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[2018] ZALCJHB 51
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Moses Kotane Local Municipality v Mokonyama NO and Another (JR2324/15) [2018] ZALCJHB 51; (2018) 39 ILJ 1130 (LC); [2018] 6 BLLR 614 (LC) (8 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR 2324/15
In the matter between:
MOSES KOTANE LOCAL
MUNICIPALITY
Applicant
and
OBADIA MOKONYAMA
N.O
First Respondent
TSHOLOFELO
MOLOI
Second Respondent
Heard:
20 July 2017
Delivered:
08 February 2018
Summary:
The applicant sought in terms of Section 158(1)(h) of
the LRA to
review and set aside the judgment of the first respondent who was
appointed to chair the disciplinary hearing of the
second respondent.
The evidence in favour of the applicant was clear and convincing.
Held that the findings of the chairperson
were clearly wrong and the
determination was reviewed and set aside. The conduct of the second
respondent warranted the sanction
of dismissal.
JUDGMENT
HUTCHINSON; AJ
Introduction
[1] This is an
application in terms of Section 158(1)(h) of the Labour Relations Act
66 of 1995 (the Act) to review and set aside
the disciplinary hearing
judgment of the first respondent.
Condonation
[2] The applicant sought
condonation for the late filing of the record. Notwithstanding, the
second respondent’s opposition,
I am satisfied that a
reasonable explanation has been advanced for the delay and that the
prospects of success are favourable.
Condonation is hereby granted.
Background to the
application
[3] The applicant, a
municipality, appointed the first respondent to chair the second
respondent’s disciplinary hearing. The
second respondent is
employed as the Head of the Supply Chain Management Unit (SCM). Her
key function is to manage this unit including
the tender process.
[4] On 27 May 2015, the
second respondent was issued with a notification to attend a
disciplinary hearing to answer four charges.
Only two charges are
relevant to the determination of this matter, namely:
‘
CHARGE
1: Gross Misconduct
·
You are hereby charged with an act of
misconduct in that you contravened the provision of clause 1.2.3. of
Annexure A of the SALGBC
Disciplinary Procedure when you failed to
perform your tasks and job responsibilities diligently, carefully and
to the best of
your ability by not complying with the provisions of
Section 118 of the Municipal Finance Management Act, Act 56 of 2003
when you
instructed Mr Pitse to copy some of the documents in tender
BID NO. 015 B/MKLM/2014/2015 for Supply and Delivery of Light
Delivery
Vehicles and Sedan for Moses Kotane Local Municipality prior
to the bid evaluation and adjudication process.
CHARGE 2: Gross
Misconduct
·
You are hereby charged with an act of
misconduct in that you contravened the provision of clause 1.2.5. of
Annexure A of the SALGBC
Disciplinary Procedure by failing to conduct
yourself with honesty and integrity when you instructed Mr Pitse to
copy some and
not all of the tender documents prior to the bid
evaluation and adjudication process without providing reasonable
justification
to select documents in tender BID NO. 015
B/MKLM/2014/2015 for Supply and Delivery of Light Delivery Vehicles
and Sedan for Moses
Kotane Local Municipality.’
[5] The facts of the
matter fall within a narrow compass and are not the subject matter of
any controversy. The sticking point relates
to the inferences that
should properly be drawn from the primary facts. A chairperson is
subject to the same duties as any trier
of fact namely, to carefully
evaluate the inferential weight, strength and force of the evidence.
[6] On 5 March 2015, the
second respondent instructed a subordinate of hers Mr Pitse (Pitse)
to copy some but not all of the tender
documents (as referred to in
the charges) prior to the bid evaluation and adjudication process.
Whilst Pitse was taking copies
of the said documents in the record
room, he was approached by the second respondent’s superior,
the Chief Financial Officer
Mr Shikwane (Shikwane) who questioned him
about what he was doing. Pitse explained that he had been instructed
by the second respondent
to copy the said documents. Shikwane took
the copies and confronted the second respondent to ascertain why she
wanted copies made.
She maintained that she wanted the copies for
record and backup purposes.
[7] Section 118 of the
Municipal Finance Management Act 56 of 2003 (MFMA) provides as
follows:
‘
No
person may –
a)
interfere with the supply chain management system of a municipality
or municipal entity;
or
b)
amend or tamper with any tenders, quotations, contracts or bids after
their submission.’
