Evidence
- Marius Scheepers
- 2 hours ago
- 146 min read
Estoppel
Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 6 2025 [Copyright: Marius Scheepers/15.7.1])
Estoppel, Evidence.
Estoppel
The principle of estoppel has been held to be applicable in the field of labour relations. This was confirmed in the case of Chamber of Mines of SA v NUM 1987 (1) SA 668 (A) and in Maluti Transport Corporation Ltd v MRTAWU & Others (1999) 9 BLLR 887 (LAC),
JR514/08
South African Revenue Services v CCMA & Others
must put party's version
JR603/2015
Glencore Operations South Africa (Pty) Ltd v Malapane and Others (JR603/2015) [2017] ZALCJHB 5 (5 January 2017)
It was not put to her during cross examination that this would be argued at the end of the matter nor was she given a chance to comment on any suggestion that she was evasive or refused to answer questions whose answers would be damaging to the Applicants case. It is a requirement that a witness be confronted with what will be argued so that they have an opportunity to comment thereon.
must be pleaded
JR322/15
Rademeyer v Aveng Mining Ltd and Others (JR322/15) [2017] ZALCJHB 257 (28 June 2017)
Amplats Management Services (Pty) Ltd v Van Jaarsveld (2007) 28 ILJ 2669 (SCA)
Menne undoubtedly had authority to enter into a contract of secondment with the respondent (and with Rustenburg Platinum Mines). This was confirmed by Emmett. But he clearly had no authority to bind the appellant to the contract of employment which, it is alleged, he entered into with the respondent. Menne was a senior member of staff, he knew full well the procedures involved for the appointment of personnel to head office and the need for such appointments to be approved by the ADCO. In these circumstances, it is most unlikely that he would ever have purported to bind the appellant in the manner alleged by the respondent. The probabilities are overwhelming that he would have done no more than express a view, however strongly, that at the end of the secondment period the respondent was likely to be appointed or that he, Menne, would use his best endeavours to procure an appointment for the respondent. On the respondent's case Menne would have had to deliberately exceed his authority knowing full well what the appointment procedures were. This is unlikely, to say the least.
[51] Insofar as the applicant may rely on the contention that the first respondent is somehow prohibited from relying on the lack of authority of Sinclair, or the need to have followed proper recruitment processes, this would be nothing else but a case of estoppel. That being so, the difficulty the applicant has is that a case of estoppel was never pleaded or made out in evidence.
Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter 2004 (6) SA 491 (SCA) at para 7
Our law is that a person may be bound by a representation constituted by conduct if the representor should reasonably have expected that the representee might be misled by his conduct and if in addition the representee acted reasonably in construing the representation in the sense in which the representee did so.'
Bester NO and Others v Schmidt Bou Ontwikkelings CC 2013 (1) SA 125 (SCA) at para 17. See also Van Deventer v Ivory Sun Trading 77 (Pty) Ltd 2015 (3) SA 532 (SCA) at para 44; Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others 2011 (2) SA 508 (SCA) at para 19.
Broadly stated, the concept of estoppel, borrowed from English law as applied by our courts, amounts to this: when a person (the representor) has by words or conduct made a representation to another (the representee) and the latter acted upon the representation to his or her detriment, the representor is estopped, that is precluded, from denying the truth of the representation (see eg Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 at 49).
Absa Bank Limited v IW Blumberg and Wilkinson [1997] ZASCA 15; 1997 (3) SA 669 (SCA) at 681G-H.
Plainly a party wishing to rely on estoppel must plead it and prove its essentials ..
Maluti Transport Corporation Ltd v MRTAWU and Others [1999] 9 BLLR 887 (LAC) at para 57.
It is trite that an estoppel must be pleaded. At the very least it must be debated in cross-examination. ..
induce further evidence
JA49/2020
Regenesys Management (PTY) Ltd t/a Regenesys v Nortje and Others (JA49/2020) [2022] ZALAC 96 (18 July 2022)
[24] As to the third appeal ground, namely the refusal of the Labour Court to allow the appellant to adduce further evidence related to the remedy of reinstatement as inappropriate relief, I am not persuaded that the Labour Court erred in refusing to allow such further evidence to be adduced. The appellant brought the application after it had closed its case. The Labour Court, placing reliance on Coetzee v Zeitz Mocaa Foundation Trust and others[10] and Mkwanazi v Van der Merwe and another,[11] had regard to the considerations relevant to the determination of such an application. These included the reason why the evidence was not led timeously, the degree of materiality of the evidence, the possibility that it may have been shaped to relieve the pinch of the shoe, issues of prejudice, the stage that the litigation has reached, the healing balm of an appropriate costs order, the general need for finality in judicial proceedings and the appropriateness of making the order sought.
The dismissals of the second, third, fifth and seventh applicants are found to be substantively unfair;
[10] The multitude of incidents mentioned by the several witnesses were supposed to have occurred during a period of up to two years prior to her suspension and many, but not all, were only vaguely located in time. The tenor of the appellant's defence was threefold: (1) to deny certain alleged incidents occurred at all; (2) to admit certain other incidents but to offer a rebuttal of the interpretation placed on them by the witnesses; and (3) to respond that she had no recollection of an alleged incident but to deny that the spin put on it by the witnesses was appropriate
JA125/2021
Makuleni v Standard Bank of South Africa Ltd and Others (JA125/2021) [2023] ZALAC 4 (8 February 2023)
[16] The first ground is that the absence of an apparent motive to lie is not a helpful tool with which to determine either credibility or reliability. The once too frequent observation, long ago, by courts that a policeman had no motive to lie has been discredited for generations; it cannot be allowed to leak back into our forensic toolbox in diluted form.
[17] The second ground is that the Labour Court held, on the facts, that there was no evidence of a motive to lie or to distort what had truly occurred and to. catastrophize an incident to paint the appellant in a bad light; ergo, the nine witnesses were to be believed. This is an untenable conclusion.
[18] The second misdirection was that, because there was no proof of a conspiracy among the witnesses, the correspondence of their several tales constituted a type of self-supporting corroboration. This criticism overlooks where the onus lay. Moreover, it is another example of fallacious forensic analysis - a variation of where there is smoke there must be fire Although it is a valid consideration that where similar fact evidence exists it must be considered and, where appropriate, given weight, it cannot of itself be taken as dispositive of the truth.
[19] A third questionable criticism of the award, by the Labour Court, is the notion that the commissioner examined the evidence piecemeal and failed to weigh it holistically. The award traversed the high points of the evidence in a cursory vein, but nevertheless, the commissioner articulated his conclusion as being dictated by his assessment of the probabilities. The contention is advanced that the commissioner focused on technicalities and adopted a piecemeal approach.
[21] A fourth aspect is the question of why the witnesses did not complain at the time the incidents occurred. This notable omission was treated quite differently by the commissioner and by the Labour Court. The excuse given by the witnesses was that they were too scared to come forward, being intimidated by the appellant. The commissioner rejected that as unconvincing.
[23] Fifth, it was argued in the appeal that the commissioner exhibited a bias by interfering in the presentation of the case. This is an unjustified perspective of the commissioner's conduct. Commissioners are expected to assist an unrepresented litigant. In my view, he did no more than that.
[29] The greater part of the evidence was that the staff were subjected to a barrage of rebukes about poor performance, said to be often made in the company, of others, delivered rudely or shouted, which upset the witnesses. Included in this were allegations of jibes aimed at the person; criticism of the alleged breach of the dress code, not standing when serving a customer, late-coming and derision at what was said to be inadequate excuses, and many more. The principal difficulty with this sort of grievance is to furnish sufficient details so that the occurrences could be properly, addressed by the person accused of causing the upset to be either rebutted or explained. The charges were plainly drafted in vague terms because very few such episodes could be identified as to time and context.
"[31] The degree of robustness which characterises the reality of CCMA arbitrations is exactly the rationale for subjecting them to a review and not an appeal. The courts must be cautious not to undermine the legislative intent.
[32] The review court's rationale for setting the award aside cannot stand."
Issue estoppel
JS362/2022
Public Servants Association of South Africa obo Members v South African Revenue Services (JS362/2022) [2025] ZALCJHB 146 (2 April 2025)
[38] The defence of issue estoppel describes instances where a party can successfully plead that the matter at issue has already been finally decided even though the common law requirements of res judicata have not all been met.[Royal Sechaba Holdings (Pty) Ltd v Coote and Another [2014] ZASCA 85; [2014] 3 All SA 431 (SCA) at para 12.] Issue estoppel is more extensive in its reach than the doctrine of res judicata, in that a final judgment not only operates as a defence to the same cause of action but also estops the parties from later disputing any point of fact or law which was essential to the decision made by a tribunal.[Smith v Poritt and others 2008 (6) SA 303 (SCA); [2007] ZASCA 19 at para 10.]
"[39] Issue estoppel allows a court to dispense with the two requirements of same cause of action and same relief, where the same issue has been finally decided in previous litigation between the same parties.[14] At the same time, however, our courts have realised that relaxation of the strict requirements of res judicata in issue estoppel situations creates the potential of causing inequity and unfairness that would not arise upon application of all three requirements.[15]
"
"[40] The essence of issue estoppel was distinguished from res judicata in the strict sense by Brand JA[16] as follows:
‘Hence, our courts have been at pains to point out the potential inequity of the application of issue estoppel in particular circumstances. But the circumstances in which issue estoppel may conceivably arise are so varied that its application cannot be governed by fixed principles or even by guidelines. All this court could therefore do was to repeatedly sound the warning that the application of issue estoppel should be considered on a case-by-case basis and that deviation from the threefold requirements of res iudicata should not be allowed when it is likely to give rise to potentially unfair consequences in the subsequent proceedings (see e.g. Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 676B – E. That, I believe, is also consistent with the guarantee of a fair hearing in section 34 of our Constitution.’"
[41] The Constitutional Court has cautioned that the “same issue” enquiry is whether an issue of fact or law was an essential element of the judgment on which reliance is placed. Accordingly, each case will depend on its own particular facts, and any extension of issue estoppel will be done on a case-by-case basis, with the relevant considerations including questions of equity and fairness to the parties and also to others. A failure to carefully circumscribe the defence of res judicata and, by extension, issue estoppel may cause hardship and injustice.[17]
"[42] Having considered the above-mentioned principles and having applied them in this matter, I am satisfied that the same issue does not arise in the applicant’s claim based on section 77(3) of the BCEA and the unfair labour practice dispute which was arbitrated in terms of the LRA. The CCMA proceedings were concerned with the fairness of the respondent’s withdrawal and non-payment of the leave encashment claims.
[43] I have considered submissions from both parties, and I believe it would be patently inequitable and unfair to deprive the applicant of the right to a fair hearing and giving them an opportunity to pursue their contractual rights."
[47] My understanding is that the current claim of the applicant is contractual in nature and has nothing to do with the ‘application or interpretation’ of the collective agreement. The contractual entitlement of the applicant’s members to encash their leave days does not fall within the ambit of interpretation or application; as such, it cannot be referred to private arbitration or the CCMA in terms of clause 15 of the collective agreement. I am not persuaded that the respondent has discharged its onus to prove that the existence of an arbitration clause in a collective agreement ousts the jurisdiction of this court to determine the applicant’s contractual claim as pleaded.
Evidence
Evidence
Hearsay
JA33/99
Southern Sun Hotels
Without prejudice
privilege is to allow people to try to settle their disputes without fear that what they said would be held against them if the negotiations fail. Noted further that partial disclosure of privileged information may result in a loss of protection entirely. [A party] cannot be allowed, after disclosing as much as he pleases, to withhold the remainder
C402/99
NUMSA & Others v Africa
telephonically in the absence of consent
parties must be able to at least hear the evidence given and see the person who is giving the evidence. Failure of any one of the above renders the whole process nugatory. This is so because a party against whom the evidence is led, is not able to question what was said or able to know with any degree of certainty that the witness is who he or she purports to be
C595/99
Tshabalala v CCMA & Others
Noted that generally a witness is not entitled to read from a prepared statement, although it is permitted in certain situations (eg the reading of contemporaneous documents). Noted further that the Commissioner had been mindful that not much weight could be placed on the statement.
C1123/01
Serenite Wellness Centre (Pty) Ltd v CCMA & Others
Video recordings
its admission and the weight to be attached to it; it had been open to either party to lead expert evidence on the authenticity of the tape and in the absence of such evidence the Commissioner was entitled to decide on the authenticity of the tape by listening to it
D889/02
Sugreen v Rycroft NO & Others
video footage
any such video recordings used in a tribunal should be authenticated if reliance is to be placed on them. [7] During the arbitration the witness clearly denied that she was the person on the video
JR 1568/02
Moloko Salphina v Commissioner Ntsoane Diale; CCMA & Hyperama (Mayville)
Noted that some leeway should be granted to an employer in applying the audi alteram partem rule flexibly, but that when relying solely on a letter of complaint the employee has the right to challenge her accusers directly
C682/03
The Magic Company v CCMA, Mazwi V & Phete E
cross-examination
essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness (Van Tonder v Killian NO & Andere (1992 (1) SA 67 (T)
JA 45/03
ABSA Brokers (Pty) Ltd v Moshoana, GN N.O.; CCMA; Van Staden, J P
parole evidence rule
the Court ought not to be precluded from looking at matters outside the agreement as that would be interfering with the objective determination of the jurisdiction of the Court
JA30/02
Denel (Pty) Ltd v Gerber J E F
Employee failing to testify under oath; Commissioner had omitted to caution Mr Klaasen about the dangers of not testifying; failure to caution constituted a reviewable irregularity and that this was supported by Scholtz v Maseko & Others ([2000] 9 BLLR 1111(LC)).
