Dlamini v Tshwane University of Technology and Others (JR1909/12) [2019] ZALCJHB 104 (15 May 2019)

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[2019] ZALCJHB 104
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Dlamini v Tshwane University of Technology and Others (JR1909/12) [2019] ZALCJHB 104 (15 May 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
No:  JR1909/12
In
the matter between:
VINCENT
DLAMINI

Applicant
and
TSHWANE
UNIVERSITY OF TECHNOLOGY                          First

Respondent
TOKISO
DISPUTE SETTLEMENT (PTY) LTD
Second
Respondent
KENNETH
MOSIME N.O

Third

Respondent
Heard:
13 January 2015
Delivered:
15 May 2019
Summary: Pre-dismissal
arbitration in terms of the Arbitration Act. Strict test on review
applies - Preparation of Court file. Court
file to be properly
prepared and paginated. The onus to do so rests on the Applicant.
Bias - alleged as a
consequence of favours done for the Arbitrator during the course of
the arbitration which were known to the
Applicant – No
objection raised at the time and misconduct not sustainable on this
ground.
Bias - alleged due to
prior professional relationship through a building exercise conducted
by CCMA and being a panelist together
with an alleged employee of the
First Respondent – Applicant failing to prove the existence of
untoward relationships –
even if proved this did not constitute
misconduct in itself and an arbitrator had no obligation to
mero
motu
disclose same – parties should make appropriate
enquiries prior to the appointment of an arbitrator in a private
arbitration
as to the independence and suitability of an arbitrator
Review – private
arbitration award based on a nebulous relationship raised
post
facto
the award could lead to an abuse of Court – this does
not detract from an arbitrator being required to disclose a
relationship
if there could be an apprehension of bias.
Misconduct and/or
gross irregularity - alleged incorrect factual findings –
material errors not made by the Arbitrator –
errors if proven
must be so material as to show partiality or evidence a misconception
of the arbitrator’s duties to sustain
a review in terms of the
Arbitration Act – voluntary nature of a private arbitration
means a stricter test would apply
Misconduct - alleged
that the Arbitrator permitted numerous procedural irregularities
which prejudiced the Applicant by not being
allowed a fair hearing -
procedural irregularities considered and rejected
Probabilities -
accepting the version of the First Respondent is not unfounded - the
First Respondent had made out a
prima facie
case in the
arbitration - obligation shifts to the Applicant to present evidence
to refute the First Respondent's version.
Misconduct - the
Arbitrator engaged in mediation in which he had interacted directly
with a representative of the First Respondent
is rejected and out of
hand.
Errors
- submission that numerous errors can sustain a conclusion of
misconduct considered but not upheld as no material errors
were made.
JUDGMENT
HERTOG,
AJ
Introduction
[1]
This
is an application for the review and setting aside of a pre-dismissal
arbitration award (the award)
[1]
of the Third Respondent (the Arbitrator), who was appointed to
conduct the proceedings in accordance with the Arbitration Act
[2]
.
The application concerns a lengthy arbitration, held over the course
of eleven days, in which the employer (the First Respondent)
and the
employee (the Applicant) were legally represented.
[2]
The Applicant sought
condonation in respect of his non-compliance with the prescribed time
periods for the filing of the record
of the proceedings and delivery
of the supplementary affidavit. Pursuant to an agreement between the
Applicant and the First Respondent
in this regard, I ruled that the
failure to comply with the time periods as prescribed in the Labour
Court Rules is condoned. It
was appropriate to do so not only in
light of the agreement between the parties but also in view of the
voluminous record in this
matter.
[3]
By way of a Notice of
Amendment the Applicant amended his Notice of Motion so as to
introduce what he termed a claim (“Claim
A”). Claim A
sought a declarator that the Arbitration Agreement entered into
between the Applicant and the First Respondent
was validly cancelled
by the Applicant therefore the award of the Arbitrator was to be set
aside. The basis for Claim A is the
Applicant’s view that there
was a duty on the First Respondent to disclose that it had a previous
relationship with the Arbitrator
and that its failure to disclose
this was deliberate. After the First Respondent raised three
points
in limine
Claim A was abandoned. The Applicant therefore proceeded only with
the alternative Claim B, in terms of which he seeks the setting
aside
of the arbitration award and the referral of the matter back to the
Second Respondent for determination before an arbitrator
other than
the Arbitrator, and costs.
[4]
In argument before me
it was submitted that the Arbitrator had associated himself with the
opposition to the application by providing
the First Respondent with
a confirmatory affidavit and therefore costs should be awarded
against the Arbitrator.
[5]
Before
proceeding I express my displeasure with the manner in which the
Court file was indexed, paginated and assembled. While I
appreciate
the difficulty occasioned in a matter such as this, where there is
voluminous documentation and a lengthy transcript;
it is imperative
for an Applicant, on which this onus rests,
[3]
to
ensure that the arbitration record put before the Court and the
pleadings are properly prepared. Difficulty has been occasioned
in
processing this matter as a consequence of numerous shortfalls by the
Applicant's representatives in this respect. By way of
example: some
pages were out of sequence, there were blank pages in the transcript,
repeated pages, some pages in the transcript
were partly legible as
only portion of those pages had been photocopied and some of the
transcript is missing. As a consequence,
it has been necessary on
occasion to rely on the Arbitrator's recordal of the essence of the
testimony of certain witnesses, which
recordal was not challenged by
the Applicant. For instance, the evidence of Dr Motlatla appears over
some thirty pages, of which
one page was blank and another illegible
as a consequence of only a portion of the page being copied.
[6]
Notwithstanding
that it appears from the pleadings that the First Respondent's
attorneys had at time of filing the Supplementary
Affidavit informed
the Applicant that he had filed incomplete and incorrect bundles
under his Rule 7A(6) Notice and that proper
and complete bundles had
thereafter been formulated between the two sets of attorneys
[4]
.
Despite this collaboration, while laudable, the record of the
proceedings nonetheless has the shortfalls I have mentioned. This

collaboration was to ensure that there is a proper record before the
Court,  does not detract from the obligation on the Applicant
to
ensure that the Court file is properly prepared.
The
allegations of misconduct against the Applicant
[7]
The Applicant was
initially called to an internal disciplinary enquiry but it was
thereafter agreed to between the Applicant and
the First Respondent
that the matter would be dealt with as a pre-dismissal arbitration in
terms of the Arbitration Act.
[8]
In the arbitration,
the Applicant was required to answer to the following allegations:
1.
“
Gross
Negligence - On or about 15 and 16 August 2011 you allowed monitoring
equipment to be installed on the premises of Tshwane
University of
Technology (TUT). Your actions have exposed TUT to risk in that the
right to privacy of certain individuals has been
unfairly infringed
upon;
2.
Gross
Dishonesty - On or about 4 August 2011 you requested access to the
TUT e-mail system, from the Director: ICT Services, under
false
pretence that your department was investigating a case and the
information was required for evidentiary reasons, when in
fact your
intention was for D&K Management Consultants to gain access to
information pertaining to a personal and unsanctioned
investigation
on behalf of Prof Molefe;
3.
Unlawful
Conduct - On or about 15 and 16 August 2011 you allowed monitoring
equipment to be installed on the premises of Tshwane
University of
Technology (TUT). Your actions have exposed TUT and yourself to
criminal liability in that the right to privacy of
certain
individuals has been unfairly infringed upon;
4.
Non-compliance
with TUT Policy-You did not comply with TUT's Policy on Tenders and
Policy on Procurement of Goods and Services,
read with the Policy on
Unauthorised Purchases, regarding the services and goods obtained
from D&K Management Consultants.
Refer to the Tender Policy and
the Policy on Procurement of Goods and Services, 2004, read with the
EMC decision of 31 January
2011, circular 03/2011;
5.
Conspiracy to
bring the reputation of TUT into Disrepute-You, Prof Molefe and Mr M
Dilotsotlhe conspired to bring TUT's good reputation
and standing
into disrepute through your actions in connection with the above
charges;
6.
Actions that
caused a total break in the trust relationship between employer and
employee-Your actions as described in the above
five charges, whether
found guilty in part or as a whole, caused a total break in trust
between TUT and yourself as a senior employee"
[9]
The Arbitrator found
the Applicant guilty on all the charges but 5 on the basis that no
evidence had been led to substantiate that
allegation, and as a
result the Applicant was dismissed.
The
Disciplinary Arbitration Agreement
[10]
In
the arbitration agreement
[5]
concluded between the Applicant and the First Respondent on 1
February 2012 to regulate the pre-dismissal arbitration, the
following
terms of reference were agreed:
“
The
arbitrator must determine whether there are fair reasons to
discipline the employee. The arbitrator must first hear the evidence

and arguments of the employer and the employee and then determine
whether the employee is guilty of the disciplinary charges. If
the
arbitrator makes a finding of guilt, he or she must hear argument and
consider any evidence in mitigation or aggravation before
determining
the appropriate sanction. Evidence regarding mitigation and
aggravation will be presented by the parties during evidence
on the
merits.”
[6]
[11]
As
to the powers of the Arbitrator it was agreed, amongst other aspects,
that he would have the power “
to
make an appropriate award with due regard to the facts of the case,
the law and the disciplinary procedures of the employer
”
and furthermore “
to
decide upon the procedure that will be used at the arbitration
”.
[7]
[12]
It
was specifically recorded that the parties had agreed to the
appointment of the Third Respondent as the Arbitrator and that the

Arbitrator’s decision would be final and binding, subject to a
party’s right to review the award before this Court
in terms of
the Arbitration Act.
[8]
Furthermore, legal representation was agreed.
[13]
In
the
process
leading
up to and in the conclusion of the arbitration
agreement
the
Applicant and the First Respondent were legally represented.
Background
[14]
The facts in this
matter appear from the award of the Arbitrator. I only outline the
factual framework that is important below:
[15]
The
Applicant
was
employed
as the Chief Internal Auditor of the First Respondent, a position to
which
he
was appointed with effect from 1 October 2007.
[9]
In this position he reported to the Audit Committee and the Vice
Chancellor. The Job Profile of the Applicant states that “
The
internal audit directorate derives its authority from University
Council through the Audit Committee, it is an autonomous unit
within
the Vice Chancellor's Office.
"
[10]
This is pointed out by the Arbitrator in his award. The Job Profile
stipulates as well that work "is conducted independently
within
established university policies and procedures and within
professional guidelines for internal auditing and financial and

management accounting."
[11]
[16]
In
terms of the First Respondent's Internal Audit Activity Charter, the
Applicant reported "
functionally
to the Audit Committee and administratively to the
Vice-Chancellor…
"
[12]
and was accountable to Management and the Audit Committee.
[13]
This Charter specifies that the Applicant had "…
full
and free access to the Audit Committee
"
[14]
and that the "
mission
of the internal audit activity is to provide independent, objective
assurance and consulting services designed to add value
and improve
the organisation's operations. It helps the organisation accomplish
its objectives by bringing a systematic, disciplined
approach to
evaluate and improve the effectiveness of risk management, control
and governance processes
".
[15]
Notably, the Internal Audit Activity Charter pertinently states that
Internal Audit is not authorised to perform any operational
duties
for the University or its affiliates nor is it to initiate or approve
accounting transactions external to the internal auditing
activity,
amongst further prohibitions. These prohibited functions are
reiterated in the First Respondent's Internal Audit Function

