IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no J 1351/97
In the matter between:
East Rand Gold and Uranium Co Ltd Applicant
AND
The Commission for Conciliation Mediation
and Arbitration 1st Respondent
J.N Lebea 2nd Respondent
A.A Shabalala 3rd Respondent
SS Msibi 4th Respondent
MJ Cashibe 5th Respondent
LJ Dube 6th Respondent
I Tshabalala 7th Respondent
National Union of Mineworkers 8th Respondent
JUDGMENT
MLAMBO J.
1. On 6 November 1997 the second respondent (“Lebea”), a commissioner
under the auspices of the Commission for Conciliation Mediation and
Arbitration (“the Commission”), issued an award in which he purported to inter
alia, reinstate the Third to the Seventh respondents (“individual respondents”)
in the employ of the Applicant. Lebea, had been appointed in terms of section
136 of the Labour Relations Act no, 66 of 1995 (“the Act”) to arbitrate a dispute
between the Applicant and the individual respondents who were represented
(during the arbitration proceedings) by the Eighth respondent, their union.
2. The individual respondents had been dismissed by the applicant as a
result of alleged misconduct involving the theft of gold bearing material
belonging to the Applicant. The Applicant approaches this court for an order to
review and set aside the award issued by Lebea.
The factual background
3. The events and facts giving rise to the arbitration proceedings
conducted by Lebea, and the background thereof, may for the sake
of convenience be summarised as follows:
3.1 The Third respondent (“Shabalala”) was charged with theft of
gold bearing material from the Daggafontein plant, a division of the
Applicant. He appeared at an internal disciplinary hearing presided
over by Mr R Peacey (“Peacey”).
3.2 The Fourth respondent (“Msibi”) and the Seventh respondent
(“Tshabalala”) were charged with gross negligence based on their
alleged assistance in the removal of gold bearing material from the
Applicant’s Daggafontein plant. Msibi’s internal disciplinary hearing
was chaired by Peacey whilst Tshabalala’s hearing was chaired by
Boshoff. The allegation against them was that they neglected to
search vehicles driven by Cashibe and Dube which allegedly were
used to remove gold bearing material from the Applicant’s
Daggafontein plant.
3.3 The Fifth respondent (“Cashibe”) and the Sixth respondent (“Dube”)
were charged with being accomplices to theft in that it was alleged that they, in
their capacities as drivers, assisted in the removal of gold bearing material out
of the Applicant’s Daggafontein plant. They also appeared at an internal
disciplinary hearing chaired by Peacey.
3.4 All the individual respondents were found guilty and were dismissed.
They all lodged appeals in terms of the Applicant’s disciplinary code and
procedure, which appeals were all unsuccessful.
4. The individual respondents then declared a dispute and referred it to the
Commission in terms of the provisions of the Act. Conciliation failed to resolve
the dispute and it was consequently referred to arbitration. The arbitration
proceedings before Lebea took place on the 11th through to the 14th of July
1997 and thereafter on the 11th to the 14th of August 1997.
5. In the arbitration proceedings the individual respondents denied
involvement and or participation in theft or dishonest conduct as well as
negligence. On the 6th of November 1997 and in terms of section 138(7)
Lebea handed down his award. The award is as follows:
“AWARD
Based on the above, I make the following award:
1. The dismissal of Shabalala, Cashibe, Msibi, Dube
and Tshabalala was unfair.
2. The company is ordered to reinstate Shabalala,
Cashibe, Dube, Msibi and Tshabalala to terms and conditions of
employment not less favourable than those that would have applied
to them had they not been dismissed.
3. The company is ordered to pay Shabalala, Cashibe,
Msibi, Dube and Tshabalala an amount equivalent to 7(seven)
months’ remuneration in respect of the period of their unfair
dismissal being their arrear earnings. This amount shall be
calculated at the rate that would have applied to them as at the date
of this award had they not been unfairly dismissed. The payment
as aforesaid will be effected within 10 (ten) days of the date of this
award.
4. The reinstatement of the individual Applicants as set
out in paragraph 1 hereof shall take place within 10 (ten) days of
the date of this award.