C260/03
Klaasen, OFA v CCMA; Commissioner CJ Wessels N.O. & Alexkor Ltd
Medical certificate
the certificates in this case were not, as laid down in Hart v Pinetown Drive-In Cinema (Pty) Ltd (1972 (1) SA 464 (D)) in the form of affidavits, and were therefore hearsay evidence. Noted further that s 3(4) of the Evidence Act made it clear that affidavits from the doctors themselves were required
DA11/03
Mgobhozi, S E v Naidoo, R (arbitrator); Durban Metropolitan Bargaining Council & Durban Metropolitan Council (Housing)
Hearsay
to s 3 of the Evidence Act it was noted that hearsay evidence remained inadmissible in civil and criminal cases. Also noted that hearsay evidence was held to be occasionally admissible, according to the circumstances, as provided for in s 138 of the Act
JR1173/03
Swiss South Africa (Pty) Ltd v Louw, K N.O.; CCMA & Narayen, G
CCMA
arbitrators failure to advise party to call
failure to advise the employer to call additional witnesses did not amount to a reviewable irregularity.
JR1734/03
Bafokeng Rasimone Platinum Mine v CCMA; Molebalwa, S N.O.; NUM & Mashabane, T
proof on balance of probabilities
Reviewable if stricter proof is required; see Potgietersrus Platinum Ltd v CCMA & Others (1999) 20 ILJ 2679 (LC) & Markhams v Matji NO & Others [2003] 11 BLLR 1145 (LC)
JR 782/05
Avril Elizabeth Home for the Mentally Handicapped v CCMA; Zwane, B N.O.; NEHAWU & Mvumvu, J
Hearsay
Transcript of disciplinary hearing; the arbitrator took the view that arbitrations were hearings de novo and that the recording of the disciplinary hearing could not be accorded any weight since it amounted to hearsay; reflected that Mr Maduna had been given a fair hearing; s 3 of the Evidence Law Amendment Act 45/1988 clearly permitted hearsay evidence in certain circumstances.
JR2001/05
Rand Water v Legodi, M N.O.; SA Local Government Bargaining Council (SALGBC); CCMA; The Director of the CCMA & SAMWU obo Maduna, M
Circumstantial evidence
Principles to prove
the inference sought to be drawn must be consistent with all the proved facts; the true facts also 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.
JR1877/04
NUMSA & Another v Kia Motors & Others
Video recording
JR2980/05
Mercurius Motor Transport v Moletsane N.O. & Others
circumstantial evidence
it was able to infer from the proven facts that the employee was probably taking part in corrupt activities
JR158/06
Dipaleseng Municipality v SALGBC & Others
Witness present at hearing
The court stated that, as a general rule, witnesses were normally required to wait outside a courtroom before they gave their evidence, but that this rule was not as strictly enforced in arbitration proceedings. The court held that the appropriate approach would be for commissioners to warn potential witnesses of the possible adverse consequences of them being present during the testimony of other witnesses. Probative value of the witness’s evidence in such a situation would depend on the extent to which the witness was influenced by the evidence
JR955/07
Alstom Electrical Machines (Pty) Ltd v CCMA & Others
Polygraph test
Results should be weighed up as part of totality of evidence
JR789/07
Truworths Ltd v CCMA & Others
Witness present at hearing
failure to produce a witness who was available and clearly able to give relevant evidence, led to an adverse inference being drawn.
Other case law cited
Elgin Fireclays Ltd v Webb 1947 4 SA 744 (A),
C218/06
Airey & Others v GE Security (Africa)
Breathalyzer test; if a factor in a specific matter was a critical one, the commissioner had to consider it, even if neither of the parties raised it.
Other case law cited
Maepe v CCMA and Others (2008) 29 ILJ 2189 (LAC)
D483/06
Arangie v CCMA & Others
circumstantial evidence
assumptions did not render the inference drawn the most readily apparent and acceptable inference possible; insufficient evidence to link employee to wrongdoing
JR1439/06
NUM & Another v CCMA & Others
disclosure of information had to be in the form of facts.
(1) disclosure of information, (2) regarding any conduct of an employer or employee of that employer, (3) made by any employee who had reason to believe, (4) that the information concerned showed or tended to show one or more of the listed improprieties.
Protected Disclosure Act
JS140/08
Radebe & Another v Mashoff & Others
disclosure of information had to be in the form of facts. disclosure that was considered to be worthy of protection was a disclosure of information that was, on a prima facie basis, carefully documented and supported
Other case law cited
Greve v Denel (Pty) Ltd 2003 (4) BLLR 366 (LC),
JS140/08
Radebe & Another v Mashoff & Others
circumstantial evidence employer not discharging onus in establishing prima facie case
D352/06
Adcan Marine v CCMA & Others
doctrine of collective guilt
There was no attempt by the employer to investigate the causes and circumstances of the ostensible loss of production by way of any individual enquiry.
JS105/07
TAWUSA obo TAU & 305 Others v Barplats Mine Ltd (Crocodile River Mine)
doctrine of collective guilt
The disciplinary proceedings were arbitrarily and precipitously launched against the whole of the employees division. This was an unqualified application of the doctrine of collective guilt and the mass dismissal which ensued was indisputably unfair
JS105/07
TAWUSA obo TAU & 305 Others v Barplats Mine Ltd (Crocodile River Mine)
video camera
JR243/05
Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others
section 3(1) of the Law of Evidence Amendment Act 45 of 1988
Hearsay
Admissible
C814/06
NUM obo I Kgapeng v CCMA & Others
s 3(1) of the Law of Evidence Amendment Act 45 of 1988
C814/06
NUM obo I Kgapeng v CCMA & Others
Polygraph test
Not on its own conclusive proof
Credibility of witness
JR1595/08
Sasol Mining (Pty) Ltd v Commissioner Nggeleni & Others
had made no reference to weighing the evidence on the probabilities
P394/09
Pernod Ricard South Africa (Pty) Ltd v CCMA & Others
Can not only rely on credibility of witness
JR 2802/09
National Field Marketing (Pty) Ltd v Mngezana NO and Others
Derivative jurisdiction and principle of common purpose
given the opportunity to tell the employer the truth
probabilities the officers were involved
C655/09
SAMWU obo Abrahams and Others v City of Cape Town and Others
Single witness
Caution rule
Does not apply in civil matters and Arbitrations.
JR46/09
Minister of Correctional Services v Baloyi and Others
provocation
employee had had time to lodge a complaint
JR1337/10
Trident SA (Pty) Ltd v Metal & Engineering Industries Bargaining Council and Others
Expert evidence
admissibility of expert opinion conveniently set out in Holtzhauzen v Roodt 1997 (4) SA 766 (W) at 772C 773C.
JR 2191/09
Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others
Affidavit by person not at meeting
Hearsay
J2096/11
Public Servants Association of South Africa v Minister, Department of Home Affairs and Another
making a finding on the credibility of witnesses
also, the arbitrator should resort to credibility where the probabilities failed to point which version embraced the truth
JR948/09
Director-General, Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others
alcohol was being sold on the farm
charge read: Admitting selling liquor on employers property to company employees and others
JR 433/10
Rechs Nurseries (Pty) Ltd v CCMA and Others
arbitrators reliance on a version that was not put to a witness was a reviewable irregularity
JR731/10
Urban Africa Security (Pty) Ltd v CCMA and Others
Turquand rule,
applicant was entitled to assume in good faith that Canca had the necessary authority to appoint him
J1788/09
Southgate v Blue IQ Investment Holdings (Pty) Ltd
Circumstantial evidence
JR2777/09
Popcru obo Ndokweni v Maritz NO and Others
Circumstantial evidence
Other case law cited
National Union of Metalworkers of SA and Another v KIA Motors and Others (2007) 28 ILJ 2283 (LC) at para 21; ; a
JR2777/09
Popcru obo Ndokweni v Maritz NO and Others
Circumstantial evidence
Other case law cited
AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A);
JR2777/09
Popcru obo Ndokweni v Maritz NO and Others
Circumstantial evidence
Other case law cited
Rex v Blom 1939 AD 188
JR2777/09
Popcru obo Ndokweni v Maritz NO and Others
Circumstantial evidence
Other case law cited
Victor and Another v Picardi Rebel (2005) 26 ILJ 2469 (CCMA)
JR2777/09
Popcru obo Ndokweni v Maritz NO and Others
Polygraph test for recruitment as only means
Failure to indicate in advertisement that polygraph result will be used not an unfair labour practice
JR1559/09
Sedibeng District Municipality v SA Local Government Bargaining Council and Others
Evidence Single witness
cautionary rule
JR435/08
Northam Platinum Mines v Shai NO
Evidence Single witness
cautionary rule
Other case law cited
S v Carolus 2008 (2) SACR 207 (SCA)
JR435/08
Northam Platinum Mines v Shai NO
Hearsay
The LAC then turned to a discussion of the seven factors listed in the Act, which were: the nature of the proceedings; the nature of the evidence; the purpose for which the evidence was tendered; the probative value if the evidence; the reason the evidence was not given by the person upon whose credibility the probative value of the evidence depended; the prejudice to any party which the admission of the evidence might entail; and any other factor which should be taken into account according to the court.
JA46/07
Mapurunyane v CCMA & Others
Hearsay; Statement evidence
S3 Law of evidence and amendment act
JR2134/08
POPCRU obo Maseko v Department of Correctional Services & Others
Mitigate damages
Mitigation aggravating
the length of the applicants employment, her clean record and other mitigating factors were all offset by the fact that the applicants refusal endured for a substantial period of time and that she continued in the interim effectively to do none of the work for which she was employed
JR2459/09
Public Servants Association obo Khan v Tsabadi and Others
Procedurally unfair dismissal
Employer raising allegations of dishonesty at arbitration for which employee was never charged; Employer not permitted to do so
D875/06
Rennies Distribution Services (Pty) Ltd v Bierman N.O. & Others
Failure to call material witness; Adverse inference; Can only be drawn if the witness was available and evidence would be relevant
JR492/07
Gold Fields Mining SA (Pty) Ltd Property Division v CCMA & Others
Hearsay evidence
admissibility should be explained and such evidence handled carefully
JR1996/03
The Foschini Group v Maidi & Others
Failure to tender evidence ; Adverse inference may be drawn
JS595/05
Sekgobela v State Information Technology Agency (Pty) Ltd
Evidence continue
Employees version regarding alleged procedural unfairness not raised in her opening statement nor put to employers witnesses
JR208/03
J D Trading (Pty) Ltd t/a Giddys Electric Express v CCMA & Others
disputed facts in affidavit
case had to be dismissed on the grounds that disputes of facts arose from the affidavits presented to the court
JR2619/05
Masombuka v Mashiane N.O & Others
disputed facts in affidavit
Other case law cited
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (AD) (see also National Director of Public Prosecution v Zuma (2009) ZASCA 1).
JR2619/05
Masombuka v Mashiane N.O & Others
circumstantial evidence
rejected the cogency, reliability and admissibility of the circumstantial evidence itself. This was not only an unreasonable approach, but clearly wrong in law.
JR2289/07
Pick n Pay Retailers (Pty) Ltd v CCMA & Others
hearsay
two letters supporting employee; witnesses not called
JR2766/07
The Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others
CCMA
legal flexibility probabilities
JA65/05
Le Monde Luggage CC t/a Pakwells Petje v Dunn N.O. & Others
Lying under oath
not relevant re determine unfair dismissal but compensation
JA48/04
Maepe v CCMA & Another
Circumstantial evidence
Video footage
JA46/07
Mapurunyane v CCMA & Others
failing to call the nursing sister to testify, the appellant had failed to show negligence; omitted to consider evidence placed at his disposal
JA37/09
Afrox Healthcare Ltd v CCMA and Others
Cautionary rule, treat the evidence of a witness (another inmate) with great caution as he had demanded payment or was paid for his evidence. There was no factual basis for this finding on the record.
JR3075/09
SA Custodial Management (Pty) Ltd v CCMA and Others
refusal to allow the affidavit of the manager of the diary, not dealt with the substantial merits of the dispute.
JA12/10
Matsekoleng v Shoprite Checkers (Pty) Ltd
Video, Commissioners failure to investigate further depicted a manifest failure to determine a material issue.
JR 1010/11
Airports Company South Africa v Khumalo and Others
Commissioner phoning employer later without employee's knowledge, Reviewable.
C887/2011
Lithotech Africa Mail Cape v Statutory Council for the Printing, Newspaper and Packaging Industries and Others
Polygraph test, evidence in corroboration, These arguments were fallacious and had to be dismissed.
JR 2732/2010
Mustek Ltd v Tsabadi NO and Others
Dismissal theft, minutes of disciplinary enquiry, admission.
JA 10/2010
South African Breweries Ltd v Retail and Allied Workers Union and others
Suspicion
some dishonest intentions, the employer could not justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however strong or reasonable it may appear to be, remained a suspicion and did not constitute misconduct. There needed to be tangible and admissible evidence.
(DA 4/11) [2013] ZALAC 29
Mbanjwa v Shoprite Checkers (Pty) Ltd and Others
Lead evidence to rebut
Employer failing to lead evidence to rebut contentions placed in dispute by employee
D560/12
National Brands Ltd t/a Entyce Beverages v Shah and Others
Hearsay evidence
Could nevertheless admit such evidence if the party against whom it was sought to be admitted could counter the effect of such evidence by other means. Issues such as whether the applicant was able to explain and provide a reasonable justification for the absence of a witness was relevant and whether the applicant provided any corroborating evidence on which the hearsay evidence was premised was yet another issue.
(JR2259/11) [2014] ZALCJHB 36
Shoprite Checkers (Pty) Ltd v CCMA and Others
Not calling witness
Party refused leave to call a witness on the basis that in the opinion of the arbitrator the witness could add nothing of value.
(JR2819/09, JA53/11) [2014] ZALAC 14
Blue Financial Services Ltd v CCMA and Others
Evidence by Skype allowed.
Witness in Australia.
