SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE LABOUR COURT OF SOUTH AFRICA
DURBAN

Case no: D2226/2018
Not Reportable

In the matter between:

VELAYUTHAN KISTEN GOVENDER	 Applicant

and

GENERAL SERVICE SECTORAL
BARGAINING COUNCIL	First Respondent

NKOSINATHI MKHIZE N.O.	Second Respondent

MEC FOR TRANSPORT
KWAZULU-NATAL PROVINCIAL GOVERNMENT	Third Respondent

Heard: 27 July 2022  
Delivered: 26 August 2022  

JUDGMENT

ALLEN-YAMAN AJ

Introduction

[1]	The applicant seeks to review and set aside an award handed down by the second respondent in terms of which he found that the dismissal of the applicant had been substantively fair, the applicant having referred a dispute to the first respondent in terms of section 191(5) of the LRA.

[2]	In view of the fact that the applicant launched his review application outside of the six-week time period allowed for him to do so in terms of section 145(1)(a) the applicant applied for an order condoning the late delivery thereof in terms of section 145(1A).

Background

[3]	The applicant was employed by the third respondent in the position of Senior Provincial Inspector with the Road Traffic Inspectorate, KwaZulu-Natal at the time of his dismissal. The original incident which gave rise to his dismissal occurred on 4 March 2015. It is common cause that on that day, in the course of the applicant performing routine vehicle check duties on the P188 public road at Freeland Park, Scottburgh he stopped a vehicle which was being driven by one Ms […] N [....] (‘the complainant’). She subsequently complained that certain of his conduct during the course of the check, as well as thereafter, had been inappropriate. 

[4]	The complainant reported the matter to the applicant’s superior, Mr Aboobaker, on 11 March 2015. The short delay was explained by her as having been occasioned by the fact that when she had first made telephonic contact with him the day after the incident, Mr Aboobaker had been booked off work on sick leave, and had only been scheduled to return to work on 11 March 2015.

[5]	As a result of the complainant’s report, the applicant was charged with the following acts of misconduct,

‘Charge 1
That on or about 4 March 2015 and at or near the road P188, Freeland Park, Scottburgh, you, whilst on official duty, committed an act of sexual harassment in that you asked inappropriate questions and made unwelcome advances to Ms […] N [....], a female driver of motor vehicle ND […] to the effect that:

Who does she, (Ms N [....]) stay with;
Whether she, (Ms N [....]) has a boyfriend;
Whether she (Ms N [....]) was on the pill; and
If he, (RTI Officer VK Govender) could visit her (Ms N [....]).

which questions and comments Ms N [....] found unwanted, inappropriate and offensive.

Charge 2
That during the period from 4 March 2015 to 31 March 2015 and at or near Scottburgh, you acted in an improper, disgraceful and unacceptable manner in that you made numerous harassing telephone and / or cell and / or communication aimed at Ms N [....] whether or not conversation ensued, who found such calls unwanted and inappropriate.

Charge 3
On 4 March 2015 and at or near P188, Freeland Park, Scottburgh you failed to ascertain the correct personal details of the driver of motor vehicle registration number ND […] and establish the correctness of the driver’s license produced to you by the driver Ms N [....], identity number […].

You issued a Section 56 Written Notice Number 50/102722/2584 to Ms […] N [....] with identity number […] for contravening the National Road Traffic Act, 93 of 1996 with motor vehicle registration number ND […] who was not present nor was she the driver of the motor vehicle.
As a result:
You defeated and / or obstructed the course of justice; and / or
You committed an act of dishonesty; and / or
You were grossly negligent in the performance of your duty as a Senior Provincial Inspector and / or Peace Officer.’

[6]	Upon the conclusion of the resultant disciplinary hearing, the applicant was found to have been guilty of all the infractions complained of and the sanction of dismissal was imposed. The applicant lodged an appeal against the decision taken to dismiss him, which appeal determined that the sanction of dismissal was to stand. His dismissal having been deferred to the date on which the appeal was determined, the applicant was finally dismissed on 25 October 2016. At the time of his dismissal the applicant had been employed by the third respondent for almost 30 years.

[7]	The applicant, then represented by the Public Servants Association of South Africa (‘the PSA’), referred a dispute to the first respondent on the applicant’s behalf on 3 November 2016. The applicant’s dispute, allocated case number GPBC 2390/2016, remained unresolved at the conclusion of conciliation proceedings which were held on 7 December 2016.

