THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR129/21
In the matter between:
HARMONY GOLD MINING COMPANY
LIMITED Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER SILAS SEGOLE N.O. Second Respondent
NUM OBO FANE FANE AND 1 OTHER Third Respondent
Heard: 11 June 2024
Delivered: 21 February 2025
JUDGMENT
MOLOTSI, AJ
2
Introduction
[1] This is an application for review in terms of section 145 of the Labour
Relations Act 1. The applicant, Harmony Gold Mining Company Limited, a company
duly registered in accordance with the company laws of the Republic of South Africa.
The arbitration proceedings were held under the auspices of the first respondent, the
Commission for Conciliation, Mediation and Arbitration (CCMA). The second
respondent is, Commissioner Silas Segole. The third respondent is the National
Union of Mineworkers ( NUM) on behalf of Fane Fane and Coohlo James Letuma
(employees).
[2] The commissioner issued the arbitration award on 10 December 2020 and
made a finding that the dismissal of the employees was substantively unfair and
ordered the applicant to reinstate the employees with payment of back pay. The
applicant received the arbitration award on 11 December 2020 and launched the
review application on 22 January 2021.
The relevant facts
[3] Fane Fane was employed by the applicant as a scrapper winch operator on
29 July 2014 and Coohlo James Letuma was employed as a pump attendant on 29
September 1994. As part of the induction training, the applicant’s employees are
trained in security awareness. The security awareness includes all aspects relating
to security for example theft, assault etc. Security awareness was not limited to
health and safety issues.
[4] The applicant has installed various security measures to, amongst others
combat illegal mining. One of these measures is the installation of video surveillance
cameras underground. The video surveillance system was upgraded in 2012/2013
and is clearly visible and known to employees as part of the security system of the
applicant. Approximately 6 to 8 video surveillance cameras were installed in the
1 Act 66 of 1995, as amended.
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crush tunnel underground. The CCTV cameras have been installed at Target
operations for more than 10 years at the time of the incidents involving the
employees.
[5] The purpose of the surveillance cameras in the crush tunnel was to assist with
the challenges relating to illegal mining, the shrinking of material due to theft and to
monitor people loitering in the crush tunnel to steal hours.
[6] On 7 April 2019 at approximately 19h30 and whilst in the crush tunnel, Fan e
Fane, who was wearing a balaclava at that time, is observed walking towards
camera 5. He passed camera 5 and then turned back to camera 5 and reached up
and shifted camera 5 from its original position to face the ground. From camera 2 it
was clear that Fana reached up to camera 5.
[7] On 7 May 2019 at approximately 18h47 whilst in the crush tunnel, Letuma is
observed by camera 2 walking towards camera 5. When Letuma reached camera 5,
he reached up, shifted the camera from its original position towards the roof, pushed
it a second time towards the roof and walked away.
[8] The applicant’s security provider, Bidvest Protea conducted an investigation in
respect of the employees’ conduct. The employees were then charged. Fane Fane
was charged with:
‘Tampering with mine security camera on the 07
th April 2019 at about 19h30
that are meant to monitor activities.
In that on the 07 th April 2019 at about 19h30 you tampered with the mine
security camera inside the crush tunnel at Target 1 shaft that is installed to
monitor illegal activities as seen on the CCTV video camera footage.’
[9] Letuma was charged with:
‘Tampering with mine security camera on the 07
th May 2019 at about 18h47
that are meant to monitor activities.
In that on 7 th May 2019 at about 18h47 you tampered with mine security
camera inside the crush tunnel at Target 1 shaft that is installed to monitor
illegal activities as seen on the CCTV video camera footage.’
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[10] The employees were subjected to a disciplinary hearing and subsequently
dismissed on 17 September 2019. The employees unsuccessfully appealed their
dismissals. The employees assisted by their trade union NUM, referred an unfair
dismissal dispute to the CCMA. The dispute was eventually resolved by means of
arbitration and the commissioner issued the arbitration award.
