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[2016] ZACC 38
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South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (CCT19/16) [2016] ZACC 38; [2017] 1 BLLR 8 (CC); (2017) 38 ILJ 97 (CC); 2017 (1) SA 549 (CC); 2017 (2) BCLR 241 (CC) (8 November 2016)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
19/16
In the matter
between:
SOUTH AFRICAN
REVENUE
SERVICE
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First
Respondent
NOMSA MBILENI
N.O.
Second
Respondent
JACOBUS JOHANNES
KRUGER
Third
Respondent
Neutral citation:
South African Revenue Service v Commission for Conciliation,
Mediation and Arbitration and Others
[2016] ZACC 38
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo
J
Judgment:
Mogoeng CJ (unanimous)
Heard on:
11
August 2016
Decided on:
08 November 2016
Summary:
section
193 of the LRA — unfairness — gross misconduct —
peremption — review of arbitration award —
compensation —
racism
ORDER
On appeal from the
Labour Appeal Court (hearing an appeal from the Labour Court):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Labour Court and the Labour Appeal Court are set
aside and that of the Labour Court is replaced with the following:
“(a)
To the extent reflected in paragraph (b) below, the review
application succeeds.
(b)
That part of the arbitrator’s award in terms of which Mr
Jacobus Johannes Kruger was reinstated in the employ of the
South African Revenue Service is reviewed, set aside and
replaced with the following:
(i) The South African Revenue Service must pay Mr Kruger compensation
equivalent to his salary for six months at the time of dismissal.
(ii) Each party is to pay its or his own costs.”
4. Each party is to pay its or his own costs, in this Court and in
the Labour Appeal Court.
JUDGMENT
MOGOENG CJ (Nkabinde
ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mbha AJ, Mhlantla J, Musi AJ and Zondo J
concurring):
Introduction
[1]
This case owes its genesis to the use of the term kaffir in a
workplace and a more assertive insinuation that African people are
inherently foolish and incapable of providing any leadership worthy
of submitting to. It bears testimony to the fact that
there are
many bridges yet to be crossed in our journey from crude and
legalised racism to a new order where social cohesion, equality
and
the effortless observance of the right to dignity is a practical
reality.
[2]
South Africa’s special sect or brand of racism was so
fantastically egregious that it had to be declared a crime against
humanity
by no less a body than the United Nations itself.
And our country, inspired by our impressive democratic credentials,
ought to have recorded remarkable progress towards the realisation of
our shared constitutional vision of entrenching non-racialism.
Revelations of our shameful and atrocious past, made to the
Truth and Reconciliation Commission, were so shocking as to induce
a
strong sense of revulsion against racism in every sensible South
African. But to still have some white South Africans address
their African compatriots as monkeys, baboons or kaffirs and impugn
their intellectual and leadership capabilities as inherently
inferior
by reason only of skin colour, suggests the opposite. And does
in fact sound a very rude awakening call to all of
us.
Essential context
[3]
In order to give some context and shed light on the correct
attitude to adopt in dealing with the term kaffir, it is necessary to
flesh out its history, meaning and implications. Dr Gabeba
Baderoon says “kaffir” is “the most notorious
word
in South African history, known most pointedly for its license
of violence towards Blacks during apartheid, but first
used and
elaborated during the colonial period.”
[1]
She goes on to observe that it is offensive in all senses and
combinations to the extent of being unspeakable today, its
use now
constitutes a hate crime in our country and is unpardonably painful
and violent.
[2]
This is in line with the observation made about 33 years ago by
Van Rensburg J and Jennett AJ that:
“When a black man is called a ‘kaffir’ by somebody
of another race, as a rule the term is one which is disparaging,
derogatory and contemptuous and causes humiliation.”
[3]
[4]
It follows that the word kaffir was meant to visit the worst
kind of verbal abuse ever, on another person. Although the term
originated in Asia,
[4]
in colonial and apartheid South Africa it acquired a particularly
excruciating bite and a deliberately dehumanising or delegitimising
effect when employed by a white person against his or her African
compatriot. It has always been calculated to and almost
always
achieved its set objective of delivering the harshest and most
hurtful blow of projecting African people as the lowest beings
of
superlatively moronic proportions.
[5]
Professor Pierre De Vos has this to say about the term kaffir:
“This term has an ugly history in South Africa and was almost
exclusively used by white racists as a gross generalisation
to
denigrate black South Africans. To be called a ‘kaffir’
is to be called a lazy and stupid person. But
the assumption
behind the word is that by being lazy and stupid one is merely
behaving as all black people always behave –
as white people
expect black people and know all black people to behave. So
even when a white person is called a ‘kaffir’,
the
recipient of the insult is being told that he or she is just as lazy
and stupid as all black people are known to be by all
racist white
people.”
[6]
[5]
It could only have been with this disrespect in mind and the
need to make a decisive break from the ills of the past,
[7]
that non-racialism, human dignity and freedoms (which include freedom
of expression without any trace of hate speech) are values
foundational to our constitutional democracy.
[8]
The healing of the divisions of the past, the national unity and
reconciliation that need to be built and fostered respectively,
[9]
are likewise intended to entrench peaceful co-existence,
respect and the right to dignity of all our people. It was
in
recognition of this constitutional vision that Brooks J recently
endorsed the remarks in
Puluza
in the following terms:
“The appropriateness of this observation has not been adversely
affected by the passage of more than thirty years since it
was first
expressed in
S v PULUZA
. If anything, the truth which
finds expression therein is even more accessible today than it was
before the dawn of a constitutional
democracy in South Africa and the
concomitant dramatic increase in the awareness of her citizens of the
need to recognize, respect
and exercise the demands now made by
society for the demonstration of respect for human dignity and
equality.
The term ‘kaffir’, historically
bandied about with impunity, is a term which today cannot be heard
without flinching
at the obvious derogatory and abusive connotations
associated with the term. It is rightly to be classified as an
inescapably
racial slur which is disparaging, derogatory and
contemptuous of the person of whom it is used or to whom it is
directed.
Considered objectively, its use can only be as an
expression of racism with a clear intention to be hurtful and to
promote hatred
towards the person of whom it is used or to whom it is
directed. This brings its use clearly within the ambit of
section
10 of PEPUDA.
”
[10]
The italicised
portion of the quotation captures the best rendition of the use of
the word kaffir as being undoubtedly disparaging,
hurtful and
intentionally hateful. According to Brooks J that use clearly
falls within the meaning of hate speech in section
10 of the
PEPUDA.
[11]
[6]
The Supreme Court of Appeal per Mathopo AJA said of the word
kaffir:
“In our racist past it was used to hurt, humiliate, denigrate
and dehumanise Africans. This obnoxious word caused untold
sorrow and pain to the feelings and dignity of the African people of
this country. . . . [S]uch conduct seeks to negate the
valiant
efforts made to break from the past and has no place in a country
like ours which is founded upon the democratic values
of human
dignity, and the advancement of human rights and freedoms.”