[8]	Again on behalf of the applicant, the PSA requested the dispute be enrolled for arbitration. The applicant summarised the facts of his dispute in the following terms,

‘Member charged for misconduct.
Allegations fabricated.
Member is a shopsteward – his rights were violated – fair procedure not followed.
Labour Relations Staff forces the Chairperson duly appointed to withdraw from case.
Complainant is a habitual traffic offender with a warrant of arrest pending against her.
She is a pathological liar.
Another chairperson was appointed who ignored the evidence before her.
We reserve the right to supplement this.’

[9]	Upon the conclusion of the arbitration proceedings, the second respondent issued the award which the applicant seeks now to challenge, the second respondent having found that the applicant’s dismissal had been substantively and procedurally fair.

Analysis

[10]	Only in the event that the applicant is granted condonation in respect of his having launched his review application outside the time frames which are prescribed will the review application itself be determined. The assessment of the merits of the applicant’s condonation application is to be undertaken with reference to the principles stated in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).

(a)	Length of delay

[11]	The first observation which may be made concerning the applicant’s application for condonation is that he did not specify the length of the delay in question, having failed to have articulated when, precisely, he received the award. All that was stated by him in this regard was,

‘Upon receipt of the award, I endeavoured to contact the representative of the Union that assisted me at the arbitration.’

[12]	The earliest date upon which he could have become aware of the award was the date of the award itself, being 21 May 2018. In consideration of the further allegations made by the applicant in his affidavit, the latest date upon which he could have become aware of the award was on 1 August 2018. Calculated with reference to the earlier of the dates, the review application was required to have been initiated on or before 3 July 2018. On the basis of having become aware of the award on the later date, the latest date for the initiating of the application would have been on 12 September 2018. 

[13]	The application was launched on 5 December 2018, evidently outside the time frame permitted. On the paucity of the facts provided by the applicant concerning when he became aware of the award I am, however, unable to discern the exact degree of the delay, having been left to speculate as to which of the two time periods, or some other time period between these two dates, may possibly apply. I am accordingly placed in a position in which I am requested to exercise my discretion to grant the applicant an indulgence in circumstances in which the length of the delay is unknown.

[14]	Whether the period is three or five months, or some period between the two, the length of the delay is not insignificant.

(b)	Reason for the delay

[15]	Upon examination, the assessment of the reasons proffered by the applicant for the delay do not fare better than the issue of the length of the delay itself.

[16]	The applicant alleged that upon receipt of the award he attempted to contact the representative of the trade union who had assisted him at the arbitration, but that due to his representative’s non-availability, the applicant was only able to meet with him one week later. His union representative required one or two days to peruse the award in order to offer the applicant an opinion. A decision was subsequently taken by the trade union that if the applicant wished to pursue review proceedings, he would have to do so at his own cost. This was conveyed to him in the first week of August 2018. It was at this stage that the applicant, ‘set about trying to obtain the services of an attorney and Counsel,’ and to raise the finances necessary to fund the litigation. The counsel who had been recommended to him was only available to see him in the third week of August 2018. He was advised by such Counsel that a copy of the transcribed record of the arbitration proceedings was then required to be given to him, which the applicant ‘set about obtaining.’ The applicant alleged that he experienced certain delays in obtaining the transcript, as evinced by correspondence which was addressed to the second respondent.

[17]	Consideration of the aforementioned explanation given reveals a number of deficiencies therein. The first, being that the applicant did not elect to take this court into his confidence and specify precisely when it was that he received the award, has already been mentioned. 

[18]	Upon receipt of the award, he stated that he ‘endeavoured’ to contact his union representative. He likewise chose not to disclose the timing or the manner of such endeavours, and nor when his endeavour was ultimately met with some success. On the applicant’s explanation, his trade union representative allegedly required a short period of time to consider the award. The identity of this trade union official has not been disclosed, let alone has a confirmatory affidavit by the individual in question been included in his explanation. 

[19]	The applicant did not explain when he secured the finances allegedly required to prosecute the review application.

[20]	On his version he enlisted the services of counsel who had been recommended to him, but who was only available to meet with him in the third week of August 2018. This of course, would have resulted in a further delay, in circumstances in which the award had been issued some months earlier. 

