Department of Health (Western Cape) v DENOSA obo Cloete and Others (C235/14) [2016] ZALCCT 8; [2016] 9 BLLR 923 (LC); (2016) 37 ILJ 2398 (LC) (25 February 2016)

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[2016] ZALCCT 8
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Department of Health (Western Cape) v DENOSA obo Cloete and Others (C235/14) [2016] ZALCCT 8; [2016] 9 BLLR 923 (LC); (2016) 37 ILJ 2398 (LC) (25 February 2016)

REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 235/14
In
the matter between:
DEPARTMENT OF
HEALTH (WESTERN CAPE)
Applicant
and
DENOSA obo E J
CLOETE
First Respondent
PHSDSBC
Second
Respondent
L MARTIN N.O.
Third Respondent
Heard
:
17 February 2016
Delivered
:
25 February 2016
Summary:
Review – sexual harassment – award not
so unreasonable as to fail
Sidumo
test
– application dismissed.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This
is an application to have an arbitration award by the third
respondent, Leslie Martin (a panellist of the Public Health and

Social Development Sectoral Bargaining Council
[1]
),
reviewed and set aside. It arises from the dismissal of an employee,
Mr Elton John Cloete
[2]
, after
it was found that he had committed four acts of misconduct. Cloete is
a nurse. The most serious allegation – and the
one on which
much of the argument at arbitration and in this hearing focused –
is that he had sexually molested a patient,
Ms Celeste Nerina
Dimphana. The arbitrator found her evidence improbable and not
credible. As a result, he found on a balance of
probabilities that
Cloete had not committed the misconduct and reinstated him. The
employer, the Department of Health (Western
Cape) seeks to have the
award reviewed and set aside. It initially asked for the dispute to
be remitted to the Bargaining Council.
In a belated amendment to the
notice of motion it asked, in the alternative, that this Court
substitutes the award with one that
the dismissal was fair.
[2]
The state attorney delivered the review
application late, as well as the supplementary affidavit in terms of
rule 7A(6) and the
replying affidavit. It sought condonation. DENOSA
and Cloete withdrew their initial opposition to condonation. At the
outset of
the hearing, I granted condonation. It appeared to me to be
in the interests of justice that the review application be heard on

