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THE LABOUR COURT OF SOUTH AFRICA, DURBAN

  Not reportable

   Case No: D1148/18

In the matter between:

SOUTH AFRICAN SUGARCANE RESEARCH INSTITUTE                       Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION AND

ARBITRATION                                                                                        First Respondent

COMMISSIONER MANDLAKHE KHAWULA N.O.                                Second Respondent

WENDY LUNGILE HLENGWA                                                               Third Respondent

SENZO BRIAN ZULU                                                                             Fourth Respondent

FUNDISWA NDLOVU                                                                             Fifth Respondent

ZANELE PRETTY MKHIZE                                                                    Sixth Respondent

NOSPHIWE NGCIKWA                                                                          Seventh Respondent

Heard:           27 November 2019

Judgment:    This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down the written judgment is deemed to be 07 June 2021.

Summary:    Review application – well established test for review restated. Mutually destructive versions – technique to be followed in resolving disputes of facts – Commissioner substantially applied the correct technique. Review application dismissed.

JUDGMENT

MGAGA, AJ

Introduction

[1]        On 21 May 2018, the second respondent, commissioner Mandlakhe Khawula (“Commissioner”) issued an arbitration award (“award”) in favour of the third to seventh respondents in the following terms:

“[a]      I, accordingly find that the dismissal of the [third to seventh respondents] was substantively unfair and procedurally fair.

[b]        The [applicant] South African Sugarcane Research Institute is ordered to reinstate the [third to seventh respondents] on the same terms and conditions of employment that governed the employment relationship prior to dismissal.

[c]        The reinstatement shall operate retrospectively from 30 August 2017 to the date of this award being 20 May 2018.

[d]        As a result of the retrospective effect on the reinstatement, the [applicant] is ordered to pay the remuneration due to each [third to seventh respondents] in the amount of R29 760.90 within fourteen days of the [applicant] becoming aware or notified of this award.

[e]        The [applicant] is also ordered to pay to each [third to seventh respondent] any benefit that might have accrued to the [third to seventh respondents] had it not [been] for unfair dismissal.

[f]         [Third to seventh respondents] are to report for duty within three days of them receiving or becoming aware of this award.

[g]        I make no order as to costs.”

[2]        In this judgment I shall refer to third to seventh respondents jointly as respondents, unless reference is made to a particular respondent who shall be referred to by his or her surname.

[3]        Relying on section 145 of the Labour Relations Act[1] (“LRA”), the applicant approached this Court for an order to review and set aside the award on the basis that, ultimately, the Commissioner arrived at a finding no reasonable decision-maker could have reached having regard to the facts and evidence that was placed before him. 

[4]        The review application is opposed by the respondents. However, their answering affidavit was filed about five months out of time. The applicant filed a formal objection in terms of paragraph 11.4.2 of the Practice Manual, which prompted the respondents to file a substantive condonation application.

[5]        Having regard to the trite principles applicable to condonation applications as set out in  Melane v Santam Insurance Co Ltd[2] and amplified in Grootboom v National Prosecuting Authority & Another[3], it is in the interest of justice that the late filing of the answering affidavit be condoned, and it is so condoned. The prejudicial impact of the delay on the applicant will be addressed later in this judgment when dealing with remedy.

Relevant background facts

[6]        The following are the relevant background facts gleaned mainly from the applicant’s founding affidavit.

[7]        The respondents were all employed by the applicant as Biosecurity Team Inspectors in the applicant’s Biosecurity Unit for the uMzimkhulu area, until they were dismissed for misconduct on 30 August 2017.

[8]        As part of their duties, the respondents were required to survey the sugarcane farms of growers in the uMzimkhulu region for the Pest and Disease Control Committee. The respondents were divided into two teams, each reporting to a supervisor.

[9]        The respondents formed part of the same Biosecurity Team, and they all reported to Mr Lindelani Dazela (“Mr Dazela”), employed by the applicant as a Supervisor. Mr Dazela in turn reported to Mr Sifiso Thwala (“Mr Thwala”), employed by the applicant as a Technician for the uMzimkhulu area.

[10]     On 26 April 2017, Mr Dazela and the respondents attended training in Eshowe on the manner in which to identify pests and to observe the damage caused by pests to sugarcane in the Eshowe area. They travelled to Eshowe on the applicant’s vehicle (described as a van or bakkie) driven by Mr Dazela.

[11]     After the training had completed, on the way back Mr Dazela dropped Mr Thwala off at Sibaya Casino where Mr Thwala’s vehicle had been parked and proceeded to transport the respondents to Port Shepstone in the applicant’s vehicle.