Grounds of review
[11] The pleaded grounds of the review of the applicant are that: the commissioner
committed gross irregularity in that he considered irrelevant considerations and/or
failed to consider relevant and material evidence before him in so far as knowledge
and contravention of the rule is concerned. The applicant stated that illegal mining is
plaguing the South African mining industry. The applicant implemented various
security measures to combat illegal mining and the employees were aware of the
security measures implemented. The commissioner failed to consider that t he video
surveillance cameras had been installed for an extended period of time and that both
employees would have walked past it (and other cameras) on numerous occasions
prior to the incidents.
[12] The commissioner committed a gross irregularity in the conduct of the
proceedings in that he misconceived the nature of the inquiry. This is related to the
fact that the commissioner’s failure to apply his mind to issues which were material
to the determination of the dispute leads him to misconceive the nature of the
enquiry. The commissioner’s finding that since no illegal mining occurred (or was
reported on 7 April 2019 and 7 May 2019, the employee did not contravene the rule,
this finding ignores the fact that the employees were not charged with participation in
illegal mining. The commissioner was therefore not required to consider whether the
employees’ conduct resulted in illegal activities.
[13] The commissioner committed a gross irregularity in the conduct of the
[13] The commissioner committed a gross irregularity in the conduct of the
proceedings in that he committed an error of law. One of the essential pieces of
information which the employee who alleges inconsistency has to put forward
concerns the details of the employee who s/he alleges has received preferential
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treatment in relation to the discipline that the employer may have meted out. The
onus therefore rested on the employees to provide comparator employees in order
for the applicant to be in a position to prove that it had applied discipline consistently.
The commissioner committed an error of law in that he attributed the onus of proof to
the incorrect party.
[14] The commissioner committed a gross irregularity in that he made an
unreasonable credibility finding against Mr Petzer in circumstances where credibility
findings were unnecessary. The credibility finding against Mr Petzer was based on
the commissioner’s perception of the absence of the rule that the employees
contravened.
Submissions by the parties
[15] Mr Kruger on behalf of the applicant submitted that the commissioner
misconstrued the nature of the enquiry, when he concluded that the applicant failed
to prove that the employees contravened the rule by tampering with the surveillance
camera in pursuance of the illegal mining activities. The employees were never
charged with participation in illegal mining activities. The fact that there was no
damage suffered by the applicant, was not what the case of the applicant was all
about.
[16] What the applicant’s case was about is that the employees by tampering with
the surveillance cameras, defeated the purpose for which the cameras were
installed. Consequently, the commissioner deviated from the correct path. By moving
the cameras, the employees affected the business of the applicant.
[17] The commissioner considered irrelevant considerations and ignored the
relevant considerations. The evidence of Mr Petzer was that when entering the crush
tunnel, there was a sign that said the area was under CCTV cameras. There was no
requirement that the employees needed to be told where the cameras were situated.
The commissioner failed to consider that the cameras were installed for a period of
10 years prior to the incidents that led to the dismissal of the employees.
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[18] The employees deliberately and intentionally moved the cameras. Security
and safety are big issues in the mining industry. The employees were aware that
they should not tamper with the cameras. The commissioner should not have made
credibility findings against Mr Petzer. The balance of probabilities was enough.
[19] During the arbitration proceedings, the employees did not raise the issue of
inconsistent application of discipline by the applicant and the commissioner
committed an error of law when he placed the onus of proof on the applicant in
respect of the inconsistent application of discipline.
[20] Mr Malematja on behalf of the employees submitted that the commissioner
correctly referred to the code of good practice. The employees had no nefarious
intentions when they touched the cameras. The applicant failed to prove that the
employees were showing illegal intent when they touched the cameras.
[21] The applicant has no rule against touching the cameras. The commissioner
accordingly reached a reasonable conclusion. Mr Petzer contradicted himself in
respect of whether the employees we re trained about the cameras. The employees
during the arbitration proceedings did not raise the issue of inconsistent application
of discipline by the applicant.
