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[2019] ZALCJHB 13
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Taku v Sekhanisa and Others (JR1242/2016) [2019] ZALCJHB 13; [2019] 6 BLLR 588 (LC) (22 January 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 1242 /2016
In
the matter between:
GABRIEL
MOTHUSI
TAKU
Applicant
and
THABO
SEKHANISA
N.O
First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATIATION
AND
ARBITRATION Second
Respondent
SOUTH
AFRICAN AIRWAYS (SOC)
LTD Third
Respondent
Heard:
2 August 2018
Delivered:
22 January 2019
Summary:
Review application. Arbitrator accepted hearsay evidence and the
award is to be reviewed and set aside.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 8 May 2016 under case number GAEK
10374 -15 wherein the
First Respondent (the arbitrator) found the
Applicant’s dismissal substantively and procedurally fair and
dismissed his case.
[2]
The Applicant also seeks condonation for
the late filing of the review application. I have considered the
application for condonation
and I am satisfied that a case has been
made out for the granting of condonation.
[3]
The Third Respondent, the South African
Airways (SOC) Limited, (SAA) opposed the application.
Background facts
[4]
The Applicant commenced employment with the
SAA in December 2000 as a customer service agent. It was common cause
that the Applicant
had worked for the SAA for a period of 15 years
and that he had a clean disciplinary record. In August 2015, he was
charged with
three counts of misconduct relating to an incident which
occurred on 19 April 2015 when the Applicant allegedly solicited a
bribe
from a passenger. The Applicant was dismissed in November 2015,
after being found guilty of misconduct in a disciplinary hearing.
[5]
The employee subsequently referred an
unfair dismissal dispute to the Second Respondent, the Commission for
Conciliation, Mediation
and Arbitration (CCMA) and the matter was
arbitrated in April 2016.
The evidence adduced:
[6]
The issue to be decided by the arbitrator
was whether the employee’s dismissal was substantively and
procedurally fair. The
arbitrator found the employee’s
dismissal fair in both respects. It is evident from the grounds for
review raised by the
Applicant that there is no challenge in respect
of the finding on procedural fairness and thus it is not an issue to
be considered
by this Court.
[7]
In order to assess the arbitrator’s
findings in respect of substantive fairness and the award he issued,
it is necessary to
consider the reason the employee was dismissed for
and the evidence adduced at the arbitration proceedings. The employee
was dismissed
on three counts of misconduct, all relating to the
incident of 19 April 2015 and involving the passenger Ms Nadia
Hughes, who was
travelling on flight SA 060 to Lagos. The charges
were soliciting a bribe, corruption and bringing the name of the SAA
into disrepute.
[8]
It is evident from the transcribed record
that the Applicant’s representative raised an issue with
hearsay evidence at the
onset of the arbitration proceedings and the
SAA’s representative indicated that the passenger involved
would be called as
the main witness. On the premise that the
passenger would be called as a witness, the arbitration proceeded
with the other witnesses
called by the SAA. The arbitrator recorded
that the evidence of the witnesses would constitute hearsay evidence
if it was not to
be corroborated by the main witness.
[9]
The Applicant’s first witness, Mr
Sello Mnyamane (Sello), is the SAA’s operations manager and he
was the initiator at
the Applicant’s disciplinary enquiry. His
testimony is irrelevant to a large extent for purposes of this
application, as
he testified in respect of procedural fairness, which
is not an issue before me. Sello however explained that Ms Hughes
testified
at the disciplinary hearing after she was flown in from
Lagos and stayed in a hotel for two nights at the SAA’s cost.
[10]
Sello explained that the Applicant did not
report to him directly, but that he reported to Ms Pinkie Bembe
(Pinkie), a team leader.
The incident of 19 April 2015 was brought to
Sello’s attention by Pinkie and Ms Nxalati Mtombeni (Nxalati),
both team leaders.
After the incident was reported to him, it was
investigated and based on the outcome report, the Applicant was
charged with misconduct.