[12]     En route to Port Shepstone, Mr Dazela stopped at the Mount Edgecombe service station at approximately 14h00 in order to re-fuel the vehicle. The respondents took this stop as an opportunity to request a comfort break, which Mr Dazela allowed.

[13]     During the comfort break, the Fourth Respondent (“Mr Zulu”), in full uniform proceeded to purchase a six pack hunters gold alcohol from the bottle store at the Mount Edgecombe service station (“service station”).

[14]     Prior to leaving the service station at about 14h15, Mr Dazela’s version is that he noticed the alcohol at the back of the applicant’s vehicle, and he cautioned the respondents not to consume the alcohol as they were all in uniform in the applicant’s vehicle and it was still during working hours.

[15]     Furthermore, according to Mr Dazela, despite this warning, the respondents proceeded to consume alcohol in the applicant’s vehicle, and even in the face of a further instruction from Mr Dazela to the respondents to cease consuming the alcohol, they continued to do so.

[16]     Mr Dazela reported the incident to Mr Thwala on 2 May 2017 as there had been an intervening long weekend on account of Public Holidays (27 April and 1 May). Subsequent to this, an investigation process followed which led to the respondents being subjected to a disciplinary hearing.

[17]     The essence of allegations of misconduct preferred against the respondents were as follows:-

17.1      Consuming alcohol whilst on duty and in the applicant’s on 26 April 2017;

17.2    Refusal to obey a direct and lawful instruction of Mr Dazela on 26 April 2017; and

17.3    Dishonesty in respect of information given during the investigation.

[18]     In addition to the above charges, Mr Zulu was also charged with purchasing alcohol on 26 April 2017 during working hours.

[19]     Following respective disciplinary hearings convened, the respondents were found guilty of the charges preferred against them and dismissed from the applicant’s employ.

[20]     Aggrieved by their dismissals, the respondents proceeded to refer an unfair dismissal dispute to the first respondent (“CCMA’) and the Commissioner was duly appointed to arbitrate the dispute.

Arbitration award

[21]     The Commissioner issued an award the terms of which are set out in paragraph [1] above. The underlying key findings made by the Commissioner are summarized hereunder.

[22]     The Commissioner found that no workplace rule existed at the applicant prohibiting employees from purchasing alcohol whilst in uniform and there was no workplace rule prohibiting employees from placing alcohol in the company vehicle.

[23]     The Commissioner further found that the applicant had failed to discharge the onus of proving that the respondents were guilty of consuming alcohol in the applicant’s vehicle during working hours. This conclusion is particularly based on his finding that the applicant’s witness, Mr Dazela, was not a truthful and reliable witness.

[24]     Regarding the credibility finding against Mr Dazela, the Commissioner found that there was material contradiction in his evidence regarding exactly when the respondents started drinking alcohol. Due to the importance of the credibility finding, I quote extensively from the award to demonstrate how the Commissioner motivated this finding:

“162.   There is a material contradiction in the evidence of Dazela regarding when exactly [respondents] drank alcohol.

163.    The first version was that he saw them as he was exiting the garage.

164.    The second version was that he saw them as he was entering the freeway.

165.    The third version is in his statement on page 4 Bundle B where he says that when [respondents] came back from the toilet, he saw that they bought a pack of hunters gold. He asked them why they bought alcohol because they were still on duty. They told him that if he wanted to report them he may do so, in the meantime they opened the cans and drank in front of him.

166.    In his evidence he stated that he saw the six pack as he was standing at the back of the bakkie checking if everyone was there before he drove off. That time Ndlovu was still standing outside.

167.    Clearly, according to his statement and the evidence as above stated, drinking started before he drove off whilst talking to the [respondents] outside the car hence he says in the meantime.

168.    This is also confirmed in the findings of the chairperson of the disciplinary hearing on page 85 of bundle A in paragraph 6.1.2 that Dazela’s evidence was that the team including the accused (Ndlovu) started consuming alcohol soon prior to the departure from Mount Edgecombe Engen Service Station.

169.    It is as a result of this version that the polygraph test examiner Van Biljoen asked Dazela a question as per Bundle A question R9 “Did you lie about anything in your statement regarding this drinking on duty incident at the garage?”

170.    If I am to accept the evidence of Dazela as true that drinking did not take place at the garage but as he was entering the freeway, I have to reject the polygraph test results pertaining to this question.

171.    On the other hand if Dazela was not telling the truth, why there was no deception detected in the test results.

172.    In my observation, Dazela was not a truthful and reliable witness.”

[25]     The Commissioner acknowledged that Mr Zulu was also not a good witness and that he lied about a telephone call purported to have been from his friend requesting him to buy alcohol at the service station, he nevertheless found as follows at paragraph 181 of the award:

“However, whilst I hold the view that he [Mr Zulu] is not telling the truth on this issue, it does not mean that the rest of his evidence was questionable.”

