors with regards to account details;
responding to telephonic, fax and
email queries with regards to balance enquiries and settling of
files;
monitoring of client accounts”.
(Emphasis added.)
[19]
Mr
Songongo gave evidence about the differences between the two CVs. As
far as he was concerned, on the face of the first CV, Ms
Coetzer
would never have been shortlisted for the position of a DCO. By way
of contrast, he considered the second CV to have been
tailor made for
the position of a DCO. Under cross-examination, it was put to him
that there was nothing untoward about Ms Coetzer
having put in a
general CV and then, having become aware of the position on offer, to
have reworked her CV to emphasise her strengths
for that specific
position. In response, Mr Songongo testified that the problem was
that the position of a DCO is not a generic
position and that it was
unique to the company, with the result that unless Ms Coetzer
had seen the advert or become aware
specifically of what the
requirements for the job were, she would not have been able to rework
her CV. In response to this, the
line adopted by Ms Fort’s
counsel at the arbitration appears to have been that Ms Coetzer
had been able to fine tune
her CV simply as a consequence of knowing
that the job on offer was that of a DCO. No suggestion was made to Mr
Songongo that Ms
Coetzer had obtained the advert from anyone or that
she had obtained any advice from within the company’s HR
department in
compiling the second CV (see further below).
[20]
Ms
Fort said little about the second CV during her evidence in-chief,
but it came to the fore during her cross-examination, with
the thrust
of the cross-examination having been around how Ms Coetzer had come
to submit a CV tailor made for the position of a
DCO. The following
transpired:
a)
According
to Ms Fort, when she received the pack of CVs in preparation for the
selection interview, she noticed that Ms Coetzer’s
CV was
not in the pack; although she knew that Ms Coetzer had sent her CV to
her, she thought at the time that she must have forgotten
to forward
it to Mr Songongo; she accordingly got hold of Adnaan Ebrahim and
said, “do me a favour, get hold of her again
and ask her to
re-send her CV through”; and she thereupon received
Ms Coetzer’s CV and forwarded it on. (This
version is
bristling with tensions, prime amongst them being why Ms Fort did not
simply re-forward Ms Coetzer’s first
CV to Mr Songongo as
she had it on her email, and the fact that Ms Coetzer did not resend
her first CV, but completely reworked
it.)
b)
Confronted
then with the difficulty of how Ms Coetzer would have known that she
should tailor her CV to fit the DCO position, Ms Fort
testified
that Ms Coetzer had told her that she had done so after phoning
someone from HR at the company and getting advice around
“the
details of the position” and “what the job entailed”.
(There are five reasons why this version stands
to be rejected:
firstly, it is based on hearsay (i.e. what Ms Coetzer told Ms Fort);
secondly, Ms Fort did not call Ms Coetzer
to confirm this version;
thirdly, Ms Fort did not present this version at her disciplinary
inquiry; fourthly, the version was not
put to Mr Songongo under
cross-examination, despite him having dealt in some detail with the
differences between the two CVs; and,
fifthly, this version is
contrary to the version that was put to Mr Songongo under
cross-examination, i.e. that Ms Coetzer worked
things out simply on
account of her knowing that the vacancy was for a DCO. In all these
circumstances, this version smacks of
a recent fabrication.)
c)
Faced
then with the problem of how Ms Coetzer would have known in the first
place that the position on offer was that of a DCO,
Ms Fort
testified that she assumed that she had said to Adnaan Ebrahim that
she was “interviewing for a doc control
position ... ask her to
resend it”, and that this had been passed onto Ms Coetzer. (As
dealt with below, this version is
in conflict with,
inter
alia
,
what Ms Fort told Mr Gajjar (an internal auditor), namely that she
had been in contact with Ms Coetzer and told her of the position
on
offer from the outset (she thus did not need Adnaan Ebrahim to relay
to Ms Coetzer that the position was for a DCO). To my mind,
as with
the other aspects of her evidence on this issue dealt with above,
this is illustrative of the fact that Ms Fort presented
a contrived
version of events, presumably with a view to masking her actual
involvement in Ms Coetzer’s appointment.)
d)
Ms
Fort even went so far as to state that she “never even looked
at [the second] CV”, and had, upon receipt thereof,
“just
forwarded it” on by email to Mr Songongo and Ms Bakker. (But
this cannot reasonably possibly be true for these
reasons. Firstly,
Ms Fort’s own covering email describes the CV as “not
brilliant”, which implies that she must
have read it (see
further below). Secondly, Mr Songongo’s unchallenged
evidence was to the effect that in the run up
to Ms Fort
emailing him the second CV, she was in possession of a hard copy
thereof, and sought to give it to him. Thirdly,
although not
determinative, it again warrants mention that there was no email
chain reflecting that Ms Fort had forwarded
on an email received
from Ms Coetzer.)
e)
Ms
Fort went on to testify under cross-examination that her email
message that the CV was “not brilliant” was written
on
the assumption that the first CV and second CV (which she had
allegedly not read) were the same.
[11]
(But in her interview with Mr Gajjar dealt with below, which was
conducted after the selection interview at which Ms Fort
would
have studied the second CV, Ms Fort apparently made this comment with
reference to the second CV. In addition to this, if
Ms Fort’s
contention was true, then it is noteworthy that she failed to alert
the selection panel to the fundamental differences
between the two
CVs.)
[21]
All
the above notwithstanding, as Mr Songongo (and other witnesses)
testified at the arbitration, there was nothing inherently wrong
with
employees of the company submitting CVs on behalf of other persons.
He also testified that although the practice of submitting
a CV
outside the closing date (in this case, 10 July 2012) was not
encouraged within the company, there was no absolute bar to
the late
receipt of CVs.
[22]
On
30 July 2012, the selection panel interviewed five candidates for the
position of a DCO – four of them having been sourced
from
recruitment agents and shortlisted internally, and the fifth being Ms
Coetzer. The panel consisted of Ms Fort (who was effectively
the
recruiting line manager), Ms Bakker and Ms Knepscheld (the then
HR coordinator). It was common cause at the arbitration
that there
was nothing wrong with the recruiting line manager sitting on the
interview panel, but there was some controversy around
whether, in
the absence of consensus, the line manager could make the final call.
Although this was the version proffered by Mr
Songongo, and endorsed
by Ms Fort, it was the evidence of Mr Luckman that, in the absence of
consensus, advice would have to be
sought from HR and / or the next
level of management. (Mr Luckman was the acting HR manager at all
material times, and was called
as a witness by the commissioner.)
[23]
On
aggregate, the selection panel scored Ms Winter as the best
candidate, and Ms Coetzer as the second best candidate. But

individually, Ms Winter was scored the best candidate by Ms
Bakker and Ms Knepscheld, and the second best candidate by Ms Fort;

while Ms Coetzer was scored the worst candidate by Ms Knepscheld, the
joint second worst candidate by Ms Bakker, and the best

candidate by Ms Fort.
[24]
During
the interview, Ms Fort disclosed that she knew Ms Coetzer, in that
she had seen her at work at a firm of attorneys. She did
not disclose
any form of personal relationship or dealings with Ms Coetzer, such
as would typically have resulted in a panellist
having to recuse him
or herself from the selection process.
[25]
In
circumstances where Ms Fort was impressed by Ms Coetzer’s
“people skills” during the interview and where there
was
apparently enough work for two DCOs (this in circumstances where Ms
Bakker had been doing the work of three people while she
was a DCO),
Ms Fort raised with the panellists the possibility of also appointing
Ms Coetzer as a DCO. According to Ms Fort, she
had not thought of the
idea before, and it came to light for the first time during the
interview. While her fellow panellists were
apparently not opposed to
the idea, Ms Knepscheld advised Ms Fort that she should seek the
approval of Mr Koza for the
appointment of a second DCO.
According to Ms Knepscheld, Ms Fort undertook to do so. Ms
Fort’s version was different
– it being that the
understanding was that Mr Koza’s advice (and not approval)
should be sought.
[26]
The
advice given by Ms Knepscheld to Ms Fort accorded with clause 2.1(a)
of the company’s HR manual, which reads: “Recruitment
is
subject to the approval of the CEO or BU
[12]
executive manager, depending on the level of the position to be
filled.” Two points of contention arose in this regard at
the
arbitration.
a)
Firstly,
Ms Fort contended that Mr Koza had delegated the power of recruitment
to her, and consequently that she was entitled to
appoint Ms Coetzer
without his approval. Mr Koza’s version, on the other hand, was
that he had delegated the function to
Ms Fort, but that she was
obliged to get his approval before making any appointment.
b)
Secondly,
Ms Fort contended that the aforesaid rule dealt with IDZ positions on
the establishment, and not with contractual positions
linked to
programmes or projects (such as the DCO position in issue) which, on
her version, do not affect the establishment headcount.
In his
evidence, Mr Koza expressed a contrary view. Mr Luckman also disputed
that there were different rules for different types
of recruitment.
As far as he was concerned, neither Ms Fort nor anyone else in the
organisation had carte blanche to determine
the number of employees
to be employed on contracts.
[27]
Reverting
to the chronology of events, according to Ms Fort, on either 30 or 31
July 2012, she raised the matter of the appointment
of a second DCO
with Mr Koza in his office, with him approving of the idea. On Ms
Fort’s version, she raised the issue with
Mr Koza not because
she had to, but simply to keep him in the loop as a matter of
courtesy. In his evidence, Mr Koza denied that
the discussion had
occurred, and stated that, if there had been a discussion, there
would have been some sort of paper trail flowing
from it (but there
was none).
[28]
Ms
Fort subsequently reverted to Ms Knepscheld and advised her that she
had secured the approval of Mr Koza. According to Ms Fort,
she did so
by way of email (but was unable to produce it), while it was Ms
Knepscheld’s version that Ms Fort did so orally.
Ms Fort also
sent Ms Knepscheld an email on 31 July 2012 advising that “the
new document control personnel will be paid from
the CSS project
budget in return for CSS’s use of the quality manager on their
projects”.
[29]
On
31 July 2012, a written offer of employment (signed by Mr Luckman)
was made to Ms Coetzer, which she accepted the following day.
The
offer was for a three year fixed-term contract (ending on 31 August
2015) at a remuneration level of around R200 000 per
annum (four
times more than the R49 000 per annum earned by Ms Coetzer at
her previous employer).
[30]
On
13 August 2012, Ms Bakker sent Ms Fort a proposal regarding how the
responsibilities of a DCO could be split between Ms Winter
and Ms
Coetzer.
[31]
With
effect from 1 September 2012, both Ms Winter and Ms Coetzer took up
employment with the company. In his evidence, Mr Koza accepted
that
he became aware of Ms Coetzer’s appointment in the latter part
of 2012.
[32]
In
her evidence, Ms Knepscheld testified that from the outset, the
relationship between Ms Fort and Ms Coetzer “was just too
close
for comfort”. The relationship was, as she put it, more
personal than Ms Fort had made it out to be at the interview.
She
went on to testify that although she had raised the issue with the
executive manager at the time, she had decided not to make
reference
to this in her written statement made during an internal
investigation undertaken in July 2013 (see further below), because