5. I make no order as to costs.”
6. The Applicant seeks to upset Lebea’s award in this review application
on the following broad grounds:
6.1 “that the arbitrator , in coming to a conclusion without inter alia having
regard to credibility of witnesses, committed a gross irregularity in terms of the
provisions of section 145(2)(a)(ii) of the Act;
6.2 the provisions of section 33 of the Constitution of the Republic of South
Africa (1996) (“the Constitution”), read with item 23(2) of schedule 6 to the
Constitution;
6.3 the common law grounds of review.”
The Applicant’s submissions
7. Mr Pauw, counsel for the Applicant, advanced comprehensive
submissions in support of the Applicant’s case. He submitted
primarily that the award should be reviewed and set aside because
Lebea did not consider the credibility of the witnesses in assessing
the evidence before him. This submission is supported by
reference to certain portions of the award which, according to Mr
Pauw, provided a conclusive demonstration that Lebea’s disregard
of the credibility of witnesses amounted to a gross irregularity within
the contemplation of section 145. Mr Pauw submitted that credibility
was crucial in view of the individual respondents’ defence of alleged
jealousy and racism by their accusers, Enslin and Pretorius, as well
as the fact that Lebea had before him two dramatically opposed
versions. The following examples were cited which, according to
Mr Pauw, demonstrate that credibility was crucial and should not
have been overlooked by Lebea: the version presented by
Shabalala that Enslin was a racist was not credible simply because
Shabalala had never lodged a grievance regarding such racism;
despite such racism allegations Shabalala stated that he still
wanted to assist Enslin progress at work; Enslin denied hating black
people and considered himself to be Shabalala’s friend; Enslin and
Pretorius were never attacked as lying; Shabalala could not
account for his whereabouts during a substantial portion of his shift
on 8 October 1996; Cashibe remembered almost nothing regarding
the events of 8 and 9 October 1996; Msibi used to see Dube almost
daily except for 8 and 9 October 1996; Tshabalala consistently
failed to answer direct questions and contradicted himself, for
example that he could not see the bakkie but saw a spare wheel at
the back of the bakkie; Shabalala denied the versions of Enslin,
Pretorius and Ngomane about where sample bags were kept; that
Pienaar and Enslin gave evidence of confessions of guilt made to
them by Shabalala.
Standard of review
7. In Carephone (Pty) Ltd v Marcus N.O & Others (1998) 11
BLLR 1093(LAC) the Labour Appeal Court settled the question of
the ambit of the review jurisdiction of this court over arbitration
awards of the commission. There the court reaffirmed the fact that
the administrative justice section of the Bill of Rights in the
Constitution (108 of 1996) has broadened the scope of judicial
review of administrative actions. At paragraph 31 and 32 the court
said:
“The peg on which the extended scope of review has been hung is the
constitutional provision that administrative action must be justifiable in relation
to the reasons given for it(section 33 and item 23(b) of schedule 6 of
the Constitution ). This provision introduces a requirement of
rationality in the merit or outcome of the administrative
decision. This goes beyond mere procedural impropriety.
But it would be wrong to read into this section an attempt to
abolish the distinction between review and appeal. According
to The New Oxford Dictionary ‘justifiable’ means ‘able to be
legally or morally justified, able to be shown to be just,
reasonable, or correct; defensible’. It does not mean ‘just’,
‘justified’ or ‘correct’. On its plain meaning the use of the word
‘justifiable’ does not ask for the obliteration of the difference
between review and appeal. Neither does the LRA itself: it
makes a very clear distinction between reviews and appeals.”
9. Further at paragraph 35 and 36 the court said:
“When the Constitution requires administrative action to be
justifiable in relation to the reasons given for it, it thus seeks to
give expression to the fundamental values of accountability,
responsiveness and openness. It does not purport to give
courts the power to perform the administrative function
themselves, which would be the effect if justifiability in the
review process is equated to justness or correctness.
In determining whether administrative action is justifiable in
terms of the reasons given for it, value judgments will have to
be made which will, almost inevitably, involve the
consideration of the ‘merits’ of the matter in some way or
another. As long as the judge determining this issue is aware
another. As long as the judge determining this issue is aware
that he or she enters the merits not in order to substitute his or
her own opinion on the correctness thereof, but to determine
whether the outcome is rationally justifiable, the process will
be in order.”
