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[2017] ZALCJHB 293
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Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR375/14) [2017] ZALCJHB 293 (11 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR375/14
In
the matter between:
DEPARTMENT OF HOME AFFAIRS
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL
First Respondent
COMMISSIONER Z.S SIBEKO N.O
Second Respondent
PSA obo T NXUMALO
Third Respondent
Heard:
19 May 2016
Delivered:
11 August 2017
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The
applicant (Department of Home Affairs) seeks an order reviewing and
setting aside the arbitration award dated 24 October 2013,
which was issued by the second respondent (the Commissioner) under
case number GPSSBC 4536/2012. In the award, the Commissioner
found
that the dismissal of the third respondent and former employee,
(Nxumalo) was unfair, and had ordered her reinstatement.
The review
application is opposed.
Background to the dispute:
[2]
Nxumalo
was employed by the applicant as Control Immigration Officer, and was
based at the Lebombo Border Post. She was dismissed
following upon a
disciplinary enquiry into two allegations of misconduct which were
framed as follows;
i.
It
is alleged that you committed an act of misconduct in that on or
about 19 February 2011 at or near the Port of Entry:
Lebombo, you unlawfully accepted unprescribed amount of R50.00 in
return to endorse the departure stamp in passport number AC025751
of
Mr Tomas Salvador Tivane which was used by the Undercover Police
Agent.
ii.
It
is alleged that you committed an act of misconduct in that you on
about 19 February 2011 at or near the Port of Entry:
Lebombo, wilfully and intentionally failed to capture the movement of
passport number A.D. 025751 of Mr Salvador Tomas Tivane which
was
used by the Undercover Police Agent on their Movement Control System.
[3]
Nxumalo’s
daily duties involved working at the borders/port of entry,
processing the movement of travellers in and out the
Republic, and
above all, ensuring that required travel documents presented by
travellers were in order. Following the allegations
against her, a
disciplinary enquiry was held which had resulted in her dismissal.
Nxumalo had then referred the dispute to the
first respondent
(GPSSBC) resulting in the award which is the subject of this review
application.
Arbitration proceedings:
[4]
At
the arbitration proceedings, the applicant had called four witnesses
to testify on its behalf. Only Nxumalo testified in her
case. The
evidence of Mr A Stassen on behalf of the applicant was as follows;
4.1
He
is employed as an assistant director and the Lebombo Border Post and
was at the time assisting as the Office Manager. His evidence
pertained to an explanation of the process to be followed at the
border post, which was that a person/traveller would approach
the
Immigration official to present his or her passport. The Immigration
officer must then check the passport to verify that it
was valid, and
whether it belonged to the person presenting it. If everything was in
order, the official would then capture the
movement of the individual
on the system (CPM) and then endorse the passport with a stamp,
indicating whether it was an arrival
or departure, and further adding
the date of that movement.
4.2
Each
stamp has a control number at the bottom and the number is unique to
each immigration official on duty. The stamps are
further of
two kinds,
viz
,
a round one which is used to endorse the passport when a traveller
enters the country, and a square one used when a traveller
departs.
In terms of the applicant’s rules, no official is allowed to
use the stamp of another official and to do so would
constitute
misconduct. Furthermore, it was important for officials to follow
procedures when travellers arrived or exited the country
for security
reasons.
4.3
Stassen
had referred the Commissioner to documentation relating to the owner
or holder of passport number AC025751 who had entered
South Africa on
10 January 2011 and did not leave although he was permitted to be in
the country for 30 days. That person in the
circumstances would have
been made to pay a fine in respect of the number of days overstayed.
In this case however, the fine was
not paid even though the passport
was processed.
[5]
The
second witness called was Eric Nenduane, who worked at the
applicant’s Counter Corruption and Investigation Unit. He was
part of ‘Operation Mahlambandlovu’, which was set up by
the Crime Intelligence Unit (The Hawks) to conduct investigations
into corruption within the applicant’s operations at border
posts. According to Nenduane;
5.1
Nxumalo
was arrested for taking a bribe and failing to follow correct
procedures at the point of entry when assisting a traveller.