its merits.
Background
facts
[3]
Cloete was employed by the Department as an
enrolled nurse from January 2009 until his dismissal on 24 September
2013 on charges
of, inter alia, sexual harassment and administering
unauthorised injections to a patient, Ms C.N. Dimphana, (‘the
complainant’)
under his care and whilst on duty at Karl Bremer
Hospital.
[4]
The complainant had been admitted to Karl
Bremer Hospital on 30 May 2013 and diagnosed with a spontaneous
pneumothorax - in lay
person’s terms, a collapsed lung.
At the time of the alleged incidents on 4 and 5 June 2013, she was 49
years old.
[5]
At a disciplinary hearing on 24 July 2013,
the employee was charged with four counts of misconduct.  They
are summarised as
follows:
5.1
It is alleged that the employee during the
period of 4 June 2013 to 5 June 2013 administered two unauthorized
injections to the
complainant, contrary to her prescription chart.
5.2
It is alleged that the employee on 5 June
2013 made a false entry into the complainant’s prescription
chart to the effect
that he had administered one injection of Clexane
40mg to her at 10:00 whereas his shift ended at 07:00.
5.3
It is alleged that on 4 June 2013 to 5 June
2013, the employee made unwelcome physical contact of a sexual nature
with the complainant
in that he pulled down her panties and placed
his hand on her pubic area.
5.4
It is alleged that during the course of his
shift on 5 June 2013, the employee, without any prescription and
explanations to the
complainant, gave her un-prescribed cream which
he required her to rub on her vaginal area whilst being present and
which he also
applied to her vaginal area.
[6]
The employee noted an internal appeal
against his dismissal.   It was unsuccessful. His dismissal
was confirmed on 30
August 2013.
[7]
Following arbitration proceedings which
commenced on 29 October 2013, the arbitrator found the employee’s
dismissal to have
been substantively unfair and ordered his
retrospective reinstatement by 3 February 2014.   This
determination is the
subject of the review application.
The
arbitration
[8]
At the arbitration, the Department led the
evidence of the complainant, Ms Dimphana; and that of a registered
nurse, Ms Norma Vivienne
Kalamdien. Cloete testified on his own
behalf. He was represented by a trade union official, Ms F Behardien.
The Department was
represented by Adv F Rodriguez.
[9]
It is common cause that Ms Dimphana had to
be given an injection of Clexane, an anti-coagulant, at 10:00 every
day. It is also common
cause that Cloete was on duty from 19:00 on 4
June until 07:00 on 5 June 2013.
[10]
Dimphana testified that Cloete gave her an
injection at about 20:00 on 4 June. She assumed it was Clexane. He
lowered her panties
slightly, put the heel of his hand on the pubic
area, and administered the injection on her stomach, between the
navel and the
pelvic area. (There was nothing untoward about the
place where he injected her; that is where it was usually done.
However, she
felt “slightly uncomfortable” about where he
placed his hand). Later that night, she said, he visited her again
and
administered another injection in the same manner.
[11]
Early in the morning of 5 June Ms Dimphana
went to wash. She did not have any clean panties and did not put any
on. She only wore
her hospital gown. She covered herself with her
bedclothes. After 06:00 Cloete came around to give her medication and
indicated
that he needed to give her another injection. She pulled
the bedcover down and pulled her gown up, thus exposing her genitals.
She testified that, after he had administered the injection, Cloete
took out a sachet of gel – it appeared to her to be K-Y
jelly –
and told her to apply it between her legs. She was unsure what to do
and rubbed it on her thighs. He told it to apply
it to her vagina.
She did so on the outside of her vagina. Cloete then squirted some of
the gel on his fingers and applied it to
her labia. She felt
uncomfortable but did not say so.
[12]
After Cloete had left, the complainant saw
Nurse Kalamdien. She told her what had happened. Kalamdien wrote down
the complainant’s
version of events but did not check if any
syringes or gel were missing or whether any gloves were either
missing or had been disposed
of. (The complainant said that Cloete
was wearing gloves when he applied the gel).
[13]
Kalamdien testified that she called Cloete
to her office. After initially denying all knowledge of the alleged
incidents, he confirmed
that he had mistakenly administered the
Clexane injection at 06:25 instead of 10:00. He noted the time and
the injection on the
prescription chart. He denied giving Dimphana
any other injections. He said that she had complained of a dry skin
and he had given
her some aqueous cream to rub on her stomach.
[14]
Cloete testified that he had administered
the Clexane injection at 06:25 as that was the time indicated on the
prescription chart
when it was first administered when the patient
was admitted, and all the medicines were on the trolley at the time.
When he realised
his mistake, he told Kalamdien. He confirmed his
version relating to the aqueous cream as relayed by Kalamdien. He
denied that
he had used gloves or that he had given the complainant
any other injections. When he gave her the Clexane injection, only
the
part of her skin where he had to administer it – i.e. below
the navel and above the pubic area – was exposed. At a
pre-arbitration meeting he rejected an offer by the Department to
change his dismissal to a resignation as he wished to clear his
name.
The
award
[15]
The arbitrator accepted at the outset that,
if the complainant’s version was to be accepted, it had “sexual
connotations”.
But he was faced with two contradictory versions
relating to the allegations of two injections during the night of 4
June; whether
the complainant had exposed herself on the morning of 5
June; and the gel incident.
[16]
The arbitrator accepted that Cloete had
administered the Clexane injection at the wrong time in the morning
of 5 June. On the other
allegations, he preferred Cloete’s
version over that of the complainant. He took the following into
account:
16.1
When he did administer the injection at the
wrong time, Cloete recorded and admitted it. It is unlikely that he
would have administered
two other injections without noting it.
16.2
The complainant alleged that she was
already uncomfortable with Cloete’s conduct; why would she
willingly expose herself to
him when he came to give her the
injection on the morning of 5 June?
16.3
Cloete’s version that only the area
needed to be exposed for the injection was so exposed, is more
plausible than that of
the complainant that she exposed the full
genital area.
16.4
If Cloete had administered three Clexane
injections – an anti-coagulant – it is likely that
serious consequences to
the patient would have manifested.
16.5
Ms Dimphana’s evidence was
uncorroborated.
16.6
Kalamdien did not check anything to
corroborate the complainant’s version.
[17]
The arbitrator thus preferred Cloete’s
version of events over those of the complainant and Kalamdien. He
thus found, on a
balance of probabilities, that Cloete had not
committed the misconduct and that his dismissal was unfair. He
ordered the Department
to reinstate him.
Review
grounds
[18]
Ms
Seria
raised the following review grounds on behalf of the Department:
18.1
The arbitrator
failed to arrive at a decision properly based on the evidence before
him and, as such, he committed misconduct in
relation to his duties.
18.2
The award has no
logical relation to the evidence presented to the arbitrator.
He therefore failed to apply his mind properly
to the matter and to
the material facts and therefore committed misconduct in relation to
his duties.
18.3
The arbitrator
incorrectly applied the cautionary rule with regard to the single
witness testimony of the complainant, whose evidence
according to him
was uncorroborated.
18.4
The arbitrator
upheld the version of the employee even though his legal
representative failed to put his version to the complainant.
18.5
The arbitrator
failed to consider the provisions of the Provincial Government
Western Cape’s (‘PGWC’) Sexual Harassment
Policy
(‘the Sexual Harassment Policy’ or ‘the Policy’
depending on the context).  The Policy is a
transversal policy
which finds application in the various departments of the PGWC
including the applicant.  The omission to
consider the
provisions of the Policy was a gross irregularity.   The
arbitrator, accordingly, failed to properly assess
the facts in
relation to the charge of sexual harassment.
18.6
The arbitrator
failed to properly apply his mind to material aspects of the evidence
and drew incorrect conclusions thereby affecting
the outcome of the
award
Evaluation
/ Analysis
[19]
In
considering these review grounds, I will once again traverse the
current state of the law regarding reviews
[3]
;
and then apply it to the facts.
THE
APPLICABLE LEGAL PRINCIPLES
[20]
As Mr
Leslie
pointed out in his argument, the Department now (ostensibly) asks the
Court to review the factual findings of the arbitrator, which
were
based on the inherent probabilities of the competing versions and the
credibility of the witnesses. As he persuasively argued,
reviews of
this nature will succeed only in the narrowest of circumstances. The
Court must guard against an impermissible attempt
to “appeal”
against the arbitrator’s findings of fact. It is perhaps
necessary to again set out the distinction
between appeals and
reviews in some detail.
The
Sidumo test: reasonableness
[21]
One
of the primary purposes of the Labour Relations Act
[4]
is to promote “the effective resolution of labour
disputes”.
[5]
To
this end, the scheme of LRA contemplates a relatively informal
dispute resolution process through conciliation or arbitration
under
the auspices of the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”) or, where applicable,
a
bargaining council with jurisdiction.
[22]
A
CCMA commissioner tasked with arbitrating a labour dispute is
empowered to “conduct the arbitration in a manner that the

commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits
of the
dispute with the minimum of legal formalities”.
[6]
[23]
There
is no appeal against a CCMA or bargaining council arbitration award.
The LRA accords the Labour Court limited oversight over
arbitration
awards, in the form of a review. The review grounds set out in
section 145 are limited in scope, and mirror the grounds
contained in
section 33(1) of the Arbitration Act
[7]
.
[24]
In
Sidumo
[8]
the
majority held that:
24.1
Arbitrations
conducted under the auspices of the CCMA constituted administrative
action.
[9]
24.2
The
LRA was specialised labour legislation that effectively trumped the
general legislation governing administrative action
[10]
.
The grounds of review applicable to CCMA arbitrations were therefore
limited to those set out in section 145(2) of the LRA. The
review
grounds set out in PAJA were not applicable.
[11]
24.3
However,
the grounds in section 145 had to be read in conformity with the
Constitution
[12]
and, in
particular, the right to administrative action that is lawful,
reasonable and procedurally fair. The effect of this was
that the
review grounds in section 145 had to be suffused with the standard of
reasonableness.
[13]
24.4
The
reasonableness standard was that set out in
Bato
Star
[14]
. The court’s task was limited to ensuring that awards “fall
within the bounds of reasonableness”.  To this
end, an
award would be subject to review only where the decision was not one
that a reasonable decision maker could reach.
[25]
The
court was alive to the fact that review for reasonableness did pose a
threat to the distinction between review and appeal, since
it
necessarily entailed some consideration of the “merits”
of the award. However, the court endorsed Professor Hoexter’s

analysis that the danger lies, not in careful scrutiny, but in
“judicial overzealousness in setting aside administrative

decisions that do not coincide with the judge’s own opinions.”
[15]
[26]
In
this regard, the caution sounded by the Labour Appeal Court in
Carephone
[16]
remains apposite:
“
As
long as the Judge determining this issue is aware that he or she
enters the merits not in order to substitute his or her opinion
on
the correctness thereof, but to determine whether the outcome is
rationally justifiable, the process will be in order.”
[27]
As
Professor Hoexter
[17]
has
stated:
“
Judges
will be less likely to usurp administrative powers if they remember
that review for reasonableness does not demand perfection
(or what
the court regards as perfection), but ought indeed to give scope for
legitimate diversity. The important thing, then,
is that judges
should not use the opportunity of scrutiny to prefer their own views
as to the correctness of the decision.”
[28]
In
Bestel
[18]
the LAC emphasised that:
“
The
ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be correct
by the
reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings
as opposed to an
appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.”
[29]
The
stringency of the
Sidumo
test was highlighted in
Thebe
Healthcare v NBC, Road Freight Industry
[19]
:
“
As
the famous saying goes, ‘Quot homines, tot sententiae’.
Opinions, even among reasonable men and women, may differ
and, at
times, quite markedly. If the test in a challenge to an
administrative decision is whether the decision was one that no

reasonable decision maker could reach, it will, in practice, be very
difficult to succeed.”
[30]
An
applicant for review faces an even more onerous task where, as in the
present case, it seeks to impugn credibility findings of
the original
decision-maker. The reluctance of appellate courts to upset the
findings of a trial judge is based on the fact that
the latter has
advantages in seeing and hearing the witnesses and in being steeped
in the atmosphere of the trial. This reluctance
applies both to
credibility findings and findings based on probabilities.
[20]
These principles apply with equal force where a litigant challenges
an arbitration award on review.
[31]
The
approach of arbitrators when dealing with contradictory versions –
and that of a reviewing court in assessing the resultant
award –
was recently succinctly and eloquently discussed in
Solidarity
obo Van Zyl v KPMG Services (Pty) Ltd.
[21]
The traditional approach is that applicable to courts of law and set
out in the well-known case of
Stellenbosch
Farmers’ Winery Group Ltd v Martell et cie.
[22]
But the court in
KPMG
called
for a more nuanced approach in arbitrations, citing
Transnet
Ltd v Gouws
:
[23]
“
11.
The proper approach of a court (or arbitrator) which is called upon
to determine which of two mutually destructive versions
should be
accepted was related in the judgment of
Stellenbosch
Farmers Winery Group Limited and other v Martell et Cie
…
12.
That judgment emphasises the interrelationship of credibility of the
witnesses, their reliability and the probabilities. However,
it is be
borne in mind that the ultimate decision which a court, or an
arbitrator (as the case may be) must determine is whether
on the
issue in question the party which bears the onus has discharged it.
In cases concerning the fairness of dismissals under
the LRA, the
party which bears the onus of justifying the dismissal is the
employer. The question which the arbitrator must ask
in discharging
its duties as such is where the probabilities lie. If the
probabilities favour the employer, it may well discharge
the onus of
proving the dismissal was fair.  If they do not, the employer
may fail.
13.
The importance of credibility has sometimes been over-estimated. An
assessment of evidence on the basis of credibility only,
without
regard for the underlying probabilities, is inappropriate –
indeed, it constitutes a misdirection. (See
Medscheme Holdings
(Pty) Limited v Bhamjee
2005 (5) SA 339
(SCA) at 345 A)
14.
The proper approach was expressed by Eksteen J in
National
Employers General Insurance Co. Limited v Jagers
1984 (4) SA 437
(E) at 440 D-H, which is to the following effect:
‘
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus ordinarily only be discharged with adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case and where there are two
mutually destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version
is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken
and fails to be rejected.
In deciding whether the evidence is true or not, the Court will weigh
up and test the plaintiff’s
allegations against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound
up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the court
will accept his version as
being probably true. If, however, the probabilities are evenly
balanced in the sense that they do not
favour the plaintiff’s
case any more than they do the defendant’s the plaintiff can
only succeed if the Court nevertheless
believes him and is satisfied
that his evidence is true and that the defendant’s version is
false.’
…
18.
The second respondent did not pertinently address the question of the
credibility of the three witnesses he mentions –
Mr Van
Rensburg, the first respondent, and the first respondent’s
wife, Mrs Gouws.  It is this failure which draws the
criticism
of the applicant in these proceedings. It has been submitted that
there ought to have been a discrete enquiry by the
second respondent
into the question of each witness’s credibility.
19.
As I have indicated above, the important question which had to be
tackled by the arbitrator was whether the employer, on a
preponderance of probability, had established that the first
respondent had received cash bribes from Nu-Liner. The key question

