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[2025] ZALCJHB 55
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Sasol Oil (Pty) Ltd v Dunywa and Others (JR1666/09) [2025] ZALCJHB 55 (7 February 2025)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No:
J
R1666/09
In
the matter between:
SASOL
OIL (PTY) LTD
Applicant
and
TOM
P
DUNYWA
First Respondent
AUPA
MBHELE
Second Respondent
NATIONAL
BARGAINING COUNCIL
FOR
THE CHEMICAL INDUSTRY
Third Respondent
B
MBOVANE N.O.
Fourth Respondent
Heard
:
6 August 2024
Delivered
:
07 February 2025
JUDGMENT
DAVE,
AJ
Introduction
[1]
This is an opposed application to review and set aside an arbitration
award dated 14 May
2009, issued by the Second Respondent (the
Commissioner) under the auspices of the First Respondent (the
Council) under case number
FSCHEM224-08/09.
Background
[2]
The Third Respondent (‘Tom’) and the Fourth Respondent
(‘Aupa’)
prior to their dismissals, were employed by the
Applicant as Fuel Driver Operators, i.e. truck drivers.
[3]
An incident occurred on 15 August 2028, when Mr Percy Bvuma (an
external person not
employed by the Applicant) (‘Bvuma’)
witnessed two individuals siphoning fuel from a petrol tanker at the
Applicant’s
premises (a truck stop). Bvuma had arrived early
that morning to check on his vehicles when he came around a corner in
his vehicle
and his lights shone on the individuals. When the
individuals looked up, Bvuma could see their faces. Bvuma also saw
the equipment
that was used to drain the petrol from a section of the
truck. In order to drain the petrol from the truck, the truck needs
to
be switched on and idling. Bvuma also noticed orange cones held in
place by a plastic bag and three blue containers next to the
truck.
The two individuals ran away in different directions after one
attempted to hide under the truck. After reporting the incident
to
security, Bvuma later saw the same two individuals in the vicinity
and identified them as the individuals who he had seen that
morning.
[4]
Consequent to the above, Aupa and Tom were charged with theft. The
charge against them reads
as follows:
‘
It is
alleged
that you contravened the Sasol disciplinary code for employees Rule
5(c), theft in that, on the 15 August 2008, you intentionally
were in
the unlawful possession and involved in the attempted removal of the
property of the Company, fuel in various containers,
in order to
deprive the Company of the specific goods, or attempt to commit the
aforementioned.
Alternative
charge to charge 1:
It is alleged is alleged
that you contravened the Sasol disciplinary code for employees Rule
5(d), unauthorized possession in that
on the 15 August 2008 you were
in the unauthorized possession and or involved in the removal or
attempted removal of fuel belonging
to the Company’.
[5]
Both were found guilty and dismissed. They appealed their dismissals,
however the finding
of dismissal was upheld. They thereafter referred
an unfair dismissal dispute to the Council. In her award, the
Commissioner found
the dismissals to be procedurally fair but
substantively unfair. The Commissioner ordered reinstatement with
effect from 1 June
2009 without loss of service and benefits, and
ordered the Applicant to pay each five months’ salary as back
pay equal to
R46 740.00.
[6]
In its review application, the Applicant, in essence, contends that
the Commissioner failed to
properly determine the evidence before
her, and secondly, that the determination of the Commissioner is not
what a reasonable arbitrator
would have come to on the available
evidence. The Applicant contends that the Commissioner committed a
gross irregularity in her
failure to apply her mind to the evidence
placed before her and in rejecting the Applicant’s evidence
without proper consideration
thereof.
Evidence
before the Commissioner
[7]
The evidence before the Commissioner in relation to the incident was
the following:
Incident of attempted
theft
:
7.1
Johan Quinn (‘Quin’) the person appointed to investigate
the incident, testified that the
key to the truck in question was
placed in the security box by the previous driver of the truck after
he had ended his shift on
14 August 2008 (i.e. the day before the
incident) and handed in the key to security;
7.2
Quinn further testified that the C track system that is installed in
the truck is a device that monitors
the vehicle from the moment the
ignition is turned on. The report recorded that the truck’s
ignition was turned on at 04h23
on 15 August 2008 and it idled for a
few minutes until the ignition was turned off at 04h30. The section
on the petrol tanker (the
Alfonshaar box) requires a minimum pressure
in order for the compartment to enable the product remaining in the
pipes to flow out.
This pressure is obtained by enabling the engine
to idle for a few minutes to build up pressure;
7.3
Bvuma testified that at around 04h00 on 15 August 2008, he drove into
the truck stop where he turned
his car at the second lane of the
parking at an estimated distance of 30 meters, and he saw two people
looking directly at him.
Bvuma testified that Tom was wearing a blue
hat with a white stripe on it and that Tom was “
looking at
me straight”.
