---

1IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

Case Number: JR 1877/04

In the matter between:

National Union of Metalworkers of

South Africa 1^st Applicant

Pitrus Kabi 2^nd Applicant

and

Kia Motors First Respondent

Centre for Dispute Resolution Second Respondent

JB Mthembu NO Third Respondent

JUDGMENT

molahlehi AJ

Introduction

1. This is a review application in terms of which the applicant, the National Union of Metalworkers of South Africa, seeks an order reviewing and setting aside an arbitration award issued by the third respondent (the arbitrator) under case no. 176/03FS dated 09^th June 2004. The application was brought in terms of s145 of the Labour Relations Act 66 of 1995 (the LRA).

2. The matter was postponed on 08 February 2007, because Mr Snyman, attorney for the first respondent was not ready to proceed. The postponement was due to the fact that there was initially no appearance on behalf of the first respondent. When the matter was called, Ms Ruth Edmonds, attorney for the applicant requested that the matter stand down to check on the whereabouts of the attorney for the first respondent.

3. Later when the matter resumed, Mr Snyman, submitted that had it not been for the telephone call from Ms Edmonds, enquiring about his where about, he was not aware that the matter was set down on that particular day. He did not deny receipt of the notice of set down, but said that the reason he did not attend earlier was because his law firm “handles too many Kia Motors matters.” It was for this reason that he applied for postponement because he was not ready to proceed. The applicant opposed the application.

4. This court granted the application and postponed the matter to 29 March 2007, and issued the following order:

“1.2 The first respondent is to file heads of argument with an explanation why there was no compliance with the directive to do so earlier.”

5. The matter was then set-down for the 29 March 2007 and before its commencement the third respondent, represented by Ms Ntsoane was called upon to explain why there was no compliance with the court order issued on the 8^th February 2007. As stated above the court order, required the third respondent to provide reasons why there was non compliance with the directive from the court that the heads of argument be filed. She failed to provide an explanation and requested that the matter stand down so that she could phone Mr Snyman, to obtain instructions. Yet again no explanation was furnished when the matter resumed later in the day.

6. The applicant argued that the conduct of the respondent should no longer be tolerated and no further indulgence should be granted. The court agreed with Ms Edmonds and ordered that the respondent be barred from appearing.

Background

7. The second applicant, Mr Pitrus Kabi was dismissed on the 14^th May 2003 following a disciplinary inquiry which found him guilty of failure to completing a log book, leaking of the first respondent’s confidential information, theft of a spare wheel and failure to do filing correctly.

8. During the arbitration hearing the branch manager testified inter alia, that he was informed by the service manager that several Renault customers had cancelled bookings for the services of their cars. After receiving this information he requested the service manager to call one of their loyal customers, a certain Mrs Jordaan. Mrs Jordaan was one of those who cancelled their service appointment.

9. The customer informed the service manager over the phone that she had been contacted by Mr Julius Meyer, a former employee of the first respondent who informed her that he could service her car for less than what the first respondent was charging.

Condonation Application

10. The award was served on the applicants on 2^nd June 2004 but the review application was filed on 30^th September 2004, some 11 (eleven) weeks late. The applicant contended that the delay of 11 (eleven) weeks was not excessive and if the court was to find it to be excessive, it was justified by reasons provided. The reason for the delay relates mainly to the internal dynamics of the first applicant. The decision to take the matter on review was taken on 27 August 2004. However because of the disagreement between one of the union officials and the second applicant about the grounds of the review, the matter had to be taken to the local office bearers for consideration.

11. It is now established that the discretion to grant condonation has to be exercised judicially upon a consideration of all the facts and the circumstances of a given case and in essence this entails fairness to both sides. In this enquiry, the relevant considerations may include the degree of lateness, the explanation therefore, the prospects of success on the merits, the importance of the case, the interest in the finality of the matter, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice. These factors are not exhaustive and ordinarily not individually decisive but are interrelated and must be weighed against each other. See United Plant Hire (Pty) Limited v Hills 1976 (1) SA 717 (A) at 720 E-G.

12. In Boshard Construction (Pty) Ltd v Building Industry Bargaining Council & Another (2002) 12 BLLR 1171 (LC), a delay of eleven weeks in filing a review application in terms of s145 of the LRA was held not to be unreasonable. Similarly in the circumstances of this case, it cannot be said that the period of the lateness is excessive nor can it be said that the explanation is unreasonable. The evidence reveals that the second applicant did everything in his control to have the arbitration review prosecuted and the evidence point towards an intention on the part of the second applicant to bring the matter to finality.

13. Accordingly the applicant’s late application to review the decision of the third respondent is condoned. I will now proceed to deal with the merits of the review application.

Grounds for Review

14. The applicants contended that the arbitrator’s decision was irrational in that it was not reasonable and justifiable in relation to the evidence placed before him. In substantiating the grounds of review the applicant’s contended that the arbitrator arrived at his decision to uphold the dismissal on the basis of hearsay evidence. In this regard they argued that Mrs Jordaan was not called as a witness to testify about why she cancelled her service appointment. It was further argued that the arbitrator failed to properly consider the fact that there was no direct evidence linking the second applicant to the leaking of the confidential information.

15. The branch manager advanced two reasons in his testimony why the second applicant was the only person who would have leaked the information to Mr Meyer. The first reason according to him is because the other two employees who worked in the workshop did not have a good relationship with Mr Meyer. The second reason being that the two employees earned a commission on the number of vehicles serviced whereas second applicant only earned a salary.