she did not consider her observations to be “absolutely
conclusive”.
[33]
Turning
now to the appointment of Talha Ebrahim, according to Ms Fort, she
first met him when he walked past a coffee shop where
she was meeting
with
Adnaan
Ebrahim and stopped to say hello to his brother. (By all accounts
this would have been in early October 2012.) A conversation
struck
up, during the course of which Talha Ebrahim enquired whether there
was any chance that he could get a job at the company.
In response,
Ms Fort advised him of the company’s intern programme, and
said that he should send her his CV and she
would see what she could
do.
[34]
The
events that ensued are captured in an email string sent and received
during the period 11 to 30 October 2012. In summary, the
string
reflects the following:
a)
On
11 October 2012, Ms Fort sent Mr Davids (unit head: Vulindlela
village) an email to which Talha Ebrahim’s CV was attached.
In
the email, Ms Fort requested Mr Davids to consider Talha Ebrahim for
appointment as a maintenance intern if he had an opening.
She stated
in this regard that “I feel sorry for him, hopefully an
internship will give him a boost of confidence to enable
a more
permanent position within his field”, and that “he comes
across as bright, willing and eager”. Ms Fort
also
mentioned that she had an intern finishing in November 2012, and that
Mr Davids could “utilize that spot”.
b)
Also
on 11 October 2012, and following Mr Davids having indicated that he
was prepared to take on Talha Ebrahim provided that everyone
agreed
and that the intern process was followed, Ms Fort advised Mr Davids
that “you need to get a few more CV’s,
add him to the
pile, shortlist for interviews and then choose”.
c)
On
18 October 2012, Ms Fort sent an email to Mr Davids reading as
follows: “I’m being stalked! What’s happening
with
the intern interviews?” (According to Ms Fort, Talha Ebrahim
had phoned her a few times to follow up on a possible job.)
d)
Also
on 18 October 2012, Mr Davids replied as follows: “What date is
your post available? Also he needs to include some maintenance

related items on his CV. The fact that he does not have a degree
might be a problem. You can sit with me on the interview selection

panel. Thandi is not here and I need to find out who is in charge of
interns.”
e)
On
19 October 2012, Ms Fort replied: “The post is available
immediately. He doesn’t need to have maintenance experience
as
none of the interns are expected to have work experience. Zola is who
you speak to in Thandi’s absence. I don’t
mind sitting on
the panel if [you] want.”
f)
On
30 October 2012, and after having enlisted the assistance of
Ms Labercensie (an HR official) and advised her to include
Ms
Fort on the interview panel, Mr Davids sent Ms Labercensie an email
reading: “I am still waiting to interview the interns.
This
position is available immediately and I would like to do it ASAP as
there is a need in the village maintenance team.”
g)
Also
on 30 October 2012, Ms Labercensie replied as follows: “We have
not been able to secure additional CV’s hence the
delay. We are
sourcing from HCS
[13]
and are
awaiting feedback from recruitment. We will advise and forward
additional CV’s to you for perusal upon receipt.”
h)
On
the same day, Ms Fort (who had been copied on the above email)
responded in the following terms: “Can we not just interview

the one candidate then? If he’s suitable then we can move with
hiring?”
[35]
It
was in these circumstances that, on 31 October 2012 or shortly
thereafter, the selection panel comprising Ms Fort, Mr Davids
and Ms
Labercensie sat and interviewed Talha Ebrahim alone. It would have
been apparent to her fellow panellists that Ms Fort had
met Talha
Ebrahim before. He was duly appointed as an intern, and commenced
work on 5 November 2012.
[36]
On
18 April 2013, some 5 ½ months later, Ms Fort received an
email from an unknown person, which recorded,
inter
alia
,
that Ms Coetzer and Adnaan Ebrahim were married, and that they had
been using Ms Fort in “instigating matters of fraud”.
[37]
On
28 May 2013, Ms Fort had a discussion with Mr Sibandze (unit
head: customs, logistics and security) about the email, which
she
forwarded to him the following day. During their discussion, Ms Fort
stated,
inter
alia
,
that: (i) she was in a relationship with Adnaan Ebrahim, which had
progressed to the point that there were discussions about marriage;

(ii) she had met Ms Coetzer through Adnaan Ebrahim; (iii) when
Ms Coetzer was introduced to her, she was introduced as Adnaan

Ebrahim’s cousin; (iv) Ms Coetzer had enquired about a job at
the company; (v) “she had [Ms Coetzer] apply for and
receive
(inaudible) at CDC”; and (vi) Ms Coetzer “had run-ins
with the law” and had changed her surname. In response
to Ms
Fort requesting assistance in getting to the bottom of the
allegations in the email, Ms Sibandze agreed to look into the
issue –
this in circumstances where one of the allegations related to fraud
against the company.
[38]
Mr
Sibandze subsequently obtained permission internally to appoint
Mr Edwards of Simbi Investigating Services to conduct an

investigation into the matter on behalf of the company. It was in
these circumstances that, on 3 June 2013, Mr Edwards interviewed

Ms Fort. It is of significance that Ms Fort herself was not the
subject of any investigation at the time, and that the interview
was
aimed at exploring the allegation that Ms Coetzer and Adnaan Ebrahim
had been engaged in fraud implicating the company.
[39]
According
to Mr Edwards, during the course of the interview, Ms Fort advised
him,
inter
alia
,
that: (i) she had been involved in a relationship with Adnaan Ebrahim
for about a year; (ii) Adnaan Ebrahim also went by the name
Tony
Corleoni; (iii) Adnaan Ebrahim and Talha Ebrahim are brothers; (iv)
Adnaan Ebrahim and Ms Coetzer are cousins and lived in
a flat
together (2 Doria Court); (v) Ms Fort had met Ms Coetzer at the flat,
and had been given her CV there; (vi) Ms Fort had
suggested to Talha
Ebrahim that he submit his CV with a view to securing an intern
position; and (vii) Ms Coetzer and Talha Ebrahim
had both secured
jobs at the company. Mr Edwards took some basic handwritten notes of
his interview with Ms Coetzer, which broadly
captured what Ms Fort
said (on Mr Edwards’ version).
[40]
On
5 June 2013, Mr Edwards submitted a formal report on his interview
with Ms Fort to the company. Drawing on his notes and memory,
he
drafted the report either on 3 or 4 June 2013. The report records the
points referred to above. For present purposes, the following
four
paragraphs in the report are of particular significance:
·
“
Jackie
Fort is divorced, the single mother of two kids, and lives in
Providentia. She has converted to Islam and is a practicing
Muslim.
In this capacity she went in search of a partner via the internet,
and linked up with Adnaan Ebrahim … .”
·
“
Their
relationship started about a year ago
,
and Adnaan Ebrahim visits Jackie Fort’s house in Providentia,
but never sleeps over. She visits his flat at 2 Doria Court,
Fourth
Avenue, Newton Park where he lives with his ‘cousin’
Christa Layla Coetzer.”
·
“
According
to Jackie Fort, she met Layla Coetzer at 2 Doria Court when Layla was
working for a lawyer
,
and earning a miserably low salary.
Jackie
herself suggested that Layla prepare and submit a CV to the CDC
as there was a vacancy advertised. This she did, and was subsequently
interviewed a few times at the CDC and obtained the job purely
on
merit and on her track record. Jackie did not influence the
appointment in any way.”
·
“
Later
on Jackie was discussing internships was Ridwaan [Davids] from the
Coega Village and he was complaining that he was struggling
to find
suitable candidates. Again, Jackie suggested to Talha Ebrahim that he
submit his CV to Ridwaan because he was a practical
hands on type of
candidate that may qualify for the internship. This turned out to be
the case, and according to Jackie, Talha
was appointed on his
merits.” (Emphasis added.)
[41]
Regarding
the first paragraph quoted above, Ms Fort conceded under
cross-examination at the arbitration that she had lied to Mr
Edwards
when telling him that she had met Adnaan Ebrahim on the Internet. Her
motivation for having lied is that she did not want
to get her
ex-husband involved. Regarding the second and third paragraphs, the
emphasised portions were contested by Ms Fort
during the
arbitration. According to her, while she had begun a romantic
relationship with Adnaan Ebrahim in March 2013 and was
involved in
such a relationship at the time of her interview with Mr Edwards on 3
June 2013, she had not told Mr Edwards that
their (romantic)
relationship had started a year earlier (i.e. in about June
2012).
[14]
Ms Fort also
contended that Mr Edwards’ report and notes were wrong
insofar as they recorded that she had first met
Ms Coetzer at 2 Doria
Court, and that she had suggested to her there that she prepare and
submit a CV to the company. Ms Fort also
disputed that she had made
the aforesaid suggestion directly to Ms Coetzer, as opposed to having
made it via Adnaan Ebrahim. According
to Ms Fort, Mr Edwards had
got his wires crossed.
[42]
Reverting
to the chronology of events, some weeks after Ms Fort had approached
Mr Sibandze for assistance, she asked him to drop
the investigation,
but the company did not do so. According to Mr Sibandze, Ms Fort
motivated her request on the following
basis (which paints a
remarkable picture):
“
She
indicated to me that it had been decided … she had talked to
her boyfriend. The family had decided that the email that
had been
sent, had been sent by the brother of [Adnaan], who worked in the
village as an intern [i.e. Talha Ebrahim] and that he
had sent the
email because he was angry that Layla [Coetzer] had got a better job
than him.”
[43]
During
July 2013, Mr Mapoma (executive manager: corporate services)
undertook a thorough investigation into the appointment of
Ms Coetzer. During the course of the investigation, Ms Coetzer
herself submitted a written response to a series of questions.
Her
responses included the following:
·
“
Ms
Fort requested that I forward my CV to her, which I did in good
faith, just as I have done to a number of other people and
companies.”
·
“
I
did not respond to any particular position but rather to a request
from Ms Fort to forward my CV.”
·
“
Prior
to my employment at CDC, I had no relationship with Ms Fort. I
received her contact details from a client, who stated that
Ms Ford
had observed me at work and enquired if I would be interested in
forwarding my CV for a possible position at the CDC.”
[44]
What
is remarkable about these statements by Ms Coetzer is that she makes
no mention of her second CV, which was clearly tailored
to suit a
“particular position”, namely that of a DCO.
[45]
As
part of the investigation, Ms Fort also submitted a response to a
series of questions. Here response included the following statement:
“
Other
than being present at her place of employment on two occasions which
availed me of the opportunity to observe her interactions
with
clients, I had had no conversations or interactions with the said
person prior to the interview except to request that she
send me the
CV.”
[46]
On
18 July 2013, and apparently in the light of the appointment of
Ms Coetzer, Mr Silinga (the CEO) sent an email to his senior