7.4
Bvuma further testified that Aupa ran under the truck and was on all
fours and then ran away. He observed
four blue containers three of
them were full of petrol and the other one was half full. He also
found an orange cone and a plastic
bag. In his statement to the
police Bvuma stated “
I know the two persons I saw in the
truck parking area by face and not by name. I would recognise them if
I see them again”.
Identification of Aupa
and Tom at the security office
7.5
On 15 August 2008 the security footage captures the two individuals
entering the security office at
04h15. In observing the video footage
presented at the arbitration, an arm is seen reaching towards an
object in the security office.
Tom and Aupa are seen leaving shortly
thereafter. Anne Herbst (Herbst), the head distribution manager
employed by the Applicant,
testified about the location of the key
box and that it is situated in the same place the arm reached out to.
7.6
Aupa and Tom’s version is that they did not take the key from
the key box but instead attended
at the security office to submit
themselves to a breathalyser test. Herbst testified that it was
unlikely that the two individuals
intended to take a breathalyser
test inside the security office as it is an
ad hoc
test and
not a scheduled test and that it is done “
outside in the
public eye, underneath the canopy. They don’t take you into a
closed office to do it. The policy states that
are not allowed to”.
7.7
Quinn testified on the breathalyser policy that:
“
Randomly, on some
mornings, the security will stop people entering
the premises to blow, to see if they're under the influence. They
don't do it every
morning. So there is no reason for them to stop
there and go in and tell security that they are here and can blow.
And they are
not allowed to blow in the office, they must be outside
the office. And at that stage, when you see the people entering the
premises,
there were no security guards on the outside. So they
weren't stopped by a security.”
7.8
Bvuma
testified that he phoned to report the
incident to the Applicant and drove to the security office. While at
the security office,
he saw Aupa and Tom walking together and
immediately identified them pointing them out to the security.
Aupa at the Admin
building / management office
7.9
Quinn testified that video evidence shows footage of Aupa on the
stairs of the admin building coming
down from the first floor at
04h47. He testified that during the investigation he asked Aupa why
he had gone to the first floor.
Aupa informed him that he wanted to
use the toilet.
7.10
Herbst testified that
the admin building does not
belong to the Applicant. In this regard she stated the following:
“…
..
on
the video footage you can clearly see Aupa running into the
commercial office next door. That is the truck stop people who
operate
the forecourt and the premises, running up the stairs,
halfway up the stairs he pulled a beanie over his face and then he
ran back
out again. It is not our building, we do not have any
offices there or facilities there, that is different people from the
commercial
side.”
7.11
Under cross examination, Herbst was asked what
inference the Applicant drew from the footage. She answered as
follows:
“
The
statement from [Bvuma] is correct. He saw a person running to the
pumps and then where did Aupa go? He went up the building
as per the
video footage and out again”.
7.12 Bvuma
testified that after he pointed out Aupa
, “security asked
Aupa what he was doing upstairs, “Aupa Replied that he wanted
to make coffee”.
7.13 Also
before the Commissioner was the statement of Andries Mzekwa, a
security guard who was on duty on the morning
of the incident stating
that:
“
at
the [security] office I went to get the radio to call Sasol Officer
(Security). At the office I passed a man at the stairs that
was going
to the 1st floor. I asked the man what is he doing there. He replied
that he was busy making tea. There are no facilities
to make any tea
or coffee at night.”
7.14 Herbst
testified that Aupa gave conflicting versions as to why he was in the
management office and evidence on
the absence of a bathroom on the
first floor and the absence of tea or coffee facilities. She
testified that:
“
If
you look at the building next door, there is not a kitchen, so I'm
not sure how they wanted to make coffee. Here is a room that
is
marked “kitchen” but there is nothing in it except a
small bar fridge. There is no kettle, no coffee, no sugar,
no milk.
Bathroom, there is a bathroom at the truck stop, in that building at
the office on the bottom floor, or the ground floor,
but he ran past
the bathroom on the video footage, straight up the stairs, and back
out, immediately, out the door.”
Searching Aupa’s
car
7.15
Herbst testified that she was present when security searched Aupa’s
car. She stated that:
“
We
opened the boot. In his book I found 2 ‘tregters’. I
asked him why it was in his boot, he said to me his fuel gauge
was
not working and sometimes he ran out of fuel, so he needs that to put
fuel in his vehicle.”
7.16
Herbst did not find any other container in his boot where he could
have put petrol inside should his vehicle
stop somewhere.
7.17
Herbst further testified that after searching the vehicle, there was
nothing inside it that would indicate
that Aupa had taken a shower.
Herbst also testified that Aupa and Tom did not have any lockers in
the area where they could have
kept a toiletry bag, or a towel.
