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[2019] ZALCCT 5
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Satani v Department of Education Western Cape and Others (C447/2017) [2019] ZALCCT 5 (6 March 2019)
the
labour court of South Africa, cape town
judgment
case
no: c 447/2017
Not
reportable
of
interest to other judges
In
the matter between:
Monde
Chris SATANI
Applicant
And
DEPARTMENT
OF EDUCATION, WESTERN CAPE
First
Respondent
EDUCATION
LABOUR RELATIONS COUNCIL
Second
Respondent
PIERRE
VAN TONDER N.O.
Third
Respondent
Heard
:
26 February 2019
Delivered:
6 March 2019
Summary:
Review – unfair labour practice – LRA ss 145 and
186(2)(b).
Award
not unreasonable.
judgment
STEENKAMP
J
Introduction
[1]
The
applicant, Mr Satani, is a teacher. As long ago as 2012, he was
disciplined for making inappropriate remarks of a sexually suggestive
nature to a learner, a girl in Grade 6 at Bardale Primary School in
Mfuleni (Blue Downs), Cape Town. He was given a final written
warning
and had to pay a fine of R6000, 00, payable over 12 months. He was
unhappy. He referred an unfair labour practice dispute
in terms of s
186(2)(b) of the LRA
[1]
to the
Education Labour Relations Council
[2]
.
A panellist, Ms Bella Goldman, found that the Department of Education
of the Western Cape
[3]
had not
committed an unfair labour practice. He took the award on review.
This Court upheld the award
[4]
.
He appealed. The Labour Appeal Court overturned the judgment on the
basis that Ms Goldman had entered the arena and deprived the
applicant of a fair hearing
[5]
.
It held that the award must be reviewed and set aside because the
scope, nature and effect of the arbitrator’s interventions
and
dominance were such that she failed to afford the parties a fair
hearing. The outcome, it held, was irrelevant. It remitted
the
dispute to arbitration. The second arbitrator, Mr Pierre van
Tonder
[6]
, again found that
there was no unfair labour practice. Mr Satani now seeks to have the
second arbitration award reviewed and set
aside. Hence the delay of
seven years.
Background facts
[2]
The applicant was issued with a notice to answer the following
charges:
‘
Charge
1: It is
alleged that you are guilty of misconduct in terms of
section 18 (1)
g of the Employment of the Educators Act 76 of 1998 (the Act) in that
during the third term of 2012, you behaved
badly in an improper and
unbecoming manner towards learner A, a learner at Bardale Primary
School:
·
By asking her for her cell phone number and/or
·
By asking if you could meet and talk to her and/or
·
By suggesting that she meets you in a forest or bush and/or
·
By asking her if she had a boyfriend.’
[3]
A second charge was dropped prior to the disciplinary hearing.
[4]
The
learner
[7]
was 13 years old but
had only progressed to Grade 6 at the time of the incident. She was
among other learners who did poorly in
Mathematics and English.
During September or October 2012, the applicant who was the class
teacher (but not the subject teacher
for these subjects) called them
to his desk to discuss their marks. According to the learner, he
called them individually to his
desk. His version was that he called
them as a group to his desk. According to the learner, Mr Satani
asked her if she knew that
she was beautiful, and asked for her
cellular phone numbers. She claimed that the next day he called her
again to his desk and
asked her for her cellular phone numbers again.
He also asked her if she had a boyfriend, if she went out walking at
night and
if she would meet him in the bush. She refused to give him
her cellular phone numbers. On both occasions, the incident happened
in class where there were other learners.
[5]
The learner reported the incident to another learner as well as to
her aunt with whom she
was staying. The aunt in turn reported what
she was told to the school principal. The latter called all the
affected parties to
her office. The applicant denied the incident. He
mentioned that he only asked the learner for her mother’s
telephone number
in order to discuss poor marks in the affected
subjects. The learner’s aunt, the school principal and another
learner testified
about the reports she made to them respectively.
