IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case Number: JR 2191/19
In the matter between: -
RAND REFINERY LTD Applicant
and
CHARMAIN HALIAN STRIPP N.O. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
NUMSA obo JACOB MOKEBE & 2 OTHERS Third Respondent
Heard: 2 July 2026
Delivered: 4 September 2026 (This judgment was handed down
electronically by emailing a copy to the parties. The 4
th
September 2026 is deemed to be the date of delivery of this
judgment).
JUDGMENT
(1) Reportable Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
2
VENTER, AJ
Introduction.
[1] The Applicant ( Rand Refinery ) launched a review application in terms of
section 145 of the Labour Relations Act, 1 (the LRA ). Rand Refinery alleged
that the First Respondent ( the Commissioner), in determining the dispute and
in preparing her award, failed to properly apply her mind to the evidence
presented to her and that she reached an unreasonable conclusion, amongst
others. I shall deal with the grounds of review later.
[2] The Third Respondent opposes the review application. I shall , for the sake of
convenience, refer to the Third Respondent as ( NUMSA) and the individual
dismissed employees as (Mokebe, Mogowe & Mantso).
Narration of the facts.
[3] Both parties accepted that the content of the award was quite sufficient in
explaining the chronology and capturing the testimony of the witnesses .
Nonetheless, a brief rendition, considering the record, suffices.
[4] During arbitration Rand Refinery introduced three witnesses. Two of these
were polygraph examiners, namely Mr. D S du Toit ( du Toit ) and Ms. N
Coetzee ( Coetzee). Their evidence did not assist insofar as explaining the
material events that occurred at the workplace. Mr. J Maluleka (Maluleka) was
the only other witness who could, to a degree, provide first-hand knowledge of
the origin of the alleged misconduct.
[5] Maluleke testified that on 18 February 2017 the control room contacted him
whilst he was at home. He was alerted to an incident that took place involving
the theft of gold. Upon arriving at work, he engaged a colleague, Mr. M.
Mulafhi ( Mulafhi), who advised him that two persons had been arrested for
being in possession of 9 kilograms of gold.
1 66 of 1995 (as amended)
3
[6] What is significant, for the purposes of this review , is the fact that Maluleka
was not a material or first -hand witness to the events , save to take part in a
site inspection after the arrest of certain individuals and him being involved in
a few discussions with colleagues later . I pause at this juncture to add that
large tracts of his evidence thus constituted hearsay.
[7] It transpired that following the above incident, Maluleka was made aware of a
list of names and that the names contained therein were (allegedly) persons
that were involved in the planning of the removal of gold from Rand Refinery.
It also bears mention that the list was not contained in any record before the
Court.
[8] Maluleka testified that the investigator mentioned to him that the gold product
is intended to be channelled out of the operation to a point where it can be
collected. In addition, he testified that he was aware of a statement that was
prepared for the South African Police Service as well. That statement was
also not before the Court, nor did the person who prepared the statement or
investigated its contents present testimony either.
[9] During the above process, Maluleka went to the service y ard, and during this
time he formed part of the interview, which was held with two individuals,
namely “Sipho” and “Eric”. In short, the modus operandi was then explained to
Maluleka. His evidence demonstrated that an act of misconduct took place
and that it was suspected that the list of names pointed to who the
perpetrators were.
[10] During the proceedings before the Commissioner, it transpired that there was
(could be) some type of video footage, which this Court was not privy to , that
there were other security officers who were involved, but who did not testify ,
and there was no direct evidence that would show how Mokebe, Mogowe or
Mantso may have played a role in the modus operandi or at what stage.
[11] Two role players, namely “Mulaudsi” and “Moshweshwe”, were also not called
[11] Two role players, namely “Mulaudsi” and “Moshweshwe”, were also not called
to testify, one way or the other. Mention was also made by Maluleka of “blind
spots” at the workplace, where the security cameras could not track
movement, but these were also not pointed out to the Commissioner. In short,
Rand Refinery mainly relied on the evidence of Maluleka and the support of
4
the two polygraph examiners, who, for their part, could only testify to the result
of polygraph tests conducted on Mokebe, Mogowe and Mantso.