Grounds of review

[26]    Modelled on the provisions of s 145 of the LRA and the reasonable decision- maker test, the applicant contends that the Commissioner committed gross irregularity by, inter alia, failing to understand and/or apply his mind to the facts and evidence placed before him; exceeded his powers as an arbitrator by failing to properly assess the evidence placed before him; and arrived at an unreasonable finding which no reasonable decision-maker could have arrived at based on the material that was before him.

[27]     Regarding the credibility finding against Mr Dazela, the applicant strongly contends that the Commissioner committed gross irregularity by failing to take into account the evidence of Mr Dazela in its complete context and in a holistic manner having regard to the explanations he proffered as to what had taken place. It is submitted by the applicant that, having regard to the totality of Mr Dazela’s evidence, there are no contradictions regarding exactly when the respondents allegedly started drinking alcohol.

[28]     The Commissioner’s finding that there was no workplace rule prohibiting buying of alcohol and placing it in the company vehicle during working hours is attacked on the basis that he committed a material error of law and failed to consider material evidence. Whilst the applicant concedes that this workplace rule was not documented, it contends that this is one of those well-known workplace rules that did not have to be documented.

[29]     It is further contended by the applicant that the Commissioner failed to deal with contradictions in the evidence of the third and fourth respondents, and failed to resolve factual disputes.

[30]     The respondents contend that none of the grounds of review have merit. In essence, they support the award and contend that, overall, it is a reasonable award that falls within the elastic bounds of reasonableness.

Test for review

[31]     It is now settled law that the ultimate question to be answered in a review application based on s 145 of the LRA is whether the arbitration award in question is one that could have been made by any reasonable decision-maker based on the totality of material that was properly before the arbitrator. In order to achieve expeditious and effective resolution of labour disputes, and to preserve the principle of finality of arbitration awards, in its wisdom, the legislature resolved that arbitration awards must not be easily assailed, hence the onerous requirements that must be met by an applicant in a review application. Indeed, to satisfy the requirements for review of an arbitration award is akin to climbing Mount Everest – extremely difficult and treacherous, but not impossible. 

[32]     Most recently, in Securitas Specialized Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[4], the Labour Appeal Court (“LAC”) restated the test for review as follows:

“[19]     The test for review is this: "Is the decision reached by the arbitrator one that a reasonable decision-­maker could not reach?" To maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator's award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator's reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.

[20]      This Court has eschewed a piecemeal approach to a review application by the Labour Court. The proper approach is for the Labour Court to consider the totality of the evidence in deciding "whether the decision made by the arbitrator is one that a reasonable decision­-maker could make." (footnotes omitted and emphasis is mine)

[33]     In the often cited dictum of the LAC in Head of the Department of Education v Mofokeng and Others[5], the limited scope of the test for review was laid bare as follows:

“[32]   However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LRA, confining review to 'defects' as defined in s 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.”

[34]     I now turn to consider whether the decision reached by the Commissioner in this case is the one that could not have been reached by any reasonable decision-maker based on the totality of the material that was properly before him.

Evaluation

[35]     The most critical finding by the Commissioner is the credibility finding against Mr Dazela which prompted the conclusion that the applicant failed to prove that the respondents drank alcohol in the applicant’s vehicle during working hours.

[36]     The Commissioner was faced with two mutually destructive versions. On one hand, Mr Dazela (the only eye-witness for the applicant) testified that he saw all five respondents drinking alcohol in the vehicle all the way from Mount Edgecombe to Port Shepstone where he dropped them off. On the other hand, two of the respondents who were chosen to testify for all respondents (Mr Zulu and Ms Hlengwa) testified and emphatically denied that they drank alcohol in the vehicle. Ms Hlengwa, who was corroborated by Mr Zulu in all material respects, testified that she does not drink alcohol at all[6]. She further testified that amongst all respondents only Mr Zulu drinks alcohol but on the day in question he did not drink.

[37]     The record reveals further contradictions in Mr Dazela’s evidence. For example:

37.1    Mr Dazela’s version that the respondents started drinking alcohol at the service station is confirmed by another witness for the applicant, Mr Thwala. He testified that he was told by Mr Dazela that he (Mr Dazela) saw the respondents drinking alcohol whilst he (Mr Dazela) was busy with the petrol attendant at the service station. This is what appears in the record during cross examination of Mr Thwala by Mr Zulu:

“[Mr Zulu]       So what [Mr Dazela] reported to you, he said how many people who bought alcohol?

