IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D163/2022
Not Reportable
In the matter between:
SINGISI FOREST PRODUCTS (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER M KHAWULA Second Respondent
MZUZILE INNOCENT NDZIMANDE Third Respondent
AMCU Fourth Respondent
Heard: 8 May 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 10h00 on 26 November 2025
JUDGMENT
ALLEN-YAMAN J
2
Introduction
[1] Dissatisfied with an award handed down by the second respondent in which the
dismissal of the third respondent (Mr Ndzimande) was found to have been
substantively unfair and the appropriate remedy that of reinstatement, the
applicant applied to this court for orders reviewing and setting aside or
correcting it. The applicant further sought that the award be substituted with an
order that Mr Ndzimande’s dismissal be found to have been substantively fair,
alternatively, that his dispute be remitted to the first respondent to be arbitrated
de novo before a commissioner other than the second respondent. Ancillary to
the main application, the applicant initiated two interlocutory applications, for
reinstatement and condonation.
[2] The third and fourth respondents opposed both the review and the condonation
application.
[3] This court was unable to consider the transcribed portion of the record prior to
the hearing of the matter, by reason of the manner in which it had been
compiled which resulted in, inter alia , portions of the transcribed evidence not
having been placed before the court . The applicant’s attorney procured that
portion of the transcribed record which had not previously been made available
to the court shortly prior to the hearing, and the parties were ad idem that the
matter could proceed notwithstanding that this court had not then been able to
consider the entire transcription of the oral evidence prior to the hearing.
Reinstatement
[4] The recordings provided to the applicant by the first respondent were
incomplete, which led to a delay in the delivery of the record and the
concomitant lapsing of the review application. This led to the applicant having
initiated an application in which it sought the reinstatement of the review
application, together with condonation for the late delivery of the record. Such
application was unopposed and this court can discern no reason why such
order ought not to be granted.
3
Condonation
[5] The second of the applicant’s interlocutory applications related to its non-
compliance with Rule 3(1) of the Rules which were in force until 16 July 2024,
in circumstances in which the Notice of Motion and founding affidavit had been
transmitted to the third and fourth respondents prior to a case number having
been assigned to the application by the Registrar.
[6] The applicant applied for and was assigned a case number on 5 April 2023, the
day after its application papers had been served on the third and fourth
respondents. Once assigned, the applicant notified the third and fourth
respondents thereof. On 21 April 2022 the third and fourth respondents’
attorneys addressed correspondence to the applicant’s attorneys in which its
oversight was drawn to its attention, and in which it was invited to remedy the
situation by serving a copy of the application, with a case number, on its offices.
The applicant’s attorney’s response on 11 May 2022 was to assert that its
application was properly before the court, notwithstanding that it had by then
initiated the present application.
[7] In opposing the application for condonation the third and fourth respondents
asserted that Rule 12 did not provide for condonation to be granted in
circumstances other than those relating to time periods, and as such, the
applicant’s non-compliance could not be condoned. Whilst they are correct that
Rule 12 related only to time periods, Rule 11 provided further that,
‘(3) If a situation for which these rules do not provide arises in proceedings or
contemplated proceedings, the court may adopt any procedure that it deems
appropriate.
(4) In the exercise of its powers and in the performance of its functions, or in any
incidental matter, the court may act in a manner that it considers expedient in
the circumstances to achieve the objects of the Act.’
4
[8] These provisions, coupled with the trite principle that high courts enjoy inherent
powers to regulate their own processes, in effect means that this court has the
power to condone non- compliance with the processes established in terms of
its own Rules.
[9] In support of its further argument that, without a case number, the application
itself was a nullity, the third and fourth respondents relied on the decision in
Motloung and Another v The Sheriff, Pretoria East and Others 2020 (5) SA 123
(SCA), in which the Supreme Court of Appeal was required to determine what
effect, if any, the failure on the part of a registrar to affix his signature to a
summons had. The court concluded that the failure on the part of the registrar
to have signed the summons, despite having assigned a case number and
having affixed his stamp thereto, did not render the summons a nullity. The
court concluded,
‘In my view, the present matter clearly falls within the ambit of a peremptory
requirement whose breach can be condoned under rule 27(3). Despite not complying
with a peremptory provision of Rule 17(3)(c), it is not visited with nullity. It can be
condoned. The court of first instance was thus wrong to treat a failure to sign on the
same basis as a failure to issue.’
1
[10] The requirement of signature was found in Rule 17(3)(c) of the High Court
Rules which provided,
‘
After paragraph (a) or (b) has been complied with, the summons shall be signed and
issued by the registrar and made returnable by the Sheriff to the court through the
registrar.’
[11] Rule 3(1), on the other hand, previously provided,
‘Any party initiating any proceedings must apply for a case number before serving any
documents.’
1 At paragraph 29
5
[12] The requirements set forth in each of the rules differed; where Rule 3(1)
imposed no requirement that the Registrar be in physical possession of the
initiating document prior to assigning a case number, in contrast to Rule 17
which required physical possession by the registrar in order for the initiating
process to be issued. Under Rule 3(1), the litigant simply applied for a case
number using a standard form document, which case number would be
allocated to the litigant as a matter of course by the registrar.