[11]
In cross-examination, Sello testified that
he never experienced problems with the Applicant and he conceded that
he was not at the
counter on 19 April 2015 when the incident
allegedly occurred. Sello had no firsthand knowledge of the incident
and he relied on
what was presented in the investigation report and
on what Pinkie and Nxalati reported to him. Initially he sat down
with the Applicant
and when he received the Applicant’s
explanation, he accepted that the Applicant had no reason to accept a
bribe. However,
Sello changed his mind after he saw an electronic
mail from Ms Hughes on 5 June 2015, as it corroborated what was said
in the investigation
report.
[12]
Sello was confronted with contradictions in
the e-mail from Ms Hughes and the statement of Nxalati. In the e-mail
Ms Hughes stated
that she went to the ticketing desk and requested to
speak to the supervisor. Ms Lindiwe was called, she heard the case
and told
Ms Hughes to send an e-mail. In Nxalati’s statement,
it was recorded that she and Pinkie wanted to find out what happened
but Ms Hughes refused to engage them as she was scared that she would
be disadvantaged. Sello was unable to explain why the passenger
would
refuse to engage when she made an allegation and there was an attempt
from the supervisors to find out what had happened.
It was put to
Sello that Ms Hughes’ refusal in the circumstances was material
as she reported an alleged attempt of bribery
and when the
institution tried to find out what had happened, there was a refusal
from the complainant to engage any further.
[13]
Sello explained that the allegation that
the Applicant requested a bribe of R 250 from Ms Hughes was
corroborated by other witnesses,
namely Ms Tholoana Masombuka,
Nxalati and Pinkie. He conceded that nobody actually heard the
Applicant asking for a bribe and that
they were only told about it by
Ms Hughes.
[14]
The SAA booked a flight and accommodation
for two days for Ms Hughes to testify at the Applicant’s
disciplinary hearing. Sello
conceded that Ms Hughes stayed on much
longer after the hearing as she indicated that she had other business
to attend to in Johannesburg.
[15]
Ms Masombuka, a ticket sales agent,
testified that her job entails selling tickets, upgrading of tickets
and excess baggage charges.
Ms Masombuka referred to the check in
system that is used by the agents at the check in counter when they
check in passengers and
it shows the number of bags checked in by a
passenger. In the event that a passenger has excess luggage, the
passenger would be
given a slip at the check in counter and would go
to the ticket sales offices with the slip stating the number of bags
he/she has
as well as the number of excess luggage the passenger has
to pay for.
[16]
Ms Masombuka testified that on an economy
class ticket between South Africa and Lagos, a passenger is allowed
three pieces of luggage,
up to 23 kg per piece. Ms Hughes was
travelling to Lagos with her child so they were allowed six pieces of
luggage within the prescribed
allowance. It is evident from the check
in system that Ms Hughes had 8 bags with a total of 167 kg. She had
two bags more than
what she was allowed and the check in agent had to
write a slip stating how many bags she had in excess and what amount
she had
to pay.
[17]
The overweight charge is calculated based
on the information written on the slip.
[18]
On 19 April 2015, the Applicant was the
check in agent that assisted Ms Hughes and he wrote the slip in
respect of the excess luggage.
On the said slip the Applicant
indicated that Ms Hughes had seven pieces of luggage with a total of
149 kg and one piece of luggage
in excess, meaning that Ms Hughes had
to pay for one piece of excess luggage.
[19]
Ms Masombuka testified that when Ms Hughes
came to her, she told her that in fact she had two pieces of luggage
to pay for, notwithstanding
the fact that the slip indicated only one
piece of excess luggage. Ms Masombuka told Ms Hughes that she could
not charge her for
two pieces of luggage if the slip indicated one
piece and she requested the passenger to go back to the check in
counter to get
a slip that indicated two pieces of luggage. Ms Hughes
refused and said she did not want to interact again with the
Applicant as
her interaction was not pleasant because he asked her to
pay for one piece of excess luggage and to put R 200 or R 250 in her
passport
when she brought it back to him.