10. The notion of review of the awards of the Commission by this
court as restated and settled by the Labour appeal Court in the
Carephone judgment means that this court cannot and should not
attempt to determine the correctness of an award. Rather the court
should be preoccupied with the task of determining whether the
award is rationally justifiable in relation to the reasons given for it.
11. It is trite that a decision maker such as a commissioner must
consider the evidence placed at his disposal and must base his
award thereon. In Standard Bank of Bophuthatswana Ltd v
Reynolds NO 1995 (3) SA 74(B) at 89FG Friedman JP said:
“Our courts have held that where a decisionmaker takes a
decision unsupported by any evidence, or by some evidence
which is insufficient reasonably to justify the decision arrived
at, or where the decisionmaker ignores uncontroverted
evidence which he was obliged to reflect on, the decision
arrived at will be null and void.”
A commissioner considering the evidence placed at his disposal is,
under normal circumstances, expected to properly evaluate and
assess the evidence in order to make his award.
Credibility of witnesses
12. Lebea made it clear in the award that he would not deal at all
with the credibility of any of the witnesses but would look at the
evidence as a whole with due regard to the balance of probabilities.
The Applicant is critical of this approach on the basis that
probabilities cannot be properly assessed without making any
credibility findings.
13. The demeanor of witnesses is the primary basis upon which
credibility is assessed. Hoffman & Zeffert: South African Law of
Evidence 4th edition at page 610 the leaned authors say the
following:
“Demeanour should be allowed only to reinforce a conclusion reached by an
objective assessment of the probabilities, or possibly to turn the scale when the
probabilities are evenly balanced.”
14. In S v Kelly 1980 (3) SA 301 at 308B C Diemont JA said:
“There can be little profit in comparing the demeanour only of one
witness with that of another in seeking the truth. In any event, as counsel
conceded in a homely metaphor, demeanour is, at best, a tricky horse to
ride.”
And at E F:
“Nevertheless, while demeanour can never serve as a substitute for
evidence, it can, and often does, “reflect on and enhance the credibility of
oral testimony”. The experienced trial officer is well aware of this fact; it
is a matter of common sense. He observes the witness closely
evasions, hesitations and reactions to awkward questions. He will note,
if he is alert, “all the incidental elements so difficult to describe which
make up the atmosphere of an actual trial”.
15. As Diemont JA said S v Kelly above the demeanour of
witnesses and their credibility is not a substitute for evidence.
Reliance on the demeanour and credibility of witnesses is a
subjective issue. It is “tricky horse to ride” which can sometimes
mislead. Where the demeanour and credibility of witnesses is relied on full
reasons for doing so must be set out. A decision not to rely on the demeanor
and credibility of witnesses is under normal circumstances not open to
criticism. After all it is up to the decision maker who has the benefit of listening
to the witnesses and observing their behaviour to decide which witnesses to
believe and why.
16. It must be accepted that when the Commission’s arbitral function
was conceived the object was to introduce a process that is free
from legal formalities free from legal technicalities and free from
legal representatives (to a large extent). The process is meant to
be simple so as to enable employers and em ployees, on their own, to
easily ventilate their differences. Though the process is essentially judicial in
nature it does not transform the Commission into a court of law.
“The constitutional answer to this submission is that although the Commission
or other organs of state may perform functions of a judicial nature they are not
courts of law and thus have no judicial authority under the Constitution
(sections 165, 166 and 239 of the Constitution). Their judicial functions
do not transform them into part of the judicial arm of the state, nor does it
make them part of the judicial process (cf Bernstein and Others v Bester
and Others NNO 1996 (2) SA (CC); 1996 (4) BCLR 449 (CC) paragraph 95 o
97).”
Carephone (Pty) Ltd v Marcus NO &Others Supra at paragraph 18.
17. It is correct that public institutions such as the Commission are
subject to the same values of accountability, responsiveness and
openness which apply and have always applied to courts of law.
