THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

REPORTABLE
Case No: C253/2022

In the matter between:

BASIL POGGENPOEL First Applicant

GRANT PHILLIPS Second Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent

COMMISSIONER IAN MACKUN NO Second Respondent

A1 HYPER CHICKEN (PTY) LTD Third Respondent

Heard: 7 May 2025
Delivered: 1 September 2025
Summary: Application to review and set aside the arbitration award of second
respondent. Application successful and dispute remitted to the CCMA.


JUDGMENT

2



DANIELS J

Introduction

[1] This is an application brought to review and set aside the arbitration award
issued by the second respondent (hereafter “the commissioner”). The commissioner
found that the dismissal of the applicants, by the third respondent, was procedurally
and substantively fair. The applicants challenge the award.

Material facts

[2] The third respondent is engaged in the retail and wholesale of chicken. The
applicants were engaged by the third respondent at its store at Epping, Industria.

[3] The applicants were engaged in managerial, or junior managerial, capacities
and both had lengthy periods of service.
1 As managers, they were not required to
clock in or out of the workplace. The first applicant was employed as the shop
manager, while the second respondent as employed as a receiving coordinator.
They reported to Mr Julian Oosthuizen, a director of the third respondent.

[4] The applicants were charged and dismissed for five charges, the most serious
of which was the theft, or collusion to commit theft, of monies from the ABSA
Automated Teller Machine (“ATM”) on the premises. It is therefore necessary to
explain how this worked:

4.1 The ATM is accessible by customers who may draw cash from their
respective bank accounts.


1 The first applicant had twenty seven years of service, and the second applicant had twenty three
years of service.

3

4.2 The third respondent deposits cash, taken from sales , into the ATM
and somewhat later, following a reconciliation process, the bank would
reimburse it for the cash drawn by customers.

4.3 At the end of each day, cash is collected from the cashiers and stored
in a safe. Early the following morning, the cash is counted and loaded into the
ATM. Three employees were involved in the loading of cash into the ATM
namely Ms. Pretorius (ATM administrator),
2 Ms De Koker (head cashier) and
Ms Manual (cashier).

4.4 The keys to the safe are kept in the back office to which all employees
have access.

4.5 Each week
3 the monies in the ATM were “balanced” by Ms Pretorius to
determine if the cash matched the employer’s records. Ms Pretorius was
required to compile what was referred to as the “ATM reconciliation balances”
(the “recon balances” or the “recon sheets”).

4.6 If the ATM is off the ticket history will reflect that it is ‘marked down.’
The ticket history reflects that the ATM is ‘marked down’ when it has been
switched off manually, when the power supply has been cut, or when it is
running system updates. The ticket history does not indicate which of the
three reasons are applicable.

[5] Mr David Owen, the financial director, became actively involved in the
financials of the store from about March 2021. He came to believe that large sums of
money had been stolen from the ATM over a period of twelve months.

[6] Mr Owen testified that on 4 June an amount of R 44 500, 00 was stolen, on 23
June an amount of R 46 300,00 was stolen, and on 2 July an amount of R 28 000,

2 Ms Pretorius was subsequently dismissed for gross negligence.
3 Record, transcript p13 lines 7 – 22

4

00 was stolen. The reason for his belief that money was stolen on these particular
days was explained as follows:

“I’m just trying to figure out why ….Okay, sorry, I have to go back on that
thing, so the reason … so they must have counted it on 4 June and the 18
July and the difference would be the 44 500. 18 June. According to this.”

[7] Although Mr Owen did not explain who “they” refer red to, the parties
understood that Ms Pretorius had compiled the ATM reconciliation balances.4

[8] Mr Owen believing that he had detected three weeks when monies had been
stolen, viewed the security video footage for those weeks: 31 May to 4 June 2021,
21 June to 25 June, and 28 June to 2 July.