Charter
[16]
. The Internal
Audit Function Charter also stipulates that the Applicant is to be
accountable to the Audit Committee
[17]
and that the Applicant "
reports
functionally to the Audit Committee and administratively to the
VC…
"
[18]
This last-mentioned Charter specifies that it is one of the
responsibilities of the Applicant to "
conduct
investigations of suspected fraudulent activities and other
significant misconduct within the Institution, and notify EMC
[being
the Executive Management Committee] and the Audit Committee of the
results
”
[19]
.
[17]
In May 2010,
following the termination of the contract of Prof EM Tyobeka, the
First Respondent’s Vice-Chancellor at the time,
Prof SJ Molefe
(“Prof Molefe”) was appointed as Acting Vice Chancellor.
Notwithstanding that Prof Molefe was a candidate
for the position of
Vice Chancellor, he was tasked with the recruitment process for the
position of Vice Chancellor.
[18]
As a number of
queries had been raised about the qualifications of Prof Molefe and
the status of an institution where he had apparently
obtained some
qualifications, a task team (the task team) was appointed by the
First Respondent’s Council (“the Council”)
to
conduct investigations into these concerns.
[19]
On
21 June 2011 Prof JD Volmink, who was the Chairperson of the task
team, reported to the Council that it was difficult to establish
if
one of the institutions from which Prof Molefe had apparently
obtained qualifications existed, as it seemed to have disappeared.
As
members of the task team were waiting for information, the
Chairperson of the Council, Dr MDC Motlatla, decided that the Council

could not take the matter further. A disagreement occurred at the
Council meeting between members of the task team regarding the

management style of the Chairperson of the task team. The consequence
of this was that Prof Volmink left the meeting.
[20]
Although the recordal of this Council meeting is disputed by the
Applicant, the purported minute of the meeting held on 21 June
2011
reflects that it was resolved that the task team would be given two
weeks to complete its report and that Mr OM Mathafa was
to be
appointed to the task team to replace Prof Volmink.
[20]
It
was further resolved at the Council meeting that a further
investigation was to take place into the leaking of information to

the media. On this aspect, the draft minute of the Council meeting of
21 June 2011 records that the Chairperson of the Council
was to
co-opt Mr N Skhosana so that “
the
two [could] gradually deal with leakage of information to the media
as those who leak information should be disciplined.
”
[21]
The accuracy of the draft minute was contested at arbitration as it
had not been approved by that time, due to the fact that there
had
not been a subsequent meeting of the Council and furthermore, there
were various versions as to what occurred at the meeting
of 21 June
2011.
It
was, however, common cause that at the Council meeting the issue of
media leaks had been discussed and a resolution was taken
to address
this concern.
[21]
It was also common
cause that the media leakages related to matters concerning Prof
Molefe, as well as various other issues.
[22]
The Applicant was not a
participant in the meeting of 21 June 2011 but it is his case that
Prof Molefe was appointed by the Council
to be part of the task team
to deal with the leaking of information to the media. A number of
witnesses called by the First Respondent
and some of the witnesses
called by the Applicant held contrary views as to whether Prof Molefe
was appointed by the Council to
be part of the task team
.
[23]
A
witness
on
behalf of the First Respondent, Mr Lehasa, who was the minute taker
at the
Council
meeting was ambivalent, conceding in cross-examination that he could
not say his minute was entirely accurate, nor could he deny
that Mr
Dilotsothle had said in the arbitration that Prof Molefe was included
in the task team, nor could he deny that Prof Molefe
was to
“spearhead” the task team,
[22]
as he could not recall and he may well have been wrong in his
recordal of the draft minute.
[24]
The
evidence of Dr Motlatla who had been called by the Applicant was,
according to the award of the Arbitrator, that there were
four people
on the task team, being Prof Molefe, Mr Dilotsothle, Dr Motlatla and
Mr Skosana. Under cross-examination, Dr Motlatla
testified that the
crux of the resolution of the Council was that it provided for the
appointment of two people, while the other
two were "co-opted".
Prof Molefe had been approached by Dr Motlatla himself, when he had
been briefed on the resolution
taken by the Council. On my
consideration of the transcript which was, as I noted above, to a
certain extent incomplete, the evidence
of Dr Motlatla was that
initially three people had been appointed, being himself, Prof Molefe
and Mr Dilotsothle and the Council
had felt that Mr Skosana was also
to be included.
[23]
Under
cross-examination Dr Motlatla said it was at this Council meeting on
21 June 2011 that Prof Molefe was appointed to the task
team and Prof
Molefe was immediately informed of this by Dr Motlatla following the
conclusion of the meeting.
[24]
[25]
There
were a number of other versions put before the Arbitrator on this
aspect.
By
way of illustration, Mr Moshaathoni testified that in this Council
meeting only Dr Motlatla and Mr Skosana were appointed to
the task
team to deal with media leakages
[25]
and he specifically
testified
that Prof Molefe was not a part of the task team. This version was
supported by Dr Mukhola, the Executive Dean of Humanities. Mr

Dilotsotle, called by the Applicant, testified that a number of
people were “co-opted" to assist in the task team which

was ultimately comprised of Prof Molefe, Dr Motlatla, Mr Skosana as
well as the Applicant himself. The Arbitrator, quite correctly
in my
view, did not accept the testimony of Mr Dilotsotle that the
Applicant was appointed to this task team. The Chairperson of
the
Audit Committee, Ms Maleho Nkomo, also called by the Applicant,
testified that the Council had resolved that Dr Motlatla and
Mr
Skosana were appointed to investigate leakages to the media and that
they been tasked to involve Prof Molefe and Mr Dilotsotle.
Mr
Matlejoane, also called as a witness by the Applicant, testified that
the task team comprised Dr Motlatla, Prof Molefe and that
Mr Skosana
and Mr Dilotsotle were co-opted and that in addition this team could
“incorporate” any other person.
[26]
[26]
Just
who formed part of the task team to investigate the media leakages
was therefore unclear from the evidence before the Arbitrator.
The
Arbitrator in his
award
finds there to be a dispute as to the size of the task team and of
who was recommended by the Council to serve on it.
[27]
[27]
Prof
Molefe
was
appointed
as the Vice Chancellor of the First
Respondent
on 29 July 2011.
[28]
The
Applicant's
version was that in a meeting with Prof Molefe on 28 July 2011, which
I remark is more
than
a month after the Council had adopted the resolution to investigate
media leaks, he was informed by Prof Molefe that the Council
had
appointed a task team to investigate media leaks and Prof Molefe
requested that internal audit assist the task team with the

investigation. This version is recorded in a report, dated 29 August
2011, provided by the Applicant to Prof Mosia in response
to a
request that the Applicant was to give him background detail in
respect of the briefing of D&K Management Consultants

(“D&K”).
[28]
[29]
In
this report, the Applicant said that in a meeting with Prof Molefe on
28 July 2011, they had discussed a number of issues "
affecting
the institution including the leaking of
information
to the media
"
at which time he had been informed by Prof Molefe that the Council
had appointed a task team to investigate the media leaks
that were
"
impacting
on the reputation and image of the institution
".
[29]
The Applicant mentioned that "
the
rationale behind the assignment was to assist the task team to gather
information and compile a report to the Council on these
leaks as
well as devise a mechanism to stop the leaks
"
[30]
,
which I mention the Arbitrator considered to be an operational duty
which the Applicant was not to perform in terms of the Internal
Audit
Activity Charter. The Applicant then mentions a number of leaks that
had occurred "
besides
the issue of Prof Molefe’s qualification
".
The Applicant added that he had proposed the use of D&K as the
investigation would require specialist skills and it
would be a
long-term project necessitating the application of some resources and
he had worked with them before.
[30]
The
Applicant also reported that Prof Molefe had mentioned that he was
feeling extremely uncomfortable working with his new secretary
as she
was investigating him
[31]
and
she had made a number of comments indicating that she was not happy
with his appointment. Prof Molefe had also said he was
concerned
about his telephone and cell phone and suspected  they were
being tapped and that he had discussed the issue of
the phone tap
with the Director of Logistics and had given him the telephone for a
month or two to see if he could find anything.
[32]
I observe that this indicates that Prof Molefe had likely commenced
his own investigation before or at about the time that the
Council
had decided to investigate media leaks.
[31]
The
Arbitrator
in part relied on this report by the Applicant to conclude that the
use to which D&K were put was personal to Prof Molefe.
[33]
[32]
It is not clear whether the Applicant had
two meetings with D&K as the Applicant contends, but that is of
no import. What is
apparent
is that in the face-to-face interaction with D&K,
at
which the Applicant, Prof Molefe and Mr Declan Condon of D&K were
present and which occurred, according to the Applicant,
on 1 August
2011, D&K were requested to investigate the media leaks. In this
meeting
Mr Condon of D&K was informed
that allegations were being
made
behind Prof Molefe’s back and in the press. Prof Molefe had
also said there could be a leak originating from his office and
that
he felt his name was being sullied. Mr Condon was informed that the
leaks could either originate from senior staff or the
cellphone Prof
Molefe was using was being monitored or from the interception of his
emails. Mention was made that there were allegations
regarding a
judgment debt of Prof Molefe and that certain of his qualifications
were fraudulent.
[33]
It
is also
apparent
from the report of the Applicant given to Prof Mosia that D&K had
been requested to investigate the media leaks and that "
particular
attention was placed on Prof Molefe’s bad publicity
."
[34]
D&K were also told of the dynamics regarding the appointment of
Prof Molefe and of the issues of mistrust between Prof Molefe
and his
new secretary and of the three lobbying camps around the appointment
of the Vice Chancellor and their respective interests.
[35]
[34]
D&K
had
suggested that the investigation could be dealt with in a
number
of ways and had, for example, suggested the use of undercover people
to infiltrate the workforce but Prof Molefe had felt that
this would
take too much time. Mr Condon also suggested that if Prof Molefe
believed people from his own office were responsible,
then their
telephones should be monitored. Prof Molefe and the Applicant had
asked if emails of the suspects could be intercepted
and if Prof
Molefe’s cell phone could be sanitized. Prof Molefe said at
this time that he wanted D&K to interview people
to ascertain how
they felt about his appointment.
[36]
[35]
In the discussions on this day, Prof Molefe
had said that staff should not know about the investigation, nor
about the nature of
the payments made to D&K. It was the
testimony of the
Applicant
that the payment would be sorted out between himself and Prof Molefe
and that D&K should liaise with him in that respect. D&K
were
therefore requested to sanitise their invoices so they would not
identify the nature of the services provided. The Applicant
believed
he was justified in doing this, as he had previously investigated the
conduct of staff members and there was nothing untoward
in such
investigations to sanitise invoices, in particular as the Applicant’s
department and cost-centre would be responsible
for that payment.
[36]
It was further accepted by the Applicant
that the employees to be investigated had been
identified
by Prof Molefe and that the Applicant used his personal email to
communicate with D&K in respect of the investigation.
[37]
There
was no evidence in the arbitration that the Applicant had liaised
with the other task team members about the investigation
or that he
had kept the Audit Committee informed of the investigation. On this
point it was the testimony of Ms Nkomo, the Chair
of the Audit
Committee, that it would not have been expected of the Applicant,
"…
if he was busy with something… to report to us on a daily
basis."
[37]
It is also instructive to note that within the report that the
Applicant provided to Prof Mosia, the Applicant held the view that

the Audit Committee, which is a sub-committee of the Council,
"
mandates
internal audit to perform special reviews and investigation
"
[38]
yet there is no contention by the Applicant that such a mandate had
been provided to internal audit to perform the investigation
he had
initiated. The Applicant’s contention was that he was entitled
to rely on an instruction from Prof Molefe to undertake
this
investigation.
[38]
In
respect
of the allegations regarding breaches of procurement procedure, the
First Respondent led evidence of the procedures that were in
place
and contended that these had been flaunted by the Applicant. T
he
evidence was that the value regarding the procurement of D&K
required the Applicant to have obtained a purchase requisition
and
three written quotations, which he had not done. It was the evidence
of Dr Tromp that deviations would only be permitted in
limited
circumstances, such as when this was required by urgency. On this,
the Applicant's contention was that the sensitivity
of the matter
permitted him to conduct a special investigation and that the value
limits did not apply to the audit unit in matters
that were sensitive
or secretive or urgent.
Using
normal procurement processes would, in his view, would have
compromised the assignment and unusual procurement processes had
been
used in the past. Furthermore, his direct superior, Prof Molefe, was
fully aware of the processes and the steps that had been
taken.
The
evidence of Ms Nkomo, called as a witness by the Applicant, was
further that "
there
was provision and there is past precedent where we actually do have
to go out on tender
”
[39]
although she later says "
it
was not sort-of expected that the same [tender] process would be
followed
."
[40]
The
evidence of Ms Makinta, who was also called to testify by the
Applicant and who was the Finance Director, Specific Environment