This however does not mean that the formalities, practices and
rules applicable to courts of law are also applicable to public
institutions such as the Commission. Confirmation of this is found in
section 138 of the LRA which provides for an arbitration process with
minimum legal formalities. This means that under normal circumstances if a
court of law should, in assessing evidence, consider the credibility of
witnesses, the same cannot be said to be also applicable to public institutions
such as the Commission. This obviously does not mean that a lesser or lower
standard of accountability and responsiveness applies to public institutions. It
simply means that the actions and conduct of public institutions are measured
differently in terms of their nature. The cornerstone of the Commission’s
arbitral function is equity and fairness whilst courts of law dispense with law
and justice. This should not be interpreted to mean that the credibility of
witnesses, as a way of assessing evidence has no place in the arbitration
process of the Commission. In appropriate cases commissioners will be
expected to make reference to and place reliance on the credibility and
demeanour of witnesses in their awards. They should however be vigilant to
the dangers inherent in this approach.
18. One should be careful not to burden commissioners with the added
responsibility of also basing their awards on the demeanour and credibility of
witnesses. Section 138 of the LRA advocates an arbitration process that is
simple, less formalistic and less legalistic with curtailed legal representation.
With this setting in mind it would be improper to expect demeanour and
credibility, issues rightly at home in proper judicial processes to feature
prominently in the Commission’s arbitration function. In the final analysis what
the court has to determine in a review of an award of the Commission is
whether it was arrived at arbitrarily, capriciously or malafide, or that the
commissioner took into account irrelevant considerations or ignored relevant
ones or that the award is so grossly unreasonable so as to warrant an
inference that he had failed to apply his mind to the matter. Once this is shown
it will have been demonstrated that no fair hearing took place meaning that the
award cannot be justified in relation to the reasons given for it. See Pep
Stores (Pty) Ltd v Laka NO & Others (1998) 9 BLLR 952 (LC) at page 960A
C. Unless a commissioner is enjoined by the Act or any relevant statute itself
to take certain matters into account or to exclude them from consideration, it is
primarily his task to decide what is relevant and what is not and also to
determine the weight to be attached to each relevant factor.
The award
19. Regarding the matter in casu the court proceeds to consider whether
Lebea’s award is reviewable due to his decision to overlook the credibility of
the witnesses who testified before him. It is therefore a worthwhile exercise to
consider Lebea’s analysis of the evidence before him.
20. The Applicant through, Pretorius, led evidence that Shablala was seen
in an area called the bunded area, at a time when he was not supposed to be
there and without having obtained the key to that area from him. Lebea views
the evidence as follows:
“I must also add that the evidence of the company about the above
incident at times seemed to me to be inconsistent and unclear in the
following respects:
. Pretorius saw Tshabalala ( Shabalala) in the place in which he was
not supposed to be and asked him what he was doing there. Tshabalala
gave unintelligible answer and said “hello”. Pretorius chose to ignore
Tshabalala and proceeded to have a shower.
. When he came back to the office he told Enslin about what had
happened.
They then decided to phone Smith at his house. Nobody bothered
himself to alert the corporal officer on duty during the theft about the
incident. In fact Mohulatsi was kept in the dark through out.
. Nobody from the company knew who was at the gate when
Cashibe left the plant on 8 October 19996. The version of the company
became somewhat selfcontradictory in that both Enslin and
Raubenheimer suggested theirs suffered (sic) in that evidence that
Cashibe left the plant between 6h55 and 7h05. In fact, Enslin testified
that he actually saw him at the gate and was there for about two minutes.
The documentary evidence produced by the company, however suffered
(sic) that Cashibe only left the premises at least at 7h30 on 8 October
1996. Mr Olivier during cross examination and during argument seemed
to put a version that the sample bags were disposed of during the
unaccounted period reflected by the blank space in the logsheet.
21. Pretorius on behalf of the Applicant further testified that Shabalala
removed sample bags from the bunded area and placed them at the pavement
in front of the laboratory. Lebea commented, in this regard, as follows:
“ Did Shabalala act in this manner or did he act with such an intention? My
answer is in the negative for the reason that even if I were to assume that he
removed the samples from the bunded area (which) I still have to determine)
and put them in the pavement in front of the laboratory, that would not in my
view per se be an act of appropriation. The pavement in front of the laboratory
is a very conspicuous place, it is within the view of people from many
directions, including people driving or walking towards the main gate. The
alleged removal of samples took place in broad day light, viz at about 5h00 in
summer! From this action I cannot infer furtive intention (animus furandi).