for him was which version was more probable. He was able to reach a
decision on the probabilities without having to have regard
to the
credibility of each witness. It is quite possible for evidence to be
assessed purely on its probability, assuming for the
purposes of that
assessment that the witnesses who testified were credible. It is not
necessary for a judicial officer or arbitrator
to find a witness not
to be credible in order to find that his evidence is not probable. In
this regard, there is an informative
and authoritative article by the
former judge of the Appellate Division, H.C. Nicholas “’Credibility
of Witnesses’”
(1985) 102 SALJ 32.
20.
In my view, the failure by the arbitrator to make a pertinent finding
on credibility does not demonstrate that he failed to
understand the
proper approach to the assessment of conflicting evidence.  The
arbitrator appears clearly to me to have understood
that his primary
task was to resolve the conflicting versions by having regard to the
balance of probability. He applied the correct
judicial technique in
this regard.  Accordingly, his failure to address the
credibility of each witness and comment thereon
is not a fatal flaw
which would entitle the applicant to review of his award.”
(Emphasis as in
KPMG
).
[32]
This
approach to credibility findings by an arbitrator seems to me to be
consistent with that adopted in the case cited by Ms
Seria
,
i.e.
National
Union of Mineworkers v CCMA
[24]
:
“
This
court should not readily interfere with credibility findings made by
CCMA commissioners, and should do so only if the evidence
on the
record before the court shows that the credibility findings of the
commissioner are entirely at odds with or completely
out of kilter
with the probabilities and all the evidence actually on the record
and considered as a whole.”
[33]
It
bears emphasis that “errors of fact by an arbitrator,
particularly in respect of facts that he or she is empowered to
determine (such as findings on the probabilities), will not usually
give rise to a valid ground of review”
[25]
;
and “the fact that an arbitrator commits a process related
irregularity is not in itself a sufficient ground for interference
by
the reviewing court.”
[26]
[34]
The
test in
Sidumo
is result-based. The enquiry is whether the conclusion reached by the
arbitrator is reasonable in relation to all the material
that served
before him. The reviewing court is not constrained by the reasons
relied upon by the arbitrator for his conclusions.
[27]
[35]
A
useful summary of the
Sidumo
test for reasonableness was set out by Anton Myburgh in a 2011
Industrial
Law Journal
article:
[28]
• “
the
Sidumo test is a result based test, which tests the reasonableness of
the result/outcome of the award;
•
in
order to assail an award on the basis of the Sidumo test, the
applicant must thus assail not only the commissioner’s reasons,

but also the result of the award;
•
the
reasonableness of the result of the award stands to be determined on
all the material that was before the commissioner (with
the result
that the award can be sustained for reasons not considered by the
commissioner);
•
the
focus is on whether the result of the award falls within a range of
reasonable outcomes, as opposed to whether it was correct
(this so as
to maintain the distinction between a review and an appeal); and
•
seen
in the context of the above, the fact that a commissioner …
commits an error in the process of his reasoning will not
result in
the Sidumo test being met, unless the result of the award is
incapable of justification on all the material before the

commissioner.”
[36]
In
the years following
Sidumo
,
in a series of judgments the Labour Court and the LAC applied a more
generous standard of review, under the nomenclature of “latent

irregularity” or “dialectical unreasonableness”.
This resulted in some commentators questioning whether the Sidumo