[8] The procedure is that
when bids are invited, a closing date for the receipt thereof is
stipulated. On the closing date, bids
are opened in public and
various details are recorded such as: the time of receipt, the name
of the bidder and the bid price of
each tender. Pursuant to this
process, the tender documents are stored in a storeroom until the
first meeting of the Bid Evaluation
Committee (BEC). The documents
are examined for the first time at the BEC meeting. The documents are
expected to be in the exact
same state as they were when delivered by
the bidders. All of this evidence was not disputed by the second
respondent.
[9]
At the first meeting of the BEC, no evaluation took place because the
Committee suspected that the bids had been tampered with.
Some of the
documents had been filed upside down. The first respondent (the
chairperson) recorded the following in his judgment:
“
The
schedule indicating where to find which returnable document could not
be relied on because there was a mix up and some bids
had some pages
missing.”
[1]
[10]
Shikwane and the second respondent were called by the BEC to account
for the state of the documents. At that meeting, the second
respondent conceded that the mixed-up state of the documents was in
all probability attributed to the fact that they had been unbound
in
order for copies to be taken as per her instruction to Pitse.
Presumably, after Pitse took the copies he did not file the originals
in the correct order.
[11]
The second respondent provided various explanations for her highly
suspicious conduct. At some stage. she claimed that the
Auditor-General issued a negative audit finding relating to missing
documents and both she and the previous CFO resolved to copy
the bid
documents for record and safe keeping purposes. The applicant
strongly challenged this version and submitted that it was
inconsistent with the fact that she only caused copies to be made of
some of the documents. In respect of this submission, the
chairperson
remarked: “
Although
they dispute this evidence they failed to tender evidence indicative
of malicious and caprice from the part of the employee”.
[2]
[12]
A number of reasons were advanced by the applicant as to why there
was no need for the second respondent to take copies. In
the first
place, the server had been upgraded to ensure that there was enough
space to store the documents. According to the second
respondent, she
was not aware of this fact. In addition, it was pointed out by the
applicant that the bidders are obliged to submit
a compact disk (CD)
of all the documents. Accordingly, the CD serves as a backup which is
loaded onto the server. The second respondent
did not dispute this
but maintained that the CD’s are not reliable: “
Sometimes
they do not have the complete documents, are empty and the only way
to ensure that a proper record is kept is by making
physical copies
of the documents”.
[3]
[13] The chairperson
recorded that the second respondent did not present any evidence to
support her contention that it was not
for the first time that she
had copied the documents prior to the BEC meeting. In fact, Pitse
contradicted the second respondent
and insisted that documents are
only copied after a bid has been awarded. As a result of the of the
second respondent’s conduct
in tampering with the documents,
the whole process commenced
de novo
at considerable expense
and inconvenience.
[14]
The first respondent went on to state:
‘
In
my view, record keeping of these documents could have been easily
done; copying was not the only remedy. The Employee is
the one
who controls the storeroom. She could have simply taken the
documents and locked them in the storeroom and ensured
that no one
has access to such a storeroom until the BEC is vested with the
documents. Once the compliance stage within the
evaluation
process is completed, she would also have ample opportunity to make
copies for back up and record purposes.’
[4]
[15] The first respondent
found that the applicant failed to prove that the second respondent
“
had an intention to damage or tamper with the documents
”
however, he found that the second respondent’s instruction for
copies to be made constituted a breach of Section 118
of the MFMA.
[16] The first respondent
held that the second respondent’s explanation as to why she
caused the copies to be made “
makes reasonable sense.
”
Finally, the first respondent concluded as follows:
‘
The
Employer submits that the copying was influenced by ulterior motives
only known to the Employee. No proof is proffered
to
substantiate this allegation and for me this is insufficient.
The Employer needed to prove that when the Employee made
copies she
did that intentionally, such evidence is not available. The
Employee proved on a balance of probabilities that
her actions were
bona fide and her reasons were excusable and genuine.’
[5]
[17] The chairperson
resolved that a final written warning should be imposed upon the
second respondent on the basis that she made
an innocent mistake.
Standards of Proof
[18]
South African law recognises three
standards of proof (also referred to as standards of review). The
preponderance and criminal
standards are well known. To date our
courts have not deemed it necessary to assign either a name or a
label to the third standard
of proof. This is an intermediate
standard that lies at some point between the preponderance and
criminal standard. For many decades
USA courts have referred to this
as the “
clear and convincing
standard.”