Arbitrator’s award

16. The reasons for finding the dismissal to be substantively fair are stated by the arbitrator as:

“It is common cause that three people worked in the service department, viz, Olivier, Geringer, and the applicant. It is further common cause that the applicant and Meyer were good friends as the applicant would visit Meyer at his workplace and at home. Olivier and Geringer were paid commission and dependant on the number of customers that serviced their vehicles there. It follows that for them to take away business from the respondent would adversely affect their remuneration. It would accordingly not be in their interest to do so. This leaves one person in the service unit who could do so and that is the applicant who anyway was a very close friend of Meyer."

17. The arbitrator further reasoned that the second applicant did not establish the motive why the witnesses of the first respondent would falsely implicate him and want him dismissed. He also found that the charge of leaking information to competitors was more serious than the other charges which were proffered against the second applicant.

Evaluation

18. It is apparent that the arbitrator in arriving at his decision relied on the hearsay evidence that the customer said that she was called by Mr Meyer who told her that he would service her car at a cheaper price than that of the first respondent.

19. It is evidently clear that there was no direct evidence linking the second applicant to the disclosure of the alleged confidential information to Mr Meyer. In this regard the arbitrator relied on circumstantial evidence in concluding that it was the applicant who disclosed the information to Mr Meyer.

20. The reading of the record and the analysis of the award reveal that there was no direct evidence that the confidential information was disclosed by the second applicant to Mr Meyer. It is apparent that the arbitrator in arriving at his decision as he did, relied on circumstantial evidence to determine whether or not the second respondent was responsible for disclosing confidential information to Mr Meyer.

21. The legal principles governing the use of circumstantial evidence is discussed by Zeffertt, Paizes and Skeen The South African Law of Evidence (5^th ed) at 93. In this regard the learned authors quote Watermeyer JA in R V Blom 1939 AD 288 at 302-3 as having said:

“(a) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(b) The true facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct”.

22. The leading case on circumstantial evidence in a criminal law context is R v Blom (supra) and in civil cases is AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A). In civil cases the onus is discharged if the inference advanced is the most readily apparent and acceptable inference from a number of possible inferences. Cohen A in Victor and Another and Picardi Rebel (2005) 26 ILJ 2469 (CCMA), held that a distinction between a permissible inference and a mere conjuncture or speculation must always be born in mind.

23. It has been held that the process of drawing inferences can be very dangerous in that whilst the possibility of error in direct evidence lies in a witness being mistaken or lying about the facts, the use of circumstantial evidence involves a potential error which is that a tribunal or the court may be mistaken in its reasoning. Zeffertt, Paizes and Skeen (supra) in dealing with the same issue say:

“The possibility of error in direct evidence lies in the fact that the witness maybe mistaken or lying. All circumstantial evidence depends ultimately upon facts which are proved by direct evidence, but its use involves an additional source of potential error because the Court may be mistaken in its reasoning. The inference that it draws maybe sequitur, it may overlook the possibility of other inference which are equally probable or reasonably possible. It some times happens that the trier of facts at having thought at a theory to explain the facts that he may tend to overlook inconsistent circumstances or assume the existence of facts which have not been proved and cannot legitimately be inferred.”

24. The learned authors further quoted, Lord Wright in the English case of Caswell v Powell Duffy Collieries Ltd [1939] 3 All ER 722 (HL) at 733 as having said:

“There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In other, cases the inference does not go beyond reasonable probability. But is there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjuncture.”

25. There is no direct evidence in this case revealing how Mr Meyer obtained the contact details of Mrs Jordaan. Through the process of deduction the arbitrator came to the conclusion that it can only be the second applicant who was responsible for the disclosure of the confidential information. Even the hearsay evidence that the arbitrator accepted, without any qualification and accorded undue weight, does not show how the second applicant was linked to the leaking of the confidential information.

26. Evidence on the record indicates very clearly that there were two other people who had access to the confidential information. The arbitrator exonerated the two other employees from being linked to the disclosure on two grounds. The first ground relate to the fact that they were earning a commission on the number of cars they serviced. The second reason, being that they had a strained relationship with Mr Mayer.

27. There is also evidence that indicates that there is a possibility that other employees could also have had access to this information with little difficulty. In this regard Mrs Marie Geringer one of the first respondent’s witness as in her testimony said (page 115, line 10 of the record):

“If someone else comes right into the office and looks in the board he will have access…”

28. Even after accepting the hearsay evidence the arbitrator failed to see that there was a serious gap in linking the applicant as the only person who could leak the information. The hearsay evidence presented before the arbitrator simply pointed out that the customer told the service manager that she was contacted by Mr Meyer who informed her that his services were cheaper than those of the third respondent. There is no evidence pointing out that the customer told the service manager whether or not Mr Meyer told her where he obtained her contact details.

Conclusion

29. In my judgment, the arbitrator’s inference, which as indicated earlier is based on hearsay evidence, is nothing but a speculation not supported by objective facts. In other words the inference that the arbitrator drew has no basis on the facts or the evidence. The material before the arbitrator does not support the inference he drew. It is patently clear that the arbitrator misdirected himself in that he failed to look at other possible inferences and in doing so failed to appreciate the task which was before him. And as a result his decision lacks rational objective connectivity to the facts which were before him. In the light of the above, the arbitration award issued by the arbitrator stand to be reviewed.

30. Having regard to the manner which the first respondent’s attorneys handled this matter, I am firmly of he view that the appropriate order is that of issuing costs at the highest scale against the respondent.

31. In the premises the following order is made:

1. The arbitration award issued by the third respondent is reviewed and set aside.

2. The matter is remitted back to the second respondent to be heard by an arbitrator other than the third respondent.

3. The first respondent is directed to pay the applicants costs on own attorney and client scale.

_________________

Molahlehi AJ

Date of Hearing : 29 March 2007

Date of Judgment : 01 June 2007

Appearances

For the Applicant : Ms R Edmonds of Ruth Edmonds attorneys

For the Respondent: Ms M Ntsoane of Snyman Attorneys

---