[12] Once Rand Refinery completed its investigation, Mokebe, Mogowe and
Mantso were charged and subsequently dismissed. Their date of dismissal
was 5 July 2017, basically nine (9) years ago.
The review.
[13] At the commencement of the hearing, I canvassed the following pressure
points with Mr Posthuma:
13.1 The absence of a security bond, which ought to have been filed in
compliance with section 145(7) of the LRA.
13.2 The disjointed composition of the transcript , which made
preparation for this hearing extremely difficult.
13.3 The generic composition of the grounds of review listed in
paragraphs 22 to 25 of the founding affidavit.
13.4 That the issue of hearsay was not raised by Rand Refinery in their
opening statement and neither was a ruling on the admission of
hearsay evidence requested upfront. Ultimately, this appears to be
the main gripe in this review.
13.5 Considering that all the aforesaid was debated during the hearing,
I also, for the sake of completeness , intend to firstly deal with that
set out in paragraphs 12.1 and 12.2 above.
[14] There is not much this Court can do (at this stage) insofar as Rand Refinery’s
failure to file a bond of security. The absence of compliance by legal
practitioners with the provisions of s ection 145(7) of the LRA has been
lamented by this C ourt, more so in the matter of Panorama Park Retirement
Village v Commission for Conciliation, Mediation & Arbitration & others.
2
[15] In the matter before me, there is neither a prayer in the notice of motion that
any execution proceedings be stayed pending an application in terms of
2 (2020) 41 I LJ 1200 (LC) at paras 6 – 14.
5
section 145(3), nor was there any separate application by Rand Refinery to be
absolved from putting up security or providing any measure of security at all.
Whilst I accept the candid and forthright concession made by Mr. Posthuma
on this score, I pause to add that Rand Refinery had a period of 9- years to
comply therewith. I add to the concerns expressed in Panorama and remind
practitioners to ensure that their clients comply with the provisions of s ection
145(7) of the LRA.
[16] This then takes me to my concerns with the review record. P arties to a review
have a duty to ensure that the record of the proceedings is arranged in such a
manner that it presents a lucid, cogent and chronological flow of evidence,
whether a reconstruction process was required or even where the entire
transcript is available.
[17] More so where a disjointed transcript exists, representing arbitration
proceedings that took place over a few days . As will appear later herein,
where – as in this case – a party alleges grounds of reasonableness, then the
entire record must be presented to the review court. 3 But the introduction of
the arbitration record is only half the exercise. The record must be properly
structured, and care must be taken to introduce it so that any risk of missing a
crucial part of the evidence is eliminated.
[18] In the circumstances, where I must decide the issue of hearsay evidence
along with circumstantial evidence, I do not have any documentary record,
save the disjointed transcript. The exclusion of the documentary bundles is
the election made by Rand Refinery when it decided to close its pleadings,
duly also considering that it did not elect to file any replying affidavit that may
have explained the lack of relevant documents, the relevance of which will
later be mentioned herein.
[19] By way of example, where, for instance , the report on Mogowe was
discussed, or where the Commissioner mentions that she is in possession of
discussed, or where the Commissioner mentions that she is in possession of
3 See Bla c k Roc k Mining b e low at para 18, See al so SA Qualifications Authority v Mbeki & others
(2019) 40 I LJ 1646 (LC) at para 21; Jiyane v Commission for Conciliation, Mediation & Arbitration &
others (2025) 46 I LJ 2649 (LC) at para 7.
6
Bundle R , these were not provided to me. When parties plan their review
strategy and develop their review grounds, careful consideration must be paid
to the review allegations and how the grounds are to be supported, when the
record is introduced. A failure to include materially relevant documents and
marry these to the transcript and review grounds comes at the peril of the
party omitting to do so. Having concluded my views of the above, I proceed to
determine the review.
Discussion.
[20] The review test requires no introduction. 4 This judgment requires an
application of that test, which both parties have also explained in their
respective heads of argument. More recently, in National Union of
Mineworkers on behalf of De Jongh v Black Mountain Mining (Pty) Ltd &
others
5 the review test was explained in simple terms as follows:
“This test has thus been applied as a two- stage review enquiry. Firstly, the
review applicant must establish that there exists a failure or error on the part
of the arbitrator. If this cannot be shown to exist, that is the end of the matter.