[9] Having viewed the footage 5 Mr Owen noticed that all three security cameras
were off for short periods on 23 June and 2 July . According to Mr Owen , this could
only have happened with human involvement because at least one camera was
connected to a functioning UPS.6

[10] Mr Owen testified that the footage showed that Mr Poggenpoel was seen
approaching the back office on 23 June - shortly before the cameras shut down.
7

[11] The ticket history indicated when the ATM was off (marked down):

11.1 4 June from 17h05 to 17h11,8

11.2 23 June from 17h01 to 17h07,
9

4 Record, transcript p109 lines 1 – 7
5 The cameras record and store footage for no more than three weeks before the newer footage
overwrites the older footage.
6 UPS stands for ‘Uninterrupted Power Supply’
7 Testimony of Mr David Owen, Record p122 line 1 – p124 line 5)
8 On 4 June, the cameras were off from 17h13 to 17h18 (see Arbitration Award at para 143)
9 On 23 June, the cameras were off from 16h48 to 17h14 (see Arbitration Award at para 143)

5


11.3 2 July from 17h04 to 17h10.10

[12] The ticket history also indicated that the machine was ‘marked down’ on
various other dates and times , many of which would have occurr ed when no
employees were present, either extremely late at night or incredibly early in the
morning.11

[13] Mr Oosthuizen testified that 17h00 is the end of the work day, and the
employees are generally keen to leave immediately. Therefore, so the argument
went, to find staff on site after 17h00 was suspicious. The applicants testified that
they have to wait until all customers have left the store and, during the time of the
pandemic, a cleaner would often only start sanitising around 17h00. The applicants
testified that they are often the last to leave and often leave between 17h00 and
17h15.

[14] It was common cause that there is a discrepancy between the time on the
camera and the actual time.
12 The applicants contended that the discrepancy was as
much as fifteen minutes13 but third respondent contended the discrepancy was about
two minutes.14 The arbitrator did not resolve this dispute.

[15] The applicants testified that there was frequent loadshedding at that time, and
the fridges caused the switches on the distribution board to trip frequently.
15 The
applicants testified that this required that all the switches be turned off and then
switched up individually. The third respondent alleged that this problem occurred
infrequently. The applicants testified that Mr Oosthuizen was not at the store on a
regular basis.

10 On 2 July, the cameras were off from 17h09 to 17h17 (see Arbitration Award at para 143)
11 Record, transcript pp143 – 145
12 Record, transcript p259
13 Record, transcript p233
14 Record, transcript p257
15 Record, transcript p63

6


[16] The mother of the first applicant, Mr Poggenpoel, passed away on or about 9
August. He therefore took leave and returned to work on 12 August. Shortly
afterwards, he was summoned to the office by Mr Oosthuizen. W hile walking to the
office, Mr Oosthuizen confided to him that heads were going to roll. When they
arrived, Ms Manuel and Ms De Koker were also present. Mr Oosthuizen asked all of
them to sign consent forms to take a polygraph test. The meeting became heated.
Mr Poggenpoel was angered that, as a manager, he was being asked to undergo a
polygraph test . He was also angered that Mr Oosthuizen had not offered him his
condolences for the death of his mother . Ultimately, Mr Poggenpoel refused to sign
the consent forms and walked out . Thereafter, Ms Manuel and Ms De Koker
exchanged harsh words with Mr Oosthuizen and t hey also refused to sign the
consent forms . After this altercation, despite their lengthy periods of service, Ms
Manuel and Ms De Koker never returned to work.

[17] It was common cause that there is no provision in the applicants’ employment
contracts which required them to take a polygraph test whenever requested.
Although the second applicant initially agreed to take the polygraph test, ultimately
he also refused to do so. According to the third respondent, Ms Pretorius took the
polygraph test and “passed it.”

[18] The applicants were disciplined for insubordination for refusing to assist in an
investigation into the missing ATM monies, and given final written warnings.

[19] Thereafter, on or about 31 August, the applicants were charged with
misconduct. The primary charge was “theft or collusion to misappropriate funds from
the company by tampering with cameras and switching off cameras ” on 4 June, 23
June, and 2 July . Following a disciplinary hearing, both of the applicants were
dismissed.

Arbitration proceedings

7

[20] On behalf of the third respondent, the following witnesses were called; Mr
Oosthuizen, Mr Owen, Mr Schoonraad, 16 and Mr Lurwengu. 17 On behalf of the
applicants, both testified on their own behalf. I pick up on certain key themes below.