C751/2013
Simmers v Campbell Scientific Africa (Pty) Ltd
Hearsay evidence
Statement of witness used at hearing as deponent afraid to testify as she had been threatened. Arbitrator ruling that chairperson of enquiry should have arranged for evidence by way of conference call and failure to do so rendered this an irregularity. Even if this evidence had been disregarded ultimate decision would stay the same. Evidence admissible.
(JR3323/10) [2014] ZALCJHB 337
Harmony Gold Mining Co Ltd v CCMA and Others
polygraph testing
JA 54/14
GEMALTO SOUTH AFRICA (PTY) LTD
reasons for which employees dismissed not serving the real purpose of the polygraph test no rational link between the dismissal and the alleged misconduct
polygraph testing
JR1471/2011
Fairway at Randpark Operations (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1471/2011) [2015] ZALCJHB 391 (13 November 2015)
standard employment contract signed by employees contains a clause in terms of which employees have contractually bound themselves to undergo polygraph testing as well as breathalyser testing should the employer require them to do so
[29] In light of all the evidential material before me I find that the evidence at both the original disciplinary enquiry as well as at the arbitration points strongly in favour of the guilt of the individual respondents. This must of course include the fact that an adverse inference ought to have been drawn against them by reason of their manifest breach of contract in refusing to undergo polygraph testing without any reasons having been given for this.
Misconduct: unauthorized possession
JR1685/12
Massbuild (Pty) Ltd t/a Builders Warehouse v Commission for Conciliation, Mediation And Arbitration and Others (JR1685/12) [2015] ZALCJHB 234 (4 August 2015)
Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2455 (LAC) at para 34
Where an employee is found in unauthorised possession of company property, the evidentiary burden shifts to him to justify such misconduct.
persistent and prolonged adjournments
JR 2610/12
Sepang v Dibakwane and Others (JR 2610/12) [2015] ZALCJHB 235 (4 August 2015)
Once a representative repeatedly asks for an adjournment in order to take instructions from a client, especially during the course of cross-examination of a witness, it can only confirm that the representative is least prepared to deal with the matter
Credibility
JR483/13
Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015)
Sasol Mining (Pty) Ltd v Ngqeleni NO and others
One of the commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version. The commissioner manifestly failed to resolve the factual dispute before him on this basis. .
. That failure, and the fact that the award clearly may have been different had the commissioner properly acquitted himself, renders the award reviewable on account of a gross irregularity committed by the commissioner in the conduct of the arbitration proceedings.
Blitz Printers v Commission for Conciliation, Mediation and Arbitration and Others
. The second respondent, had he discharged his duties properly, was compelled to determine this conflicting evidence and thus decide what evidence to accept, and what to reject. The second respondent had to assess credibility and probabilities and come to a proper and reasoned finding as to what evidence to accept. The second respondent did none of this .
tacit term
JR483/13
Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015)
De Lange v ABSA Makelaars (Edms) Bpk
The test for establishing the existence of a tacit term, which this court has recognized and applied in many cases, is the so-called 'bystander' or 'officious bystander' test. In City of Cape Town (CMC Administration) v Bourbon-Leftley & another NNO, Brand JA set out the legal principles governing tacit terms as follows:'[19] ... [A] tacit term is based on an inference of what both parties must or would necessarily have agreed to, but which, for some reason or other, remained unexpressed. Like all other inferences, acceptance of the proposed tacit term is entirely dependent on the facts. . [20] In deciding whether the suggested term can be inferred, the court will have regard primarily to the express terms of the contract and to the surrounding circumstances under which it was entered into. It has also been recognised in some cases, however, that the subsequent conduct of the parties can be indicative of the presence or absence of the proposed tacit term .
balance of probabilities
JR715/13
Pick 'n Pay Hypermaeket v Commission for Conciliation, Mediation and Arbitration and Others (JR715/13) [2015] ZALCJHB 393 (12 November 2015)
12] It is important to mention that it is sufficient if an employer adduces enough evidence in support of its case to establish a plausible case. An employer is not required to present the best possible case it could taking into account all the evidence potentially available. Obviously, there is a risk that the evidence it does rely on may be found to be insufficient at the end of the case to prove its case on a balance of the probabilities on a consideration of all the evidence placed before the arbitrator. However, that will only happen if its version is not more probable than that of the employee on all the evidence that was presented. As long as the employer makes out a plausible version supported by evidence and as long as that version is also more probable than that of the applicant, even if it could have made out a better or stronger version[2], it should still succeed on the balance of probabilities.
Dismissal: existence
JS40/14
Truter v Heat Tech Geysers (Pty) Ltd (JS40/14) [2016] ZALCJHB 83 (2 March 2016)
Thus, as a matter of principle, employment can be regarded as terminated based on the objective construction of the employers conduct which unequivocally repudiates the contract.
Marneweck v SEESA (2009) 30 ILJ 2745 (LC)
[31] I align myself with the view expressed by Van Niekerk AJ above and wish to add that the enquiry into whether or not there is a dismissal goes beyond investigating whether the employee used the word dismissal in terminating the employment relationship with the employee. In other words it is not the label placed on the termination that determined whether or not there was a dismissal.
Truth
JR2705/13
Airchefs (Pty) Ltd v Mphahlele and Others (JR2705/13) [2016] ZALCJHB 93 (3 March 2016)
Van Zyl v KPMG Services (Pty) Ltd and Others (2014) 35 ILJ 1656 (LC) at para 6.
For several years the labour courts have held that the duty of an arbitrator when confronted by two irreconcilable versions, is essentially the same as that of a judge in a trial court,
Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others
To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the courts 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 reliability with 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 probabilities and improbabilities 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 the courts credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.
This position seems to have been consistently adopted since at least 2007 (see Vodacom Service Provider Co (Pty) Ltd v Phala NO and Others(2007) 28ILJ1335 (LC),Lukhanji Municipality v Nonxuba NO and Others(2007) 28 ILJ 886 (LC) and has been applied fairly consistently since then (see for example, Sasol Mining (Pty) Ltd v Ngqeleni NO and Others(2011) 32ILJ723 (LC),SATAWU obo Semate v CCMA and Others(unreported Labour Court decision case no JR341/2010 (18 December 2012)).
In Sasol Mining
One of the commissioners prime functions was to ascertain the truth as to the conflicting versions before him. As I have noted, this much the commissioner appears to have appreciated. What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version.
credibility of witnesses
JR160/14
Mogodiseng v Commission for Conciliation, Meditation and Arbitration and Others (JR160/14) [2016] ZALCJHB 276 (3 March 2016)
Mabona v Minister of Law and Order 1988 (2) South Africa 654 (SE) at 662(c).
The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the plaintiffs version and investigation where questions of demeanour and impressions are measured against the content of a witness’s evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted and that therefore the other version is false and may be rejected with safety.
technique for resolving disputes of fact
JR1396/11
Ullmann Bros (Proprietary Limited) v Mphaphuli N.O. and Others (JR1396/11) [2016] ZALCJHB 118 (24 March 2016)
Stellenbosch Farmers Winery Group Ltd and Another v Martell and Cei SA and Others 2003 (1) SA 11 at para 5.
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.
factual disputes are to be determined
JR 1595/08
SASOL MINING (PTY) LTD vs CCMA
FW Group Ltd & another v Martell et Cie & others2003 (1) SA 11(SCA)
The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized 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; (c) the probabilities. As to (a), the courts 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 extra curial 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 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 courts credibility findings compel it in one direction and it 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 (at 14 I -15 D).
Tshishonga v Minister of Justice and Constitutional Development and Another(2007) 28 ILJ 195 (LC) at para 112
But an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or even damage his case.
factual disputes are to be determined
JA124/2013
Metrorail (PRASA) V SATAWU obo Ndlovu and Others (JA124/2013) [2016] ZALAC 3 (3 February 2016)
Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA)
The technique generally employed by the 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 various factual witnesses; (b) their reliability and (c) the probabilities. As to (a), the courts 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’s 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 with his own extra curial 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 the 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 courts credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing the latter. But when all factors are equipoised probabilities prevail.
Evidence continue
Hearsay
JR1207/15
Sangweni v Matshaka N.O. and Others (JR1207/15) [2016] ZALCJHB 173 (10 May 2016)
failure to consider the weight to be given to the hearsay evidence which was the only evidence before him directed at the onus of proving the substantive fairness of the dismissal, constituted a gross irregularity
Factual finding without support
JR1914/2014
Liebenberg v Incredible Connection and Others (JR1914/2014) [2016] ZALCJHB 182 (17 May 2016)
Daymon Worldwide SA Inc v Commission for Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 575 (LC) at paras 36, 40 and 41.
where an arbitrator uses a factual finding for which there is no support in evidence to develop a conclusion, the actions of the arbitrator constitute a gross irregularity. In such an instance, according to the Court, the arbitrator cannot be said to have applied her mind to the evidence before her and this could lead to unfair consequences for the parties.
Telephone call disclosure
JR1022/12
NUMSA and Another v Rafee N.O. and Others (JR1022/12) [2016] ZALCJHB 512; [2017] 2 BLLR 146 (LC) (31 May 2016)
Protea Technology Ltd and Another v Wainer and Others 1997 (9) BCLR 1225 (W)
the applicant was not entitled to intercept private calls made by an employee but that where the employee was engaged in matters pertaining to the employers business, the employee lost the right to the privacy of those communications: The first respondent was employed by the applicants in a position of trust. The telephone conversations were conducted from the applicants business premises within business hours. The applicants were entitled to require the first respondent to account for his activities during their time. (It will be recalled, in addition, that the first respondent was contractually obliged to devote his full attention to the affairs of the group.) It may be accepted that, even in this context, and within reason and at the direction of the employer, an employee’s private life is not excluded. Thus he may receive and make calls which have nothing to do with his employers business. The employee making such calls has a legitimate expectation of privacy. Although he must account to his employer if so required for the time so spent, the employer cannot compel him to disclose the substance of such calls. The content of conversations involving his employers affairs (whether directly or indirectly) is a different matter. The employer is entitled to demand and obtain from an employee as full an account as the latter is capable of furnishing. In this sense also, the company can fairly be regarded as the owner of the knowledge in the employees mind: cf. Bernsteins case at 796EF (although the context differs from the present)...As soon as the employee abandons the private sphere of his conversation for that of the affairs of his employer he loses the benefit of privacy. The determination of that moment will not generally be one of great difficulty.
Hearsay
JR2344/2012
Mohokare Local Municipality v Makhube and Others (JR2344/2012) [2016] ZALCJHB 349; (2017) 38 ILJ 421 (LC) (28 July 2016)
the Auditor General’s report was inadmissible on the basis that it was hearsay.
Concorde Plastics (Pty) Ltd v NUMSA and Others[1998] 2 BLLR 107 (LAC).
It is trite that documents are generally deemed to be hearsay evidence until such time as it has been proven that they are what they purport to be
Wright v Wright and Another 2015 (1) SA 262 (SCA) at para 15.
A Court, in its discretion, may permit such evidence in terms of the Act
hearsay evidence were rendered more flexible by the coming into operation of the Law of Evidence Amendment Act. The Act does not propose an absolute rule that hearsay evidence is inadmissible. In considering hearsay evidence, the Court will have regard to factors such as the nature and purpose of the evidence, the probative value and reliability, the reason why direct evidence was not submitted, the possible prejudice to the other party and all the other facts of the case. These are, inter alia, the factors which, according to section 3 of the Act, a Court should take into account.
Makhatini v Road Accident Fund 2002 (1) SA 511 (SCA) at para 24.
the admission of hearsay evidence is not a mere formality and that the admission of the evidence is not to be had merely for the asking.
Hearsay: transcripts of disciplinary hearing
JR56/14
Minister of Police v M and Others (JR56/14) [2016] ZALCJHB 314; (2017) 38 ILJ 402 (LC) (19 August 2016)
[46] In light of what I have stated above, I therefore find that the commissioner erred in unreasonably assigning minimal value to the transcripts. This mishandling of the evidence would have distorted the outcome of the matter, particularly considering that RM himself did not testify. For this reason alone the award must be set aside.
facts must be proven
JR999/2014
Arcelormittal South Africa Limited v Pretorius and Others (JR999/2014) [2016] ZALCJHB 351 (14 September 2016)
De Beers Consolidated Mines Ltd v CCMA and others (2000) 21 ILJ 1051 (LAC).
The onus is thus on the employer to prove the facts upon which it relies for the dismissal. If the facts upon which the employer relies are not proven at the end of the arbitration proceedings, then cadit quaestio, the employer has failed to prove the fairness of the dismissal. On the other hand, if the employer does prove the facts upon which it relies, then the arbitrator must make a determination as to whether or not the dismissal is unfair and only if the arbitrator is so satisfied may he or she order reinstatement.
witness being influenced by what they may have heard whilst sitting in
JR452/15
Als Chemex South Africa (Pty) Ltd v Khan and Others (JR452/15) [2016] ZALCJHB 415 (2 November 2016)
C/K Alliance (Pty) Ltd t/a Greenland v Mosala NO (2009) 30 ILJ 571 (LC).
As a general rule, witnesses are normally required to wait outside the court until such time when they would have presented their evidence. The reason for this is to guard against the version of a witness being influenced by what they may have heard whilst sitting in during the testimony of other witnesses. This rule is generally not as firmly enforced in arbitration proceedings, and correctly so, as is the case in the courts. This being the case, it seems to me that the appropriate approach is that commissioners are duty bound to warn potential witnesses or those that may have already been identified as such of the possible consequences of their presence during the testimony of other witnesses. But where, for any reason, it turns out later that a witness sat in during the testimony of other witnesses, that should not disqualify such a person from testifying. At best, what the commissioner should do in such a situation is to allow the witness to testify and then evaluate at the end of the proceedings when assessing his or her testimony as to whether his or her version may have been influenced by the version of the other witnesses who testified while present in the hearing.
circumstantial evidence
JR472/1
Triomf Fertilizers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR472/15) [2017] ZALCJHB 15 (20 January 2017)
De Wet v President Versekeringsmaatskappy 1978 (3) SA 495 (C) at 500E F
I agree with him that various other probabilities existed, that were not properly investigated. When one deals with circumstantial evidence as is the case here, the inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. If the facts permit more than one inference, the most plausible inference must be selected.