[21]	As regards the alleged need on the part of counsel for the transcript of the arbitration, the applicant alleged that he approached the second respondent but encountered certain difficulties which could be discerned from the correspondence he annexed to his founding affidavit. Consideration of the correspondence annexed to his founding affidavit reveals that the first request made for the transcription of the hearing was made by the applicant’s attorneys on 17 September 2018, at least three weeks after the alleged consultation with the applicant’s chosen counsel. 

[22]	Moreover, the basis upon which the applicant believed that the first respondent would provide a full transcription of the hearing rather than the merely the recordings has not been stated. The request for the transcription was reiterated two days later, pursuant to a telephone conversation between the applicant’s attorney and an official of the first respondent who, in turn, notified the applicant’s attorney on 19 September 2018 that she would update him as soon as the records had been received from the second respondent. The applicant’s attorney directed further requests on 20 September 2018, 26 September 2018 and 2 October 2018. On 9 October 2018 the first respondent notified the applicant’s attorneys of record that the CD was ready for collection on 9 October 2018 and would cost R30.00.

[23]	The purported need on the part of the applicant’s counsel to consider the transcript is not, however, borne out by the objective evidence before me. The record which was delivered by the applicant reveals that the transcriber completed the transcription of the recordings in question on 10 January 2019, some one month after the review application had been launched. It would appear then that it was, in fact, unnecessary to obtain a transcript of the evidence adduced at the arbitration in order to launch the review proceedings. 

[24]	In consideration of the explanation provided, there are many periods of time which are wholly unexplained. Moreover, where some type of explanation has been offered, such explanations are both uncorroborated by any supporting evidence and are unconvincing.

(c)	Prospects of success

[25]	For the applicant to be granted condonation in the circumstances of the lengthy delay coupled with his poor explanation, the applicant would be required to enjoy good prospects of success, which issue will now be considered.

[26]	Within his condonation application, the applicant articulated his prospects of success in the following terms,

‘I further submit that I have valid grounds upon which I seek a review and verily believe that the reasons as are set out later herein, indicate a reasonable prospect of the application being successful.’

[27]	The applicant has advanced three grounds upon which he premises his assertion that the factual findings of, and ultimate sanction imposed by, the second respondent were not those of a reasonable decision maker. The first two grounds relate to the second respondent’s assessment of the mutually contradictory versions presented by the complainant and himself. The applicant alleges that the second respondent ought to have concluded that the complainant’s credibility was seriously compromised. He alleges further that the second respondent ought also to have concluded that the probabilities favoured his version over that of the complainant’s. The third of his grounds of review is an assertion by him that, even if a finding of guilt on all the charges could have been sustained, the sanction of guilt was too harsh in light of certain mitigating factors.

[28]	The applicant is correct that, in assessing two mutually contradictory versions in trial proceedings, the second respondent was required to apply the test established in Stellenbosch Farmer’s Winery Group Ltd and Another v Martell & Cie SA and Others 2003 (1) SA 11 (SCA) which includes, amongst other factors, an assessment of both the credibility of witnesses and the probabilities.

[29]	The version of the complainant in respect of the incident which had transpired on 4 March 2015 was that she had been stopped by the applicant on a public road whilst he was on duty. He inspected her vehicle and noted that she was not wearing her seat belt and that one of the tail-lights of the vehicle she was driving was not functional. The applicant reached inside her vehicle and took both her expired learner’s license and her cousin’s driver’s license from where they had been, on top of the dashboard. He told her to follow him to where he proceeded to the State vehicle. He removed a book from its the back seat and proceeded to commence to write a ticket. Whilst completing the ticket he asked her for her address, which she provided to him. He then asked her who she lived with, and she replied that she lived with her family. He then asked her if he could visit her, to which question she did not respond. He enquired if she had cats, to which she responded in the negative. He asked her again if he could visit her and told her that if he could, he would pay her R600.00 fine for her. He asked her for her cellphone number, which she gave him. He then asked her what the initials on the driver’s licence stood for, which she told him. He then told her to sign the ticket, which she did. He then asked her if she was on the pill, whereupon she grabbed the ticket from him and drove away. 