[20]
After this was reported to her, Ms
Masombuka called Nxalati, who was the closest team leader on duty on
the day to deal with Ms
Hughes. Nxalati addressed the passenger and
Ms Masombuka could hear the conversation. Ms Hughes conveyed her
unhappiness with SAA
staff members and more particularly the
Applicant. Ms Hughes was not happy about the fact that the Applicant
asked her to pay for
only one piece of excess luggage when she knew
she had two pieces of excess luggage and was prepared to pay for it.
[21]
Nxalati and Pinkie wanted to address the
matter immediately with the Applicant, but Ms Hughes refused as she
did not want to have
any further interactions with him and it was
suggested that Ms Hughes not go back to the Applicant and that she
should rather submit
a complaint with the customer care department.
[22]
Nxalati went to the check in counter and
when she came back, she told Ms Masombuka that she could charge the
passenger for two extra
pieces of luggage. In the end Ms Hughes was
charged for two pieces of excess luggage and she paid R 700 per
piece.
[23]
Nxalati testified that she is a team leader
and that on 19 April 2015, Ms Masombuka at ticket sales called her
and informed her
that there was a passenger who wanted to talk to her
about an incident that happened at the check in counter. Nxalati went
to the
ticket sales office and she met Ms Hughes, who told her that
she had eight pieces of luggage to check in and that the customer
services agent who assisted her, said he would charge her for only
one piece of excess luggage and that, when she came back from
the
ticket sales, she must put money in her passport and give it to him.
Nxalati asked the passenger which counter it was and Ms
Hughes
indicated counter B55, which was manned by the Applicant. Nxalati
called Pinkie as she was the team leader to whom the Applicant
reported to directly.
[24]
Ms Hughes told Pinkie what had happened and
Nxalati and Pinkie decided to go back to the check in counter to
confront the Applicant,
but the customer refused to go back to him
and to confront him, as she feared that she would be victimised. She
feared that the
Applicant would not load her bags or would arrange
for someone to open or damage her bags.
[25]
Nxalati explained that a boarding pass
could not be issued until the passenger has paid the overweight
charges for any excess luggage.
Once it is paid for, the passenger
would go back to the check in counter and give the receipt to the
check in agent, who would
complete the check in process and issue the
boarding pass. Ms Hughes went back to the Applicant to show him the
receipt and to
get her boarding pass, but she refused to go back for
the purpose of dealing with the bribe issue. Nxalati explained that
she could
not and did not force the passenger to deal with the bribe
issue at the counter as she wanted to protect the passenger as well
as the image of the SAA, as the Applicant acted on behalf of the SAA.
[26]
Nxalati testified that the Applicant issued
a slip indicating that Ms Hughes had seven bags, when that was not
the case. When she
wanted to address the issue, the passenger was not
happy to do it and she asked that she be allowed to travel safely and
to receive
all her bags on the other side and indicated that she
would lodge a formal complaint once she got settled in Lagos.
[27]
Nxalati explained that the slip issued by
the Applicant showed that Ms Hughes had to pay for one piece of
excess luggage, which
was R 700 instead of the R 1 400 that was
payable for the two pieces of luggage and had the passenger not
raised the issue, she
would have paid for one piece only.
[28]
In cross-examination, it was put to Nxalati
that the Applicant’s evidence would be that Ms Hughes was
unsure whether she had
enough money to pay for the extra piece of
luggage and she opted for it to be excluded on the slip, so that when
she did not have
enough money to pay for it, she would leave the one
piece of luggage behind. Ms Hughes also wanted the Applicant to
accompany her
to the ticket sales office. Nxalati had no
knowledge of this.