Furthermore, no casual connection was drawn between the action of Shabalala
and Cashibe it may well have happened that Cashibe’s action was a
completely independent action ( novus actus interveniens) not connected to
Shabalala previous action knows (acts intervenes). I, therefore, arrive at
the conclusion that the evidence has not established theft on the part of
Shabalala.”
22. In the award Lebea states that he was urged to guard against piecemeal
reasoning and consider the evidence as a whole. He says:
“ I fully agree with this proposition. The logical result of this process of
evaluation of evidence in relation to this matter is that I should not
consider evidence relating to Shabalala in isolation from the evidence in
respect of Cashibe. There was no evidence to the effect that when
Cashibe left the premises the vehicle was either negligently or
Cashibe left the premises the vehicle was either negligently or
intentionally not searched by the security guard who was manning the
gate. Instead Enslin stated that the kombi stopped at a gate for about
two minutes (which was a normal time). The only inference I can draw
from this is that the kombi was properly searched and if there was
anything unlawful in the (sic) the security guard could have detected it
and taken appropriate action. This conclusion is strengthened by the
fact (sic) if the samples had left the premises without having been
searched, the company could have investigated about the security guard
who was at the gate (just as it did in respect of Msibi) and taken
appropriate action against such security official. I’ therefore, find that
Cashibe did not remove the sample bags or did not in any manner
facilitate the theft of the sample bags.”
23. As regards the events of 9 October 1996 Lebea comments
that some aspects of the Applicant’s case left him perplexed and
these are:
“Shabalala on this day, i.e. 09 October 1996, was said to be
fully prepared for his activities in that he was now having a 25
litre bucket, house (sic) pie and empty sample bags. He
remained in the bunded area from about 1h00 to 5h00 and at
about 6h45 he was loading samples onto Dube’s bakkie. Did
Shabalala ever work during this shift?
Mohulatsi who was in charge of the security department during
the entire shift was again kept in the dark about the
developments. Pretorius spoke to Mohulatsi but chose to keep
quite about Shabalala’s activities. Would a reasonable person
in Pretorius, Enslin or Raubenheimer’s position had behaved
in the manner they did?
Pretorius saw Dube removing company goods out of the
premises of the company. He did nothing to get Mohulatsi or
anybody to pursue Dube and recover company goods. What
else did he want to prove?
The company witnesses had sought to place Tshabalala out of
the scene at the gate, Mr Olivier even suggested to Tshabalala
that he did not see Dube when the latter was at the gate
because he was sitting down at the gate house because his leg
was aching. This was the versions of the company. At the
same time Tshabalala was dismissed for gross negligence in
not searching the vehicle or allowing the vehicle to leave with
company property. This raised a question whether was
Tshabalala dismissed for gross negligence or for testifying in
favour of Msibi which testimony had an effect of absolving
Dube, Msibi and Shabalala.”
Lebea further says elsewhere in the award:
“Let us now consider the case of Tshabalala. As already
pointed out above that the company’s stance in relation to
Tshabalala was rather ambivalent. The company’s version was
essentially that he was not present or did not witness the
incident. Why then punish him? It is either that Tshabalala
was present when the search was conducted or was telling
lies. If it was the latter the company should have simply
dismissed his evidence as lies and upheld the truth.”
24. Lebea also rejected Enslin’s version that there were sample
bags at the back of the bakkie and that it is likely that Enslin saw a
spare wheel and mistook it for ample bags. In this regard he says:
“Only Enslin saw the samples at the back of the bakkie. He was observing the
samples from the vantage point in the 6 th floor of the elution building.
The evidence of Dube, Tshabalala and Msibi was that there
was only a spare wheel at the back of the bakkie. The question
which then arises is could Enslin have been able to identify
and distinguish between darkish samples and the sparewheel?
It is, therefore, more probable to me what Enslin saw at the
back of the bakkie was, in fact a black sparewheel.”
