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[2017] ZALCCT 52
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Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (C322/2016) [2017] ZALCCT 52 (20 October 2017)

IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
reportable
Case
no: C322/2016
In
the matter between
DEPARTMENT
OF HOME
AFFAIRS

Applican
t
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL

First Respondent
JUSTICE
NEDZAMBA

Second Respondent
NEPSAW
obo NTHABELENG MOSHOESHOE                                     Third

Respondent
Heard:
18 JUNE 2017
Delivered:
20 October 2017
Summary:
Review application-hearsay evidence-records of the disciplinary
hearing-test for review restated-application granted -
no order as to
costs.
JUDGMENT
MABASO,
AJ
Introduction
[1]
This is an application to review and set aside an arbitration award
by  the second respondent,  under the first
respondent's
case number GPBC    420-
2015,
which was issued on 10 December 2015.
[1]
This application was delivered out of the six weeks' period from the
date of service and is accompanied by a condonation application.
The
latter application is unopposed.
[2]
In deciding the condonation application, this Court had to take into
account   the interests of justice. In a condonation

application, some of the factors that have to be taken into
consideration are degree of lateness, prospects of success,
explanation
advanced for the lateness, prejudice to the parties. I do
not think that any of the Respondents will be prejudiced by the
granting
of the condonation application, as
"strong
prospects of success may tend to compensate for a long delay",
[2]
based on the order arrived at below, the condonation application is
granted.
[3]
The applicant is the Department of Home Affairs (the applicant), the
first respondent is the General Public Service Sectoral
Bargaining
Council (the Bargaining Council), the second respondent is
Commissioner Justice Nedzamba (the arbitrator). and the third

respondent is NEPSAW which is cited in its representative capacity as
a trade union (the union), on behalf of Nthabeleng Moshoeshoe
(the
employee). The Bargaining Council and the arbitrator, have not
delivered opposing papers, only the third respondent has delivered
an
answering affidavit.
Relevant
background/The arbitration
[4]
The employee was employed by the applicant    as its
Front Office Clerk until
dismissed
on 20 January 2015, following an outcome of the disciplinary hearing
which found her guilty of the following offence,
"that [she]
committed an act of misconduct in that on or about 30 October 2013 at
or near the regional office: Cape Town, [she]
unlawfully recorded the
passport application of Mr Putlako Lefus
a
[3]
ID
No.... without any DHA-73 Form completed or taken in as received
before it was processed at live capturing as per the prescribed

Departmental procedure".
[4]
[5]
Following
her dismissal, being assisted by her union, the employee referred an
unfair dismissal dispute to the Bargaining Council
which appointed
the arbitrator to arbitrate the dispute between the parties as the
conciliation yielded no positive
results.
[5]
[6]
According
to the arbitration award, the following witnesses testified on behalf
of the applicant: Mr Estiaan Bosch (Mr Bosch)-employed
as a deputy
director responsible for fraud and corruption, Mr Tsepo Mogoai (Mr
Mogoai) was the applicant's Client Relations Officer,
and Mr Bongani
Ndimande (Mr Ndimande)-the chairperson of the disciplinary hearing.
Only the employee testified in support of her
case, against the
aforementioned three witnesses
of the
applicant. After summarising the evidence of all these witnesses, the
arbitrator ruled that the dismissal of the employee
was procedurally
fair but substantively unfair.
[6]
He then ordered the applicant to reinstate the employee in the
position that she occupied prior to her dismissal on the same terms