[19]
Kevin M. Clermont in his article
Death
of Paradox: The Killer Logic Beneath the Standards of Proof
[6]
states
“…
..
the law today limits its choice to no more than three standards of
proof – preponderance, clearly convincing, and beyond
a
reasonable doubt – from among the infinite range of
probabilities stretching from slightly probable to virtual certainty;
the law did not always recognize this limitation, but with time the
law has acknowledged that the conceivable spectrum of standards
coalesced irresistibly into three.”
[7]
[20]
The clear and convincing standard is distinguishable from the
preponderance standard (more likely than not) and the criminal
standard of beyond reasonable doubt. To meet the clear and convincing
standard, the probabilities must be highly likely or highly
probable.
There is no dispute that the mathematical percentage probability for
the preponderance standard is set at 50% plus X
where X is greater
than zero. For present purposes, I will refer to this as the 51%
standard.
[21]
Valiant attempts have been made in the USA to assign a percentage
probability for the other two standards of proof. USA studies
amongst
judges and jurors have revealed that many of them equated the clear
and convincing standard of proof with a probability
of 75%. Frederick
E. Vars in his article
Toward
a General Theory of Standards of Proof
[8]
highlights the following:
‘
The
assumption that the preponderance standard equals 0.5 and the clear
and – convincing standard equals 0.75 has both descriptive
and
normative components. Descriptively, as reported ..… a large
survey of judges found a mean, median, and mode of 0.75
for the clear
– and – convincing – evidence standard. This is
from evidence, but it obscures the fact that 65%
of judges picked a
level other than 0.75 and that the responses in general, ranged from
0.5 to 1.’
[9]
[22]
In mathematical terms, the criminal standard has often been equated
with a 90% probability. My preference is to associate the
clear and
convincing standard with a 70% probability which is the mid-point
between the preponderance standard of 50% and the criminal
standard
of roughly 90%. Kevin M. Clermont in his article
Procedure’s
Magical Number Three: Psychological Bases for Standards of Decision
[10]
maintains that the criminal standard rarely prevails outside criminal
law.
[11]
In light of Section
33(1) of the Constitution of the Republic of South Africa, 1996 which
provides that everyone has the right
to administrative action that is
lawful, reasonable and procedurally fair, there is no place for the
application of the criminal
standard in administrative law.
[23]
The test propounded in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[12]
is whether the decision reached by the Commissioner is one that a
reasonable decision-maker could not reach. This test does not
spell
out the standard of proof that must be applied to successfully
challenge factual findings of statutory arbitrators. David
Schwartz
and Christopher Seaman in their article
Standards
of Proof in Civil Litigation: An Experiment from Patent Law
[13]
state the following:
‘
Our
litigation system is based upon the assumption that standards of
proof matter. They ‘serve to instruct the factfinder
concerning the degree of confidence our society thinks he should have
in the correctness of factual conclusions.’ The various
standards of proof reflect the legal system’s judgments about
the proper allocation of risk between litigants, as well as
the
relative importance of the issues at stake.’
[14]
[24]
In a similar vein,
Kevin
Clermont maintains the following: “
The
prevailing but contested view of proof standards is that fact-
finders should determine facts by probabilistic reasoning. Given
imperfect evidence, they first should ask themselves what they think
the chances are that the burdened party would be right were
the truth
to become known and they then should compare those chances to the
applicable standard of proof.”
[15]
Appeals Involving
Questions of Law and Fact
[25] The preponderance
standard applies to an appeal on an issue of law. The enquiry is a
de
novo
one and no deference is shown to the trial judge’s
legal conclusions. An appeal on an issue of fact requires a more
deferent
intermediate standard of proof. The position has been
articulated as follows:
‘
The
principle that an appellate court will not ordinarily interfere with
a factual finding by a trial court is not an inflexible
rule. It is a
recognition of the advantages that the trial court enjoys which the
appellate court does not. These advantages flow
from observing and
hearing witnesses as opposed to reading the ‘cold printed
word’… thus, where there is a misdirection
on the facts
by the trial court, the appellate court is entitled to disregard the
findings on facts and come to its own conclusion
on the facts as they
appear on the record. Similarly, where the appellate court is
convinced that the conclusion reached by the
trial court is clearly
wrong, it will reverse it.’