[29]
Pinkie testified that she is a team leader
at O R Tambo International Airport and the Applicant reported
directly to her. On 19
April 2015 Nxalati called her to be present
while a passenger was relating a complaint in respect of the
Applicant, as he reported
to her. The complaint was that the
Applicant tried to solicit a bribe. The passenger said that she knew
that she had two pieces
of luggage in excess and that she would be
paying for those, but when she checked in, the Applicant wrote on the
receipt that she
had a total of seven pieces of luggage and that she
had to pay for one piece. Ms Hughes wanted to pay for the two pieces
of luggage
and at the time, the luggage was still at the check in
counter.
[30]
Nxalati checked the checking system to see
how many bags Ms Hughes had checked in and she confirmed that she
had a total of
eight pieces of luggage and Ms Masombuka was ordered
to make sure that Ms Hughes pays for two pieces of excess luggage,
and not
only one as per the slip issued by the Applicant.
[31]
Pinkie testified that after Ms Hughes told
her about the incident, she advised Ms Hughes that she could call the
Applicant and tried
to find out what had happened in her presence. Ms
Hughes refused as she did not want anything to do with the Applicant,
she did
not trust the SAA staff and she was scared that even Pinkie
and Nxalati were working with the Applicant, she conveyed that it was
not her first experience where a SAA employee tried to solicit a
bribe and she was scared that her luggage would not make it to
Lagos.
[32]
Pinkie explained that on the day of the
incident, she had an informal discussion with the Applicant, telling
him that Ms Hughes
complained about him but that she was not prepared
to deal with the issue in the Applicant’s presence and that she
would
lay a formal complaint. Pinkie indicated that they would wait
for the final report, once the formal complaint is lodged, and take
it from there. Ms Hughes sent an e-mail on 20 April 2015 complaining
about the incident. The Applicant denied that the incident
had
happened but he has not given Pinkie his version of events.
[33]
Pinkie testified that Ms Hughes made it
clear that she knew that she had two bags in excess and as she is a
frequent flyer, she
knew exactly how much she was supposed to pay and
that she had known that at the time she left home. Ms Hughes
never indicated
that she was short of money and unable to pay for the
excess luggage.
[34]
In cross-examination Pinkie explained that
the excess slip issued by the Applicant corroborated what Ms Hughes
had said in the sense
that she had checked in eight pieces of
luggage, when she was allowed six pieces in total, and the excess
slip reflected seven
pieces of luggage whilst the system showed that
Ms Hughes checked in eight pieces of luggage. The excess slip has to
be a true
reflection and had to show that Ms Hughes had to pay for
the extra two pieces of luggage.
[35]
It was put to Pinkie that the Applicant’s
version is that Ms Hughes asked the Applicant to leave out the one
piece of luggage
as she was not sure whether she would have enough
money to pay for it and in the event that she did not have enough
money, she
would have left the one bag behind.
[36]
The SAA called not further witnesses and
closed its case.
[37]
The Applicant testified that he was
employed by the SAA for a period of 15 years and on 19 April 2015, he
was working at the check
in counters. He explained that it was a
hectic day as some staff members did not report for duty and the
flight to Australia was
cancelled, which caused long queues and
passengers being sent to different counters. When Ms Hughes
approached him, she said she
hoped that he would not send her away
and that as she was not on the flight to Australia, the Applicant
could assist her. He testified
that Ms Hughes said to him that he
should charge her excess for two bags, as she previously paid before
she did the check in. The
Applicant explained to Ms Hughes that it
did not work like that and that she could not pay prior to the check
in process. He started
the check in process and Ms Hughes asked him
how much was the overweight amount and he told her that it was R 700
per piece, upon
which she indicated that the previous time she paid R
350 per piece of excess luggage and the Applicant informed her that
the rate
had changed. Ms Hughes indicated that she had bought clothes
and groceries and she was not sure that she had enough money to pay
for the excess luggage. She said that she had R 700 as she had
previously paid R 700 for two pieces of luggage.
[38]
The Applicant explained that he had
dispatched six pieces of luggage to be loaded, as Ms Hughes was
entitled to that, and two pieces
of luggage remained at the counter.