[12]
[7]
Calling an African a ‘kaffir’ thirteen years deep
into our constitutional democracy, as happened here, does in itself
make a compelling case for all of us to begin to engage in an earnest
and ongoing dialogue in pursuit of strategies for a lasting
solution
to the bane of our peaceful co-existence that racism has continued to
be. The duty to eradicate racism and its tendencies
has become
all the more apparent, essential and urgent now. For this
reason, nothing that threatens to take us back to our
racist past
should be glossed over, accommodated or excused. An outrage to
racism should not be condescendingly branded as
irrational or
emotional. This is so not only because the word kaffir is “an
inescapably racial slur which is disparaging,
derogatory and
contemptuous”,
[13]
but also because African people have over the years been addressed as
kaffirs. This seems to suggest that very little attitudinal
or
mind-set change has taken place since the dawn of our democracy.
[8]
South Africans of all races have the shared responsibility to
find ways to end racial hatred and its outstandingly bad outward
manifestations.
After all racism was the very foundation and
essence of the apartheid system. But this would have to be
approached with maturity
and great wisdom, obviously without playing
down the horrendous nature of the slur. For, the most
counter productive
approach to its highly sensitive, emotive and
hurtful effects would be an equally emotional and retaliatory
reaction. But
why is it that racism is still so openly
practised by some despite its obviously unconstitutional and illegal
character? How
can racism persist notwithstanding so much
profession of support for or commitment to the values enshrined in
our progressive Constitution
and so many active pro Constitution
non governmental organisations?
[9]
Are we perhaps too soft on racism and the use of the word
kaffir in particular? Should it not be of great concern that
kaffir
is the embodiment of racial supremacy and hatred all wrapped
up in one? My observation is that very serious racial incidents
hardly ever trigger a fittingly firm and sustained disapproving
response. Even in those rare instances where some revulsion
is
expressed in the public domain, it is but momentary and soon fizzles
out. Sadly, this softness characterises the approach
adopted by
even some of those who occupy positions that come with the
constitutional responsibility or legitimate public expectation
to
decisively help cure our nation of this malady and its historical
allies.
[10]
Another factor that could undermine the possibility to address
racism squarely would be a tendency to shift attention from racism
to
technicalities, even where unmitigated racism is unavoidably central
to the dispute or engagement. The tendency is, according
to my
experience, to begin by unreservedly acknowledging the gravity and
repugnance of racism which is immediately followed by
a de emphasis
and over technicalisation of its effect in the particular
setting. At times a firm response attracts
a patronising
caution against being emotional and an authoritative appeal for
rationality or thoughtfulness that is made out to
be sorely missing.
[11]
That in my view is a nuanced way of insensitively insinuating
that targets of racism lack understanding and that they tend to
overreact.
That mitigating approach would create a comfort zone
for racism practitioners or apologists and is the most effective
enabling
environment or fertile ground for racism and its
tendencies. And the logical consequence of all this gingerly or
“reasonable”
approach to racism, coupled with the
neutralising reference to the word kaffir as the “k word”,
is the entrenchment
and emboldenment of racism that we now have to
contend with so many years into our constitutional democracy.
Imagine if the
same approach or attitude were to be adopted in
relation to homophobia, xenophobia, arrogance of power, all facets of
impunity,
corruption and similar societal ills. That somewhat
exculpatory or sympathetic attitude would, in my view, ensure that
racism
or any gross injustice similarly handled, becomes openly
normalised again. Those who should help to eradicate racism or
gross
injustice could, with that approach, become its unintending,
unconscious or indifferent helpers.
[12]
The Constitution is the conscience of the nation. And
the courts are its guardians or custodians. On their shoulders
rests the very important responsibility of holding our constitutional
democracy together and giving hope to all our people that
their
constitutional aspirations will be realised. To this end, when
there is litigation about racial supremacy-related issues,
it behoves
our courts to embrace that judgement call as dispassionately as the
judicial affirmation or oath of office enjoins them
to and
unflinchingly bring an impartial mind to bear on those issues, as in
all other cases.
[13]
Judicial Officers must be very careful not to get
sentimentally connected to any of the issues being reviewed. No
overt or
subtle sympathetic or emotional alignments are to stealthily
or unconsciously find their way into their approach to the issues,
however much the parties might seek to appeal to their emotions.
To be caught up in that web, as a Judicial Officer, amounts
to a
dismal failure in the execution of one’s constitutional duties
and the worst betrayal of the obligation to do the right
thing, in
line with the affirmation or oath of office.
[14]
Bekker CJ,
[14]
Mohamed CJ
[15]
and Zondo JP
[16]
observed in essence that racist conduct requires a very firm and
unapologetic response from the courts, particularly the highest
courts. Courts cannot therefore afford to shirk their
constitutional obligation or spurn the opportunities they have to
contribute meaningfully towards the eradication of racism and its
tendencies. To achieve that goal would depend on whether
they
view the use of words like kaffir as an extremely hurtful expression
of hatred and the lowest form of contempt for African
people
[17]
or whether the outrage it triggers is trivialised as an exaggeration
of an otherwise less vicious or vitriolic verbal attack.
Background
[15]
Mr Jacobus Johannes Kruger was employed by SARS from 25
November 1991 and served as an anti-smuggling officer at the time of
his dismissal. On 27 July and 2 August 2007, after an
altercation with Mr Abel Mboweni, his superior, he referred to
him as
a kaffir. As required by a collective agreement between SARS
and the unions in its workplace, SARS arranged a disciplinary
enquiry.
[18]
At the inquiry, Mr Kruger faced the following charges:
“2.1 ‘Ek kan nie verstaan hoe kaffirs dink nie’
[direct translation: “I cannot understand how kaffirs think.”]
(Charge 1)
2.2 ‘A kaffir must not tell me what to do’ (Charge 2)
2.3 By so doing he used the racist remarks ‘kaffir’ or
alternatively he used derogatory and abusive language towards
his
Team Leader Mr Mboweni. (Charge 3).”
[16]
He pleaded guilty and a favourable sanction was successfully
negotiated by the Chairperson of the disciplinary enquiry with Mr
Moodley,
an employee and a representative of SARS in those
proceedings. Presumably after a discussion with Mr Kruger
and his
representatives, the sanction was imposed. It reads:
“9.5.1 Final written warning valid for six months as well as
suspension without pay for ten (10) days.
9.5.2 Furthermore he should undergo counselling.”
[17]
Upon receipt of the report on the outcome of the disciplinary
enquiry, the SARS Commissioner changed it from a final written
warning
to a dismissal. This was however done without affording
Mr Kruger the opportunity to contest the appropriateness of the
higher
and terminal sanction. As a result, Mr Kruger challenged
the fairness of his dismissal. He referred an unfair dismissal
dispute to the Commission for Conciliation, Mediation and Arbitration
(CCMA) for conciliation and later arbitration. The
issues to be
decided by the CCMA arbitrator (Arbitrator) were as follows—
“2.1 Whether the dismissal of [Mr Kruger] was procedurally and
substantively unfair.
2.2 Whether a Commissioner of [SARS] had powers to convert a sanction
of final written warning, and suspension without pay to dismissal.”