and conditions of employment. The arbitrator further ordered the
applicant to pay to the employee an amount of R140, 000 which
is
equivalent to 12 months of her salary.
[7]
Before coming to this conclusion, the arbitrator said:
(a)
"...
The issue in dispute is whether or not the [employee] misconducted
herself "by
recording
[the client's] passport application without  any DHA-73 form
completed  or taken
in".
[7]
(b)
That the
admissibility of hearsay evidence had to be determined as
"[the
client] did  not testify  during  arbitration",
[8]
and according to him the reason for the client not to testify was
that " ..
.it
was
not
possible to secure [his] attendance since he had relocated to
Johannesburg and
has
started
a
new
employment. Attempt  to have his testimony telephonically
was
not
successful".
[9]
The arbitrator accepted the client's affidavit. It is prudent to
mention that, the arbitrator was wrong by saying the client did
not
testify, as the client did testify as appearing below, in paragraph
12.
[8]
In the opening statement, the applicant stated that its case was that
the employee failed to follow procedures when she processed
the
application for the passport and she worked with other fellow
employees in manipulating the system, and there were documents
to
prove it.
[9]
The arbitrator recorded common cause facts between the parties, which
can be summarised as follows: that the charge is as appearing
in
paragraph 4 above. The issue in dispute was whether in recording the
passport application
the
DHA-73 form was completed or taken in, according to the
applicable  rule
[10]
.
[10]
The second witness was Mr Mogoai, who was responsible for overlooking
applications and interacting with clients through floor
walking. He
came
across
the client who had in his possession a handwritten slip which is part
of the covering piece attached to the form, a copy
of application
"from the DHA-73 from which did not have a payment" and it
did not have a payment slip attached to it.
[11]
According to Mr Mogoai, something was amiss, as the   DHA
73 form has five sections, A-which is about particulars, B-to
be
completed by the Applicant's official, as it is a certification of
particulars,
[12]
C, D and E.
Then a  passport's  applicant  would  have to
sign  the declaration  under
section  E
confirming
that he agrees with the terms on which the government is issuing the
passport.
[13]
For example
"if
any of that on the record
as
well as
the payment  is missing  then it is  an incomplete
application."
[14]
[11]
The version that was put to Mr Mogoai, during cross-examination, was
that  the employee was to submit that she followed
the proper
procedure in  assisting the client, in that she completed the
form and the client signed the form. This version
was not disputed.
Instead, this witness indicated that the application form was not
available and the applicant's investigator
tried to get  it
without success.
[12]
Despite the arbitrator's conclusion that the client did not testify,
looking at the records clearly the client did testify,
being assisted
by an interpreter, and his testimony is captured as follows:
"EXAM/NATION BY
MR DIKANE: Can you please tell this tribunal
as
to what
transpired when you came to apply for
a
passport on the day in
question.
[INTERPRETER]:... he
entered Home Affairs and at the front he meet
a
lady because
he had 400 in hand to apply. Then the lady took him at the back.
COMMISSIONER: Just ask
him to give you
a
chance.to explain. We must say what he is
saying. Don't allow him to call for long if you're going to forget,
otherwise write down.
What did she say?
[INTERPRETER]:
He
is saving he is tired. He had a busy night.
"[INTERPRETER]:
the
last part is like he can't remember what really happened
because I was about to ask him it was really get the
position whereby he was at the door, oh to the back to the other
lady.
Then I can't get exactly what in the court he says the lady
took the ID number. Then after that to the computers but now I don't