Distell Ltd vs CCMA (2014) 35 ILJ 2176 (LC) at paragraphs 65 and 67
The danger with circumstantial evidence on the other hand, is that in addition to the possibility that a witness may be lying or mistaken, the evidence may be capable of more than one logical explanation without it being clear what other possible explanations exist or the judge, in analysing the evidence may embark upon a non sequitur. Thus circumstantial evidence may, at first blush, appear to be much more compelling than it really is, largely because the trier of fact does not have sufficient knowledge or understanding of the particular field to be able to question the evidence and its potency or because the trier of fact does not understand how to make sense of it. One must be careful to distinguish between an inference and an assumption or speculation. An inference is drawn from an existing fact; speculation has no factual foundation to it.
factual dispute
JR2514/13
Global Supply Chain Services (Pty) Ltd t/a Globaltrack v Van Spaendonck and Others (JR2514/13) [2017] ZALCJHB 190 (3 March 2017)
SFW Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA)
technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized 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; (c) the probabilities. As to (a), the courts 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 extra curial 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 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 courts credibility findings compel it in one direction and it evaluation of the general probabilities in the other. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail (at 14 I -15 D).
hearsay
JR1920/13
National Commissioner of Police and Another v Safety and Security Sectoral Bargaining Council and Others (JR1920/13) [2017] ZALCJHB 82 (8 March 2017)
Arbitrator rejected the evidence of the applicants witnesses in this respect on the ground that it constituted hearsay evidence.
Gaga v Anglo Platinum Limited and Others [2012] 3 BLLR 285 (LAC) paras 45 and 46.
The exclusion of evidence that ought to be admitted will be either misconduct in relation to the duties of a commissioner or a gross irregularity in the conduct of the arbitration proceedings, as contemplated in section 145(2)(a) of the LRA...Given the nature of the evidence which the first respondent proposed to lead, and the fact that the allegations would have been known to the appellant, it would not have been unfair or oppressive to have allowed the evidence because the appellant had adequate notice and was in a position to deal with it... By itself, it constituted an irregularity sufficient to set aside the award, because without more it resulted in the commissioner failing to have regard to material facts and thereby impeded a full and fair determination of the issues. In certain instances where evidence is irregularly not admitted by a commissioner, the only fair remedy may well be for the matter to be remitted to the CCMA.
Matsekoleng v Shoprite Checkers (Pty) Ltd [2013] 2 BLLR 130 (LAC) at paras 41-3.
Section 3(1)(c) of the said Act [Law of Evidence Amendment Act 45 of 1988] confers a discretion on a court (or Tribunal) in terms of admitting hearsay evidence if, in the opinion of the court (or Tribunal), as the case may be, it is in the interests of justice to admit such hearsay evidence. The fact that the respondents representative would not have been in a position to cross-examine the author of, or deponent to, the affidavit if it was admitted, was not, in my opinion, a legally sound ground to have refused admission of the affidavit, in the light of section 3(1)(c). That aspect of the matter would only be relevant on the question of the evidential weight to be attached to the affidavit evidence concerned. As the matter stood, it did not appear that the Commissioner properly applied his mind on this issue, if at all. In my view, the Commissioners failure in this regard constituted a serious misdirection and a gross irregularity, on the Commissioners part in the conduct of the arbitration proceedings, which rendered the award reviewable and liable to be set aside. In any event, it seemed to me that, by applying the pre-1988 strict common law rule against hearsay evidence on the admission of the affidavit, as the Commissioner apparently did, the Commissioner did not thereby deal with the substantial merits of the dispute with the minimum of legal formalities as required of him by section 138(1) of the LRA. In Local Road Transportation Board and another v Durban City Council and Another the Appellate Division (now the Supreme Court of Appeal (Holmes JA) stated: A mistake of law per se is not an irregularity but its consequences amount to a gross irregularity where a judicial officer, although perfectly well-intentioned and bona fide, does not direct his mind to the issue before him and so prevents the aggrieved from having his case fully and fairly determined. In my view, therefore, the failure by the Commissioner to apply his mind properly of the issue of admissibility of Mr Roberts affidavit constituted a material error of law and a gross irregularity on the part of the Commissioner which prejudiced the appellant in her right to a fair hearing.
balancing probabilities
JR614/16
Makwabe v Commission for Conciliation, Mediation and Arbitration and Others (JR614/16) [2017] ZALCJHB 216 (6 June 2017)
The evaluation of proof applicable is one that applies in civil matters, not in criminal cases.
Govan v Skidmore 1952 (1) SA 732 (N) at 734.
Now it is trite law that, in general, in finding facts and making inferences in a civil case, the Court may go upon a mere preponderance of probability, even although its so doing does not exclude every reasonable doubt. In a criminal case, however, as I understand it, every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond reasonable doubt, and inferences from facts must, in order to be permissible, be such as leave no reasonable doubt of their propriety and correctness. That is a difference between the proof requisite in civil and criminal proceedings. Rex v. Blom, supra, was a criminal case, and, in my opinion, it is a fallacy to suppose that the second principle in Bloms case represents the minimum degree of proof required in a civil case, for, in finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys in his work on Evidence (3rd ed., para. 32), by balancing probabilities select a conclusion which seems to be the more natural, or plausible, conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.
interpreting any document
JR1624/16
Commission for Conciliation, Mediation and Arbitration v Commission for Conciliation, Mediation and Arbitration and Others (JR1624/16) [2017] ZALCJHB 240 (23 June 2017)
Commission for Conciliation, Mediation and Arbitration v MBS Transport CC and others [2016] 10 BLLR 999 (LAC) at para. 15. Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA) at para [29][also reported at [2015] 4 All SA 417 (SCA) Ed]; KPMG Chartered Accountants SA v Security Ltd and another 2009 (4) SA 399 (SCA) at para [39] [reported as KPMG Chartered Accountants v Securefin Ltd and another [2009] 2 All SA 523 (SCA) Ed]; 2012 (4) SA 593 (SCA) at para [18] [sic]
It is trite that, when interpreting any document, regard must be had to the language used as well as the context under which the document saw the light of the day. This holds true for any document including contracts and legislative texts. There is no need for any ambiguity before the context is considered
Bartman v Dempers 1952 (2) SA 577 (A) at 580 B-C, Minister of the Interior v Confidence , Property Trust (Pty) Ltd and others 1956 (2) SA 365 (A) at 372H 373 A, Bellairs v Hodnett and another 1978 (1) SA 1109 (A) at 1148 F-G, Kellaway in the Principles of Legal Interpretation of Statutes, Contracts and Wills at page 321, 1995 Edition
There is a well-known rule of construction that no statute is to be construed so as to have a retrospective operation (in the sense of taking away or impairing a vested right acquired under existing laws) unless the Legislature clearly intended the Statute to have that effect. See Peterson v Cuthbert and Co. Ltd., 1945 AD 420 at p. 430.
two disputing versions: failed to consider inherent probabilities
JR2676/13
Thohoyandou Spar v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR2676/13) [2017] ZALCJHB 247 (27 June 2017)
Arbitrator failed to consider inherent probabilities where he was confronted with conflicting versions. Award is reviewed and set aside.
The Applicants case is that the arbitrator failed to provide a reasonable explanation as to why he preferred to accept Mandiwanes version and reject the evidence of the Applicants witnesses that Mandiwane was not dictated as to what he should write in the report. Further that the arbitrator made no credibility findings against the Applicants witnesses and attached no weight to Mandiwanes lack of credibility.... it was one of the prime functions of a commissioner to ascertain the truth as to the conflicting versions before him.
Sasol Mining (Pty) Ltd v Ngeleni NO and Others (2011) 32 ILJ 723 (LC) at 727C-F.
. . . assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba NO and others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.... What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on that basis. Instead, he summarily rejected the evidence of each of the applicants witnesses on grounds that defy comprehension.
Sidumo and another v Rustenburg Platinum Mines Ltd and others[(2007) 28 ILJ 2405 (CC)[2007] ZACC 22; [2007] 12 BLLR 1097 (CC),] Ngcobo J stated at 268
'[W]here a commissioner fails to have regard to the material facts, the arbitration proceedings cannot, in principle, be said to be fair because the commissioner fails to perform his or her mandate. In so doing, in the words of Ellis the commissioner's action prevents the aggrieved party from having its case fully and fairly determined. This constitutes a gross irregularity in the conduct of the arbitration proceedings, as contemplated by s 145(2)(a)(ii) of the LRA. And the ensuing award falls to be set aside not because the result is wrong but because the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.'
polygraph
JR1848/2012
Cash Paymaster Services (Northern) (Pty) Ltd v Maake N.O. and Others (JR1848/2012) [2017] ZALCJHB 246 (29 June 2017)
the only evidence, after all is said and done, which lay against Ntlhekoa was that of the polygrapher
DHK Supply Chain (Pty) Ltd and others v National Bargaining Council for the Roadfreight Industry and others [2014] 9 BLLR 860 (LAC)
sets out the jurisprudence on polygraph tests and concludes that In summary, the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, if needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in any given case;
37.2.5 It does not appear that the polygrapher was led as an expert in the traditional sense. No expert notice was submitted. Notwithstanding this, I cannot fault the Commissioners finding on the corroborative value of Snyman’s evidence;
general probabilities
JR1232/2016
Shabangu v Commission for Conciliation, Mediation and Arbitration and Others (JR1232/2016) [2017] ZALCJHB 336 (29 August 2017)
National Employers General Insurance CO v Jagers 1984 (4) SA 437 E AT 440 D
the court will weigh up and test the Plaintiffs allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and if the balance of probabilities favours the plaintiff, then the court will accept his version as being probably true.
hearsay
JR2111/2014
Exxaro Coal (Pty) Ltd v Chipana and Others (JR2111/2014) [2017] ZALCJHB 338 (6 September 2017)
Matsekelong v Shoprite Checkers (Pty) Ltd (2013) 2 BLLR 13 LAC
[41] Section 3(1)(c) of the said Act confers a discretion on a court (or tribunal)in terms of admitting hearsay evidence if, in the opinion of the court (or tribunal), as the case may be, it is in the interests of justice to admit such hearsay evidence. The fact that the respondents representative would not have been in a position to cross examine the author of, or deponent to, the affidavit if it was admitted, was not, in my opinion, a legally sound ground to have refused admission of the affidavit, in the light of section 3(1)(c). That aspect of the matter would only be relevant on the question of the evidential weight to be attached to the affidavit evidence concerned. As the matter stood, it did not appear that the commissioner properly applied his mind on this issue, if at all. In my view, the commissioners failure in this regard constituted a serious misdirection and a gross irregularity, on the commissioners part, in the conduct of the arbitration proceedings, which rendered the award reviewable and liable to be set aside.
civil standard of proof to the conflicting versions by considering the force, strength and weight of the evidence
JR810/15
NTM obo Tunyiswa v Commission for Conciliation, Mediation and Arbitration and Others (JR810/15) [2017] ZALCJHB 374 (10 October 2017)
The South African Law of Evidence Zeffertt and Paizes 2nd Edition at p 48
[13] The Second Respondent was enjoined to apply the civil standard of proof to the conflicting versions by considering the force, strength and weight of the evidence. Where the quantum of proof requires a preponderance or balance of probability, it means that the probability of the truth of a particular averment is measured or balanced against the probability of it being untrue.
Administration of an Oath or Affirmation
JR2215/15
South African Police Services v Safety and Security Sectoral Bargaining Council and Others (JR2215/15) [2017] ZALCJHB 474 (4 December 2017)
Regulation 7.1 of the Regulations Governing the Administration of an Oath or Affirmation published in Government Gazette No R1258 of 21 July 1972.
A Commissioner of Oaths shall not administer an oath or affirmation relating to a matter in which he has an interest.
cross-examination
JR2386/15, J323/16
Pillay v Commissioner of South African Police Service and Others (JR2386/15, J323/16) [2017] ZALCJHB 502 (6 December 2017)
The President of the RSA and others v South African Rugby Football Union and Others [1999] JOL 5301 (CC)
[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness's attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts (Own emphasis)
theft of fuel
JR342/11
La Crushers v Commission for Conciliation, Mediation and Arbitration and Others (JR342/11) [2017] ZALCJHB 476 (18 December 2017)
[21] Simply, the third respondent failed to provide a sufficient and plausible explanation in response to the case laid out by the applicant, and therefore the prima facie case against him had to prevail. It is incomprehensible how the Commissioner saw the third respondents version as more convincing than the applicants case.
[22] Irrespective of the label attached to charge, the facts proved by the applicant established gross dishonesty on the part of the third respondent, the nature of which was sufficient to destroy the element of trust essential to his position as a manager and an employment relationship.
[18] The third respondent had to give an explanation for not adhering to the refuelling procedure, for the inordinate amount of fuel dispensed into the vehicle, particularly outside of working hours when he would have had the vehicle and the fact that when he was on leave, excessive refuelling ceased.
credibility of evidence
CA6/2016
South African Breweries (Pty) Ltd v Hansen and Others (CA6/2016) [2017] ZALAC 29; (2017) 38 ILJ 1766 (LAC); [2017] 9 BLLR 892 (LAC) (25 May 2017)
The Commissioner was, as such, obliged to assess the credibility of each of the witnesses who testified at the arbitration, and in doing so, was required to consider the prospects of any partiality, prejudice or self-interest on their part and the weight to be attached to their testimony by reason of its inherent probability or improbability.[15] At the very least, in relation to the witnesses who testified in favour of SAB, the Commissioner ought to have considered (i) their candour and demeanour; (ii) their bias, latent and blatant compared to that of Hansen; (iii) internal and external contradictions in their evidence; (iv) the probability or improbability of particular aspects of their versions; and (v) the calibre and cogency of their performance compared to that of Hansen. It is, however, clear from her award, that the Commissioner failed to consider any of these things.
Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC) at para 9.
guide and principle with regard to the evaluation of evidence:
PA8/16
Fort v COEGA Development Corporation (Pty) Ltd and Others (PA8/16) [2017] ZALAC 50 (17 August 2017)
S v Trainor 2003 (1) SACR 35 (SCA) at 41 para 9.
A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of that evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course, must be evaluated against the onus on any particular issue or in respect of the case in its entirety. The compartmentalised and fragmented approach is illogical and wrong.
See Medscheme Holdings (Pty) Ltd & another v Bhamjee 2005 (5) SA 339 (SCA) at 345A-C para 14.
[52] The SCA held that an assessment of the evidence based on demeanour, without regard to the wider probabilities, constitutes a misdirection
legal representative
CA16/2016, C285/2014
South African Breweries (Pty) Ltd v Louw (CA16/2016, C285/2014) [2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC) (24 October 2017)
[4] To state the obvious, litigation is complex. Among the duties of legal practitioners is to conduct cases in a manner that is coherent, free from ambiguity and free from prolixity. True enough, the holy grail of translating what is complex into simplicity is not always attainable, but the ground rules are irrefrangible: say what you mean, mean what say and never hide a part of the case by a resort to linguistic obscurities. The norm of a fair trial means each side being given unambiguous warning of the case they are to meet. Moreover, these requirements are not mere civilities as between adversaries; the court too, is dependent upon the fruits of clarity and certainty to know what question is to be decided and to be presented only with admissible evidence that is relevant to that question. Making up ones case as you go along is an anathema to orderly litigation and cannot be tolerated by a court. Counsels duty of diligence demands an approach to litigation which best assists a court to decide questions and no compromise is appropriate.
bear an evidential burden
JR2029/15
Segona v Education Labour Relations Council and Others (JR2029/15) [2017] ZALCJHB 120 (7 February 2017)
[53] The case advanced by the Third Respondent called for a proper explanation for the under-banking from the Applicant. This need for an explanation arises, as set out above, not because the Applicant was the schools Accounting Officer, but because she was a school official factually involved in the handling of its finances. Even in circumstances where the employer bears the onus (which was not the situation before the Commissioner)
Brassey Unfair Dismissals and Unfair Labour Practice in Brassey et El, Commentary on the Labour Relations Act, (revision service 2: 2006), vol 3 at A8-142.
There are circumstances in which an inference of misconduct is permissible unless explained away by the evidence. In a case of this nature, the employee will bear an evidential burden to tender the requisite explanation and, if he declines to do so or it is inadequate, the inference of guilt will stand. At common law this has long been recognised. For example, a till operator can be expected to account for money in his possession and will be guilty of misconduct if he can give no explanation for shortages. The same principle is reflected in the following passage from Mzeku & Others v Volkswagen SA (Pty) Limited & Others: It is common cause that the Appellants refused or failed to perform their duties for a period of over two weeks. Once this is common cause, the Appellants must provide an explanation for their conduct ... Once there is no acceptable explanation for the Appellants conduct then it has to be accepted that the Appellants were guilty of unacceptable conduct .... (Footnotes omitted)
Evidence continue
credibility
JR2125/13
University of Venda v Maluleke and Others (JR2125/13) [2017] ZALCJHB 72; (2017) 38 ILJ 1376 (LC) (28 February 2017)
evaluation thereof by arbitrator; arbitrator failing to make any credibility findings of witness testimony; constituting irregularity issue of credibility of witnesses considered
Sasol Mining (Pty) Ltd v Ngqeleni NO and Others 2011) 32 ILJ 723 (LC) at para 7.
One of the commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version. The commissioner manifestly failed to resolve the factual dispute before him on this basis. .
n SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at para 5
Court said the following as to how to assess credibility: 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, (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. a witness' reliability will depend, apart from the other 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.
Blitz Printers v Commission for Conciliation, Mediation and Arbitration and Others [2015] JOL 33126 (LC) at para 37.
. The second respondent, had he discharged his duties properly, was compelled to determine this conflicting evidence and thus decide what evidence to accept, and what to reject. The second respondent had to assess credibility and probabilities and come to a proper and reasoned finding as to what evidence to accept. The second respondent did none of this .
In the result, the commissioner's lapse in not performing a full assessment of the complainant's credibility with reference to her almost guileless candour, forthright demeanour, lack of bias, and the consistency of her evidence in relation to the remarks and propositions having been made and their unwelcome nature, as supported by the inherent probabilities evident particularly in the manner in which the complaint came to light, meant that he ignored relevant considerations and failed to apply his mind properly to material evidence and the definitional requirements of sexual harassment in the policy and the code.
probabilities
JR2125/13
University of Venda v Maluleke and Others (JR2125/13) [2017] ZALCJHB 72; (2017) 38 ILJ 1376 (LC) (28 February 2017)
evaluation and determination thereof no proper assessment of probabilities approach of arbitrator irregular proper probabilities considered
Sasol Mining
Regrettably, the commissioner's logic (or, more accurately, the lack of it) permeates many of the awards that are the subject of review proceedings in this court. Some commissioners appear wholly incapable of dealing with disputes of fact - their awards comprise an often detailed summary of the evidence, followed by an 'analysis' that is little more than a truncated regurgitation of that summary accompanied by a few gratuitous remarks on the evidence, followed by a conclusion that bears no logical or legal relationship to what precedes it. What is missing from these awards (the award under review in these proceedings is one of them) are the essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner...
witness not on duty
JR1701/2017
Genet Mineral Processing (Pty) Ltd v CCMA and Others (JR1701/2017) [2017] ZALCJHB 227 (22 March 2017)
he was not persuaded by that evidence because Smuts was not on duty and not in a position to give direct testimony and to testify what transpired at the plant. He could not find on the balance of probabilities that the employee committed the misconduct complained of on those days either.
hearsay
JR1355/14
Limpopo Provincial Treasury v General Public Sectoral Bargaining Council and Others (JR1355/14) [2018] ZALCJHB 81 (2 March 2018)
Matsokoleng v Shoprite Checkers (Pty) Ltd [2013] 2 BLLR 130 (LAC).
"Section 3(1)(c) of the Act confers a discretion on a court (or Tribunal) in terms of admitting hearsay evidence if, in the opinion of the court (or Tribunal), as the case may be, it is in the interests of justice to admit such hearsay evidence. The fact that the respondent's representative would not have been in a position to cross-examine the author of, or deponent to, the affidavit if it was admitted, was not, in my opinion a legally sound ground to have refused admission of the affidavit, in the light of section 3(1)(c). That aspect of the matter would only be relevant on the question of the evidential weight to be attached to the affidavit evidence concerned. As the matter stood, it did not appear that the Commissioner properly applied his mind on this issue, if at all. In my view, the Commissioner's failure in this regard constituted a serious misdirection and gross irregularity, on the Commissioner's part in the conduct of the arbitration proceedings, which rendered the award reviewable and liable to be set aside."
Rand Water v Legodi NO and Others (2006) 27 ILJ 1933 (LC).
22] The arbitrator had to decide whether that hearsay evidence was permissible or not. In terms of s 3(1) of the Amendment Act, hearsay evidence may be permitted in certain circumstances such as when the relevant witness is not available and it would be in the interest of justice to do so. Once the decision is made to admit the evidence, then the weight to be given to the particular testimony depends on the probabilities and credibility of the witnesses. No arbitrator or judge should readily admit hearsay evidence when a witness has disappeared. All the facts have to be assessed, in addition to the purpose for which the evidence is to be led. The arbitrator did not make such an assessment."
Commissioner of Oaths
JR695/13
Bapela v Public Health and Social Development Sectoral Bargaining Council and Others (JR695/13) [2018] ZALCJHB 89 (2 March 2018)
Regulation 7(1) of the Regulations Governing the Administering of an Oath or Affirmation. Published under GN R1258 in GG3619 of 21 July 1972, as amended
a Commissioner of Oaths shall not administer an oath or affirmation relating to a matter in which he has an interest.
Facebook account: racist remarks
JR2219/14
Dagane v SSSBC and Others (JR2219/14) [2018] ZALCJHB 114 (16 March 2018)
"...Well commit a genocide on them. I hate whites.
31]The Commissioner carefully considered whether it was hearsay evidence. She found that it was. She then reasonably assessed whether it was nevertheless admissible in terms of section 3(c) of the Law of Evidence Amendment Act, 16 of 1988 which conferred on her a discretion to admit hearsay evidence if it is in her opinion that it was in the interest of justice to admit it. She did this by evaluating the matter in line with the factors set out in section 3(c) of the Law of Evidence Amendment Act. She took into account that the nature of the proceedings was an arbitration which implored her to deal with the substantive merits of the dispute with the minimum of legal formalities. This is in line with section 138(1) of the LRA
Dutch Reformed Church Vergesig Johannesburg Congregation and another v Sooknunan t/a Glory Divine World Ministries [2012] 3 All SA 322 ; 2012 (6) SA 201 (GSJ); H v W 2013 (5) BCLR 554 (GSJ) (at paragraphs (10) (23).
if this was the case the applicant would have distanced himself from making the remarks, which he did not do.
inference which is the more plausible
JA25/2017
Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration (JA25/2017) [2018] ZALAC 11; [2018] 8 BLLR 773 (LAC); (2018) 39 ILJ 2484 (LAC) (17 May 2018)
In either event, his conduct was dismissible.
[10] It is a rule of logic, as was stated in R v Blom 1939 AD 188 at 202-3, that, when reasoning by inference, the inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. A court is required to select that inference which is the more plausible or natural one from those that present themselves (AA Onderlinge Assuransie Assosiasie Bpk v De Beer 1982 (2) SA 603 (A).)
Hearsay
JA161/17
Exxaro Coal (Pty) Ltd v Chipana and Others (JA161/17) [2019] ZALAC 52; [2019] 10 BLLR 991 (LAC); (2019) 40 ILJ 2485 (LAC) (27 June 2019)
timing of ruling crucial-to be made when evidence first produced- hearsay inadmissible unless admission consented to or it is in the interest of justice-latter involves the exercise of a discretion-invoking the law requires reasonable accuracy...arbitrator or commissioner not to remain passive when hearsay evidence produced by a party.
[19] It is accepted that this section essentially means that if there is no agreement to receive hearsay evidence it is to be excluded unless the interests of justice requires its admission[11]. Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all.[12] This Court[13] held: Section 3(1) of the Act has ushered our approach to the admissibility of hearsay evidence into a refreshing and practical era. We have broken away from the assertion orientated and rigid rule and exception approach of the past. Courts may receive hearsay evidence if the interests of justice require it to be admitted. This section still retains the caution concerning the receiving of hearsay evidence, but changed the rules about when it is to be received and when not.[14]
[23]...Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the courts judgement, nor on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the Act, and the trial judge must before the State closes its case rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.
S v Ndhlovu and Others (above) para 18 and S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC) paras 38-42.
in respect of the timing of the ruling on the admission of hearsay evidence: The trial court must be asked timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the courts judgement, nor on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the act, and the trial judge must before the state closes its case rule on the admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.
section 3 of the Law of Evidence Amendment Act
JA161/17
Exxaro Coal (Pty) Ltd v Chipana and Others (JA161/17) [2019] ZALAC 52; [2019] 10 BLLR 991 (LAC); (2019) 40 ILJ 2485 (LAC) (27 June 2019)
3 Hearsay evidence(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless (a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or(c) the court, having regard to (i) the nature of the proceedings;(ii) the nature of the evidence;(iii) the purpose for which the evidence is tendered;(iv) the probative value of the evidence;(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;(vi) any prejudice to a party which the admission of such evidence might entail; and(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.(2) the provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.(3) Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.(4) For the purposes of this section hearsay evidence means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence; party means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.
[21] The provisions of section 138 of the LRA that give a commissioner a discretion to conduct an arbitration in a manner that she, or he, considers appropriate to determine a dispute fairly and quickly, and to do so with a minimum of legal formalities, does not imply that the commissioner may arbitrarily receive or exclude hearsay evidence, or for that matter any other kind of evidence. In the case of hearsay evidence, even though section 3 of the LEAA, by providing a set of rules or principles for the admission or exclusion of hearsay evidence, assumes some legal formality, it is invaluable. While a commissioner is notionally not obliged to apply it because of the discretion bestowed on him or her by section 138 of the LRA, the prudent commissioner does not err by applying it when dealing with hearsay evidence, rather than conceive of an alternative norm that will ensure not only fairness in the process, but also in the outcome of the arbitration. Applying the common law rules for the reception, or exclusion, of hearsay evidence appears not to be the answer, because those rules have already rightly been jettisoned for their rigidity, inflexibility and occasional absurdity[16]. Those epithets in are not consonant with fairness and reasonableness.
