VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 23 June 2000 CASE NO. J2603/98
In the matter between:
METCASH TRADING (PTY) LTD Applicant
and
C TLEKO AND OTHERS Respondents
J U D G M E N T
LANDMAN, J :
[1] On 23 July 1996 Ms Matheboku was found in possession of 1 kilogram of
Gemini mixed spice which was contained in a packet with silver markings.
The employer stocks and sells Gemini spices in the form which I have
described. Ms Robinson, a security guard, found Ms Matheboku in
possession of the spices which is common cause had not been cancelled,
i.e. disclosed and acknowledged by her employer as being her property.
[2] Ms Matheboku was subsequently charged with the following offence:
"Misappropriation. In that on Tuesday, 23 July 1996 at 16:20 you
attempted to remove one packet of Gemini 1 kilogram mixed spices from
the MDC Warehouse by concealing it on your person (between your legs)."
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[3] A disciplinary enquiry was held. The evidence of various witnesses were
led. In the course of hearing the evidence certain evidence was obtained
by the process of interviewing witnesses. The owner and his wife of the
Town Hall Butchery provided certain information. As a result of all
this the chairperson came to the conclusion that Mrs Matheboku was
guilty and she was dismissed.
[4] Later on she referred a dispute to the CCMA. The dispute could not be
conciliated and it led to arbitration proceedings before a commissioner,
the second respondent. He heard the evidence presented by the parties,
found the dismissal to be substantively unfair and reinstated Ms
Matheboku.
[5] Her employer, Metro Distribution Centre, seeks to review and set aside
the commissioner's award.
[6] During the course of the arbitration, the commissioner was told by Ms
Robinson that she searched Ms Matheboku in a cubicle. She found
suspicious circumstances. She asked Ms Matheboku to remove the item
from her panties where it had been concealed between her legs. She did
this and a packet of Gemini 1 kilogram mixed spices was produced. Ms
Robinson also noted that Ms Matheboku "was in her monthly".
[7] Ms Matheboku admitted to a certain Mr Stewart that she was found in
possession. Ms Matheboku, however, denied this at the arbitration
proceedings. At the arbitration proceedings, but not at the disciplinary
enquiry, she said that she had the packet in her hand. She had obtained
it from reception where it had been left for her by a friend of hers, a
certain Mr Isaac Malawu. She produced a slip to show that 1 kilogram
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mixed spice had been purchased at the Town Hall Butchery on 18 July
1996.
[8] Amongst the evidence that was led during the arbitration proceedings
were the details relating to the evidence which the disciplinary enquiry
had obtained from the owner and his wife of the Town Hall Butchery. I
will describe this in a moment.
[9] When it came to consider his award the commissioner set himself the task
of determining whether the spice was the property of the employer or
not. This was the correct question to ask. He came to the conclusion
that it was incumbent on the employer to prove that the spice was not
purchased from the butchery. He found that the employer had not proved
this and therefore the dismissal was unfair. He therefore did not
investigate the further question whether the spice was concealed on Ms
Matheboku's person or carried openly in her hand.
[10] The commissioner declined to take cognisance of the hearsay report that
the butchery sold 1 kilogram of mixed spice on 18 July. He did,
however, take into account the existence of the invoice or till slip.
The spice that the butchery sold, according to the hearsay evidence, was
its own brand and came in a clear plastic bag. Had the commissioner
accepted this, he could not have come to the conclusion that the spice,
the Gemini brand spice, found in Ms Matheboku's possession was not that
of the employer. However, assuming that the commissioner was correct in
refusing to admit hearsay evidence, and it is correct that he was
empowered to admit or exclude relevant evidence, he was then left with
the evidence that the spice was the same as that stocked by the
employer. He would have been compelled to have come to the conclusion
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that the witness identified as Mr Isaac Malawu was not called by Mrs
Matheboku or her union to say that this was also stocked by the Town
Hall Butchery and that he had carried it from those premises to the
employer's premises and left it for Ms Matheboku. The commissioner
would have also here had to take into account that Ms Matheboku or her
union did not call the receptionist at the arbitration proceedings to
bolster her version and that of Mr Malawu.
[11] It is also clear that the exclusion of the hearsay evidence did not
resolve the dilemma. The commissioner's reasoning is, in my opinion,
faulty and it constitutes a latent irregularity, which is a gross
irregularity.
[12] But this would not have concluded the process for the commissioner would
have been obliged to answer the fundamental question: Did the spice
belong to the employer and was it cancelled or was it therefore the
property of Ms Matheboku? To answer this question the commissioner
would have been obliged to consider the evidence as a whole, including
that relating to the ownership issue which I have described above. He
would have had to take into account its necessary adverse effect on the
credibility of Ms Matheboku. The commissioner, as I have pointed out,
did not do this and he makes no finding of credibility at all.
[13] Because this incident dates from July 1996 and was only argued in this
court on 22 June 2000, it seems pointless to remit the matter to the
commissioner for a rehearing of the evidence. There is a record of the
proceedings which serves before me. True it is replete with the usual
transcriber's insertions that the evidence or the recording was
transcriber's insertions that the evidence or the recording was
indistinct. It makes one wonder why the CCMA has decided to keep a
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record when they are kept in such a poor condition that they are often
of little value in this court. The present record is one of the better
records and I am able to follow the evidence which was presented to the
commissioner.
[14] I am of the opinion that it cannot be said that Ms Matheboku was a
credible witness. The employer's witnesses on the contrary, appeared to
me to have been credible witnesses and their evidence should be
accepted. Some of my reasons for coming to the conclusion that Ms
Matheboku is not to be believed are the following:
(a) Ms Matheboku's version was not put to Ms Robinson whilst she was giving
her evidence.
(b) Had the spice been in Ms Matheboku's hand, there would have been no need
to conduct a search in the cubicle and it appears from the cross
examination of Mrs Robinson that it was accepted that whatever took
place, took place in the cubicle. Indeed in her evidence under cross
examination Ms Matheboku says that she showed the packet to Ms Robinson
at the same time that she entered the cubicle.
c)The fact that Ms Robinson knew that Ms Matheboku was menstruating points
to her being searched and to the fact that the spice was found in her
panties.
(d) Ms Matheboku stated that she did not tell Mr Stewart when he arrived
immediately after the search that the spices had been brought to her by
Mr Malawu.
(e) She did not after he apprehension by Ms Robinson seek to call the
receptionist who would still have been on duty to prove her version of
the events.
[15] It is clear to me that Ms Matheboku was guilty of the charge in respect
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of which she was found guilty and discharged by her employer. Her
dismissal for theft was an appropriate sanction even though she has a
clean record and she worked for her employer for 15 years.
[16] In the premises, therefore, the award of the commissioner delivered on 3
August 1998 is reviewed and set aside and substituted with a finding
that Ms Matheboku's dismissal was procedurally and substantively fair.
[17] Ms Matheboku is ordered to pay the costs of this application.
DATED AT JOHANNESBURG ON THIS THE ..... DAY OF JULY 2000
JUDGE A A LANDMAN
ADV C E WATTPRINGLE
: Fluxman Rabinowitz RaphaelyWeiner
: MR ZIBI
: SACCWU
23 JUNE 2000
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