get exactly what happened there. I was about to ask what happened
thereafter
.
COMMISSIONER: Ok is that
all?
[INTERPRETER]: Yes.
COMMISSIONER:
All right. Ok. He can
go.
MR DIKANE: Yes, we can
close."
[15]
[13]
The client was not cross-examined, and nothing was said about the
statement that was allegedly made by him in respect of the
case
against the employee. Although the client testified after Mr Bosch's
evidence in respect of the  affidavit. Certainly,
the arbitrator
made an error in respect of the conclusion  that the client did
not testify. However, the impact thereof will
be determined  by
the overall of the arbitration, taking into account that the
applicant did not raise this as one of its
grounds for review.
[14]
The first
witness for the applicant was Mr Bosch who testified as follows: as a
Deputy Director responsible for fraud and counter
corruption
investigations within  the  Western  Cape
Province
[16]
, he  did
an  investigation   against   the
employee,
[17]
which  this  matter  had  been  brought
to  his  attention  by
Mr Mogoai. He mainly relied on
the client's affidavit,
[18]
and what the client told him is  that on  the  date
in question  he  did  not  fill
in
any  form  nor  append his
signature
to any paperwork, and according to him this was an irregularity as it
was against the policy.
[19]
[15]
Mr Bosch
was cross-examined and referred to the disciplinary chairperson's
report wherein the employee was found guilty.
[20]
It was put to this witness that the  DHA-73  was
completed  by  the  employee
[21]
.
Mr  Bosch  confirmed
this.
However,
he said the form was only completed after the client had spoken to
his brother and he had to go back for the receipt, meaning
at the
time when  the application for the passport was made, no form
had been completed.
[22]
Mr
Bosch further testified that the completed form would have a portion
of the client's signature, the one that was presented before
the
arbitrator was
"only
a
top
part
of-there
is
more
forms
underneath
so
it
is
only
the
top
part
that
you
can
easily tear off
.
[23]
[16]
The
employee's version that was put to Mr Bosch was that the form was
completed by her at the time of the application and it was
given back
to the client to take it to the cashier. Mr Bosch confirmed that it
is not irregular for an official to complete
the form but it
must be
signed.
[24]
Grounds
for review
[17]
Taking into account that, the issue before the arbitrator  was
whether  or not  the employee submitted and
I
or
processed the application for a passport without the DHA-73 form
being completed and submitted, I deem it prudent to concentrate
on
the grounds of review relating to this issue, as set out below.
[18]
The applicant asserted that the arbitrator committed a reviewable
irregularity by disregarding and/or failed to attach sufficient

weight to the evidence of Mr Mogaoi in that the client was supposed
to have signed part B which is a declaration part and not a
photo of
the DHA-73 form as submitted by the employee.
[19]
That the
arbitrator committed a reviewable irregularity, in concluding that
the client " was not present at the hearing to
clarify whether
he had signed on the photo side of the form or whether he had signed
where the photo booth is", and made assertion
that the affidavit
of the client pointed out that the client did not fill in any form or
document and also did not sign any paperwork,
and that Mr Ndimande
recorded the evidence of the client, during the hearing, that the
client indicated that he did not sign any
manual application
form.
[25]
[20]
It is the applicant's assertion that the arbitrator misconstrued the
evidence of Mr Bosch, who was the investigator, and his
assumption
was that the form that was completed, which was presented before the
arbitrator was completed " not for the sake
of application"
but " was in all probability then completed after the fact".
II needs to be mentioned that this
cannot be a valid ground to review
and set aside the award, taking into account that this witness was an
investigator. I have also
taken into account that it was common cause
between the parties that the full set of forms was not presented
before
the
arbitrator,
the only part that was presented was the one that was completed by
the employee
[26]
.
[21]
The applicant further asserted that the arbitrator in summarising
the
evidence of the proceedings, in discrediting Mr Ndimande of the
applicant, he relied
on evidence
that was not before him.
[27]
[22]
That the arbitrator misconstrued the question before him, as he held
that
"the
bone 'of   contention
is
that
the
form
was
partially
completed
"
[28]
,
as
the
applicant's case was that there was no completed application form on
behalf  of client."
[29]
I am of the view that the arbitrator cannot be faulted in concluding
that the bone of contention  was that  the form
was
partially completed. This
ground
is baseless.
Legal
principles and application thereof
[23]
In
Herholdt
[30]
the
Supreme Court of
Appeal
held:
" ... [A] defect in
the conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii), the
arbitrator must have ...
arrived
at an unreasonable result
.  A result
will
only be unreasonable if it is one that a reasonable arbitrator could
not reach
on
all the material that was
before the arbitrator.
Material errors of fact,
as well as the weight and relevance to be attached to particular
facts, are
not in
a
nd of themselves
sufficient for an award to be set
aside. but are only of
any consequence if their effect is to render the outcome
unreasonable.
"(Own
emphasis)
[24]
Soon  after  the
Herholdt
judgment,
the LAC in
Anglo's
matter
[31]
enunciated
thus,
"In Herholdt, which
endorsed and clarified the operation of the Sidumo test, the SCA
emphasised that
an
award of an arbitrator will only be set aside on review if
both
the
reasons
and the
result
are unreasonable.
It held that in determining whether the award is unreasonable, the
Labour Court must
broadly
evaluate the merits  of the dispute
and
consider whether, if the arbitrator's reasoning is found to be
unreasonable,
the
result
is.
nevertheless.
capable
of
justification
on
al
l
the
material
before
the
arbitrator,
including
for
reasons
not
considered
by
the
arbitrator
.
The
SCA
in
Herholdt
further held
that
the
result of
an
arbitrator's award will be unreasonable
if
it is entirely disconnected
with
the evidence,
unsupported
by any evidence and involves speculation by the arbitrator
.
It follows from this that an arbitrator's award
will
be
reasonable
when
there
is
a
material
connection
between the
evidence and the result, or, put differently, when the result is
supported by some evidence.
[32]
(Own
emphasis)
[25]
The
applicant as the employer who dismissed the employee, had the onus of
proof to show that the dismissal of the employee was both