[30]	On the applicant’s version, the stop in question was nothing more than a routine vehicle check, during which time he asked the complainant none of the questions alleged by her that he had asked. In addition, he testified that he had noticed a ‘For Sale’ sign in the rear window of the vehicle and asked her how much she was selling her car for. She told him that the price was R42 000.00, and he asked if this was negotiable. She told him to call her on her cellphone, which number was publicly advertised on the ‘For Sale’ sign.

[31]	The further version of the complainant was that she had, at the time of the incident, been on her way to church. Whilst at the church service that evening, she noticed a number which was not saved on her phone calling her repeatedly. As she was in a church service and then unable to speak, at approximately 18h00 she sent a text message to the unknown caller in which she indicated that she was then in church and would return the call later. She received another call from the same unknown number almost immediately thereafter. Believing that the call must relate to some type of emergency, she answered her phone. The caller identified himself as the applicant, whereupon she terminated the call. He continued calling her thereafter but she did not answer. At approximately 22h00 she switched off her phone. She turned it back on again early the following morning whereupon, at around 05h30, the applicant tried to call her again. By the time he stopped, the applicant had called her 16 times, including the call which she had answered whilst at church.

[32]	The applicant, whilst admitting to having called the complainant, testified that he did so only 6 times, and that he had done so for the purpose of discussing the purchase of her vehicle with her.

[33]	The second respondent preferred the version of the complainant, having found that, ‘there was no evidence or suspicion to find that the fourth witness [the complainant] was not credible or trustworthy,’ and that, ‘on a balance of probabilities that the applicant had in fact made the comments complained about, which contained sexual overtones and connotations.’

[34]	Two principles are of relevance in determining whether the applicant enjoys any prospects of success in relation to his complaints regarding the second respondent’s assessment of his own credibility and that of the complainant, as well as that regarding the second respondent’s assessment of the probabilities.

[35]	The first principle is that an appeal (in this instance a reviewing) court will only overturn findings regarding credibility and the probabilities if there has been a clear error or misdirection. This principle was confirmed by the Constitutional Court in Makate v Vodacome (Pty) Ltd (CCT52/15) [2016] ZACC 13,

‘In these circumstances, interference with the factual findings made by the trial Court is neither necessary nor justified. Ordinarily appeal courts in our law are reluctant to interfere with factual findings made by trial courts, more particularly if the factual findings depended upon the credibility of the witnesses who testified at the trial. In Bitcon, Wessels CJ said:

“[T]he trial judge is not concerned with what is or is not probable when dealing with abstract business men or normal men, but is concerned with what is probable and what is not probable as regards the particular individuals situated in the particular circumstances in which they were.”

In our system, as in many similar systems of appeal, the cold record placed before the appeal court does not capture all that occurred at the trial. The disadvantage is that the appeal court is denied the opportunity of observing witnesses testify and drawing its own inferences from their demeanour and body language. On the contrary, this is the advantage enjoyed by every trial court. Hence an appeal court must defer to the trial court when it comes to factual findings. In Powell & Wife, Lord Wright formulated the principle thus:

“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judges, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”’

[36]	The second principle is that in review proceedings such as these, the question to be answered is not whether the second respondent was correct, the question is whether his ultimate findings were ones which no other reasonable decision maker could have made on the evidence before him.

[37]	In consideration of the evidence before the second respondent, I am not persuaded that the decisions arrived at by him concerning either the credibility of the witnesses before him or the probabilities were decisions which were unreasonable. 

[38]	It was not unreasonable for the second respondent to have found the complainant to have been a credible witness and nor was it unreasonable for the second respondent to have concluded that the probabilities favoured the complainant’s version when:

1.	her version of what had transpired and the number of calls made to her telephone had remained consistent throughout the various proceedings in which she had been involved pertaining to the incident, which included the applicant’s disciplinary hearing, her application for a protection order against him, and statements made by her to the SAPS,

2.	her evidence pertaining to the number of missed calls from the applicant had been corroborated by another witness who had been shown the complainant’s telephone at the time of the complaint, and

3.	her version was supported by the affidavit evidence of an expert witness who explained that calls which were not connected would not show on itemized billing, and in the result the six telephone calls shown on the itemised billing were not necessarily the total number of calls made.

