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[2017] ZALCJHB 449
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Harmony Gold Mining Company Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR858/15) [2017] ZALCJHB 449; (2018) 39 ILJ 1059 (LC) (5 December 2017)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JR 858/15
In
the matter between:
HARMONY
GOLD MINING COMPANY LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
& ARBITRATION
Respondent
SETHETSO
RALETOOANE (
NO
)
Respondent
MLAMBO GEORGE VALASHIYA
Respondent
Heard
:
22 November 2017
Delivered
:
05 December 2017
Summary:
(Review – misdirection in resorting to credibility findings
without assessing probabilities –
failure to consider
evidentiary weight to be attached to a version not put to employer’s
witnesses - arbitrator ignoring
relevant evidence materially
affecting finding – substitution of finding)
JUDGMENT
LAGRANGE
J
Background
[1]
The applicant (‘Harmony’) has applied to review an
arbitration award in which the arbitrator determined that the
third
respondent’s dismissal was procedurally fair but substantively
unfair.
[2]
The third respondent, Mr G Valashiya (‘Valashiya’), had
been dismissed for attempted theft of possible gold bearing
material
(GBM) in the form of a black plastic bag weighing 1.4 kg containing
sandy material and two cans of spray paint.
[3]
During the arbitration proceedings evidence was led by two security
officers to the effect that the third respondent had tried
to dispose
of the items which he had been carrying in a white plastic bag
containing his clothing and personal belongings. In summary,
their
account of the incident which occurred at approximately 03H45 on 31
July 2014 was encapsulated in the evidence in chief of
the first of
the two security officers who testified, Mr P Cossa (‘Cossa’),
who had many years of service in his job:
“
We were doing a random search
next to the exit point of block A. So at a certain time before that,
3:45 was a white guy who came
out first. So we searched him after
that we have searched him, we let him go to. So I can’t
remember that was after how many
minutes but after a few minutes, Mr
George Valashiya so he came out from his side of the hostel, he
wanted to clock out there on
the turnstile. So when he observed that
we were standing outside so he started to be look suspicious,
lighting his cigarette
and starting to move backwards and I told …
[inaudible] that hey that man looks like he’s going to run away
then we
clock, we use a card to clock inside, going inside of the
hostel. So when he disappeared he was not running but, when we got
inside
of the hospital we saw that he was running then we also chased
him up until we apprehended, actually before we apprehended him I
saw
him in possession of a white plastic bag trying to sort out something
while he is running. So I was a little bit faster than
him so when I
was about to arrest him he took out a plastic bag place then he
placed that plastic bag on top of the concrete slabs
and then at the
same time he took two tins and he throw them over the wall so the
time he threw the out those turns, I just saw
the two tins and I did
not know what was inside on the tins then we searched that plastic
bag and found that there was a possible
gold … [inaudible]
material then we told Mr Valashiya that he was under arrest for what
we found in his possession. Then
we took him I mean we took some
photos then we took him in the van and went round using the same way
we entered and next to the
place where we arrested him …[inaudible]
so under the tree we saw some tins but they were scattered, it was
not in the same
place and we took photos before we could collect them
and we showed the suspect everything that we were doing there, doing
in front
of the suspect then after that took the suspect together
with the suspected GBM that was found in his possession. We went
straight
to the place where we weighed the GBM in his presence and we
asked him to look at the reading of the scale and he also looked at
that readings. Then we went together with him at the office where
upon arrival we sealed the possible GBM in his presence and we
also
showed him the number of that seal which we have used then we start
with the docket and statement and everything and then
we took him to
the police.”
At
this juncture, it should be mentioned in passing that Cossa gave this
evidence without any apparent reference to a written statement
he had
made about the incident. His colleague, Mr D Wewege (‘Wewege’)
did make reference to his own statement when
giving his evidence in
chief. There was also evidence adduced of the photographs referred
to.