[18]
Mr Kruger was understandably aggrieved by the SARS
Commissioner’s alteration of the sanction, from a final written
warning
to a dismissal. Understandably because of the
non-observance of his right to be heard prior to making a decision
detrimental
to his interests and in circumstances where the
Commissioner did not appear to have the legal authority to do so.
His referral
of the dispute to the CCMA was on a somewhat tightly
defined basis. And that was the legal impermissibility of the
Commissioner’s
substitution of the sanction, during the
lifespan of the collective agreement that binds SARS. For that
collective agreement
has, he contended, effectively denuded SARS of
its common law power to alter the sanction imposed on its employees
by a SARS-appointed
Chairperson of the disciplinary enquiry.
Mr Kruger argued that that power was for all intents and
purposes wholly vested
in the independent Chairperson. To have
the sanction altered in the manner purportedly done by the
Commissioner would, according
to Mr Kruger, require a review
application to the High Court in terms of section 158(1)(h) of the
Labour Relations Act
[19]
(LRA). He thus maintained that the substitution of the sanction
was both substantively and procedurally unfair.
[19]
SARS was apparently content with a referral in these narrow
terms. The main issue the Arbitrator was called upon to decide
was thus whether the SARS Commissioner was in law entitled to
substitute the sanction as he did. Meaning, if he was not
empowered to do so, that would be dispositive of issues relating to
the substantive and procedural unfairness of the dismissal.
[20]
Having listened to the evidence and heard all the parties’
submissions, the Arbitrator concluded that it was legally
impermissible
for the Commissioner to substitute the sanction imposed
by the Chairperson of the disciplinary enquiry. The legal basis
for
that approach is, according to the Arbitrator, that SARS has, in
terms of the collective agreement that binds it, effectively waived
its common law powers to reverse, as it did, the decision of the
Chairperson of the disciplinary enquiry. Our case law, that
she
relied on, also seems to support those legal propositions in relation
to the legal authority of the Commissioner.
[20]
[21]
And based on those LAC judgments that were binding on her,
[21]
the Arbitrator ruled that the SARS Commissioner exercised power that
was no longer available to him to exercise. On that
basis
alone, not on the basis of the merits or demerits of the case, the
Arbitrator concluded that the substituted sanction of
dismissal was
unfair. She then granted the following award:
“6.1 The respondent, South African Revenue Services is
therefore ordered to reinstate the applicant, Jacobus Kruger on the
conditions stated by the chairperson at the disciplinary hearing,
which were:
Final written warning valid for six (6) months;
Suspension without pay for ten (10) days;
Counselling.
6.2 The order is to be complied with within ten (10) days of it being
served on the parties.”
This was the
restoration of the position as it was before the Commissioner’s
offending intervention.
[22]
The Arbitrator did not specify whether her finding that Mr
Kruger’s dismissal was unfair was based on the absence of a
fair
reason to dismiss (substantive unfairness) or a failure by SARS
to follow a fair procedure before the dismissal. It can be
accepted that the Arbitrator implicitly found that the dismissal was
substantively unfair.
[23]
SARS challenged the award in the Labour Court. The
grounds were that the Arbitrator wrongly relied on the decision in
Mgobhozi
[22]
as authority for the proposition that the employer had no power to
change a sanction of a disciplinary enquiry and that the award
was
vitiated by her unreasonableness. The second ground was
premised on the argument relating to the interpretation of the
SARS
disciplinary code. The Court dismissed the application on the
basis that the collective agreement did not permit SARS
to substitute
the sanction imposed by the Chairperson.
[23]
Aggrieved by that outcome, SARS again challenged the reversal of the
dismissal in the Labour Appeal Court (LAC)
on essentially
the same grounds. That challenge was also unsuccessful hence
this application for leave to appeal.
In this Court
Peremption
[24]
After the challenge to Mr Kruger’s dismissal had been
upheld by the CCMA, the Labour Court and the LAC, SARS’
attorneys,
apparently on instructions from their client, informed Mr
Kruger that SARS would not lodge an appeal against the order of the
LAC
[24]
that was in his favour. He was also advised to consult with a
certain SARS official to make arrangements for his return to
work.
Three days later, he was informed of the reversal of the decision not
to appeal and that he should no longer return
to work. Based on
these developments, Mr Kruger contends that peremption has taken
place.
[25]
The first question that arises here is whether SARS
deliberately and undoubtedly abandoned or perempted its right of
appeal as argued
by Mr Kruger. The second is, if so, whether
there are overriding policy considerations that nevertheless militate
against
the enforcement of peremption of SARS’ right of appeal.
[26]
Peremption is a waiver of one’s constitutional right to
appeal in a way that leaves no shred of reasonable doubt about the
losing party’s self resignation to the unfavourable order
that could otherwise be appealed against.
Dabner
[25]
articulates principles that govern peremption very well in these
terms:
“The rule with regard to peremption is well settled, and has
been enunciated on several occasions by this Court. If
the
conduct of an unsuccessful litigant is such as to point indubitably
and necessarily to the conclusion that he does not intend
to attack
the judgment, then he is held to have acquiesced in it. But the
conduct relied upon must be unequivocal and must
be inconsistent with
any intention to appeal. And the
onus
of establishing
that position is upon the party alleging it.”
[26]
The onus to
establish peremption would be discharged only when the conduct or
communication relied on does “point indubitably
and necessarily
to the conclusion” that there has been an abandonment of the
right to appeal and a resignation to the unfavourable
judgment or
order.
[27]
The facts of this case leave one with no doubt that SARS had
taken a conscious and firm decision not to appeal against the order
of the LAC. Several factors must be taken into account in
determining whether peremption has been established. Some
of
the key factors pointing to that conclusion, thus establishing
peremption, are the:
(a) very clear written communication by SARS to Mr Kruger that the
LAC judgment would not be appealed against;
(b) offer of reinstatement;
(c) fact that the letter of peremption was written at the instance of
a SARS official who had previously deposed to an affidavit
on
its behalf in this same matter; and
(d) fact that it was SARS’ lawyers, who were presumably
familiar with the merits and demerits of the case, who actually wrote
and dispatched the letter to Mr Kruger. This involvement
of lawyers reasonably suggests that SARS would have taken legal
advice before it waived or abandoned its right to appeal.
Peremption having
taken place,
[27]
the only relevant consideration remaining is whether there are
overriding constitutional considerations that justify appealability
or the non enforcement of peremption.
[28]
The broader policy considerations that would establish
peremption are that those litigants who have unreservedly jettisoned
their
right of appeal must for the sake of finality be held to their
choice in the interests of the parties and of justice. But,
where the enforcement of that choice would not advance the interests
of justice, then that overriding constitutional standard for
appealability would have to be accorded its force by purposefully
departing from the abundantly clear decision not to appeal.
[28]
This principle was laid down by Nugent JA in
SANDU
:
“
Bearing in mind the
policy underlying [peremption,] it must necessarily be open to a
court to overlook the acquiescence where the
broader interests of
justice would otherwise not be served.”
[29]
As in
SANDU
,
SARS’ peremption of its right to appeal was apparently based on
incorrect legal advice. Upon further reflection and
with the
benefit of “perhaps sounder advice” the higher
authorities “have since changed their minds”, hence
this
application for leave to appeal.