This was
also after she had processed a passport presented to her by a person,
which passport did not belong to that person. The
passport in
question was used by a police agent as part of the operations.
Nxumalo however did not capture the movements of this
individual on
the system.
5.2
One
of the undercover agents, Mahuntsi had used the passport that was in
the name of a Mozambican national, Salvadore Tivane. The
passport was
given to Mahuntsi by Warrant Officer Vermaak, the coordinator of the
project. Tivane’s permit to be in South
Africa had expired, and
the departure stamp on the passport in question was backdated to
1 February 2011. Nenduane further
testified in regard to
video evidence in which Nxumalo was seen taking money from Mahuntsi
before being allowed passage. He could
not testify on how much she
took.
5.3
In
the video, Nxumalo could also be seen affixing her stamp on the
passport in question in which money was placed inside. She was
also
observed taking the money and affixing her stamp without scanning it
on the machine as required. Copies of the cash notes
were also
presented at the arbitration proceedings.
[6]
A
third witness called by the applicant, Francois Vermaak. He is
employed by the South African Police Service (SAPS) and was in
control of Operation Mahlambandlovu. As part of that operation,
Mahuntsi, the agent was on 19 February 2011 given an
amount
of R350.00 and the passport of a Mozambican national which had been
removed from circulation by the Department. The passport
was given to
the investigators for purposes of their investigation. Mahuntsi, the
undercover agent, went to the border post, came
back with a stamped
passport and handed it back to him together with R100.00, and
reported
inter
alia
that he had paid R50.00 to Nxumalo.
[7]
Mahuntsi,
the undercover agent had also testified. He is employed by the SAPS
and was part of the operation. He confirmed Vermaak’s
testimony
to the effect that he was fitted with an electronic device, given
R350.00 and a passport that did not belong to him.
His instructions
were to go to the border post and see if he could bribe his way
through. He had proceeded to the pedestrian gate,
took R200.00 and
placed it in the passport and was let through after the police
officer concerned had taken the money. He then
proceeded to the help
desk in the immigration area and put a further R50.00 in his passport
which he had presented to Nxumalo.
Nxumalo took the R50.00 and
assisted him by affixing her stamp in the passport.
[8]
Nxumalo’s
defence to the allegations was essentially that;
She was indeed on duty on
19 February 2011. Her duties entailed stamping passports in
respect of travellers coming in
and out of the country. On the day in
question however, she did not encounter Mahuntsi or take any money
from him. She had denied
having affixed her stamp in the passport in
question.
The award:
[9]
The
Commissioner’s analysis and findings as contained in five
paragraphs of the award rested on two questions. The first question
was whether the applicant in this case had proven that Nxumalo had
accepted the R50.00 from Mahuntsi. The Commissioner reasoned
that the
electronic device fitted on Mahuntsi had not captured the incident in
question, and in the absence of such evidence, it
could not be said
that the applicant had proven that Nxumalo had accepted the R50.00.
[10]
The
second question according to the Commissioner was whether the
respondent had demonstrated that Nxumalo had indeed affixed her
stamp
on the passport in question. The Commissioner concluded that the
number on the stamp in question was not visible, and based
on
Stassen’s ‘concession’ under cross-examination that
it could not be said that it was Nxumalo that had affixed
her stamp
due to the number not being visible, the applicant had not
demonstrated that it was Nxumalo who had stamped the passport.
The grounds of review:
[11]
The
applicant’s contention was that the Commissioner committed a
gross irregularity and misconducted himself by her failure
to
construe the seriousness of the offence for which Nxumalo was
dismissed. It was further contended that the Commissioner failed
and
or committed a gross misconduct and exceeded her powers in ordering
the reinstatement of Nxumalo in circumstances where she
had been
involved in committing serious acts of misconduct which compromised
the integrity of the country’s processes and
the safety of its
citizens.