management team, the first paragraph of which read as follows: “It
has been brought to our attention that there may be systemic
abuse of
the authority that, in good faith, has been delegated to levels below
EM’s
[15]
regarding
recruitment and appointment of personnel to the CDC.” (At the
arbitration, Ms Fort placed reliance on this in substantiation
of her
contention that Mr Koza had delegated to her the authority to make
appointments, with the result that she did not need his
permission to
appoint Ms Coetzer to a second DCO position. As mentioned above, Mr
Koza’s version, on the other hand, was
that he had delegated
the function to Ms Fort, but that she was obliged to get his approval
before making any appointment.)
[47]
On
5 August 2013, five charges of misconduct were brought against
Ms Fort. Charges 2 to 5 are relevant for present purposes,
and
are reproduced below.
“
Charge 2:
conflict of interest / unethical conduct
Conflict of interest, and or unethical
conduct in that on or about 30 July 2012, you deliberately, and with
an intention to deceive
your employer, placed yourself in a position
of conflict with the interests of your employer for your personal
gain and / or the
personal gain of Christa Coetzer, and/or you
deliberately failed to manage a conflict of interest in that, despite
the fact that
you had submitted the CV of Christa Coetzer and were
therefore extremely compromised and/or conflicted, you agreed to
partake and
actually did so partake in the interview process and
advanced your own interests to ensure that Christa Coetzer was
interviewed
and employed by your employer to the detriment of your
employer’s interests.
Charge 3: gross misconduct
Gross misconduct in that you
intentionally and wrongfully influenced the recruitment process, and
the decision of the interview
panel, which you were part of, to
appoint one Christa Coetzer into the second position of [DCO] that
was not advertised and authorised
by your employer.
Charge 4: gross dishonesty
During or about October 2012, you
intentionally and wrongfully acted without honesty towards your
employer in that you,
inter alia
:
·
Obtained
and submitted the CV of one [Talha Ebrahim], caused him to be
interviewed for the position of an intern at the construction
village
at the CDC. As a result of your dishonest actions, you,
inter
alia
:
·
Gave
the said [Talha Ebrahim] an unfair advantage;
·
Sought
to unduly influence the ultimate decision of the interview panel,
which you were a member of;
·
Unduly
preferred the said [Talha Ebrahim] as the suitable candidate to the
prejudice of your employer.
Charge 5: conflict of interest /
unethical conduct
Conflict of interest, and or unethical
conduct in that during or about October 2012, you deliberately, and
with an intention to
deceive your employer, placed yourself in a
position of conflict with the interests of your employer for your
personal gain and/or
for the personal gain of [Talha Ebrahim], and/or
deliberately failed to manage a conflict of interest in that, despite
the fact
that you had caused the CV of [Talha Ebrahim] to be
submitted and shortlisted and were therefore extremely compromised
and/or conflicted,
you agreed to partake and actually did partake in
the interview process.”
[48]
On
21 November 2013, and after having been found guilty of charges 2 to
5 at a disciplinary inquiry presided over by an independent
attorney,
Ms Fort was dismissed.
[49]
At
the ensuing arbitration presided over by the commissioner, the
company called seven witnesses: Mr Songongo; Ms Knepscheld;
Ms Bakker;
Mr Mapoma; Mr Davids; Mr Edwards; and Mr Koza.
Ms Fort then gave evidence in her defence. The last witness was Mr
Luckman,
who was called by the commissioner.
[50]
Before
the company closed its case at the arbitration, it was placed on
record that the parties had reached agreement that the transcription

of the evidence given by Mr Sibandze at Ms Fort’s disciplinary
inquiry should be read as incorporated into the arbitration

proceedings. (The facts set out above dealing with the interactions
between Ms Fort and Mr Sibandze are drawn from this transcription.)
[51]
It
had also been agreed between the parties that the commissioner should
have regard to the transcription of the interview that
Mr Gajjar had
conducted with Ms Fort around the appointment of Ms Coetzer –
this following an anonymous tip off having been
received by the
company. The following statements made by Ms Fort during this
interview are noteworthy:
·
“
I
met her outside of work through a friend. … Through meeting
her and talking, I got an understanding of what she does. …

And I said to her that I am looking for a doc control person –
she must give me her CV.”
·
“
We
didn’t get in the internal [recruitment process] hey, and then
I said to her, I said: ‘Listen, we didn’t get
anybody
internally for this position that I am looking for. Don’t you
want to give me your CV and I will add it to the pile’.”
·
“
She
was employed at the lawyers. I don’t know who she worked for. I
can’t remember them now.”
·
“
Her
CV wasn’t brilliant, you know – not very good at putting
a CV together.”
[52]
It
should be clear by now that a number of the statements quoted above
cannot be reconciled with the version advanced by Ms Fort
at the
arbitration about how she came to obtain Ms Coetzer’s CV.
Taxed about this under cross-examination, Ms Fort contended
that her
inconsistent statements made to Mr Gajjar were wrong, and
ascribed this to the interview with Mr Gajjar having been
“very
casual”. She went on to testify as follows: “I didn’t
take it as a serious [investigation] into irregularities.
I took it
as being a formality because it is nonsense. I really was shocked
that the CDC was wasting its time doing this …
.” (These
contentions are difficult to reconcile with the transcript of the
interview, which reflects that the interview
was by no means an
informal affair. It was recorded, with the transcription running to
22 pages; the issue was formally introduced
by Mr Gajjar at the
outset; Mr Gajjar had obtained the “interview pack”
(which contained the second CV) and asked Ms Fort
a series of
structured questions around the appointment of Ms Coetzer; at
one stage the interview was adjourned in order to
allow Ms Fort
to produce a particular document; and the interview ended on the
basis that Mr Gajjar would come back to her
if he needed anything
further.)
The
commissioner’s award
[53]
To
begin with, the commissioner considered the issue of when Ms Fort had
struck up a romantic relationship with Adnaan Ebrahim,
which included
a consideration of Ms Fort’s interview with Mr Edwards:
“
56.
The charges against the applicant centre around claims of gross
misconduct, conflict of interest and
gross dishonesty. They are all
very serious allegations, a finding of guilt of which would clearly
result in a sanction of dismissal.
However, in order to find guilt on
such serious charges, I am of the opinion that there must be more
substance to the charges before
me. At the centre of all of the
events is the alleged romantic relationship between the applicant and
Mr Adnaan [Ebrahim], which
relationship had to have started up so
rapidly and intensely to have influenced the applicant, an employee
of nine years with a
clean record, to manipulate the recruitment
process in order to secure low level appointments for two of his
family members. I
am not persuaded that this was indeed the case.
57.
The evidence lead regarding the applicant’s romantic
involvement with Mr Du Plessis
at the time that she was
introduced to Mr Adnaan Ebrahim was convincing. There is no likely
reason that the applicant would attend
a work function before the
events in question and introduce a man as her ‘boyfriend’
when he was not in fact so. To
take this further, it makes the
applicant’s version that she only had a professional
relationship with Mr Adnaan Ebrahim
for some time more probable. On
the balance of probabilities, I am not persuaded that the applicant
was in anything but a professional
relationship with Mr Adnaan
Ebrahim at the time of the events in question, or that due to her
relationship with him she manipulated
appointments at the CDC for
Ms Coetzer and Mr [Talha] Ebrahim.
58.
Mr Edwards interviewed the applicant one year after the events in
question. The focus of
the discussion was on Ms Coetzer and the
‘Ebrahim brothers’, their connection with each other, and
possible fraudulent
activities against the CDC. The discussion, as
the applicant stated, was in the present, and I accept that her
answers were based
in the present. I found Mr Edwards to be an
unconvincing witness in regard to the accuracy with which he recorded
and thereafter
reported to the respondent the information provided to
him by the applicant, as well as his recall at the arbitration of how
the
facts fitted together. By his own admission, he did not focus on
the timeline of events, he made assumptions, and due to his prior