[22] It was the evidence of the applicant that it had previously dismissed other
employees for similar misconduct. It was therefore not the employees’ case at
arbitration that the applicant applied discipline inconsistently. There was no rule
contravened by the employees and the commissioner's finding in this respect was
reasonable. It was submitted that there was no evidence led by the applicant which
showed that tampering with the applicant’s property was an offence.
[23] The employees conceded that they touched the cameras. There was no
dishonesty and the trust relationship between the employees and the applicant was
not broken. After the employees touched the cameras, the day -to-day operations of
not broken. After the employees touched the cameras, the day -to-day operations of
the applicant were not interrupted.
The arbitration award
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[24] In the arbitration award, under the heading “ analysis of evidence and
argument”, the commissioner made the following findings: (Verbatim):
‘[19] In respect of the abovementioned evidence, I find that the respondent
did not have a written policy covering the use of the surveillance camera in the
workplace. …. I further find that there was no proof that the applicant where
aware of the rule. The witness of the respondent failed to prove that the
applicant where also made aware that they will be recorded and where the
surveillance cameras where being located. No proof in a form of attendance
register that the employees were made aware of the existence of the
surveillance cameras at the underground. Therefore, without such proof, I will
not be convinced that such a written policy ever existed or the applicants were
aware of the surveillance cameras.
[20] I find that even though such rule could have been valid and
reasonable, the respondent had failed to prove that the applicants
contravened the rule by tampering with the surveillance camera in pursuance
with the illegal mining activities. There was therefore no proof of the illegal
mining activities were reported as a result of their conduct. There was also no
extent of damage which the respondent incurred to prove that the conduct of
the applicant affected the business. Therefore, the respondent could not just
rely on suspicion which could not be proven. In that regards I find the
evidence of the applicants to have weigh more than the respondent.
[21] I find that the respondent failed to prove which of the employees were
dismissed for similar misconduct. Therefore, I find that in the absence of such
proof, I rendered the dismissal of the applicant to be substantively unfair. After
consideration of the above, it is my view that the respondent must rely on a
written policy which covers the use of the surveillance cameras at the
workplace when it intends to apply discipline. The employees must also be
workplace when it intends to apply discipline. The employees must also be
informed of the existence of surveillance cameras at the underground and
where are they strategically located before action could be taken against
them.’
Evaluation
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[25] The test for review is settled. In Quest Flexible Staffing Solutions (Pty ) Ltd (A
Division of Adcorp Fulfilment Services (Pty ) Ltd v Legobate 2, the Labour Appeal
Court (LAC) held that:
‘[12] The test that the Labour Court is required to apply in a review of an
arbitrator’s award is this: “ Is the decision reached by the commissioner one
that a reasonable decision maker could not reach?” Our courts have
repeatedly stated that in order to maintain the distinction between review and
appeal, an award of an arbitrator will only be set aside if both the reasons and
the result are unreasonable. In determining whether the result of an
arbitrator’s award is unreasonable, the Labour Court must broadly evaluate
the merits of the dispute and consider whether, if the arbitrator’s reasoning is
found to be unreasonable, the result is nevertheless capable of justification for
reasons other than those given by the arbitrator. The result will, however, be
unreasonable if it is entirely disconnected with the evidence, unsupported by
any evidence and involves speculation by the arbitrator.
[13] An award will no doubt be considered to be reasonable when there is a
material connection between the evidence and the result or, put differently,
when the result is reasonably supported by some evidence.
Unreasonableness is, thus, the threshold for interference with an arbitrator’s
award on review. However, a survey of the judgment of the Labour Court
reveals that it reviewed and set aside the commissioner’s award without
finding that the result of the award was unreasonable.’
[26] It is common cause between the parties that it was not the employees’ case at
arbitration that their dismissal was substantively unfair as the applicant applied
discipline inconsistently. The employees’ case was that they did not contravene any
rule at the workplace.