Expenditure, was to the effect that in the ordinary course procedures
had to be complied with but in investigations recourse could
be had
to an approved service provider. In the particular circumstances she
was of the view that prior to the work being performed
it would have
been appropriate for a motivation to be obtained to permit a
deviation from the standard process.
[41]
[39]
It was common cause
that
the Applicant had approached the Director of ICT to obtain permission
to monitor the emails of the First Respondent’s staff.
However,
it was the First
Respondent’s
contention that in representing to the Director of ICT that the
monitoring was for purposes of internal audit, the Applicant had
been
dishonest as the purpose was to enable D&K to do this for Prof
Molefe’s personal agenda.
The
Applicant’s position was that he had
legitimately
approached
the Director ICT in pursuance of
an instruction given to him by Prof Molefe. Regarding the
installation of equipment to monitor
the employees of the First
Respondent the position adopted by the Applicant was that he was the
conduit for Prof Molefe in his
interaction with D&K. This is not
entirely correct as the evidence was that the Applicant actively
participated in discussions
with D&K as to what could and should
be done in the investigation and regarding the sanitation of the D&K
invoice so as
to hide the true purpose of the engagement of D&K.
The Applicant's further contention was that there was no evidence
that cameras
had actually been installed and the telephone
interception was to occur on telephone lines that were associated
with those of Prof
Molefe and there could therefore be no question
that this would pose any threat to the right to privacy.
[40]
On
18
August 2011 the First Respondent was placed under Administration and
Prof Mosia was appointed to be the administrator. In that
month Prof
Molefe was suspended and his services were thereafter terminated.
[41]
After the appointment of Prof Mosia as
Administrator, the account of D&K came to his attention. This
resulted in the First Respondent
taking steps to ascertain if its
policies regarding procurement had been breached which culminated in
the Applicant being called
to a disciplinary enquiry and his
dismissal.
Applicant’s
grounds of review
[42]
The
Applicant raised a number of grounds for the review and setting aside
of the Arbitrator's award. The Applicant's contention
is that
collectively the grounds show misconduct by the Arbitrator in failing
to effectively discharge his duties as an Arbitrator.
[42]
[43]
The
grounds
for the review are that the Arbitrator
:
43.1.
was
biased, as evidenced by his approach in the arbitration as well as
his failure to disclose material interests
[43]
;
and
43.2.
misconducted
himself as a result of these interests and consequently adopted an
approach that was prejudicial to the Applicant,
which included a
failure to properly assess the evidence and a failure to apply his
mind
[44]
; and
43.3.
allowed
procedural irregularities which evidenced bias and prejudice and did
not permit a fair hearing;
[45]
and
43.4.
failed
to properly assess the evidence and as such came to incorrect
conclusions "
that
cannot be justified
"
[46]
;
and
43.5.
failed
in the execution of his mandate to ensure a fair trial.
[47]
The
statutory grounds of review and the test to apply.
[44]
Section 33 of the
Arbitration Act provides:
“
(1)
Where -
(a)
any member of an arbitration tribunal has misconducted himself in
relation to his
duties as arbitrator or umpire; or
(b)
an arbitration tribunal has committed any gross irregularity in the
conduct of the
arbitration proceedings or has exceeded its powers; or
(c)
an award has been improperly obtained,
the
Court may, on the application of any party to the reference after due
notice to the other party or parties, make an order setting
the award
aside.”
[45]
Although
the
grounds for review under the Arbitration Act are the
same
as those in section 145 of the Labour Relations Act, section 33 of
the Arbitration Act does not incorporate considerations of
reasonableness.
[48]
In
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another
[49]
the Constitutional Court established the basis for this
differentiation as follows:
“
The
twin hallmarks of private arbitration are thus that it is based on
consent and that it is private, i.e. a non-State process.
It must
accordingly be distinguished from arbitration proceedings before the
Commission for Conciliation, Mediation and Arbitration
(CCMA) in
terms of the
Labour Relations Act 66 of 1995
which are neither
consensual, in that respondents do not have a choice as to whether to
participate in the proceedings, nor private.
Given these differences,
the considerations which underlie the analysis of the review of such
proceedings are not directly applicable
to private arbitrations.”
[50]
[46]
The
Constitutional Court also held that "…
the
values of our Constitution will not necessarily best be served by
interpreting s 33(1) in a manner that enhances the power of
Courts to
set aside private arbitration awards. Indeed, the contrary seems to
be the case
.”
[51]
[47]
The Constitutional Court further stated that:
“
Courts
should be respectful of the intention of the parties in relation to
procedure. In so doing, they should bear in mind the
purposes of
private arbitration which include the fast and cost-effective
resolution of disputes. If Courts are too quick to find
fault with
the manner in which arbitration has been conducted, and too willing
to conclude that the faulty procedure is unfair
or constitutes a
gross irregularity within the meaning of section 33(1), the goals of
private arbitration may well be defeated.”
[52]
[48]
There is also
substantial
authority that the grounds contained in Section 33(1) of the
Arbitration Act are confined to the process that the Arbitrator
followed.
[49]
In
Telcordia
Technologies Inc v Telkom SA Ltd
[53]
it
was held
:
“
[50]
By agreeing to arbitration parties to a dispute necessarily agree
that the fairness of the hearing
will be determined by the provisions
of the Act and nothing else.  Typically, they agree to waive the
right of appeal, which
in context means that they waive the right to
have the merits of their dispute re-litigated or reconsidered. They
may, obviously,
agree otherwise by appointing an arbitral appeal
panel, something that did not happen in this case.”
“
[51]
Last, by agreeing to arbitration the parties limit
interference by Courts to the ground of procedural irregularities
set
out in s 33(1) of the Act. By necessary implication they waive the
right to rely on any further ground of review, ‘common
law’
or otherwise. If they wish to extend the grounds, they may do so by
agreement but then they have to agree on an appeal
panel because they
cannot by agreement impose jurisdiction on the Court.”
[54]
[50]
In
Telcordia
supra
it
was further held that:
“
An
arbitrator ‘has the right to be wrong’ on the merits of
the case, and it is a perversion of language and logic to
label
mistakes of this kind as a misconception of the nature of the
inquiry”
[55]
“
Likewise,
it is a fallacy to label a wrong interpretation of a contract, a
wrong perception or application of South African law,
or an incorrect
reliance on inadmissible evidence by the arbitrator as a
transgression of the limits of his power. The power given
to the
arbitrator was to interpret the agreement, rightly or wrongly; to
determine the applicable law, rightly or wrongly; to determine
what
evidence was admissible, rightly or wrongly. Errors of the kind
mentioned have nothing to do with him exceeding his powers;
they are
errors committed within the scope of his mandate. To illustrate, an
arbitrator in a ‘normal’ local arbitration
has to apply
South African law but if he errs in his understanding or application
of local law the parties have to live with it.
If such an error
amounted to a transgression of his powers it would mean that all
errors of law are reviewable, which is absurd.”
[56]
[51]
As
determined
in
Volkswagen
SA (Pty) Ltd v Koorts NO and others
[57]
,
a
reviewing
Court is not:
"…
legally able to give effect to the parties' requirement that a
private arbitrator render an award which is "rational
and
justifiable, or any other review standard for that matter. Unless the
error thus vitiates the award a review Court is bound
to measure the
product of private arbitration proceedings against the narrow grounds
of review encapsulated in the
Arbitration Act of 1965
"
[58]
[52]
Harms
JA in
Telcordia
supra referred to
Dickenson
& Brown v Fisher's Executors
[59]
where reference was made to “
the
general principle that when parties select an arbitrator as the judge
of fact and law, the award is final and conclusive, irrespective
of
how erroneous, factually or legally, the decision was… unless
the mistake was so gross and manifest that it could not
have been
made without some degree of misconduct or partiality, in which event
the award would be set aside not because of the
mistake, but because
of misconduct
.”
[60]
[53]
The
Appellate
Division, as the Supreme Court of Appeal was then known, in
Amalgamated
Clothing and Textile Workers Union of South Africa v Veldspun (Pty)
Ltd,
[61]
when considering the effect of mistakes made by an arbitrator
similarly held that:
"…
it is clear that the word [misconduct] does not extend to bona fide
mistakes the arbitrator may make whether as to
fact or law. It is
only when a mistake is so gross or manifest that it would be evidence
of misconduct or partiality that a Court
might be moved to vacate an
award: Dickenson & Brown v Fishers's Executors
1915 AD 166
at
174-81. It was held in Donner v Ehrlich
1928, WLD 159
at 161 that
even a gross mistake, unless it establishes mala fides or partiality,
would be insufficient to warrant interference”
[62]
Analysis
The
Arbitrator’s alleged bias, relationships and interests.
[54]
The
starting
point
to
the Applicant's case is that the Arbitrator was biased, had failed to
disclose material interests, in that
there
was a prior relationship between the First Respondent and the
Arbitrator, which influenced the Arbitrator’s decision-making.

The contention is that the Arbitrator had previously provided
services to the First Respondent through the Commission for
Conciliation,
Mediation and Arbitration (CCMA) and that the
Arbitrator had a business association with one of the employees of
the First Respondent.
These relationships the Applicant believes
influenced the Arbitrator to find in favour of the First Respondent.
Most certainly,
if the facts support this contention the Arbitrator
would have misconducted himself and committed a gross irregularity if
he had
acted as the arbitrator of the matter, however, the facts do
not support this contention.
[55]
On
19 January 2012, the attorneys for the First Respondent provided to
the Applicant’s attorneys the
profile
of
5 panelists who were available to arbitrate the disciplinary enquiry.
The attorneys for the First Respondent informed the Applicant’s

attorneys that its counsel was well-known to one of the identified
panelists and that the relationship extended beyond a professional

relationship as they were friends and it would not be appropriate for
that panelist to be appointed as the arbitrator. The First

Respondent’s attorneys proposed that the Arbitrator should be
appointed. The First Respondent requested the Applicant to
confirm
whether this was agreed or if the services of a different Arbitrator
would be required. The Applicant accepted the appointment
of the
Arbitrator.
[63]
[56]
In
his papers the
Applicant
contended
that had he known of any relationship between the First Respondent
and the Arbitrator, he would not have agreed to the
appointment of
the Arbitrator. The Applicant goes further to submit that any "
past
liaison
"
with the First Respondent by any candidate would disentitle such
person from acting as the arbitrator and he would not have
agreed to
his or her appointment.
[64]
[57]
Particularly
where the parties are legally represented, as was the case, they are
at liberty to and have the ability to make enquiries
to ascertain the
professional standing of the potential arbitrator and to do
research
to assist them in the selection process. Notably in this instance,
the First Respondent had stated that if the Applicant was not
happy
with its recommendation, the Applicant was at liberty to suggest a
further arbitrator. The selection process was voluntary.
If it is the
view of a party that any arbitrator to be appointed was to have no
association whatsoever with the other party, that
party is in a
position to ask if there had been a prior relationship.
Notwithstanding this, there may be relationships which an
identified
arbitrator has with one of the parties and it is incumbent on the
identified arbitrator to allay any apprehension of
bias. The question
is therefore whether there was any relationship the Arbitrator had
with the First Respondent “
that
in law would be recognised as raising a legitimate concern about the
adjudicator's impartiality
".
[65]
I
deal with the
parties’
contentions
in respect of the alleged relationships below.
[58]
The
Applicant complains that the Arbitrator was biased as he had rendered
services to the First Respondent in a relationship building
exercise
through the CCMA. However, the First Respondent points out,
[66]
supported by the confirmatory affidavit of the Arbitrator, that the
Arbitrator, although initially identified to be part of the
CCMA's
Building Workplace Relations Group to conduct that process at the
First Respondent in or about 2007 or 2008, but had not
done so as
another Commissioner of the CCMA had then been assigned. The First
Respondent's further submission was that the Arbitrator's
profile on
the Second Respondent's website, which had alerted the Applicant to
this relationship, had incorrectly been amended
by a personal
assistant employed by the Second Respondent and the Arbitrator had
only found out about that amendment after the
receipt of the
Applicant’s Founding Affidavit. The Applicant’s reply was
that the amendment of a CV without the input
of the Arbitrator
appears to be highly irregular. While that may be so, the Applicant
did not refute the denial of the Arbitrator’s
alleged
participation in a workplace relations exercise and failed to
objectively establish the alleged relationship.
[59]
Even if the Arbitrator had provided services to
the First Respondent of the type alleged, this would not be something
that needed
to be disclosed by the Arbitrator or a basis to conclude
there was misconduct by the Arbitrator or that such a failure
constitutes
a gross irregularity in the conduct of the private arbitration. For
the Applicant to succeed in this type of complaint, something
more
than the mere allegation of a relationship is necessary. The
Applicant in my view would need to provide context to show that
a
relationship existed that was of the sort that would incline an
Arbitrator to find in the favour of the First Respondent, which
the
Applicant has not done. The Applicant having failed to establish this
relationship and further having failed to give content
to the
relationship, this contention warrants no further consideration.
[60]
It
was also contended that the Arbitrator was influenced to find
in
the favour of the First Respondent, as he had accepted the offer of
the
First Respondent to fix his motor vehicle clutch which was troubling
the
Arbitrator
during the Arbitration
[67]
.
This occurred with the knowledge of the Applicant at that time. The
Applicant says that while this appeared innocent at first,
his view
changed on receiving the award. While I am of the view that the
acceptance by an arbitrator of gratuities from a party
to an
arbitration is inappropriate and should be
avoided
and could constitute misconduct and an irregularity, this did not
amount to that in the circumstances. The Applicant was aware
of the
offer by the First Respondent to effect the repairs and raised no
objection at the time.
[61]
The
Applicant
further
asserts that the Arbitrator was biased and misconducted himself as he
had a pecuniary relationship with the First Respondent
since a
Director in the Merger Office of the First Respondent, one Dr Rampai,
was a business associate of the Arbitrator.
[68]
The Arbitrator, it was alleged, is a member of a Close Corporation
called Farisanani Management Services CC, on which the Arbitrator
was
a panelist, as was Dr Rampai. In the answering affidavit, to which
there is a confirmatory affidavit attached by the Third
Respondent,
both the First Respondent and the Arbitrator deny the relationship.
The Arbitrator says he had never met Dr Rampai
and is not even sure
if the Dr Rampai referred to was the person who worked for the First
Respondent. This was not refuted by the
Applicant. This contention by
the Applicant is also not confirmed by the Dr Rampai to whom the
Applicant refers. The contention
by the Applicant is therefore not
established
.
Furthermore,
the Applicant presents no evidence to substantiate the allegation
that there was a "pecuniary" relationship
between the
Arbitrator and the Dr Rampai to whom he refers.
[62]
I am further in
agreement with the First Respondent that there was no requirement for
the Arbitrator to inform the parties of this
relationship, even if
the Dr Rampai was a co-panelist with the Arbitrator on the Farisanani
Management Services CC panel and was
employed by the First
Respondent. The Arbitrator would have been under obligation to do so
if there was a pecuniary relationship
between himself and an employee
of the First Respondent if it held the possibility of manifesting an
inference of bias or impartiality.
However, the Applicant makes no
averment giving substance to the allegation that there was a
pecuniary relationship between the
Arbitrator and Dr Rampai. I also
agree with the submission of the First Respondent that prior contact
between an arbitrator and
a party does not in itself constitute a
basis to assume misconduct or that a gross irregularity has occurred
if this prior contact
was not disclosed.
[63]
While
the
Applicant
has not been able to prove the existence of a relationship which
could reasonably lead a Court to infer that the Arbitrator was