[12]
The
applicant further takes issue with the findings of the Commissioner.
In respect of the first question posed and answered by
the
Commissioner, the applicant contended that Nxumalo’s bare
denials were preferred by the Commissioner without indicating
the
basis for rejecting the direct evidence of Mahuntsi who had
identified Nxumalo as the person who had assisted him and taken
the
R50.00.
[13]
The
applicant further submitted that the findings of the Commissioner
were unreasonable in the light of the evidence of Mahuntsi,
and the
video evidence that showed that the latter had approached the Nxumalo
and stopped at her desk. To this end, it was submitted
that the
reasonable inference to be drawn was that indeed Mahuntsi was served
by Nxumalo, and that there was no basis for the Commissioner
to
ignore or reject Mahuntsi’s evidence.
[14]
In
regards to the second question posed by the Commissioner, the
applicant further takes issue with the conclusions in that regard,
and contended that the Commissioner ignored the fact that Nxumalo was
indeed on duty on the day in question and had stamped passports
of
people entering and leaving the country; that she ignored that the
passport used by Mahuntsi was stamped on that day; and further
that
Mahuntsi had identified Nxumalo as the person who had assisted him
and taken the R50.00 which he had placed in the passport.
It was
further submitted that Nxumalo had conceded that Mahuntsi came to her
and stopped at her desk
albeit
she denied having stamped the passport. To this end, it was argued
that the Commissioner had no understanding of the concept of
the
balance of probabilities as she had preferred the bare denials of
Nxumalo as opposed to the strong evidence of the applicant’s
witnesses.
[15]
It
was further argued that the Commissioner ignored clear evidence that
the stamp used was not visible on the copy of the passport
in
question as it was smudged in order to avoid the user of that stamp
being identified. The inference to be drawn was that the
person who
had smudged the stamp was the same as the one who had assisted
Mahuntsi, and in that case, it was Nxumalo.
[16]
In
opposing the application, the following submissions were made on
behalf of Nxumalo;
a)
With
regard to the evidence before the Commissioner, the applicant had
failed to demonstrate that the finding of the Commissioner
was not
one that a reasonable Commissioner would have made;
b)
After
the video footage was viewed, there was an agreement between the
parties that there was no evidence that showed Nxumalo taking
money
or receiving money from Mahuntsi; that there was no evidence showing
that Mahuntsi had handed over the passport to Nxumalo,
or showing
Nxumalo stamping the passport.
c)
Mahuntsi
had also ‘confessed’ that the video footage did not show
Nxumalo receiving any money from him or him handing
over money to
her. It was submitted that these factors contradicted Nenduane’s
testimony in regards to what he had seen on
the video;
d)
The
mere fact that Mahuntsi was observed going to Nxumalo’s counter
could not on its own be enough to infer that he had handed
her the
passport, or that the passport contained the R50.00, or that Nxumalo
took the money and stamped the passport, and failed
to capture his
movement. Stassen had conceded that he was unable to tell who had
stamped the passport in question particularly
in the absence of a
stamp number;
e)
The
Commissioner’s decision was based purely on the evidence before
her. There was no evidence placed before the Commissioner
to prove
that Nxumalo in all probability committed the offence for which she
was found guilty, or that there were proven facts
established from
which the Commissioner should have drawn an inference that the
allegations had been proven;
Evaluation:
[17]
A
few basic principles need to be reiterated prior to determining
whether the Commissioner’s award is reviewable. Central
to
Nxumalo’s case is that the applicant in this case had not
discharged the burden of proving the allegations of misconduct
against her. In accordance with the provisions of section 192 (2)
[1]
of the Labour Relations Act, the onus is upon the employer to prove
that the dismissal was fair. That provision ought to be read
with
section 188 (1) (a) (ii) of the LRA
[2]
,
which provides that a dismissal that is not automatically unfair, is
unfair if the employer
fails
to prove that the reason for dismissal
was a fair reason related to the employee’s conduct or
capacity. In emphasis of this principle, the Labour Appeal Court in
De
Beers Consolidated Mines Ltd v CCMA and others
held
that:
‘
The
onus is thus on the employer to prove the facts upon which it relies
for the dismissal. If the facts upon which the employer
relies are
not proven at the end of the arbitration proceedings, then
cadit
quaestio
,
the employer has failed to prove the fairness of the dismissal. On
the other hand, if the employer does prove the facts upon which
it
relies, then the arbitrator must make a determination as to
whether or not the dismissal is unfair and only if the arbitrator
is
so satisfied may he or she order reinstatement. The arbitrator is not
at large to substitute what he or she considers to be
a fair sanction
in the circumstances…’
[3]
.
