---

IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

                                                                                                            Not Reportable

Case no: C252/18

In the matter between:

MANGAUNG METROPOLITAIN MUNICIPALITY                             Applicant

And

SAMWU OBO LUNGI G MINI                                                            First Respondent

CHAIRPERSON OF THE APPEALS

TRIBUNAL                                                                                         Second Respondent

Date heard: 6 November 2019

Delivered: 20 February 2020

JUDGMENT

RABKIN-NAICKER, J

[1]     This is an application in terms of section 158(1)(h) of the LRA in which the applicant Municipality seeks the following relief:

          “1.That the Honourable Court condones the late serving and filing of this application.

          2. That the appeal outcome dated 26 February 2018 issued by Mr C Lamprecht is reviewed and set aside.

          3. That the sanction of dismissal issued by Dr J.P. van der Merwe dated 27 October 2017 is reinstated and upheld with immediate effect.

          4. Alternatively, that the appeal hearing be referred de novo to another Chairperson other than the Second Respondent.

          5. That any party opposing this application, be ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.”

[2]        This application was launched within a reasonable period and no condonation is required. Section 158(1(h) of the LRA provides that this Court may:     

            “(h)      review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law;”

[3]        In its various grounds of appeal, the applicant has sought to show that the appeal proceedings were unlawful, that the second respondent’s decision was unreasonable, that he misconstrued the nature of the enquiry, and that the decision was irrational. These grounds are consonant with the following dictum of the LAC in Hendricks v Overstrand Municipality & another[1]:

“[28] Besides being entitled to bring a review in terms of the common law, as I have explained, the first respondent is equally entitled to review the decision of the presiding officer on the ground of non-compliance with the constitutional principle of legality. As with review under PAJA such a review, based on the principle of the rule of law in s 1(c) of the Constitution, requires the decision to be categorised as an exercise of public power, which for the reasons already stated I accept that it is. Legality includes a requirement of rationality. It is a requirement of the rule of law that the exercise of public power by the executive and other functionaries should not be arbitrary.  Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with the rule of law.”

[4]        The factual background to the application as set out in the founding affidavit is as follows:

4.1         On 17 May 2017, employees of the Municipality, members of SAMWU embarked on an unprotected strike. On 19 May 2017 the High Court in Bloemfontein interdicted unlawful conduct by the employees on Municipal premises. The Labour Court in Johannesburg issued a rule nisi in respect of the unprotected strike on 9 June 2017 and this was confirmed on the 10 November 2017.

4.2         On the 19 May 2017 and throughout the period of the unprotected strike, a group of striking workers including Mr Mini (Mini) were captured on video footage. Mini and others were captured blockading the entrances of the Municipality and igniting and burning tyes on the tarred road of the Municipality with the result “that damage was caused to the tarred road by the blaze of fire’.

[5]     The charge against Mini was: ‘Damage to Municipal Property: That on or about May 19, 2017, the accused intentionally and illegally damaged Municipal property (tarred road by burning a tyre on Municipal property.’ He was found guilty of the charge by the Disciplinary Chairperson and dismissed on November 9 2017. Mini then noted an appeal of this sanction.

[6]     After a lengthy consideration of the evidence and arguments presented before the appeal tribunal, the second respondent made the following findings:

“FINDING

53. Presiding Officers in disciplinary hearings often have to grapple with the question of how “strict” to apply the law/legal principles during the proceedings. Apart from the burden of proof which is proof on a balance of probability and the general approach that the rules of natural justice are to be followed the application of for example the law of evidence is in the discretion of the Presiding Officer. Every Presiding Officer can essentially decide how and to what extent he/she is going to apply the law/legal principles to the matter before him/her. It is however submitted that  whenever a transgression for which dismissal may be an appropriate sanction is before a disciplinary tribunal the evidence submitted should be carefully considered with due consideration of the law/legal principles.

54. In relation to the ground of appeal worded as follows:

“The Presiding Officer found the Employee guilty on the charge of malicious damage to property even though the Employer did not prove any damages…”

I find that the Employer indeed failed to prove on a balance of probability that the Appellant had caused actual damage to the tar road.

55. In relation to the ground for appeal worded as follows:

“The presiding Officer found the Employee guilty on the charge of malicious damage to property…and accepted video evidence that was not authenticated.”