test was in decline.  The development of this more relaxed
standard of review was, however, extinguished by the SCA in
Herholdt
.
[29]
The SCA confirmed the reasonableness test posited by the majority in
Sidumo
,
emphasising that the distinction between review and appeal should be
preserved. The SCA highlighted the stringency of the Sidumo
test,
which was a deliberate choice of the lawmaker:
[30]
“
Those
responsible for drafting the LRA deliberately chose arbitration on a
relatively informal basis as the preferred option for
dealing with
most issues arising in the context of labour relations and under the
LRA. In particular this was to be the means for
resolving disputes
over dismissals, which constitute the bulk of the work of the CCMA.
They were also deliberate in rejecting the
possibility of appeals and
selecting the narrowest possible grounds of review as the basis for
challenging arbitration awards.
They did so, not because review is an
inexpensive or speedy way of reconsidering the award of an
arbitrator, but because it sets
an extremely high standard for
setting aside an award and, together with the cost and delays
inherent in reviews, it was thought
that this would act as a
deterrent to parties challenging arbitration awards and thereby
support the overall aim of a speedy and
inexpensive resolution o
f
such disputes.”
[37]
A proper consideration of the
Sidumo
test, the court held, revealed that arbitration awards would only be
set aside in the narrowest of circumstances:
“
The
Sidumo
test will, however, justify setting aside an award on review if the
decision is ‘entirely disconnected with the evidence’
or
is ‘unsupported by any evidence’ and involves speculation
by the commissioner.”
[38]
The
SCA concluded that:
[31]
“
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that before the

arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to particular facts, are not in and of

themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome unreasonable.”
[39]
This
point of a strict review test in arbitrations was also stressed by
the Constitutional Court in
CUSA
v Tao Ying Metal Industries
[32]
:
“
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes. … The absence of
appeal from
arbitral awards was intended to speed up the process of resolving
labour disputes and free it from the legalism that
accompanies other
formal judicial proceedings. By adopting this simple, quick, cheap
and informal approach to the adjudication
of labour disputes,
Parliament intended that, as far as possible, arbitral awards should
be final and should only be interfered
with in very limited
circumstances.
[40]
Subsequent
to
Herholdt
,
the LAC in
Gold
Fields
[33]
aligned itself with these principles, confirming that interference
with an award was warranted only where the decision was not
one that
another decision-maker could not reasonably have arrived at based on
the evidence before him or her.
APPLICATION
TO THE FACTS
[41]
The question before this court is whether
the arbitrator’s conclusion that Cloete’s dismissal was
substantively unfair
is one at which no reasonable decision maker
could arrive. More specifically, in order to succeed the Department
must persuade
the court that no reasonable decision maker could have
accepted Cloete’s evidence over that of Dimphana.
No
corroboration of Dimphana’s version
[42]
Ms
Seria
argued that Kalamdien’s evidence served as corroboration of
Dimphana’s version. This is not entirely correct. Kalamdien’s

evidence was limited to reporting what she alleged Dimphana had told
her on the morning of 5 June 2013. At best, Kalamdien’s

evidence amounts to hearsay. Properly construed, Kalamdien’s
report of what Dimphana allegedly relayed to her amounts to
an
impermissible attempt at so-called “self-corroboration”
of Dimphana’s evidence. The only relevant “corroboration”

is that Kalamdien confirmed that Dimphana appeared “rattled”
and emotional when she saw her after 06:00 on 5 June.
[43]
As
Mr
Leslie
pointed out in his argument, corroboration is confirmatory evidential
material independent of the evidence to be corroborated.
Inadmissible
hearsay evidence cannot be used to corroborate a version. Where it is
required, corroboration must be external. Self-corroboration
(such as
reliance on a statement previously made by the primary witness) is
inadmissible.
[34]
In any
event, Kalamdien’s version of what Dimphana reported to her
contradicted Dimphana’s evidence in a number
of material
respects.
[44]
If Dimphana’s version was to be
accepted, it is inexplicable why the Department did not adduce any
objective, external corroboratory
evidence. This could easily have
been done, but was not. For example, in her evidence Kalamdien
confirmed the following:
44.1
Regarding Dimphana’s allegation that
Cloete had injected her with an “insulin-type” injection,
Kalamdien confirmed
that she had not checked whether any insulin
syringes were missing.
44.2
Regarding Dimphana’s allegation that
Cloete had administered a sachet of Johnson & Johnson KY-jelly to
her, Kalamdien
confirmed that she did not check stock of this item.
44.3
Regarding Dimphana’s allegation that
Cloete had administered the injection(s) in an inappropriate manner
or position, Kalamdien
confirmed that she did not check where the
injection had been administered on the patient’s abdomen.
44.4
As regards Dimphana’s allegation that
Cloete had used gloves when administering the KY-jelly in between her
legs and then
discarded these gloves before leaving her bedside,
Kalamdien confirmed that she had not checked whether there was a pair
of gloves
in the bin.
44.5
Kalamdien initially (and dishonestly)
refused to concede that, in fact, she had not checked anything
complained about by Dimphana.
Ultimately however, she was
constrained to admit that she had not checked anything complained
about by Dimphana “because
it was handover that time”.
This reflected poorly on her credibility.
[45]
Ms
Seria
countered that nurse Kalamdien was not
instructed to investigate the event. But the fact is that she was the
one person who could
easily have checked the veracity of the
complainant’s version at the time. Dimphana was obviously in a
fragile state. She
had recently undergone a major medical procedure,
for which she was receiving ongoing treatment and medication,
including one or
more scheduled drugs.  It fell well within the
Department’s powers to present physical corroborative evidence
of Dimphana’s
version, and nurse Kalamdien could easily and
immediately have done so. She did not.
The
probabilities of Dimphana’s version
[46]
The arbitrator found Dimphana’s
version to be improbable. He found:
“
All
in all the evidence on the version of Dimphana does not persuade me
that Cloete had conducted himself in the manner testified
by her.”
[47]
That does not appear to me to be a
conclusion that no reasonable arbitrator could reach.
[48]
Mr
Leslie
pointed to the following examples:
48.1
Dimphana had been hospitalised since 30 May
2013. By 4 June, she was aware of the hospital routine and, in
particular, the fact
that she only received one injection each
morning.  Her version was that, on the evening of 4 June, Cloete
administered two
injections to her – one at about 20:00 and one
at some unclear time “in the middle of the night”.
Neither
of these alleged injections was recorded on the prescription
chart. Although receiving two additional injections was in stark
contrast
to her established routine, on her version, Dimphana did not
regard this as strange, and did not query the injections with Cloete