[18]
It
is further trite that the standard of proof in alleged unfair
dismissal disputes remains that of a balance of probabilities.
As
stipulated in the
CCMA
Guidelines on Misconduct Arbitrations
[4]
,
a Commissioner is obliged, especially in the face of conflicting
versions, to have regard to the probabilities of the contending
versions, the reliability of witnesses, and their credibility. It is
thus required of a Commissioner to indicate the reasons, based
on the
assessment of these factors and the evidence, as to why the one
version was preferred over the other
[5]
.
[19]
The
above CCMA Guidelines derive from the well-stablished principle
enunciated in
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell & Kie SA
and Others
[6]
in
respect of instances where a Commissioner is confronted with
conflicting versions. The question that should be answered ultimately
is whether the probabilities favour the party that bears the onus of
proof. This exercise is part of the functions of the Commissioner
as
confirmed in
Edcon
Ltd v Pillemer NO & others
[7]
which
is to weigh all the relevant factors and circumstances of each case
in order to come up with a reasonable decision.
Thus,
reliance by the Commissioner on unsupported evidence, or speculation,
or evidence insufficiently reasonable to justify a conclusion
will
render the award reviewable, as much as is ignoring material
evidence, especially one that was not contradicted
[8]
.
[20]
To
the extent that it was argued on behalf of the applicant that the
award was reviewable on a variety of grounds, the applicable
review
test is whether the conclusion reached by the Commissioner in the
light of the evidentiary material placed before him or
her can be
said to have been so unreasonable that no other Commissioner could
have arrived at the same conclusion. On the whole,
the Commissioner’s
decision or conclusion must fall within a range of decisions that a
reasonable decision maker could make
[9]
.
[21]
It
was further argued on behalf of the applicant that the Commissioner
failed to evaluate the probabilities of the different versions
placed
before her, or failed to have regard to evidence placed before her,
or that she had completely ignored that evidence. The
failure by a
Commissioner to consider material facts will be reviewable upon an
analysis proposed in
Shoprite
Checkers v CCMA and others
[10]
in
line with
Head
of the Department of Education v Mofokeng
[11]
as
follows;
i.
the
first enquiry is whether the facts 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;
ii.
if
this is established, the (objectively wrong) result arrived at by the
commissioner is
prima
facie
unreasonable;
iii.
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
iv.
if
the answer to this enquiry is in the negative, then the award stands
to be set aside on review on the grounds of unreasonableness
(and
vice
versa
).
[12]
[22]
In
line with the above, where as in this case the applicant’s
contention was that the Commissioner had ignored certain material
facts placed before her, if the court finds that indeed that it is
so, the next enquiry is whether the facts ignored or even
misconstrued
were material. If they were material, it follows that
the Commissioner would have come to a different conclusion had she
taken
them into account. In these circumstances, the decision arrived
at by the Commissioner will be deemed to be unreasonable.