knowledge of Messrs Adnaan and [Talha] Ebrahim who were the subjects
of the investigation, he included inferred details in his
report that
the applicant would not have told him.”
[54]
Having
found that there was no romantic relationship between Ms Fort and
Adnaan Ebrahim at the time of the two appointments, the
commissioner
went on to find that Ms Fort had not acted irregularly during the
recruitment process, including in relation to the
second CV:
“
59.
In the absence of a romantic relationship between the applicant and
Mr Adnaan Ebrahim at the time
in question, the possibility of a
conflict of interest in charges two and five is substantially watered
down. There is no doubt
that the applicant disclosed her prior
knowledge for both Ms Coetzer and Mr [Talha] Ebrahim. None
of the other panellists
testified that they felt uncomfortable with
the applicant’s presence on the interview panel, and I have no
reason to conclude
that the applicant benefited in any way by their
appointments. There is no evidence before me at all to show any
detriment to the
respondent’s interests. In fact, it was the
testimony of Mr Davids that Mr [Talha] Ebrahim had proved
to be a useful
intern on his team, and the only indication of
Ms Coetzer’s performance came from the applicant who
stated that she
was an asset to the organisation.
60.
Furthermore, the respondent failed to prove the existence of any rule
against submitting
a CV and sitting on the interview panel. On the
contrary, the respondent’s witnesses testified that it was not
uncommon at
all.
Mr Songongo showed concern that the second
CV submitted on behalf of Ms Coetzer spoke directly to the
position of a [DCO].
The applicant had contradictory versions
regarding whether she spoke to Ms Coetzer about the position or
not. I find it far
more probable that she did inform Ms Coetzer
about the vacancy, but be that as it may, I cannot find any
wrongdoing in this.
Surely it is common practice for any applicant to
tailor their CV to the requirements of the position for which they
are applying
.” (Emphasis added.)
[55]
In
relation in particular to the appointment of Talha Ebrahim, the
commissioner went on to find:
“
61.
With reference to the appointment of Mr [Talha] Ebrahim, I can hardly
agree with the respondent’s
argument on charges four and five
that the applicant walked his application through the process. The
person responsible for the
interns showed no concern that the
applicant had forwarded the CV to Messrs Davids and Mqhatu, and
thereafter it was Mr Davids
rather than the applicant who did
most of the driving. In fact, the applicant told Mr Davids to get
more CV’s, add Mr [Talha]
Ebrahim’s to the pile, and
only short list thereafter. I can find no dishonesty in the manner
that the applicant obtained
and submitted the CV, and neither am I
persuaded that there was any conflict of interest in the fact that
the applicant sat on
the interview panel.”
[56]
The
commissioner then dealt at length with the issue of whether Ms Fort
had the delegated authority to appoint a second DCO and
whether the
appointment of Ms Coetzer was in breach of any rule of authorisation.
The commissioner found for Ms Fort, upholding
both of her defences
summarised in para 26 above.
[57]
The
commissioner also found in favour of Ms Fort in relation to the
company’s contentions that it was impermissible to advertise

one vacancy and make two appointments (finding that the position was
unclear with the result that Ms Fort could not be held
liable)
and that Ms Fort had not obtained the approval of Mr Koza
(finding that Ms Fort had spoken to Mr Koza about the appointment
of
a second DCO).
[58]
Dealing
then with the issue of a conflict of interest generally:
“
72.
Central to the charges against the applicant was an alleged conflict
of interest, which is based on
the principal that an employee has to
maintain good faith and further the interests of her employer. The
employee is therefore
required not to compete with her employer or to
obtain additional employment where a conflict of interest may arise.
A conflict
of interest exists when an employee finds herself in a
position where her personal interests are at odds with her
employer’s,
and may include direct competition with the
employer or making secret profits. A conflict of interest can also
include a situation
where an employee has an interest in an entity
that has dealings with the employer – see [authorities
omitted].
73.
I cannot find anything in the applicant’s conduct that
constitutes a conflict of interest
as defined above. If she
should have been found guilty of any allegations, it is not this. The
above analysis concludes that I
find the applicant to be
not
guilty of
the serious charges of gross misconduct,
conflict of
interest
and gross dishonesty that were levelled against her. I
therefore find the dismissal of the applicant to be substantively
unfair.”
(Emphasis added.)
[59]
Finally,
regarding the issue of relief, the commissioner found that there
existed no impediment to the reinstatement of Ms Fort.
In the result,
the commissioner reinstated her with full retrospective effect.
The
attack on review
[60]
On
review, the company contends that the result of the commissioner’s
award was unreasonable. Both parties delivered comprehensive
heads of
argument, and in oral argument counsel highlighted their main points
of contention, a summary of which follows.
[61]
Mr
Gauntlett SC (who appeared together with Mr Fourie for the
company) made these submissions:
a)
Fundamentally,
the commissioner failed to analyse the evidence, resolve factual
disputes and make findings further to a proper evidentiary
exercise,
which would have included having to assess Ms Fort’s
credibility and the probabilities associated with her
evidence.
Instead, the commissioner undertook an assiduous and diligent summary
of the evidence (acting, as Mr Gauntlett put it,
as a stenographer)
and then, in effect, simply preferred the account of Ms Fort
over that of the company on key issues in
her “analysis of
evidence and argument”.
b)
Furthermore,
the commissioner’s “analysis of evidence and argument”
was lacking because she mixed up evidence
and argument, and
disregarded the evidence of Mr Sibandze (there being no reference to
it).
c)
In
paras 72 and 73 of the award, the commissioner construed a conflict
of interest in the present context too narrowly, and thus

misconceived the enquiry. As Mr Gauntlett put it, in her position,
Ms Fort had to be ice cold, with any degree of interest
in
favouring one party being sufficient to create a conflict of
interest. Allied to this, Mr Gauntlett submitted that it amounts

to nepotism and corruption to become involved in the recruitment
process of people to whom you feel favourable, in circumstances
where
you do not make full disclosure.
d)
In
para 56 of the award, the commissioner effectively decided the matter
before engaging in her “analysis of evidence and
argument”,
in finding that in order for Ms Fort to be guilty, “there must
be more substance to the charges before me”.
e)
Also
in para 56 of the award (and elsewhere), the commissioner considered
the absence of a romantic relationship between Ms Fort
and Adnaan
Ebrahim to have been dispositive. In so doing, she overplayed the
point and unduly narrowed the enquiry. As Mr Gauntlett
put it, the
issue was not about dating or about how intense Ms Fort’s
relationship with Adnaan Ebrahim was in July and October
2012, but
rather about whether there was a personal connection between Ms Fort
and Adnaan Ebrahim.
f)
In
para 60 of the award, the commissioner missed the point about the CV
having mutated – it being clear that Ms Fort was involved
in
this. Apart from the emphasis on document control in the second CV
(it being mentioned 18 times), Ms Coetzer’s surname
changed
from Ebrahim to Coetzer in the second CV.
g)
Regarding
the commissioner’s finding that there was nothing untoward
about the appointment of Ms Coetzer, the decision would
have been
different if the commissioner had recognised that Ms Fort had helped
Ms Coetzer prepare her second CV, and then punted
her.
h)
It
was common cause that Ms Fort lied to Mr Edwards during their
interview about having met Adnaan Ebrahim over the Internet, but
the
commissioner did not consider this at all. Although the lie would not
have meant that all of Ms Fort’s evidence stood
to be rejected,
the lie was not immaterial.  As Mr Gauntlett put it, it did not
trigger a red light, but it triggered a dark
orange one.
i)
Regarding
the evidence of Mr Edwards, the commissioner erroneously rejected it
on the basis of an adverse credibility finding alone,
without having
proper regard to the content of his evidence. As a professional
investigator, it was unlikely that Mr Edwards would
have made a
mistake about what he had been told regarding when the relationship
between Ms Fort and Adnaan Ebrahim had begun.
j)
With
reference to aspects of the evidence relating to the second CV
captured in the factual section above, Mr Gauntlett described

the second CV as a landmine, which exposed the fact that Ms Fort
acted favourably towards Ms Coetzer, placing her in a conflict
of
interest. Added to this, Ms Fort had not made a full disclosure to
the interview panel – she had told the panel members
that she
knew Ms Coetzer professionally, but she had not told them that she
had assisted her in preparing her CV. To make matters
worse, but for
Ms Coetzer’s application having been enhanced by a
co-adjudicator (Ms Fort), she would probably not have
been
appointed.
k)
What
further exposed Ms Fort’s favouring of Ms Coetzer was that she
impressed her views of Ms Coetzer on the selection panel,
and then
came up with plan B – to appoint both Ms Winter and Ms Coetzer.
While the other two panellists took the institutional
line of
recommending the best candidate, Ms Fort came up with a lateral
solution to benefit Ms Coetzer. But, on a conspectus of
the evidence,
she needed the permission of Mr Koza to do so, and failed to obtain
it (with the commissioner’s findings to
the contrary being
unreasonable).
l)
Regarding
the appointment of Talha Ebrahim, the email string referred to above
demonstrated that Ms Fort procured the CV, justified
Talha Ebrahim’s
lack of experience, pressed for the interview to be conducted on a
non-competitive basis, and then took up
the offer to sit on the
selection panel (which she did not need to do). According to
Mr Gauntlett, Ms Fort could not be both
a spin bowler and a
wicketkeeper.
[62]
In
reply, Mr le Roux (who appeared for Ms Fort) made the following main
submissions in oral argument:
a)
He
highlighted the fact that the existence of a romantic relationship
between Ms Fort and Adnaan Ebrahim had been the foundation
of the
company’s case thus far, but that it was now contended that it
made no difference.
b)
The
commissioner had come to grips with the case, namely that Ms Fort
had allegedly sought to secure employment for her boyfriend’s

relatives, and had summarised those aspects of the evidence that were
functional to her analysis. Insofar as she dealt with both
evidence
and argument in her analysis, that was the heading to the analysis.
c)
While
the commissioner’s description of a conflict of interest may
have been open to criticism, she asked the right questions
and
ultimately determined the dispute.
d)
The
commissioner did not determine the controversy in relation to
Mr Edwards’ evidence on the basis of credibility alone,

and her findings were supported by the evidence.
e)
Mr
le Roux highlighted aspects of the evidence of Mr Songongo,
Ms Knepscheld and Ms Bakker, including: Mr Songongo’s

evidence that it was not unusual for employees to forward CVs;
Ms Knepscheld’s evidence that Ms Fort had not punted