(or any other member of staff at the time).  This is
inexplicable and improbable, as the arbitrator reasonably concluded.

As he asked, if Cloete had indeed administered two superfluous
injecitons, “what were they and for what reason were they

administered?”
48.2
The allegation that Cloete administered
three injections to Dimphana between 20:00 on 4 June and 06:30 on 5
June 2013 was problematic
for the Department. The only prescribed
injection for Dimphana was a daily 40mg dose of Clexane. Dimphana
could not have received
three doses of Clexane during this period.
Had she done so, there would have been serious side-effects,
including internal bleeding.
There is no plausible explanation
as to why Cloete would want to administer un-prescribed (and
undocumented) medication to Dimphana,
which could have had serious
ramifications for Dimphana’s health. (Cloete had no prior
disciplinary record or any problems
with hospital management. His
uncontested evidence was that he was passionate about his
occupation).
48.3
This alleged conduct is also inconsistent
with Cloete’s conduct on the morning of 5 June. It is common
cause that, when Cloete
administered the Clexane injection on 5 June
2013, he recorded that he had done so on Dimphana’s
prescription sheet. As the
arbitrator reasonably asked, why would he
have done so on that occasion only?
48.4
Dimphana testified that she felt “a
bit uncomfortable” with the manner in which Cloete allegedly
administered the injections.
She found it “a bit strange”
that Cloete shifted her underwear when he injected her.  Yet the
following morning,
on Dimphana’s version, when Cloete injected
her (for the third time) she had no compunction in (unnecessarily)
exposing herself
naked from the waist down to Cloete. Dimphana’s
version was that, although she was not wearing underwear at the time,
and
although she knew that the injection would be inserted around her
navel, she failed to simply cover her pubic area with her hospital

blanket.  It is highly improbable that a female patient would,
under ordinary circumstances, simply not cover herself with
the
hospital bedding, exposing only the injection area to the male nurse.
However, if Dimphana’s version is to be believed,
that she
already felt discomfort around Cloete, then her alleged conduct in
exposing herself to him is, as the arbitrator found,
“farfetched”.
Ms
Seria
argued that Dimphana had “unwittingly” exposed herself;
but on Dimphana’s own version she did so voluntarily,
without
Cloete even asking her to expose her genital area. The arbitrator
found Cloete’s version – that Dimphana had
not exposed
herself to this extent – more plausible. That is not so
unreasonable that no other arbitrator could have come
to the same
conclusion.
Contradictions,
inconsistencies and omissions
[49]
Kalamdien testified as to what Dimphana had
allegedly reported to her on the morning of 5 June 2013. Kalamdien
subsequently drafted
a written statement of what had been reported to
her, which, it appears, formed the basis of the charges against
Cloete.
As Mr
Leslie
pointed out, there are a number of material inconsistencies and
contradictions between the respective versions of Dimphana and

Kalamdien. For example:
49.1
In her written
statement, Kalamdien recorded that Dimphana had “stated that
during the night and that same morning she was
given
two
injections by Mr E Cloete” (emphasis added).  The charge
sheet itself (charge 1) refers to “two unauthorised injections”