There were however, some discrepancies on the actual report to them.
The applicant,
in addition to his evidence called two other learners
as witnesses. The tenor of their testimony was that the appellant
called
the leaners as a group to his desk and not individually.
[6]
The first arbitrator concluded that the evidence of the appellant and
his witnesses was
not credible as opposed to that of the learner and
her witnesses, that the appellant was guilty of the misconduct
complaint and
that the sanction imposed did not constitute an unfair
labour practice in terms of s 186(2)(b) of the LRA.
The second arbitration
award
[7]
At the second arbitration, learner A again testified. Another
learner, referred to as learner
G, was called as a witness by the
applicant, who also testified. He also called the deputy principal,
Mr Andile Mangali. Apart
from the complainant (learner A), the
Department called the principal, Ms Mangcoto, as a witness.
[8]
The applicant testified that 15 learners in the class were performing
poorly. There was
a “phase meeting” on 9 October 2012
where it was decided to call the parents of those learners in. The
school has “learner
profiles” that should include their
parents’ phone numbers, but sometimes they are incomplete or
outdated. He called
the learners to his desk (in a group) to ask them
for their parents’ phone numbers. Learner A did not provide a
phone number.
At the next phase meeting Mr Mangali, the deputy
principal, said that he would write a letter for the class teacher to
give to
each learner. A copy of such a letter, dated 18 October 2012
and written in isiXhosa, reads (translated into English):
“
Dear parent, you
are requested to come to school tomorrow morning at 8 am regarding
your child.”
[9]
Satani testified that he gave copies of these letters to the pupils
whose parents’
phone numbers were outstanding. Learner A was
one of them. One 30 October there was another phase meeting. Mr
Mangali told the
teachers to call all “those learners” to
sign next to their names on a sheet containing “pre-progression
information”.
He called those learners as a group again. They
signed the form, including learner A and learner G. He denied the
allegations in
the “charge sheet”. He said that he could
not have a private conversation with a learner at his desk due to the
classroom
layout and the close proximity of the desks.
[10]
The other learner, G, testified that Satani called the learners to
his desk as a group. He also asked them
to sign the “pre-progression”
sheet on another occasion. On that occasion he called them to his
desk one by one, and
not as a group.
[11]
The deputy principal, Mr Mangali, testified that a standard letter is
sent out every year to the parents
of poorly performing learners. The
arbitrator recorded:
“
Despite
very leading questions by Mr Bosch, I never heard the witness saying
that he did tell applicant and other teachers in 2012
or any other
time to ask learners for the phone numbers of their parents.”
[12]
Mr Mangali did recall signing the letter of 12 October 2012
requesting parents to come to school. The way
in which to engage
parents was normally through written communication.
[13]
The complainant, learner A, testified that Satani had called the
poorly performing learners to his desk one
by one. He asked her if
she knew she was beautiful. He also asked her if she has boyfriends
and if she goes out at night. He asked
her for her cell phone number.
She told him she only knew her mother’s number. He suggested
that they meet in the bush. She
laughed. He told her not to make a
noise. He then told her not to tell anyone else what they had spoken
about but to get him her
cell phone number.
[14]
The
following day, Satani again asked her for her phone number. She said
that she had forgotten. She reported the incident to her
mother
[8]
when she got home. Her mother reported it to the principal. The
principal called her, her mother, another learner (also a
complainant),
and Satani in. She recalled that Satani showed her a
document. She thought it was a class list. He had a ruler with which
he covered
the names of other learners. He did not call them as a
group. And she could not recall him giving her a letter to give to
her parents.
[15]
Under cross-examination, Mr
Bosch
– who represented the
applicant at arbitration and in this application – pointed out
to the complainant that, at the
previous arbitration five years
earlier, she had acknowledged that the applicant had given her a
letter to give to her parents.
She responded that that was indeed
correct and that she was confused because it was such a long time
ago.