[39]	It was equally not unreasonable for the second respondent to have contemporaneously rejected the applicant’s version that he had telephoned her only for the purpose of purchasing her motor vehicle, given the timing and incessancy of the calls, and in circumstances in which the applicant had unwittingly admitted to having actually made at least ten telephone calls to the applicant whilst simultaneously persisting with his version that he had only made six.

[40]	The applicant’s third ground of review, that the second respondent’s finding in regard to sanction was unreasonable and unwarranted demonstrates a complete failure on the part of the applicant to have appreciated the gravity of the first two offences for which he was found guilty, to say nothing of the third. This much is demonstrable from the allegation made by him in his affidavit in support of his review application that,

‘As regards the comments and / or questions themselves, allegedly, posed by myself if on a stretch of the imagination one is inclined to believe that those questions were in fact asked, there is nothing overly sexual about them or offensive. There is not even an insinuation that I made any level of inappropriate comments about the complainant’s appearance, body physique or any overly suggestive remarks.’

[41]	The Labour Appeal Court condemned sexual harassment in Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JA17/2021) [2022] ZALAC 2, in which was stated,

‘Sexual harassment is at its core, concerned with the exercise of power and reflects the power relations that exist both in society generally and specifically within a particular workplace. In the workplace, such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive workplace equality. Where such harassment occurs at the hands of public officials who are enjoined to treat members of the public with respect and dignity, it offends not only against the constitutionally entrenched right to dignity, privacy and integrity but against the basic values and principles that govern the public administration. The result is that public services are accessed by members of the public in an environment which is hostile, intimidating and offensive.’

[42]	The effect of the applicant’s conduct on the complainant was unchallenged in cross-examination: her telephone remained switched off for lengthy periods of time so as to avoid the applicant’s calls, she became fearful of all traffic officials, she moved out of her own home to stay with relatives with whom she would feel safer, she consulted both a psychologist and a psychiatrist, and she required medication for a period of some six months.

[43]	Having been found by the second respondent to have sexually harassed the complainant on the side of a public road, whilst performing the duties of his office with the third respondent, the applicant was found further to have persisted in his harassment of her by telephoning her repeatedly in circumstances in which it would have been patently obvious to him that his advances were unwelcome. 

[44]	Had the applicant ever acknowledged any wrong-doing on his part and demonstrated a modicum of remorse, the sanction of dismissal may have been considered one which was harsh, given his long service. However, given the applicant’s complete lack of contrition, the second respondent’s conclusion cannot be faulted as being one which was unreasonable,

‘The applicant lacked any remorse for his conduct and it was reasonable for the 4th witness [the complainant] to submit that the applicant did not care about what he did and its effect on her but only cared about saving his job. The applicant opted not comment on a number of versions put to him including the version that a person who was found guilty of sexual harassment had no place in dealing with members of the public. In other instances the applicant tended to offer a bare denial instead of explaining the version put to him. It was therefore my finding that having considered the versions of all the witnesses holistically, the circumstances and the power relations at the time of the incident complained of, the probabilities and improbabilities, that the dismissal of the applicant was substantively fair and was effected in terms of a fair procedure.’

[45]	Accordingly, in consideration of the totality of the evidence which was presented at the arbitration, the award itself, the applicant’s stated grounds of review, and the legal principles involved in the consideration of the reviewability or otherwise of the award, I do not find that the applicant enjoys any prospects of success.

Conclusion

[46]	In the circumstances, where the applicant’s explanation for the indeterminate delay occasioned by him was not full, reasonable or convincing, and where he does not enjoy any reasonable prospects of success in his proposed review, the interests of justice will not be served by granting him condonation for the late delivery of his review application. The applicant’s application for condonation will accordingly be refused.

Costs

[47]	Whilst I have found that the applicant has not made out a case for the granting of condonation, I nonetheless do not find that the application was made vexatiously. For this reason, I do not intend to burden him with the third respondent’s costs of opposing the application.

Order

1.	Condonation for the late delivery of the applicant’s application to review and set aside the arbitration award under GPBC2390/2016 is refused.

2.	There is no order as to costs.

Kelsey Allen-Yaman
Acting Judge of the Labour Court of South Africa

APPEARANCES:
APPLICANT: Ms S Lushaba, briefed by Ayoub Kadwa & Co.
RESPONDENT: Mr A Christison, briefed by Matthew Francis Inc.