Ms Coetzer, that there was consensus that Ms Winter was the
preferred candidate, and that Ms Coetzer was entirely

appointable; and Ms Bakker’s evidence that she had been doing
the work of three people and that there was thus a need for
a second
DCO.
f)
The
commissioner’s findings regarding Mr Koza’s evidence were
correct. Clearly, Mr Koza had delegated the authority
to recruit to
Ms Fort, and she thus did not need his approval to appoint
Ms Coetzer as a second DCO. If she had needed
his approval, then
he would surely have taken disciplinary action against her when
coming to learn of Ms Coetzer’s appointment.
When it came to
the staffing of programmes (as opposed to staffing the establishment
organogram), the position was informal and
unclear at the time, which
led to the CEO clamping down and clarifying the position in his
email. But Ms Fort had done no
wrong.
g)
The
commissioner’s findings regarding Mr Edwards’ evidence
were more than reasonable. It was likely that Mr Edwards
had
incorrectly recorded that he had been told that the relationship
between Ms Fort and Adnaan Ebrahim had commenced a year
ago
(i.e. in June 2012), and that Ms Fort had first met Ms Coetzer at her
flat and obtained the CV there.
h)
Essentially,
the company sought to capitalise on the fact that, Ms Fort having met
Adnaan Ebrahim for the first time on 29 June
2012, Ms Coetzer’s
first CV was received two weeks later (on 12 July 2012). But
Ms Fort’s evidence was
clear that she only became
romantically involved with Adnaan Ebrahim in March 2013. The company
had no evidence to disprove this,
other than for the evidence of Mr
Edwards, which was correctly rejected.
i)
Ms
Coetzer’s email to Ms Fort on 12 July 2012 (to which the first
CV was attached) recorded that she had been requested by
Adnaan
Ebrahim to submit the CV. This was consistent with Ms Fort’s
version about how she had come to receive the CV, and
demonstrated
that she would not have told Mr Edwards that she first met Ms Coetzer
at her flat and obtained the CV there.
j)
Regarding
Ms Coetzer’s second CV, assuming that Ms Fort had told Ms
Coetzer that there existed a vacancy for a DCO, this was
not a basis
to find her guilty of any of the charges of misconduct brought
against her.
k)
Regarding
the appointment of Talha Ebrahim, there was no relationship between
him and Ms Fort, and thus no conflict of interest
whatsoever.
l)
All
in all, even if the commissioner’s decision was open to
criticism in certain respects, the result was reasonable on a

conspectus of the evidence.
Relevant
review principles
[63]
When
it comes to resolving factual disputes, it is well known by now that
commissioners are required to undertake a balanced assessment
of the
credibility, reliability and probabilities associated with the
evidence.
[16]
In an often
quoted passage, Van Niekerk J stated the position as follows in
Sasol
Mining
:
[17]
“
One
of the commissioner’s prime functions was to ascertain the
truth as to the conflicting versions before him. As I have
noted,
this much the commissioner appears to have appreciated. What he
manifestly lacked was any sense of how to accomplish this
task, or
which tools were at his disposal to do so. The commissioner was
obliged at least to make some attempt to assess the credibility
of
each of the witnesses and to make some observation on their
demeanour. He ought also to have considered the prospects of any

partiality, prejudice or self-interest on their part, and determined
the credit to be given to the testimony of each witness by
reason of
its inherent probability or improbability. He ought then to have
considered the probability or improbability of each
party’s
version. The commissioner manifestly failed to resolve the factual
dispute before him on this basis. Instead, he
summarily rejected the
evidence of each of the applicant’s witnesses on grounds that
defy comprehension.”
[64]
For
present purposes, the enquiry into credibility warrants further
explication. Recently, in
NUM
v CCMA
,
the LAC stated the position as follows:
[18]
“
A
court’s finding on credibility of a witness ordinarily depends
upon a variety of factors such as a witness’ candour
and
demeanour in the witness box, his bias, latent or blatant, internal
contradictions in his evidence, external contradictions
in what was
pleaded or put on his behalf, or with established facts or with his
own statements or actions outside the court; the
probability or
improbability of particular aspects of his version; and the calibre
and cogency of his performance, compared to
that of other witnesses
testifying about the same incident or event.”
[65]
Also
important for present purposes is the fact that commissioners are
obliged to weigh
all
the relevant evidence and the probabilities before drawing inferences
and making findings. Recently, in
Madikane,
the LAC stated this in the following terms:
[19]
“
The
court
a
quo
was at pains to point out that if it had been dealing with an appeal
it would have been more inclined to say that the arbitrator’s

conclusion on the probabilities was wrong ‘when all the
evidence is properly weighed’. The court
a
quo
seemed thereby to suggest, or imply that, because of the test for
reviews (which is different to that of appeals) a failure to
weigh
all the evidence and probabilities, in deciding whether to draw
inferences, was reasonable. That approach cannot be correct.
The
failure to weigh all of the relevant evidence and the probabilities
to draw inferences and make findings cannot be said to be
reasonable.
It is not only wrong not to take into account all of the relevant
evidence but is also unreasonable
and clearly what a reasonable decision-maker would not do.”
[20]
(Emphasis added.)
[66]
While
Sasol
Mining
and
Madikane
tells one how a commissioner is supposed to go about determining
factual disputes, drawing inferences and making factual findings,
a
failure to do so – although possibly constituting a process
error or misdirection – will not, in itself, constitute
grounds
of review, unless the effect thereof was to render the result of the
award substantively unreasonable.
[21]
This is essentially what was found in the SCA’s judgment in
Herholdt
[22]
and the LAC’s judgment in
Gold
Fields.
[23]
[67]
Following
these two important judgments, the LAC handed down an equally
important judgment in
Mofokeng,
which draws on
Herholdt
and
Gold
Fields
.
The key passage in
Mofokeng
is this:
[24]
“
Irregularities
or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide
a compelling
indication that the arbitrator misconceived the inquiry. In the final
analysis, it will depend on the materiality
of the error or
irregularity and its relation to the result.
Whether
the irregularity or error is material must be assessed and determined
with reference to the distorting effect it may or
may not have had
upon the arbitrator’s conception of the inquiry, the
delimitation of the issues to be determined and the
ultimate outcome.
If but for an error or irregularity a different outcome would have
resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable
result
.
The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant factors informing
the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA
.
Provided the right question was asked and answered by the arbitrator,
a wrong answer will not necessarily be unreasonable. By
the same
token, an irregularity or error material to the determination of the
dispute may constitute a misconception of the nature
of the enquiry
so as to lead to no fair trial of the issues, with the result that
the award may be set aside on that ground alone.
The arbitrator
however must be shown to have diverted from the correct path in the
conduct of the arbitration and as a result failed
to address the
question raised for determination.” (Emphasis
added.)
[68]
This
dictum
in
Mofokeng
says
many important things about the review test. But for present
purposes, it suffices to focus on the guidance it provides for

determining when the failure by a commissioner to consider facts or
relevant considerations will be reviewable. The
dictum
provides the following mode of analysis:
[25]
a)
the
first enquiry is whether the facts or considerations ignored were
material
,
which will be the case if a consideration of them would (on the
probabilities) have caused the commissioner to come to a different

result;
b)
if
this is established, the (objectively wrong) result arrived at by the
commissioner is
prima
facie
unreasonable;
c)
a
second enquiry must then be embarked upon – it being whether
there exists a basis in the evidence overall to displace the
prima
facie
case of unreasonableness; and
d)
if
the answer to this enquiry is in the negative, then the decision
stands to be set aside on review on the grounds of unreasonableness

(and
vice
versa
).
[69]
The
shorthand for all of this is the following: where a commissioner
misdirects him or herself by ignoring material facts or
considerations
(brought about by, for example, not engaging in proper
analysis of the evidence as per
Sasol
Mining
and
Madikane
),
the award will be reviewable if the distorting effect of this
misdirection was to render the award unreasonable.
[70]
There
is another issue that warrants some consideration for present
purposes – what is the threshold for unreasonableness?