I find that the Employer indeed failed to prove on a balance of probability that the video material it introduced was authentic.

56. In relation to the motivation for a reduction or change in the sanction worded as follows:

“The Presiding Officer had a pre-determined sanction and emphasized an aspect that was irrelevant to the proceedings and unproven to the exclusion of personal circumstances and other factors.”

I find that the emphasis on the concept of arson by the previous Presiding Officer to be inapposite

            and

 that the previous Presiding Officer only considered the disciplinary record of the Appellant as a mitigating factor to the exclusion of any other mitigating factor.

          DETERMINATION

57. After listening to the recordings of the previous hearing, viewing the relevant video clip and considering the inputs made on behalf of the Appellant and the Employer, the Disciplinary Appeal Tribunal has decided to rule in the favour of the Appellant and set aside the finding and sanction imposed by the original Disciplinary Tribunal. The appeal has therefore been successful, which implies that the Appellant has been found not guilty of the alleged transgression.

58. The letter containing the finding and sanction imposed by the Presiding Officer of the original Disciplinary Tribunal will therefore be removed from the Appellant’s personal file.”

[7]     The grounds of review are set out in the founding affidavit as follows:

7.1         Appeals Authority appointed and exercised authority under the force of an invalid disciplinary code of no force and effect.

7.2         Appeals outcome irrational.

7.3         Considering issues not before the appeal’s tribunal and disregarding relevant evidence (Misconceiving the Enquiry).

7.4         Chairperson of the appeal tribunal conflated appeal with review.

7.5         Applied the ‘beyond reasonable doubt standard’ and not ‘balance of probabilities’ standard.

7.6         Failed to consider sections 188(2) of the Labour Relations Act 66 of 1995.

[8]        In the supplementary founding affidavit the applicant adds the following ground:

“3.1 The record of the appeal proceedings reveals an agonizing fact that the appeal proceedings were concluded without the record. This fact endorses the Applicant’s disquiet that the appeal proceedings suffered defects to the core.

3.2 It appears that the appeal proceedings did not have the actual viva voce evidence as presented at the disciplinary hearing and the video footage at the hearing of the appeal, that arguably formed the basis on which the appeal was founded…..”

[9]        The following paragraphs of the supplementary affidavit bear recording:

“4.1     Prior to the appeal hearing, the appeal’s tribunal met on 13 December 2017, as attested to by the record dated 13 December 2017.

4.2       It appears on this record dated 13 December 2017 that the purpose of the specific meeting described as follows by the Second Respondent:

“the purpose of today is really just for us to exchange this. I have now already received a copy of the Statement of Case, from the appellant. I have not received anything from the employer, but today is the time to exchange that. So that is the purpose for today.”

4.3 For the sake of completeness, the above meeting on 13 December 2017, was a by-product of a letter written by the Second Respondent informing the parties of his appointment and the terms governing his appointment. I annex this letter hereto as Annexure “SA1”.

4.4 In the aforesaid letter, the Second Respondent expressly excludes the calling of witnesses.

4.5 He makes no functional attempt to properly deal with how the appeal would then have the benefit of the evidence on record, because he did not have it, ignored or failed to have it for the appeal hearing.

4.6 Mention is only made in the meeting held on 13 December 2017, that the Chairperson will down load the recordings, and that was the last and the second occasion was when the Second Respondent confirmed that he had listened to the audio disciplinary hearing recordings on 1 or 2 December, almost a month before the appeal hearing. I attach his email message hereto as Annexure “SA 2”.

4.7 During the appeal hearing and on 30 January 2018, in more than one clash of views by the parties on what evidence was presented, no attempt was made to either have the audio record of the disciplinary hearing played or reference be made to the transcript. All of these divergent postulations were left to thrive unresolved and no resort had to the record, which record was both available and accessible.

4.8  It is mystifying, why resort was never had to the disciplinary hearing record including the transcript.

4.9  In the absence of the full and/or adequate record, the Second Respondent was in no better position to justly and rationally untie the discord between parties on the aspect of the evidence on record and would not have been positioned to hear the appeal and make a rational decision connected to the material placed before him.

[10]      The respondent’s plea to these averments is that they are not denied, but noted. What is ‘specifically stated’ however is that the procedure of the appeal did not render it invalid, unreasonable, or unlawful.

