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IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J898/00
2001-08-06
In the matter between
OBAKENG ANDREW MOLOKO Applicant
and
ABSA BANK LIMITED Respondent
___________________________________________________________
J U D G M E N T
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LANDMAN J: Absa Bank Limited dismissed Mr O Moloko after finding him guilty on
four charges. These charges are:
1. On 14 October 1998 you purchased 21 000 US Dollars on behalf of Absa Bank.
This transaction is however not reflected in the bank's records and the transaction
was subsequently found to be concluded on behalf of a client K C V Abrahams.
2. On or about 12 October 1998 you exceeded your mandate by granting a credit
facility to K C V Abrahams for R91 000 and subsequently on 14 October approved
an excess of R32 000 on this particular facility.
3. You admitted receiving R20 000 in cash from a client K C V Abrahams to be
deposited on such client's account which deposit was not effected immediately or
within a reasonable time. You in fact admitted to having taken such amount home
and only having made the deposit on 31 October 1998 at Absa Bank, Maud Street,
Sandton.
4. You allocated a discretional bonus to the amount of R10 000 to the credit manager
N S Cantaloupo of Absa Rissik Street Branch without following prescribed
procedures.
Mr Moloko was unhappy about his dismissal and referred the dispute to the
CCMA. The dispute was arbitrated before commissioner Matlape, the second
respondent. He found in favour of Mr Moloko and ordered his retrospective
reinstatement. Absa is distressed by the finding and seeks to review and set the
award aside. Mr Moloko on the other hand seeks to have the award made an
order of court.
Absa contends that the reward is reviewable on three grounds, these
grounds are set out in the heads of argument which were filed on behalf of Absa.
They are:
1. Second respondent committed misconduct in relation to his duties and
alternatively a gross irregularity in the conduct of the proceedings by failing to
allow applicant to reopen its case in order to call the evidence of Ms Canada and
Ms Abrahams.
2. Second respondent committed misconduct in relation to his duties alternatively a
gross irregularity in the conduct of the proceedings by failing to assist the parties
in securing the evidence of Ms Abrahams as a witness.
3. There is no rational objective basis justifying the connection made by the second
respondent between the material properly available to him and the conclusion he
arrived at in respect of his finding that first respondent did not exceed his
mandate.
In its founding affidavit Absa made an allegation that the commissioner was
biased against it. Absa however did not persist with the allegation of bias. I may
interpose to state here that allegations that commissioners and judges are biased
are made all too often and too loosely. Should civil litigation follow where these
allegations are abandoned or made without merit the applicants will only have
themselves to blame for their predicament.
The first ground concerns the commissioner's failure to allow Absa to reopen
its case to call Ms Canada and Ms Abrahams. It appears to be common cause that
this was the case, although that portion of the record dealing with the application
to reopen the case, is missing.
It is of course quite clear that the commissioner is enjoined to dispose of a
matter as expeditiously as possible. Ms Canada and Ms Abrahams were
competent and compellable witnesses who were available from the start of Absa's
evidence which was spread over several months. Absa chose not to call
Ms Abrahams until she had testified in a criminal case which they had preferred
against her. Indeed the arbitration proceedings were postponed from time to time
for the purpose of obtaining her evidence. At the close of the arbitration
proceedings the criminal proceedings against Ms Abrahams were still not
completed. It appears that there was an application to postpone the case until the
following year. This was refused. The refusal is not challenged in this review, and
it must be accepted that this refusal was justified. Indeed the commissioner was
justified in saying that the matter should be brought to an end, particularly as Miss
Abrahams could have been called at an earlier stage.
Ms Canada was also available to Absa. She appeared on a list of witnesses
which had been compiled by Mr Moloko. In the event he did not call her. Absa
then wanted to call her. The commissioner refused to allow Absa to open its case
for this purpose. His decision is not recorded in any substantial manner, but it
appears to be justified and there is no room to interfere on this ground. It must
have been apparent to Absa that Mr Moloko was entitled to call all the witnesses
on his list or none of them. If Ms Canada's evidence was relevant to their case
they should have called her. The submission that Absa was represented by lay
persons and that therefore the commissioner should have assisted them, is quite
clearly baseless. Absa is a large institution which has many resources at its
disposal and to say that its representatives were mere lay persons is simply
without foundation.
The second ground on which Absa relied may be disposed of shortly. The
commissioner advised the parties to secure the attendance of their witnesses. He
did this on more than one occasion. It is again unthinkable that Absa did not know
that it was entitled to issue a subpoena and summons Ms Abrahams to attend the
hearing. Clearly it was not the commissioner's responsibility to issue the
summons and to ensure that Ms Abrahams was in attendance. He allowed the
parties ample time and opportunity to secure her presence.