Traditionally, the answer is that the decision must fall outside of a
range of reasonable decisions. But this, in itself, is not

particularly helpful, because how does one determine the range? To my
mind, the issue turns on the intensity with which a review
for
reasonableness should be undertaken in the context of this court
having been tasked (through its review powers) to supervise
the
reasonableness of CCMA awards
[26]
– the higher the intensity of the review, the narrower the
range of reasonable decisions (and
vice
versa
).
[71]
In
my view, on an overall assessment of the jurisprudence of the LAC
(whose judgments are, of course, binding on this court and
from which
this court takes guidance), it adopts a relatively high intensity
reasonableness review. As a result of this, on my
assessment, where
an award is
obviously
wrong
,
[27]
the LAC will typically set it aside on review on the grounds of
unreasonableness – it does not have to be hopelessly wrong
or
absurd before it will do so (which is what the threshold in a lower
intensity review might be).
[28]
Seen thus, the permissible margin for errors by a CCMA commissioner
is between what is objectively right and what is obviously
wrong.
[29]
Put differently, where a decision is obviously wrong, it falls
outside of a range of reasonableness.
[72]
In
conclusion under this head, it is useful to reflect briefly on three
recent judgments of the LAC (all reported in 2015) involving
reviews
going to guilt –
Madikane
,
NUM
v CCMA
and
Mogale
Gold
.
[30]
a)
In
Madikane
,
the issue was whether the commissioner’s finding that the
employee (a member of the SAPS) was not guilty of being complicit
in
assisting a fellow employee in tampering with a blood sample was
reasonable (this court had found that it was and thus dismissed
the
review application). Following a thorough analysis of the evidence,
the LAC found that the most natural and plausible inference
to be
drawn was that the employee was guilty, and that the commissioner’s
acceptance of the employee’s version that
he was ignorant of
his fellow employee’s intentions was unreasonable when
“considered in the light of all the evidence
and the
probabilities”. The appeal was thus upheld and the award set
aside.
[31]
b)
In
NUM
v CCMA,
the
issue was whether the commissioner’s finding that the employee
was not guilty of being an accomplice to or involved in
the theft of
precious metal was reasonable (this court had found that it was
unreasonable and thus set aside the award on review).
Again, there
was no direct evidence of misconduct. In dismissing the appeal, the
LAC held that the employee’s version was
full of obvious
contradictions and omissions, that apart from this, his explanations
for aspects of his evidence were improbable,
and that a “cumulative
look at the evidence and analysis thereof lead one to the conclusion
(on the balance of probabilities)
that [the employee] was indeed
involved in theft”. Regarding the commissioner’s finding
of not guilty, the LAC held
that this conclusion “was not a
reasonable one if proper regard is had to all the evidence led at the
arbitration”.
[32]
c)
In
Mogale
Gold
,
the issue was whether the commissioner’s finding that the
employee was not guilty of having colluded with two other employees

in the theft of gold was reasonable (this court had found that it was
unreasonable and thus set aside the award on review). Again,
there
was no direct evidence of misconduct. In upholding the appeal and
thus restoring the award, the LAC again embarked on a thorough

analysis of the evidence. The conclusion reached by it was that it
was inclined to accept that the most plausible inference to
be drawn
was that the employee must have had knowledge of the theft, but that
it was “unable to say that the arbitrator’s
decision [to
the contrary] was one that a reasonable decision maker would not
reach”.
[33]
[73]
In
summary, in all three judgments: the LAC engaged in a thorough
analysis of the evidence; determined for itself what the objectively

correct decision was (identifying process errors and misdirections
made by the commissioner along the way); and then determined
whether
the contrary decision by the commissioner was, nevertheless,
reasonable. In two of the judgments, it was held that it was
not
reasonable, and in the third that it was reasonable. (In effect, the
mode of analysis was similar to that formulated in
Mofokeng
.)
Evaluation
and findings
Ms
Coetzer’s second CV
[74]
Given
that the focus of the company’s attack on the reasonableness of
the award relates to the commissioner’s failure
to appreciate
that Ms Fort (so it was contended) enhanced Ms Coetzer’s CV and
then did not disclose this to the selection
panel, an analysis of the
evidence in relation to the receipt of the second CV and the events
leading thereto is called for.
[75]
As
a point of departure, the first issue relates to the circumstances
under which Ms Fort and Ms Coetzer met, and how the first
CV came
about. Ms Fort’s evidence was contradictory on this issue.
a)
At
the arbitration, Ms Fort’s version was, in effect, that she
only witnessed Ms Coetzer working at JR Bester & Associates
in
reception, and had not spoken to her before receiving her first CV –
having allegedly received it in response to Ms Fort
having given her
business card to Adnaan Ebrahim.
b)
This
version is inconsistent with Ms Fort’s statement to Mr Sibandze
that she was introduced to Ms Coetzer as Adnaan Ebrahim’s

cousin, that Ms Coetzer had enquired about a job at the company, and
that “she had [Ms Coetzer] apply for and receive (inaudible)
at
CDC”.
c)
It
is also inconsistent with what Ms Fort told Mr Gajjar, namely that:
“I met her outside of work through a friend. …
Through
meeting her and talking, I got an understanding of what she does. …
And I said to her that I am looking for a doc
control person –
she must give me her CV.” And further that: “We didn’t
get in the internal [recruitment
process] hey, and then I said to
her, I said: ‘Listen, we didn’t get anybody internally
for this position [i.e. a DCO]
that I am looking for. Don’t you
want to give me your CV and I will add it to the pile’.”
d)
It
is also inconsistent with Mr Edwards’ version that Ms Fort had
told him during their interview that she had met Ms Coetzer
at her
flat and that the CV arose from discussions there. (But Ms Fort
disputed that she had said this.)
[76]
The
commissioner did not apply herself to this issue, and thus did not
consider the inconsistencies referred to above (save for
the
interview involving Mr Edwards). To my mind, on an analysis of the
evidence, one would be hard pressed to accept Ms Fort’s

allegation that what she stated to Mr Gajjar during their interview
was wrong – this for the reasons stated in para 52 above.
In
addition, the version stated to Mr Gajjar is broadly consistent with
what Ms Fort had stated to Ms Sibandze. In the result,
I am inclined
towards the view that Ms Fort’s version at the arbitration was
false, and that she probably interacted directly
(and substantially)
with Ms Coetzer in procuring the first CV.
[77]
The
next issue relates to whether Ms Fort had any dealings whatsoever
with Ms Coetzer in procuring her second CV. On this score,
Ms Fort’s
version is again problematic.
a)
At
the arbitration, Ms Fort gave another entirely benign version: she
had no dealings with Ms Coetzer at all over the issue, and
had
procured the second CV via Adnaan Ebrahim – having asked him to
get Ms Coetzer to resend her CV to her.
b)
In
the first instance, once Ms Fort’s benign version regarding how
she came to obtain the first CV is considered false, a
question mark
hangs over the veracity of this version.
c)
But,
in any event, this version is again inconsistent with the forthright
approach that Ms Fort adopted to the possible recruitment
of
Ms Coetzer as relayed to Mr Gajjar.
d)
Furthermore,
as set out in para 20 (c) above, Ms Fort’s version about the
message she gave Adnaan Ebrahim – particularly
that she was
interviewing for the position of a DCO and that this is how
Ms Coetzer came to learn of this – was clearly
contrived.
[78]
Different
to the first issue, the commissioner did make a finding on this
issue. In dealing with the second CV, she found that:
“
[Ms
Fort] had
contradictory
versions
regarding whether she spoke to Ms Coetzer about the position or
not. I find it far more probable that she did inform Ms Coetzer
about
the vacancy … .” (Emphasis added.)
[79]
What
is remarkable about this finding is that having rejected Ms Fort’s
version at the arbitration on account of her
evidence having been
“contradictory”, the commissioner failed to consider the
impact of this on her credibility as
a witness. In fact, an analysis
of Ms Fort’s credibility as a witness is glaringly absent from
the award (see further below).
[80]
The
next issue is why Ms Fort procured the second CV after the first CV
had already been submitted. Here, too, Ms Fort’s evidence
was
unsatisfactory.
a)
It
will be recalled that, at the arbitration, Ms Fort explained this on
the basis that she had a memory lapse: at the time of receiving
the
pack of CVs in preparation for the selection interview, she realised
that Ms Coetzer’s CV was not in it; although
she recalled
that Ms Coetzer had sent her CV to her, she mistakenly
[34]
thought that she had forgotten to send it to Mr Songongo; and she
thus asked Adnaan Ebrahim to ask Ms Coetzer to resend the
CV.
b)
On
an analysis of the evidence, this is a strange explanation for what
is an important decision on the part of Ms Fort in this
case.
Firstly, it appears improbable that Ms Fort would have forgotten that
she had sent the first CV to Mr Songongo – this
in
circumstances where she had procured it, read it (it having been her
version that she had done so) and then forwarded it to
Mr Songongo by
email under cover of a message.  Secondly, it went unexplained
at the arbitration why Ms Fort did not simply
resend the first CV to
Mr Songongo from her email box – this in circumstances where
she had received it by email from Ms Coetzer.
Thirdly, given
that it was Mr Songongo’s unchallenged evidence that he had
reminded Ms Fort on a number of occasions between
13 and 25 July
2012 to submit the CV that she had told him she wanted to submit, it
is unlikely that Ms Fort could have had
the memory lapse in question.
(Having regard to the sequence of events, it appears probable that
Ms Fort always intended to
procure the second CV after the first
(inadequate) one had been submitted.) Fourthly, and suspiciously, the
message allegedly sent
to Ms Coetzer via Adnaan Ebrahim, allegedly as
a consequence of a memory lapse on the part of Ms Fort, did not
result in Ms Coetzer
resending her CV, but instead resulted in her
completely reworking it (see further below).
c)
In
the light of the above, and considering the credibility of Ms Fort’s
evidence and the probabilities associated with
it, it seems to me
that Ms Fort’s alleged memory lapse was a ruse aimed at
legitimising the calling for a second, and improved,
CV.
[81]
As
appears from the award, the commissioner did not engage at all with
Ms Fort’s explanation about why she had procured
the
second CV after the first CV had already been submitted. This is a
serious misdirection.
[82]
The
next issue that arises is whether, accepting that Ms Fort had
interacted with Ms Coetzer directly in procuring the second CV,
she
had assisted her in compiling it. On this issue, too, the evidence
stacks up against Ms Fort.
a)
At
the arbitration, Ms Fort settled on the version that Ms Coetzer had
obtained advice from the company’s HR department in
drafting
her second CV. On Ms Fort’s version, the second CV (which was,
as I have found, tailor made for the position of
a DCO) was the
product of this advice.
b)
Accepting
that Ms Coetzer would probably have needed some assistance to produce
a tailor made CV – certainly of the quality
of the one produced
– the question is who advised her? Two possibilities presented
themselves in evidence – an unnamed
HR official or Ms Fort.
c)
Ms
Fort’s version that she was told by Ms Coetzer that she had
obtained advice from an HR official stands to be rejected for
the
five reasons stated in para 20 (b) above. The version was
clearly a recent fabrication. (But, in any event, it would seem
to me
that, in order to produce a tailor made CV of the sort produced by Ms
Coetzer, she would probably have needed more advice
than that
allegedly given to her by an HR official over the
telephone.)
d)
Turning
then to whether Ms Fort assisted Ms Coetzer, in circumstances where,
as I have found, Ms Fort interacted directly with Ms
Coetzer in
procuring both the first and second CVs – and was untruthful in
her denial of this, and in her ‘defences’
that she had
called for the second CV on account of a memory lapse and that Ms
Coetzer had told her that she had got advice from
an HR official in
compiling her second CV – the spectre of Ms Fort herself having
given advice on the second CV looms large.
e)
It
is at this point that Ms Fort’s further ‘defence’
that goes directly to whether she assisted Ms Coetzer in
compiling
the second CV stands to be considered – it being that,
according to Ms Fort, she did not so much as look at the
second CV
and simply forwarded it to Mr Songongo and Ms Bakker by
email upon receiving it from Ms Coetzer. For the
reasons
mentioned in paras 20 (d) and (e) above, the defence is also probably
untrue. In my view, this was another attempt by Ms
Fort to disguise
the actual extent of her involvement – something which she did
from the beginning to the end in relation
to the CVs.
f)
In
the circumstances of this matter, it appears to me that Ms Fort was
under an evidentiary burden to explain how the second CV
came about
and what her involvement was in relation thereto, and that she failed
to acquit herself thereof, from which an inference
of misconduct can
be drawn.
[35]
But even if Ms
Fort was not under a formal evidentiary burden, it is, nevertheless,
permissible to draw an inculpatory inference
from the weakness of her
evidence on this issue.
[36]
[83]
In
summary, with reference to the analysis undertaken in paras 75 to 82
above, Ms Fort’s evidence was filled with obvious