[13] In circumstances in which the Supreme Court of Appeal declined to declare a
summons without the registrar’s signature a nullity, where such summons was
required to be issued before acquiring the status of a summons, this court is
disinclined to do so in respect of an application which required no more than a
case number, seemingly assigned for no more than the purposes of this court’s
internal processes of control. In Motloung, the SCA enjoined courts in matters
such as the present to act with a degree of latitude,
‘All of these dicta emerged from general principles of our common law applied prior to
the coming into effect of the Constitution. But it accords with the principles of the
Constitution and thus complies with the approach to interpretation referred to in Cool
Ideas. It supports the constitutional right to have disputes adjudicated in a fair public
hearing. Overly technical approaches to hinder the courts deciding of genuine
disputes between parties are to be strongly discouraged. The need for condonation to
show good cause allows for a consideration of prejudice. If courts are to err at all they
should do so in finding that irregularities are susceptible of condonation rather than
being necessarily visited with nullity.’2
[14] In consideration of the applicant’s explanation for having served the application
without a case number, and that the third and fourth respondents were notified
without a case number, and that the third and fourth respondents were notified
thereof the following day; that the applicant cannot be said to enjoy no
prospects of success; and the third and fourth respondents suffered no
prejudice as a result of the initial omission, this court is of the opinion that the
interests of justice would be best served by granting condonation.
Background
6
[15] On 2 May 2019 a grievance form was completed and lodged with the
functionaries of the applicant responsible for actioning employees’ complaints.
The grievance in question related to certain conduct which was alleged to have
been perpetrated by the applicant’s Plantation Manager, Mr Adam Felix, and
was submitted jointly by Mr Mzuzile Ndzimande and his co -employee, Mr
Thandoxolo Biyela, who were co-signatories to the document.
[16] It was common cause that t he incident which had led to the initiation of the
grievance had occurred on 15 April 2019, in the course of a visit by Mr F elix to
the area of the plantation at which Mr Ndzimande was then working. The
purpose of the meeting had been to convey the outcome of recent wage
negotiations which had been concluded between the applicant and a
recognised trade union, CEPPWAWU, to the employees. Mr Felix had then
taken the opportunity to address Mr Ndzimande and Mr Biyela ( who were then
both shop stewards of fourth respondent , ‘AMCU’) about an email he had
received from one of AMCU’s officials, Mr Ngunze, in which he had blamed Mr
Felix for having refused to allow Mr Ndzimande and Mr Biyela to attend a
recent meeting arranged by the trade union in Durban.
[17] In their grievance form Mr Ndzimande and Mr Biyela alleged that Mr Felix had
behaved inappropriately towards them in the course of their interaction, and
that his behaviour warranted disciplinary action being taken against him. Mr
Felix, in subsequent hearings relating to the issue, disputed that his conduct
had been untoward in any way.
[18] Mr Marius Jonker, t he chairperson of the grievance hearing which was
convened to investigate the claim that Mr Felix had misconducted himself
concluded that the employees’ allegations that Mr Felix had grabbed Mr
Ndzimande violently by the jacket and that he had committed an act of
intimidation were highly unlikely. He concluded further that the allegations were
intimidation were highly unlikely. He concluded further that the allegations were
most probably fabricated as a deliberate attempt on the part of the employees
to discredit Mr Felix. In the result, he recommended that disciplinary action be
2 At paragraph 28
7
taken against Mr Ndzimande, Mr Biyela, and another employee, Mr Doko, who
had supported their version during the grievance hearing. Mr Jonkers’
recommendation led to the institution of disciplinary action against those
employees.
[19] The chairperson of Mr Ndzimande’s disciplinary enquiry, Mr Ian Viviers, found
that he had committed the act of misconduct alleged. He concluded that the
dishonest nature of Mr Ndzimande’s conduct, the fact that he was a shop
steward who ought to have been expected to have led by example, and the
absence of any remorse on his part had resulted in the destruction of the trust
relationship, and that the appropriate sanction was that of dismissal.
[20] Pursuant to Mr N dzimande’s dismissal on 17 September 2020 he referred a
dispute to the first respondent in which he challenged the fairness of that
decision and sought to be reinstated to his position. It was the outcome of
those proceedings which led to the initiation of the present application. The
second respondent concluded that Mr Felix,
‘As a result of anger, he pointed a finger at the applicant and Biyela, and attempted to
grab the applicant with his jacket, and such violent conduct constituted an assault. It is
amazing that at the grievance hearing Jonker did not deal with such conduct even
though the issue of pointing with a finger was mentioned in the grievance form as one
of the complaints. A reasonable inference to draw is that the grievance process was a
sham, the intention not to find the truth. Pointing at an employee with a finger at close
range while angry is a violent conduct. The applicant should have been allowed to
take his grievance to the level where Felix was disciplined and be allowed to testify not
the other way round. I reject the evidence of the respondent witnesses to the extent
that there was no violent conduct perpetrated by Felix.’