The third ground is that the commissioner's finding was unjustified and
irrational. This complaint is restricted to the second charge namely that Mr
Moloko exceeded his mandate which was limited to granting loans up to
R100 000. The commissioner found that he had either not exceeded his mandate
or had exceeded it by an insignificant percentage. Therefore he concluded that
the dismissal could not be sustained on these grounds.
The commissioner's finding on the other three grounds is not challenged and
therefore this matter turns solely on the charge relating to the mandate. Although
Absa basis its complaint against Mr Moloko on the grounds that he exceeded his
mandate in lending money to Ms Abrahams, a former employee of the company, it
has been suggested, indeed it was put to him under cross-examination that Absa
has a different complaint. The commissioner picked up on this early in the
arbitration. There was the possibility that Absa was suggesting that Mr Moloko
was guilty of fraudulent or negligent dealing. This was subsequently fortified
when it was put to Mr Moloko that Ms Abrahams had said under oath that she had
not been in his office and had not borrowed the money, the implication being that
Mr Moloko had taken the money for himself. He responded rather angrily and
certainly not without justification by saying that in that case Absa should be suing
him for the money and not Ms Abrahams.
Against this background Mr Moloko clearly had some difficulty in defending
himself against cross-examination designed to prove something else than the
formal of charges. The commissioner also experienced difficulty in maintaining
focus which he pointed out to the parties. Mr Moloko's mandate to lend money
was set at R100 000. He could lend the first R50 000 without requiring the
borrower to provide security. He was required to have security for the balance if
he approved such a loan.
The question which the commissioner was required to decide, and which he
did decide, was whether there was security for the balance, and, if not, did this
justify dismissal. It is common cause that there was security in the sum of about
R4 000 stemming from a guarantee which had been provided much earlier by Ms
Abraham's father. There was also a deposit of R50 000 in an FNB account which
was valued by Absa's portfolio manager and credit manager at Mr Moloko's
branch, at R40 000. The sufficiency of the security has been challenged by Absa
but, in the absence of an allegation finding of fraud or conspiracy, it must be
accepted, as the commissioner did, that Mr Moloko was entitled to rely on the
investigations and recommendations of his subordinate that this was proper
security.
Ms Abrahams was expecting a pension fund pay out from the Absa pension
fund. The payment was dependant on a ruling regarding its taxation. I assume
that the pension fund would deduct the tax payable and pay the balance over to
Ms Abrahams. Mr Moloko was aware of the situation and established from the
receiver of revenue what the maximum tax would be. He took the balance
remaining into account in determining whether or not to grant the loan. There
was a great deal of discussion during the arbitration about whether unpaid
pension proceeds can be regarded as security or merely what the banking officials
termed a “comfort”, that is a factor which would tend the manager to believe that
the loan would be repaid.
There was evidence on this by different witnesses. Some suggested that the
unpaid proceeds were not security. Others, although accepting that it was not
security, said that in banking practice it was normally accepted as security. See in
particular the testimony of Ms Pillay, Ms Jumpies and Mr Moloko.
The commissioner found that the pension proceeds could be accepted as
security. His finding is not unjustifiable. The commissioner also found that as
regards the FNB deposit of R50 000 an officer had placed a value of R40 000 on
this and that Mr Moloko was entitled to rely on this. I have dealt with this above
and the evidence supports this finding. It is not an unreasonable conclusion.
Coupled to this is the finding regarding the way in which the account was
conducted. This has a bearing on the so-called excess of R32 000 which was
granted on this facility.
The commissioner investigated the way in which this account was conducted
and came to the conclusion that there was no irregularity and that, if there was an
irregularity, the bank's computer system would have sounded an alarm. Coupled
to this is his finding relating to the so-called shadow limit which affects the way in
which an account may be conducted. The commissioner's finding on the first
charge that it could not be sustained is justifiable on the material which was
before him. In any event, if the commissioner was wrong as to whether the
mandate was exceeded, there was evidence that it was not uncommon for officials
of Absa Bank to exceed their mandates. Absa's principal witness, Mr Moreland
pointed out that discipline would not automatically follow if a manager exceeded
his mandate. Various circumstances would be taken into account in order to
determine whether disciplinary proceedings would be instituted. These
circumstances included a degree of recklessness. See also the testimony of Mr
Grobler, also a witness for Absa. It must also be remembered that the granting of
a loan, although hemmed in by a mandate, amounts to a judgment call and this
may prove, after the event, to have been unwise. It was contended that Mr
Moloko knew that Ms Abrahams had been dismissed for fraud and that her
application should have been handled with more caution. However, Absa did not
prove that Mr Moloko was aware of the reason for her dismissal, only that he knew
that she had been dismissed.
In the result there is no cause to interfere with the commissioner's award.
The application to review the award is dismissed with costs. The award is made
an order of court and Absa Bank Limited is ordered to pay the costs attendant on
the application to make the award an order of court.
_____________________
Judge A A Landman
Judge of the Labour Court of South Africa
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