contradictions, omissions and untruths – this to the extent
that she was not a credible witness (regard being had to the
relevant
factors set out in
NUM
v CCMA
dealt with in para 64 above).   In addition to this, Ms
Fort’s explanations for several material aspects of her

evidence were improbable. To my mind, a cumulative view and analysis
of the evidence leads one to the conclusion (on a balance
of
probabilities) that Ms Fort was involved in assisting Ms Coetzer
in compiling the second CV, and thus enhancing her application.
In my
view, this is the most plausible or probable inference to be drawn on
the proven facts.
[84]
Turning
now to compare this as against what the commissioner found on the
change in the CVs, the full text of her finding warrants
repetition:
“
Mr Songongo
showed concern that the second CV submitted on behalf of Ms Coetzer
spoke directly to the position of a [DCO].
The applicant had
contradictory versions regarding whether she spoke to Ms Coetzer
about the position or not. I find it far
more probable that she did
inform Ms Coetzer about the vacancy, but be that as it may,
I
cannot find any wrongdoing in this
.
Surely it is common practice for any applicant to tailor their CV to
the requirements of the position for which they are applying.”

(Emphasis added.)
[85]
To
my mind, it is apparent from this that the controversy again passed
the commissioner by. The company’s case at arbitration
was not
just that Ms Fort had told Ms Coetzer that there was a vacancy
for a DCO, but also that she had procured the second
CV from Ms
Coetzer and assisted her in tailoring it. Indeed, it was put to Ms
Fort under cross-examination that, unless Ms Fort
had given her
“inside information”, the content of Ms Coetzer’s
second CV was “quite a coincidence”.
Furthermore, the
finding that Ms Fort was not guilty of any wrongdoing in relation to
the second CV is the product of the series
of errors and
misdirections on the part of the commissioner addressed above.
[86]
Turning
to the
Mofokeng
mode of analysis (see para 68 above), the following:
a)
To
my mind, the commissioner went wrong in failing to grasp the various
issues at stake, failing to take into account all of the
materially
relevant evidence, and failing to undertake a proper evaluation of
the evidence – including, critically, an assessment
of Ms
Fort’s credibility – and thereby properly resolve the
factual disputes. (This all in conflict with both
Sasol
Mining
and
Madikane
dealt with in paras 63 and 65 above.)
b)
But
for these errors and misdirections on the part of the commissioner,
she would, in my view, probably have concluded that Ms Fort
was
guilty of having enhanced Ms Coetzer’s application – this
on the basis set out above. In the result, the commissioner’s

decision is
prima
facie
unreasonable.
c)
Turning
then to the enquiry whether the commissioner’s wrong (and
prima
facie
unreasonable) decision is, nevertheless, capable of reasonable
justification, I do not believe that it is. To my mind, if proper

regard is had to all the relevant evidence, the commissioner’s
decision was not just wrong, but was obviously wrong and thus

unreasonable (see para 71 above). Put differently, being obviously
wrong, the decision falls outside a range of reasonable decisions.
In
my view, this case is similar to
Madikane
and
NUM
v CCMA
,
where the findings of not guilty by the commissioners were found to
be unreasonable on a conspectus of the evidence. And I consider
this
case distinguishable from
Mogale
Gold
,
where, on my assessment, the case in favour of the employee not
having been guilty was far more plausible than the case herein
–
put differently, the commissioner’s decision in that matter was
not obviously wrong. (See para 72 above.)
d)
In
short, the distorting effect of the errors and misdirections
committed by the commissioner in her treatment of the evidence was

such as to cause the commissioner unreasonably not to conclude that
Ms Fort assisted Ms Coetzer in enhancing her application.
[87]
Having
found that Ms Fort assisted Ms Coetzer in enhancing her application
and that the commissioner’s failure to find so
was
unreasonable, the next issue is what the consequences of this are for
the purposes of this review application. The answer to
this lies in a
consideration of what then transpired.
Ms
Fort’s non-disclosure at the DCO interview and the consequences
thereof
[88]
The
commissioner’s conclusion in her award in relation to the issue
of a conflict of interest was this: “I cannot find
anything in
[Ms Fort’s] conduct that constitutes a conflict of interest.”
For the reasons that follow this is, to my
mind, unreasonable.
[89]
That
Ms Fort was under an obligation to make a full and frank disclosure
to her fellow panellists about her dealings with Ms Coetzer
in the
run up to the selection interview is not controversial. On her own
version, Ms Fort disclosed only that she had seen Ms
Coetzer at work.
It follows from the findings that I have made above that Ms Fort
failed to disclose that she had been active in
procuring Ms Coetzer’s
second CV (replacing the first one), and that she had assisted Ms
Coetzer in compiling the second
CV (thus enhancing her application).
If Ms Fort had made such a disclosure, it seems to me that,
inevitably, she would have been
required to recuse herself. In
failing to make such a disclosure and recuse herself, Ms Fort placed
herself in a conflict of interest
with her employer. As Mr Gauntlett
submitted, Ms Fort could not be both a spin blower and a
wicketkeeper.
[90]
To
exacerbate matters, as often occurs where employees fail to disclose
a conflict of interest, this was, on my assessment of the
facts, done
purposefully by Ms Fort, and thus deviously and with deception (i.e.
dishonestly).
[37]
[91]
Things
then went from bad to worse. Not having recused herself, Ms Fort
participated in the interview, scored Ms Coetzer as
the best
candidate (there being a significant disparity in her scoring and
that of Ms Bakker and Ms Knepscheld), and then
came up with the
idea for the first time of appointing two DCOs, which ultimately
resulted in Ms Coetzer’s appointment (at
a salary four times
higher than she had been earning at JR Bester & Associates).
Whether or not these were operationally
justifiable decisions is not
the issue – none of this should have happened because Ms Fort
ought not to have been involved
in the interview in the first place,
with the result that this was all a perpetuation of the conflict of
interest that had arisen,
and the deception that lay behind it.
[92]
Seen
thus, I do not consider it particularly material whether Ms Fort was
dating Adnaan Ebrahim at the time of the interview –
it thus
being unnecessary to determine whether the commissioner’s
findings regarding Mr Edwards’ evidence were reasonable.
What
is clear is that, as Mr Gauntlett submitted, there was a personal
connection between Ms Fort and Adnaan Ebrahim at the time.
But
whatever motivated Ms Fort, she choose to treat Ms Coetzer favourably
by enhancing her application and did not disclose this
to the
selection panel, which gave rise to a very serious conflict of
interest.
[93]
I
agree with Mr Gauntlett that, given the seniority of her position and
the role that she played on the selection panel, Ms Fort
was required
to be ice cold, and that it amounts to serious misconduct for someone
in her position to treat a candidate with any
degree of favouritism,
without making full disclosure to the selection panel. Put
differently, it amounts to serious misconduct
to become involved in
the recruitment process of people to whom you feel favourable, in
circumstances where you do not make full
disclosure. It goes without
saying that such conduct is to be deprecated, particularly where
public funds are involved.
[94]
Where
a senior manager is entrusted with the appointment of personnel in a
largely state-funded entity and breaches that trust in
the
circumstances which occurred herein (which included an element of
deception), the sanction of dismissal is more than warranted.
Indeed,
the commissioner herself recognised in her award that a finding of
guilty on the charges brought against Ms Fort, which
included a
charge of a conflict of interest, “would clearly result in a
sanction of dismissal”. To put the issue beyond
doubt, not only
was Ms Fort guilty of serious misconduct, but she went on to
present a disingenuous defence at both her disciplinary
inquiry and
at the arbitration, and showed no remorse.
[95]
To
my mind, a reasonable commissioner could not have come to a different
conclusion in all the circumstances of this case. Why the