biased, this is not to detract from the principle that an arbitrator
has an obligation to disclose of his own volition a relationship

which could indicate a conflict of interest or relationship with one
of the litigants that could create a perception of impartiality.

Where there is such a relationship or link, an arbitrator should "
not
only… ask himself or herself whether, notwithstanding his, or
her interest or link to one of the litigants, he, or she,
can
nevertheless bring the necessary impartiality (or dispassion) to the
issues in the case, but also whether the link or interest
in the
litigant might create a perception of impartiality. If there is any
doubt about any of those questions, it was for the arbitrator
to err
on the side of disclosing the interest rather than not disclosing it
in order to avoid the consequences of a later finding
by an appeal or
reviewing body that he, or she, ought to have disclosed the interest
or link in the first place
.
[69]
"
[64]
If it was of such
material import for the Applicant, as he says was the case, that
there was to be no relationship whatsoever between
the Arbitrator and
the First Respondent, he could have asked the Arbitrator for such
declaration at the commencement of the arbitration
or more
appropriately, before agreeing to the appointment of the Arbitrator.
Having this opportunity
available and the opportunity to conduct background and further
checks in respect of the potential arbitrator
in a private
arbitration in my view places an obligation on a litigant alleging an
untoward relationship to put before the reviewing
Court compelling
evidence of the relationship and the potential for the arbitrator to
be biased in order for misconduct or any
irregularity to be
established. It could lead to abuse to allow a party who is
dissatisfied with an award to
post
facto
ascertain if there were some prior relationship between its opposing
party and the arbitrator that it had agreed could be appointed.
This
is a strategy which should be discouraged and it would be an
exceptional case where an arms-length relationship could justify
the
setting aside of a private arbitration award on the basis of that
relationship not being disclosed by the Arbitrator.
[65]
I now turn to
consider if there is a basis to conclude that the Arbitrator
misconducted himself or perpetrated a gross irregularity
in the
manner in which he conducted the arbitration before him, or if the
award was improperly obtained.
[66]
I
am
not
required to determine whether or not the award made by the Arbitrator
is correct. I am to determine if there was misconduct
by the
Arbitrator in relation to his duties as an arbitrator. Such
misconduct could be constituted by manifest bias or errors of
fact or
law or deviations from accepted principles: but this must be to such
an extent that it is to be concluded that there is
misconduct or
partiality as opposed to bona fide errors.
[70]
I am also to determine whether the arbitrator committed any gross
irregularity in the conduct of the arbitration proceedings. While

there is an allegation by the Applicant that the award was improperly
obtained,
[71]
no allegations
substantiating this are set out in the application. This
last-mentioned ground of review, mirrored in
section 145
(2)(b) of
the LRA requires, in the words of Maserumule AJ, that:
"…
one party to the arbitration, through fraud or other improper means,
obtains an Award in his or her favour. This
can either be in the form
of a bribe or by misleading and false or fraudulent representations
which lead to an Award being granted
in that party's favour."
[72]
[67]
Although not stated
to be the basis for alleging that the award was improperly obtained
it is conceivable that the alleged untoward
relationships and
interests which the Applicant contended existed between the First
Respondent and the Arbitrator and the offer
of assistance with
regards to the repair of the Arbitrator’s vehicle constituted
the grounds for the allegation that the
award was improperly
obtained. In light of my findings above on
those
matters, there is no
basis to conclude that the award was improperly obtained.
Alleged
procedural irregularities.
[68]
The
Arbitration
Agreement affords the Arbitrator the power to decide on the procedure
that was to be used at the arbitration.
[73]
N
otwithstanding
this broad power, it is still to be exercised within accepted
principles and does not permit the Arbitrator to conduct
the
Arbitration in a manner which deprives a party of a fair trial of
issues.
[69]
A
ground of review raised by the Applicant in this respect is that the
Arbitrator allowed procedural irregularities in the arbitration
that
led him to incorrectly assessing the evidence.
[74]
[70]
It
was
contended by the Applicant that although his legal team had
formulated a request for relevant documentation and further
particulars
to enable him to prepare his defence in the matter, the
First Respondent had failed to effectively answer these requests but,
notwithstanding
this, the Arbitrator allowed the matter to proceed.
[75]
The Applicant does not embellish on the effect that this had on the
fairness of the process, nor does the record reflect that he
sought a
ruling to compel the provision of any documentation or information.
In these circumstances I do not see how permitting
the matter to
continue can be construed to be misconduct or an irregularity.
[71]
A
further alleged irregularity is that the Arbitrator permitted the
First Respondent to call ten witnesses when this was substantially

different from the anticipated number of witnesses that had been
indicated would be led by the First Respondent and the Arbitrator

further allowed the introduction of documents during the course of
the hearing.
[76]
The complaint
was that, in allowing this, the Arbitrator had enabled the First
Respondent to develop its case as the Arbitration
went on. The
Applicant concedes in his founding affidavit
[77]
that permitting the introduction of further documentation and
additional witnesses would in normal circumstances "
not
have been seen as abnormal
".
I believe this complaint is devoid of any substance. It is quite
usual, particularly in situations where cases are not defined
through
pleadings as occurs in CCMA proceedings and in disciplinary
enquiries, and as is the case in this matter, that the party
commencing
with the presentation of evidence is required to vary its approach to
the case as its opposition's case becomes clearer through

cross-examination. The Applicant furthermore had an opportunity to
deal with the additional witnesses and evidence. Most notably,
again
the Applicant did not seek a ruling from the Arbitrator to preclude
this occurring. It was not for the Arbitrator himself
to
mero
motu
interfere in the
process
by preventing witnesses from being introduced by the First Respondent
or to prevent it from introducing new documentation. Had
the
Arbitrator done so, that would have been a gross irregularity in the
conduct of the proceedings.
[72]
Another
irregularity
,
the Applicant contends, came about as the Arbitrator acted as a
mediator in the matter on the first day of the hearing and in
that
process had a private discussion with a senior representative of the
First Respondent, Prof Mosia. The Applicant says this
resulted in a
prejudicial view of the Applicant’s defence,
[78]
but how this interaction resulted in the Arbitrator having a
prejudicial view was not substantiated in any way. Mr Welman, the

attorney for the First Respondent during the arbitration and the
deponent to the answering affidavit conceded that an interaction

occurred between the Arbitrator and Prof Mosia and noted that he was
also present at the time. It was added that there were similarly

occasions when the Arbitrator interacted with the Applicant and his
legal representatives on their own. The First Respondent contended

that there was nothing strange about this since it was in the form of
mediation and is a common process. I am in full agreement
with this
contention since
mediation
in an arbitration or disciplinary enquiry only comes about with the
consent of the parties. When they engage in the mediation
process,
the parties accept that private interactions will occur between the
Arbitrator as a mediator and representatives of the
other party. If
it had been alleged, which it has not been, and shown, which it has
not, that when acting as a mediator the Arbitrator
had acted
inappropriately, for example by expressing a firm view on the merits
of the matter, that may well constitute misconduct
and an
irregularity. However, in the absence of inappropriate action on the
part of the Arbitrator having been shown at mediation
and no such
complaint being raised in the Arbitration itself, I find that there
was nothing untoward in the Arbitrator acting as
a mediator.
[73]
The
Applicant further contends that the Arbitrator failed to give regard
to mitigating circumstances, particularly the circumstances
regarding
the instruction given to him by Prof Molefe and the practice and work
standard within the First Respondent.
[79]
[74]
The
Applicant deals with mitigation pertinently in the Heads of Argument
presented to the Arbitrator,
[80]
where his primary thrust was that the internal procedures of the
First Respondent had allowed him in the past to conduct himself
in a
manner to achieve the objectives of his designation.
[81]
In his Supplementary Affidavit he avers that the Arbitrator failed to
rule on the circumstances the Applicant offered in mitigation
and
failed to consider his work record, personal circumstances and the
effect that a dismissal would have on his standing within
his
profession.
[82]
The
Arbitrator, he says, merely recorded that he was required to consider
evidence on aggravation and mitigation and an appropriate
sanction
but did not do this.
[83]
I
find that the Arbitrator's failure to specifically deal in the award
with each aspect raised by the Applicant in mitigation does
not
warrant interference on review. The Arbitrator concluded, obviously
based on the direct evidence of Prof Mosia, that there
had been “
a
total breakdown in trust between the TUT and himself as senior
employee
.”
[84]
The Arbitrator in the Award deals at length with the Applicant's view
that he was acting under instruction from Prof Molefe. The
Arbitrator
considered the report the Applicant had sent to Prof Mosia in which
he stated that he had been informed by Prof Molefe
“
that
Council has appointed a Task Team and mandated it to investigate and
probe the media leaks
"
[85]
to reach the conclusion that the approach made by Prof Molefe so as
to involve the Applicant to look into the sources of personal
attacks
against Prof Molefe was not sanctioned by the Council.
[86]
[75]
The
Arbitrator also thoroughly considered the First Respondent’s
policies and the Job Profile of the Applicant and reached
relevant
conclusions based on these policies. The Arbitrator concluded that
the internal audit position occupied by the Applicant
derived its
authority from the Council, through the Audit Committee and that it
is an autonomous position, that the Applicant only
had an
administrative reporting line to the office of the Vice Chancellor,
while the Applicant’s responsibilities were determined
by the
Audit Committee of the Council. The Arbitrator also relied,
inter
alia,
on
the Internal Audit Function Charter to find that the Applicant was
not entitled to perform operational duties for the First Respondent

and could not initiate or approve accounting transactions that were
external to the internal audit functions.
[87]
The Arbitrator further had regard to the Policy on Internal Audit
which describes internal audit as being "
independent
of all line and functional management … answerable solely to
the Vice Chancellor and Principal and to the Audit
Committee
"
[88]
and which policy ensures the independence of the Department under the
control of the Applicant by also specifying that
"…the
day to day administrative activities of the Internal Audit will rest
with the Vice Chancellor and Principal
”
and in particular that "
Internal
Audit will not assume any line management functions apart from
running its own department
".
[89]
[76]
It is apparent from
this lengthy analysis that the Arbitrator gave substantial
consideration to the contention by the Applicant
that he was acting
under the authority of Prof Molefe. As the Arbitrator concludes that
the Applicant had no authority, derived
either from the Policies,
Charters or the Job Profile of the Applicant to contend that he was
acting under the instruction of Prof
Molefe, the contention that it
constituted mitigation would have had no weight whatsoever in the
view of the Arbitrator.
[77]
The
Arbitration Agreement only required the Arbitrator, if any finding of
guilt was made, to "
hear
argument and consider any evidence in mitigation and aggravation
before determining the appropriate sanction. Evidence regarding