[27] The finding by the commissioner that the applicant failed to prove which of the
[27] The finding by the commissioner that the applicant failed to prove which of the
employees were dismissed for similar misconduct, was not an issue which required a
determination by the commissioner. However, it appears that this finding by the
2 (2015) 36 ILJ 968 (LAC); [2015] 2 BLLR 105 (LAC) at paras 12- 13.
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commissioner was considered by him to come to a conclusion that the dismissal of
the employees was substantively unfair.
[28] In our law, the onus is on the employee to prove inconsistent application of
discipline by way of evidence in establishing the details of employee that he/she has
received preferential treatment in relation to the discipline that the employer meted
out as compared to the employee making allegations regarding inconstancy . The
commissioner, placed the onus on the applicant to prove which employees it
dismissed for similar misconduct. This was an error of law on the part of the
commissioner. The commissioner further, misconstrued the nature of the inquiry. He
simply did not understand the issue that he needed to determ ine when he made
above finding.
[29] The commissioner’s finding that there was no rule contravened by the
employees was disconnected to the evidence which was before him and rendered
the outcome unreasonable. The evidence of Mr Petzer in arbitration in respect of the
rationale for having security cameras was that
3:
‘The reason for this camera to be installed at that turn was that we have
employees that come from underground earlier than what they are supposed
to. They crush out and they sit in the crush. Then they do not crush up until
the certain time that they are allowed to crush.
The cameras were installed in the crush tunnel to protect the client’s property
and also to the safety of the employees and it is also to detect any illegal
activities.
4
[30] Under cross-examination, the following exchange occurred between the
employees’ representative and Mr Petzer5:
‘Applicant Rep: Yes. Sir, do you know of any rule or policy of the mine
relating to tampering of cameras.
Mr Petzer: Yes, Harmony’s code of conduct.
Mr Petzer: It says there the purpose:
3 Index to record of proceedings page 21.
4 Index record to proceedings page 27.
5 Index record of proceedings page(s) 33- 34.
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‘Tamper with the cameras causing an interruption of surveillance. Therefore
malicious damaging of the client’s property which has been installed for a
certain purpose and due to the employee’s action the purpose cannot be
fulfilled.’
[31] It is not clear why the commissioner ignored the above evidence of Mr Petzer.
It was common cause that the employees touched the cameras. The evidence of Mr
Petzer was that only specialized trainer technicians were allowed to touch the
cameras. The employees are not allowed to touch the cameras . Mr Petzer's
testimony was that the employees by moving the surveillance cameras, interrupted
the day-to-day operations of Harmony.
[32] Under cross-examination, Mr Petzer testified that when entering the crush
area, there was a sign that said the area was under surveillance by the cameras.
The rule which the commissioner stated was not contravened, relates to what he
termed written policy covering the use of surveillance cameras in the workplace and
or there was no rule against touching the cameras. It is trite that not every workplace
rule must be written down by the employer.
[33] The surveillance cameras were installed at the crush tunnel for approximately
ten (10) years prior to the incident involving the employees. The employees ought to
have known, that they are not supposed to touch the installed surveillance cameras.
Any reasonable employee in the position of the employees would have known that
they were not supposed to touch the security cameras. The employees further knew
that the crush tunnel was an area under surveillance cameras, as per the evidence
of Mr Petzer. The purpose of installing the surveillance cameras in the crush tunnel
would have been defeated if the employees of the applicant were allowed to touch
the security cameras.
[34] The commissioner’s finding that the applicant failed to prove that the
employees were also made aware that they would be recorded and where the
employees were also made aware that they would be recorded and where the
surveillance cameras were being located, this reasoning by the commissioner is
unreasonable and shows that the commissioner failed to properly apply his mind to
the material evidence before him . The employees knew where the cameras were
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located. They touched the cameras and changed the view /and or direction of the
cameras. It stands to follow, that any surveillance camera installed to curb illegal
mining, to protect the property of the applicant, the shrinking of material due to theft
and for the safety of employees, would be recording. There is no purpose in
installing surveillance cameras that are not recording.