7.18
Quinn testified that when security searched Aupa’s vehicle,
there was no face cloth, soap or towel
in the car.
Aupa and Tom’s
early arrival a work
7.19
Aupa and Tom arrived at the truck stop early on 15 August 2008
between 04h00 and 5h00. Video footage placed
them both at the
security office at 4h15.
7.20
Herbst testified that Aupa and Tom’s shift started at 06h00.
She testified that she asked Aupa and
Tom why they were at work so
early and they replied: “
they always come in early to
shower
”. She further testified that the clocking cards
established the history of the arrival times of Aupa and Tom: “
In
the formal investigation I went and pulled out all the clock cards.
They only clocked in every morning at six o’clock…..there
was no time record that indicated they start earlier. They could have
been here earlier, but that only clocked in at six o’clock”.
7.21
According to Aupa and Tom, they arrived on the scene only after Bvuma
arrived and so the argument goes that
it couldn’t have been
them that he identified. On this point, under cross examination,
Bvuma is confused about his time of
arrival. However, Quinn testified
in his security report according to security footage that on 15
August 2008 Bvuma arrived at
the truck stop at 4:28 to inspect his
fleet of trucks. Furthermore, the written statement made by Bvuma to
the police was before
the Commissioner. Bvuma made two statements,
one taken by the police on 15 August 2008 and the other taken by
Johan Wilkens, (‘Wilkens’)
an investigator from the
Applicant. The police statement taken on the 15th of August 2008
states:
“
1.
On Friday 2008/08/15 between 4:15 and 4:30 I arrived at Sasol truck
stop to check on
my drivers. As I drove into the parking area I saw
two persons at the truck.”
Aupa’s version
regarding taking a shower
7.22
Aupa testified that he parked at the wash Bay, took his toiletry bag
and went to the showers. He states that
he had a toiletry bag in his
possession. Herbst testified that Aupa’s car was searched.
Nothing was found to indicate that
he had showered.
7.23
Aupa testified that Herbst was not truthful in her testimony
regarding the two bottle tops present in the
boot without a container
as well as the absence of a toiletry bag.
Subsequent pointing
out
7.24
Bvuma testified that he met with Quinn during the investigation. He
stated the following:
“
[Johan]
came they by block…office, we went around the block. Him, he
was standing there by the ATM machine. I told Johan,
I said, Johan
this is the guy who was at the scene. He was wearing the very same
hat that he was wearing that day of the incident.”
7.25
Quinn confirmed Bvuma’s separate pointing out of Aupa and Tom.
Quinn testified that:
“
Percy
identified Tom and Aupa as the two persons he saw on the 15th of
August 2008. He saw them again on the 2nd of September 2008,
and
pointed them out positive to the investigators.”
The
review test
[8]
The review
test is well established. In the seminal case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
[1]
,
the Court held that:
‘…
Is the
decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect not
only
to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful, reasonable
and
procedurally fair.’
[9]
The
Labour Appeal Court (LAC) in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others
[2]
,
affirmed the test to be applied in review proceedings and held that:
‘
[16]
In short: A review court must ascertain whether the arbitrator
considered the principal issue before
him/her; evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decisions he
or she arrived at.’
[10]
In
Herholdt
v Nedbank Ltd and Another
[3]
the Court stated:
‘……
.
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 affect, as well as the
weight and relevance to be attached to the particular effects or not
in
and of themselves sufficient for an award to be set aside, but are
only of consequence if their effect is to render the outcome
really
unreasonable’.
Findings
of the Commissioner and evaluation
[11]
The Commissioner, in her award, considers the possibility of Bvuma
having only seen “two
figures” and associated them with
Aupa and Tom as the people who arrived earlier than the usual time.
She states:
‘
Mr
Bvuma testified that he identified the Applicants when his lights
fell on them. None of the statements he gave to the Company
investigators and to SAPS members pointed at any of the Applicants.
This I found to be strange and of significance especially that
as it
would appear the Applicants were at all material times in the
vicinity if not in the company of the very first security personnel
to whom the incident was reported immediately after it was
discovered. What comes to mind is questions like could it be that he
only saw two figures and associated that with the applicants as the
people who arrived earlier than the usual time?
[12]
The Commissioner rejected Bvuma’s evidence based on her
conclusion that his statements
to the Applicant’s investigators
and to the SAPS fail to point out Aupa and Tom. However, the record
reflects that when Bvuma
testified about the identity of Aupa and
Tom, he did so with certainty and he did so on a number of occasions.
It is clear from
Bvuma’s testimony that he had no doubt about
the identity of Aupa and Tom. He also testified that he did not know
Aupa or
Tom, that he had no vendetta against them and had no reason
to fabricate his evidence. The record reflects that whilst he was
confused
about the exact time of arriving at the truck stop, he
conceded under re-examination that he could have been mistaken about
the
time he arrived and that had he checked he could have been wrong.