during the period of 4 to 5 June 2013.
49.2
In the arbitration, for the first time,
Dimphana alleged that Cloete had administered
three
injections to her: the first at 20:00 on 4 June, the second in the
middle of the night, and the third at around 06:30 on 5 June.
The
contradiction is significant. It is improbable that Dimphana would
simply have forgotten to mention the injection in the middle
of the
night to Kalamdien, had it in fact happened. Her failure to mention
it is inexplicable if she is to be believed. This contradiction
or
omission undermined Dimphana’s credibility as a witness. And in
her evidence Kalamdien was emphatic that Dimphana had
only complained
about one injection by Cloete, even though this contradicted her
written statement.
49.3
Kalamdien’s written statement records
that Dimphana had felt “very uncomfortable” with the
manner in which Cloete
administered “the injection”
(which one is not clear), as he allegedly placed his hand “on
her private area”.
In her evidence, however, Dimphana
stated that “I wasn’t that uncomfortable with it”
– she simply
found his style of injecting her “a bit
strange”. Her overall impression was that “he is just
doing his job”.
These versions cannot be reconciled.
49.4
According to Kalamdien’s statement,
Dimphana reported that once Cloete had given her cream to apply
between her legs, “Mr
E Cloete then left the room returning
with gloves and then applied the cream himself using his gloved
hands”.  At arbitration,
Kalamdien testified that Dimphana
had reported this to her.  In contrast, in her evidence at
arbitration, Dimphana was emphatic
that Cloete had been present
throughout, and that he had not left the room.  She testified
that:
“
Because
you must remember when he did that I was busy trying to follow his
instructions about applying the cream, so this area was
open. And
it’s not like he paused and did something else and then came
back, this happened instantly and in a matter of seconds
or minutes.”
49.5
The most serious aspect of Dimphana’s
complaint (at arbitration) was her allegation that Cloete had applied
the gel or cream
with his gloved hand on her vagina.  However,
according to Kalamdien, Dimphana failed to mention to her that she
did not have
underwear on at the time and, astoundingly, failed to
mention “anything about Mr Cloete coming and inserting his
finger in
her private parts”.  If her version is to be
believed, Dimphana’s failure to mention these crucial facts is
inexplicable.
[50]
In light of the above, it was not
unreasonable for the arbitrator to find, on a balance of
probabilities, that the evidence presented
by the Department and the
complainant was so flawed that it was not capable of sustaining a
conclusion that Cloete’s dismissal
had been fair (bearing in
mind that the Department bore the onus in this regard). More
pertinently, the arbitrator’s conclusion
to this effect is not
one which no reasonable decision maker could have reached.
Cloete’s
evidence
[51]
The arbitrator preferred Cloete’s
evidence over that of Dimphana. Having had regard to the record at
arbitration, that does
not appear to me to be unreasonable.
[52]
Cloete testified as follows:
52.1
He consistently denied that he had
administered any injections to Dimphana during the night of 4 June.
His first interaction
with Dimphana was at 20:00 on 4 June 2013, when
he issued her with (“handed out”) her medication. He
attended to her
again at about 06:20 on 5 June 2013. He read her
prescription chart and saw that a daily 40 mg dose of Clexane had
been prescribed.
Cloete misread the prescription chart. He
erroneously thought that the injection should be administered at
06:25, and not 10:00.
This mistake is understandable, having
regard to the prescription chart itself.  The initial dose of
Clexane was administered
by the attending doctor at 06:25 on 31 May
2015.  Both times (06:25 and 10:00) appear on the prescription
chart. Cloete administered
the Clexane injection at around 06:20.
It is common cause that Cloete recorded (by his signature) that he
had administered
Dimphana’s daily dose of Clexane.
52.2
Cloete informed Dimphana that he was going
to administer an injection, and that she should prepare herself for
this. Dimphana prepared
herself by exposing part of her stomach to
him.  The rest of her body was not exposed, according to Cloete,
but was covered
with the blanket.  Cloete did not know that
Dimphana was allegedly not wearing underwear.
52.3
Cloete administered the injection on the
left side of Dimphana’s navel, two fingers away from the
umbilicus or navel.
His hand supported the left-hand side of
Dimphana’s skin – he did not touch her pubic area.
52.4
After administering the injection, Dimphana
asked Cloete if he could give her something for dry skin. Cloete
fetched a small bottle
of aqueous cream from the cupboard, opened it
and offered it to Dimphana. Dimphana took some of the cream in her
hand. Cloete left
the room to return the bottle to the cupboard.
52.5
Cloete did not
wear gloves at any relevant time. There was no need to wear gloves.
Cloete testified that he found it difficult to
administer injections
wearing gloves.
52.6
Cloete
subsequently realised that he had made a mistake regarding the time
of the Clexane injection.  He reported this to Kalamdien.
At the
same time, she asked him about the aqueous cream. Cloete informed
Kalamdien that he had given Dimphana the cream as she
complained of
dry skin.
[53]
The arbitrator’s preferring Cloete’s
version is not unreasonable. His version is not improbable or not
credible.
Not
putting Cloete’s version to Dimphana
[54]
It is common cause that various aspects of
his evidence had not been put to Dimphana. Ms
Seria
argued that this in itself constituted
a reviewable irregularity.
[55]
I disagree. It appears to me that, in an
arbitration – as opposed to court proceedings – the
failure to put a version
to the other side, especially by a lay
person, is but one factor to be taken into account when considering
whether the arbitrator’s
finding is sustainable on the
evidence.
[56]
In this case, Cloete was represented by a
lay person. In terms of s 138 (1) of the LRA, the arbitrator must
deal with the substantial
merits of the dispute with a minimum of
legal formalities. He did so.   And, as Mr
Leslie
pointed out, some of the Department’s criticism strikes one as
somewhat opportunistic after the fact. For example, the Department’s

representative queried why it had not been put to Dimphana that
Cloete had denied administering the alleged injections on the evening

of 4 June 2013.  But Cloete had denied this allegation
throughout. The Department’s representative had in fact put
Cloete’s version (which appeared in his written statement) on
this point to Dimphana himself.
[57]
I also do not agree that, post
Herholdt
and
Goldfields
,
it can be said that the failure to put a version to a witness is
invariably a reviewable irregularity in itself. The question
remains
whether the outcome is sustainable on all the evidence before the
arbitrator. And in this case, having regard to all the
evidence, the
credibility of the witnesses, their reliability, and the
probabilities, it seems to me that the conclusion reached
by the
arbitrator is not one that no reasonable arbitrator could have
reached.
The
Department’s sexual harassment policy
[58]
Ms
Seria
also
argued that the award is reviewable because the arbitrator did not
take the sexual harassment policy of the provincial government
–
applicable to the Department – into account.
[35]
That policy requires a decision-maker to consider the following
factors when determining whether sexual conduct constitutes sexual