Secondly, if this failure or error is shown to exist, the review applicant must
then further show that the outcome arrived at by the arbitrator was
unreasonable. If the outcome arrived at is nonetheless reasonable, despite
the error or failure, that is equally the end of the review application. In short,
in order for the review to succeed, the error or failure must affect the
reasonableness of the outcome to the extent of rendering it unreasonable.”
[21] Sidumo6 further said that:
“To sum up. In terms of the LRA, a commissioner has to determine whether a
dismissal is fair or not. A commissioner is not given the power to consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving at a decision a commissioner is not required
to defer to the decision of the employer. What is required is that he or she
must consider all relevant circumstances.”
(Footnotes omitted)
must consider all relevant circumstances.”
(Footnotes omitted)
4 Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC); (2007) 28 I LJ
2405 (CC) (Sidumo ).
5 (2026) 47 I LJ 402 (LC) (Black Rock Mining ) at para 17.
6 Sidumo supra at para 79.
7
[22] Insofar as evaluating an arbitration award, this Court must further be mindful
of what Sidumo7 said, namely:
“It is a practical reality that in the first place it is the employer who hires and
fires. The act of dismissal forms the jurisdictional basis for a commissioner, in
the event of an unresolved dismissal dispute, to conduct an arbitration in
terms of the LRA. The commissioner determines whether the dismissal is fair.
There are therefore no competing 'discretions'. Employer and commissioner
each play a different part. The CCMA correctly submitted that the decision to
dismiss belongs to the employer but the determination of its fairness does
not. Ultimately, the commissioner's sense of fairness is what must prevail and
not the employer's view. An impartial third party determination on whether or
not a dismissal was fair is likely to promote labour peace.” (Emphasis
added; Footnotes omitted)
[23] In addition, one must keep in mind that the review test, where it is alleged that
an arbitrator's decision is unreasonable, is stringent. 8 The review court
considers the award, in the round, 9 and a review court must have regard to
whether the arbitrator’s conclusion is untenable and whether the result is
egregious.10
[24] This review requires the consideration of a pertinent and crisp question of law,
read with restrained facts and includes the admission of hearsay evidence
coupled with a consideration of circumstantial evidence.
[25] It is necessary to return to paragraph 12.3 herein. I first consider what to do
with the generic grounds of review . This aspect was discussed in the case of
7 Sidumo supra at para 75.
8 Mbeje & others v Department of Health, K waZulu- Natal & others (2024) 45 I LJ 2681 (LAC) :
“[21] Notwithstanding the generous approach to the collateral issues beyond the scope of the pre -
arbitration minute, the arbitrator’ s finding in that regard is inconsequential. The review test of
reasonableness is trite and the threshold is stringent. As such, a reviewing court should be extremely
hesitant to disturb the arbitrator’ s findings of fact unless they result in a misconceived enquiry or
unreasonable outcome. ” (Footnotes omitted); See al so SA Municipal Workers Union on behalf of
Malatsi v SA Local Government Bargaining Council & others (2023) 44 I LJ 1317 (LC) at para [ 18] ;
National union of Metalworkers of SA & another v Commission for Conciliation, Mediation & Arbitration
& others (2023) 44 I LJ 1575 (LC) at para [18] ; Mula ud zi v City of Ts hwa ne Me tropolita n Munic ipa lity &
others (2022) 43 I LJ 398 (LC) at para [ 139] .