[30]
[29]
The reversal of the decision not to appeal happened within a
very short period of three days, unlike in
SANDU
where there
was a lapse of two weeks
[31]
and the peremptor was nevertheless allowed to appeal. The
central feature of this case is the mother of all historical and
stubbornly persistent problems in our country: undisguised racism.
This, coupled with this Court’s constitutional duty
to help
entrench the values of equality, non-racialism and human dignity,
demand that this application be appealable in the interests
of
justice.
[32]
And the issue central to this dispute requires the attention of the
highest Court in the land, at such a time as this.
But should
the application for leave to appeal succeed?
Leave to appeal
[30]
SARS seeks to have part of the arbitration award in a
dismissal dispute under the LRA reviewed and set aside. This
relates
to that part in terms of which it was required to reinstate
Mr Kruger. The basis for the review and setting aside of the
reinstatement portion is that it could not have been made by any
similarly-situated reasonable arbitrator and is therefore
unreasonable.
And this Court has held that an arbitration award
issued by a CCMA arbitrator in a dismissal dispute constitutes an
administrative
action.
[33]
An administrative action is in terms of section 33(1) of the
Constitution required to be lawful, reasonable, and procedurally
fair. Meaning, the requirement that an administrative action be
reasonable is a constitutional requirement. In challenging
the
reasonableness of the reinstatement, SARS is in effect questioning
whether the award meets the constitutional requirement that
an
administrative action must be reasonable. And that is a
constitutional issue.
[31]
Undoubtedly, this matter raises important issues that go
beyond the interests of the parties before us. Some of those
issues
are how employers should deal with racism in the workplace and
how CCMA arbitrators are to handle the possible reinstatement of
an
employee who is guilty of crass racism but does not acknowledge or
apologise for it. Also to be considered is the approach
courts
should adopt in matters involving racism so that they can contribute
to its elimination in the workplace and broader society.
[32]
Racism arguably remains rampant in South Africa. A point
of law that is enmeshed in a decision or legal atmosphere that is
about whether crude racism in a workplace would be reconcilable with
reinstatement, is of such general public importance that it
should
receive the attention of this Court.
[33]
In sum, because of the centrality of the fundamental values of
non racialism and human dignity to the issues and SARS’
strong prospects of success, it is in the interests of justice that
leave to appeal be granted.
Merits
[34]
Initially, SARS challenged the Arbitrator’s decision on
the basis that her construction of the collective agreement as not
allowing its Commissioner to substitute the Chairperson’s
sanction was flawed. Also that the dismissal was substantively
and procedurally fair because its Commissioner was, in terms of SARS’
disciplinary code, well within his rights to increase
the sanction.
That ground was abandoned the day before the matter was heard by this
Court. In considering the merits,
it is thus necessary to bear
in mind that, to the extent that the Arbitrator may have impliedly
concluded that Mr Kruger’s
dismissal was substantively unfair,
SARS does not attack that finding. It attacks only the
reinstatement part of the award.
We are therefore only asked to
consider the appropriateness or reasonableness of the reinstatement.
And the question is whether
the reinstatement is reviewable and, if
so, on what basis.
[35]
SARS contends that the reinstatement part of the arbitration
award was unreasonable and must be reviewed and set aside. It
submits that, regard being had to all the circumstances, no
reasonable arbitrator could have ordered reinstatement.
[36]
Unreasonableness is one of the grounds on which an
arbitrator’s award, issued under the auspices of the CCMA, in
respect of
a dismissal dispute may be reviewed and set aside.
And the test for unreasonableness was set out in
Sidumo
.
There, Navsa AJ said:
“To summarise,
Carephone
held that section 145 of the
LRA was suffused by the then constitutional standard that the outcome
of an administrative decision
should be justifiable in relation to
the reasons given for it. The better approach is that
section 145 is now suffused
by the constitutional standard of
reasonableness. That standard is the one explained in
Bato
Star
: Is the decision reached by the commissioner one that a
reasonable decision-maker could not reach? Applying it will
give
effect not only to the constitutional right to fair labour
practices, but also to the right to administrative action which is
lawful,
reasonable and procedurally fair.”
[34]
The question is thus
whether the reinstatement of Mr Kruger, which really is the only live
ground of review remaining, was a decision
that no reasonable
decision-maker could have made in the circumstances.
[37]
Section 193(1) of the LRA provides for remedies that the
Labour Court or an arbitrator may grant to an unfairly dismissed
employee.
They are an order of reinstatement or re-employment,
alternatively compensation.
[35]
Section 193(2) then tells us when the Labour Court or an arbitrator
must grant the remedy of reinstatement or re-employment
and when it
cannot. It does so in these terms:
“The Labour Court or the arbitrator must require the employer
to reinstate or re employ the employee unless—
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow
a fair procedure.”
[38]
The correct approach to adopt when the dismissal has been
found to be unfair, is first to consider the provisions of section
193(1)
and then section 193(2) to determine which of the three
remedies reinstatement, re-employment or
compensation
may be granted.
[36]
This is buttressed by these remarks by Zondo J:
“Once the Labour Court or an arbitrator has found a dismissal
unfair, it or he is obliged to consider which one of the remedies
listed in section 193(1) is appropriate, having regard to the meaning
of section 193(2). Considering both the provisions
of section
193(1) and section 193(2) is important because one cannot adopt the
attitude that dismissal is unfair, therefore, reinstatement
must be
ordered. The Labour Court or an arbitrator should carefully
consider the options of remedies in section 193(1) as
well as the
effect of the provisions of section 193(2) before deciding on an
appropriate remedy. A failure to have regard
to the provisions
of section 193(1) and (2) may lead to the Court or arbitrator
granting an award of reinstatement in a case in
which that remedy is
precluded by section 193(2).”
[37]
[39]
The basis for SARS’ contention that reinstatement was
unreasonable is twofold. One, Mr Kruger was guilty of racism in
the workplace which is an extremely serious misconduct. Two,
his continued employment would thus be intolerable. In
particular, SARS argues that it is, as an organ of State, obliged by
section 7 of the Constitution to protect and promote the rights
in
the Bill of Rights. Those rights include, in this context, its
workers’ right to equality or human dignity that
racism
violates.
[40]
Mr Kruger maintains that SARS has failed to discharge the onus
that rests on it to establish that the trust relationship has been
destroyed and that the circumstances highlighted in aggravation,
combined with the obvious gravity of the misconduct, outweighed
the
factors he relies on in mitigation, thus justifying a sanction of
dismissal. He holds the view that SARS should have
led evidence
to demonstrate that hurling the kaffir insult in the manner he did
caused the continued employment relationship between
him and SARS to
be intolerable. Its failure to do so, he argues, ought to
result in his reinstatement. In response,
SARS drew attention
to the fact that it had placed evidence before the Arbitrator to the
effect that the continued employment of
Mr Kruger would be
intolerable. It is noteworthy that the Arbitrator did not refer
to this contention and the supporting
evidence in determining whether
reinstatement was an appropriate remedy.