mitigation and aggravation will be presented by the parties during
evidence on the merits
."
[90]
I am satisfied on a conspectus of the evidence, the Heads of Argument
presented by both parties in the Arbitration and the Award,
that the
Arbitrator materially acted as he was enjoined to do by the
Arbitration Agreement in dealing with mitigation.
Further
grounds of review
[78]
The
Applicant contends further that the Arbitrator “
evaded
his duties of a reasonable arbitrator so as to ensure that he did not
damage his relationship with the First Respondent
”.
[91]
The essence of this
contention is that because there was a business relationship with the
First Respondent, the Arbitrator had
not dealt with his duties as a
reasonable arbitrator, so as to ensure that he did not damage his
relationship with the First Respondent.
The First Respondent
correctly contends in my view that the question as to whether the
Arbitrator was reasonable is not relevant
to the matter. The
Arbitrator, being elected by the parties to determine the matter is
to be judged only on the statutory grounds
of review. Whether he was
reasonable is not one of them.
[92]
[79]
The
Applicant contends that the conclusions reached by the Arbitrator
were not all supported by evidence and he rather preferred
the
version of the First Respondent than that of the Applicant
[93]
,
the latter complaint in this regard more properly being referred to
as bias, which is also a complaint the Applicant specifically
raises
in his Supplementary Affidavit.
[94]
The
First Respondent generally adopts the view that this ground is not
sustainable in terms of the
Arbitration Act. I
disagree with this
broad assertion since it is necessary to assess if there was evidence
before the Arbitrator to justify his conclusions,
for if there is not
or if there are errors of fact or law that are so gross as to
indicate partiality, bad faith or a misconception
of his role as
arbitrator, that could constitute misconduct or gross irregularity.
[80]
In
Stocks
Civil
Engineering (Pty) Ltd v Rip NO and Another
[95]
it
was held that:
“
A
Court is entitled on review to determine whether an arbitrator in
fact functioned as arbitrator in the way that he upon his appointment

impliedly undertook to do, namely by acting honestly, duly
considering all the evidence before him and having due regard to the

applicable legal principles.  If he does this, but reaches the
wrong conclusion, so be it.  But if he does not and shirks
his
task, he does not function as an arbitrator and reneges on the
agreement under which he was appointed.  His award will
then be
tainted and reviewable.  It is equally implicit in the agreement
under which an arbitrator is appointed that he is
fully cognizant
with the extent of and limits to any discretion or powers he may
have.  If he is not and such ignorance impacts
upon his award,
he has not functioned properly and his award will be reviewable.
An error of law or fact may be evidence
of the above in given
circumstances, but may in others merely be part of the incorrect
reasoning leading to an incorrect result.
In short, material
malfunctioning is reviewable, a wrong result per se not (unless it
evidences malfunctioning). If the malfunctioning
is in relation to
his duties, that would be misconduct by the arbitrator as it would be
a breach of the implied terms of his appointment.
“
[96]
[81]
In
SACCAWU
and Others v Pick 'n Pay Retailers (Pty) Ltd and Others
[97]
it was held that for an irregularity to warrant
interference
on review, two conditions had to be met:
“ …
firstly,
the omission on the part of the arbitrator must involve him or her
having misconceived the nature of the enquiry or his
or her duties in
connection with the enquiry, and thus result in him preventing a fair
trial of the matter.   Secondly,
there must not exist
material that would serve to justify the arbitrator’s decision,
because ‘if there was material
before the [arbitrator],
justifying the action taken, the Court would not be entitled to
interfere even if an irregularity had
been committed’.
Put differently, if an arbitrator was caused by inappropriate means
to reach one conclusion whereas
if he had adopted appropriate means
he might have reached another conclusion favourable to the applicant,
then the award is reviewable.”
[98]
[82]
It is in this context that consideration
is to be given to the circumstances raised by the Applicant which he
says justifies interfering
with the Arbitrator's award. There are
numerous complaints under this heading.
[83]
The
Applicant
says
the Arbitrator incorrectly
set
out
a version regarding what led to the investigation and could not
distinguish between the two
task
teams, the one being in respect of an investigation regarding the
qualifications of Prof Molefe (under the leadership of Prof Volmink)

and the other being in respect of media leaks set up at the Council
meeting of 21 June 2011.
[99]
T
he
Applicant's perspective was that the Arbitrator had intentionally
created this confusion.
[100]
[84]
While
the Arbitrator did reflect in his Award that the Council had earlier
appointed a task team that was led by Prof Volmink to
investigate the
negative press as well as to investigate allegations against Prof
Molefe
[101]
and while I
agree with the Applicant that there was no specific evidence to the
effect that this first task team was to investigate
media leakages,
this is not a material error and there is certainly nothing which
points to the Arbitrator having intentionally
created this confusion:
and this error in no way shows that the Arbitrator misconceived the
nature of the matter before him or
the critical issues that he was to
consider. In the context of the negative reports in the media about
the First Respondent and
reports regarding the qualifications of Prof
Molefe this mistake is understandable and I find no reason to
consider that it was
purposefully made in order to skew the Award. It
had no effect on the Award as it related only to context and not to
material aspects
that impacted on the Award. Certainly, this mistake
was not in any way material to the findings made by the Arbitrator in
respect
of the allegations against the Applicant. The Applicant
himself also concedes that the information regarding the various task
teams
was "background"
[102]
.
[85]
I
also find that the complaint of the Applicant that the Arbitrator
incorrectly referred, on one occasion, to the meeting of 21
June 2011
as being a meeting on 21 July 2011
[103]
as being irrelevant to his determination and nitpicking by the
Applicant which is of no consequence whatsoever.
[86]
The
Applicant maintains that the Arbitrator finds, without substance,
that Prof Molefe had never been appointed by the Council to
the task
team that investigated the media leakages, on the basis of the
Arbitrator's view that this would not be permitted from
a perspective
of good corporate governance, although no evidence in that regard was
presented. He says this was in direct contrast
with the uncontested
evidence that the Chairperson of the Council, Dr Motlatla, had
instructed Prof Molefe to be a part of the
task team.
[104]
[87]
The
Arbitrator accepts the evidence of Dr Motlatla that he had interacted
with Prof Molefe after the Council meeting of 21 June
2011 for the
purpose of involving him in the investigation and clearly did so in
the context of his finding that the Council itself
had never
appointed Prof Molefe to be a member of the task team. The Arbitrator
relies on the testimony of Dr Motlatla in cross-examination
that he
had informed Prof Molefe of the decision made by the Council to have
a task team and further finds that although not appointed
by the
Council to this task team he may well have been co-opted to the team
by Dr Motlatla.
[105]
In the
circumstances I find nothing turns on the complaint of the
Applicant
[106]
that the
Arbitrator had failed to apply his mind to the question whether Prof
Molefe had been informed of his appointment to the
task team or
whether he had been instructed to fulfil its mandate.
[88]
The
Arbitrator specifically finds that on a balance of probability, the
Council had mandated Dr Motlatla and Mr Skosana to investigate
the
media leakages.
[107]
The
Arbitrator does not, as contended by the Applicant, make a finding
that Prof Molefe was not appointed to the task team as that
would not
be permitted by good governance. The Arbitrator, in having made his
determination on this point does indeed remark that
it would offend
the principles of governance if a person was to investigate or in
fact lead the investigation into "
the
source and cause of his own assailment in the media.
"
[108]
Quite clearly this recordal by the Arbitrator does not constitute a
reason for his finding but an observation that is not out of
place in
the context.
[89]
The
Arbitrator also determined after considering a number of the First
Respondent's policies, which I have mentioned, that as the
head of
Internal Audit the Applicant was independent and reported to Prof
Molefe only for administrative purposes and could not
perform
functional tasks nor take functional instructions from Prof Molefe.
Thus, even if Prof Molefe was mandated by the Council
to investigate
the media leakages, which was not the case in the view of the
Arbitrator, the various policies of the First Respondent
which were
attested to by Dr Tromp show that Prof Molefe could not lawfully
direct the Applicant to engage in a functional investigation
and that
in pursuing this instruction the Applicant flouted the policies which
required him to act independently. The finding of
the Arbitrator is
therefore derived from evidence before him. On this basis, I also
conclude that there is no merit to the submission
by the Applicant
that if Prof Molefe had not been tasked to investigate the matter,
the Applicant himself would not have been misled
by Prof Molefe on
this aspect and this was not properly assessed by the
Arbitrator.
[109]
[90]
The
Applicant also protested that the Arbitrator had ignored the evidence
of the Applicant’s witnesses as to what had transpired
at the
meeting on 21 June 2011 in concluding that only Dr Motlatla and Mr
Skosana were appointed to the task team.
[110]
In
related criticism the Applicant complained that the Arbitrator had
failed to set out a basis why he preferred the version of
the First
Respondent.
[91]
The Applicant says he
had called four witnesses and the Respondent had only called three
witnesses in respect of what occurred at
the meeting on 21 June 2011.
It appears to be implied that since the Applicant had led more
witnesses regarding a meeting, that
version should be believed. That
is certainly not the case.
[92]
In
any event, the Applicant mistakenly contends that all the Applicant’s
witnesses were consistent as to what transpired in
that meeting when,
among the numerous other aspects of difference, Mr Dilotsotlhe, who
testified on behalf of the Applicant, differed
from all other
witnesses by contending that the Applicant was part of the task team
appointed at this meeting to investigate leakages
to the media.
[111]
My
further consideration of the differences in versions as to who
constituted the task team to investigate media leakages has been
set
out above.
[93]
The
Arbitrator in his Award deals with the versions that were presented
to him and concludes that he finds "
on
a balance of probabilities, that the Council mandated Dr Motlatla and
Mr Skosana to investigate the source of the problem around
media
leakages and the negative publicity that was aimed at ruining the
reputation of the University
.”
[112]
In reaching this conclusion the Arbitrator correctly notes that it
was required of him to determine if the document purporting
to be a
minute of the meeting of the Council of 21 June 2011 was a true
record of the meeting as there were variances in the versions
of what
actually transpired in that meeting and there had never been a
subsequent meeting held by the Council to ratify and adopt
the
minute. Certainly, the witnesses called on behalf of the Applicant
differed materially with regards to the constitution of
the task
team. Having taken cognizance of the fact that at this time there
were media reports concerning the qualifications of
Prof Molefe and
reports regarding his personal finances, the Arbitrator found that it
was improbable that the Council would have
co-opted or involved Prof
Molefe in the task team. The Arbitrator’s reasoning was that if
it had been intended that Prof
Molefe was to be involved in the
investigation, the Council would not have appointed a dedicated task
team to deal with the matter.
The Arbitrator accordingly rejected the
version that Prof Molefe was involved in the task team at the behest
of the Council. The
Arbitrator, as stated earlier, nonetheless
accepted that the task team could co-opt or involve other persons,
even Prof Molefe.
In reaching this conclusion it is apparent that the
Arbitrator considered which version was most probable and he in fact
says he
applied this technique. I find no fault with it. In similar
complaints with which I deal below the Applicant contends that the
Arbitrator failed to assess the versions of the witnesses and to
explain his reasoning for accepting the versions of the First
Respondent's witnesses where there were conflicting versions.
[113]
[94]
In
this regard, in
Solidarity
obo Van Zyl v KPMG Services (Pty) Ltd and Others
[114]
Fourie AJ determined
that
it is not necessary for an Arbitrator to find that a witness was not
credible to find that his version was not probable.
[115]
In reaching this conclusion the Acting Judge relied on
Transnet
Ltd v Gouws and Others
[116]
,
per
Redding AJ, in which it was held that:
“
The
key
question for him [the Arbitrator] was which version was more
probable. He was able to reach a decision on the probabilities

without having to have regard to the credibility of each witness. It
is quite possible for evidence to be assessed purely on its