[16]
[26]
Factual findings shall not be set aside unless clearly wrong. One of
the benefits of the adoption of a clearly erroneous standard
of proof
is that “
appellate
courts can focus their capacities on developing law as opposed to
focusing on factually intensive, case-specific questions
with little
value beyond the case at issue ….. deference is appropriate in
cases based primarily on multifarious, fleeting,
special, narrow
facts that utterly resist generalization and where the investment of
appellate energy will …. fail to produce
the normal
law-clarifying benefits that come from an appellate decision on a
question of law.”
[17]
[27] In reality, the
appeal court embarks upon a
review
of the trial court’s
factual findings. The “
appeal”
part where the
preponderance standard applies is confined to issues of law and to
factual findings where there has been a clear
misdirection on the
facts. In the latter case, if the misdirection impacts on the
probabilities, the appeal court is entitled to
disregard the findings
of the trial court and thereby determine the matter afresh utilising
the preponderance standard. The discussion
that follows hereunder is
confined to the case where the original decision-maker has not
committed a material misdirection on the
facts.
[28] Therefore, if an
appeal court is satisfied that there is a 51% probability that the
trial court erred in its assessment of
a factual issue, it will not
brand the finding as being “
clearly wrong.”
It
will simply disagree with it. If on the other hand, the court finds
that the appellant’s evidence was highly likely as
contemplated
in the clear and convincing standard of proof, it ought to interfere
with the decision. A clearly wrong or obviously
wrong factual finding
falls squarely within the ambit of the clear and convincing standard
of proof. If the evidence was clear
and convincing in respect of
proposition A, a finding in favour of proposition B must be
“
obviously wrong.”
[29]
Opinions may well vary as to whether the test for an appeal
(essentially a review) on a question of fact (a clearly wrong
decision) involves the same standard of proof that should be applied
to a review involving the reasonable decision-maker test as
contemplated in
Sidumo
.
Emma Fergus in her review of the book by Anton Myburgh and Craig
Bosch
Reviews
in the Labour Court
[18]
contends the following:
‘
Whether
the suggested standard of `obviously wrong’ is the ideal
benchmark for testing unreasonableness I am unsure. Once
a court is
invited to consider whether a decision is `wrong’ (albeit with
a condition that to be set aside it must be `obviously’
wrong)
the line between an appeal and a review becomes more difficult to
maintain. Perhaps more concerning though is that by doing
so, the
essence of reasonableness may be lost: considering whether something
is reasonable essentially requires a court to ask
whether it can be
adequately justified ….. is that akin to asking whether
something is obviously wrong? I am doubtful.’
[19]
[30]
If a factual finding is clearly wrong, one would intuitively have
reservations about it surviving a justifiability test. One
may ask
whether it is desirable to apply a higher intermediate standard of
proof to a commissioner’s findings of fact as
opposed to that
of a trial judge’s. Essentially, they both engage in an
exercise of probabilistic reasoning to resolve disputes
of fact by
assessing, analysing, measuring, comparing and evaluating evidence to
determine its inferential weight, strength or
force. Applying a
higher standard would mean that more deference is accorded to a
commissioner and less to a trial judge. In mathematical
terms, the
argument would have to run along the lines that interference with a
trial court’s findings of fact is warranted
at say a 70%
probability whereas, in the case of a commissioner, the probability
should be higher at possibly 80%. This further
begs the question
whether a factual finding based on a probability of less than say 30%
is justifiable.
[31]
In my view, to calibrate a more deferent threshold for a justifiable
decision would set a very low standard for statutory arbitrators
in
dealing with disputes of fact.
An unintended consequence is
that a more stringent standard could readily be confused with the
standard applicable to the review
of private arbitration awards where
reasonableness as a ground of review is excluded.
Evaluation of the
Evidence
[32]
Professor Andrew Paizes in his article
Chasing
Shadows: Exploring the Meaning, Function and Incidence of the Onus of
proof in South African Law
cautions judges against adopting a lethargic approach to the
evaluation of evidence by too readily declaring a 50/50 tie and
thereby
allowing the
onus
of proof to determine the outcome. In this regard, he pertinently
observes the following:
[20]
‘…
..
the part played by the onus in determining the result of
litigation should be kept small as possible, and that we should
rather direct our efforts at identifying, developing and refining
alternative techniques for resolving deadlock—human
adjudicative
techniques that might prompt one to reconsider what
appears, at first blush, to be a situation of equipoise (or a `50-50’
perspective) in order to determine whether or not it may be viewed
as, say, either a `51-49’or a `49-51’ perspective,
with
the result that a reliance on the onus becomes unnecessary.’