[41]
That evidence is also contained in SARS’ supplementary
affidavit in the Labour Court. There, SARS had this to say
about
the intolerability of a continued employment relationship with
Mr Kruger:
“At the CCMA arbitration, the applicant led evidence to show
that there had been a breakdown in the relationship of trust
and
confidence between it and the employee because of the nature of the
offence. It stood undisputed before the arbitrator
that the
conduct of the employee was racist. . . . The applicant as an
organ of state is also bound to eradicate racism at
the workplace.
The use of racist language (and in particular the use of the ‘k’
word) against fellow employees
and supervisors strikes at the heart
of the employment relationship at an employer such as the applicant.
Evidence was led
before the arbitrator that conduct such as that
admitted by the employee, is intolerable and the continued employment
of such an
employee, intolerable.”
SARS thus advanced
reasons for its contention that there is a breakdown of the
relationship of trust between it and Mr Kruger.
Its evidence
supports the assertion that his misconduct has rendered a continued
employment relationship intolerable.
[42]
Unlike in
Crown Chickens
where an employee was
dismissed for one incident,
[38]
in this case we have two inextricably-linked incidents of saying of a
fellow employee that he is a kaffir. This abusive and
derogatory language was directed not only at Mr Mboweni but all of Mr
Kruger’s fellow African workers. He impugned
their
thinking or intellectual capacity and underminingly pronounced on
their perceived inherent leadership or managerial incapabilities.
None of his African colleagues was in his world-view worthy of
effectively exercising authority over him. His was a
demonstration
of the worst kind of contempt, racism, and
insubordination. A proper reflection on these racial statements
alone would have
been enough to lead the Arbitrator to the
inescapable conclusion that reinstatement was the most inappropriate
remedy.
[43]
None of this should lead to the mistaken belief that the use
of very strong derogatory language like kaffir would always militate
against the reinstatement of an offending employee.
Crown
Chickens
does not purport to lay that down or articulate it as an
inflexible principle. On the contrary, the Court underlined the
particularly
crucial role that courts have to play of ensuring that
racism or racial abuse is eliminated. And that they must fulfil
that
duty fairly, fully and firmly.
[39]
The notion that the use of the word kaffir in the workplace
will be visited with a dismissal regardless of the circumstances
of a
particular case, is irreconcilable with fairness. It is
conceivable that exceptional circumstances might well demonstrate
that the relationship is tolerable. But, this is certainly not
such a case. Even then, a lot more would have to be
set out by
the offending employee to explain away the obvious intolerability of
the continued working relationship. Contrary
to Mr Kruger’s
contention, an employee would have a bigger role to play to undercut
the grossly offensive nature and effect
of these dignity suffocating
insults. It cannot be primarily the duty of the employer to
explain the intolerability
that flows effortlessly from the obviously
repugnant conduct of the employee.
[44]
After concluding that Mr Kruger’s dismissal was unfair,
the Arbitrator immediately ordered his reinstatement without taking
into account the provisions of section 193(2). She was supposed
to consider specifically the provisions of section 193(2)
to
determine whether this was perhaps a case where reinstatement is
precluded. She was also obliged to give reasons for ordering
SARS to reinstate Mr Kruger despite its contention and evidence
that his continued employment would be intolerable.
She was
required to say whether she considered Mr Kruger’s
continued employment to be tolerable and if so, on what basis.
This was not done. She does not even seem to have considered
whether the seriousness of the misconduct and its potential
impact in
the workplace, were not such as to render reinstatement
inappropriate. And those are the key factors she ought
to have
considered before she ordered SARS to reinstate Mr Kruger.
[45]
Worse still, this was a case of an employee who, though guilty
of racism, did not acknowledge his racist conduct, apologise to all
concerned, show remorse or genuinely volunteer to take part in
whatever programme could be designed to help him embrace the values
of our Constitution, especially equality, non-racialism and human
dignity. Having initially pleaded guilty to what in effect
amounts to racism in a workplace, he later denied having used the
word kaffir. He was disbelieved by the Arbitrator.
In
other words the Arbitrator was dealing with someone who tried to
conceal his racist remarks and lie about them.
[46]
It bears repetition that the use of the word kaffir is the
worst of all racial vitriols a white person can ever direct at an
African
in this country.
[40]
To suggest that it is necessary for the employer to explain how that
extremely abusive language could possibly break the
trust
relationship and render the employment relationship intolerable,
betrays insensitivity or at best for Mr Kruger desperation
of the
highest order. Where such injurious disregard for human dignity
and racial hatred is spewed by an employee against
his colleagues in
a workplace, that ordinarily renders the relationship between the
employee and the employer intolerable.
[47]
SARS is not only an organ of State but it obviously has
numerous African and white employees. It is constitutionally
and relationally
intolerable to have any racist daring enough to
refer to fellow employees as kaffirs, within the employ of SARS.
His African
co-employees know that he called one of them a kaffir and
that he regards them as lazy, incapable of leading him and
intellectually
inferior to him solely because of their race.
They would be entitled to feel extremely offended and regard as
highly insensitive
of SARS, to keep in their midst someone like Mr
Kruger. Labour jurisprudence reveals that, where employees have
discovered
that there is in their workplace an active racist, it has
sometimes led to labour unrest.
[41]
To retain Mr Kruger as an employee, wherever he might be placed,
would be similar to recklessly leaving a ticking time-bomb
unattended
to, knowing that it could self detonate at any time, with
consequences that are too ghastly to contemplate.
[48]
Furthermore, the Arbitrator should have been alive to the
enormous problems racism has caused and continues to cause in this
country.
She should also have factored into her decision the
special role that SARS as an organ of State, is required to play in
the fight
against racism and in efforts aimed at its eradication both
in the workplace and in society. She appears to have ignored or
given insufficient weight to these crucial factors.
[49]
By ordering SARS to reinstate Mr Kruger the Arbitrator acted
unreasonably. She also does not appear to have been mindful of
the fact that in terms of section 193(2) of the LRA,
reinstatement would not follow as a matter of course. It would
in fact not be an option “if circumstances surrounding the
dismissal [were] such that a continued employment relationship
would
be intolerable”. No reasonable arbitrator could have
ordered reinstatement. That reinstatement part of
her award is
thus unreasonable and should be reviewed and set aside.
Compensation
[50]
To compensate or not to compensate and if compensation is to
be awarded for what period, is a function of the judicious exercise
of the discretionary power that an arbitrator or the court has in
terms of section 194(1) of the LRA. Zondo JP outlined the
applicable factors in these terms:
“There are many factors that are relevant to the question
whether the court should or should not order the employer to pay
compensation. It would be both impractical as well as
undesirable to attempt an exhaustive list of such factors. However,
some of the relevant factors may be given. They are:
. . .
(b) Whether the unfairness of the dismissal is on substantive or
procedural grounds or both substantive and procedural grounds;
obviously it counts more in favour of awarding compensation as
against not awarding compensation at all that the dismissal is both
substantively and procedurally unfair than is the case if it is only
substantively unfair, or, even lesser, if it is only procedurally
unfair.