9 Goldfie lds at para [ 18] ; Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34 I LJ 2795 (SCA) a t p a ra [1 2].
10 A J Charnaud & Co v SA Clothing & Textile Workers Union on behalf of Members & others (2024)
45 I LJ 2257 (LAC) (A J Charnaud ) at para [24].
8
Hamandawana v Dispute Resolution Centre and Others .11 The stance
adopted by the Labour Court in that case remains insightful. In that case,
Lagrange J said that: -
“The Labour Appeal Court made it clear in the unreported case of Comtech
(Pty) Ltd v Molony N.O. and Others (case number DA12/05 dated
21 December 2007) that it is not acceptable for a party to relate conclusions
of law in the founding papers for a review application. The party must set out
the factual grounds on which it seeks to base a particular ground of review. It
might be excusable to state limited grounds of review in less detail in a
founding affidavit, but once an applicant has the record of proceedings it must
then make up for any deficiencies in the founding affidavit and set out the
factual basis for its grounds of review in full. (Emphasis added)
25.1 The grounds stated in paragraphs 22, 23, 24 and 25 of the founding
affidavit are broadly generic and amount to legal conclusions . In
paragraph 26 of that affidavit , Rand Refinery reserved the right to
supplement tho se grounds. Paragraph 5 of the supplementary
affidavit is also generic but, as will appear later herein, that
paragraph, when read with paragraphs 6, 7, 8 and 9 of the
supplementary affidavit, forms one unique supplementary review
ground. When reading the supplementary affidavit, the following is
alleged:
25.1.1 Paragraph 6 accepts that it could be understood that
Rand Refinery’s evidence may be construed as hearsay
and circumstantial evidence and that there was a
shifting onus.
25.1.2 In paragraph 7, it is alleged that t he Commissioner
accepted the evidence of a polygraph examiner and
thus she accepted that Mokeba, Mogowe and Mantso
were not telling the truth. This paragraph pertinently
alleged that the Commissioner committed a material
irregularity and reached an unreasonable outcome.
11 (2014) 35 I LJ 1312 (LC) at para 8 .
9
25.1.3 In paragraph 8, it is alleged that one of the employees
worked in the electrical department and had access to
insulation tape. It is then alleged that the
Commissioner’s determination of this point was
irrational.
25.1.4 Lastly, in paragraph 9 it is alleged that the
Commissioner failed to consider that Mokebe, Mogowe
and Mantso only provided bare denials to the allegations
and that it was not reasonable to find that Rand Refinery
had not discharged its onus.
25.2 In applying Hamandawana, I hold the view that it is impermissible for
a review court to on its own incorporate or allocate generic review
references to other specified grounds of review or even facts alleged
in any affidavit or part of the record. It is impermissible to match
grounds of review where the reviewing party has failed to indicate
which ground pertains to what fact or what paragraph in an
arbitration award.
25.3 This Court cannot broaden, clarify or extend the scope of a party’s
generic review grounds, even less speculate where these may apply
or fit in . In this case, Rand Refinery alleged limited (generic) review
grounds in its founding affidavit. The only factual basis for the review
complaints is that contained in the supplementary affidavit.
[26] Whilst I accept that a supplementary affidavit can expand, add to, clarify or
even alter the grounds in a founding affidavit,
12 (as took place herein), the fact
remains that a review court cannot link or allocate generic grounds contained
in a founding affidavit to any separate ground in the supplementary affidavit.
Paragraph 4 of the supplementary affidavit says that “... I shall refer to the
additional ground of review as the supplementary grounds of review ”
(Emphasis added). This can only mean that an additional ground of review is
introduced. T he deponent appears to have incorporated this ground as a
12 Association of Mineworkers & Construction Union on behalf of Simayile v Bargaining Council for the
Civil Engineering I ndustry & others (2025) 46 I LJ 1339 (LC) at para 6.
10
distinct stand -alone ground. This is what a businesslike reading of the
supplementary grounds allows as an inference.
[27] In the circumstances, the additional ( supplementary) ground of review falls to
be decided.
[28] There were three cases that were pertinently referred to and relied on by the
parties in arguing their respective views. These were DHL Supply Chain (Pty)
Ltd v De Beer NO & others, 13 Exxaro Coal (Pty) Ltd & another v Chipana &
others14 and CTP Gravure (Pty) Ltd A Division of CTP Limited / The Statutory
Council for the Printing, Newspaper and Packaging Industry & Others.15
[29] Rand Refinery contends that, duly considering the hearsay and circumstantial
evidence, Mokebe, Mogowe and Mantso had to answer such evidence. In
perusing the transcript and record, it transpires that they did. At paragraphs 27
to 29 of the award, the Commissioner summarised Mokebe’s version. He
testified that he heard rumours of stolen gold.