[16]
The principal, Ms Mangcoto, testified that the complainant’s
mother reported the incident to her. When
she called those involved
to her office, Satani denied the allegations.
The arbitration award
[17]
The
arbitrator’s award spans 58 pages. He starts off by setting out
the well-known technique for resolving factual disputes
enunciated by
Nienaber JA in
SFW
[9]
.
He also
noted that the onus in terms of s 186(1)(a) of the LRA rests on the
applicant. And he took the single witness rule into
account. He noted
that “even if the rule is not applicable in civil proceedings
or arbitration proceedings, a presiding officer
or arbitrator must
nevertheless be satisfied that the evidence of a single witness is
reliable and trustworthy before relying on
it”.
[10]
[18]
The arbitrator carefully considered the evidence before him. He
disagreed with Mr
Bosch
that the applicant was more credible
and reliable than the complainant, or that his version was more
probable than hers.
[19]
The
arbitrator summarised those inconsistencies that did appear from the
complainant’s evidence when compared to her evidence
in the
previous arbitration five years earlier. He found that “not
every error made by a witness affects her credibility”
[11]
.
And he was satisfied that none of the contradictions and
inconsistencies had negatively impacted the credibility of the
Department’s
two witnesses.
[20]
Also, having carefully assessed the nature of the aspects in the
evidence of the Department’s witnesses
which its representative
did not put to the applicant, the arbitrator was satisfied that
although he could not take these aspects
into account against the
applicant (as he was not given the opportunity to respond to them),
they did not negatively impact on
the credibility of its witnesses
either. Many of them were peripheral.
[21]
In assessing the evidence of the complainant, the arbitrator also
took into account that her evidence was
corroborated on a material
aspect by that of the applicant’s own witness, learner G.
Whilst Satani insisted that he invariably
called learners to his desk
in a group, and never individually, G testified that, when Satani
called them to sign the sheet, he
did so individually and not in a
group.
[22]
In assessing the applicant’s evidence, the arbitrator took into
account that his version was in certain
respects not corroborated by
his own witnesses. One of those was the issue of calling learners to
his desk as a group, and never
individually. His other witness, Mr
Mangali, did not really assist his case, despite leading questions
being put to him by counsel.
[23]
Having carefully assessed the evidence and probabilities, the
arbitrator found that the applicant’s
version that he called
learners to his desk was improbable. And he found that there was no
plausible reason why the complainant
would have fabricated her
evidence. By the time of the second arbitration she was 18 years old,
had long left Bardale Primary School,
was living in the Eastern Cape
and had nothing to do with Bardale or Satani. Even when she
reported the incident in 2012
she had no ulterior motive to fabricate
it.
[24]
After
evaluating all the evidence, the arbitrator took a step back to
consider “the entire mosaic of evidence” before
him.
[12]
He was unable to find that the applicant was telling the truth and
the complainant was lying. He was satisfied that the probabilities
did not favour his version and that he did commit the misconduct
complained of.
[25]
Turning to the sanction of a final written warning valid for 6 months
and a fine of R6000 payable over 12
months, the arbitrator commented
that the applicant’s counsel, Mr
Bosch,
was wise in not
challenging the fairness of the sanction. The sanction was not too
harsh.
[26]
In conclusion, the arbitrator found that there was no unfair labour
practice.
Review grounds
[27]
Mr
Bosch
submitted
that the arbitrator’s award was not one that a reasonable
decision-maker could reach
[13]
for the following reasons:
27.1 There
were contradictions and inconsistencies in the evidence of the
Department’s witnesses
27.2 He
failed to properly evaluate the evidence and to come to a reasonable
finding.
27.3 He
should have applied the cautionary rule to the complainant’s
evidence.
27.4 There
were other learners who could have been called to testify. That
should lead to an adverse inference against
the complainant.
27.5 The
complainant should have called other learners as witnesses.
27.6 The
failure to do so relates to uncertainty on the complainant’s
part.
27.7 The
arbitrator did not properly consider the layout of the classroom.