This seemed to have been ignored by the Commissioner when reaching
her conclusion about Bvuma possibly being mistaken about the identity
of Aupa and Tom. In addition, Bvuma pointed out Aupa and
Tom both on
the scene of the incident to security as well as on a separate
occasion to the Applicant’s investigating team.
In the face of
this evidence, to draw an inference that he may have only seen “
two
figures” and associated that with Aupa and Tom is not, in view
of the evidence, a reasonable inference and not what another
arbitrator would have found.
[13]
Furthermore, the Commissioner relied on the fact that statements made
to the investigators and
to SAPS did not point out Aupa or Tom. To
conclude that Aupa and Tom were not, based on this, involved in the
theft especially
when measured against Bvuma’s positive eye
witness testimony, is unreasonable and not a conclusion another
arbitrator would
have reached on the totality of the evidence. The
Commissioner then bolsters her view by connecting this fact to the
fact that
Aupa and Tom were in the vicinity at all times and in the
company of the security personnel to whom the incident was reported.
To give significance, as she did, to this connection and to attach
the weight that she did, and to then and consequently question
Bvuma’s certainty in his identification of Aupa and Tom, is in
my view irrational and unreasonable and not what another arbitrator
would have found.
[14]
Whilst there may be nothing untoward about Aupa and Tom’s early
arrival at site, the remaining
evidence given by the Applicant’s
witnesses upon which the probabilities are based, is ignored.
Furthermore, by applying
her observation at her inspection in
loco
to trump Bvuma’s positive eye witness testimony, is neither
rational nor reasonable. In this regard, the Commissioner drew
a
negative inference of what she assumed Bvuma could not see without
that evidence being before her.
[15]
The Commissioner then reaches the following conclusions:
“
Taking
all the factors into consideration I find that although the offence
was committed the applicants were not involved. The Company
associated them with the offence solely because of the time of
arrival and what seems to be the movement of the arm in the footage,
which they said was the removal of the key - apparently the only key
that was hanging on the key box on the day in question. If
that was
the case where were the keys for other vehicles that were parked on
the premises. The inference drawn is that the keys
were left in the
vehicles and therefore the vehicles might have been ignited by other
employees especially looking at the time
difference between their
arrival and the arrival of Mr Bvuma. The company had to find the
culprits and they were the most convenient
people to point the finger
at."
[16]
The Applicant did not associate Aupa and Tom with the offence solely
because of the time of arrival
and the movement of the arm in the
footage. The Commissioner’s inference that she then draws
regarding the keys in the face
of evidence that was before her i.e.
that the key for the truck in question was placed in the key box the
night before and not
left in the truck, is unreasonable. Secondly
there was significant evidence given by other witnesses for the
Applicant to support
the probabilities relied upon by the Applicant,
and with specific reference to Bvuma’s eye witness testimony.
With this,
and bearing in mind the contradictions in Aupa’s
evidence, the Commissioner failed in her assessment of the
Applicant’s
evidence which led her to reject the Applicant’s
case. In doing so, the Commissioner unreasonably disregarded the
veracity
of Bvuma’s testimony and the corroborating evidence
placed on record before her and this resulted in an unreasonable
award.
Conclusion
[17]
I find that the Commissioner failed to properly apply her mind to the
evidence, ignored material
facts or evidence and that she failed to
weigh up the probabilities in line with the versions before her. The
probabilities clearly
favoured the Applicant. Therefore, and based on
what has been set out above, in particular the grounds of review
raised by the
Applicant and the totality of the proceedings before
the Commissioner, an irregularity exists that would justify this
Court reviewing
and setting aside the Commissioner’s award. The
findings reached by the Commissioner are not that which a reasonable
decision
maker could reach on the material facts and evidence.
[18]
In the circumstances, the review application must succeed.
[19]
Insofar as costs of the application is concerned, I have a discretion
and I have considered that whilst
the dispute between the parties has
a long and protracted history, I have decided not to award costs.
[20]
In so far as the relief claimed is concerned, I am in a position to
make the following order.
Order
1.
The arbitration award dated 14 May 2009 issued by the Second
Respondent under case
number FSCHEM224-08/09 is reviewed and set
aside and is substituted with the following order:
“
The
dismissal of Tom P Dunwya and Aupa Mbhele is substantively fair”.
2.
There is no order as to costs.
L Dave
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant
:
Advocate
P Kirstein
Instructed
by
:
JR
Attorneys Inc.
For
the Third and Fourth Respondents :
Mr S
Snyman of Snyman Attorneys
[1]
[2007]
12 BLLR 1097
(CC) at para 110.
[2]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
[3]
(
2013)
34 ILJ 2795 (SCA).