Polygraph test

[21] The commissioner drew an adverse inference from the applicants’ refusal to
take a polygraph test, despite the fact that their employment contracts did not require
them to do so. He drew the adverse inference in the following circumstances:

21.1 The polygrapher who administered the polygraph test to Ms Pretorius
did not testify, nor did anyone else testify about the value or role of the test.
Through their representative, the applicants’ raised the credibility or reliability
of the test ,
18 but this did not motivate the third respondent to put up any
evidence concerning the credibility or reliability of the polygraph as a test for
deception.

21.2 Under cross -examination, Mr Owen admitted Mr Poggenpoel had a
good reasons to refuse to take the polygraph test.
19

21.3 The commissioner , believing our courts recognized that an adverse
inference may be drawn from an employee’s refusal to undergo a polygraph
test, referred to a n authority where an employee was contractually obliged to
take a polygraph, and nevertheless refused. In that matter, Fairway at
Randpark Operations (Pty) Ltd v CCMA and others20 the court opined:

16 Mr Schoonraad chaired the first disciplinary hearing for the applicants and found them guilty of
refusing to assist in the investigation of missing ATM monies.
17 Mr Lurwengu chaired the second disciplinary hearing for the applicants and found them guilty of
theft or collusion in the theft of ATM monies. He also represented the third respondent at the
arbitration.
18 Record, transcript p44
19 Record, transcript p135
20 (2016) 37 ILJ 675 (LC) (13 November 2015) at para 26. Historically, our courts and tribunals have
adopted disparate approached (see below):

8


“As an aside I pause to point out that I do not view the authorities to which I
have referred above as suggesting that a Court (or arbitrator) may not draw
an adverse inference against an employee for a conscious breach of contract,

(1) In Sedibeng District Municipality v SA Local Government Bargaining Council & others (2013) 34
ILJ 166 (LC) at para 36 the court took note of the controversies relating to polygraph testing but
acknowledged that our courts “implicitly recognized that polygraph test results do have some
probative value and are not worthless”.
(2) In Food & Allied Workers Union on behalf of Kapesi & others v Premier Foods Ltd t/a Blue Ribbon
Salt River (2010) 31 ILJ 1654 (LC) the court held as follows: “In the light of the aforegoing and in the
light of the controversy that surrounds the accuracy and reliability of polygraph tests, I am not
persuaded that the polygraph is a reasonable or fair alternative to minimize retrenchment. If a proven
lie in a courtroom cannot by itself prove that the accused is guilty of a crime, then deception
purportedly identified by a polygraph examiner cannot provide anything more than proof of a lie. In the
context of a disciplinary process the polygraph can be a useful tool in the investigation process but
can never substitute the need for a disciplinary hearing. A polygraph test on its own cannot be used to
determine the guilt of an employee. In the context of an arbitration, the results of a polygraph may be
taken into account where other supporting evidence is available provided also that there is clear
evidence on the qualifications of the polygraphist and provided that it is clear from the evidence that
the test was done according to acceptable and recognizable standards. I am, as already pointed out,
not persuaded that it constitutes a fair and objective selection criteria or a fair and objective method
alternative to minimize retrenchment in the context of s 189 and s 189A of the LRA.”

alternative to minimize retrenchment in the context of s 189 and s 189A of the LRA.”

(3) In NUM & others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ 137 (LC) the
two applicants were security guards employed by the respondent and had been dismissed for
operational requirements after undergoing and failing polygraph tests. It was a term of their
employment that they had to undergo polygraphs at the request of the company or the entity at whose
premises the company had placed them to do security duties. Before the court hearing, the parties
reached a settlement agreement, and the only remaining issue was costs. Steenkamp J noted that
the applicants had filed an expert report showing that polygraph testing has not been scientifically
shown to be a reliable, accurate and valid means of detecting deception.

Note: I differ with the above authorities to the extent that they endorse the admissibility of the results
of polygraph tests into evidence, without more. Admissibility is question of relevance (see S v
Shabalala 1986 (4) SA 734 (A) at 740). Accordingly, before the outcome of a polygraph can be
admitted into evidence, its reliability as a test for deception must be proven. This approach has been
endorsed in DHL Supply Chain (Pty) Ltd v De Beer NO & others (2014) 35 ILJ 2379 (LAC).