[Mr Thwala]   The only thing he said, he said the team bought alcohol and also the team used that alcohol. So he only saw you guys drinking while he was attending the petrol attendant but when he …[inaudible] he saw you guys drinking.”[7]     

37.2    At the disciplinary hearing of Ms Ndlovu, Mr Dazela testified that when the respondents ignored his warning no to drink alcohol, he took no further actions[8]. However, at arbitration Mr Dazela testified that after the respondents  ignored his warning he called Ms Mkhize to the side and told her to tell the other respondents that they must not consume alcohol. He said he did this because even at work when the respondents did not want to take his instructions he would talk to Ms Mkhize and they would listen to her[9]. This contradiction was put to Mr Dazela during cross examination, and it was properly put to him that it was an after-thought because he could not have called Ms Mkhize to the side as he (Mr Dazela) had testified that all respondents except Ms Ndlovu were already seated at the back of the vehicle[10]. Mr Dazela could not provide satisfactory answers to these apparent contradictions.

37.3    Lastly, in his written statement Mr Dazela stated that when he questioned the respondents as to why they bought alcohol whilst still on duty, they said that if he wanted to report them he could do so, clearly showing that they were not bothered[11]. However, at arbitration Mr Dazela testified that the respondents asked him not to report them[12].

[38]     In addition to the contradictions he identified in Mr Dazela’s evidence, the Commissioner proceeded to consider the probability of Mr Dazela’s entire version and found that it was not probable. In my view, there is nothing unreasonable about this finding.

[39]     As a possible motive for fabricating a story against the respondents, the Commissioner found that there was evidence of bad relationship between the respondents and Mr Dazela[13]. Mr Thwala also testified about this bad relationship[14]. The evidence also shows that the respondents had previously complained to Mr Thwala about Mr Dazela’s bad driving. Even on the day in question Mr Thwala had to warn Mr Dazela about speeding[15].

[40]     Regarding resolving mutually destructive versions, in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others[16], it was held:

“[5]       On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness's reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail." (My underlining)

[41]     Although the Commissioner did not refer to Stellenbosch Farmers’ Winery Group case or any other authority on resolving factual disputes, what he did is substantially in accordance with the technique referred to in Stellenbosch Farmers’ Winery Group case and the prevailing case law in general. The Commissioner was mindful of the irreconcilable versions between Mr Dazela and the respondents. In order to resolve the dispute of facts, the Commissioner, inter alia, considered internal contradictions in Mr Dazela’s evidence; probability of his version and the possible motive for fabricating a story.

Conclusion

[42]     Once Mr Dazela, the only eyewitness for the applicant, was reasonably found to be an unreliable witness whose version was improbable and he had a possible motive to lie, it follows that the applicant could not discharge the onus of proving that the respondents drank alcohol whilst in the applicant’s vehicle during working hours.

[43]     Clearly, the Commissioner did not misconceive the nature of the inquiry he had to undertake, and he did arrive at the conclusion to which any reasonable decision-maker could have arrived based on the material that was properly before him.

[44]     The additional charge levelled against Mr Zulu of purchasing alcohol during working hours and placing it in the applicant’s vehicle pales into insignificance. Having regard to the evidence that was before him, the Commissioner’s conclusion that the applicant failed to prove the existence of this workplace rule, is not unreasonable. Even if Mr Zulu could have been found guilty of this charge, it cannot be seriously contended that dismissal would have been a fair and appropriate sanction.

[45]     Given the stringent test for review, overall, this court is not satisfied that the applicant has made out a case to successfully review the Commissioner’s award. There is no discernible basis for this court’s interference with the award.

[46]     Lastly, I sincerely apologise to the parties for the undue delay in preparing and finalizing this judgment. The delay was mainly caused by unforeseen personal circumstances.

[47]     Having regard to the undue delay in finalizing this judgment as well as the respondents’ delay of about five months in filing their answering affidavit, it would not be just and equitable to burden the applicant with full backpay for the period after the issuing of the award. Any backpay that may be due to the respondents for the period after the issuing of the award must be reduced by an amount equivalent to nine months’ remuneration.

[48]     It is in accordance with the requirements of law and fairness that each party pays its own costs.

Order

[49]     In the result, I make the following order:

1.         The late filing of the answering affidavit of the third to seventh respondents is condoned.           

2.         The review application is dismissed.

3.         Any backpay that may be due to the third to seventh respondents for the period after the issuing of the arbitration award must be reduced by an amount equivalent to nine months’ remuneration.

4.         There is no order as to costs.

S.B. Mgaga AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the applicant:                             Mr I. Lawrence of Edward Nathan Sonnenbergs

For the 3^rd to 7^th respondents:       Ms P.N. Mhlongo of Legal Aid South Africa

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