(c) In so far as the dismissal is procedurally unfair, the nature and
extent of the deviation from the procedural requirements;
the minor
the employer’s deviation from what was procedurally required,
the greater the chances are that the court or arbitrator
may
justifiably refuse to award compensation; obviously, the more serious
the employer’s deviation from what was procedurally
required,
the stronger the case is for the awarding of compensation.
(d) In so far as the reason for dismissal is misconduct, whether or
not the employee was guilty or innocent of the misconduct;
if he was
guilty, whether such misconduct was in the circumstances of the case
not sufficient to constitute a fair reason for the
dismissal.
(e) The consequences to the parties if compensation is awarded and
the consequences to the parties if compensation is not awarded.
(f) The need for the courts, generally speaking, to provide a remedy
where a wrong has been committed against a party to litigation
but
also the need to acknowledge that there are cases where no remedy
should be provided despite a wrong having been committed
even though
these should not be frequent.
(g) In so far as the employee may have done something wrong which
gave rise to his dismissal but which has been found not to have
been
sufficient to warrant dismissal, the impact of such conduct of the
employee upon the employer or its operations or business.
(h) Any conduct by either party that promotes or undermines any of
the objects of the Act, for example, effective resolution of
disputes.”
[42]
[51]
Generally speaking, an unfair dismissal ought to earn an
employee compensation where reinstatement is not feasible by reason
of
the intolerability of the continued working relationship.
[43]
SARS has offered Mr Kruger compensation for his unfair
dismissal. This raises very interesting questions.
Is it
open to or appropriate for this Court to “deny” an
employee compensation in circumstances where he was not only
dismissed in an admittedly unfair manner but also where the employer
who would be burdened with the obligation to pay is not necessarily
averse to payment or is willing to pay? The answer is, it
depends.
[52]
In terms of our law
[44]
compensation is not automatic. It is a discretionary
matter.
[45]
A whole range of factors must be taken in to account to determine
whether compensation has to be paid and if so, for how
many
months.
[46]
In this regard one of the key factors is the need to ensure that
employers are not inadvertently encouraged by the non-payment
of
compensation to adopt a shotgun approach of dismissing employees
without affording them the opportunity to be heard. Employees
are ordinarily vulnerable because, unlike employers, they do not
often have the resources necessary to vindicate their rights by
prosecuting cases all the way up to this Court. Condoning the
flouting of laws that govern the fate of people’s livelihood
is
a matter so serious that it always requires greater sensitivity and
care. Relevant factors are, of course, the marked
deviation
from procedure by the SARS Commissioner when he dismissed Mr Kruger.
The impact of the gross misconduct that Mr
Kruger is guilty of
on the employer and its workplace environment is an important factor
to help decide on compensation.
[53]
It can never be over-emphasised that being called a kaffir is
the worst insult that can ever be visited upon an African person in
South Africa, particularly by a white person.
[47]
It runs against the very essence of our constitutional ethos or
quintessence. And the gravity of the misconduct is
indeed a
factor that ordinarily ought to weigh heavily against an employee in
the determination of compensation.
[48]
Mr Kruger’s dishonesty, evident from reneging on his plea
of guilty by falsely accusing his union representatives
of having
forced him to admit guilt, exacerbates the problem. It
certainly cannot be neutralised by his assertion that he
has African
friends and that he is a Pastor.
[54]
The seriousness of the misconduct in this kind of a case was
aptly articulated by Zondo JP as follows—
“The attitude of those who refer to, or call, Africans
“kaffirs” is an attitude that should have no place in
any
workplace in this country and should be rejected with absolute
contempt by all those in our country - black and white - who
are
committed to the values of human dignity, equality and freedom that
now form the foundation of our society. In this regard
the
courts must play their proper role and play it with the conviction
that must flow from the correctness of the values of human
dignity,
equality and freedom that they must promote and protect. The
courts must deal with such matters in a manner that
will ‘give
expression to the legitimate feelings of outrage’ and revulsion
that reasonable members of our society -
black and white - should
have when acts of racism are perpetrated.”
[49]
[55]
It is thus an unequivocal rejection of the notion of
non-racialism, the equal treatment and human dignity of African
people to refer
to them as kaffirs. Mr Kruger did not
merely refer to Mr Mboweni as a kaffir. He explained the utter
contempt
he has not just for Mr Mboweni but apparently all other
African employees who are all targeted by the word for denigration.
All SARS’ African employees without exception are in his view
low level intelligence people. So inherently inferior
or
subhuman they are, that none of them is fit to tell him what to do.
It follows that this is so, regardless of their educational
qualifications, experience or superior placement over him, purely
because of their skin colour. No measure of linguistic
tap
dancing can lighten this obviously obnoxious and dehumanising
connotation.
[56]
The use of this term captures the heartland of racism, its
contemptuous disregard and calculated dignity-nullifying effect on
others.
It bears repetition that, Mr Kruger’s
utterances constitute a racial minefield in the workplace ever-ready
to explode
at the slightest provocation. Conduct of this kind
needs to be visited with a fair and just but very firm response by
this
and other courts as custodians of our constitutional democracy,
if we ever hope to arrest or eliminate racism. Mollycoddling
cannot cut it.
[57]
But a conspectus of all the relevant factors suggests that
compensation be paid to Mr Kruger. First, the sanction of
dismissal
is so livelihood-threatening and serious that a breach of
the relevant regulatory framework ought generally to be viewed in a
serious
light. Importantly, SARS is not dead against the
payment of compensation provided it is not for more than six months.
It is also a factor to take into account that although comparatively
well-resourced, SARS has severally floated from one blunder
to
another thus causing Mr Kruger or his sponsors to be financially
burdened through litigation, when this could have been avoided.
This has truly been a tragedy of errors by SARS. Not only did
Mr Moodley, its representative, effectively strike a deal with
Mr Kruger in relation to sanction, but the SARS Commissioner
then acted against and in effect reneged on their own deal.
Even when he did, presumably with the benefit of legal advice, he
reversed the sanction unilaterally. All these factors point
strongly to the appropriateness of awarding some compensation to Mr
Kruger.
[58]
Section 194(1) of the LRA requires, very much in keeping with
the spirit of section 172 of the Constitution, that the remedy
for unfair dismissal be just and equitable. Without
disregarding the fact that Mr Kruger’s utterances amount to one
of the worst violations of human dignity that according to our
jurisprudence amounts to hate-speech
[50]
and must be rooted out, all of the above factors point to
compensation as the just and equitable remedy that is appropriate in
this matter. SARS has reconciled itself with the possibility of
payment of up to six months. But for its offer and
a series of
inexplicable and prejudicial blunders, a lesser period or no
compensation would arguably have been more appropriate.
Compensation for the period of six months for misconduct as gross as
that of Mr Kruger and the lies he told, is by any standard
generous.
Costs
[59]
Each party has been substantially successful. SARS has
successfully argued for the reversal of the reinstatement order.
Mr Kruger has also been able to persuade this Court that he is
entitled to compensation. For this reason, the correct costs
order to make is that each party is to pay its or his own costs.