25. As to the confessions alluded to by Pienaar and Enslin Lebea
stated that he was confronted with uncorroborated versions from
both sides. He says:
“The circumstances under which the said confessions were made
do not make me to believe that they were indeed made. I start with
the discussion of 11 July 1997. The alleged confession only came
to light when the union made allegations about racism or racial
conspiracy. If a confession had indeed been made Enslin would
immediately have apprised Mr Olivier of it. This is to me improbable
especially having regard to the adversarial nature of the relationship
of the parties during the proceedings. Regarding the discussion of
18 October 1996, I am quite prepared to accept that incentives to
make a confession were put to Shabalala. But I cannot say on a
balance of probabilities that as the result of such inducement by
Pienaar, Shabalala did make oral confession, judging from Pienaar,
did make oral confession. Judging from Pienaar’s methodology he
at least would have drafted some statement albeit not signed by
Shabalala.”
26. Lebea then made the following findings:
26.1 The evidence of Enslin and Pretorius about seeing Shabalala
in the bunded area was suspect.
26.2 Shabalala did not have a spare key to enter the bunded area
and open the valves. The key was, at all material times in the
possession of Enslin and/or Pretorius at the time Shabalala was
allegedly seen in the bunded area.
26.3 Shabalala was never in the bunded area. Shabalala gave a
detailed account of what he did during the time he was alleged to
be in the bunded area.
26.4 Shabalala did not remove any sample bags from the bunded
area as alleged.
26.5 There were no sample bags at the back of the bakkie driven
by Dube when it exited the Applicant’s premises.
26.6 Msibi conducted a proper search of the bakkie driven by Dube
when he was at the gate.
26.7 The was no case whatsoever against Tshabalala as the
company’s case was that he did not see the bakkie and its driver
(Dube).
27. It should be apparent from the portions of the award cited that
not only did Lebea consider the evidence placed before him, but
also that he evaluated the evidence and on a balance of
probabilities chose the version of the individual respondents.
Considering Lebea’s findings it cannot be argued that he ignored
uncontroverted evidence or that his findings cannot be supported by
the evidence before him. A careful reading of the award reveals
that not only did he consider the evidence before him, it also
demonstrates that in assessing the evidence he applied his mind to
all of it.
28. Mr Pauw also submitted that Lebea’s assessment of the
evidence on a balance of probabilities was also incorrect. Lebea
found , as regards to Shabalala, that even if he had removed
samples from the bunded area and put them on the pavement in
front of the laboratory that this would not amount to an act of
appropriation. I need not consider this line of thinking in any great
detail simply because Lebea found in any way that Shabalala was
never in the bunded area (to remove the samples). This reasoning
would have been very relevant had Lebea found that Shabalala was
in the bunded area and had removed sample bags.
29. Lebea’s finding that Shabalala was never in the bunded area
is also attacked on a different basis. Mr Pauw criticizes this finding
on the basis that Lebea failed to consider the evidence of Enslin
and Pretorius, who corroborated each other. Mr Pauw stated that
Shabalala’s version was uncorroborated and this meant that on a
balance of probabilities Lebea had to accept the Applicant’s version
in the absence of a credibility finding. It is notable that Lebea is not
criticised on the basis that he ignored the evidence of Enslin and
Pretorius. Indeed he cannot be criticised of this because he did not
ignore their evidence, but considered all the evidence before him.
What influenced Lebea not to accept the evidence of Enslin and
Pretorius about the presence of Shabalala in the bunded area is the
fact that it was common cause that there was only one key to the
bunded area and at the time of the alleged incident that key was in
the possession of Pretorius. In fact Lebea found that the
Applicant’s version that Shabalala gained access into the bunded
area because he had a key was sheer speculation. He stated that
he would not make a decision based on conjecture. Furthermore
there can be no question of corroboration between Enslin and
Pretorius because only one of them says he saw Shabalala in the
bunded area.
30. Lebea is also critisized for his finding that on 9 October 1996
Pretorius did not see if samples were at the back of the bakkie
driven by Dube. To resolve the issue the court referred to annexure
X.3 the a record of the proceedings before Lebea. It is correct that
under cross examination Pretorius was asked the question: “Did
you see samples inside the bakkie?” His answer was a simple
“No.”. It is also correct however that he testified that he saw
Shabalala load samples in the bakkie before was driven it to the
security gate where it stopped for 30 60 seconds and left. Dube
denied that he transported samples out of Applicant’s premises on
9 October 1996. It appears that Lebea was influenced by the
answer Pretorius gave under cross examination for his finding that
Pretorius did not see if sample bags were at the back of the bakkie.