[4]
Valashiya’s version was that he agreed that another white
person was searched before he got to the gate, but when he got
there
he was told by Cossa that Cossa had received a call from underground
alleging that he had taken something. He denied this
and Cossa then
searched him and found nothing but then walked away while Valashiya
waited at the exit. He came back with two cans
of spray paint, which
Valashiya denied knowing about because he ‘did not work outside
the mine’. They then approached
the tollgate and Valashiya
explained to Wewege that Cossa had a grudge against him because Cossa
never paid him for some meat which
he had asked Valashiya to cut for
him and Valashiya had kept a portion of Cossa’s meat because
Cossa would not pay him. According
to Valashiya, the meat had been
illicitly obtained from a van which had overturned in an accident.
When Cossa returned from walking
towards the mine they took him back
to the mine and searched his locker and found nothing. He asked them
what they wanted and they
took him to the place where boots were
washed. However, before they got there they came across a plastic bag
placed on some stones
which seemed to contain some soil. Cossa said
“Here is the gold” and Valashiya laughed at him.
[5]
In essence, his explanation is that he was deliberately framed by the
two security officers, though he never offered an explanation
why
Wewege would have been complicit in such a conspiracy against him. He
further denied having access to the spray paints at the
workplace and
maintained that the contents of the black plastic or bag which
contained sandy material was not gold bearing material,
which would
have been wet and would have contained smaller stones and rocks if it
had come from underground. When his representative
questioned the two
security officers, not even the semblance of his version was put to
them. They were cross-examined solely on
their own versions and
Valashiya’s representative did not take the opportunity to test
his very different version with either
of them.
[6]
The arbitrator found that Harmony failed to prove on a balance of
probabilities that Valashiya took or attempted to take the
spray
paints and the suspected GBM found in the black plastic bag. The
arbitrator came to this conclusion based primarily on the
following:
6.1
Cossa gave inconsistent evidence because on the one hand he said the
plastic bag had been ‘placed’
on a concrete slab and on
the other he said that the third respondent had ‘dropped’
the plastic bag. He also said on
the one hand that the third
respondent threw something over the wall and on the other said that
he threw two spray paints over
the wall. In the arbitrator’s
reckoning, this demonstrated confusion on the part of Cossa.
6.2
Further, Cossa signed the minute of the disciplinary enquiry where it
was recorded that he had
seen the black plastic bag and the spray
cans in Valashiya’s white plastic bag, but later claimed that
the minutes had recorded
his evidence incorrectly. The arbitrator was
shocked that a security officer of his experience he could have
signed the minutes
without reading them. Accordingly he found Cossa’s
evidence incredible and implausible.
6.3
Wewege was also inconsistent in that he testified that the applicant
was the first employee to
come out of the mine whereas his colleague
said he was second one to be searched (the third respondent claimed
that he was the
second one to be searched). Wewege also only said
that someone was seen to be behaving suspiciously near the old hostel
change
houses and not that the third respondent looked suspicious and
ran away. He also said that Valashiya was searched by Cossa but when
Cossa’s evidence was to put to him he changed his testimony and
said that his colleague had searched the third respondent’s
plastic bag. He also changed his testimony about when he saw Cossa’s
statement.
[7]
The arbitrator concluded that the respondent’s two witnesses
were unreliable, not credible and inconsistent. He struggled
to find
them credible based on his observation of “”their
demeanour and the way they came across when giving their
evidence”.
Their evidence was so contradictory “as if they were not at the
same place at the same time” when
the incident occurred. The
applicant failed because it could not put up a plausible version on a
balance of probabilities. The
arbitrator made no findings at all
about Valashiya’s credibility.
Review
[8]
The grounds of review primarily relate to the arbitrator’s
evaluation of the evidence. Harmony claims that the arbitrator’s
approach to the evidence led him to ignore material evidence by
asking the wrong questions which distorted his factual
evaluation
to such an extent that his findings were ones no
reasonable arbitrator could have come to on the material before him.
[9]
For example, Harmony takes issue with the arbitrator’s
nit-picking dissection of whether Cossa was claiming that Valashiya
‘placed’ the black bag on the concrete slabs or ‘dropped’
it on them. Similarly, the arbitrator unreasonably
professed to
have great difficulty in grappling with the Cossa’s description
of Valashiya throwing ‘something’
over the wall at one
point in his evidence and, at another point in his evidence,
saying Valashiya threw two spray paint
tins over the wall. The
arbitrator experienced an analogous difficulty with Cossa’s
evidence at the disciplinary enquiry
that the black plastic bag and
the spray paint tins were inside Valashiya’s white plastic bag
and the other evidence that
Valashiya had removed the tins and black
plastic bag from his white bag in an effort to dispose of them. In
all these instances,
only the most literal interpretation of Cossa’s
evidence, taken completely out of context, could artificially create
the
appearance of supposed irreconcilable tensions in the evidence.