He gave Ms Hughes a baggage slip for seven pieces of luggage,
indicating that she should be
charged for one piece because she was
not sure if she had enough money to pay for both. Ms Hughes indicated
that she had come with
somebody who would go back with one piece of
luggage in the event that she could not pay for it.
[39]
The Applicant told Ms Hughes that she
should explain to the person at the ticket sales office that she
wanted to pay for two pieces
of luggage. Ms Hughes asked him to
accompany her to the ticket sales office, but he told her that it was
not possible as there
was a queue at his counter and he could not
leave the passengers waiting. She left but came back and said that
the queue at the
ticket sales office was too long and that she was
travelling with a child and scared that she would miss her flight and
she asked
the Applicant to send all the pieces of luggage through to
be loaded. He responded that he would do that once she can show him
the receipt of what was paid for. Ms Hughes told the Applicant that
he ‘had an attitude’.
[40]
After approximately 45 minutes, Ms Hughes
returned and she threw the receipt on top of his counter whilst he
was busy with another
passenger. The Applicant gave Ms Hughes her
passport and boarding pass and after he had checked for how many
pieces of luggage
did she pay, and when he saw that she paid for the
two extra pieces, all her luggage was loaded.
[41]
The Applicant disputed that anybody
approached him about the incident on the same day or thereafter and
his version was that he
only became aware of the incident two days
before he received the charge sheet in August 2015 when he was called
to Pinkie’s
office to read the e-mail from Ms Hughes.
[42]
The Applicant denied that he had asked a
bribe from Ms Hughes or that he participated in any act of
corruption.
[43]
In cross-examination, the Applicant was
asked why he wrote one piece of luggage on the slip when the
passenger had indicated that
she wanted to pay for two pieces of
excess luggage. The Applicant explained that the passenger wanted to
pay for two pieces of
luggage at R 350 per piece and indicated that
she did not have enough money to pay for two pieces at R 700 per
piece. It was the
SAA’s case that the Applicant’s version
was improbable as Ms Hughes paid R 1 400 for two pieces of luggage,
which is
contradicting the Applicant’s version that she only
had R 700 to pay and could not pay more than that. The Applicant
disputed
that it was a contradiction and he explained that Ms Hughes
said to him that she only had R 700 in cash and that she was not sure
if she had enough credit available on her card, thus he advised her
to explain to the ticket sales office and see if she could
pay for
all her excess luggage. If the passenger was only able to pay for one
piece of luggage, the other piece of luggage would
have been left
behind.
Analysis of the
arbitrator’s findings and the grounds for review
[44]
The arbitrator was to determine the
substantive and procedural fairness of the Applicant’s
dismissal. In respect of substantive
fairness, the Applicant’s
case was that he was not guilty of the misconduct he was dismissed
for and in respect of procedural
fairness, his challenge was the fact
that he was not afforded the right to be represented at his
disciplinary hearing and the fact
that he was not afforded an
opportunity to plead in mitigation.
[45]
In his analysis of the evidence, the
arbitrator recorded that regarding the complaint from Ms Hughes, the
SAA adduced the evidence
of Ms Masombuka, Nxalati and Pinkie. Ms
Hughes did not testify and as a result there was no primary or
first-hand testimony of
what had transpired at the check-in counter,
except what the Applicant said had happened and what had transpired.
The SAA’s
evidence was bolstered with the baggage slip issued
by the Applicant.
[46]
The arbitrator accepted that the evidence
of the aforesaid SAA witnesses amounted to hearsay evidence because
the witnesses only
testified about what Ms Hughes told them. The
arbitrator correctly stated that for hearsay evidence to carry weight
and to be admitted
as such, it has to be corroborated by the
testimony of the primary witness. The SAA did not adduce the evidence
of the passenger
to corroborate the evidence of its witnesses.