As
Myburgh AJ had concluded in
Shoprite
Checkers
,
where a commissioner misdirects him or herself by ignoring material
facts, the award will be reviewable if the distorting effect
of this
misdirection was to render the result of the award unreasonable
[13]
[23]
Prior
to determining whether the Commissioner’s conclusions regarding
the above evidence was one that a reasonable decision
maker could
make, a disconcerting factor in regards to the conduct of the
arbitration proceedings needs to be highlighted,
albeit
the parties did not raise it. Video material was relied upon by the
applicant in contending that Nxumalo was approached by Mahuntsi,
and
that it was she who had assisted him by stamping the invalid
passport, and also that she took the R50.00 that was placed inside
that passport. This video footage, to the extent that it was
admissible, was crucial in proving certain events.
[24]
As
appears from the record however, the Commissioner did not personally
view the footage, nor was it presented in the arbitration
proceedings
in its form. As can be gleaned from the transcribed record of
proceedings
[14]
, the parties’
representatives had on their own viewed the video footage and
reported to the Commissioner on events that they
agreed upon as
portrayed in the footage. This included that the footage did not show
Nxumalo taking the money from the passport,
or show the passport in
question. There was however a dispute surrounding whether Nxumalo
could be seen stamping the passport or
whether Mahuntsi could be seen
crossing the border. At some point, Mr Masilela for the applicant in
view of the dispute whether
Nxumalo could be seen to be stamping the
passport or not had suggested that the Commissioner should have a
look at the video
[15]
.
Inexplicably, the Commissioner’s response was that even if she
agreed, she wanted to ‘
curtail
some time and not watch it’
[16]
.
The Commissioner’s approach in this regard was that to the
extent that this issue remained in dispute,
that
was part of evidence
.
[25]
It
has been said that one of the factors to be considered in determining
whether a Commissioner had committed a reviewable irregularity
is
whether the Commissioner had afforded the parties an opportunity to
fully state their respective cases and allowed a fair trial
of the
issues
[17]
. Thus, where the
Commissioner fails to follow proper process he or she may produce an
unreasonable outcome
[18]
. In
this case, and bearing in mind that this issue is raised being
mero
muto
,
the Commissioner by failing to personally view the video footage on
the basis of saving time, failed to follow a proper process
in the
conduct of proceedings. Her contention that the issue in dispute as
elaborated above in regard to the video material related
to ‘part
of evidence’ was clearly misconceived.
[26]
The
first issue is that a Commissioner, where reliance is placed on video
material, is required to have a look at that material,
and in this
case, since the recording device was attached to Muhantsi, he was
based placed to take the Commissioner through the
footage.
[27]
A
second factor is that even if the parties had agreed on their own as
to what was contained in the footage, whatever it is that
they had
presented to the Commissioner by way of feedback cannot by all
accounts be considered as ‘part of the evidence’.
Parties’ representative in arbitration proceedings or in this
court for that matter cannot give evidence from the bar. They
can
only make submissions in regard to that evidence. The Commissioner
was obliged to acquire first-hand information from the video
itself
as presented as part of the evidence particularly in view of the
dispute surrounding it, and it was only in circumstances
where there
were no disputes as to what was contained in the footage that her
approach in this regard could have been excused.
The irregularity
being pointed out in this regard was gross, and had the effect of
depriving the parties of a fair trial of the
issues. This became even
more evident when regard is had to the Commissioner’s
conclusions in regards to that aspect of the
video footage.
[28]
To
recap, the Commissioner had concluded that in the absence of video
footage (which in any event she had omitted to view), it could
not be
said that the applicant had demonstrated that Nxumalo had accepted
the R50.00 from Mahuntsi. Second, to the extent that
the number of
the stamp on the passport in question was not visible, and further
based on Stassen’s concession that it could
not be said that it
was Nxumalo who had stamped the passport, the applicant had not
demonstrated that indeed it was Nxumalo who
had stamped the passport
in question.