[21] As a result of this finding, the second respondent found that the applicant had
[21] As a result of this finding, the second respondent found that the applicant had
failed to establish the substantive fairness of Mr Ndzimande’s dismissal.
Having concluded that there was no impediment to his reinstatement, he made
such an award.
8
Analysis
[22] The applicant’s case in the review proceedings was premised upon its
assertion that, in finding as he had, the second respondent had misconceived
the nature of the enquiry before him, alternatively, had arrived at an
unreasonable result in having concluded that Mr Ndzimande’s dismissal had
been substantively unfair.
[23] In amplification of the first ground, the applicant’s case was that the second
respondent failed to determine the issue before him: whether the statements
made by Mr Ndzimande in the grievance had been truthful , and if not, whether
the making thereof had been actuated dishonestly. In this regard, the act of
misconduct alleged to have been committed by Mr Ndzimande and for which he
had been dismissed was,
‘Breach of duty to act in good faith in that you falsely accused your superior of
manhandling or assaulting you in a staff meeting and you lodged a grievance on the
2nd of May 2019 which was found to lack the truth when it was tested through
witnesses in the Grievance Hearing held on the 17/05/2019.’
[24] Such charge arose in circumstances in which Mr Ndzimande’s complaint, as
articulated in the grievance form was recorded in the following terms,
‘On the 18/04/2019 at 14h15 Mr Felix ha a problem with me (Mr N dzimande & T
Biyela) asking us about employees who refused to sign some documents.’
The particularity of that complaint was elaborated in an appendix to the
grievance form,
‘Grabbed me with my jacket and pointed Biyela with a finger complaining that we told
Mr Ngunze (the organizer) that he refused to release shop stewards to attend regional
council meeting on the 28/03/2019. He also voiced out intimidating words that will
follow us if we don’t leave him alone. We must ask him from Bruce who was a
9
CEPPWAWU shop steward of what happened to him. Finally Mr Felix said he
concluded with Mr Koekemoer that there is no AMCU that is going to operate here.
We not happy the way we are treated.’
[25] Their desired outcome was stated to have been,
‘Discipline action must be taken because he grabed [sic] someone violently in front of
other workers.’
[26] Whilst the difference between the allegation made in the grievance, that Mr
Felix had grabbed Mr Ndzimande, and the second respondent’s finding, that Mr
Felix had attempted to grab Mr Ndzimande, may appear to be trivial, in the
context of the grievance itself together with the evidence led by the various
witnesses to the incident, an appreciation of that distinction was fundamental to
understanding the reasons which had informed Mr Ndzimande’s dismissal . In
the grievance form, Mr Ndzimande had not only categorically stated that Mr
Felix had grabbed him by his jacket, but unequivocally required that disciplinary
action be taken against him for that specific act which was alleged to have been
perpetrated in front of other employees. Such accusation was found to have
lacked any merit, and for that reason Mr Ndzimande faced the disciplinary
action which resulted in his dismissal.
[27] The second respondent, in exonerating Mr Ndzimande from any form of
misconduct, failed to consider the distinction between a completed act of
assault in the form of actual grabbing, and what was ultimately found by him to
have been an attempt by Mr Felix to have grabbed him. Having arrived at the
conclusion that such an attempt had been made he found that this, coupled
with ‘pointing’ on the part of Mr Felix (an issue not claimed to have been done
to Mr Ndzimande in the grievance form) sufficed to have established that Mr
Felix’s conduct had been violent and had constituted an assault.
[28] In determining the fairness of Mr Ndzimande’s dismissal, the second
respondent had been required to determine (1) the cogency of his claim that he
respondent had been required to determine (1) the cogency of his claim that he
had been grabbed by Mr Felix as set out by him in the grievance form; and (2) if
those claims were found wanting, whether a dishonest motive had informed his
claim.
10
[29] Distinct from the complaint that Mr Felix had assaulted Mr Ndzimande by
grabbing him, the allegations in the grievance form concerning Mr Felix’s acts
of misconduct were that, during the exchange:
- He had pointed a finger at Mr Biyela;
- He had uttered the threat to both Mr Ndzimande and Mr Biyela that if they
did not leave him alone he would follow them, as a form of intimidation;
- He had advised them to enquire of Bruce, a former CEPPWAWU shop
steward, what had happened to him; and
- He and Mr Koekemoer had concluded that the trade union AMCU would not
operate in the applicant’s business.
[30] The applicant introduced the evidence of four witnesses: Mr Felix, Ms
Sphelokazi Ngubelanga, Mr Jonkers and Mr Viviers, together with certain
documentary evidence. Mr Ndzimande testified in support of his own case, as
did Mr Biyela.