[47]
Instead of dealing with the issue of
hearsay evidence and considering the weight that could be attached to
it, the arbitrator simply
jumped to a point where he held that,
notwithstanding the fact that the SAA’s evidence was nothing
more than hearsay evidence,
he should consider the evidence in its
totality in order to arrive at an appropriate decision.
[48]
The arbitrator briefly referred to the
Applicant’s evidence and found that, ‘in view of the
above-mentioned factors’,
the Applicant’s version was
highly improbable whilst the SAA’s version was probable,
coherent and unambiguous. This
is so because the SAA’s
witnesses corroborated each other’s testimony and they gave
clear, simple and coherent evidence.
The witnesses had no motive to
fabricate something against the Applicant and the arbitrator found
that there was clear and convincing
evidence that the Applicant was
guilty of the misconduct he was dismissed for and therefore, the
sanction of dismissal was warranted.
[49]
The arbitrator found that the SAA proved,
on a balance of probabilities, that a fair reason existed to justify
the Applicant’s
dismissal.
[50]
The central event that led to the
Applicant’s dismissal, was the conversation that took place
between the Applicant and Ms
Hughes at the check in counter on 19
April 2015. The veracity and probability of the evidence in respect
of the said event, depended
upon the credibility of the Applicant and
Ms Hughes respectively.
[51]
The gist of the Applicant’s complaint
and ground for review is the manner in which the arbitrator dealt
with the evidence
placed before him, and more specifically, the
hearsay evidence. The question is whether the arbitrator committed a
reviewable irregularity
by placing reliance upon hearsay evidence in
the manner that he did.
[52]
It is evident from the transcribed record
that the arbitrator was made aware from the onset that the evidence
of the SAA witnesses
was hearsay evidence and that an issue was taken
with such evidence, which was provisionally allowed on the basis and
understanding
that the primary witness, Ms Hughes, would testify to
corroborate the SAA’s version of events.
[53]
Hearsay
evidence is defined
[1]
as
evidence, whether oral or in writing, the probative value of which
depends on the credibility of any person other than the person
giving
such evidence.
[54]
In
terms of
section
3(1) of the
Law
of Evidence Amendment Act
[2]
hearsay evidence shall not be admitted as evidence unless the parties
agreed to the admission thereof as evidence, or the person
upon whose
credibility the probative value of such evidence depends, testifies
at the proceedings or where the evidence is admitted
in the interest
of justice, having regard to seven specified factors.
[55]
In casu,
there
was no agreement between the parties that hearsay evidence be
admitted.
[56]
Ms Hughes, the primary witness, never
testified in the arbitration proceedings, thus, apart from the
Applicant, there were no direct
witnesses to the conversation between
the Applicant and Ms Hughes.
[57]
The arbitrator found SAA’s evidence
to be hearsay and held that for the hearsay evidence to carry weight
and be admitted as
such, it had to be corroborated by the testimony
of the primary witness. This finding is indeed correct and in
accordance with
the principles applicable to hearsay evidence.
[58]
Section 3(1)(3) of the
Law
of Evidence Amendment Act provides that hearsay evidence may be
provisionally admitted if the court is informed that the person
upon
whose credibility the probative value of such evidence depends, will
testify later in the proceedings. Provided that if such
person does
not later testify in the proceedings, the hearsay evidence should be
left out of account, unless the hearsay evidence
is admitted by
agreement or is admitted in terms of section 3(1)(c) in the interest
of justice.
[59]
However, after finding the SAA’s
evidence to be hearsay, the arbitrator found that the SAA proved on a
balance of probabilities
that the Applicant’s dismissal was
fair. On the strength of nothing more than hearsay evidence, the
arbitrator found that
the Applicant’s version was highly
improbable and the SAA’s version to be probable, coherent and
unambiguous.
[60]
Effectively the arbitrator found that what
the SAA’s witnesses were told by Ms Hughes and what constituted
nothing more than
hearsay evidence, was more probable and coherent
than the direct evidence presented by the Applicant, who was present
and involved
with Ms Hughes at the check in counter and whose version
of events as to what transpired between him and Ms Hughes at the
check
in counter could not and was not disputed.