9

even if it involves the refusal to undergo polygraph testing. I would even go
further to suggest that there does not, to my mind, appear to be any authority
which prohibits an adverse inference being drawn against an employee who
simply refuses to undergo polygraph testing, under the appropriate
circumstances.”
(own emphasis)

Security camera footage

[22] Mr Owen testified that, when he first viewed the footage, he noticed that, on a
few occasions, some of the female employees were seen “entering the back (office)
there.”
21 He was absent from work for a few days and, when he returned, that
footage was no longer there.

[23] The security footage related to four video clips. Two were from 23 June and
two from 2 July. The footage showed that:

(1) On 23 June, one video clip showed various items on a table. After an
interruption, the items had been moved by unknown persons. In another clip,
on that day, the first applicant had entered the back office or holding area
where the camera switches are located. Shortly thereafter, the cameras went
off.

(2) On 2 July, the cameras were off for a period of ten minutes . At 17h07,
the second applicant was seen leaving the store.

[24] The applicants testified that none of the UPS were functional . Mr Oosthiuzen
disputed this. Unlike, Mr Oosthuizen, the applicants were present at the Epping store
every day.


21 Record, transcript p103

10

[25] As previously mentioned, the parties agreed that there was a discrepancy in
the time on the cameras (and the actual time) but disagreed on the extent of the
discrepancy.

[26] The third respondent undertook to call an expert on its security cameras, Mr
Christo Visa22 but failed to do so.

Recon (balance) sheets and ticket history

[27] The third respondent relied on the recon sheets to establish that monies were
missing, and the periods when the monies went missing.

[28] The veracity of the recon sheets depended on Ms Pretorius ,
23 who did not
testify. The commissioner was alerted that the recon sheets were hearsay 24 - though
applicants’ representative did not explicitly state that they objected.

[29] The third respondent’s witnesses conceded, under cross examination, that the
ticket history does not indicate if, or when, the ATM was opened.
25 They also
conceded that the recon sheets do not indicate that monies went missing on any
particular dates.

Inferential reasoning

[30] It is important to note that, there being no direct evidence of wrongdoing on
the part of the applicants, the respondent’s case was based on inference. In para
147 of the award, the commissioner states: “The correspondence between the key
visual and documentary evidence strongly suggests that the most probable inference
is that the power was switched off on the t hree days in question, the ATM was
accessed and theft of monies occurred.” The applicants take issue with the inference

22 Record, transcript p18 (lines 13 – 19), p24 (lines 9 – 15)
23 Record, transcript p100; Record, transcript pp 372 – 375
24 Record, transcript p 189
25 Record, transcript p85

11

drawn and contend that there was no objective basis for the inference. 26 This is
discussed below.

Evidence of the applicants

[31] The first applicant testified that he was innocent of tampering with the
cameras, and he was not involved with the theft of monies . He had previously
informed Mr Oosthuizen about various irregularities concerning the behaviour of Ms
Pretorius in relation to the ATM cash. The first applicant testified that he was not
desperate for money because he was managing a large sum of money, just shy of
R2 million, from the Road Accident Fund.

[32] The second applicant testified that he too was innocent of tampering with the
cameras, and he was not involved with the theft of monies. His undisputed evidence
was that he had, years earlier, refused to work directly with the cash component of
the third respondent’s business.

Legal principles and analysis

[33] The arbitration and the resulting award both constitute administrative action.
Section 33(1) of the Constitution requires that the process and the outcome must be
lawful, reasonable, and procedurally fair. It was in this context that our apex court
fashioned the review test
27 applicable to arbitration awards of the CCMA in the
following terms: is the arbitration award one which no reasonable commissioner
could reach on the material before him or her ? The test has come to be known as
the “Sidumo test” or the “reasonableness test.”

[34] As to what is reasonable, this must be determined by the circumstances of
each case. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
28 the Constitutional Court held:

26 Founding affidavit, para 30, pleadings p 18
27 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
28 2004 (4) SA 490 (CC) at para 45

12


“[45] What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair procedure will
depend on the circumstances of each case. Factors relevant to determining
whether a decision is reasonable or not will include the nature of the decision,
the identity and expertise of the decision- maker, the range of factors relevant
to the decision, the reasons given for the decision, the nature of the
competing interests involved and the impact of the decision on the lives and
well-being of those affected. Although the review functions of the Court now
have a substantive as well as a procedural ingredient , the distinction between
appeals and reviews continues to be significant. The Court should take care
not to usurp the functions of administrative agencies. Its task is to ensure that
the decisions taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.”