[31] Given that the versions presented by the applicant’s witnesses and those
presented by Mr Ndzimande and Mr Biyela were mutually incompatible in
respect of the issues which formed the subject matter of the grievance, it was
incumbent upon the second respondent to determine which version was to be
believed, such assessment was to be conducted in the manner established in
Stellenbosch Farmer’s Winery Group Ltd and Another v Martell & Cie SA and
Others 2003 (1) SA 11 SCA: the credibility of the witnesses, their reliability, and
the probabilities.
[32] Without having conducted such assessment, the second respondent concluded
that there was,
‘… no evidence nor contradictions on the part of the applicant that convinces me that
he lied during the grievance hearing nor at the disciplinary enquiry.’
On the other hand, he rejected the evidence of both Mr Felix and Ms
Ngubelanga, who testified on behalf of the applicant, insofar as it had related to
11
both the issues of Mr Felix having grabbed Mr Ndzimande and pointed at both
employees.
[33] Mr Felix testified that on 15 April 2019, he together with Ms Ngubelanga, the
applicant’s HR Clerk Forestry Operations, went into the plantation to provide
feedback to the various teams concerning the outcome of wage negotiations
which had been concluded the previous week. They were then accompanied
by two students. Upon their arrival at the place where Mr Ndzimande was
working together with the rest of his team, he requested Mr Ndzimande to call
the supervisor, Mr Dlamini, and the rest of the team. Whilst the rest of the team
was making their way to where they were standing, Mr Felix asked Mr
Ndzimande if he was aware of an email which had been sent by an official of
AMCU, in which he had been accused of not having wanted to release the shop
stewards to attend a trade union meeting in Durban . After Mr Ndzimande
denied any knowledge of the email he offered to allow him to read it as it was in
the file he had with him, however Mr Ndzimande declined to do so on the basis
that he is unable to understand English. In response to Mr Ndzimande, he told
him that it was not good if he and Mr Biyela had lied about him having refused
to release them to a meeting. Whilst he was talking, he point ed, indicating both
of them. He said respect worked both ways, up and down, and told them to
make sure that this did not happen again. The file was given to Mr Biyela to
read. After Ms Ngubelanga had concluded her explanation of the outcome of
the wage negotiations a question was asked by Mr Dlamini about
representation of AMCU members. In response, he told him that there was an
email in the file in which AMCU was informed to acquire more members in
order to have bargaining rights, and offered to let him read the email. Mr
Dlamini accepted the offer and the file was passed to him via Ms Ngubelanga
and he, together with Mr Biyela, read it. After it was clear that no one else had
and he, together with Mr Biyela, read it. After it was clear that no one else had
any further questions, he began to turn around to return to the vehicle when Mr
Ndzimande approached him to ask him for a copy of the collective agreement.
He replied that it was a confidential document and he could not given him a
copy. Mr Ndzimande accepted this, they embarked the vehicle, and left.
12
[34] Mr Felix denied having grabbed Mr Ndzimande. He further denied having
asked him about employees having refused to sign certain documents at that
meeting having explained that that issue had been resolved by February 2019,
in which month he had approached Mr Ndzimande’s team to have them sign a
form which was required by the Department of Labour to be completed by all
employees. All the forms had been completed by 21 February 2019 and the
issue was not addressed at all on 15 April 2019. The former shop steward
Bruce had been dismissed for poor performance, but was never mentioned that
day, as with the allegation regarding Mr Koekemoer, with whom he never
colluded to exclude AMCU or any other trade union from the applicant’s
business.
[35] He denied that he had arrived at the plantation angry, and had simply wanted to
speak about the contents of the email for the reason that Mr Ngunze had sent
previous emails which attempted to create a misperception between himself
and the shop stewards, and he wished to ensure that there were no
miscommunications between them.
[36] Ms Ngubelanga testified that she, together with Mr Felix, the foreman and two
students had travelled to the forestry teams to provide them with feedback
about the wage negotiations. Upon arrival at the place where Mr Ndzimande
and his team were working they exited the vehicle and Mr Felix asked Mr
Dlamini to call the employees. Mr Ndzimande was nearby and Mr Felix asked
him why he had lied about him to the union organizer, that he had refused to
issue them leave to allow them to attend a union meeting. Mr Ndzimande
denied knowing what Mr Felix was talking about. Mr Felix explained that he
had received an email which stated that he had refused them leave to attend a
union meeting. He said that they should respect him so that he will be able to
respect them. Whilst she was busy with her feedback to the employees
present, Mr Dlamini asked why the negotiations were done by CEPPWAWU
present, Mr Dlamini asked why the negotiations were done by CEPPWAWU
when they were AMCU members, to which she responded that CEPPWAWU
was the majority trade union. Mr Felix interjected to say that he had an email
which explained by AMCU had not been part of the negotiations. He attempted
to give the file to Mr N dzimande who did not take it, saying he did not
13
understand English. He then passed the file to her, to pass to Mr Biyela who
began to read it out loud. After the presentation was concluded and there were
no further questions, they were about to leave when Mr Ndzimande
approached Mr Felix and asked him for a copy of the collective agreement. Mr
Felix told him that he could not give him a copy as it was for another union.
After this exchange, they entered the vehicle and left the site.