probability,
assuming
for the purposes of that assessment that the witnesses who testified
were credible. It is not necessary for a judicial officer
or
arbitrator to find a witness not to be credible in order to find that
his evidence is not probable.”
[117]
The
learned Acting Judge held:
“
In
my view, the failure by the arbitrator to make a pertinent finding on
credibility does not demonstrate that he failed to understand
the
proper approach to the assessment of conflicting evidence. The
arbitrator appears clearly to me to have understood that his
primary
task was to resolve the conflicting versions by having regard to the
balance of probability. He applied the correct judicial
technique in
this regard. Accordingly, his failure to address the credibility of
each witness and comment thereon is not a fatal
flaw which would
entitle Applicant to a review of his award".
[118]
I
am in agreement with these views.
[119]
[95]
The First Respondent’s case was that
the Applicant, by doing what Prof Molefe requested, had failed in his
responsibility
because he ought to have reported the occurrence and
that in acting as he did, acted in contravention of his duties. The
contentions
were that the Applicant did know or ought to have known
that he was not acting in the interests of the First Respondent but
in
the interests of Prof Molefe and that he was associating himself
with unlawful acts.
[96]
The
Applicant’s defence to the allegations of misconduct was that
he was acting under the instruction of the highest functionary
in the
First Respondent, Prof Molefe, given to him on 28 July 2011, that he
was to investigate media leaks to give effect to a
decision by the
Council. The Applicant testified that he had never queried the
underlying basis for the instruction given to him.
The Applicant’s
stance was that he had no reason to doubt the
bona
fides
of
Prof Molefe or the premise of the investigation, as communicated to
him by Prof Molefe
[120]
and that the Arbitrator had
failed
to appreciate that the Applicant did not attend Council meetings and
was therefore reliant on instructions received from
Prof Molefe.
[121]
The Applicant concludes on this point that the Award of the
Arbitrator shows a failure to appreciate the functioning of the
corporate
world and the chain of command
[122]
.
[97]
A further defence of the Applicant was that although there
were established work standards in the workplace, to the extent that
there were deviations he did this as a result of the independence of
his post as internal auditor.
[98]
The
Applicant submitted that since the First Respondent knew he was
giving
instructions
to D&K regarding the monitoring of
telephones
and emails on the instructions of Prof Molefe, there was an
obligation on the First Respondent to have introduced the evidence
of
Prof Molefe to rebut what it knew would be his version. This
challenge is without merit, primarily since the selection of
witnesses
to be used is not the decision of the Arbitrator.
[123]
More than this, our Courts have accepted that when a prima facie
case
[124]
is made out, the
evidentiary burden may shift to the other party. Succinctly put, the
obligation was on the Applicant himself to
present the evidence of
Prof Molefe to substantiate his defence. I am supported in my view by
Woolworths
(Pty) Ltd v CCMA and Others
[125]
,
where the Labour Appeal Court held that once a
prima
facie
case of dishonesty had been established the evidentiary burden would
shift to the employee. Further, in
Emfuleni
Local Municipality v SALGBC and Others
[126]
Whitcher J similarly held that on raising a particular defence, an
evidentiary burden fell on the employee and it was not necessary
for
the employer to adduce evidence to disprove positively a defence,
especially if the defence is within the unique knowledge
of the
employee. An employer must prove its own case on a balance of
probabilities. If it does so, it therefore follows that the

employee's case is false.
[127]
[99]
The
Applicant
says
the Arbitrator incorrectly found that reputational risk did not fall
within the
scope
of his employment and had disregarded the work standard shown by the
Applicant. The Arbitrator had thus “unilaterally”

accepted the First Respondent's version relating to work standards
and internal policies.
[128]
In a similar vein, he complained that the Arbitrator had not set out
any basis for his conclusion that the Applicant could not
assist with
operational work and in doing so disregarded the evidence presented
by witnesses.
[129]
The
Applicant also believed the Arbitrator had incorrectly found that
Prof Molefe had not instructed him to assist in the investigation
of
media leaks, when there was no evidence presented to contradict his
version. The Applicant also contended that the Arbitrator
had failed
to apply his mind in construing in the award that the "request"
by Prof Molefe for the Applicant to assist
in the investigation was
not an instruction.
[130]
[100]
The
Applicant
says the Arbitrator also erred in finding that he could not assist
with operational work and totally disregarded the evidence presented

by the Applicant's witnesses regarding the work he had provided in
the past and did not accept the Applicant's version as to internal

arrangements and workings. He further contended that the Arbitrator
failed
to assess the testimony of the Applicant’s witnesses that Prof
Molefe was mandated to implement resolutions of the
Council as a
"CEO" and had incorrectly quoted the witnesses as having
testified that Prof Molefe was to "head"
or "lead"
the investigation task team, when there had been no evidence
presented by the Applicant or any of his witnesses
to that
effect.
[131]
[101]
The
Applicant asserts that the Arbitrator
should
have
found that the criteria in respect of appointing legal services and
consultancy services were the same, since both were specialised
and
of a privileged nature
[132]
.
To this he adds that, in flagrant disregard of the evidence, the
Arbitrator had concluded in clause 6.63 of the Award that media
leaks
did not fall within the ambit of a specialist investigation: but I
see no such finding in the cited clause.
[133]
He also says there was a developed practice and work standard that
invoices rendered by consultants could be sanitised as a result
of
their privileged nature
[134]
and that the methodology for the appointment of consultants was
similar to the appointment of accounting/forensic investigation
firms
which also rendered a specialised service.
[135]
[102]
The
list of the Applicant's complaints about the Arbitrator failing to
apply his mind, which I reaffirm is not a ground of review

contemplated by the
Arbitration Act but
which I am considering based
on the contention of the Applicant that the extent of the errors made
would lead to the conclusion
that the Arbitrator misconducted himself
or committed gross irregularities, extend as well to the Applicant’s
averment that
in accepting the version of the First Respondent that
he had procured the services of D&K without budgeted funds,
[136]
the arbitrator was incorrect. In his view the evidence demonstrated
that the First Respondent had deliberately used an incorrect
cost
code to pay for the services, while funds were nonetheless available
in the correct cost center, and this incorrect assessment
had
resulted in the expenditure being classified as unauthorised.
[103]
These complaints in
my view discount the Arbitrator’s finding that the
investigation that sought to serve the needs of Prof
Molefe and not
the First Respondent was not sanctioned. As a consequence, what
occurred in that investigation was not sanctioned
and such costs
associated with it would then be unauthorised.
[104]
Having concluded that
the investigation was for the personal purposes of Prof Molefe and
was not sanctioned, it was only logical
for the Arbitrator to find
that the acts of intercepting emails, installing monitoring devices
such as bugs on telephones and installing
cameras would not be for a
legitimate purpose and therefore there was no legitimate basis for
the Applicant to represent to the
Director ICT that the interception
of emails was required for the purposes of an internal audit.
[105]
The
Applicant avers as well that the Arbitrator erred in finding that a
camera had been installed when there was inconsistency in
the version
of the First Respondent's witnesses.
[137]
While the Arbitrator did conclude that a camera had been installed,
he based this finding on the evidence of Mr Herselman.
[138]
This may not be correct since there was only evidence that there was
dust in the office of Prof Molefe and the ceiling panel had
been
moved, indicating that a camera was installed. There was no direct
evidence that this had in fact occurred. I am of the view
that an
error of this nature would not be material and does not reflect any
misconduct, gross irregularity, bad faith or partiality.
[106]
The view by the
Arbitrator that the Applicant had led evidence to the effect that
Prof Molefe was to "head" or "lead"
the
investigation while also incorrect is not in my view a material error
of fact and had no effect on the Award.
[107]
More
than this and as I have already pointed out, the Arbitrator assessed
the responsibilities, functions and reporting lines of
the Applicant
by reference to the First Respondent's policies, Charters and the
Applicant’s Job Profile. While the Applicant
had led evidence
as to his autonomy and that he had in the past acted in a manner
similar to that which is now the subject matter
of complaint. The
First Respondent presented evidence through Dr Tromp (whose evidence
the arbitrator found to be “
on
the whole, undisputable
”
[139]
)
and by reference to the aforementioned documentation, that the
circumstances at hand were not those which would permit the Applicant

to deviate from established policies. As noted, even Ms Makinta, the
Applicant’s own witness, had testified that the Applicant
ought
to have motivated a deviation from standard process.
[108]
The
Arbitrator determined that there was no urgency attached to the
investigation as the draft minute indicated that the task team
would
"
gradually
deal with the leakage of information to the media
”
[140]
and Dr Motlatla did not raise urgency when he requested the Applicant
to be involved in the investigation. The Arbitrator’s

determination was therefore that the lack of urgency meant that the
ordinary processes could have been followed. The evidence before
him
supported this finding.
[109]
While
the Arbitrator refers to what the Applicant says is an instruction
given to him by Prof Molefe as being a “
request
”
[141]
,
which is a word the Applicant himself had used, the essence of the
Arbitrator’s finding on this aspect is that Prof Molefe,

notwithstanding being the highest functionary in the First Respondent
at the time, was not in a position to instruct the Applicant
to
undertake the investigation as the Applicant ultimately reported to
the Council through the Audit Committee and the Applicant
only
reported to Prof Molefe administratively and not functionally. On
this basis, the Arbitrator concludes that the Applicant
was not
entitled to interact with D&K as he had done. A plain reading of
the First Respondent’s policies and the testimony
of Dr Tromp
supports the above conclusions reached by the Arbitrator.
[110]
In
the Award the Arbitrator also gave consideration to the First
Respondent’s Policy on Tenders and Policy on Procurement
of
Goods and Services as well as the Policy on Unauthorised Purchases,
in relation to the appointment of D&K by the Applicant.
[142]
This
was done in the context of the evidence of Dr Tromp that when
procuring services for the First Respondent three issues were
of
prime importance, being the cost of the services, the authority of
the person making the appointment and the availability of
funds.
Although the Applicant maintained that deviations from the policies
were permitted as he was conducting a special investigation,
the
Arbitrator concluded there was no justification for deviating from
the required processes when appointing D&K and that
he had acted
beyond the scope of his duties in following the request of Prof
Molefe.
[111]
A
reading of the policies and the evidence of Dr Tromp supports the
conclusion of the Arbitrator. The Arbitrator was of the view
that as
there was no urgency there would have been nothing stopping the
Applicant from approaching the Audit Committee for its
direction in
respect of the request of Prof Molefe to assist with the
investigation
.
At
the time that would have been correct as the Audit Committee was
operative when the Applicant engaged with D&K together with
Prof
Molefe,
[143]
although the
Audit Committee did not meet again following the Council having been
dissolved. Although the Applicant correctly asserts
[144]
that Ms Nkomo testified that he was not expected to report to the
Audit Committee on a daily basis, that did not prevent the Applicant

from informing the Audit Committee.
[112]
I
therefore find that the Arbitrator, in concluding that the Applicant
had an obligation to “…
at
the least, have consulted the chairpersons of the Audit and Risk
Management Committees
”
and further that the Applicant “…
ought
to have known that he is only answerable to the VC on administrative
matters and that the probe he was asked to undertake
did not fall
within the purview of that [his] authority
”
had evidence before him to justify such determination.
[145]
My finding is of course to the exclusion of the Arbitrator having any
basis to make reference to a requirement for the Applicant
to report
to the Risk Committee, since stating this was clearly an error, but
of no material import.
[113]
The
Applicant contends that the evidence of Ms Nkomo should have been
accepted over that of Dr Tromp
[146]
and the Arbitrator did not appreciate that he was to reject Ms
Nkomo’s evidence as being false before he could accept the

evidence of Dr Tromp.
[147]
He says that even if the evidence of Dr Tromp had been correct in
respect of his interpretation of documentation, that could not
undo
the evidence of Ms Nkomo that as a fact the Applicant had the
autonomy to act in the way that he did
[148]
In
consideration of the Award as a whole it is apparent that the factual
matrix before the Arbitrator influenced his views on the

probabilities, against which he judged the testimony of the
witnesses. On the narrow grounds of review contemplated by the
Arbitration Act, the
Arbitrator cannot be faulted. As stated, it is
not necessary to reject as false the evidence of a witness in order
to make a determination
on the probabilities. The probabilities
established from a conspectus of the evidence before the Arbitrator
creates a foundation
for the Arbitrator to conclude that the version
of Dr Tromp, with his reference to written policies, was to be
preferred, without
it being necessary for the Arbitrator to state so
in his Award. There was material before the Arbitrator to sustain his
findings.
No doubt the written documentation defining the Applicant’s
role must have weighed heavily on the Arbitrator when making his