procedurally and substantively fair.
[33]
The case for the applicant revolved around (a) the client's
affidavit,
(b) the investigation that was done by Bosch and (c) the subsequent
disciplinary hearing records, which had been presented
before the
arbitrator. Based on this the question that has to be answered is
whether the arbitrator committed reviewable irregularity
and in
deciding this issue, one has to take into account all the material
that was correctly placed before the arbitrator.
The
affidavit and disciplinary records
[26]
Hearsay
evidence, which the arbitrator relied upon, is regulated by section 3
of The Law of Evidence Amendment Act
[34]
, and it
can be admitted as
evidence if
inter
alia
is
by consent or the presiding officer decides to take into account any
other factors which in his opinion have to been taken into
account .
[27]
In
terms of the provisions of section 138 of the LRA, the arbitrator had
the leeway to deal with the matter the way he deemed fit,
and one of
the conditions was that both parties enjoy fair trial of issues. In
GUSA v
Tao Ying Metal Industries
&
others,
the
CC
[35]
held
that,
"Thus the LRA
permits commissioners to "conduct the arbitration in a manner
that the commissioner considers appropriate".
But in doing so,
commissioners
must be guided by at least three considerations. The first is that
they must resolve the real dispute between the
parties. Second, they
must do so expeditiously. And, in resolving the labour dispute, they
must act fairly to all the parties
as
the LRA
enjoins them to do.’
[36]
[28]
The
arbitrator
decided
to
accept the client's affidavit as hearsay evidence,
and before
this Court, parties were not challenging the arbitrator's conclusion
in that he accepted this affidavit despite the client's
testimony
where amongst other things he said
"can't
remember what really happened',
and
that
the
arbitrator made an error in that the client did not testify whereas
he did testify as mentioned above.
[37]
[29]
Taking
into account that the arbitrator in accepting the affidavit of the
client concluded that
"in
the interest of justice I have decided to admit [the client's]
affidavit
[38]
.
It
is also important to mention that before coming to  this
conclusion, the arbitrator made the following comments in respect