[37] Ms Ngubelanga disputed the truth of the contents of the grievance: she
disputed that there had been any signing of documents, stated that she had not
observed any pointing, and denied that Mr Felix had made any of the
statements attributed to him by the grievants.
[38] Mr Ndzimande testified that he had been working on 15 April 2019 when the
supervisor, Mr Dlamini, called him and told him that he was wanted by Mr Felix.
He was the last one to arrive and while he was on his way there, Mr Felix
greeted him and asked him who had refused to sign the forms and who was
telling lies to Mr Ngunze. He responded that he did not understand what Mr
Felix was referring to, whereafter Mr Felix pointed to him and Mr Biyela with his
finger and said its you and you, and that Mr Ndzimande was making people ‘the
mamparas’. Mr Ndzimande asked what he had done, and in response, Mr Felix
referred him to the file which we was holding and said that he must read it, all
the while pointing between him and Biyela with the file. Mr Ndzimande told Mr
Felix that he could not read the file and that maybe another person could
interpret it for him. Mr Felix then gave the file to Mr Biyela who read it for a
while before Mr Felix took it back and Mr Ndzimande was given it to look at. He
saw his own name and, after Mr Felix had pointed at his name, said something
not understood by Mr Ndzimande about having expected the blue, not the red
file. After this, Mr Felix grabbed him on the left side of his jacket and Mr
file. After this, Mr Felix grabbed him on the left side of his jacket and Mr
Ndzimande stepped back and folded his arms to protect himself, asking what
he had done. In response, Mr Felix had said, ‘If you follow me I will follow you.’
He understood this to be a threat, that Mr Felix meant that he would monitor his
work closely with the intention of finding fault therein for the purpose of having
him fired. Mr Felix also told him that he was, ‘like Bruce’ and, when he asked
him in what way, Mr Felix told him to go and ask Bruce what he does to shop
stewards. He was aware that Bruce had been a CEPPWAWU shop steward
14
who had previously been dismissed and he accordingly understood this to be a
further threat directed to him. At this time, the other employees were around
them in a U -shape, but Ms Ngubelanga had already gone back to the vehicle.
Whilst he and Mr Felix had previously worked well together, in 2017 he had
sent security guards to his home to check on his whereabouts.
[39] He regarded himself as having been abused by Mr Felix on 15 April 2019.
[40] Mr Biyela testified that he had been pointed at by Mr Felix in the course of the
incident but that because Mr Felix had been standing between him and Mr
Ndzimande, his view of Mr Ndzimande was obscured and he accordingly did
not witness Mr Felix either pointing at or grabbing him. He attributed various
utterances to Mr Felix: he would show them who he is, because they were
following him; he would follow them if they did not leave them alone; if they did
not know him, they should ask Bruce who was a CEPPWAWU shop steward
what happened to him, because he dismisses shop stewards when they follow
him.
[41] He confirmed that the source of the unhappiness felt by him and Mr Ndzimande
arose out of the manner in which they had been treated that day.
[42] In view of the fact that that the witnesses to the events of 15 April 2019 had
repeated their respective versions on four previous occasions, it was possible
to contrast their testimony given at the arbitration with that which had previously
been said by themselves as well as each other. To the extent that it was
asserted by Mr Ndzimande’s representative that the minutes of the grievance
hearing and the various disciplinary enquiries had been inaccurate, he did not
particularise where such inaccuracies lay at the outset. Mr Ndzimande
likewise, save to have denied the correctness of certain parts of the minutes,
did testify as to what ought to have been captured. Additionally, the salient
aspects of the evidence of the witnesses who testified at those processes were
aspects of the evidence of the witnesses who testified at those processes were
introduced into evidence at the arbitration through the chairs of those enquiries
(Mr Jonkers and Mr Viviers). Where such evidence was unchallenged, there
was no reason for the second respondent not to have accepted their
recollections has having been correct.
15
[43] Insofar as the issue of Mr Felix having grabbed him was concerned, Mr
Ndzimande’s evidence was that he himself was in possession of the file when
Mr Felix had grabbed him. Under cross examination, he asserted that Mr Felix
had grabbed him by the left hand side of his jacket with his right hand, whilst Mr
Felix was said to have been holding the red file with his left hand. The same
incident was described by him in the course of the grievance hearing as having
occurred when Mr Felix had approached him with the file open, and that Mr
Felix had tried to push him when he took the file back, at which point Mr
Ndzimande folded his arms. Mr Ndzimande’s evidence at the disciplinary
enquiry convened for Mr Doko (who was dismissed for reasons relating to the
evidence he had given at the grievance hearing) was that Mr Felix had accused
him of not wanting to read the file, and then grabbed him on his right shoulder
with his right hand. In that hearing he stated that he did not regard Mr Felix’s
actions as having been violent, rather, it had been the manner in which he had
spoken which he had regarded as violent. In the same hearing, under cross
examination, he stated that Mr Felix had attempted to grab him, but that he
avoided such an outcome by stepping backwards and having folded his arms.