[30] Paragraphs 30 to 32 of the award captured Mogowe’s version. His
explanation was that he was not at work on 18 February 2017 but only went
there late in the afternoon . He denied being involved. Lastly, the
Commissioner captured Mantso’s version in paragraph 33 of the award. He
testified that he was not at work on 18 February 2017. In paragraph 42 of the
award, the Commissioner explains why she accepted Mogowe’s evidence as
to why he was at the workplace the afternoon of the incident. I return to this
later herein.
[31] In my view , the Commissioner correctly accepted his version, seeing that it
was not denied during cross- examination. The (supplementary) review
ground(s) in paragraphs 6 and 9 are closely tied. These allege that it was
incumbent on the three dismissed employees to provide an explanation for the
disappearance of the gold.
13 (2014) 35 I LJ 2379 (LAC) (DHL); Also referred to in paragraph s 43 and 46 of the arbitration award .
14 (2019) 40 I LJ 2485 (LAC) (Exxaro ).
14 (2019) 40 I LJ 2485 (LAC) (Exxaro ).
15 Case number DA04/2024, ( CTP), heard 11 March, judgment on 20 March 2025, V an Niekerk JA,
Waglay AJA and Mooki AJJA concurring ; also reported in [2025] 10 BLLR 1015 (LAC).
11
[32] During the hearing of the matter, I debated with the parties the similarity of this
case with the facts of DHL.16 The same type of facts and concerns regarding
what an alleged offender’s response may be was discussed therein. The
Labour Appeal Court held the following view:
“Furthermore, the notion that they offered no real challenge to the facts adduced by
the appellant and that this warrants an adverse inference is illogical. An innocent
person in the position of the two respondents could be expected to do no more than
deny guilt and express ignorance about how and why the losses occurred.
Significantly, despite the ostensible best efforts of DHL itself, the means of
misappropriation remain unknown and precisely when it occurred in the chain of
handling could not be established. The proof that the respondents had the
opportunity to steal is valueless without more and it could never be a burden on them
to offer alternative theories for the misappropriation in order to achieve exoneration. “
[33] The above is basically on all fours with Rand Refinery’s evidence. To that
extent, these erstwhile employees did provide an answer, which was not
refuted as their cross -examination progressed. Adv. Wagemaker, acting on
behalf of NUMSA, contended that what Mokebe, Mogowe and Mantso did was
provide an alibi in defence, as opposed to a bare denial. Considering what I
have explained already, it cannot be said that they merely denied everything.
They indeed provided answers as to their whereabouts on the day , which
were not denied during their cross -examination. They were able to provide an
excuse for where they were on the day the incident occurred.
[34] This then leads to a consideration of the value of polygraph evidence. Having
grappled with pertinent authorities on the point, the Labour Appeal Court in
DHL17 said that:
“These considerations beg the question about what a failed polygraph test really
produces by way of usable information. Only the inference to be drawn from the
produces by way of usable information. Only the inference to be drawn from the
failure of the test is useful as material to determine probabilities. In the absence of
expert evidence to explain what that inference is, either generically, or within the
bounds of the specific instance itself, and also to justify the explanation of what that
is, there is nothing usable at all that might contribute to the probabilities. In this
appeal, DHL's consent form, signed by the two respondents, states that the test
would indicate that the worker was either involved or not involved in the stock loss.
16 DHL supra at para 15.
17 DHL supra at para 30.
12
That premise is questionable, and to belabour the point, required the kind of expert
evidence mentioned above to render it worthy of consideration.”
[35] Considering the above, the testimony of du Toit and Coetzee only contributes
to the probabilities. DHL18 also said:
“In summary, the respectability of polygraph evidence, at best, remains an open
question, and any litigant seeking to invoke it for any legitimate purpose, must, needs
be, adduce expert evidence of its conceptual cogency and the accuracy of its
application in every given case.”
[36] To that extent, the ground alleged in paragraph 7 of the supplementary
affidavit cannot stand. It fails on the application of the first leg of the test. The
polygraph result does not clearly support an inference that the probabilities
indicate their conclusive involvement. What the Commissioner did was to,
having considered all the facts before her, treat the polygraph results with
limited acceptance. This much appears from paragraph 45 of her award.