[29]
Counsel
for the applicant in these proceedings had argued that a cursory look
at the award and the reasoning therein clearly demonstrates
that the
Commissioner took a simplistic approach to the issues and evidence
before her, and I agree with these sentiments. After
elaborate
evidence presented before her, the Commissioner relied on two basic
issues or pieces of evidence without making an effort
to justify her
conclusions. Having had regard to the approach of the Commissioner in
regards to the material before her, the absence
of video evidence
showing whether Nxumalo was offered and had accepted the R50.00, and
the lack of a visible stamp on the passport
could not have on their
own, be dispositive of the matter. My conclusions in this regard are
fortified by the following common
cause, or at the very least,
uncontroverted established evidence;
a)
Nxumalo
was on duty (immigration desk) on the date of the incident;
b)
Her
duties were to stamp the passport of travellers that came in and out
of the country;
c)
She
was inducted and trained on the Immigration Act
[19]
d)
Mahuntsi
as seen on the video footage had approached Nxumalo at the
immigration desk for assistance
[20]
,
and the cross-examination in this regard went as follows;
‘
MR
MASILELA (For the applicant): In the video Mr
Mahuntsi was seen travelling through, he stopped and he then
stopped
at your own desk and he passed through?
MS
NXUMALO:
Yes, he stopped in, at my own desk but he never give
me his passport,
I have never seen my (indistinct) or maybe having conversation with
him talking about the passport, I have never
took his passport. He
might be standing in front of me but I have never taken his passport.
MR
MASILELA:
When people come to you and look at you and leave
then you
(indistinct) them through?
MS.
NXUMALO:
Some of them maybe I look pretty, I don’t know’
e)
The
passport in question did not belong to Mahuntsi and had expired, as
the owner had had entered the country on 10 January 2011
and had not
departed on the expiry date on 9 February 2011. It was however
stamped with a departure stamp without numbers (which
were smudged)
and backdated.
f)
The
movements in regard to this passport were not captured on the system
(MCS) as required by the rules. On Vermaak’s version
however,
the passport in question was valid
[21]
.
[30]
In
the light of the above evidence, it is inexplicable that the
Commissioner could have arrived at her decision. It is reiterated
that the standard of proof in such cases is that of a balance of
probabilities. In this case, it is apparent that this basic legal
principle escaped the Commissioner’s mind, as she was more
concerned with direct evidence, when in the face of conflicting
versions, it was paramount to weigh the probabilities of each
version, even in the absence of other evidence.
[31]
Thus,
according to the Commissioner, in the absence of the video footage or
a visible stamp, Nxumalo was to be exonerated. This
sadly was not the
yardstick or a proper application of the standard of proof. The
Commissioner, failed to take into account the
principles stated
elsewhere in this judgment in regard to the approach to be followed
in resolving conflicting versions. Other
than relying on those two
factors, the Commissioner did not state the reasons she had preferred
the version of Nxumalo over that
of the applicant’s witnesses.
The fact that there was no video evidence or that the stamp on the
passport was not visible
was not in my view, the end of the matter,
especially in circumstances where it was common cause that Mahuntsi
had approached her
at her desk. Mahuntsi as can be gleaned from the
record of proceedings was resolute in her contention that he had
approached Nxumalo
with the passport and the money inside. Nxumalo
according to Mahuntsi had assisted her and taken the money.
[32]
As
opposed to Nxumalo’s evidence, the record of proceedings
indicates that during her examination in chief, she had initially
denied that Mahuntsi ever came to her desk, let alone hand in the
passport. It was only after the cross-examination as illustrated
elsewhere in this judgment that she had ultimately conceded that
indeed Mahuntsi came to her desk, even though she insisted that
she
did not assist him. Other than this factor, it was not disputed that
the passport was stamped. The only issue was whether it
was Nxumalo
who had stamped it or not.
[33]
In
the light of this equivocation by Nxumalo during cross-examination,
the Commissioner was compelled to make an assessment as to
the
reliability of her version, her credibility and the probabilities of
her version, as opposed to that of Mahuntsi, who had persisted
that
indeed Nxumalo had assisted him and stamped the passport in question.
The fact that the number on the stamp was not visible
was not the
only relevant issue to be considered, as other factors to have been
considered included the fact that the passport
in any event was
stamped and that the movements in regards to that passport were not
captured on the system. The Commissioner however
completely ignored
the factors.