Whether its required to establish trust relationship has broken down
JA89/17
Khambule v National Union of Mine Workers and Others (JA89/17) [2019] ZALAC 61; (2019) 40 ILJ 2505 (LAC) (24 July 2019)
[13] ...firstly, an employer is not obliged to lead evidence to satisfy a commissioner that the relationship has indeed broken down, the facts should speak for themselves ( see for instance the matter of Impala Platinum Ltd v Jansen and Others [2017] 4 BLLR 325 (LAC) (Jansen)), or if the employer specifically seeks dismissal on the basis of a breakdown in the relationship as was the case in Edcon Limited v Pillemer NO and Others [2010] 1 BLLR 1 (SCA) where the charge against the employee was that her action had destroyed the employer/employee relationship then it must lead evidence to prove the breakdown;
secondly, even if evidence is led of a breakdown in the relationship, it is the commissioner who must determine whether dismissal in the circumstances of the matter before him is the appropriate sanction as a number of factors may play a role in coming to this conclusion and the same factors may apply differently to different category of employees. See in this regard the matter of Glencore Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others [2018] 1 BLLR 1 (LAC) (Glencore) where the Court properly accepted that functional relationship between an employee and his superior may play a part in determining whether abominable behaviour displayed by an employee against his superior was an obstacle to the continued employment relationship. Even extreme inappropriate behaviour may in an exceptional case not lead to a dismissal if there is no proximity between the employee and the supervisor who he may have undermined.
hearsay
J3321/18
National Education Health and Allied Workers Union (NEHAWU) v Minister of Health and Another (J3321/18) [2018] ZALCJHB 320 (2 October 2018)
Mgobhozi v Naidoo NO and others (2006) 27 ILJ 786 (LAC) at para 22.
Section 3(4) above makes it clear that hearsay evidence includes that given in writing by a person other than the person deposing to the affidavit that includes the evidence in question. The fact that the appellant on oath in an affidavit refers to the medical certificates of other witnesses does not rescue such affidavit from the stigma of hearsay There obviously have to be affidavits from the doctors in question themselves.
[10] Hearsay evidence is defined[1] as evidence, the probative value of which depends on the credibility of any person other than the person giving such evidence.
[20] ... Only experts can express an opinion on the said issues and there is no expert evidence placed before this Court.
[24] To the extent that the Applicants witnesses inform the Court of their own observations, the evidence is admissible. The Court itself must evaluate their evidence, draw its own conclusions from them and apply the law. Insofar as opinion evidence remains, the witness expressing an opinion must be competent to give an opinion about the subject in question and to the extent that the deponent or other witnesses for the Applicant are competent to give an opinion, this Court has to consider it. To the extent that expert evidence is required, this Court cannot attach any weight to the evidence presented by the Applicant that is not expert evidence.
meaning
JR1242/2016
Taku v Sekhanisa and Others (JR1242/2016) [2019] ZALCJHB 13; [2019] 6 BLLR 588 (LC) (22 January 2019)
[53] Hearsay evidence is defined[1] as evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence.[54] In terms of section 3(1) of the Law of Evidence Amendment Act[2] hearsay evidence shall not be admitted as evidence unless the parties agreed to the admission thereof as evidence, or the person upon whose credibility the probative value of such evidence depends, testifies at the proceedings or where the evidence is admitted in the interest of justice, having regard to seven specified factors.
onus of proof
JS204/17
Maila v Guards on Call Security CC (JS204/17) [2019] ZALCJHB 66 (2 March 2019)
[13] In Louw v Golden Arrow Bus Service (Pty) Ltd [[1999] ZALC 166 (23 November 1999)] direction is provided on whom the burden of proof lies, where Landman J stated as follows:41. I believe it is correct that the onus or burden of proof lies on the applicant claiming relief. I use the term onus or its equivalent, burden of proof, in the sense used in Pillay v Krishna 1946 AD 946 at 952 to mean the duty upon the litigant, in order to be successful, of finally satisfying the court that he or she is entitled to succeed on the claim, or defence as the case may be. See too Hoffman and Zeffert: The South 22 African Law of Evidence 4th ed 495.[14] In the same judgment, in dealing with the shifting of the evidentiary burden, the Court held at para 44 that: The common law, though Hoffman and Zeffert are doubtful whether it is of any great assistance, is instructive. I take the liberty of paraphrasing Davis AJAs summary of the Roman law principle in Pillay v Krishna (supra) at 951-952. If one person claims something from another in a court of law, then he or she has to satisfy the court that he or she is entitled to it. But there is a second principle which must always be read with it. Where the person against whom the claim is made is not content with a mere denial of that claim, but sets up a special defence, then he or she is regarded quo ad that defence as being the claimant and for the defence to be upheld he or she must satisfy the court that he or she is entitled to succeed on it.(Emphasis added).
expert witness
JS204/17
Maila v Guards on Call Security CC (JS204/17) [2019] ZALCJHB 66 (2 March 2019)
S v Van As 1991 2 SACR 74 (W).
[48] Our courts recognize two types of expert witness testimony. The first is an opinion that is based on text book information and the other is an opinion based on practical knowledge
proof authenticity of retrenchment letter
JS204/17
Maila v Guards on Call Security CC (JS204/17) [2019] ZALCJHB 66 (2 March 2019)
Stellenbosch Farmers' Winery Group Ltd and Another v Martell & Cie SA and Others 2003 (1) SA 11 (SCA).
[50] Mr Masindi, by virtue of the advisory services he rendered to the Respondent and him being the author of the notice upon which the Respondent relies, is better positioned to speak authoritatively on the authenticity of the notices. Further, the evidence of Messrs Morries and Masindi on the one hand and Mr Maila on the other, are mutually destructive.[51] When a Court is faced with two irreconcilable versions, the best technique to deploy in dealing with a factual dispute was set out in Stellenbosch Farmers' Winery Group Ltd and Another v Martell & Cie SA and Others[10] where the Court described the technique as follows:[5] 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. [11]
evidence to be assessed purely on its probability as opposed to credibility
JR1909/12
Dlamini v Tshwane University of Technology and Others (JR1909/12) [2019] ZALCJHB 104 (15 May 2019)
Solidarity obo Van Zyl v KPMG Services (Pty) Ltd and Others[(2014) 35 ILJ 1656 (LC)] Fourie AJ determined that it is not necessary for an Arbitrator to find that a witness was not credible to find that his version was not probable.[115] In reaching this conclusion the Acting Judge relied on Transnet Ltd v Gouws and Others[[2016] JOL 35673 (LC)],
The key question for him [the Arbitrator] was which version was more probable. He was able to reach a decision on the probabilities without having to have regard to the credibility of each witness. It is quite possible for evidence to be assessed purely on its probability, assuming for the purposes of that assessment that the witnesses who testified were credible. It is not necessary for a judicial officer or arbitrator to find a witness not to be credible in order to find that his evidence is not probable.[117]The learned Acting Judge held: In my view, the failure by the arbitrator to make a pertinent finding on credibility does not demonstrate that he failed to understand the proper approach to the assessment of conflicting evidence. The arbitrator appears clearly to me to have understood that his primary task was to resolve the conflicting versions by having regard to the balance of probability. He applied the correct judicial technique in this regard. Accordingly, his failure to address the credibility of each witness and comment thereon is not a fatal flaw which would entitle Applicant to a review of his award".[118]
point in dispute is left unchallenged in cross-examination
JR2459/17
Ngululu Bulk Carriers (Pty) Limited v Mokhawane and Others (JR2459/17) [2019] ZALCJHB 178 (12 July 2019)
Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC).
[28] It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit. In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438 It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.'
President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC).
[61] If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts.
[36] The Commissioner, by finding as he did, is saying that not reporting is in order. Not only is this a contradiction to the Commissioners findings that Employees ought to act in good faith towards their employees, but, in addition thereto, it completely undermines the Employers rules and functioning in relation to the control of its fleet. This is not a proper analysis.
Evidence continue
Disciplinary hearing record: hearsay
JR281/17
Department of Home Affairs v General Public Services Sectoral and Others (JR281/17) [2019] ZALCJHB 193; (2019) 40 ILJ 2544 (LC) (14 August 2019)
Sidumo and Palluci Home Depot (Pty) Ltd v Herskowits 2015 (5) BLLR 484 (LAC).
[80] The Commissioner cannot disregard the record of disciplinary proceedings purely because he is hearing the matter for the first time. The record of disciplinary proceeding could also be used to assess whether the dismissal of the employee was effected in accordance with a fair procedure. Most importantly, the commissioner must test the totality of the evidence submitted by the employer against the guidelines on dismissal set out in the LRA Code of Good Practice: Dismissal.[42]
[84] The Court concluded that in appropriate factual circumstances hearsay, such as a transcript of a properly run internal hearing, might carry enough weight to require of the accused employee to rebut the allegations contained in the hearsay. According to the Judge, a reasonable decision-maker would have appreciated that the transcripts did not contain mere allegations, but rather tested allegations and a contested denial. As such, the transcripts constituted prima facie evidence of the employees wrongdoing.[49]
[85] A number of guidelines for what would constitute appropriate factual circumstances to depart from the norm, as in this case, were set out by the court. In terms of these guidelines, the hearsay should: be contained in a record which is reliable accurate and complete; be tendered on the same factual dispute; be bilateral in nature; be in respect of the allegations; demonstrate internal consistency and some corroboration at the time the hearsay record was created; show that the various allegations were adequately tested in cross-examination; and have been generated in procedurally proper and fair circumstances.[50]
[106] As to the absence of the complainant, the Applicants key witness, I am inclined to agree with the Third Respondent that the Applicant is the author of its own fate, having deported its own crucial witness upon which the charges and this review application is premised.
resolution of factual disputes
JR753/13
Far North Plastics CC v Commission for Conciliation, Mediation and Arbitration and Others (JR753/13) [2019] ZALCJHB 241 (18 September 2019)
SFW Group:Ltd & another v Martell et Cie and others 2003 (1) SA 11 (SCA).
"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 courts 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, (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 reliability will depend, apart from the other factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities she 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 the 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 a rare one, occurs when a courts 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 (at paragraph 5 of the judgment). "
Assmang Limited (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation Mediation And Arbitration and Others (2015) 36 ILJ 2203 (LC) at para 40.
"Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable."
evidentiary burden shifts
JR2099/16
Anglogold Ashanti Limited v Association of Mineworkers and Construction Union obo Dlungane and Others (JR2099/16) [2020] ZALCJHB 46 (20 February 2020)
[14]...The evidentiary burden shifted to Mr Dlungane to provide a credible explanation as to how the gold bearing material ended up in his hostel room but to no avail. The commissioner immersed himself with unhelpful questions and ultimately misconstrued what constitutes theft...[15]...Clearly, the commissioner confused possession as only referring to having an object in your hand or physically. The test is, however, whether a person has control intentionally exercised toward a thing. In this instance, the gold bearing material was found in Mr Dlunganes hostel room which meant that he had exclusive and intentional control over same.
hearsay
JR1889/14
South African Airways Technical SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1889/14) [2020] ZALCJHB 58 (3 March 2020)
[39] A blanket statement that it is not in the interests of justice to admit hearsay evidence is meaningless and does not add any value to any reasoning. As to how the interests of justice are determined was stated by the Constitutional Court in S v Molimi []as follows;
S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC) ; 2008 (2) SACR 76 (CC) 2008 (5) BCLR 451 (CC) at para 35
Hearsay
JR2554/16
Kelobetswe v Safety and Security Sectoral Bargaining Council and Others (JR2554/16) [2020] ZALCJHB 59 (4 March 2020)
Exxaro Coal (Pty) Ltd v Chipana and Others [2019] 10 BLLR 991 (LAC).
Exxaro Coal (Pty) Ltd v Chipana and Others[2] when dealing with hearsay evidence and the scope of section 3 of the Law of Evidence Amendment Act[3] (LEAA) set out the following guidelines with regard to the admission of hearsay evidence:22.1 The possibility that hearsay evidence can be admitted in terms of section 3(1)(c) of the LEAA, if this is in the interests of justice, is not a licence for the wholesale admission of hearsay evidence in the proceedings.22.2 In applying section 3(1)(c) the commissioner must be careful to ensure that fairness is not compromised.22.3 A commissioner must be alert to the introduction of hearsay evidence and ought not to remain passive in this regard.22.4 A party must, as early as possible in the proceedings, make known its intention to rely on hearsay evidence so that the other party is able to reasonably appreciate the evidentiary challenge that he/she or it is facing. To ensure compliance, a commissioner should at the outset require parties to indicate such an intention.22.5 The commissioner must explain to the parties the significance of the provisions of section 3 of the LEAA, or of an alternative, fair standard and procedure that will be adopted by the commissioner to consider the admission of the evidence.22.6 The commissioner must timeously rule on the admission of the hearsay evidence and the ruling on admissibility should not be made for the first time at the end of the arbitration, or in the closing argument, or in the award.
doctrine of acquiescence
JS 740/18
NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020)
[25] In order to do justice to this question, it is apposite for this Court to discuss the doctrine in as far as its origin and acceptance into our law is concerned. There is a maxim known as qui non negat fatetur silence shows consent. S/he who does not deny agrees. As far as I could establish, the doctrine was first heralded into our law in the matter of Policansky Bros v Hermann and Canard[28],where Wessels J had the following to say: It is a principle of our law that if a person has once acquired a right he is entitled at any time to vindicate that right when infringed, provided the period of prescription has not elapsed. This is the general rule, but in course of time exceptions have been grafted on to this rule. The equitable principle that if a person lies by with full knowledge of his rights and of the infringement of those rights, he is precluded from afterwards asserting them, has been adopted by our courts. It forms a branch of the law of dolus malus. The principle of lying by is not unknown in our civil law, though its application is not so often met with our system of law as it is in English law. Sometimes the rights are lost through mere acquiescence, at other times by estoppel, as where the element of prejudice exists in addition to acquiescence. Thus acquiescence can be proved by definite acts or by conduct.
[26] In Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd[29], Friedman AJ had the following to say: Acquiescence is, in my view, a form of tacit consent, and in this regard it must, however, be borne in mind that, as Watermeyer CJ said in Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 422:quiescence is not necessarily acquiescence. And that conduct to constitute an acceptance must be an unequivocal indication to the other party of such acceptance
[27] As I understand it, silence does not necessarily mean assent, thus one party cannot without the overt assent of the other impose upon such other a condition to that effect. There was of course a debate whether this equitable doctrine, which bears its origin from English law was fully accepted into our law.[30] De Villiers JP in Hlatshwayo v Mare and Deas[31] had the following to say: Whether then we base the doctrine of acquiescence on the consent which is implied or the choice which is exercised, or call it waiver makes no difference. At bottom the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another or as it is commonly expressed to blow hot and cold, to approbate and reprobate. This being so there is no doubt of the actual minimum required by our law in order to constitute acquiescence. And that is before a person can be said to have acquiesced in a judgment, and thereby to have lost the right of re-opening a case or of appeal, a right which clearly has or at all events had, the Court must be satisfied upon the evidence that he has done an act which is necessarily inconsistent with his continued intention to have the case re-opened or to appeal.