[21]
[33] Based on the
totality of the evidence, the probabilities in this matter are by no
means marginal. The applicant’s case
inspires a high degree of
confidence. There is clear and convincing circumstantial evidence to
prove that the second respondent’s
instruction to copy only
certain bid documents was not
bona fide
but for a mendacious
purpose. The documents were safely stored in a locked room to prevent
tampering. There was no logical or rational
reason to remove them
from a secure environment. The act of removing the documents from a
secured area and taking copies of some
demonstrates a clear intention
to tamper with them. In order to make copies, the documents would
have to be separated. Accordingly,
anyone deciding to remove
documents from the safety of a storeroom, would have to have a
legitimate reason to do so.
[34]
There was no factual basis to the suggestion by the second respondent
that the CD’s were not reliable. It is clear that
the second
respondent did not bother to check any of the CD’s before
issuing the instruction to copy some of the documents.
How would she
have known that those particular documents were not captured on the
CD’s without having inspected same. Moreover,
since the tender
was for a relatively large contract, one would expect the potential
bidders to ensure that their documents were
in order. The applicant
was targeting professional service providers.
[35] The record keeping
excuse falls to the ground. Only some documents were being copied.
This was also at a time when there was
no reason to suspect that
documents may go missing from the storeroom. In addition, it is
unlikely that by virtue of her senior
position, the second respondent
would not have been aware of the upgrading of the server.
[36] Since all the
excuses advanced by the second respondent were utterly unconvincing,
one is driven to the conclusion that the
second respondent was guilty
of dishonest conduct. The approach adopted by the chairperson to the
resolution of factual disputes
is not beyond criticism. No
evidentiary burden was placed upon the second respondent to justify
her conduct. Instead of focusing
on the evidence that was adduced,
the chairperson appeared to be distracted by concentrating on
evidence which the applicant did
not have at its disposal. For
instance, the chairperson maintained that the applicant failed to
tender evidence concerning “
malicious and caprice…..”
behaviour on behalf of the second respondent. In this regard, the
evidence led by the applicant was of a circumstantial nature to
demonstrate the second respondent’s
mala fides.
In the
absence of direct evidence, the chairperson was under a duty to
determine the inferential weight of this evidence.
[37]
On a full conspectus of the weight of the evidence, the chairperson’s
findings are not justifiable but clearly wrong.
In line with the case
of
Hendricks
v Overstrand Municipality
,
[22]
I do not see any reason to remit the matter to the chairperson. The
second respondent showed no remorse and extensive evidence
was led on
the breakdown of the trust relationship. In light of the gravity of
the misconduct, dismissal is the only appropriate
sanction. As to
costs, the second respondent was defending a decision of the
chairperson which was in her favour.
[38] In the
circumstances, I make the following order:
Order
1.
The first respondent’s determination
on sanction is reviewed and set aside and replaced with a sanction of
summary dismissal.
2.
There is no order as to costs.
______________________
WJ Hutchinson
Acting
Judge of the Labour Court
Appearances:
For the applicant:
M Mphahlele
Instructed by: Chosane
Attorneys
For the second
respondent: M Magoshi from
MT Raselo Inc
[1]
Record
254
[2]
Record
255 at para. 36
[3]
Record
256 at para. 38
[4]
Record
262 at para. 45.5
[5]
Record
238 at para. 17
[6]
Notre
Dame Law Review Vol 88 Issue 3 (2-1-2013) p 1061
[7]
At 1087
[8]
Catholic
University Law Review Vol 60 Issue 1 Fall 2010 article 3
[9]
At
18
[10]
Scholarship
@ Cornell Law: A Digital Repository – Cornell Law Faculty
Publications 9-1-1987
[11]
At
1120
[12]
[2007]
12 BLLR 1097 (CC)
[13]
Harvard
Journal of Law and Technology Vol 26, no. 2 Spring 2013
[14]
At
430
[15]
Death
of Paradox
at
1061
[16]
Bernert
v ABSA Bank Ltd
2011(4)
BCLR 329 (CC) at 357
[17]
Christopher
M. Pietruszkiewicz
Economic
Substance and the Standard of Review
Alabama Law review, Vol 60, p 339, 2009 at p 360
[18]
(2017) 38 ILJ 807
[19]
At 810
[20]
South
African Law Journal (1999) at 531
[21]
At
534 and 535
[22]
[2014] 12 BLLR 1170
(LAC)