Evaluation

[11]     During the proceedings, and specifically in relation to the first ground of review, I requested the applicant’s Counsel to make available any document that had been circulated by SALGA regarding the setting aside of the Disciplinary  Code Collective Agreement. Circular 28 of 2016 was subsequently circulated to the parties and to the Court. It reflects that negotiations to replace the Code were ongoing. However, it records that SALGA informed all municipalities as per Circular 04/2016 dated the 27 January 2016, to the effect that they “should rely on the provisions of Schedule 8 of the Labour Relations Act (LRA) regarding the management of discipline.”

[12]      Subsequent to the receipt of this Circular, I have come to learn that in fact a new “Disciplinary Procedure Collective Agreement - 2018 to 2023” has been entered into. It came into operation on 1 February 2018 just after the appeal was heard.

[13]      In any event, the notion that the outcome of the appeal hearing should be declared invalid because of purported compliance with procedures set out in the invalidated Code is without merit. The noting of the appeal and the appointment of the appeals authority cannot be considered to be in violation of Schedule 8 of the LRA simply on the basis that procedures set out in the old Code were utilized. It should be recalled that the Code was set aside because it was not validly concluded[2] and not because the procedural steps contained in it did not meet the standards of fairness contemplated in Schedule 8.

[14]      The second ground of review involves the proposition that because Mini did not give evidence in the disciplinary hearing or call any witnesses to give evidence in rebuttal of the employers evidence at that hearing:

“..the appeal’s authority finding that the employee was not guilty on the charge of damage to property and his consequential reinstatement, was irrational and not one that a reasonable decision-maker could reach under the circumstances.”

[15]      In respect of the above proposition, the record shows that the second respondent considered whether on the employer’s version at the disciplinary hearing the charge was proven. The disciplinary hearing outcome was not a default judgment. In addition, Mini did not plead guilty to the charges. From the record before me, it is evident that the employer’s witnesses were cross-examined at that hearing. In these circumstances, it cannot be said that the second respondent was bound to find in favour of the applicant municipality or that the decision made by him was unreasonable simply on the basis that the Mini did not give evidence at the disciplinary hearing.

[16]      The third ground of review as pleaded by the applicant deals with the second respondent’s finding that the testimony of Mr. Venter was not that of an expert witness. It is the applicant’s submission that he made a finding on this when the statement of case on behalf of Mini did not include this issue. However, the said statement of case included in the record before me, contains a number of paragraphs in clause 4 thereof, which raise inter alia that Venter should not have been considered an expert witness. In my view consideration of his testimony was relevant to the issue of whether the applicant had proved its case at the disciplinary hearing, i.e. that damage was caused to municipal property by Mini.

[17]      It is further submitted that the second respondent did not state a basis for the ‘rejection’ of Mr Venter’s evidence. As the finding of the second respondent indicates he listened to the testimony at the disciplinary hearing. Moreover he considers in some detail the question of Venter’s evidence:

“10.     The Appellant questioned whether or not Venter qualified as an expert witness”. In an attempt to avoid this question the Employer representative countered by arguing that Venter was only called to provide information to the previous Presiding Officer and that the finding of the previous Presiding Officer was not based solely on only Venter’s testimony. It is a reality that Venter cannot be regarded as anything else than a witness. His testimony was led by the Employer Representative and he was cross-examined by the Appellant. The question is whether he qualifies as an expert witness.

11.       No evidence other than Venter’s employment as a Superintendent in the Sub-Directorate Roads and Storm Water regarding his qualification as an expert witness was provided. No evidence regarding the duties attached to his current position, his experience and/or training was offered. Therefore there was no real basis on which to determine whether Venter’s testimony could be accepted as that of an expert.

12.       Venter was a credible witness. However his testimony lacked specifics in respect of the incident involving the Appellant due to the fact that he never inspected the area where the tyre was set alight by the Appellant. Venter could therefore not “apply the theory” offered in his testimony to the previous hearing no matter how sound.

13.       Witnesses are normally called to testify because they can provide facts relevant to the case. Expert witnesses come to the hearing to give the tribunal the benefit of their expertise. The Presiding Officer has to satisfy himself/herself of the witness’ expertise and assess whether the evidence offered by the expert is capable of withstanding logical analysis. The Presiding Officer must satisfy himself/herself that the opinion has a logical basis.