[34]
Thus,
to the extent that it was common cause that Mahuntsi had approached
Nxumalo at her desk, the issue is what would have been
the purpose of
doing so other than to have his travelling documents processed like
all other travellers? An answer in this regard
cannot by all accounts
be that Mahuntsi might have approached her desk because ‘
she
is pretty’
as she alleged.
[35]
Part
of the applicant’s case was that the Commissioner committed a
gross irregularity in that she failed to construe the seriousness
of
the offence for which Nxumalo was dismissed. There can be no doubt
that Nxumalo in her position as Immigration officer was responsible
for ensuring that travellers came into and left the country only if
their travel documents were in order, and that the movements
of the
travellers were properly captured on the system. Nxumalo’s
position came with huge responsibilities, as Immigration
officers are
the first line of defence in the security of our borders.
[36]
To
the extent that Mahuntsi had consistently testified that Nxumalo was
approached with a passport that did not belong to him, in
which
R50.00 was placed and taken in exchange for the processing of that
passport and allowing him passage, that allegation is
equally serious
in the extreme. Various consequences flowed from that misconduct
including the fact that there was non-compliance
with the applicant’s
standard procedures when processing travellers’ movements as
required, and that the conduct in
question involved acceptance of a
bribe and corruption. More disconcerting however as attested to by
Stassen, and something that
should be obvious, was that the conduct
in question invariably compromised and placed the security of the
Republic and its citizens
at risk, as undesirable elements would have
been allowed free passage in and out of the country.
[37]
A
reading of the award clearly indicates that the Commissioner indeed
failed to deal with the seriousness of the allegations against
Nxumalo. Nowhere in the award was there an attempt to decipher the
allegations against Nxumalo and their consequences if proven.
It is
accepted that a Commissioner can only have regard to the seriousness
of the allegations once they have been proven. In this
case however,
as already indicated, had the Commissioner made any attempt at
properly evaluating the evidence as stated elsewhere
in this
judgment, she would have on a balance of probabilities, arrived at a
different conclusion in regard to these allegations.
[38]
Overall
therefore, the Commissioner failed to take into account the totality
of the evidence presented before her and chose to be
persuaded by
Nxumalo’s bare denials in circumstances which could not be
justified. At worst, the Commissioner chose to ignore
evidence that
was placed before her in arriving at her conclusion. The evidence
ignored was clearly material as a consideration
thereof would have
based on the probabilities and other considerations, caused the
Commissioner to come to a different result.
[39]
To
summarise then, the charges levelled against Nxumalo were serious in
the extreme and deserving of the ultimate penalty of a dismissal.
Nxumalo having grudgingly conceded that Mahuntsi had approached her
at the immigration desk, a factor which was also common cause
as
gleaned from the video footage, the probabilities are that indeed
Nxumalo processed the passport in question, affixed a smudged
stamp
on that passport, and failed to capture the movement in regard to
that passport on the applicant’s movement system.
Nxumalo’s
approach to the arbitration proceedings appears to have been to deny
the obvious and to only make concessions when
forced to. Given the
seriousness of the misconduct and Nxumalo’s lack of
appreciation of its consequences, the conclusion
reached by the
Commissioner in the light of the material placed before her cannot be
said to be one that a reasonable decision
maker could have arrived
at. Accordingly, the award ought to be set aside.
[40]
In
its Notice of Motion, the applicant sought an order that the award
ought to be reviewed, set aside and substituted with one that
Nxumalo’s dismissal was fair. In the light of the conclusions
reached in this judgment, it is my view that this would be
the most
appropriate order to make. I have further had regard to the
requirements of law and fairness, and hold the view that a
cost order
is not warranted in the circumstances.
Order:
[41]
Accordingly,
the following order is made;
1.