commissioner did so is because she unreasonably failed to find Ms
Fort guilty of having placed herself in a conflict of interest
by way
of her failure to make a full and frank disclosure to the selection
panel. And this failure on the part of the commissioner
was caused by
her having unreasonably failed to find that Ms Fort had assisted
Ms Coetzer in enhancing her application. In
short, the result of the
award is unreasonable, which equates to the commission of a gross
irregularity on the part of the commissioner.
[38]
Other
issues
[96]
In
my view, there are no other issues that need to be determined for the
purposes of this review application. Even if the commissioner’s

determination of the controversy regarding whether Ms Fort had to
obtain the approval of Mr Koza for the appointment of a
second
DCO, and whether she did so, is reasonable, this does not detract
from my findings made above. The same applies to the commissioner’s

findings regarding the appointment of Talha Ebrahim. I would,
however, mention that given what occurred in relation to Ms Coetzer,

the contention (accepted by the commissioner) that everything was
above board in relation to Talha Ebrahim appears somewhat improbable.

But this is not an issue that I need determine.
Costs
[97]
Both
parties sought costs in the event of them being successful, with the
company seeking the costs of two counsel. Fundamentally,
this
application was necessitated by the fact that the commissioner
produced an unreasonable award. Ms Fort ought not to be
held
liable for this, which would be the result of a full order of costs
being made against her. But through her election to oppose
the
application (which she was entitled to do), she put the company to
added costs, which I can see no reason why she should not
bear –
the risk being inherent in the opposition of any proceedings in this
court which fail.
[98]
Although
the length of the record in this matter is prodigious, the issues are
not particularly complex, and I thus do not intend
to order the costs
of two counsel. To give practical effect to Ms Fort only being liable
for the costs occasioned by this becoming
an opposed motion, I intend
to order her to pay the costs from the time that she delivered her
answering affidavit onwards.
Order
[99]
In
the premises, the following order is made:
1.
The
arbitration award issued by the second respondent on 9 November 2014
under case number ECPE5722-13 is reviewed and set aside;
2.
The
arbitration award is replaced with an order that the dismissal of the
third respondent by the applicant was substantively fair;
3.
T
he
third respondent shall pay the costs from the time of the delivery of
her answering affidavit onwards, which shall include the
costs of
only one counsel.
________________________________
Myburgh, AJ
Acting
judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the applicant: Adv JJ Gauntlett SC and Adv GA Fourie
(instructed by Shepstone and Wylie Attorneys)
On
behalf of the third respondent: Adv FE le Roux (instructed by Chris
Unwin Attorneys)
[1]
The second
respondent.
[2]
The third
respondent.
[3]
The applicant.
[4]
Safety, health,
environmental and quality.
[5]
His full name is
Muhammed Talha Ebrahim, but he was generally referred to by his
second name during the arbitration.
[6]
Public Finance
Management Act, 1 of 1999
.
[7]
Industrial
Development Zone.
[8]
This culminated in
Ms Fort being advised by the relevant authorities on 28 August 2012
that the appeal had been successful.
[9]
Coega Strategic
Solutions.
[10]
An acronym for the
company.
[11]
It is implicit in
this that, on Ms Fort’s version, she had read the first CV,
formed the view that it was “not brilliant”,
and then
assumed that the second CV was the same (having allegedly not read
it), and thus made the comment that she did.
[12]
Business unit.
[13]
Human Capital
Solutions.
[14]
Of course, if Ms
Fort had been involved in a relationship with Adnaan Ebrahim in June
2012, then her involvement in the appointment
of his cousin (Ms
Coetzer) in July 2012 and his brother (Talha Ebrahim) in November
2012 would have been utterly irregular on
this basis alone.
[15]
Executive
managers.
[16]
Stellenbosch
Farmers’ Winery Group Ltd & another v Martell et Cie &
others
2003 (1) SA 11
(SCA) (“
SFW
”)
at para 5, which has been followed in a string of judgments both of
this court and the LAC.
[17]
Sasol Mining
(Pty) Ltd v Commissioner Nggeleni & others
[2011] 4 BLLR 404
(LC) at para 9.
[18]
National Union
of Mineworkers & another v Commission for Conciliation,
Mediation & Arbitration & others
(2015) 36
ILJ
2038 (LAC) (“
NUM
v CCMA
”)
at para 14, where the LAC relied on
SFW
.
[19]
Minister of
Safety and Security & another v Madikane & others
(2015)
36
ILJ
1224 (LAC) (“
Madikane
”)
at para 46.
[20]
While this
judgment may appear to go against the tide of authority (see below)
that process errors or misdirections alone do not
give rise to
unreasonableness, it should be read in the context of the fact that
the LAC went on to find that the commissioner’s
decision on
the facts (being that the employee was not guilty of misconduct) was
substantively unreasonable. In line with the
authorities addressed
below, the error or misdirection identified by the LAC – the
failure to weigh all the evidence and
probabilities in the process
of drawing inferences and making factual findings – caused the
result of the award to be substantively
unreasonable, and was thus
reviewable.
[21]
The test for
reasonableness was set as follows in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) at para 110: “Is the decision reached
by the commissioner one that a reasonable decision-maker could not
reach?”
[22]
Herholdt v
Nedbank Ltd (Congress of South African Trade Unions as
amicus
curiae
)
[2013] 11 BLLR 1074
(SCA) (“
Herholdt
(SCA)
”)
at para 25.
[23]
Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 15.
[24]
Head of the
Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC) (“
Mofokeng
”)
at para 33.
[25]
See also,
Shoprite
Checkers v CCMA
[2015] 10 BLLR 1052
(LC) at para 9.
[26]
There are a number
of factors that serve to warrant this court (and the LAC)
scrutinising CCMA awards with a relatively high degree
of intensity.
Firstly, CCMA arbitration awards implicate the constitutional right
to fair labour practices, which is guaranteed
to both employees and
employers alike. This calls for heightened scrutiny review.
Secondly, particularly in relation to the typical
unfair dismissal
case dealt with by CCMA commissioners, they do not process any
specialist expertise which this court does not
have and the range of
relevant factors is not particularly complex, such as would
otherwise serve as a basis for a low intensity
review (i.e. where
interference is limited). Thirdly, in the absence of this court (and
the LAC) adopting a relatively high intensity
approach to reviews,
consistency (and predictability) in decision-making will be severely
undermined, which would have serious
implications for all concerned.
[27]
Amongst the
important judgments of the LAC to this effect are
Goodyear
SA (Pty) Ltd v CCMA & others
[2004]
1 BLLR 7
(LAC) at para 6, and
Herholdt
v Nedbank Ltd
(2012) 33
ILJ
1789 (LAC) at para 55. In
Goodyear
,
the LAC held: “Neither finding would have been so
obviously
wrong
that it could be interfered with on the basis that it was irrational
or unjustifiable. Whichever route he followed, the second
respondent
nevertheless concluded that the dismissal was unfair. Again, against
the overall factual background, this conclusion
was not so
obviously
wrong
that it could be interfered with on the basis that it was irrational
or unjustifiable” (emphasis added). In
Herholdt
,
the LAC held: “Our experience in adjudicating reviews of
awards issued in terms of the LRA and the controversy around
this
only demonstrate that the requirement of substantive reasonableness
is practically necessary to deal with
obviously
wrong
awards” (emphasis added).
[28]
Review judgments
of the LAC are replete with these sorts of findings that are
consistent with the threshold for unreasonableness
being that the
award is obviously wrong: “this simply cannot be right”
(
Shoprite
Checkers (Pty) Ltd v CCMA & others
[2008] 12 BLLR 1211
(LAC) at para 26); the commissioner “clearly
got it wrong” (
Motsamai
v Everite Building Products (Pty) Ltd
[2011] 2 BLLR 144
(LAC) at para 23); and there is “clearly no
merit” in this (
Zono
v Gruss NO & others
[2011] 9 BLLR 873
(LAC) at para 19).
[29]
Practically
speaking, I would suggest that the test of “obviously wrong”
operates as follows. There might be two reasonable
decisions at the
end of a line of reasoning: for the commissioner to choose one and
not the other is not unreasonable. If there
was one
obvious
answer, but the commissioner reached another answer, this is
unreasonable because it is
obviously
wrong.
[30]
National Union
of Mineworkers & another v Mogale Gold, A Division of Mintails
(SA) (Pty) Ltd
(2015) 36
ILJ
2815 (LAC) (“
Mogale
Gold
”).
[31]
Madikane
at para 60.
[32]
NUM v CCMA
at paras 15, 17 and 18.
[33]
Mogale Gold
at para 32.
[34]
The mistake was
that she had, in fact, sent the first CV to Mr Songongo.
[35]
See, for example,
Nampak
Corrugated Wadeville v Khoza
[1999] 2 BLLR 108
(LAC) at para 35, where the LAC held: “It
was Khoza who had to furnish that explanation. In the absence of any
credible
explanation, the inference that he deliberately neglected
to perform his duty is irresistible.”
[36]
NUM v CCMA
at para 7.
[37]
See, for example,
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer
[2015] 4 BLLR 394
(LAC) at para 17.
[38]
Herholdt (SCA)
at para 25.