To say Lebea was incorrect is not entirely correct. If Pretorius was
certain that there were sample bags at the back of the bakkie he
could easily have said so.
31. Lebea was also criticised for his finding that Enslin must have
seen a spare wheel at the back of the bakkie and not 12 sample
bags. Also challenged is Lebea’s finding that Msibi searched the
bakkie and that the factual dispute as to where the sample bags
were normally placed was not material to the determination whether
theft was committed or not. It is not clear why Lebea found that
Enslin must have seen a spare wheel rather than 12 sample bags.
He says it was more probable that Enslin saw a spare wheel. What
is clear is that Lebea applied his mind directly to the issue
regarding the spare wheel and sample bags and found on a
balance of probabilities that Enslin must have seen a spare wheel.
If one considers that Enslin never saw sample bags being loaded
on the bakkie and that it was Pretorius who told him of this it is safe
to conclude that when he saw something at the back of the bakkie
he simply assumed it to be sample bags.
32. As to the security search Lebea’s reasoning was that Enslin
did not remain at his observation point the whole period the bakkie
was travelling to the gate or was at the gate. It is correct that Enslin
left the area to look for Pretorius and it is possible that it is at that
time the search was conducted. The court cannot find scope to
criticise Lebea for finding that the dispute as to where sample bags
were normally placed was not material to the determination whether
theft was committed. The court could also find no merit in the
Applicant’s criticism of Lebea on the basis that he did not rely on
certain evidence by Enslin, Pretorius and Ngomane which was
relevant to the probabilities. What is clear from Lebea’s award is
that he considered all the evidence before him and made his
findings based thereon.
33. Lebea’s comments about Shabalala being seen in the cynade
area are irrelevant as far as the issues in this matter are concerned.
It is correct that these observations are not borne out by the
evidence and as such are meaningless. On their own however they
are not sufficient to have the award set aside.
34. Another aspect which has attracted criticism from the Applicant is
Lebea’s finding that Peacy’s involvement in the prehearing investigation
involving Shabalala, Cashibe, Msibi and Dube had resulted in him not entering
the internal disciplinary proceedings with an open mind. It is common cause
that on hearing of the incidents allegedly involving the individual respondents,
Peacy requested some samples to be taken and after receiving the results he
formed the view that gold was probably stolen. This was before the individual
responsible were charged. Describing his involvement in such prehearing
investigations, Lebea stated:
“His involvement is more than what one would call an institutional bias but
goes to the root of the principle that nobody should be a judge in his own
case.”
35. Mr Pauw made the submission that Lebea had no basis for
this finding in that though Peacey had to an extent, participated in
the prehearing investigations and had independently deduced that
gold was probably stolen there was no evidence suggesting that
Peacey came to his conclusion (as chairperson of the hearings)
other than by way of reference to the evidence adduced at the
respective internal hearings and on a balance of probabilities. It
was further submitted that the mere fact that Peacey had
established that theft had been committed at some stage was not
indicative of his having established prior to the hearings who exactly
committed such offences and on what particular date. This
contention is integral to the charge against the individual
respondents in that in any investigation of a charge of theft against
the individual respondents it would be required of the Applicant to
establish that gold bearing material had indeed been stolen.
36. The involvement of Peacey in the investigations that led to
that conclusion, which investigations were conducted outside of and
beyond the ambit of the disciplinary hearings, meant that at least
that aspect of the charges against the individual respondents had
been prejudged by Peacey by the time the hearings against them
commenced before him. Notwithstanding the fact that Peacey may
not have reached the conclusion as to who had stolen the material,
the issue of whether or not the material had in fact been stolen was
at issue in the disciplinary hearings and the fact that Peacey had
reached a view thereon precluded him from presiding over the
hearings in an unbiased and objective manner.