[61]
The Applicant’s case is that he was
denied a fair hearing as the arbitrator took into consideration Ms
Hughes written statement,
notwithstanding the fact that she did not
testify. The Applicant submitted that there was no way that he could
have had a fair
hearing as his evidence would have been improbable,
regardless of what he tried to present at the arbitration hearing.
[62]
There was, in the absence of Ms Hughes as a
witness, no evidence at all to support the SAA’s case that the
Applicant had solicited
a bribe or was involved in corruption. Not a
single witness of the SAA could testify to this issue and their
versions were limited
to what they were told by Ms Hughes. How the
arbitrator could make the finding that the SAA proved, on a balance
of probabilities,
that a fair reason existed to justify the
Applicant’s dismissal, is astonishing.
[63]
The only evidence in respect of the events
at the check in counter, is the Applicant’s evidence and his
version in that regard
remained unchallenged.
[64]
The arbitrator completely ignored the fact
that Ms Hughes complained about the Applicant, but subsequently
refused to confront the
issue with the relevant supervisors as she
did not want to interact with the Applicant again, yet after paying
for her excess luggage,
Ms Hughes returned to the Applicant to
complete her check in procedure.
[65]
It is evident from the transcript that Ms
Hughes in her e-mail complaint referred to one ‘Lindiwe’
and nobody who testified
at the arbitration, knew who Lindiwe was.
The arbitrator made it clear during the proceedings that Ms Hughes
would testify to explain
who Lindiwe was and to clear other
discrepancies which were raised during the proceedings. This never
happened.
[66]
There is merit in the Applicant’s
complaint that the arbitrator had failed to properly asses the
evidence placed before him
and to reasonably determine the issues.
[67]
The arbitrator made no assessment of the
probative value of the evidence presented and he attached no weight
to the Applicant’s
direct evidence and made no finding on what
weight could be attached to the SAA’s hearsay evidence.
Notwithstanding these
obvious misdirections and failures, the
arbitrator accepted the SAA’s version and rejected the
Applicant’s version.
[68]
In opposing this application, the SAA
submitted that the Applicant laboured under the misapprehension that
evidence should be excluded
simply because it is hearsay. SAA’s
case is that the arbitrator identified the evidence as hearsay and
formed the view that
it would be in the interest of justice to admit
such evidence. This is so because the proceedings arose in a labour
context and
the nature of the proceedings required the arbitrator to
eschew formality, the nature of the evidence was essentially Ms
Hughes
e-mail complaint, which was direct evidence, corroborated by
the SAA’s other witnesses, that the probative value of the
evidence
was high as it directly implicated the Applicant in
corruption and that there were strong reasons why the evidence was
not tendered
by Ms Hughes. Furthermore, the Applicant has not alleged
that he suffered prejudice and he suffered minimal prejudice from not
being afforded an opportunity to cross-examine Ms Hughes. In fact,
the Applicant failed to take advantage of several opportunities
to
interrogate Ms Hughes’ statement and he had the opportunity to
cross-examine her at the disciplinary hearing.
[69]
It is evident that the SAA considered the
provisions of section 3(1)(c) of the
Law of
Evidence Amendment Act and made every effort to justify the
arbitrator’s acceptance of hearsay evidence in view of
the
provisions of the said section.
[70]
The difficulty with the SAA’s
submission is obvious. Firstly, it was indicated at the commencement
of the arbitration that
there was an objection to hearsay evidence,
that it was made clear that Ms Hughes would testify and that the
evidence of the other
witnesses would be allowed provisionally and in
anticipation of Ms Hughes’ testimony. When she did not testify,
the hearsay
evidence should be left out of account, unless the
hearsay evidence was admitted by agreement, which was not the case,
or was admitted
in terms of section 3(1)(c) in the interest of
justice.
