IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case Nr: JR689/2004
In the matter between:
PATRICK LEBOHO Applicant
and
CCMA 1st Respondent
NAD MURUGAN 2ND Respondent
SOUTH AFRICAN REVENUE SERVICES 3RD Respondent
JUDGMENT: MUSI J
HEARD ON: 18 FEBRUARY 2005
DELIVERED ON: 14 APRIL 2005
[1] This is an application brought in terms of Section 145 of the
Labour Relations Act 66 of 1995 (the Act) for the review
and setting aside of the arbitration award made by the
second respondent under the auspices of the CCMA on 27
February 2004. In terms thereof the second respondent
found that the dismissal of the applicant by his employer,
the third respondent, on 25 November 2002 was fair.
[2] In brief, the applicant had been employed by the South
African Revenue Services as an assessment officer and
stationed at the Johannesburg International Airport (the
airport). On 30 August 2002 a passenger of Chinese
decent alighted at the airport on board Singapore Airways.
As he went through an airport customs checkpoint the
passenger was called to a separate room by the customs
officials of the SARS and searched. On him was found a
number of passports which he had apparently brought
along for friends and relatives. The customs officers told
the passenger that it was a serious offence to carry other
people’s passports and that he could be jailed for it. They
literally extorted money from the passenger through the
threat of incarceration and they were given 600 American
dollars. Subsequently the passenger reported the incident
to the authorities and the Police respondent by visiting the
airport the following day on 31 August 2002. The Police
contacted the SARS manager on site, Helena Tripmaker,
2
who together with the Police accompanied the passenger
on a tour of the airport. The passenger pointed out one of
the customs officers, Mathonsi, as one of the officers
involved and later the passenger was shown photos of the
SARS officers at the airport. The passenger (the
complainant) identified three of the officers that extorted
money from him. The suspects included Mathonsi and the
applicant. The suspects were arrested and subsequently
charged with bribery and/or fraud but the case was
withdrawn because the complainant had in the meantime
left South Africa and could not attend Court to testify.
[3] The applicant was also charged with misconduct by his
employer and was brought before a disciplinary enquiry
wherein he was found guilty and dismissed. He then took
the matter to the CCMA alleging unfair dismissal. The
matter ended up in an arbitration hearing which culminated
in the award now being challenged in this Court.
[4] The grounds upon which this Court can review and set
3
aside the award are fully set out in Section 145 (2) of the
Act. The applicant seems to challenge the award on all the
grounds set out in subsection 2. But only two aspects of
the arbitration proceedings have been singled out for
attack. Firstly that the arbitrator based his decision on
hearsay evidence. Secondly that the arbitrator committed a
gross irregularity when, the hearing having been concluded
with closing arguments on 26 November 2003, he
reopened it and mero motu called further witnesses on the
26 January 2004. It is contented that this also showed bias
on the part of the second respondent. The argument was
advanced that on the evidence before him on 26 November
2003 the second respondent would have been obliged to
find in favour of the applicant. He therefore called for
further evidence in order to avoid that finding. It is also
contented that in thus calling for further evidence the
second respondent exceeded his powers. And further that
the second respondent made himself guilty of misconduct
in relation to his duties as an arbitrator.
4
[5] I shall now deal with the above two main points and shall
start with the second point relating to the calling mero motu
of further evidence and witnesses by the arbitrator. In a
criminal trial in a Court of Law the presiding officer has the
power to call witnesses mero motu at any stage of the
proceedings before judgement, not only to clarify aspects of
the evidence but also the help the presiding officer make up
his/her mind as to what the truth is. The discretion is not
limited to the recalling of witnesses who have already
testified but extends to the calling of new witnesses. This
common law power is reinforced by Section 186 of the
Criminal Procedure Act 51 of 1977. The presiding officer
has such a wide discretion because, as it is said, he is not
like a referee whose only role is to see to it that the rules of
the game are observed by the participants. He is an
administrator of justice and must see to it that justice is
done. See R v HEPWORTH 1928 AD 265. Of course the
discretion must be exercised judicially. For an overview of
the case law and the factors to be taken into account in the
use of the discretion, see my judgement in S v BOSULE
5
(2000) 3 ALL SA 241 OPD.
[6] The position in civil procedure is different. A presiding
officer has no power to mero motu to call witnesses. He
can only do so with the consent of the litigants. However, a
civil court has the power to recall witnesses that have
already testify before it for purposes of further examination
or crossexamination. It can do this at any stage of the
proceedings before judgement. However this is done not
by the Court mero motu but upon application by one of the
parties. See MLAMBO v FOURIE 1964 (3) SA 350 TPD at
357. The reasons for this position are set out in full in
SIMON alias KWAYIPA v VAN DEN BERG 1954 (2) SA
612 SR at 613 to 614. One of the import considerations is
that a civil contest, unlike a criminal trail, is not a matter for
the public but one essentially between the parties involved
and the Court is not expected to help the parties or take
sides. If there is inconclusive evidence on the issues
involved, the Court merely asks itself whether the party on
whom the onus rests has discharged it. It is not for the
6
Court to get out of its way to establish the truth. It only
decides on the truth on the basis of evidence before it.
[7] Now an arbitrator conducting arbitration proceedings is,
strictly speaking, not obliged to follow the rules of
procedure applicable to Courts of Law. Compare my
remarks in MHLAMBI v MATJABENG MUNICIPALITY
AND ANOTHER 2003 (5) SA 89 O at 95 G. It is
noteworthy that the Labour Relations Act does not
prescribe any definite procedure for the conduct of such
proceedings. Significantly section 138 (1) of the Act makes
it clear that the bottom line is that the arbitrator must:
“determine the disputes fairly and quickly but must deal with the
substantial merits of the dispute with the minimum of legal
formalities”.