Order
[60]
In the result, the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Labour Court and the Labour Appeal Court are set
aside and that of the Labour Court is replaced with the following:
“(a)
To the extent reflected in paragraph (b) below, the review
application succeeds.
(b)
That part of the arbitrator’s award in terms of which
Mr Jacobus Johannes Kruger was reinstated in the employ
of
the South African Revenue Service is reviewed, set aside and replaced
with the following:
(i) The South African Revenue Service must pay Mr Kruger compensation
equivalent to his salary for six months at the time of dismissal.
(ii) Each party is to pay its or his own costs.”
4. Each party is to pay its or his own costs, in this Court and in
the Labour Appeal Court.
For the Applicant:
T
J Bruinders SC,
S Kazee
instructed
by Hogan Lovells (South Africa) Inc.
For the Third
Respondent:
R
Grundlingh
instructed
by TC Hitge Incorporated
[1]
Baderoon
“The Provenance of the term ‘Kafir’ in South
Africa and the notion of Beginning” at 1, 6-7,
http://www.cilt.uct.ac.za/usr/cci/publications/aria/download_issues/2004/2004_MS4.pdf
accessed on 27 July 2016 (Dr Baderoon). She sets out part
of the word kaffir’s historical context that reveals
its more
obnoxious and delegitimising effect and observes that:
“Settlers appear to name as kaffir what must remain separate
from them, clearing a space for a selfhood that is defined
against
the other . . . [T]he creation of Otherness is a formula for the
creation of the self. The alternative appears
to be that
indigeneity threatens to consume them, suggested by an insidious
sense of time, such as ‘kaffir appointment’,
for which
one need not be punctual, or becoming a ‘kafferboetie’
[little brother] by feeling a contaminating sympathy
for the
despised group or ‘to go to the kaffirs’, which means to
deteriorate.
‘[K]affir’ also functions to remake the landscape.
In colonial South Africa this denigratory modifier metastasises
into
a vast naming that forces newness on a world that was not new.
The landscape was named in a way that enabled it to
be claimed.
‘Kaffir’ labelled as unnatural the relationship between
indigenous people and their rightful claim
to the land.
Instead, this was portrayed as a distorted, corrupt and unfitting
connection. Such a vision enabled
the settlers to proclaim
their own more fitting relationship with the land. . . .
Symbolically ‘kaffir’ thus
announces not only a claim to
the land, but to a beginning of history signalled by settler
arrival.
The massive land dispossession that the African people have been
victims of, is thus traceable to the thinking behind the
recalibrated
and more-encompassing South African version of kaffir —
a version that is compatible only with the notion that Africans are
a despised group that would contaminate or lower the dignity of
others when associated with.”
[2]
Id at page 2.
[3]
S v Puluza
1983 (2) PH H150 (E) (
Puluza
) quoted with
approval in
Ryan v Petrus
2010 (1) SACR 274
(
ECG).
[4]
Dr Baderoon above n 1 at 3 states that:
“The word ‘kaffir’ is derived from the Arabic word
for non-believer or infidel, often rendered in English as
‘kafir’
(all transliterated words of Arabic origin in English are
approximations, due to the non-congruence of English
and Arabic
script). In Islam, the root word of kafir means closed,
denoting someone who has closed his or her heart from
the truth
constituted by Islam. Derived from this root, the general
meaning of ‘kafir’ is ‘non-Muslim’,
those
who are seen to deny the truth of Islam. With a Muslim
presence dating from 1658 when the Dutch brought Muslims to
the Cape
as slaves and servants, it is reasonable to assume that Islam in
South Africa delivered the word to the colonial lexicon.
However, the use of the word to describe people in South Africa
predates the arrival of Muslims in the colonial territories.
According to the DSAE, the first recorded use of ‘kafir’
applied to southern Africa (in the form ‘caffre’)
appeared in Richard Hakluyt’s The Principal Navigations,
Voyages, Traffiques and Discoveries of the English Nation, the
first
volume of which was published in 1589. G. Theal indicates that
European settlers in South Africa adopted the word from
its use by
East African Muslims for ‘infidels’ in the southern part
of Africa. Henry Lichtenstein writes in
his Travels in
Southern Africa, ‘[b]eing Mahommedans, they gave the general
name of Cafer (Liar, Infidel) to all the inhabitants
of the coasts
of Southern Africa’ (1812:241).”
[5]
It is even worse compared to another weapon of gross insult
regularly resorted to pulverise whatever racists thought was left
of
the dignity and self-worth of the African people. That insult
is either “monkey” or “baboon”.
See
Strydom v Chiloane
[2007] ZAGPHC 234
;
2008 (2) SA 247
(T) (
Chiloane
)
where Hartzenberg J was seized with a matter involving the use of
the word baboon in
Chiloane
, and relying on
Mangope v
Asmal
1997 (4) SA 277
(T) at 286J-287A he said:
“[I]f a person is called a baboon, when severely criticized,
the purpose is to indicate that he is base and of extremely
low
intelligence. It was also stated that it can be inferred from
the use of the word, in the circumstances, that the person
mentioned
is of subhuman intelligence and not worthy of being described as a
human being. It follows that the person described
as a baboon
in those circumstances may rightfully perceive them to be hurtful.
The magistrate was accordingly not wrong
to find that the
words complained of fall within the definition of ‘hate
speech’ as defined in section 10 of PEPUDA.”
[6]
Pierre De Vos “on
‘kaffirs’,
‘queers’, ‘moffies’ and other ‘hurtful
terms’”
Constitutionally speaking
at
http://constituionallyspeaking.co.za/on-kaffirs-queers-moffies-and-other-hurtful-terms
accessed on 26 July 2016 (Professor De Vos).
[7]
In
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995
(6) BCLR 665
(CC) at para 262, Mahomed J said:
“The South African Constitution is different: it retains from
the past only what is defensible and represents a decisive
break
from, and a ringing rejection of, that part of the past which is
disgracefully racist, authoritarian, insular, and repressive,
and a
vigorous identification of and commitment to a democratic,
universalistic, caring and aspirationally egalitarian ethos
expressly articulated in the Constitution. The contrast
between the past which it repudiates and the future to which it
seeks to commit the nation is stark and dramatic.”
[8]
See sections 1 and 16(2)(c) of the Constitution.
[9]
See the Preamble of the Constitution.
[10]
Thembani v Swanepoel
[2016] ZAECMHC 37 (
Swanepoel
) at
para 13.
[11]
See section 10(1) of the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 (PEPUDA) which reads as
follows:
“Subject to the provision in section 12, no person may
publish, propagate, advocate or communicate words based on one or
more of the prohibited grounds, against any person, that could
reasonably be construed to demonstrate a clear intention to—
a) be hurtful;
b) be harmful or to incite harm;
c) promote or propagate hatred.”
[12]
Prinsloo v The State
[2014] ZASCA 96
(SCA) (
Prinsloo
)
at para 20 (unreported judgment).
[13]
Swanepoel
above n 10 at para 13.
[14]
S v Van Wyk
1992 (1) SACR 147
(NmS) at 172D of the
concurrence.