27.8 The
complainant was not a good witness.
27.9 Learner
G corroborated the applicant’s evidence in all material
respects.
27.10
Ms Mangcoto advised teachers not to deal with pupils one on one.
27.11
He should have attached more weight to Satani’s evidence.
27.12
He did not make a proper finding on the two mutually destructive
versions.
27.13
His own experience was irrelevant.
Evaluation / Analysis
[28]
Although many of the review grounds are more akin to an appeal, I
shall deal with each of the broad grounds
in turn.
Contradictions and
inconsistencies
[29]
The arbitrator accepted that there were contradictions and
inconsistencies in the evidence of the Department’s
two
witnesses. And as he stated, referring to the relevant case law, “not
every error made by a witness affects her credibility”.
He
evaluated the evidence carefully and weighed it up. He was satisfied
that none of the contradictions and inconsistencies had
negatively
impacted on the Department’s two witnesses. In short, he did
exactly what a trier of fact should do. His conclusion
is one that
another reasonable decision maker could reach, even though someone
else may have found differently. This is a review,
not an appeal. His
conduct does not amount to misconduct and is not open to review.
Evaluation of evidence in
toto
[30]
The
arbitrator carefully analysed and dealt with the evidence before him.
The test in
Sidumo
[14]
was
formulated thus:
“
One of the duties
of a commissioner in conducting an arbitration is to determine the
material facts and then to apply the provisions
of the LRA to those
facts in answering the question whether the dismissal was for a fair
reason. In my judgment where a commissioner
fails to apply his or her
mind to a matter which is material to the determination of the
fairness of the sanction, it can hardly
be said that there was a fair
trial of issues”.
[31]
In this case, the arbitrator applied his mind to the material facts.
And he came to a conclusion that another
arbitrator could (not would)
reach. This broad review ground must also fail.
Cautionary rule: single
witness
[32]
The
arbitrator was alive to the fact that the complainant was a single
witness. He also took into account that he was sitting in
an
arbitration, dealing with the matter with the minimum of legal
formalities
[15]
, and not in a
criminal trial. He took the single witness rule into account. And,
having regard to the leading cases, he noted that
“even if the
rule is not applicable in civil proceedings or arbitration
proceedings, a presiding officer or arbitrator must
nevertheless be
satisfied that the evidence of a single witness is reliable and
trustworthy before relying on it”. He was
so satisfied. That is
the analysis that can be expected of an arbitrator. And his
conclusion is a reasoned and a reasonable one.
Other learners
[33]
It may well be that the Department could have called other learners
to testify; but it would have been nigh
impossible. This arbitration
took place more than five years after the original incident. The
learners were then in Grade 6. By
the time of the arbitration, all of
them had left Bardale Primary School; in the case of learner A, for
example, she was now 18
years old and living far away in the Eastern
Cape. This review ground smack of grasping at straws.
Classroom layout
[34]
The arbitrator specifically dealt with the classroom layout and
recorded the applicant’s allegation
that it would not have been
possible to have a private conversation with a learner without others
overhearing it. But having considered
all the facts (“the
mosaic of the evidence”, as he put it) he concluded on the
probabilities that the complainant’s
evidence was more probable
than Satani’s. It is a conclusion that another arbitrator could
reach.
Learner G’s
evidence
[35]
The arbitrator carefully considered and evaluated G’s evidence.
One aspect of that evidence is that
she contradicted Satani, who
called her as a witness, in a material respect: she testified that he
did, on occasion, call learners
to his desk one by one. It is a
proper and reasoned analysis and not reviewable.
Mangcoto’s evidence
[36]
The principal, Ms Mangcoto, testified that she had advised teachers
not to engage with pupils individually.
But whether that was the
principal’s advice or not, the arbitrator found on the
probabilities that Satani did so. That is
a finding that another
arbitrator could reach on the evidence.
