About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2015
>>
[2015] ZALCD 29
|
|
Mofokeng v SALGBC and Others (D652/14) [2015] ZALCD 29 (24 February 2015)
Not
Reportable
Case
no.: D652/14
In
the matter between:
SERAME
MOFOKENG
Applicant
and
SALGBC
1
st
Respondent
VEESLA
SONI
2
nd
Respondent
NEWCASTLE
MUNICIPALITY
3
rd
Respondent
Heard:
24 February 2015
Delivered:
24 February 2015
JUDGMENT
CELE
J
[1]
The application before me is one in terms of
section 145(2)
of the
Labour Relations Act 66 of 1995
, where the applicant seeks to be
granted an order in the following terms:
1.
That the arbitration award of the second respondent under case number
KDP0231401, given under the auspices
of the first respondent, dated
7 July 2014, be and is hereby reviewed and set aside.
2.
That the arbitration award be reviewed and set aside in terms of
paragraph 1 above and is replaced with an
order that the third
respondent reinstates the applicant from the date the applicant was
unfairly dismissed by the third respondent,
to his position within
the third respondent.
3.
Alternatively to paragraph 2 above, that the arbitration award is
reviewed and set aside in terms of paragraph
1 above and is replaced
with an order that the third respondent re-employs the applicant
either in the work in which the applicant
was employed at the third
respondent before his dismissal, or in reasonably suitable work on
the same or similar terms.
4.
That the costs of this application be paid by the respondent which
opposes this application or by those respondents
jointly and
severally, the one paying, the other to be absolved.
[2]
The application is opposed in this instance by the third respondent,
who was the erstwhile employer of the applicant.
It
is common cause that the applicant was an employee of the third
respondent in the private security industry. To discharge
his
duties he had to put on a uniform. It appears to have been a
navy shirt and navy pants, or something close to that effect.
[3]
The applicant was charged with an act of misconduct, theft of diesel,
he was found guilty and was dismissed. He referred an
unfair
dismissal dispute for conciliation. An attempt to resolve the
dispute failed. He then referred it to arbitration.
It
came before the second respondent as the appointed Commissioner of
the first respondent. Two witnesses were called by
the third
respondent, being the employer, and two witnesses testified for the
applicant, the applicant being one of such. At the
end of the
arbitration hearing the Commissioner issued an award wherein she
confirmed the fairness of the dismissal and she dismissed
the
application before her. The applicant has approached the Court
to review this arbitration award.
[4]
The applicant was working on the relevant night in question and, as I
have indicated, he was wearing his uniform, but he was
stationed at
the boom gate. Whilst he was working it came to light that
there was an unusual movement where the tractors
of the Municipality
were kept at or near a shed.
[5]
Staff personnel that were observing the CCTV recordings noticed these
movements and became concerned. One of them was
a Mr Mtshali.
He then attracted the attention of the other three colleagues with
whom he was at the time working to what
he had seen. They
played back the recording. They saw a person who appeared to
have been carrying a container which
was either a 20 or 25 litres.
He carried another object which appeared to be a flexible object that
looked like a pipe.
Those that were observing formulated an opinion
that this person was sucking diesel from the tractors because there
was a container
and a pipe and the person appeared to have been
kneeling, but they could not make out clearly what was going on. They
thought that
he was wearing the uniform of the security persons with
a two-way radio.
[6]
The respondent’s version is that at the time the applicant was
the only employee working around that place. He could
have been
the only suspect who would have been carrying a two-way radio around
the place at the time. It is, however, common
cause that there
was a Mr Mkhaliphi who was the head of security who was also on duty,
dressed similarly as the applicant. His
whereabouts at the critical
point in time remained unclear. He did not even testify as to
where he was.
[7]
Once the observation was done on the CCTV recording, Mr Mtshali
telephoned Mr Mkhaliphi who soon came to the observatory room
and he
was driving a kombi. He was shown the source of concern, and he
then drove the kombi to the boom gate, where the applicant
was.
He found the applicant there. The versions of the parties then
differ.
[8]
According to the third respondent, Mr Mkhaliphi spoke to the
applicant and told him to follow him, so the applicant opened the
boom gate, he let the kombi in, and whilst Mr Mkhaliphi was
driving the kombi he was going along with the applicant following
him
to the shed. The kombi was parked and the two men then went
together. They were talking. They approached
the shed,
and apparently there was one container there.