The
arbitration award dated 24 October 2013 issued under case number
GPSSBC 4536/2012 by the Second Respondent is reviewed, set
aside and
substituted with an order that;
‘
The
dismissal of Ms. Petunia Tintswalo Nxumalo was substantively fair’
2.
There
is no order as to costs.
__________________
E. Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. XD
Matyolo
Instructed
by:
Office of the State Attorney, Johannesburg
On
behalf of the Third Respondent:
Adv. D Mosoma
Instructed
by:
Matyeka Attorneys
[1]
Section 192:
Onus
in dismissal disputes
(1) In any proceedings concerning any
dismissal, the employee must establish the existence of the
dismissal.
(2) If the existence of the dismissal
is established, the employer must prove that the dismissal is fair.
[2]
Section 188:
Other
unfair dismissals
(1) A dismissal that is not
automatically unfair, is unfair if the employer fails to prove -
(a) that the reason for dismissal is
a fair reason -
(i) related to the employee’s
conduct or capacity; or
(ii) based on the employer‘s
operational requirements; and
(b) that the dismissal was effected
in accordance with a fair procedure.
(2) Any person considering whether or
not the reason for dismissal is a fair reason or whether or not the
dismissal was effected
in accordance with a fair procedure must take
into account any relevant code of good practice issued in terms of
this Act
[3]
(2000) 21 ILJ
1051 (LAC)
per Willis JA at para 50
[4]
See Government
Gazette 34573 dated 2 September 2011, Notice 602 of 2011
[5]
See
Sasol
Mining (Pty) Ltd v Ngqeleni NO & Others (2011) 32 ILJ (LC)
at para [9] where
Van Niekerk J held that;
“
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 the
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 witness 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 and improbability of
each party’s
version. The commissioner manifestly failed to resolve the factual
dispute before him on this basis.”
[6]
2003 (1) SA 11
(SCA)
para 14I–15E, where it was held that;
'To come to a conclusion on the
disputed issues a court makes findings on (a) the credibility of the
various factual witnesses;
(b) their reliability; and (c) the
probabilities. As to (a), the court's finding on the credibility of
a particular witness will
depend on its impression about the
veracity of the witness. That in turn will depend on a variety of
subsidiary factors, not
necessarily in order of importance, such as
(i) the witness' candour and demeanour in the witness-box, (ii) his
bias, latent
and blatant, (iii) internal contradictions in his
evidence, (iv) external contradictions with what was pleaded or put
on his
behalf, or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability of
particular
aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other witnesses testifying about
the same incident or events. As to (b), a witness' reliability will
depend, apart from the factors mentioned under (a) (ii), (iv)
and
(v) above, on (i) the opportunities he had to experience or observe
the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to (c), this necessitates an
analysis and evaluation of the probabilities and improbabilities
of
each party's version on each of the disputed issues. In the light of
its assessment of (a), (b) and (c) the court will then,
as a final
step, determine whether the party burdened with the onus of proof
has succeeded in discharging it. The hard case,
which will doubtless
be the rare one, occurs when the court's credibility findings compel
it in one direction and evaluation
of the general probabilities in
another. The more convincing the former, the less convincing will be
latter. But when all factors
are equipoised probabilities prevail.’
[7]
(2008) 29 ILJ
614 (LAC)
para 21.
[8]
See
Bestel
v Astral Operations Ltd and Others
[2011] 2 BLLR 129
(LAC)
at
paras 13 - 15
[9]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28 ILJ
2405 (CC)
at
para 110.
[10]
(2015) 36 ILJ
2908 (LC).
[11]
[2015] 1 BLLR
50
(LAC)
[12]
At para 9
[13]
At para 10
[14]
Pages 64
[15]
At line 8 at page
68 of the Transcribed Record
[16]
At line 13-14 of
the Transcribed Record
[17]
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 20
[18]
Goldfields
at para 21
[19]
Line 9 of the
Transcribed record at page 118
[20]
Line 15 - 25 at
page 128 of the Transcribed Record
[21]
Line 25 at page 78
of the Transcribed Record