[37] DHL
19 further said that:
“What both the arbitrator and the review court did was to pose the unavoidable
question: what was polygraph evidence worth in the context of all the facts? The
conclusion reached was that although it could, in the view adopted in both fora, be
fairly inferred that failing a test could fortify a reasonable suspicion, a failure was not
weighty in the absence of other evidence demonstrating, objectively, a case that
called for a credible rebuttal. In both fora, the conclusion was reached that there
simply was not enough evidence from which to infer guilt.
In our view, that finding was, on the body of evidence adduced, a reasonable stance
to adopt.”
[38] This leads to paragraph 8 of the supplementary affidavit. Whilst Mogowe had
access to insulation tape, it does not appear to me that he was the only
employee who had exclusive access to insulation tape at the workplace.
Mogowe was employed as an electrician, and he worked in maintenance. He
Mogowe was employed as an electrician, and he worked in maintenance. He
only encountered gold when he used machines that may have gold on them.
He testified that he did not speak to Sipho. That version was not denied during
his cross-examination. He testified to assisting Sipho’s wife and how he drove
18 DHL supra at para 31.
19 DHL at paras 12 – 13.
13
her to the refinery. He also testified that he did not clock in on the day. In the
circumstances, he was not at work during the morning. He was not challenged
on the insulation tape issue at all during cross -examination. It was incumbent
to have put a version to him that he had access to the insulation tape which
was wrapped around the stolen gold or that it all probabilities, he was the one
who supplied the tape to the syndicate, which was not done.
[39] In returning to the review ground found in paragraphs 6 and 9 of the
supplementary affidavit, it appears to me, having heard argument, that t he
thrust of Rand Refinery’s application appeared to have centred around the
Commissioner not making a ruling upfront on the admissibility of hearsay, as
explained in Exxaro. As the evidence of Maluleka proceeded, the
Commissioner became alive to the hearsay content of his testimony. She was
prompted twice on this issue.
[40] The first time was when Maluleka testified to Sipho and Eric mentioning the
“names”, and he also testified that when this information was mentioned to
“Mulefhi”, he was also not present. That is when the Commissioner said ,
“… Okay, so that is hearsay, hey.”
[41] Hearsay was not mentioned at the commencement of the arbitration during
the opening statements either. Rand Refinery made no application for hearsay
to be admitted. The relevant paragraphs in Exxaro
20 said:
“Those safeguards and precautions, duly adapted, also apply to the
application of s 3 of the LEAA in civil proceedings. Because of the similarities
between civil proceedings and arbitration proceedings, the overwhelmingly,
adversarial nature of arbitration proceedings under the LRA, and the
overarching requirement that such proceedings be fair, those safeguards and
precautions, duly adapted, apply equally to arbitration proceedings to ensure
fairness and serve as an invaluable guide for commissioners and arbitrators
when confronted with hearsay evidence, and, particularly, when applying s 3
when confronted with hearsay evidence, and, particularly, when applying s 3
of the LEAA. Adapted they would include the following: (1) section 3(1)(c) of
the LEAA is not a licence for the wholesale admission of hearsay evidence in
the proceedings; (2) in applying the section the commissioner must be careful
to ensure that fairness is not compromised; (3) a commissioner is to be alert
20 Exarro supra at paras 24 – 25.
14
to the introduction of hearsay evidence and ought not to remain passive in
that regard; (4) a party must as early as possible in the proceedings make
known its intention to rely on hearsay evidence so that the other party is able
to reasonably appreciate the evidentiary ambit, or challenge, that he/she or it
is facing. To ensure compliance, a commissioner should at the outset require
parties to indicate such an intention; (5) the commissioner must explain to the
parties the significance of the provisions of s 3 of the LEAA, or of the
alternative, fair standard and procedure adopted by the commissioner to
consider the admission of the evidence; (6) the commissioner must timeously
rule on the admission of the hearsay evidence and the ruling on admissibility
should not be made for the first time at the end of the arbitration, or in the
closing argument, or in the award. The point at which a ruling on the
admissibility of evidence is made is crucial to ensure fairness in a criminal
trial. The same ought to be true for an arbitration conducted in an adversarial
fashion because fairness to both parties is paramount.