[9]
According to the third respondent, Mr Mkhaliphi told the applicant
that at the observatory room he was seen on CCTV capture
stealing
diesel. According to Mkhaliphi the response from the applicant
was to the effect that the applicant was just trying.
Mr
Mkhaliphi understood that to be a confession on the part of the
applicant, meaning he was trying his luck. At that stage, according
to Mkhaliphi, the applicant started running away, trying to hide the
containers. It came to light that there were about four more
containers around of 20 or 25 litres. It is not clear in the
evidence how many were filled with diesel.
[10]
It is not clear in the evidence whether any of the tractors from
which diesel could have been sucked or stolen had their diesel
tanks
opened or locked at the particular point in time.
[11]
Mr Mkhaliphi said that the applicant used his telephone to talk to
another person, a Mr Sithole, and to plead with him so that
he would
not be dismissed, and in that discussion Mr Sithole finally also came
to the scene. The applicant denied having
ever communicated to
anyone a plea not to be dismissed. Mr Mkhaliphi said he was
instructed By Mr Sithole to dismiss the applicant
with immediate
effect, which he did not agree to do then.
[12]
The evidence of the third respondent was that the person on the video
capture looked more or less like the applicant and carried
a two-way
radio. Added to that was the confession that the applicant made.
The third respondent found him guilty and dismissed
him. When the
evidence was tendered at arbitration, it came to light that Mr
Mkhaliphi had made a statement to the police. He was
referred to that
statement. He associated himself with the first part of the
statement, but he distanced himself from the
second part of the
statement. That second part of the statement reads thus:
“
On
my arrival at the site I found security officer Mofokeng, who was
busy draining diesel from the tractor
.”
[13]
Mr Mkhaliphi indicated that he had allowed the statement to be
drafted and he simply signed it, and he then denied that he
found the
applicant busy draining the diesel from the tractor. That was
obviously a serious contradiction on the part of
the written
statement and the
viva voce
evidence.
[14]
The evidence of the applicant is that he was on duty on the night in
question, wearing a uniform. He did have a two-way
radio.
He did not have any spectacles on. He was not wearing any light
shirt. He was positioned at the boom gate and
he kept himself
there. He was cross-examined and he suggested that all he had to do
was to watch the gate. As a security person
he was in fact in charge
of the premises and not just to watch who was going in and out of the
boom gate.
[15]
That part of his evidence might have discredited him with the
Commissioner. Other than that his version did not have inherent
improbabilities as he denied having stolen any diesel on the night in
question. He said he never went anywhere near the shed
where
the tractors were parked and he calls it a place which is about four
blocks away from the gate where he had been. He
denied having
walked with Mr Mkhaliphi to the shed after the two had met on
the night in question, but he said that he allowed
the kombi in and
Mr Mkhaliphi went to park it and the applicant went to him to talk.
[16]
It is clear from the evidence of the respondent that in the video
capture Mkhaliphi does subsequently appear at the time when
he had
met with the applicant. He was alone at the time and not with
the applicant. The Commissioner’s approach
was that the
evidence on the video footage left much to be desired as not to be
reliable. She could not rely on it, and she made
a finding that that
evidence was not sufficient. She did not stop there. She
had the following to say in the award.
“
However,
in assessing the evidence wholly and cumulatively, he was the only
person on duty where the tractors were parked.
There was an
admission to Mr Mkhaliphi that ‘I was just trying my luck’,
and he later apologised to Sithole,
……
..
The
test was a balance of probabilities and not beyond a reasonable
doubt. The applicant tried to discredit Mkhaliphi, but
the
allegations about their relationship were unfounded and tailored to
suit his case
.”
[17]
The Commissioner goes on at paragraph 20, inter alia, to say:
“
The
person on the footage was clearly dressed in full uniform and
equipped with a two-way radio. It was therefore highly unlikely
that it was any of the men that were dropped off by Mbonambi that
stole the diesel. Based on the evidence and admissions
by the
applicant, I am satisfied that the respondent discharged the onus and
established that the applicant was guilty of the offence.
His
behaviour was completely unlawful and a disgrace to the
Municipality. His conduct was not only intolerable, but
unendurable.
I have no doubt that such behaviour would
irreparably destroy the trust relationship. The test is a
balance of probabilities,
and I am satisfied that the respondent
discharged the onus. I find that the dismissal was the
appropriate sanction,
as such conduct cannot be condoned in the
position that the applicant has. There was insufficient
evidence led on procedural
unfairness, and I find same to be fair.