[35] In Head of the Department of Education v Mofokeng and others
29 the court
again confirmed that where an arbitrator fails to apply his or her mind to the material
issues, this will usually indicate that the outcome is unreasonable or that the
arbitrator misconceived the nature of the enquiry. However, when a mistake of fact
or law occurs, what matters is its materiality - whether the error had a distorting
effect on the outcome.

Analysis of the grounds of review

[36] The applicants allege that the commissioner committed a number of material
errors of law and fact, which led to an unreasonable outcome.

[37] The applicants allege the commissioner grossly erred by finding that an
adverse inference could be drawn against them for their refusal to undergo a
polygraph test. It must be noted that the commissioner made this finding despite the
concession by the third respondent’s key witness, Mr Owen, that the first applicant

29 [2015] 1 BLLR 50 (LAC)

13

had good reason to object. As to what an adverse inference is one must look to the
concept of an “adverse inference” which our court30 has explained as follows:

“In the case of the party himself who is available, as was the defendant here,
it seems to me that the inference is, at least, obvious and strong that the party
and his legal advisers are satisfied that, although he was obviously able to
give very material evidence as to the cause of the accident, he could not
benefit and might well, because of the facts known to himself, damage his
case by giving evidence and subjecting himself to cross -examination. … It is
not advisable to seek to lay down any general rul e as to the effect that may
properly be given to the failure of a party to give evidence on matters that are
unquestionably within his knowledge. But it seems fair at all events to say that
in an accident case where the defendant was himself the driver of the vehicle
the driving of which the plaintiff alleges was negligent and caused the
accident, the court is entitled, in the absence of evidence from the defendant,
to select out of two alternative explanations of the cause of the accident which
are more or less equally open on the evidence, that one which favours the
plaintiff as opposed to the defendant.”
(own emphasis)

[38] It is apparent that the commissioner elevated the polygraph test to the status
of testimony in a court of law , despite the polygraph having been the subject of
stinging critiques, by academics
31 and the courts. It is common for employers to use
the polygraph as a test for deception, on the basis that psychological conclusions
may be drawn based on the physiological responses of employees to a set of
questions. As far as evidence is subsequently presented, this is usually done by a
polygrapher, with no expertise in psychology. In SATAWU obo Sekwele and others v
Protea Security32 Landman J (as he then was) pointed out that the psychological or

Protea Security32 Landman J (as he then was) pointed out that the psychological or

30 Galante v Dickinson 1950 (2) SA 460 (A) at 465
31 Polygraph Based Testing of Deception and Truthfulness: And Evaluation and Commentary (2001)
22 ILJ 819 by Prof. C Tredoux; The Deception of Polygraph Testing — As a Test for Deception (2023)
44 ILJ 2139 by R Daniels and J Phillips
32 Unreported, Labour Court Case No. JS754/2001 (handed down on 24 November 2004)

14

similar testing of employees is prohibited unless the test has been scientifically
shown to be valid and reliable. The court accepted that the polygraph test for
deception is, at least, similar to a psychometric test as contemplated by section 8 of
the Employment Equity Act No. 55 of 1998. As Landman J pointed out “ … a
psychometric or similar test which purports to distinguish between honest and
dishonest or deceptive employees but which is flawed can work great unfairness
especially when it leads to the dismissal and the stigmatization of an employee.”
Accordingly, absent proof by the respondent that the polygraph is scientifically valid
or reliable as a test of deception, the drawing of an adverse inference relating to the
test, constitutes a gross error of law . Indeed, in DHL Supply Chain (Pty) Ltd v De
Beer NO & others
33 the LAC held:

“These considerations beg the question about what a failed polygraph test
really produces by way of usable information. Only the inference to be drawn
from the failure of the test is useful as material to determine probabilities. In
the absence of expert evidence to explain what that inference is, either
generically, or within the bounds of the specific instance itself, and also to
justify the explanation of what that is, there is nothing usable at all that might
contribute to the probabilities.”
(own emphasis)

[39] The commissioner admitted the recon (balance) sheets into evidence, though
the applicants alerted him to the fact that it constituted hearsay evidence. The forms
were critical to the third respondent, not only to prove that there were shortages but
also to prove when they may have occurred. The commissioner did not require an
application to admit such evidence, and he did not consider the factors relevant to
the admission of hearsay , as contemplated by section 3(3) of the Law of Evidence
Amendment Act, 1988 (“LEAA”).