38. The Applicant’s other challenge to Lebea’s finding regarding
Peacey is that he did not apply his mind to the provisions of Item 4
of schedule 8 to the Act. Item 4(1) provides that:
“(1) Normally, the employer should conduct an investigation
to determine whether there are grounds for dismissal. This
does not need to be a formal enquiry. The employer should
notify the employee of the allegations using a form and
language that the employee can reasonably understand. The
employee should be allowed the opportunity to state a case in
response to the allegations. The employee should be entitled
to a reasonable time to prepare the response and to the
assistance of a trade union representative or fellow employee.
After the enquiry, the employer should communicate the
decision taken, and preferably furnish the employee with
written notification of that decision.”
38. It is clear that Item 4 provides for a process where the employee is
confronted with the allegations against him and he is given an opportunity to
respond thereto or even defend himself. What is clear is that the process
through which the Applicant subjected the individual respondents is much more
than what schedule 8 provides for. The process followed by the applicant is
what is provided for in the disciplinary code and procedure applicable to the
parties. There is no doubt in the court’s mind that the Applicant had in mind
the provisions of the disciplinary code when it initiated hearings against the
individual respondents.
39. The fact that item provides for a certain type of standard in the
investigation of alleged misconduct does not mean that what the parties
themselves have agreed as to the standard in such investigations does not
apply. The Act promotes and encourages parties to regulate their relationships
through privately agreed procedures and processes. Where parties have an
agreed disciplinary code and procedure that is the process through which they
have agreed to resolve disciplinary issues. The provisions of Item 4 would
therefore apply where parties do not have an agreed disciplinary process. In
the court’s view once parties have agreed to a disciplinary process that
encourages a liberal standard one of them cannot be heard to argue that a
conservative standard contained elsewhere should have been applied.
40. With this in mind it is clear that Lebea though aware and mindful of the
provisions of Item 4 applied the standard implicit in the parties’ agreed
disciplinary code and procedure. Lebea’s conclusion regarding Peacey’s state
of mind should therefore be understood in this light. In Lebea’s mind Peacey’s
involvement in the prehearing investigations regarding Shabalala, Cashibe,
Dube and Msibi disqualified him to sit as chairperson in disciplinary
enquiries involving these persons. In a situation where no agreed disciplinary
code and procedure was in place Lebea’ conclusions could be adjudged to be
out of place. In the court’s view there is no merit in the criticism levelled at
Lebea in this regard.
41. A reading of the award reveals that in relation to each of the conclusions
reached by Lebea in the award he has pointed to specific deficiencies in the
evidence of the Applicant’s witnesses. These deficiencies are not fanciful.
Whether the weight afforded to each of these deficiencies is that which the
Applicant, this court or another arbitrator would have attributed is not the issue.
That exercise lies in the discretion of the arbitrator, and the fact that he has
done so in a manner that differs from that which the Applicant would have liked
to see does not render his decision reviewable. It must, at all times, be borne
in mind that what this court is engaged with is a process of review, not appeal.
42. In Carephone (Pty) Ltd NO and others (supra) the Labour
Appeal Court per Froneman DJP stated that an award should be
justified in relation to the reasons given for it. The reasons given by
Lebea on their own can be defended. The test here is not whether
another person or arbitrator would have arrived at a different
finding. The court is not persuaded that Lebea committed any
irregularity warranting interference by this court. As argued by Mr
Jammy, counsel for the individual respondents, the Applicant’s case
against the individual respondents was based on circumstantial
evidence. On this basis the aspects of the evidence on which the
applicant relied must be beyond reproach. It is in this regard that
Lebea found deficiencies in the Applicant’s case against each
individual respondent. On that basis therefore the reasons he gives
against the Applicant are above reproach. It appears justified
therefore that the application for review should fail.
43. The order of this court is therefore:
1. The application for review is dismissed.
2. The Applicant is ordered to pay the legal costs of the third
to seventh respondents.
Mlambo J
Date of Judgment: 7 May 1999
For the Applicant: Mr P. Pauw instructed by Brink
Cohen Le Roux & Roodt Inc.
For the 3 rd to 7 th respondent: Mr P Jammy instructed by
Nomali Tshabalala Attorneys.
Reportable and interest to other judges