harassment:
58.1
whether the sexual conduct was unwelcome;
58.2
the nature and extent of the sexual
conduct; and
58.3
the impact of the sexual conduct on the
complainant.
[59]
This argument begs the question. The
arbitrator found, on a balance of probabilities, that no sexual
conduct took place. The basic
premise for any further application of
the policy fell away. He could not consider whether the conduct was
unwelcome; its nature
and extent; and its impact on the complainant,
having already found that no such conduct took place.
Conclusion
[60]
Although the facts of this case raise the
inevitable question why the alleged victim would have invented the
bizarre facts upon
which she relied in evidence, the arbitrator
considered the evidence of all the witness before him; he made
findings on their credibility
and on the probabilities; and he
arrived at a finding that is not so unreasonable that no other
arbitrator could have come to the
same conclusion on the evidence
before him. On review – as opposed to appeal – the Court
will not lightly interfere
with an arbitrator’s findings on
fact, on credibility, and on the probabilities. The award is not open
to review.
[61]
Both parties asked that costs should follow
the result. In oral argument I questioned this, as there is an
ongoing relationship
between the trade union, DENOSA, and the
Department. The upshot of the arbitration award and of this judgment
is also that there
is an ongoing employment relationship between the
Department and the employee, Cloete. Yet both parties’ legal
representatives
insisted that those were their instructions. I
accept, therefore, that costs should follow the result.
Order
The
application for review is dismissed with costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPLICANT:
Ms S Seria
Instructed by the
State Attorney.
RESPONDENTS:
Mr G A Leslie
Instructed by
Chennels Albertyn.
[1]
The second respondent (PHSSBC).
[2]
The first respondent, represented by his trade union, DENOSA. He is
a nurse. There was no evidence whether he is also a singer
or a
pianist.
[3]
For this somewhat tedious exercise, I am indebted to both counsel
for their comprehensive heads of argument. I have borrowed
from
their summary of the case law as it has evolved.
[4]
Act
66 of 1995 (“the LRA”).
[5]
LRA s 1(d)(iv).
[6]
LRA s 138(1).
[7]
Act 42 of 1965.
[8]
Sidumo
v Rustenburg Platinum Mines Ltd
2008
(2) SA 24 (CC).
[9]
Para [88].
[10]
i.e.
the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
[11]
Para [104].
[12]
Constitution
of the Republic of South Africa Act 108 of 1996.
[13]
Sidumo
para [106]; Constitution s 33(1).
[14]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) paras 42-48;
Sidumo
paras 107 and 110.
[15]
Sidumo
para
[109], citing Hoexter
Administrative
Law in South Africa
(Juta, Cape Town 2007) pp 106 and 316-318. See Hoexter (2ed, Juta
2012) at 352.
[16]
Carephone
(Pty) Ltd v Marcus NO
1999
(3) SA 304 (LAC).
[17]
Hoexter 2ed at 352.
[18]
Bestel
v Astral Operations Ltd
[2011]
2 BLLR 129 (LAC) 133 A-B.
[19]
2009
(3) SA 187
(W) 201D-E.
[20]
Malan v
Law Society, Northern Provinces
[2008] ZASCA 90
;
2009
(1) SA 216
(SCA) 221 I-J;
R
v Dhlumayo
1948
(2) SA 677
(A) 705-6: “The trial judge has advantages –
which the appellate court cannot have – in seeing and hearing

the witnesses and in being steeped in the atmosphere of the trial.”
[21]
(2014) 35
ILJ
1656
(LC).
[22]
2003 (1) SA 11
(SCA) para 5. See also
Sasol
Mining (Pty) Ltd v Ngqeleni NO
(2011)
32
ILJ
723 (LC).
[23]
Unreported, Labour Court (JR 206/09), 25 April 2012 [per Redding
AJ].
[24]
(2013) 34
ILJ
945 (LC) para 37.
[25]
Solidarity
obo Van Zyl v KPMG Services (Pty) Ltd
(2014)
35
ILJ
1656
(LC) para [15];
Dumani
v Nair
2013 (2) SA 274
(SCA) paras [29] – [33].
[26]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
(2014) 35
ILJ
943
(LAC) para [17].
[27]
Fidelity
Cash Management Service v CCMA
[2008]
3 BLLR 197
(LAC) paras 102-3;
Edcon
Ltd v Pillemer NO
[2010]
1 BLLR 1
(SCA) para 23.
[28]
A Myburgh SC “Reviewing the review test: Recent judgments and
developments” (2011) 32
ILJ
1497.
[29]
Herholdt
v Nedbank Ltd
(2013)
34
ILJ
2795 (SCA).
[30]
Herholdt
paras 9 and 13.
[31]
Para 25.
[32]
2009
(10 BCLR 1
(CC); (2008) 29
ILJ
2461 (CC) paras 61-66 (per Ngcobo J).
[33]
Gold
Fields Mining SA Ltd (Kloof Gold Mine v CCMA
(2014)
35
ILJ
943
(LAC) para 16.
[34]
C Schmidt
Law
of Evidence
(LexisNexis
2003) 4-3 to 4-6 and authorities cited there.
[35]
With reference to
SA
Metal Group (Pty) Ltd v CCMA
(2014) 35
ILJ
2848 (LC).