At his own disciplinary enquiry he once again stated that Mr Felix had
succeeded in grabbing him.
[44] Mr Ndzimande’s evidence concerning the timing of the incident likewise lacked
consistency between his various versions. In the arbitration, when first asked
where the other individuals had been when Mr Felix had grabbed him, he
responded that the people who had come with Mr Felix had been standing
behind him, near the vehicle, whilst the other employees in his team had been
standing in a U shape facing the vehicle. In that version, no mention was made
of Ms Ngubelanga then already having addressed the staff ; rather the incident
of Ms Ngubelanga then already having addressed the staff ; rather the incident
was conveyed as having taken place at the outset , immediately upon Mr Felix’s
arrival at the plantation. Later, however, Ms Ngubelanga’s presence at the
scene of the incident was sought to be eliminated by placing her with in the
vehicle. Under cross examination, he confirmed that the incident transpired
before the meeting but could then not explain why Ms Ngubelanga had
allegedly returned to sit inside the vehicle (before fulfilling the purpose of the
16
site visit) or why her evidence that she had been present the entire time, and
that the file had been passed to her to pass on to Mr Biyela had not been
challenged. At Mr Doko’s disciplinary enquiry, he had said that Ms Ngubelanga
had been in the vehicle at the time of the incident , whilst at his own disciplinary
enquiry, Ms Ngubelanga was said to have been address ing the employees at
the time when Mr Felix was dealing with the issue of the file with Mr Biyela and,
thereafter, him.
[45] Mr Biyela’s evidence did not accord with Mr Ndzimande’s in material respects .
Despite Mr Ndzimande having asserted in his appeal form that Mr Biyela
witnessed Mr Felix’s assault on him, he conceded that he could not see the
interaction between the two of them, as Mr Felix’s body obscured his line of
sight to Mr Ndzimande. His recollection of the timing of the incident also
differed from that of Mr Ndzimande’s previous versions in that he testified under
cross examination that it had occurred after Ms Ngubelanga had finished
addressing the employees and had returned to the vehicle.
[46] Mr Ndzimande’s evidence concerning the issue of pointing was equally
ambiguous. In the grievance form, only Mr Biyela had been named as having
been pointed at by Mr Felix. When taken through the grievance form by his
own representative, he confirmed that the complaint contained therein
concerning pointing had been confined to Mr Biyela, without reference to
himself at all. In the grievance hearing, he included himself as having been
pointed at by Mr Felix , at all times with his finger. At that same hearing, Mr
Biyela claimed that Mr Felix had pointed at Mr Ndzimande with the file, and
himself with his finger. Mr Ndzimande reiterated the version that both he and
Mr Biyela had been pointed at by Mr Felix in the course of the disciplinary
hearing convened for Mr Doko. At his own disciplinary enquiry he testified that
hearing convened for Mr Doko. At his own disciplinary enquiry he testified that
Mr Felix had first pointed at him with the file, and subsequently pointed at both
of them with his finger. His final version at the arbitration was that Mr Felix
began their interaction by pointing at both him and Mr Biyela, and continued
pointing at both of them with both his finger and the file throughout the
interaction. Mr Ndzimande was unable to provide a plausible reason why Mr
Biyela had been expressly named in the grievance form as having been pointed
17
at, whilst no mention was made of Mr Felix having pointed at him. Moreover,
Mr Biyela was very clear that the person who was pointed at by Mr Felix was
him, and that he had been unable to see what gestures Mr Felix had used in
relation to Mr Ndzimande, although on his version he,
‘… could see because there was something that he was doing with his finger then it
was turn and also point me with the finger…’
[47] The threats alleged to have been made by Mr Felix during the course of the
incident likewise did not remain consistent. At the arbitration hearing, Mr
Ndzimande attributed the following statements to him in the course of his
evidence in chief:
- ‘If you follow me, I will follow you’; and
- ‘You are like Bruce,’ and, in response to a request for clarification, that he
should, ‘Go and ask him, you are exactly like him. ’ He was told further that
he should, ‘… ask Bruce what I do to the shop steward.’
Under cross examination, he testified that Mr Felix said if he ( Mr Ndzimande)
did not respect him (Mr Felix), he would follow him.
[48] Although the grievance form recorded Mr Felix as having said that he would
follow them if they didn’t leave him alone, in his evidence at the grievance
hearing, Mr Ndzimande stated that Mr Felix had said that if he didn’t respect
him, he wouldn’t respect them, but subsequently changed the statement to
having been that if he did not respect him, he would follow him. On the issue of
the CEPPWAWU shop steward, Bruce, he attributed a similar statement as
having been made by Mr Felix at another meeting, but only mentioned that Mr
Felix had reiterated such a similar sentiment in the course of the incident on 15
April 2019 when his omission to have mentioned this issue in the course of his
evidence in chief was drawn to his attention under cross -examination. He
mentioned neither of these issues during the course of Mr Doko’s disciplinary
enquiry, whilst at his own disciplinary enquiry said only that Mr Felix had said
enquiry, whilst at his own disciplinary enquiry said only that Mr Felix had said
that if he did not respect him, he himself would not respect Mr Ndzimande.