In my view, this express wording of the Act sounds a
warning that Courts of Law and legal practitioners should
not impose their formalistic rules of procedure on
Commissioners charged with resolving labour disputes
7
through conciliation and arbitration.
[8] Having said that, it is a fact that arbitration proceedings are
generally conducted in line with the rules of civil procedure
and the standard of proof is the same. Proof is established
on a balance of probability. In this sense, the rules of civil
procedure are broadly adhered to; at the very least they
provide valuable guidelines. In my view, whereas the Act
gives an arbitrator a wide discretion on how to conduct
proceedings, the bottom line is that the procedure followed
must be fair and should not result in prejudice to any of the
parties involved.
[9] With that prelude, I look into the conduct of the proceedings
herein. If these were civil proceedings before a Court of
Law, the calling of the witnesses Tycoon Khoza and I. A.
Sirkhot mero motu by the arbitrator would be a gross
irregularity. These two witnesses had not testified before
and the consent of the parties was not obtained. This
much is clear from the arbitrator’s opening remarks at page
8
21 of the pleadings:
“However when writing my award I discovered several parts of the
evidence submitted to be inconclusive and I therefore rescheduled
the meeting for a rehearing on the 26 January 2004. I requested
several documents and certain witnesses to be recalled. Both parties
were appropriately represented but elected not to crossexamine the
witnesses I recalled”.
Not only was the consent of the parties not sought but they
were also not consulted on the reopening of the hearing.
In say reopening because that is what it is. No wonder
that the representatives of the parties were startled by the
turn of events and that may explain why they elected not to
crossexamine.
[10] The only witness who had testified and was recalled is
Helena Tripmaker. She was not recalled at the request of
any of the parties. Neither was she recalled for purpose of
further examination or crossexamination. She was
recalled in order to close loopholes or provide missing links
9
in the evidence before the second respondent. From the
summary of the evidence as given by the second
respondent, it is clear that she was not only asked to clarify
her earlier evidence but new evidence was led. It is also
clear that she was patching loopholes in the version of the
employer, the third respondent.
[11] The rationale for forbidding a Court hearing a civil case
from mero motu calling witnesses is, in my view, equally
valid in respect of arbitration proceedings. In the instant
case there was an onus on the third respondent to
establish the fairness of the applicant’s dismissal. As at the
final hearing on 26 November 2003 the evidence on this
score was, to use the second respondent’s own language,
inconclusive. By mero motu not only recalling Tripmaker
but also calling new witnesses, the second respondent
assisted the third respondent to discharge the onus resting
on it. By this I am not saying that the second respondent
deliberately went about to do that; I am merely saying that
that is the effect of his conduct aforesaid. Certainly such
10
action created a perception of bias in the mind of the
applicant. The perception that the arbitrator was bent on
finding in favour of the employer is one that ought to have
been avoided. What complicates matters is that the
applicant was not given the opportunity to respond to the
new evidence of Khoza and Sirkhot. Khoza, in particular,
had featured prominently earlier in the proceedings and
either of the parties could have called him but they declined
to do so. It was therefore improper for the second
respondent to call him under those circumstances.
[12] I conclude that the second respondent committed a gross
irregularity in reopening the hearing and calling and re
calling witnesses without the consent of the parties. The
award stands to be reviewed on that ground alone. In view
of this conclusion, it is unnecessary to deal with the issue of
hearsay evidence. I should, however, point out that there
are other discrepancies in this matter.
[13] Firstly, the record of the disciplinary hearing about which
11
Sirkhot had been called by the second respondent to testify
was not furnished to this Court. When I enquired about it, I
was informed that it was not available even during the
arbitration hearing but that only the tapes thereof were
available. Yet the second respondent made the following
statement at page 27 of the pleadings:
“6. Having perused the disciplinary records and findings of the
chairperson of the enquiry, in particular, to his sensitivity to
all parties concerned, I find no reason to interfere with his
findings that the applicant is guilty of the alleged
misconduct.”
It was very important to get a transcript of the record of the
disciplinary enquiry given that the complainant, Mr Chang
(ineptly and strangely called “the China” by the applicant’s
representative) is said to have therein identified the
applicant as one of the fraudsters and explained his role.
Secondly, there is no transcript of the record of the
evidence of the three witnesses called mero motu by the
arbitrator. Only a summary of their evidence as given by
12
the second respondent is on record.
[14] Finally at the conclusion of the award the second
respondent said the following and I quote:
“The representative from the union quoted case law in respect of
EARLY BIRD FARMS (PTY) LTD v MLAMBO (1997) 5 BLLR
541 LAC. I find absolutely no connection in this case that is of
any relevance to this particular dispute. Is it just a question of
case law just to impress their members?”
The same representative appeared before me on behalf of
the applicant, and these remarks make sense to me. The
record of the arbitration proceedings teems with long
winded, repetitive and irrelevant arguments. It is an
unfortunate situation which, unfortunately, can only be
avoided with the engagement of suitably qualified people in
these sorts of matters.
[15] In the result, the following order is made:
1. The arbitration award made by the second
13
respondent on 27 February 2004 under number
GA901/03 is set aside and the matter is remitted to
the CCMA for arbitration afresh before another
Commissioner.
2. There shall be no order as to costs.
___________
H.M MUSI, J
On behalf of Applicant: E Luthuli
Representative of
United Peoples Union of S.A.
PRETORIA
On behalf of Respondents: I Molelekeng
Representaive of
South African Revenue Service
PRETORIA
/em
14