In this matter the timing of the commissioner’s ruling on the admissibility of
the hearsay evidence occurred so late that it was undoubtedly unfair to both
the employer and the employee. It is apparent from the record of the
arbitration proceedings that the commissioner was acutely aware from the
outset that the main issue in dispute related to the admission of hearsay
evidence at the disciplinary enquiry. Exxaro’s representative, in her opening
statement, conceded that Exxaro had relied on hearsay evidence at the
disciplinary enquiry. Exxaro’s representative proceeded to adduce hearsay
evidence, through Messrs Steyn and Claasen, to prove the charges of
misconduct. No objection was raised to this evidence being adduced, neither
by Mr Chipana, who was forced to represent himself for the early stages of
by Mr Chipana, who was forced to represent himself for the early stages of
the arbitration, nor by the commissioner. Significantly, the commissioner
appeared to adopt a passive attitude in that regard. Mr Chipana’s legal
representative appeared after Mr Steyn had given evidence- in-chief and he
cross-examined Mr Steyn after consulting Mr Chipana, but he too did not
raise any objection to the hearsay evidence.
” (Footnotes omitted)
[42] Mr. Posthuma argued that the Commissioner did not alert Rand Refinery’s
representative to the application of hearsay evidence. He further contends
that the admissibility of hearsay evidence was decided only after the
proceedings, that Rand Refinery’s case was dismissed solely on the strength
15
of hearsay evidence and that the review court should a hard look at the
award.
[43] This causes me to return to Maluleka’s evidence when asked about Mokebe’s
involvement. He testified that he did not dig deep into his activities on the day.
As far as his version of Mogobe, he testified that he cannot specifically say
what Mogobe did either.
[44] In my view, apart from the hearsay and circumstantial evidence, that alone
signalled to the Commissioner that Maluleka cannot materially support the
allegations levelled by Rand Refinery. The totality of the circumstances and
the version presented by Mokebe, Mogowe and Mantso significantly dilutes
the Rand Refinery’s case.
[45] In line with what Mr. Postuma thus contended, I now consider CTP.21 The
question before the Labour Appeal Court was amongst others:
“… the treatment of hearsay evidence in an arbitration proceeding and
whether the failure to rule on the admission of such evidence at the outset of
the arbitration proceedings constitutes a gross irregularity sufficient for the
review of the arbitration award…”. This is in essence what is alleged in
paragraph 6 of the supplementary affidavit.
[46] In the CTP case, the employer made an application for legal representation,
alleging that the dispute was complex and that it intended to rely on hearsay
evidence. The arbitrator in that case dismissed the application for legal
representation and “… ruled that the parties would be allowed to submit
hearsay evidence provisionally… ”.22
[47] During the review application, CTP complained that “…the arbitrator failed to
comply with the principles expounded in the judgment of this Court, Exxaro
…in belatedly rejecting the admission of the evidence… ”. This appears to also
have been the first ground of appeal in CTP.
23
21 CTP supra at para 1.
22 CTP supra at para 16.
23 CTP supra at para 18.
16
[48] In CTP, as opposed to this case, the arbitrator made a provisional ruling on
hearsay evidence. This was so as CTP was unable to secure the attendance
of certain witnesses, as opposed to Rand Refinery’s case. The arbitrator in
CTP allowed further argument on the issue of hearsay evidence at the
conclusion of the arbitration, as opposed to what took place in Rand
Refinery’s case. There are thus clear differences in CTP and Rand Refinery’s
evidence flow insofar as how and when hearsay evidence entered the fray.
[49] After thoroughly grappling with the cautionary views contained in Exxaro and
National Union of Metalworkers of South Africa obo Mokase v Nissan South
Africa (Pty) Ltd and others
24 the Labour Appeal Court , in paragraph 36 of
CTP, said:
“However, a late ruling on the admissibility of hearsay evidence may not
necessarily warrant the setting aside of the award and for the matter to be
remitted back to CCMA or the bargaining council for a hearing de novo”.
[50] In applying the reasoning of the Labour Appeal Court found in paragraphs 39
to 43 of CTP , one thing is clear, namely that each case is decided on its own
merits. In deploying a strict approach to the review test, as cogently explained
in Black Rock Mining, it appears that, on the face of it, there is an error on the
part of the Commissioner, when measured against that said in Exxaro.
Applying the first part of the test, Rand Refinery has been able to demonstrate
an irregularity on the part of the Commissioner.