Award.
[114]
The Arbitrator, the
Applicant contends, failed to apply his mind when he accepted the
version of the First Respondent that the investigation
was of a
personal nature and was not sanctioned or authorized, when there was
no evidence to that effect. However, evidence had
been presented as
to what D&K had been instructed to do and it is quite apparent
that the interaction that the Applicant and
Prof Molefe had with D&K
was focused on obtaining information which would be of particular
interest to Prof Molefe himself.
It is also notable that Prof Molefe
had specifically requested D&K to ascertain how people felt about
his appointment. This
fell well outside the mandate of the Council to
investigate media leakages.
[115]
As to the Applicant's contentions that the
project undertaken by D&K was a special project involving
urgency, sensitive issues
and was to be secretive, it was the
Arbitrator's perspective that the tapping of telephones of Prof
Molefe’s personal assistant
on the basis that Prof Molefe felt
uncomfortable with her and she may not support his appointment, was
not in the nature of an
urgent matter nor an extreme case justifying
deviation from established policies.
[116]
It
is apparent that the instructions to investigate given to D&K
concerned matters that were very pertinent to Prof Molefe and
the
focus was certainly not on determining how media leakages were
occurring. If that were the case, the discussions would have
revolved
around this aspect, which was not the case on the Applicant's own
version. However, in his letter to Prof Mosia, the Applicant
stated
that it was his intention to first concentrate on the aspects
regarding Prof Molefe and to thereafter broaden the investigation

into the general media leakages. This version was not put to Mr
Condon in cross examination. It is also instructive that in a
communication from D&K dated 3 August 2011, addressed to the
Applicant and Prof Molefe, it is recorded that
"…it
goes without saying, all invoices would be sanitised, as agreed with
yourself, so as not to compromise the Vice
Chancellor in any
way.”
[149]
[117]
In light of this and
the unchallenged evidence that Prof Molefe himself had suggested that
the invoices were to be sanitised there
indeed appears to be
substance to the Arbitrator's view that the Applicant was involved in
using the resources of the First Respondent
for purposes that would
not have been approved by the Council. Certainly, the Arbitrator’s
findings in this regard are based
on evidence before him. Although I
am mindful that I am not sitting on appeal it is telling that the
Applicant, without question,
pursued the requirements of Prof Molefe
which were blatantly personal to him and never paused to query the
nature of the instructions,
either with Prof Molefe himself or with
the Audit Committee to which he reported.
[118]
In
considering the allegations of gross negligence and unlawful conduct,
in which the employee was alleged to have allowed monitoring
equipment
to be installed on the premises of the First Respondent, the
Arbitrator acknowledged that the First Respondent’s Policy on

Electronic Communications
[150]
permits the interception of email communications upon authorisation
from the Director ICT. However, the conclusion reached by the

Arbitrator was that the Applicant did infringe the rights to privacy
by facilitating the unlawful monitoring of electronic communications,

as he had not done this for a legitimate purpose. In the context of
the Arbitrator’s conclusion that the investigation was
for the
personal purposes of Prof Molefe, the Arbitrator had facts before him
to justify his conclusion. Since there was no legitimate
purpose, he
similarly concluded that the interception of the further monitoring
devices also infringed on the right to privacy.
Whether the
Arbitrator was right or wrong in his conclusions or assessment is
largely irrelevant. What is apparent is that his
findings were based
on evidence before him and there is nothing to suggest that they were
tainted by misconduct or gross irregularity.
[119]
Regarding
the contention of the Applicant that the Arbitrator did not make
distinct findings in respect of the independent allegations
which had
been put to the Applicant,
[151]
it
is evident that the Arbitrator specifically found the Applicant not
guilty of the fifth allegation, being that he had conspired
to bring
the First Respondent's reputation and standing into disrepute. He did
this on the basis contended by the Applicant that
no evidence had
been led in this respect. While not specifically concluding that the
applicant was guilty of the further allegations,
it is implicit from
the award and the findings made (and the very sequence of the award
itself) that the Arbitrator did find the
applicant guilty of all
further allegations. Most importantly, the Arbitrator was not
required by the Disciplinary Arbitration
Agreement to make individual
findings in respect of each of the allegations. The applicant was
enjoined to:
"determine
whether there are fair reasons to discipline the employee. The
arbitrator must first hear the evidence and arguments
of the employer
and the employee and then determine whether the employee is guilty of
the disciplinary charges."
[152]
[120]
There is therefore no
merit in this ground of review.
[121]
The
Applicant asserted that the Arbitrator incorrectly found that the
trust relationship had broken down, when there was no evidence
to
this effect and when the matter had been reported by the Applicant to
Prof Mosia in a way that showed the honesty and integrity
of the
Applicant.
[153]
[122]
While the Applicant
sought to create the impression that he was trustworthy as he had
frankly reported the circumstances of the
matter to Prof Mosia, this
is not influential. I say this as the report he presented occurred
after the Applicant had been requested
to provide such report as
there was a query in respect of the sanitised invoice. No doubt the
Applicant was compelled to provide
the background and an explanation
for the sanitised invoice. This is not indicative of honesty but is
simply the Applicant complying
with an instruction by the appointed
Administrator, Prof Mosia. The Applicant is also incorrect in his
contention since Prof Mosia
did lead evidence as to the breakdown in
the trust relationship.
[123]
The
testimony of Prof Mosia as to his lack of trust in the Applicant was
pointedly dealt with by the Applicant in the Heads of Argument
that
were presented to the Arbitrator.
[154]
Prof
Mosia had testified that he could not trust the Applicant in carrying
forward any assignments as the Applicant lacked good
judgement, was
unethical and performed unlawful actions and that he would not be in
a position to work with him in any position
of trust into the
future
[155]
. In the
Applicant’s Heads of Argument presented to the Arbitrator,
although acknowledging that there was testimony regarding
the lack of
trust by Prof Mosia, the Applicant says that relying on Prof Mosia’s
testimony as to there being a breakdown
in the trust relationship was
unfounded, as he had no relationship with Prof Mosia as Prof Mosia
had recently joined the First
Respondent. His perspective was that a
breakdown in the relationship with Prof Mosia was accordingly
irrelevant and without foundation.
There is no merit to this as Prof
Mosia was appointed to be the Administrator of the First Respondent
and as such was its most
senior representative. A breakdown of trust
with him brought on by the facts before him would certainly affect
the relationship
the Applicant ought to have with the First
Respondent itself. On this evidence, the Arbitrator was validated in
concluding that
the dismissal of the Applicant was the appropriate
sanction.
Conclusion
[124]
It is not the
obligation of this Court when reviewing a private arbitration to
reassess the evidence. What is clear is that the
Arbitrator complied
with the obligations on him by making a determination, rightly or
wrongly, based on evidence before him, that
the Applicant should not
have acted as he did. While there were some errors in the Award, the
errors were not material. The errors
made also did not manifest bad
faith or partiality and accordingly in making his Award it cannot be
construed that the Arbitrator
perpetrated a gross irregularity or
misconducted himself.
[125]
In reviewing an
arbitration award made in terms of the
Arbitration Act I
am to apply
the strict test enumerated in the various cases cited above. Having
found that there was no material error or irregularity
in respect of
each of the individual grounds of complaint, I cannot conclude that,
taken collectively, the grounds raised by the
Applicant show that the
Arbitrator had misconducted himself in relation to his duties or that
there was any gross irregularity
in the conduct of the proceedings or
that the arbitrator had exceeded his powers. I am therefore not
required, nor do I, make a
determination whether this could
constitute a ground of review. There is also no basis to conclude
that the award of the Arbitrator
had been improperly obtained. In my
view, the Arbitrator dealt with the substantial merits of the dispute
in a manner that is unassailable
in terms of the provision of
section
33
of the
Arbitration Act.
[126
]
In
light
of my findings it is
unnecessary for me to determine whether there is any merit in the
Applicant's submission that the Arbitrator
should be considered to be
a party for the purposes of costs. I accordingly make no such finding
but express the view that the
Arbitrator, deposing to an affidavit in
support of factual aspects mentioned in the First Respondent's
papers, did not constitute
opposition to the review application but
was for the purpose of dealing with some of the allegations made by
the Applicant. Failing
the Arbitrator having provided a confirmatory
affidavit, the First Respondent's answer to the allegations made by
the Applicant
would have been hearsay in some respects.
[127]
I
am
also
aware that in this Court there is no rule that costs should follow
the result but that a cost order should be made in accordance
with
the requirements of law and fairness.
[156]
In
my view it would be fair and appropriate in this case for the costs
to follow the result.
[128]
In
the
circumstances, I make
the following order:
Order
1.
The
application for the review is dismissed.
2.
The Applicant
is to pay the First Respondent's costs.
_______________________
Hertog, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant:
Advocate IL Posthumus
Instructed
by:
Pule Incorporated
For the First Respondent:
Advocate H Gerber
Instructed
by:

Welman Attorneys
[1]
Part C
, Annexure “A” to the Founding Affidavit, pages 41
to 73.
[2]
Act
42 of 1965.
[3]
Rules for the Conduct of Proceedings in the Labour Court, Rule 7A(5)
and (6).
[4]
Part
C, Answering Affidavit, page 227, para 63.
[5]
Part C, Disciplinary Arbitration Agreement, pages 139-141.
[6]
Part C, Disciplinary Arbitration Agreement, page 139, para 4.
[7]
Part C, Disciplinary Arbitration Agreement, page 140, para 5.
[8]
Part C, Disciplinary Arbitration Agreement, page 140, para 6.
[9]
Part
A,
Bundle
“B”, page 45. The Applicant had initially been engaged
by the Technikon Northern Gauteng from 1 September 2000
and which on
its merger with Technikon North-West and Technique Technikon became
the First Respondent.
[10]
Part
A, Bundle "B", page 146, second portion of para 1.
[11]
Part
A, Bundle "B", page 153, second clause of para 2.
[12]
Part
A, Bundle “B”, page 82, the para appearing under the
heading "Independence".
[13]
Part
A, Bundle "B", page 82, para 1, first 2 lines.
[14]
Part
A, Bundle "B", page 83, second bullet point under
“Authority".
[15]
Part
A, Bundle "B", page 81, under the heading "Mission".
[16]
Part A, Bundle “B”, page 71, para 1.
[17]
Part A, Bundle “B”, page 71, first sentence under the
heading "Accountability".
[18]
Part A. Bundle “B”, page 70, in the 4
th
para under the heading “Authority and Independence”.
[19]
Part A, Bundle “B”, page 72, 2nd last para under the
heading "Responsibility".
[20]
Part A, Bundle "B", pages 138 and 139.
[21]
Part A, Bundle "B", page 139.
[22]
Part
B,
Transcript,
1 March 2012, page 143, lines 8 to 16.
[23]
Part
B, Transcript, 13 April 2012, page 10, lines 13 to 18.
[24]
Part
B, Transcript, 13 April 2012,
page 9, lines 24 to 25.
[25]
Part B, Transcript, 1 March 2012, page 666, lines 15 to 25.
[26]
Part B, Transcript, 13 April 2012, page 105, lines 12 to 19.
[27]
Part A, Bundle "C", page 47, para 5.7.
[28]
Part
A, Bundle "A", pages 6 to 18.
[29]
Part
A, Bundle "A", page 8, para 2.
[30]
Part
A, Bundle "B", page 9, para 2.
[31]
Part A, Bundle “A”, page 10, para 1.
[32]
These
aspects of the report of the Applicant appear at Part A, Bundle "A",
page 10, the first two paras.
[33]
Part C, Award, page 65, para 6.52.
[34]
Part A, Bundle “A”, page 11, para 3, second sentence.
[35]
Part
A, Bundle “A”, page 11, para 3.
[36]
Part
C, Answering Affidavit, pages 186 and 187 at paras 17.33 to 17.36
and Replying Affidavit, pages 272 and 273 at para 19.
[37]
Part
B, Transcript, 21 April 2012, page 72.
[38]
Part
A, Bundle "A", page 16, para 5, last sentence.
[39]
Part B, Transcript, 21 April 2012, page 1479, lines 10-12.
[40]
Part
B, Transcript, 21 April 2012, page 1480, lines 1-2. The applicant's
view was that Ms Nkomo had testified as to his autonomy
and her
evidence ought to have trumped that of Dr Tromp as she was the head
of the Audit Committee. See Part C, Supplementary
Affidavit, pages
121 to 123 ,para 5.4.4 to 5.4.7.
[41]
Part B, Transcript, 13 April 2012, page 1423, lines 9-20 and page
1451, lines 13-17.
[42]
Applicant’s Heads of Argument, page 8, para 8.1.
[43]
Part
C, Founding Affidavit, page 14, para 3.5.1. A principle approach of
the Applicant in the pleadings is that the relationship
the
Arbitrator had with the First Respondent or one of its employees
tainted his decision-making which resulted in incorrect
findings of
fact and an arbitration that was not fair. These alleged
relationships were not dealt with at all in the Applicant’s