[29] Regard being had to the above, for acquiescence to be proven, I must be satisfied, in this case, that the dismissed employees knew that their consent was required to avoid unilateral change or in order to legalise the change yet they decided to let the respondent go ahead with the apparent illegality - unilateral change without their required consent. There is no evidence to even vaguely suggest that the dismissed employees were aware of the change at the time it was effected.
[36] That the defence of acquiescence is not part of our law was confirmed by the SCA, when citing with approval the Turbek decision in Societe des Products Nestle SA v International Foodstuffs[41]. Like pre-emption, for the defence of acquiescence to succeed, it must be shown that a party has acted unequivocally. The Constitutional Court in SARS v CCMA and others[42] said the following: Pre-emption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self-resignation to the unfavourable order that could otherwise be appealed against. Dabner articulates principles that govern pre-emption very well in these terms: The rule with regard to pre-emption is well settled and has been enunciated on several occasions by this court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it.
tacit consent
[57] I also take a view that there is no case for tacit consent that was made by the respondent. In order to establish tacit consent, two tests are applied by our Courts. The first of which is known as no other reasonable interpretation test[54]. This simply entails that there must be unequivocal conduct[55] from which no other reasonable inference can be drawn other than an intended consent. The second of which is the most plausible probable conclusion test[56]. This simply implies looking for the most plausible and probable conclusion[57]. The Constitutional Court out of five judgments in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes & others (CHRE Amici Curiae)[58], made it clear that consent meant not simply acquiescence but voluntary agreement. The Court further stated that consent cannot be conferred unless it is asked for and given. In casu, the respondent apparently asked for consent but was not given. Thus consent cannot be conferred. On the facts of this case, an inference of age 60 being consented to is not the plausible and a probable conclusion to arrive at. As pointed out above, the available options were either ages 60 or 65. Thus, the conclusion I arrive at is that no tacit consent to change to age 60 was shown to exist[59].
[32] The Commissioner committed misconduct in respect of his duties as a Commissioner as he failed to reach a logical decision related to the evidence presented before him,. The Commissioner failed to give recognition to Mr Walker's testimony that the polygraph test itself would be used as an investigative tool to assist in determining who the perpetrators were. The Commissioner regarded this as a 'fishing exercise' requiring the Applicant to provide evidence proving a suspicion that Mazibuko and Makubela could possibly be the perpetrators.
contractual term to undergo polygraph test
JR1335/14
Crossroads Distribution (Pty) Ltd t/a Skynet Worldwide Express v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1335/14) [2020] ZALCJHB 78 (12 May 2020)
[30] The materiality of the term was confirmed in Nyathi v Special Investigating Unit[(2011) 32 ILJ 2991 (LC) at para 39.] , where the Court held that it was a material term of the contract to submit to a polygraph test and that the employee, by refusing to do so had repudiated a material term of the contract entitling the employer to terminate the contract.
[48] In OHL Supply Chain (Pty) Ltd v De Beer NO and Others [[2014] 9 BLLR 860 (LAC)] the labour Appeal Court upheld an award in which the Commissioner found the dismissal of employees based on their having "failed' a polygraph test remains an important tool at the workplace to detect deception provided that it is properly administered. A point blank refusal to under one whilst it is part of the disciplinary code and/or conditions of employment is cause for concern.
x
JR 537/2016
Sebothoma v Commission for Conciliation, Mediation and Arbitration and Others (JR 537/2016) [2020] ZALCJHB 197 (13 May 2020)
[59] The LAC confirmed in NUM obo Botsane v Anglo Platinum Mine (Rustenburg Section)[(2014) 35 ILJ 2406 (LAC)] that a generalized allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly. In casu, there was no substantiating testimony, no supporting documents and a complete lack of particularity.
distinction must be made between inferences, assumptions or speculations
JR 1971/18
Bradley v South African Police Department and Others (JR 1971/18) [2020] ZALCJHB 231 (14 October 2020)
[11] To the extent that it was not in dispute that the Arbitrator in this case was confronted with circumstantial evidence, the applicable approach is equally fairly settled. When dealing with circumstantial evidence as in this case, the inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. However, if the facts permit more than one inference, the most plausible inference must be selected, and the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn [5].[12] Furthermore, a distinction must be made between inferences, assumptions or speculations. Whilst inferences are drawn from existing facts, speculations or assumptions have no factual foundation to them[6]. Equally important is that when dealing with circumstantial evidence, the court is not required to consider every fragment of evidence individually, as it is the cumulative impression, (i.e., all the relevant evidence) that has to be considered[7].
[13] Applying the above principles to the facts of this case, I can state without hesitation that I am satisfied that the Arbitrators approach to the evaluation of the circumstantial evidence was correct. She had, contrary to the submissions made on behalf of the applicant, considered the totality of the evidence and, in that process, weighed the evidence of the applicant against that of the SAPS witnesses, and arrived at a finding that falls within the bounds of reasonableness.
(in the absence of a stated case) without parties giving oral evidence
JR 454/15
DEPACU obo Mphela and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR 454/15) [2020] ZALCJHB 232 (22 October 2020)
[32] A further decision of this Court that I align myself with in my finding is that of Rabkin Naicker J in SASSA v NEHAWU obo Punzi and Others[(2015) 36 ILJ 2345 (LC) at para 5 and 8.] where the principle is aptly set out as follows:[5] I fail to comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case) without parties giving oral evidence. A decision made in such a way means that the Labour court must answer all the following questions in the negative. . .[8] In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed.
polygraph test
JR648/18
Vesela Risk Services (Pty) Ltd v Commission for Conciliation , Mediation and Arbitration and Others (JR648/18) [2021] ZALCJHB 37 (28 January 2021)
DHL Supply Chain (Pty) Ltd v De Beer NO & Others (2014) 35 ILJ 2379 (LAC).
recorded some general observations about the introduction of polygraph evidence into court or arbitral proceedings and concluded that the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case.[7][14] In the present case, the respondent employees and other colleagues were subjected to a polygraph test following allegation of theft in the premises of one of Vuselas clients. All the employees failed the first polygraph test and were given an opportunity to undertake a second test at their costs in order to prove their innocence. All the employees who took the second test polygraph passed and escaped dismissal. The respondent employees refused to undertake the second polygraph test and were subsequently dismissed solely on the basis of the first polygraph test outcome.[15] Notably, the respondent employees contracts of employment state, inter alia, that if an employee fails polygraph test will be seen as breach of trust and may lead to dismissal after investigation. However, Vusela failed to conduct an investigation as a result of the polygraph test outcome or lead expert evidence on its cogency and reliability. Tritely, polygraph test can serve as corroboration of other evidence but not conclusive as a standalone.[8] In this instance, it is also telling that the cogency and accuracy of the application of the first polygraph tests was tainted by the results of the second tests as all who undertook the second test passed.
[16] In my view, the Commissioner reasonably found, on the basis of the dictum in Food & Allied Workers Union on behalf of Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt River,[(2010) 31 ILJ 1654 (LC).] referred to with approval in DHL Supply Chain,[(2014) 35 ILJ 2379 (LAC).] that Vusela should have conducted an investigation to determine the veracity and to corroborate the results of the polygraph test as it was insufficient to repay on those results alone.[11]
mere production of such a medical certificate is simply not sufficient when seeking to make out a case for condonation
JR 764/18
Kock v CCMA & Others (JR 764/18) [2021] ZALCJHB 101 (31 May 2021)
Mgobhozi v Naidoo NO and Others (2006) 27 ILJ 786 (LAC).
the Court dealt with an application for condonation where the explanation relied on a psychological condition (certainly comparable to the case in casu). The Court in Mgobhozi held that an affidavit had to be submitted to substantiate the explanation alluded to in the medical certificate,[11] and then concluded that a delay was unexplained in the absence of such an affidavit, reasoning as follows:[12] I cite but one example, namely that the appellant is alleged to have suffered from sane automatism for seven months. Even the most cursory research into the law reports on the topic of sane automatism and its use as a defence in criminal proceedings would reveal that it is a complex condition, requiring the assistance to the court of specialist psychiatrists, with a special interest in the field. For it to continue for seven months seems most incongruous. But that was for the appellant to explain to the Labour Court in acceptable fashion via affidavits from psychiatrists, not for the Labour Court or this court to speculate.
failure to contradict and failure to cross-examine
JR 1220/2018
Mulaudzi v City of Tshwane Metropolitan Municipality and Others (JR 1220/2018) [2021] ZALCJHB 223 (10 August 2021)
[106] In casu the arbitrator in his analysis of the evidence recorded more than once that the Applicant had failed to contradict Mr Macheves version or to put a different version to him, that the Applicants version was not put to the Respondents witnesses and that their evidence was uncontested in material respects.
[105] In Masilela v Leonard Dingler (Pty) Ltd[(2004) 25 ILJ 544 (LC) at par 28.] the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that: The problem that I have with the applicant's version where it differs from that of Masina is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit. In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438:'It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.'
[104] A failure to cross-examine a witness on any aspect, is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for cross-examination[President of the RSA v SARFU 2000 (1) SA 1 (CC).]. A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness.
expert evidence: medical certificates
JS567/2018
National Union of Metalworkers of South Africa (NUMSA) and Others v Kaefer Energy Projects (Pty) Limited (JS567/2018) [2021] ZALCJHB 280 (7 September 2021)
[45] The admissibility of a medical certificate was considered by the LAC in Mgobhozi v Naidoo NO & Others[(2006) 27 ILJ 786 (LAC)] and the following was said:[23] In order to determine whether the evidence of the doctors' certificates and the opinions they provide therein should be admissible in evidence in the application for review the Labour Court had to take into account the provisions of s 3(1)(c) of the Evidence Act and the factors enumerated therein.[24] The first factor in the said subsection requires the court to consider the nature of the proceedings - in this instance an application for condonation for the late fling of review proceedings. In considering the nature of the evidence the court should bear in mind that it relates to the expert evidence of two doctors relating to the condition of the appellant. Generally speaking opinion evidence cannot be given by laymen and is the preserve of persons specifically qualified and trained in a particular field - often described as experts.[25] In fields as esoteric as the workings of the mind and the effects on daily life - more especially the ability to instruct attorneys or bring proceedings on one's own - the courts are reliant upon the views of the medical profession. In this context psychologists and psychiatrists usually provide the evidential material necessary for the court to decide the issue. For the appellant to convince the Labour Court that he was mentally and/or physically incapable to bringing proceedings in that forum he had to have the evidence of such professionals.[26] The Evidence Act requires the court to consider the reason why the medical evidence was not provided in the form of affidavits. No reasons are given why no affidavits have been provided. It is not suggested that the doctors have passed away, have emigrated or are unavailable for some other cogent reason.[27] The absence of any such explanation is viewed in a most serious light. The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread - as I believe they are-it strengthens the need for courts to be especially vigilant against their misuse. One inference to be drawn in this application is that the medical practitioners were not prepared to go on oath to defend their certificates. Another is that they were not prepared to spare the time to explain their very truncated and laconic comments.[28] The absence of affidavits from the doctors means that the court is deprived of any elaboration of the widely and vaguely stated symptoms attributed to the appellant. The nature of the medication and the efficacy thereof are also not explained.[29] The Evidence Act speaks of prejudice to the third respondent. The latter has had no opportunity of having the appellant examined by its own practitioners and has had to rely on the vague allegations in the certificates. I cite but one example, namely that the appellant is alleged to have suffered from sane automatism for seven months. Even the most cursory research into the law reports on the topic of sane automatism and its use as a defence in criminal proceedings would reveal that it is a complex condition, requiring the assistance to the court of specialist psychiatrists, with a special interest in the field. For it to continue for seven months seems most incongruous. But that was for the appellant to explain to the Labour Court in acceptable fashion via affidavits from psychiatrists, not for the Labour Court or this court to speculate.[30] Although the Labour Court did not decide the issue of admissibility and merely determined the application on an acceptance of the certificates at face value, I believe it ought to have done so. I do not believe that it ought to have exercised its discretion to consider the certificates at all, in the absence of affidavits by the medical practitioners in question. For that reason alone the appeal must fail.[31] The court is also enjoined by the Evidence Act to consider the probative value of the hearsay evidence. At some levels the second enquiry posited above: namely whether the appellant showed that he was so incapacitated by his ailments that he could not bring the review proceedings timeously, falls to be considered under this factor.
[49] The LAC made it clear in Mgobhozi[] that when considering the nature of the proceedings per section 3(1)(c) of the Evidence Act, which in this instance is an unfair dismissal action, this Court should be alive to the fact that the medical certificates pertains to the expert evidence of the doctors who expressed a medical opinion on the applicant employees illnesses. Since they constitutes opinion evidence, it cannot be given by laymen, but by the respective doctors who issued the medical certificates.[50] When it comes to the consideration of the probative value of the hearsay evidence, it is clear that in the absence of the affidavits from the respective doctors who issued the medical certificates, this Court is asked to speculate on whether the 42 of applicant employees were in fact indisposed and the extent of their incapacity due to their ailments that necessitated that all of them be booked off sick for about a week or more.[18] Also, the interest of justice dictates that an explanation from the doctors be proffered because the conduct of the applicant employees was not only suspect, but resulted in an operational crisis, reputational damage and costs to Kaefer.