“
[18]
She then issued an award dismissing the application with no order as
to costs. The question upon me is whether the Commissioner
issued an
award that a reasonable decision-maker could have issued in the
circumstances. I have looked at the supplementary affidavit
of the
applicant in support of this application. At the outset I need
to draw a distinction between the credibility aspect
and the
reliability aspect of the evidentiary material to determine which
version was favoured by the balance of probabilities.
The
question that confronts me is, even if the two witnesses Messrs
Mtshali and Mkhaliphi may have been honest witnesses, the real
question was whether their evidence was reliable enough to find it
probable.
[19]
The Commissioner had every reason to doubt the evidence of the video
capture. But I do not think that she conducted enough
probe in
this respect. There was the issue of the suspect wearing
glasses and wearing a light coloured shirt. I fall back
on the
evidence that was before the Commissioner, the evidence of the
internal disciplinary hearing. This is captured, on
page 97
of the index to the documents. Paragraphs 3.4 to 3.6 read thus:
“
3.4
Mr Mtshali confirmed that there was some time staff members from the
cleaning section who worked overtime and that
there might have been
other people on duty that night.
3.5
Mr Mtshali said that the person on the video footage
looked like he was wearing glasses, and Mr Mkhaliphi
confirmed
this, but further added that when he arrived at the scene he
confirmed that Mr Mofokeng was not wearing glasses,
which did
not surprise him because he had not seen Mr Mofokeng with
glasses before. This difference was not material
so as to
discredit the witness.
3.6
Mkhaliphi also testified that he knew that there are
employees from the cleansing who often worked overtime and
knocked
off late, but further added that he did not see anyone else. Mr
Mofokeng did not deny that he is the person who was
draining the
diesel from the tractor.
”
[20]
If the Commissioner had applied her mind to this evidence,
particularly 3.4 and 3.5, the Commissioner could probably have
entertained doubt about the reliability of the identification
evidence on the video further. Because it seemed to be that
the
suspect was wearing glasses. This is the version of Mr Mtshali. That
version is confirmed by Mr Mkhaliphi. Mr Mkhaliphi says
when he went
to the applicant he confirmed that the applicant on the night in
question was not wearing glasses, so it was an important
consideration in his mind at the time, it was uppermost in his mind.
Therefore, it seems to be that the person in the video
must have been
a completely different person.
[21]
I have also examined a possibility, without suggesting that it is so,
that Mr Mkhaliphi himself was dressed like the applicant,
he has not
been excluded by the evidence as to being a suspect in this respect.
That should also have thrown doubt in the mind
of the Commissioner on
the evidence. But further, according to the third respondent
Mkhaliphi and the applicant left the gate and
moved together towards
the shed. One would expect that in the video capture both of
them would have been seen together. According
to the applicant he
remained behind and he did not go along with Mkhaliphi. The video
capture saw Mkhaliphi alone. That evidence
tends to suggest
that the version of the applicant was the most probably true version
as to their movements at the time in question.
[22]
There are therefore a number of concerns about the identification of
the suspect on the night in question. In my view,
the facts
that tend to confirm that it could be the applicant are much less
than those that suggest that it was probably not the
applicant.
I have looked at the evidence of the applicant, who said that he did
not have a good relationship with Mr Mkhaliphi
because he made
moves towards Mr Mkhaliphi’s girlfriend and that they did not
get along since that incident. The Commissioner
correctly found, that
version was never put to Mkhaliphi nor to any of the other
witnesses. It is a version that was developed
fairly late in
the proceedings. But it has nothing to do with credibility, but
everything to do with how a case was poorly
presented.
[23]
Clearly, this is a case where there is serious doubt about the
evidence of the respondent in seeking to identify the suspect
to be
the applicant. The question of him having tried his luck is one of
those considerations that leave doubt when seen against
the rest of
the considerations that are put forward. I would have expected that
the Commissioner should have realised that the
respondent failed to
lead evidence of a sufficient nature for the finding that on the
probabilities the suspect was the applicant.
Clearly it was not the
applicant on these probabilities, and therefore:
1.
The application before me stands to be granted, as prayed for in
paragraphs 1 and 2 of the Notice of Motion.
2.
No costs order is made.
3.
The applicant is to report for duty within four days from today,
because he is represented, so he will know
about the outcome of this
matter.
_____________
Cele
J
Judge of the Labour Court of
SouthAfrica.
Appearances
For
the Applicant: Sithole instructed by Dludlu Attorneys
For
the Respondent: M Sewpal instructed by KM Chetty Attorneys