Own experience’
[37]
In my view,
the only review ground that has some merit is the fact that the
arbitrator brought his own experience to bear in the
matter. That was
not a proper way to deal with the evidence and is open to criticism.
But it does not vitiate the award as a whole.
As the Constitutional
Court stated in
Herholdt
[16]
:
“‘
In summary,
the position regarding the review of CCMA awards is this: A review of
a CCMA award is permissible if the defect in the
proceedings falls
within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have
misconceived the nature of the inquiry or
arrived at an unreasonable
result. A result will only be unreasonable if it is one that a
reasonable arbitrator could not reach
on all the material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached
to particular facts, are not in and of
themselves sufficient for an award to be set aside, but are only of
any consequence if their
effect is to render the outcome
unreasonable.”
[38]
In this case, the arbitrator arrived at a reasonable result on the
evidence before him. The award is not
open to review, as opposed to
appeal.
Conclusion and costs
[39]
The arbitrator arrived at a conclusion on the evidence before him
that another arbitrator could reach. The
award is not reviewable.
[40]
This matter
has dragged on for seven years at considerable cost to the fiscus. It
goes against the very aim of the LRA, namely expeditious
dispute
resolution. It should, at the very latest, have stopped after the
second arbitration. Yet Mr Satani chose to continue litigating,
attorney and counsel at his side, even in the arbitration process
(which is meant to be quick and informal, and usually without
legal
representation). The costs far exceed the R6000 fine that he could
pay off over a year, and the final written warning would
have lapsed
more than six years ago. Not only was he ultimately unsuccessful, I
can see no reason in fairness while the Department
should have
continued to pay his costs after the second arbitration award –
a lengthy, well considered and well-reasoned
one – had been
handed down. Taking into account the considerations of both law and
fairness
[17]
, the unsuccessful
applicant should pay the costs of this application.
Order
The
application for review is dismissed with costs.
________________________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Craig
Bosch
Instructed
by Funeka attorneys.
FIRST
RESPONDENT:
André
Coetzee
Instructed
by the State Attorney.
[1]
Labour
Relations Act 66 of 1995
.
[2]
The
second respondent.
[3]
The
first respondent.
[4]
Satani
v Educational Labour Relations Council
[2015] ZALCCT 13 (10 February 2015).
[5]
Satani
v Department of Education, Western Cape
[2016] ZALAC 38
; (2016) 37
ILJ
2298 (LAC) (13 June 2016).
[6]
The
third respondent.
[7]
Referred
to as “learner A” to protect her identity.
[8]
It
appears that she referred to her aunt, who acted
in
loco parentis
,
as her mother.
[9]
Stellenbosch
Farmers’ Winery Group Ltd v Martell et cie
2003
(1) SA 11 (SCA) 14 I.
[10]
Referring
to
Ngozo
v RAF
[2013]
ZAGPJHC 390 at par [68] and
Daniels
v General Accident Ins Co Ltd
1992
(1) SA 757
(C) at 759 I – 760 B.
[11]
Referring
to
S
v Oosthuizen
1982
(3) SA 571
(T); Nicholas “Credibility of witnesses” 1996
SALJ
Vol
102 at 32;
Kok
v CCMA
[2015]
ZALCJHB 45 par [34] ff.
[12]
Applying
the dictum, in the context of criminal law, in
S
v Hadebe
1998
(1) SA 422
(SCA) 426 e-h; and
S
v Govender
[2004]
2 All SA 259 (SCA).
[13]
i.e.
the well-known test articulated in
Sidumo
v Rustenburg Platinum Mines Ltd
(2007)
28
ILJ
2405
(CC) and
Herholdt
v Nedbank Ltd
(2013)
34
ILJ
2795
(SCA).
[14]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at paras 266-267.
[15]
LRA
s 138.
[16]
Herholdt
v Nedbank Ltd
2013
(6) SA 224
(SCA); (2013) 34
ILJ
2795 (SCA) at par 25.
[17]
LRA
s 162.