Heads of Argument and the First Respondent’s denial of any
untoward relationship, supported by a Confirmatory Affidavit
by the
Arbitrator, was not materially refuted.
The Applicant’s Heads of Argument also do not deal with a
number of further alleged irregularities such as the complaint
that
the Arbitrator had acted as a mediator at the commencement of the
arbitration process, that the Arbitrator had allowed the
First
Respondent to make use of further witnesses and documentation that
had not initially been specified and the like. Within
the
Applicant’s Heads of Argument and in the hearing of the matter
it was contended that although only the primary aspects
of complaint
would be addressed, the Applicant did not abandon the further
grounds of review. In order to deal with all challenges
to the
Award, I have dealt with the grounds raised in the Founding and
Supplementary Affidavits, as these are the complaints
before the
Court.
[44]
Part
C, Founding Affidavit, page 14, para 3.5.2.
[45]
Part
C, Founding Affidavit, page 14, para 3.5.3.
[46]
Part
C, Founding Affidavit, page 22, para 5.20.
[47]
Part
C, Founding Affidavit, page 22, para 5.21.
[48]
National
Union of Mineworkers obo 35 Employees v Grogan NO and another
(2010) 31 ILJ 1618 (LAC) at para 32.
[49]
2009
(4) SA 529 (CC).
[50]
Ibid
fn 49 at
para
198.
[51]
ibid
fn 49 at para 235.
[52]
ibid fn 49 at para 236.
[53]
2007
(3) SA 266 (SCA).
[54]
Ibid fn 53 at paras 51 and 52.
[55]
Ibid
at para 85.
[56]
Ibid fn 53 at para 86.
[57]
2011
(32) ILJ 1892 (LAC).
[58]
Ibid
fn 57 at p. 1897 A – C.
[59]
1915
AD 166.
[60]
Ibid fn 53 at para 55.
[61]
1994
(1) SA 162 (A).
[62]
Ibid
fn 61 at p. 169 C-E.
[63]
In
my view, it would be expected that a party contemplating the
appointment of an unknown arbitrator would, prior to agreeing
to the
appointment of such arbitrator, make enquiries as to the
appropriateness or otherwise of the person as an arbitrator,

including his or her prior experience, reputation and the like and
would do so in addition to considering the curriculum vitae
of the
arbitrator. In the usual course, a curriculum vitae would not
identify every party with which the arbitrator had previous

dealings. If the professional independence of the arbitrator is
considered to be paramount, as the Applicant contends is the
case
for him, those enquiries should be made before agreeing to the
appointment of the arbitrator.
[64]
Part
C, page 112, para 4.28.
[65]
Raswiswi
v Commission for Conciliation Mediation and Arbitration and Others
[2011] 9 BLLR 911
(LC) para 19.
[66]
Part C, Replying Affidavit, pages 204 to 205, paras 28.6 to 28.8.
The Applicant pleads that he "disagrees" with this

contention but goes no further.
[67]
Part C, Founding Affidavit, pages 25 and 26, paras 8.1 to 8.4
[68]
Part C, Founding Affidavit, page 15, paras 7.5 and 7.6
[69]
Infrachem
v Sefafe and Others
[2015] 2 BLLR 115
(LAC) at para 57.
[70]
Ibid fn 61.
[71]
Part C, Supplementary Affidavit, page 125, para 6.3.
[72]
Moloi
v Euijen and Others
[1997] 8 BLLR 1022
(LC) 1029 at E-G.
[73]
Part
C, Disciplinary Arbitration Agreement, page 140, para 5.1.2.
[74]
Part
C, Founding Affidavit,
pages
26 and 27, para 8.5.
[75]
Part C, Founding Affidavit, page 27, paras 8.5.1 and 8.5.2.
[76]
Part
C, Founding Affidavit, pages 27 and 28, paras 8.5.3 to 8.5.5.
[77]
Part
C, Founding Affidavit, page 28 at para 8.5.4.
[78]
Part C, Founding Affidavit, page 28-29, para 8.5.6.
[79]
Part
C, Founding Affidavit,
page
29, para 8.5.7.
[80]
Counsel’s file- No.1, page 53 to 56.
[81]
Counsel’s file No.1, page 56, para 43.4.
[82]
Part C Supplementary Affidavit, page 124, para 5.4.10.
[83]
Part C, Supplementary Affidavit, page 124, para 5.11.
[84]
Part
C, Award, page 73, para 6.85.
[85]
Part
C, Award, page 62 at para 6.41 quoting from the letter from the
Applicant to Prof Mosia dated 29 August 2011 and which is
to be
found in Part A, pages 6 to 18, in particular in the second
unnumbered paragraph that appears on page 8 of Part A.
[86]
Part
C, Award page 59, para 6.26.
[87]
The
consideration of the reporting lines of the Applicant and the
determination that the Applicant was precluded from engaging
in any
operational duties is to be found at Part C, Award, pages 58 to 62,
paras 6.24 to 6.39.
[88]
Part A, Bundle “B”, page 3 of the Policy on Internal
Audit, at page 77 of Bundle B.
[89]
Part A, Bundle “B”, page 3 of the Policy on Internal
Audit, at page 77, para 6, of Bundle B.
[90]
Part
C, Disciplinary Arbitration Agreement, page 139, para 4.
[91]
Part
C, Founding Affidavit, page 29, para 8.7 and at page 39, para 9.2.9.
[92]
Ibid
fn 57 at paras 8 and 9
.
[93]
Part
C, Founding Affidavit, page 29, para 9.
[94]
Part
C, Supplementary Affidavit, page 113, para 5.1.
[95]
[2002]
3 BLLR 189 (LAC).
[96]
Ibid fn 109 at para 52.
[97]
[2012]
1 BLLR 71 (LC).
[98]
Ibid
fn 111 at
para 8. See also:
Telcordia
(Id fn 53) at para 85 where the Supreme Court of Appeal determined
that even if the Arbitrator misinterpreted an agreement, failed
to
apply the law correctly or had regard to inadmissible evidence this
did not mean that he misconceived the nature of the enquiry
but
means only that he erred in the performance of his duties. It was
reiterated in this case that an arbitrator "has the
right to be
wrong".
[99]
Part
C, Founding Affidavit, page 30, paras 9.1 and 9.2.
[100]
Part
C, Founding Affidavit, pages 30 and 31, para 9.3.
[101]
Part
C, Award, page 47, paras 5.3 to 5.5.
[102]
Part
C, Founding Affidavit, page 30 at para 9.1, line 3.
[103]
Part
C, Founding Affidavit, page 31 at para 9.4.
[104]
Part
C, Founding Affidavit, pages 31 and 32, para 9.5.
[105]
Part
C, Award, page 58, para 6.24.
[106]
Part C, Founding Affidavit, page 38, para 9.26.
[107]
Part
C, Award, page 56, para 6.16.
[108]
Part
C, Award, page 57, para 6.20, the last line thereof.
[109]
Part C, Founding Affidavit, page 38, para 9.27.
[110]
Part
C, Founding Affidavit,
page
32, paras 9.6 and 9.7.
[111]
Part
C, Founding Affidavit, page 32, para 9.7.
[112]
Part
C, Award, page 56, para 6.15 and 6.16.
[113]
Part
C, Founding Affidavit, page 36, para 9.20.
[114]
(2014)
35 ILJ 1656 (LC)
[115]
Ibid
fn 128 at para 19.
[116]
[2016] JOL 35673 (LC).
[117]
Ibid fn 130 at para 19.
[118]
Id fn 130 at para 20.
[119]
In
National
Employers' General Insurance Co Ltd v Jagers
1984
(4) SA 437
(A) it was held that when deciding whether evidence is
true a Court will weigh up the allegations against the general
probabilities
and the credibility of witnesses is therefore bound up
with considerations of the probabilities. See also:
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell & Cie and Others
2003 (1) SA 11
(SCA) at para 5.
[120]
Part
C, Answering Affidavit page 183 at para 17.23 and Part C, Replying
Affidavit, pages 270 and 271 at para 15.
[121]
Part
C, Founding Affidavit,
page
37, para 9.23.
[122]
Part
C, Founding Affidavit, page 36, para 9.2.
[123]
Part C, Supplementary Affidavit, page 114 to 120, para 5.3.
[124]
See:
Woolworths
(Pty) Ltd v CCMA and Others
[2011]
10 BLLR 963
(LAC) at para 34. See also:
RSA
Geological Services (A Division of De Beers Consolidated Mines Ltd)
v Grogan and Others
[2007] ZALC 64
;
[2008] 2 BLLR 184
(LC) at para 32.
[125]
[2011]
10 BLLR 963
(LAC) at para 34.
[126]
[2015]
ZALCJHB 356 at para 25
[127]
See
also:
Pillay
v Krishna and Another
1946 AD 946
at 951 and
National
Media Ltd and Others v Bogoshi
1998 (4) SA 1196
(SCA) at 1218 E – F.
[128]
Part
C, Founding Affidavit, pages 32 and 33, para 9.8.
[129]
Part
C, Founding Affidavit, page 33, para 9.9.
[130]
Part
C, Founding Affidavit, page 33, paras 9.10 and 9.11.
[131]
Part
C, Founding Affidavit
,
page 37, para 9.24.
[132]
Part
C, Founding Affidavit, pages 34, para 9.12.
[133]
Part C, Supplementary Affidavit, page 123, para 5.4.8
[134]
Part
C, Founding Affidavit, page 34, para 9.13.
[135]
Part
C, Founding Affidavit, page 34, para 9.14.
[136]
Part
C, Founding Affidavit, page 35, para 9.15.
[137]
Part
C, Founding Affidavit, page 35, para 9.16.
[138]
Part C, Award, page 73, para 6.82.
[139]
Part C, Award, page 65, para 6.54.
[140]
Part
A, Bundle B, page 139.
[141]
In
his report to Prof Mosia of 29 August 2011 the applicant states that
"…
after briefing me on the task team, Prof Molefe requested that
internal audit should assist the task team with
the investigation".
Part A, page 8, last para.
[142]
Part
C, Award, page 65, para 6.53 to page 68, para 6.66.
[143]
The
Applicant says as well that the Arbitrator failed to apply his mind
in concluding that the Applicant ought to have reported
the matter
to the Risk Committee when he did not report to the Risk committee.
See Part C, Founding Affidavit, pages 37 and 38,
para 9.25. This is
clearly an error as the Applicant reported to the Audit Committee
but this is an innocent error.
[144]
Part
C, page 38, para 9.25.
[145]
Part C, pages 66 and 67, para 6.59
[146]
Part
C, Supplementary Affidavit, pages 121 and 122, paras 5.4.4 and
5.4.5.
[147]
Part
C, Supplementary Affidavit, page 122, para 5.4.5.
[148]
Part C, Supplementary Affidavit, page 122, para 5.4.6.
[149]
Part
A, page 29.
[150]
Part A, Bundle A, pages 88 to 101.
[151]
Part C, Founding Affidavit, page 36, para 9 19.
[152]
Part
C, Disciplinary Arbitration Agreement, page 139 at para 4.
[153]
Part
C, Founding Affidavit,
pages
38 and 39, para 9.28.
[154]
Counsel’s
File No.1, page 51, para 42 and in particular 42.1.
[155]
Part
B, Transcript, 27 February 2012, page 139, lines 15 to page 140,
line 9.
[156]
Section
162 of the LRA. See:
Zungu
v Premier of the Province of KwaZulu-Natal and Others
(2018) 39 ILJ 523 (CC) that endorsed the decision of
The
Member of the Executive Council (MEC) for Finance: Kwazulu-Natal and
Another v Dorkin NO and Another
[2008] 6 BLLR 540
(LAC)] where, Zondo JP (as he then was) held at
para 19:
“
In
making decisions on cost orders this Court should seek to strike a
fair balance between on the one hand, not unduly discouraging

workers, employers, unions and employers’ organisations from
approaching the Labour Court and this Court to have their
disputes
dealt with, and, on the other, allowing those parties to bring to
the Labour Court and this Court frivolous cases that
should not be
brought to Court. That is a balance that is not always easy to
strike but, if the Court is to err, it should err
on the side of not
discouraging parties to approach these Courts with their disputes.”