[71]
The
SAA’s argument is that the hearsay evidence was admitted in the
interest of justice. The difficulty however is that before
hearsay
evidence could be admitted as evidence because the interests of
justice demands its admission, all the factors listed in
section
3(1)(c) must be assessed according to the circumstances of the case.
It is the combined assessment of all the factors that
will result in
a proper application of section 3(1)(c)
[3]
.
It is evident from the arbitration award that the arbitrator had no
regard to the provisions of the Law of Evidence Amendment
Act, let
alone an assessment of the factors listed in section 3(1)(c) and that
the interest of justice was not a justification
for accepting hearsay
evidence, as submitted by the SAA. The arbitrator accepted hearsay
evidence because he was of the view that
he had to consider the
totality of the evidence in order to arrive at an appropriate
decision.
[72]
Secondly, the fact that the Applicant had
the opportunity to cross-examine Ms Hughes at the disciplinary
hearing is of no moment
because the arbitration was a hearing
de
novo.
This difficulty could have been
overcome if the transcript of the disciplinary hearing was presented
and the
parties had agreed that the entire
transcript should be regarded as evidence before the arbitrator, in
which event the entire record
could be considered and accepted as if
it were evidence that was adduced before the arbitrator. The evidence
given at the disciplinary
hearing could then be regarded as evidence
at the arbitration. This is not what happened
in
casu,
and the SAA’s reliance on
the fact that the Applicant had the opportunity to cross-examine Ms
Hughes at the disciplinary hearing,
is misplaced.
The test on review
[73]
I
have to deal with the grounds for review within the context of the
test this Court must apply in deciding whether the arbitrator's
decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[74]
I must ascertain whether the arbitrator
considered the principal issue before him, evaluated the facts
presented and came to a conclusion
that is reasonable.
Viewed
cumulatively, the arbitrator’s failure to apply his mind to the
issues and his acceptance of hearsay evidence in the
manner he did,
were material to the determination of the dispute and it distorted
the ultimate decision made by the arbitrator.
It cannot therefore be
said that the arbitrator’s decision was one that a reasonable
arbitrator could have reached on the
full conspectus of all the facts
before him.
[75]
Based on the above, I am persuaded that
this award cannot stand and should be interfered with on review.
[76]
The Applicant seeks for the arbitration
award to be reviewed and set aside and to be substituted with an
order that his dismissal
was unfair, alternatively, the Applicant
seeks an order remitting the matter for a hearing
de
novo.
[77]
In the event the award is set aside on
review, this Court has a discretion whether or not to finally
determine the matter.
[78]
In casu,
the
Applicant’s complaint is that he was not afforded a fair
hearing. Where the complaint is that a party was deprived of
a fair
hearing, it is not appropriate to substitute the award, but rather to
remit the matter for a hearing
de novo.
I am of the view that it would be in
the best interest of the parties and of justice to have the matter
properly ventilated and
decided
de novo
.
[79]
This Court has a wide discretion in respect
of costs and in my view this is a matter where the interest of
justice will be best
served by making no order as to cost.
[80]
In the premises, I make the following
order:
Order
1.
The late filing of the application for
review is condoned;
2.
The
arbitration
award issued on 8 May 2016 under case number GAEK10374-15
is
reviewed and set aside;
3.
The dispute is remitted to the Second
Respondent for a hearing
de novo
before
an arbitrator other than the First Respondent;
4.
There is no order as to costs.
______________
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant: Ms T
Makgamatha of M M Mitti Inc Attorneys
For theThird Respondent:
Advocate M Sibanda
Instructed by: Mothle,
Jooma & Sabdia Inc Attorneys
[1]
Section
3(4)
of the
Law of Evidence Amendment Act 45 of 1988
.
[2]
Act
45 of 1988.
[3]
The
Law of Evidence in South Africa, Adrian Bellengere et al, Oxford
University Press Southern Africa, Fourth edition, page 297
–
300.
[4]
2007
28 ILJ 2405 (CC) at para 110.