[40] It is trite that the informality of proceedings in the CCMA does not excuse a

[40] It is trite that the informality of proceedings in the CCMA does not excuse a
commissioner from applying the principles of our law of evidence, which have been
crafted and time tested to ensure fairness. In several cases, the Labour Appeal

33 (2014) 35 ILJ 2379 (LAC) at paras 30 and 31

15

Court has pronounced that LEAA is indeed applicable to statutory arbitrations.34 In
fact, the Labour Appeal Court has stated that hearsay evidence that is not admitted
in accordance with LEAA is not evidence at all.35

[41] In Ithala Development Finance Corporation Ltd v Zulu and others 36 (“Ithala”)
the court held as follows:

“[10] The learned Madam Commissioner alerted the parties, who were
represented legally represented, that the evidence of Mkhize was probably of
the nature of hearsay . At that point, Zulu and his legal representative should
have objected to the leading of evidence of that nature. Shangase argued that
the evidence was admitted provisionally on condition that other witnesses
would support it. Nowhere in the transcript is such an important ruling by the
Madam Commissioner apparent. As a matter of procedure, when a witness
tenders inadmissible evidence, the party against whom the evidence is
tendered must immediately object to the tendering of such testimony. Failure
to object would imply that there is an agreement as to the admission of such
evidence. A decision maker faced with such a situation of objection to the
admission of such evidence must do one of two things. Firstly, reject that
evidence as being inadmissible. Secondly, provisionally admit such evidence
based on certain conditions.”
(own emphasis)

[42] In my view, the statement made in para [10] of Ithala is clearly wrong. In the
context of court proceedings , that approach may be acceptable, but it is
inappropriate in statutory arbitrations where fairness is the standard, and a high
number of the litigants are unrepresented. In my considered view, the commissioner
bears a responsibility to point out when evidence is hearsay , and to enquire if the

34 Pioneer Foods (Pty) Ltd t/a Essential Foods v Shear NO & others (2025) 46 ILJ 344 (LAC); Exxaro
Coal (Pty) Ltd & another v Chipana & others (2019) 40 ILJ 2485 (LAC); Edcon Ltd v Pillemer NO and

others (2008) 29 ILJ 614 (LAC) at paras [14] to [16]
35 See Exxaro Coal cited in fn. 34
36 (D615/2020) [2023] ZALCD 13 (24 July 2023)

16

evidence can be admitted by consent. A bsent consent, or admission in accordance
with LEAA, such ‘evidence’ is inadmissible.

[43] In any event, I believe that Ithala is incompatible with Exarro Coal .37 In that
matter, the employee was legally represented but failed to object to the presentation
of hearsay evidence by the employer. It was only in the award where the
commissioner indicated that the hearsay evidence would be excluded. The appeal
court did not treat his failure to object as consent to the admission of hearsay
evidence but held that the commissioner ought to have made his ruling promptly to
alert the parties whether such evidence is admitted. In the circumstances, the
commissioner committed a gross error of law by admitting hearsay evidence, in the
absence of an application, and without applying the criteria in LEAA. Evidently, this
error of law had a material distorting effect on the outcome.

[44] The commissioner admitted the ticket history into evidence in the absence of
an application to admit such evidence, and without applying the criteria set out in
LEAA. Importantly, even though the term ‘marked down’ (in the ticket history) was
not explained by a witness with direct or personal knowledge of the ATM , the third
respondent conceded that ‘marked down’ did not indicate that the ATM was opened,
nor did it indicate that the ATM had been switched off manually.