[35] The evidence of Mr Petzer that the applicant’s code of conduct deals with
tampering of cameras causing an interruption of surveillance and that this is
malicious damage of the applicant’s property which has been installed for a certain
purpose and due to the employee’s action, the purpose cannot be fulfilled,
constituted a workplace rule. The employees knew about this rule or ought to have
known about this rule given their long service of work and the fact that the cameras
were installed for a long period of time. The commis sioner committed gross
irregularity which materially affected the outcome of the arbitration award when he
ignored the above evidence of Mr Petzer.
[36] Consequently, the commissioner’s finding that there was no rule which was
contravened by the employees, constituted a gross irregularity which materially
affected the outcome of the arbitration. The outcome was therefore not reasonable.
[37] The employees were not charged with participation in illegal mining activities.
The employees were further not charged with causing damage to the business of the
applicant. The commissioner’s finding that there was no proof of illegal mining
activities and no damage caused to the business of the applicant, illustrates that the
commissioner misconceived the nature of the inquiry and therefore produced an
unreasonable outcome.
[38] The finding in respect of no illegal mining activities or damages suffered by
the applicant after the employees touched the cameras, was an irrelevant
consideration on the part of the commissioner and further show the unreasonable
consideration on the part of the commissioner and further show the unreasonable
reasoning by the commissioner.
[39] The applicant was not required to prove that the employees by touching and
changing the view or direction of the cameras had nefarious intentions. This is not
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what the charges faced by the employees implied. All t hat the charges stated were
that the employees tampered with the security cameras.
[40] The credibility finding made by the commissioner was a half -baked process
which fell short of the process which a commissioner must follow to resolve a factual
dispute6 between the parties. The version of the applicant during the arbitration
proceedings was reliable, credible and probable. Any contradictions in the
applicant’s case were minor and did not mean that the testimony of Mr Petzer was
not truthful. The version of the employees was that they touched the cameras as
they saw something that looked like a speaker. This version of the employees was
far-fetched and downright improbable.
[41] If they thought that the camera was a speaker or the speaker was on top of
the camera, why did they change the view / and or direction of the cameras and
interrupt their proper functioning. The balance of probabilities is that given the
employees long service and the long period of time since the surveillance cameras
were installed at the crush tunnel, the employees knew or ought to have known that
they were touching the cameras and they intentionally and deliberately changed the
view/and or direction of the cameras and thus interrupting their proper functioning.
Based on the evidence before him, the commissioner ought to have rejected the
version of the employees.
[42] The commissioner considered irrelevant things and ignored the relevant
considerations. The commissioner failed to consider that each employee before they
touched the camera, they looked around to check if there was someone behind
them. That Fane Fane, had passed camera 5 and then turned back to touch it and
changed the view /and or direction of camera 5 by facing it to the ground. As for
Letuma, he touched camera 5 and changed its view and/or direction to face the roof.
The conduct of the employees constituted tampering with the security cameras of the
The conduct of the employees constituted tampering with the security cameras of the
applicant. The conduct of the employees interrupted the proper functioning of the
surveillance cameras.
6 A process of resolving a factual dispute between the parties was succinctly summarized in
Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11
(SCA); [2002] ZASCA 98.
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[43] The unreasonable credibility finding by the commissioner and the absence of
proper assessment of evidence resulted in the outcome which was unreasonable.
[44] Given, the totality of the evidence before the commissioner, the decision
reached by the commissioner was a decision which a reasonable decision maker
could not reach and the arbitration award must be reviewed and set aside.
[45] In the premises, I make the following order:
Order
1. The arbitration award issued by the second respondent under case
number: FSWK3029-19 dated 10 December 2020 is hereby reviewed and set
aside.
2. The arbitration is remitted back to the first respondent to be heard de
novo before another commissioner other than the second respondent.
3. There is no order as to costs.
H. Molotsi
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr A. Kruger
Instructed by: Webber Wentzel
For the Respondent: Mr M. Malematja
Instructed by: Mashabela Attorneys