[15]
S v Salzwedel
[1999] ZASCA 93
;
2000 (1) SA 786
(SCA) at para
18.
[16]
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp
(2002)
23
ILJ
863 (LAC);
(2002) 6 BLLR 493
(LAC) (
Crown Chickens
)
at para 38.
[17]
As was correctly done by the Supreme Court of Appeal in
Prinsloo
above n 12, the Labour Appeal Court in
Crown Chickens
,
above n 16 the Labour Court in judgments by Revelans J in
South
African Transport Allied Workers Union obo Finca v Old Mutual Life
Assurance Company (SA) Limited
[2006] ZALC 51
;
[2006] 8 BLLR 737
(LC) (
Old Mutual
) and Brooks J in
Swanepoel
above n
10.
[18]
SARS entered into the collective agreement with the Public Servants
Association of South Africa and the National Education Health
and
Allied Workers Union on 7 June 2007. Section 6 of the
collective agreement provides that “[a]n informal disciplinary
procedure will apply in instances of progressive discipline that may
warrant counselling, verbal warning, written warning and
final
written warnings as possible sanctions” and that “[a]
formal disciplinary procedure will apply to serious misconduct.”
[19]
66 of 1995.
[20]
See County Fair Foods (Pty) Ltd
v
CCMA
(2003) 24
ILJ
355 (LAC) (
County Fair Foods
);
South African Revenue
Services v Commission for Conciliation Mediation and Arbitration
[2013] ZALAC 26
; (2014) 35
ILJ
656 (LAC) (
Chatrooghoon
)
at para 35;
Hendricks v Overstrand Municipality
[2014] ZALAC
49
; (2015) 36
ILJ
163 (LAC).
[21]
See generally
County Fair Foods
id and
Chatrooghoon
id.
[22]
Mgobhozi v Naidoo NO
(2006) 27
ILJ
786 (LAC).
The Arbitrator clearly had
County Fair Foods
above n 20 in
mind.
[23]
The order of the judgment
delivered by the
Labour
Court was couched in these terms:
“52. The dismissal of the employee was substantively unfair
because the decision to dismiss was not one that SARS could
validly
make: the collective agreement barred it from substituting the
decision of the disciplinary chairperson. Procedurally,
the
dismissal was also unfair because the process of dismissing the
employee was not available to SARS; if it was available,
then SARS
should have afforded the employee a pre-dismissal hearing.
That it did not do.
53. The award is therefore reasonable and not reviewable.
54. Accepting the invitation from Mr Bruinders to not put form over
substance and to treat this application to review the award
also as
an application to review the decision of the disciplinary
chairperson, the court finds that SARS must fail in this review
too. SARS did not make out a case for irretrievable breakdown
in the employment relationship at the disciplinary hearing.
It
attempted to make this case out at arbitration and in this
application, emphasising that SARS is an organ of state and as
such,
should not be seen to be employing persons guilty of such serious
misconduct.
55. In
Edcon Ltd v Pillemer NO and Others
(191/08)
(2009)
ZASCA 135
. . . yet another judgment of a superior court issued
after the hearing in this case, the SCA held that in the absence of
evidence
showing damage in the trust relationship, the decision to
dismiss was unfair.
56. As SARS did not make out a case for irretrievable breakdown at
the disciplinary hearing there is nothing for this court to
review
in terms of section 158(1)(h). Furthermore, Edcon Ltd
clarifies that an employer resisting reinstatement must prove
the
irretrievable breakdown in the relationship.
57. The application is dismissed with costs.”
[24]
South African Revenue Service v CCMA
[2015] ZALAC 52
; (2016)
37
ILJ
655 (LAC) (LAC judgment).
[25]
Dabner v South African Railways and Harbours
1920 AD 583.
[26]
Id at 594.
[27]
Minister of Defence and Others v South African National Defence
Force Union
[2012] ZASCA 110
at para 22 (
SANDU
).
[28]
Government of the Republic of South Africa v Van Abo
[2011]
ZASCA 65
;
2011 (5) SA 262
(SCA);
[2011] 3 All SA 261
(SCA) at para
19. See also
SANDU
id at paras 23 6.
[29]
SANDU
above n 27 at para 23.
[30]
S
ANDU
above n 27 at para 24.
[31]
Id at para 27.
[32]
City of Tshwane Metropolitan Municipality v Afriforum
[2016]
ZACC 19
;
2016 (9) BCLR 1133
(CC) at paras 40-1.
[33]
See
Sidumo and Another v Rustenburg Platinum Mines Ltd
[2007]
ZACC 22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 1558
(CC) (
Sidumo
)
at paras 89 and 110.
[34]
Id at para 110.
[35]
Equity Aviation Services (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC) (
Equity Aviation
) at para 42; and
Toyota SA Motors (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration
[2015] ZACC 557
(
Toyota
) at
para 133 (unreported case).
[36]
Toyota
id at para 135.
[37]
Id.
[38]
Crown Chickens
above n 16 at para 3.
[39]
Id at para 35.
[40]
See Professor De Vos above n 6; Dr Baderoon above n 1;
Puluza
above n 3;
Swanepoel
above n 10 and
Prinsloo
above
n 12.
[41]
Crown Chickens
above n 16;
Old Mutual
above n 17;
Modikwa Mining Personnel Services v Commission for Conciliation
Mediation and Arbitration
[2012] ZALCJHB 61;
Biggar v City of
Johannesburg, Emergency Management Services
[2011] ZALCJHB 5;
(2011) 32
ILJ
1665 (LC);
Ceppwawu obo Evans v Poly Oak
2003 12 BALR 1324.
[42]
Kemp t/a Centralmed v Rawlins
[2009] ZALAC 8
; (2009) 30
ILJ
2677 (LAC) (
Kemp
) at para 20.
[43]
See for example
Lakomski v TTS Tool Technic Systems (Pty) Ltd
(2007) 28
ILJ
2775 (LC) at para 44 where that Court granted
compensation where dismissal was procedurally and substantively
unfair despite
the fact that the employee found employment with a
higher salary shortly afterwards. However, see
Kemp
id
where compensation was refused even though the dismissal was
substantively and procedurally unfair.
[44]
Kemp
above n 42 at para 20(e)-(h);
Johnson & Johnson
(Pty) Ltd v Chemical Workers Industrial Union
(1999) 20
ILJ
89 (LAC) at paras 36-8.
[45]
See
Solidarity obo Van Emmenis v Sirius Risk Management (Pty) Ltd
[2015] ZALCJHB 304; (2015) 36
ILJ
3175 (LC) at para 35 where
Ngcukaitobi AJ stated:
“Compensation accordingly is a matter of remedial discretion
of the Court. The main criterion is that compensation must
be just
and equitable.”
[46]
Kemp
id.
[47]
See Professor De Vos above n 6.
[48]
See
Transnet Ltd v CCMA
(2008) 29
ILJ
1289 (LC) at
para 29.
[49]
See
Crown Chickens
above n 16 at para 37. See also
Chiloane
at para 13.
[50]
Brooks J in
Swanepoel
above n 10 at para 13-4. See also
Hartzenberg J in
Chiloane
above n 5 at para 14.