[49] Mr Biyela’s evidence at the grievance hearing was likewise that Mr Felix had
said, ‘If you don’t respect me, I won’t respect you,’ however by the time of the
18
arbitration, recalled that Mr Felix had said that he would show them who he is,
as they are following him, and also that he would follow them if he did not leave
them alone. Later in his evidence he remembered the statement slightly
differently, being that Mr Felix had said if they were following him, he would
follow them.
[50] Despite having expressed himself to have been cognisant of the contradictions
between the versions of Mr Ndzimande and Mr Biyela regarding the timing of
the incident, as well as the fact that at least four different statements
concerning the same issue had been attributed to Mr Felix by both in the
course of the arbitration, the second respondent explained these away as
matters of mere memory or perception, concluding that,
‘There is no evidence nor contradictions on the part of the applicant that convinces me
that he lied during the grievance hearing nor at the disciplinary enquiry.’
[51] On the other hand, he rejected certain of the evidence of both Mr Felix and Ms
Ngubelanga, for reasons which we re unsustainable in consideration of the
totality of the evidence before him.
[52] Mr Felix’s evidence was rejected on the basis of the second respondent having
concluded that it was highly improbable that he would have remained at a
distance of approximately 5 m etres away from Mr Ndzimande in circumstances
in which he had handed him the file. The difficulty with such finding was that it
could only have arisen from his having accepted the correctness of Mr
Ndzimande’s version that Mr Felix had approached him to give him the file to
look at after he had already declined to look at it, in circumstances in which it
had been Mr Felix’s evidence that Mr Ndzimande had never accepted the file
from him, having indicated that he did not read English when he offered to give
it to him to read.
[53] There was also no basis upon which the second respondent ought to have
rejected Ms Ngubelanga’s evidence. He found,
19
‘On one hand she was in a better position to have witnessed the grabbing if it had
happened, in other words, she implies that it did not occur, on the other hand, despite
such good position, she did not witness Felix pointing either by a file, hand, or finger at
Biyela or applicant. Felix conceded that he pointed at Biyela and applicant but not with
a finger, he used his hand and that was in full view of Sphelokazi. She also did not
want to come out clear that Felix was angry at the applicant. There is overwhelming
evidence before me that when Felix was pointing at the applicant, he was angry. It is
because of this contradiction that I prefer to reject the evidence of Sphelokazi in this
regard.’
[54] Ms Ngubelanga’s evidence was required to be assessed in the context in which
it was given, in that she testified as both a witness to the incident and in her
capacity as the HR Clerk Forestry Operations.
[55] In response to the question posed to her as to how she would define an
incident where an employee points a finger to another employee, she
distinguished two scenarios,
‘Pointing of a finger is normal, more especially if you are talking with a group of
employees, you want to point it out to make it clear who are you referring what you’re
saying to, but if you’re going to point someone in their body, like, then it’s provoking
that employee then.’
On her own understanding, the type of pointing entailing provocation was
wrong in accordance with the applicant’s disciplinary code, being a form of
intimidation.
[56] In her evidence in chief, she was asked to address the allegations against Mr
Felix as set out in the grievance form and, in response to the allegation that he
had pointed a finger at Mr Biyela, she disputed that Mr Felix had pointed
anything at anyone. In the course of her evidence the second respondent took
some time to interrogate her on the issue of the pointing, having informed her
some time to interrogate her on the issue of the pointing, having informed her
that the pointing was, by then, common cause. In response she accepted that
if there had been pointing, she did not see it, and that it may have happened
that Mr Felix’s own body had obscured her view of such an event.
20
[57] At the time when he questioned her the second respondent had no evidence
before him that any type of pointing had taken place, let alone that the
happening of such an activity was by then common cause. The only person to
have testified prior to Ms Ngubelanga had been Mr Jonker who, as the
presiding officer in the grievance hearing and the evidence leader in the
disciplinary enquiries, could do no more than convey the evidence which had
been introduced in those hearings. On the issue of pointing, he conveyed the
various accounts as relayed by Mr Ndzimande, Mr Biyela and Mr Doko, as well
as the fact that Mr Felix had testified that he had not pointed but rather that he
generally speaks with his hands. It was accordingly by no means common
cause that pointing (in a manner which could be categorised as provocative)
had taken place, and there was accordingly no reason to reject her evidence for
the reason that she denied having seen Mr Felix pointing at Mr Ndzimande or
Mr Biyela.