It is obvious that some of the supposed contradictions were
simply different ways of describing the same conduct and that the use
of different verbs was not material to the probative thrust
of the
evidence. If it was an issue in the case whether Valashiya had
wilfully damaged company property negligently or wilfully
by
‘dropping’ a fragile object as opposed to ‘placing’
it on concrete slabs, such differences could be
highly material, but
it was not relevant to the issue in this case, which was whether
Valashiya had probably tried to get rid of
the black plastic bag he
had been carrying in his white bag by putting the black plastic bag
on the concrete slabs.
[10]
Other apparent contradictions between Wewege’s evidence and
Cossa’s account which the arbitrator made much of,
on closer
examination prove to be illusory. Thus, for example, the arbitrator
notes that Wewege claims Cossa searched Valashiya,
which contradicts
Cossa’s evidence that he never searched Valashiya. When all of
Wewege’s evidence is considered in
context it ought to have
been glaringly obvious to the arbitrator that he meant that Cossa
never searched Valashiya’s person,
but only searched his white
plastic bag and that occurred after Valashiya had tried to discard
the suspect items that were in the
bag.
[11]
The arbitrator sought
justification for his approach based on making credibility findings
in the Labour Court judgment in
Moodley
v Illovo Gledhow & others
[1]
,
in which the court held,
inter
alia
, that:
“
[21] Sitting as I do as a
review judge, I fail to understand, in this case, how I could decide
to set aside an award given by an
arbitrator who sat at the hearing,
observed the witnesses, their demeanour and the manner in which they
came across. She was
steeped in the atmosphere of the
proceedings before her. I cannot see that I can interfere merely
on
an assessment of whether she misdirected herself by reason of the
fact that she considered whether the witnesses were credible
before
determining what the probabilities were in the light of their
testimonies
(see
Rex
v Dhlumayo
1948
(2) SA 677
(A)).”
(emphasis
added)
Once
again the arbitrator appears to have been selective in what he chose
to extract from the judgment, because the previous paragraph
provides
the actual basis on which the judge approached the issue in that
case, viz:
“
[20]
I would sooner go with the view that
the arbitrator determined both the
credibility of the witnesses and the probabilities, together
,
in a manner that led her, faultlessly in my view, to the conclusion
that the
probabilities are such that
the evidence of Logie must be preferred to the evidence of Moodley
because Logie came across as a more
credible witness than
Moodley
.”
What
this passage makes clear is that the learned judge, Ntsebeza AJ, did
not believe the arbitrator in that case had decided issues
of
credibility independently of the probabilities.
[12]
It is a matter of concern that the arbitrator in this case felt it
necessary to invoke his privileged observation of the witnesses,
which does not form part of the record, as an important justification
for his findings on the probabilities without explaining
what it was
about their demeanour or manner which struck him so forcefully to
warrant his disregard of their evidence. It is of
equal concern that
he felt no need to evaluate Valashiya’s credibility at all.
The fact he did not feel this
was necessary could only have
been justified if his observations of the behaviour of Cossa and
Wewege was so revealing about their
lack of integrity as witnesses
that the value of their testimony was completely vitiated. It is
indeed extraordinary that none
of their apparently manifest
limitations which were so striking for the arbitrator are reflected
anywhere in the transcript, such
as avoiding questions, being
unnecessarily defensive or argumentative, altering versions during
the course of evidence as difficulties
with earlier versions are
revealed, and the like.
[13]
Credibility findings can be
important, but it seems that sometimes the principles governing when
recourse should be had to credibility
findings are misunderstood. The
principles set out in
Stellenbosch
Farmers' Winery Group Ltd and Another V Martell et Cie and Others
[2]
should not be misconstrued to suggest that credibility findings are a
necessary foundation of any judgment in proceedings where
viva
voce
evidence is led. On the contrary, what the SCA emphasised in
SFW
is
that, credibility findings are a tool to be used when a court is
faced with irreconcilable versions and when the general evaluation
of
probabilities does not yield a result.