[51] But that is not the end of the test. If a defect is demonstrated on the first leg.
The impugned award may still pass Sidumo muster on the second leg, to the
extent that it may be found that the outcome was not unreasonable. On the
merits, I defer to DHL and find that the evidence in support of the allegations
of misconduct was quite sparse. The polygraph, although able to assist in the
probabilities, does not take the issue further . What Rand Refinery relied on
probabilities, does not take the issue further . What Rand Refinery relied on
was Maluleka being told, twice, that Mokebe, Mogowe and Mantso were
involved, that they failed a polygraph and that one of them had access to
insulation tape.
24 [2024] ZALAC 16; [2024] 9 BLLR 967 (LAC).
17
[52] To join the dots , Rand Refinery had to outflank the uncontested version that
these individuals were not at work. In addition, one is left guessing what part
they would have played in the chain of events. In my view, what Rand
Refinery sought to achieve was a bridge too far. One is inclined to surmise
that when the three individuals failed the polygraph, those results were the
catalyst for the dismissals. However, as DHL and the authorities referred to
therein demonstrate, more corroboration is required than mainly relying on the
test results and, as in this case, a purported list and gold wrapped in insulation
tape.
[53] That takes me back to the Commissioner being aware of the existence of
hearsay when Maluleke testified, but not to an extent initiating what Exxaro
requires. In line with CTP , the Commissioner herein embarked on a lengthy
exposition of the Law of Evidence Amendment Act ; she set out in quite some
detail why she preferred certain parts of Maluleke’s evidence over other parts.
[54] Whilst she accepted the contents of certain conversations he had, she
correctly discounted the parts that constituted uncorroborated hearsay. She
correctly pointed out that of the four witnesses who could have supported
Maluleka’s evidence on the involvement of Mokebe, Mogowe and Mantso,
none were called to testify.
[55] This is significant, if one considers that the arbitration process was not a one-
day event. I thus cannot fault the Commissioner’s reasoning in paragraph 40
of the award. More to the point, despite arbitrators only being required to
provide brief reasons in their awards, it is obvious that this award is not the
proverbial one-pager. Quite the opposite.
[56] Lastly, this application came before the review court just on 9- years following
the dismissal of the three employees. It requires finalisation.
[57] Thus, despite the Commissioner only making a ruling on hearsay evidence
when preparing her award, she nevertheless, on a fair reading of the award
when preparing her award, she nevertheless, on a fair reading of the award
thoroughly wrestled with both the facts and the legal question and produced
an award which is quite capable of justification, and apart from that, enjoys
review protection as her decision falls within a band of decisions that may be
reached given the scant evidence relied on by Rand Refinery . In considering
18
the totality of the Commissioner’s analysis, her award is not disconnected
from the evidence that was available to her.25
[58] Her deviation is not so great or egregious as to fall foul of that explained in A J
Charnaud. I am of the view that the review application, advanced on the
above ground, stands to fail. To that extent, the grounds mentioned in
paragraphs 6 and 9 of the supplementary affidavit do not pass the second leg
of the test.
[59] On the issue of costs, it is so that s ection 162 sets out the legal framework
when this court is required to decide the issue of costs. In deciding whether to
award costs, a discretion applies. It is so that when deciding to award costs,
one of the considerations is that in the employment fraternity, parties must not
be discouraged from approaching this court for relief, even more so where
review applications are pursued.
[60] Given the unique questions that seized this court and considering that it
appears that there is a relationship between the employer and a trade union
and whilst the employer failed to comply with the provisions of s162 and
where the state of the record requires no further mention, I am of the view that
a cost order is not warranted.
[61] In the premises, the following order is made.
The order.
1. The review application is dismissed.
2. There is no order as to costs.
__________________
F. Venter
Acting Judge of the Labour Court of South Africa
25 Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilme nt S e rvic e s (P ty) Ltd) v
Le g ob a te (2015) 36 I LJ 968 (LAC) at paras 12 to 13.
19
APPEARANCES:
For the applicant: Mr A Posthuma, instructed by Snyman Attorneys
For the third respondent: N Wagemaker , i nstructed by Serfontein Viljoen
Swart Attorneys