[58] The unreliability of Mr Ndzimande’s version was compounded by the
improbability of any such incident having transpired. Whereas the incident was
said to have occurred in the presence of approximately 20 employees, no
employee other than Mr Biyela corroborated any aspect of Mr Ndzimande’s
version. Despite then allegedly having been recently assaulted by Mr Felix, Mr
Ndzimande had no difficulty in approaching him to ask for a copy of
CEPPWAWU’s recognition agreement. Notwithstanding the very serious
nature of the alleged misconduct, it took the employees some two weeks to
report the incident to the applicant and, when they did so, they were incapable
of recalling the correct date on which it was said to have occurred. Moreover,
save for Mr Ndzimande’s ipse dixit, there was no evidence that they had
reported the incident to AMCU, and nor was there any evidence that AMCU
had raised the issue with the applicant. Given that AMCU had taken it upon
had raised the issue with the applicant. Given that AMCU had taken it upon
itself to complain to the applicant that Mr Felix had refused to allow its shop
stewards to attend a meeting, there is no doubt that it would have done the
same had the employees reported the fact of Mr Felix having assaulted Mr
Ndzimande to it.
21
[59] The incident which formed the basis of grievance was not complex. Whilst
minor inconsistencies could potentially have been attributed to memory loss or
individual perception, the persistent, marked disparities between the various
versions presented by and in support of Mr Ndzimande were too extreme to
have led any reasonable decision maker to any conclusion other than that the
incident itself had been fabricated. On the other hand, the second
respondent’s reasons for having rejected the versions of Mr Felix and Ms
Ngubelanga were premised on his failure to have appreciated the evidence
before him, and were unreasonable. In the circumstances, not only did the
second respondent fail to undertake the enquiry he was required to undertake,
but his conclusion that Mr Felix had indeed misconducted himself on 15 April
2019 was unreasonable.
[60] Had the second respondent concluded that Mr Ndzimande’s version was to be
rejected, he would then have been required to have interrogated his motivation
in having initiated the grievance. In this regard, he was required to determine
whether the assertions made by Mr Ndzimande in the grievance had been
actuated dishonestly, as alleged by the applicant. Mr Ndzimande’s subjective
intent was required to be determined by reference to the objective evidence
before the second respondent together with the surrounding circumstances.
[61] The purpose of the grievance was unequivocally stated to have been the taking
of disciplinary action against Mr Felix. T his was to be achieved through the
mechanism of a grievance which was not only devoid of merit, but was
embellished with complaints relating to extraneous incidents which had
occurred prior to the incident in question, but alleged by the employees to have
taken place on the same occasion. The only purpose such elaboration could
possibly have served was to exacerbate the seriousness of the events. The
inescapable inference to be drawn from this was that Mr Ndzimande had
inescapable inference to be drawn from this was that Mr Ndzimande had
deliberately falsified the grievance, and the second respondent’s conclusions to
the contrary were unreasonable.
[62] This court has accepted that no employer is obligated to countenance
dishonesty on the part of its employees, more so where an employee
22
compounds his or her initial dishonest act by perpetuating a lie. Mr Ndzimande
was dishonest when he signed the grievance, and perpetuated that dishonesty
throughout the four processes which ensued thereafter, thereby not only having
compounded his dishonesty but having deprived himself of an opportunity
demonstrate contrition. Had he and his witnesses been able to maintain a
consistent, plausible version, the consequence of that fabricated version could
have had devastating consequences for Mr Felix: he would have been the
subject of a disciplinary enquiry, facing allegations of misconduct which would
likely have resulted in his dismissal. The effect of the grievance was that Mr
Felix thereafter resorted to the utilisation of r ecording devices when conducting
visits to the plantations, in an effort to ensure that the situation created by Mr
Ndzimande and Mr Biyela c ould not be repeated. The applicant’s further
evidence was that the fact ors relied upon by Mr Ndzimande, that he was a
diligent worker with an unblemished disciplinary record and a family to support,
did not militate against the effect his actions had on the trust relationship
between himself and the applicant in general, and Mr Felix in particular.
[63] In the circumstances, the ultimate conclusion arrived at by the second
respondent, that Mr Ndzimande’s dismissal had been substantively unfair, was
not one a reasonable decision maker could have arrived at in consideration of
the issues he was required to determine on the basis of the evidence before
him. As such, the second respondent’s award, that Mr Ndzimande’s dismissal
had been substantively unfair, falls to be reviewed and set aside. As the issues
were fully canvassed in the course of the arbitration and the present
proceedings, there is no reason to remit the matter to the first respondent, and
the award will be substituted accordingly.
Costs
[64] Albeit that the applicant sought an order of costs against the third and fourth
Costs
[64] Albeit that the applicant sought an order of costs against the third and fourth
respondents, this court is not of the belief that either acted unreasonably in
seeking to defend an award in their favour and, accordingly, each party will be
required to bear their own costs.
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Order
1. The review application is reinstated.
2. The applicant is granted condonation for the late delivery of the record.
3. The applicant’s non-compliance with Rule 3(1) is condoned
4. The award issued by the second respondent under KNDB 10301-20 is reviewed
and set aside to the extent that the dismissal of the third respondent was found
to have been substantively unfair, and is substituted with an order that the
dismissal of the third respondent was substantively fair.
5. There is no order as to costs.
________________________
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr J Whyte, Norton Rose Fulbright SA Inc
Third and Fourth Respondents:
Mr A J Prior, instructed by Futcher & Poppesqou Attorneys Inc