[3]
The SCA expressed it thus:
“
[5]
On the central issue, as
to what the parties actually decided, there are two irreconcilable
versions
. So, too, on a number of peripheral areas of
dispute
which may have a bearing on the probabilities
. The
technique generally employed by courts
in resolving factual
disputes of this nature
may conveniently be summarised as
follows. To come to a conclusion on the disputed issues a court must
make 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 extra curial
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
C
of
his recall thereof. As to
(c)
, this necessitates an
analysis and evaluation of the probability or improbability 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 a court's credibility findings compel it in one
direction
and its evaluation of the general probabilities in another
.
The more convincing the former, the less convincing will be the
latter. But when all factors are equipoised probabilities prevail.”
What
the analysis above makes clear observations of demeanour are merely
one factor among many in assessing credibility and many
factors
bearing on credibility will be apparent from the transcript of
evidence. It is also obvious that credibility findings based
on
observation of the witness are not the only or the first recourse in
assessing credibility and even less so in evaluating probabilities.
Adjudicators should be wary of making definitive credibility findings
based on their supposed omniscient ability to detect unreliable
evidence solely from observing a witness.
[14]
This case is an example of an
arbitration in which the general evaluation of the internal
plausibility of each of the versions and
an evaluation of their
relative probabilities was completely neglected by the arbitrator
because of his misdirection in being over
eager to make credibility
findings based on immaterial and minor natural inconsistencies in
testimony and his personal undisclosed
observation of witnesses. This
led him to ignore the fact that Wewege had no reason to corroborate
Cossa, even if we ignore that
he improperly took account of
Valashiya’s untested evidence of
mala
fides
on Cossa’s
part. In argument, it was suggested that it was not necessary to put
the reason why Valashiya believed Cossa had
a grudge against him to
either Cossa or Wewege because it had been set out in an earlier
statement by Valashiya. However,
an employer cannot assume an
employee will rely on an earlier defence unless the employee
indicates they will and it does not absolve
and employee from
challenging a witness’s credibility under cross-examination
based on evidence that the employee still intends
to lead, by putting
the gist of that evidence to the witness.
[4]
[15]
The arbitrator also failed to assess the inherent probabilities of
Wewege and Cossa engaging and collaborating in the most
elaborate
plot to falsely implicate Valashiya by planting evidence in different
places near the exit to the mine and then contriving
to ‘find’
them and make up a story that he had tried to discard the items.
Against that is the untested version of
Valashiya that he had simply
waited by the gate for Cossa to return from his walk on the premises
and that they had gone to the
extent of creating an elaborate
diversion of searching his locker when they had already planted the
items elsewhere which they
sought to implicate him in the theft of.
[16]
Had he first evaluated the relative probabilities of each version,
and the corroborative evidence of Wewege coupled with the
fact that
Valashiya’s version was untested with either Cossa or Wewege,
the arbitrator would have found it impossible to
reasonably arrive at
the conclusion that Harmony could not prove its case on a balance of
probabilities. Given the nature of the
misconduct which is attempted
theft, there can be little doubt that dismissal was an appropriate
sanction.
[17]
I appreciate that Valashiya was defending an award in his favour, and
in the circumstances, it is appropriate both parties
should carry
their own costs.
Order
[1]
The arbitration award of the second respondent issued on 01 April
2015 under case number FSWK 29-15 is reviewed and set aside
to the
extent that the arbitrator found the third respondent’s
dismissal was substantively unfair and awarded relief in paragraphs
[103] to [106] of the award.
[2]
The second respondent’s finding that the third respondent’s
dismissal was substantively unfair is substituted with
a finding that
it was substantively fair.
[3]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R
Itzkin instructed by ENS Inc.
THIRD
RESPONDENT:
E
Masombuka instructed by
Finger
Phukubje Inc.
[1]
(2004) 25
ILJ
1462 (LC)
[2]
2003 (1) SA 11 (SCA)
[3]
[4]
See
Small v Smith
1954
(3) SA 434
(SWA)
at 438E-G