of  argument before
him:
"Mr
Sonjica
argued
that
I
should
not
admit
[client's]
affidavit
and
Ndimande's
evidence on the basis of it being hearsay evidence.
While
I accept that
Dimande's
evidence and
Lefusa's
affidavit
constituted
hearsay
evidence,
I
consider
that
the
exceptions
stipulated
in
section
3
of
the Law of
evidence
Act 45
of
1988."
[39]
(Own emphasis)
[30]
The arbitrator in the award does not state as to
whether or not he accepted  the evidence of Mr Ndimande despite
stating that
it was hearsay evidence, instead he only expressly
accepted the affidavit. However, he acknowledged that Mr Ndimande
testified
and he '
wrote through his findings in respect of the
hearsay evidence at the hearing. He also read through [client's]
statement".lt
is trite law that in deciding a review
application, one has to take into account the totality of the
evidence that was properly
before the arbitrator and the award which
is under review.
[31]
Arbitration hearings are
de nova
hearings, and the
disciplinary records are not automatically regarded as evidence
before forums such as CCMA.
In casu,
the employee's
representative did cross-examine the applicant's witnesses on
disciplinary records, as correctly pointed out by the
arbitrator that
Ndimande placed before him what the client said during the
disciplinary hearing, therefore, the arbitrator was
bound
to
take
into account such evidence.
Conclusion
[32]
I conclude that the arbitrator did understand the issue before him in
that the bone of contention was that the form was partially

completed, I say this because it was not disputed that the employee
had a right to complete the form on behalf of the client, as
to when
did the employee complete the form, none of the witnesses could
testify on that except the employee who  indicated
that the form
was completed before the application could be submitted.
[33]
The only issue in respect of the completion of the form was that it
was the evidence of Mr Mogoai that failure
to
sign the
application form amounts to an incomplete application. Therefore, the
evidence before the arbitrator which was presented
by way of an
affidavit, Mr Ndimande, and the disciplinary records pointed to one
direction that the client did not complete the
application form, as
required by the policy of the applicant, such policy was not in
dispute. Taking into account the charge which
the employee was
dismissed for, the evidence presented before the arbitrator, the
conclusion by the arbitrator that there was no
evidence supporting
that the client signed at the photo booth, and that
"Ndimande
is not in a position to testify what[the client] meant by
"'
photo side" ...[the client] never told him what he meant'.
The arbitrator failed
to
apply his mind
to
the
issue of the disciplinary records, which was material to the
determination of the fairness of the dismissal. Therefore, it cannot

be said that there was a fair trial of issues. Based on these,
his conclusion is one a reasonable decision-maker could not
have made
taking into account the totality of the evidence that was properly
presented before him.
[34]
Considering that the arbitrator did not give the parties, especially
the employee's representative, an opportunity to cross-examine
the
client as the author of the affidavit, therefore, I am of the view
that order 3 below would be appropriate.
Order
[35]
In the circumstances, the following order is made:
1.    The
Applicant's application for the late delivery of the  review
application is granted.
2.    The
arbitration award issued by the Second Respondent under the first
respondent case number GPBC 420-2015
is reviewed and set aside.
3.   The unfair
dismissal dispute between the Third Respondent and the Applicant
under the First Respondent case number
GPBC 420-2015 is remitted to
the First Respondent to be arbitrated
de nova
before a
different Commissioner within 30 days.
4.
There is no order as to costs.
___________________________
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Adv L Dzai
Instructed
by:

C Bailey (State Attorney, Cape Town)
For
the Respondent:
Adv C Bosch
Instructed
by:

M Funeka Attorneys
[1]
Page 64, received by the applicant on 22 January 2016.
[2]
Melane
v
Sanlam
Co Ltd
1962 (4) SA 531
(A).,
Van
Wyk v Unitas Hospital and Others
2008(4)
BCLR 442 (CC)
at
para
20,
Grootboom
v National Prosecuting Authority and Another
2014
(2) SA 68 (CC)
[3]
Hereinafter referred to as "the client".
[4]
Records: page 75-76.
[5]
Section 191
of the
Labour Relations Act 66 of 1995
("the LRA").
[6]
Page 29.
[7]
Page 27, para 39.
[8]
Page 27, para 40.
[9]
Records, page 73.Even the employee's representative was of the
belief that the client did not testify.
[10]
It was common cause between the parties that this was a valid rule.
[11]
Records: page 86.
[12]
Records: page 93.
[13]
Records: page 88 - 89.
[14]
Records: page 90.
[15]
Records: page  117 to 119.
[16]
Records, page 35.
[17]
Records, page 35-36.
[18]
Records, page 48 - 50, 58-59.
[19]
Records, page 40,45, 46, 65,66,  82,209.
[20]
Records, page 56.
[21]
Records, page 76.
[22]
Records, page 79-83
[23]
Records: page 84.
[24]
Records, page 83.
[25]
Founding affidavit, page 15 to 17. Supplementary affidavit, page
37-39, para 7 -9. Records:  Bundle A, page 186.
[26]
Supplementary affidavit, page 39 -40.
[27]
Founding affidavit, para 25.
[28]
Founding affidavit, para 26; arbitration award, para  43.
[29]
Founding affidavit, para 26. See also supplementary  affidavit,
para 12.
[30]
Herholdt
v Nedbank Ltd
[2013]
ZASCA  97; 2013  (6)  SA 224 (SCA);
[2013] 11
BLLR 1074
(SCA); (2013) 34 ILJ 2795 (SCA).
(Herholdt).
[31]
Anglo
Platinum (Ply) Ltd (Bafokeng Rasemone Mine) v De Beer
[2015]
4 BLLR 394
(LAC).
[32]
Ibid, para 11.
[33]
ss 192(2)
of the LRA.
[34]
Act 45 of 1988. "3. (1) Subject to the provisions of any other
law, hearsay evidence shall not be admitted as evidence at
criminal
or civil proceedings, unless -
(a)each party against
whom the evidence is to be adduced agrees to the admission thereof
as evidence at such proceedings;
(b)the person upon whose
credibility the probative value of such evidence depends, himself
testifies  at such proceedings;
or
(c)the court, having
regard to - (i)the nature of the proceedings; (ii)the nature of the
evidence;
(iii)the purpose for
which the evidence is tendered; (iv)the probative value of the
evidence;
(v) the reason why the
evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi)any prejudice to a
party which the admission of such evidence might entail; and
(vii)any other factor which should in the
opinion of the court be
taken into account, is of the opinion that such evidence should be
admitted in the interests of justice.
(2)   The
provisions of subsection (1) shall not render admissible any
evidence which is inadmissible on any ground
other than that such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of
subsection (1}(b} if the court is informed that
the person upon
whose credibility the probative value of such evidence depends, will
himself testify in such proceedings: Provided
that if such person
does not later testify in such proceedings, the hearsay evidence
shall be left out of account unless the
hearsay evidence is admitted
in terms of paragraph (a) of subsection (1) or is admitted by the
court in terms of  paragraph
(c) of that subsection.
[35]
[2009] 1 BLLR 1 (CC)
[36]
Ibid, at para 65.
[37]
Ndhlovu
and others v
S
[2002} 3 All SA 760
(SCA), at para 29, the SCA held as follows,
regarding hearsay evidence: Second and in any event, the literal
reading entails
that a hearsay statement automatically becomes
admissible simply because the extra-curial declarant happens to
testify, regardless
of the content of his or her testimony, and
regardless of the interests of justice. It is hardly conceivable
that the legislation
intended this result. When hearsay
evidence is tendered,  the person on whose credibility the
probative value of the
hearsay depends  may
(i)testify and confirm
its correctness; (ii)not testify;
(iii) testify but deny
ever making the hearsay  statement;
(iv) testify and admit
making the statement but deny its correctness; (v)testify but
neither confirm nor deny making the  statement.
[30]
If the witness, when called, disavows the statement, or fails to
recall  making  it, or is unable to affirm some
detailed
aspect of it (situations(iii)-(v) above), the situation under the
Act is not  in  substance materially different
from when
the declarant does not testify at all. The principal reason for not
allowing hearsay evidence is that it may be untrustworthy
since it
cannot be subjected to cross­ examination. When the hearsay
declarant is called as a witness, but does not
confirm the
statement,   or repudiates it, the test of
cross-examination is similarly absent, and similar safeguards
are
required.
[38]
The arbitration award: para  41.
[39]
Ibid, at para 40.