14.       The only testimony offered in relation to damage was that of Venter. Venter in simple terms explained the possible consequence of a tyre burning on a tar road, however, he specifically stated that he never inspected the locality where the Appellant had burned the tyre. Venter was thus not in a position to testify the extent and the nature, if any, of the damage caused to the property of the employer.”

[19]      The above recordal in the second’s respondent’s finding on appeal belies the submission that he did not provide a basis for the non-reliance on Venter’s evidence. It is further evident if regard is had to the Presiding Officer’s report in the disciplinary hearing, that his finding of guilt on the charge for which Mini was dismissed was not based on Venter’s evidence but on one clip of the video evidence presented.

[20]      On the issue of the video clip, the applicant avers that the total disregard of this relevant piece of evidence was irrational and denied the employer a fair hearing. Reliance is also placed on the evidence of one Mothae at the disciplinary hearing. The second respondent had this to say about his evidence:

“35.     Mothae testified about being present in the Control Centre on several occasions watching like everybody in the Control Centre the video feeds from cameras at certain localities on the screens in the facility.

36.       Mothae conceded that he was not a technical expert and that he could not testify whether the video clip may have been doctored but added that the video depict3d real time events recorded as they occurred thus providing a true reflection. In essence Mothae’s testimony on this on this point is hearsay as he did not personally observe what he stated to be a true reflection.

37.       Mothae does not work in the Control Centre. Other than stating that the video material is stored on a server at the Control Centre he did not give any information regarding the method of capturing and converting clips of the video material which is understandable given that these matters could not be expected to be inside of the scope and extent of his knowledge.

 38.      No testimony by any person working in/attached to the Control Centre providing information regarding the functioning of the closed circuit television system was offered. Evidence was also not tendered regarding the making of the individual clips and it remains a mystery as to who actually made the clips. The chain of custody covering the period between the making of the clips and the showing thereof was not touched on by any witness.”

[21]      Given the above, the finding by the second respondent that the video clip evidence was not authenticated cannot be regarded as irrational[3] or unreasonable in the Court’s view. In any event, the Second Respondent’s finding that the damage to the tarred road was not proven brings the relevance of the video clip into question. In my view it cannot be said that his finding on the authenticity of the video evidence denied the employer a fair hearing.

[22]      The applicant further submits that the second respondent conflated appeal with review and his findings are akin to those in a review. This contention is novel but without merit and deserves no further attention.

[23]      A further argument put forward by the applicant in its founding papers is that the second respondent applied the criminal standard of proof and resorted to criminal law principles. This is simply not the case. While he did refer to the concept of ‘malicious damage to property’, this was in recording the appeal grounds and submissions relied on by the representative of the employee. He made his finding on appeal with reference to the civil standard required in disciplinary proceedings from which the appeal arose. 

[24]      Turning to the issue of the transcript of the disciplinary proceedings which the applicant highlights in its supplementary affidavit. The appeal finding makes clear that the Second Respondent made his decision having regard to the audio tape of the disciplinary hearing. In fact he summarizes the evidence given by the employer’s witnesses at that hearing in his finding. It was in fact the employee’s representative who made much of the fact that the disciplinary transcript/recording was not available at the appeal hearing. What is crucial in the Court’s view is that the Appeal Chairperson did have reference to that recording in making his decision. There is no allegation made that prior to the appeal hearing and in preparing its statement of response, the employer or employee, were unable to have the recording.   In fact the opposite is reflected in the record before me in that the record reflects that at the round-table meeting prior to the appeal hearing, the applicant’s Ms Radebe was in possession of the recording, and the second respondent received same from her. He also later  checked with her if there was any evidence given at those proceedings after that of Mr Venter.

[25]      For all the reasons set out above, I find that the decision of the second respondent is not susceptible to review. The application stands to be dismissed. Given that the applicant sought to review its own decision, it is equitable that it pay the costs of application. I therefore make the following order:

            Order

            The review application is dismissed with costs.

_________________

H. Rabkin-Naicker

Judge of the Labour Court

Appearances:

Applicant: P.T. Masihlehlo instructed by Phatshoane Henney  Attorneys

First Respondent: Tiann du Preez instructed by Kramer Weihmann Joubert Inc

---