[45] The commissioner failed to resolve the factual dispute concerning the extent
of the difference between the time on the camera and the actual time. This was
important because the third respondent contended that the cameras were always
shut down after 17h00, which was suspicious . In addition, the third respondent
submitted that the times when the cameras shut down coincided with the ATM being
marked down. In the absence of any discrepancy , when comparing the ticket history
with the cameras, the following picture emerges:

45.1 On 4 June, the ATM was marked down until 17h11 and the cameras

45.1 On 4 June, the ATM was marked down until 17h11 and the cameras
went off at 17h13;


37 See fn. 34

17

45.2 On 23 June, the cameras went down at 16h48, well before the ATM
were marked down;

45.3 On 2 July, there was a single minute overlap between the time when
the cameras went down and the ATM was marked down.

[46] As mentioned in para 30 above, the commissioner drew an inference based
on the alleged “… correspondence between the key visual and documentary
evidence”. The process of inferential reasoning is explained in South African Post
Office v De Lacy and another38 where the court explained:

“The process of inferential reasoning calls for an evaluation of all
the evidence and not merely selected parts. The inference that is sought to
be drawn must be 'consistent with all the proved facts : If it is not, then the
inference cannot be drawn' and it must be the 'more natural, or plausible,
conclusion from amongst several conceivable ones' when measured against
the probabilities.”

(own emphasis)

[47] There is no indication from the award that, before drawing the inference, the
commissioner assessed all the proved facts. Nor is there any indication why the
inference was the most plausible inference from all those that are conceivable. In my
view, for the reasons explained below, the inference was improperly and irregularly
drawn. The inference was not consistent with all the proved facts, nor was it the most
plausible inference. To illustrate this:

47.1 The documentary evidence did not show that money went missing on
the particular dates appearing on the charge sheets (4 June, 23 June, and 2
July). Mr Oosthuizen had testified that a report from his brother (Mr Owen)
indicated that the monies had gone missing on those dates.
39 However, when

38 2009 (5) SA 255 (SCA) at para 35
39 Arbitration Award, para 38

18

Mr Owen testified, he conceded that the shortages could not be identified on
specific days because balancing occurs once a week.40

47.2 A further example shows how the inference was not consistent with all
the proved facts. The commissioner found that the monies could not have
been stolen by Ms Pretorius because this would have been visible on the
security camera footage and would have been detected by Mr Owen.
However, Mr Owen did not view all the security footage. He testified that the
footage existed for approximately three weeks after it is recorded over. Nor
did he testify that all the places where Ms Pretorius handled or counted cash
was under surveillance. The first applicant testified that he had seen Ms
Pretorius counting money in her office, in the absence of a second person.
41

47.3 The commissioner did not consider whether , on 23 June, the first
applicant had any need to enter the “back office” or “holding area” where the
switches to the security cameras are located. No evidence was presented in
that regard. The commissioner did not explain why it was more plausible that
the first applicant switched off the cameras than that the power went off and
the UPS was not working. The commissioner also does not explain why it was
more probable that the ATM was switched off (on 23 June) than that it was
performing a system update.

[48] The drawing of inferences enabled the commissioner to find that the
applicants guilty despite the absence of direct evidence implicating them. The
inferences thus had a material and distorting effect on the outcome.

[49] In the result, given the numerous factual and legal errors, all of which had a
material distorting effect on the outcome, the arbitration award is one that no
reasonable commissioner could arrive at on all the evidence properly before him.


40 Arbitration Award, para 50
41 Arbitration Award, para 89

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[50] It is in the interests of justice that the dispute be referred back to the CCMA
for rehearing de novo before a commissioner other than second respondent.

Costs

[51] In this court, costs do not follow the result. I see no reason in law and fairness
to depart from this. In the circumstances, it is proper that the parties bear their own
costs.

Conclusion

[52] In the circumstances, for the reasons set out above, I make the following
order:
52.1 The arbitration award issued by the second respondent under case
number WECT12419 – 21 is reviewed and set aside,

52.2 The dispute concerning the substantive fairness of the dismissal of the
first and second applicants is referred back to the first respondent for
rehearing before a commissioner other than the second respondent,

52.3 There is no order as to costs.

Reynaud Daniels
Judge of the Labour Court of South Africa

Appearances:

For the Applicant:
Adv N Williams
Smit Hendricks Inc

For the Third Respondent:
Adv C Bosch

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C & A Friedlander Inc