Evidence continue
polygraph tests
JR1124/19
GIWUSA obo Malemone and Others v Mashaba NO and Others (JR1124/19) [2021] ZALCJHB 356 (13 October 2021)
[9] Professor Tredoux pointed further that the Professional Board of Psychology recognised polygraph testing as unreliable and in violation of Health Professions Act and Employment Equity Act. Though it is a psychological test in nature but it is not classified by the Health Professions Council of South Africa in terms of Government Gazette notice 155 of 2017. He conceded that the polygraph test is not recognised as an acceptable form of psychological test. Portions of his report were read through the record.
[20] In following the Irvin & Johnson approach the first respondent was indeed tasked with a duty to determine an issue that he had no competency to pronounce upon. A regulatory position adopted by the Health Professions Council of South Africa cannot be quietly decided upon at the CCMA without involving the Council. The Council does have interest in the matter and ought to have either been joined or to have its decree challenged in a separate litigation. In the circumstances, the first respondents omission to deal with the evidence of expert witness does not render his award reviewable.
claim ito Section 77 (3): what an employee must primarily allege and prove
[23] Section 77 (3) of the BCEA provides that the Labour Court has concurrent jurisdiction with the civil Courts to hear and determine any matter concerning a contract of employment. From this section, it is clear that what the Labour Court must determine is a matter concerning an employment contract. In other words, an employee must primarily allege and prove the existence of an employment contract as well as the terms upon which the contractual claim is predicated. In this claim, Kekana seeks a repayment of the reduced salary; payment of the car and cellphone allowances. In order to succeed; Kekana had to show that in terms of the employment contract, he is entitled to a particular salary; a car and cellphone allowances. In Court, Kekana produced his written contract of employment. The contract has no terms that suggest a particular salary or the allowances he is claiming.
[25] With regard to the car allowance, this was more a benefit as opposed to a contractual term. There is undisputed evidence that the board resolved to withdraw this benefit. Kekana was consulted to provide information in order to retain the benefit. He became renitence. As a result, the withdrawal of the benefit was implemented. It may well be so that Kekana would have been able to demonstrate that the withdrawal of the benefit amounted to an unfair labour practice. However, this Court lacks jurisdiction over disputes involving an unfair labour practice.
Breach of section 34 of the BCEA
JS468/19
Kekana v Railway Safety Regulator (JS468/19) [2021] ZALCJHB 395 (13 October 2021)
[30] It is clear from the provisions of section 34 (1) (a) that an agreement is contemplated, that agreement must be in respect of the debt and must be in writing. Although the SOP was mentioned in evidence, it was never alleged and proven that the SOP constitutes the written agreement referred to in the section. By definition, an agreement in law is a manifestation of mutual assent by two or more persons to one another. It is a meeting of minds in common intention, and it is made through offer and acceptance. It may be so that the SOP constituted a pactum de contrahendo (a promise to contract). Corbett JA pointed out that a promise to contract is not a contract[[30] It is clear from the provisions of section 34 (1) (a) that an agreement is contemplated, that agreement must be in respect of the debt and must be in writing. Although the SOP was mentioned in evidence, it was never alleged and proven that the SOP constitutes the written agreement referred to in the section. By definition, an agreement in law is a manifestation of mutual assent by two or more persons to one another. It is a meeting of minds in common intention, and it is made through offer and acceptance. It may be so that the SOP constituted a pactum de contrahendo (a promise to contract). Corbett JA pointed out that a promise to contract is not a contract[5]. In other words, the Regulator could have approached Kekana and indicated to him that he has in terms of the SOP agreed to agree to a deduction of a debt.]. In other words, the Regulator could have approached Kekana and indicated to him that he has in terms of the SOP agreed to agree to a deduction of a debt.
relying on constitutionality issue
J1309/21
Futshane v Millard NO and Others (J1309/21) [2021] ZALCJHB 432 (3 November 2021)
[16] ... In addition, that the principle of subsidiarity prohibits parties from claiming direct reliance on the Bill of Rights when the right in question has been given effect to through specific legislation.[Solidarity v South African Police Service & Others [2019] 2 BLLR 187 (LC) at para 18.] In that instance, that right is to be protected by way of direct reliance on the specific subsidiary legislation, unless a party claims that legislation does not adequately protect the underlying fundamental right, which is not alleged in casu. I agree. The applicant is prohibited from placing direct reliance on the fundamental right of fair labour practice in the Constitution.
credibility of the witnesses
J1136/16
Sisonke Partnership t/a DSV Health Care (formerly UTI Pharma) v GIWUSA obo Zwane and Others (J1136/16) [2021] ZALCJHB 459 (8 December 2021)
[87] The approach to be adopted by arbitrators when faced with two disputing versions was set out in Sasol Mining (Pty) Ltd v Ngeleni NO and Others[(2011) 32 ILJ 723 (LC) at 727C-F.](Sasol Mining), where it was held that the arbitrator must conduct an. . . assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba NO & others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.[88] The arbitrator, faced with two conflicting versions, had to follow the approach as set out by this Court and she had to conduct an assessment of the credibility of the factual witnesses, their reliability and overall assessment of the inherent probabilities of the irreconcilable versions before her.[89] In Sasol Mining the Court held that it was one of the prime functions of a commissioner to ascertain the truth as to the conflicting versions before him. The Court held that: What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on that basis. Instead, he summarily rejected the evidence of each of the applicants witnesses on grounds that defy comprehension.
failure to cross-examine
JA17/2021
Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JA17/2021) [2022] ZALAC 2; [2022] 4 BLLR 324 (LAC) (27 January 2022)
[25]...President of the Republic of South Africa and Others v South African Rugby Football Union and Others:[12]The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn[13]and has been adopted and consistently followed by our courts.[14]
[26] The third respondent failed to make it clear to the complainant in cross-examination the precise nature of the imputation raised, in the sense not only that her evidence was to be challenged but how this was to be done. It was not put to her that her version was false or that it was denied by the third respondent. The result was that she was not given the opportunity to respond to such a challenge, including to deny any suggestion as to the falsity of her version.[15]
[28] While the third respondent on appeal took issue with the discrepancies in the complainants account on the basis that she had recorded in her statement that on 23 June 2015 the third respondent had said that I look like I taste nice in bed but at arbitration testified that he had said that I look nice in bed, or it is nice in bed, these discrepancies were not of such a nature as to warrant the wholesale rejection of her evidence. This was all the more so when her evidence clearly showed was that unwarranted remarks of a sexual nature had been made to her by the third respondent. It followed that on a conspectus of the material before the arbitrator, the finding that the third respondent had committed the misconduct alleged was supported by the evidence and the arbitrators finding to this effect fell within the ambit of reasonableness required. In finding differently the Labour Court erred.
the Commissioner was therefore confronted with was mutually destructive versions
JR 1103/18
Barnes Fencing Industries (Pty) Ltd v Justice Santjie Mthombeni N.O and Others (JR 1103/18) [2022] ZALCJHB 13 (4 February 2022)
[22] The approach when confronted with mutually destructive factual versions has long been set out in Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others[2003 (1) SA 11 (SCA)]. It required of the commissioner to make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.
Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others[2003 (1) SA 11 (SCA)].
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's 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 extra curial 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."
pre-trial minute it is agreed that documents would serve as evidence of what they purport to be without admitting that the contents thereof
JS 751 / 18
Smyth v Anglorand Securities Ltd (JS 751 / 18) [2022] ZALCJHB 72 (28 March 2022)
[124] In any event, the disciplinary hearing transcripts were never admitted as uncontested evidence. In terms of paragraph 8.1 of the pre-trial minute it is agreed that documents would serve as evidence of what they purport to be without admitting that the contents thereof are correct. As a result, it was never agreed that the content of the transcript of the disciplinary hearing would serve as undisputed evidence of the misconduct with which the applicant has been charged. It was thus necessary for the respondent to at least substantiate the misconduct charges by way of testimony by a witness or witnesses. As said in Baxter supra:[]Although the findings of the disciplinary enquiry and the witness statements form part of the discovered documents, it was agreed in the pretrial minute that, while the documents were what they purported to be, the truth of their contents was not admitted and if the respondents wished to rely on such evidence the relevant witnesses would need to testify.
argumentative and condescending in his testimony and avoided answering question
JS 751 / 18
Smyth v Anglorand Securities Ltd (JS 751 / 18) [2022] ZALCJHB 72 (28 March 2022)
[125] And finally in this regard, insofar as the testimony of the applicant concerning the misconduct charges is contradicted by any of the testimony presented by Carter, I have little hesitation in preferring the evidence of the applicant. Although Carter initially impressed me as a witness when he testified, my view in this regard swiftly dissipated as his testimony continued, and especially when he was cross-examined. Carter was extremely argumentative and condescending in his testimony and avoided answering questions that he dd not like the answers to. He often clearly anticipated what the applicants counsel was heading towards when being cross-examined, and he adapted his answers accordingly. He was unwilling to make obvious concessions. In Ehlers v Bohler Uddeholm Africa (Pty) Ltd[(2010) 31 ILJ 2383 (LC) at para 27.] the Court held that a witness that was argumentative and constantly asked for questions to be repeated was not credible. In Ngozo and Others v Scorpion Legal Protection[(2008) 29 ILJ 1039 (LC) at para 48.] the Court equally had regard to a witness being argumentative, but then also considered the fact that the witness would pose questions back at the respondent's counsel and was evasive in answering a number of critical questions, in rejecting the testimony of the witness. In Hlongwane v Cisco Systems SA and Another[(2011) 32 ILJ 625 (LC) at paras 43 44.] the Court held as follows in rejecting the entire evidence of the applicant in that case, which in my view is mostly quite descriptive of the testimony of Carter in casu: The applicant was, with due respect to him, a profoundly poor witness to say the least. It would appear he came into the witness stand having considered and strategized as to what his testimony was going to be irrespective of what questions would be put to him. His strategy seems to have been that the truth was only that which favoured his case and that he would not change his stand irrespective of questions or versions put to him. His strategic approach was to deal with difficult questions or those whose underlying purpose was to seek to undermine his case by bringing in some points unrelated to the questions. He was indeed a man loyal to his strategy but at times seems to have failed to understand the difference between strategy and tactics. He is a man not to be trusted with the truth and thus anything in his version that purports to be the truth has to be evaluated against all probabilities before it can be accepted as such. As I listened and observed his mannerisms in the witness stand, I wondered whether he seriously believed in his own story. He frequently laughed when questioned during cross-examination, something he did not do much of, if at all, during evidence-in-chief or re-examination. It was also apparent during cross-examination that the applicant evaluated every question put to him with a view to determining the underlying purpose before he could answer.
that there was no evidence directly linking the dismissed employees to the theft of money as outlined above.
JR1206/18
Kit Kat Group (Pty) Ltd v The CCMA and Others (JR1206/18) [2022] ZALCJHB 113 (4 May 2022)
[8] In justifying the dismissal, Kit led evidence in relation to only two transactions outlined above involving the dismissed employees. There was overwhelming and undisputed testimony that Kit lost money through the scheme as outlined above. There was also uncontested evidence that the dismissed employees operated the till numbers as outlined above. There was also clear evidence that they executed the transactions in question. The money lost equates the transactions executed by the dismissed employees. The only basis upon which Harmse found that the dismissal was substantively unfair is that there was no evidence directly linking the dismissed employees to the theft of money as outlined above. Harmse asked the question as to how the customer slips were placed in the different tills and how the money was removed from the tills. She concluded that there was no evidence to answer those questions. These are questions to be asked by a criminal Court, because, the standard of proof is that of beyond reasonable doubt.
video footage
JR541/18
Chrome Traders (Pty) Ltd v Commissioner Verhoef N.O. and Others (JR541/18) [2022] ZALCJHB 118 (12 May 2022)
[17] The term exhibit is employed mainly in proceedings. Arbitrations take a form of civil proceedings. In civil proceedings, an exhibit is documentary evidence, in a form of video recording, which forms part of the testimony to be reviewed by the decision maker. Merriam Websters Dictionary defines exhibit to mean a document or material object produced and identified in court or before an examiner for use as evidence. It must follow that when Verhoef labelled the CDs as exhibits, as a trained commissioner knew or ought to have known that anything taken as an exhibit is taken for evidentiary purposes. Verhoef did not take time to explain to any of the parties, in particular Chrome, the legal import of labelling the CDs as exhibits. He was duty bound to explain that to the parties as lay litigants.[18] Despite having recorded the CDs as evidence serving before him, he prevented Chrome from leading further evidence in support of that piece of evidence simply because the witness to be led on the contents of the footage was not the one who extracted the footage. That was inappropriate. The issue before him around the footage was not that there was phony footage but whether the images to be viewed therein will show an image that fits Mkondos person. He should have allowed the viewing of the images and await the testimony to be presented by Mr De Kock (Kock) on the identification of the images contained therein. If Kock had encountered Mkondo as a person before the incident, it probably would not have been difficult for him to state that the image of a person shown on the footage is that of Mkondo. Mkondo would have been in a position to challenge that testimony in any manner whatsoever.
[19] Generally, video evidence is considered real evidence. It is evidence that a decision maker may examine by himself or herself. Video footages are also governed by the provisions of Electronic Communications and Transactions Act[No. 25 of 2002, as amended.] (ECTA). When it comes to its admissibility, the provisions of section 15 must be taken into account. The section reads thus:15(1) in any legal proceedings[3], the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence (a) On mere grounds that it is constituted by data message; or(b) If it is, the best evidence that the person adducing it could reasonably be expected to obtain, on the ground that it is not in its original form.(2) Information in the form of a data message must be given due evidential weight.(3) In assessing the evidential weight of a data message, regard must be had to (a) The reliability of the manner in which the data message was generated, stored or communicated;(b) The reliability of the manner in which the integrity of the data message was maintained;(c) The manner in which its originator was identified;(d) Any other relevant factor.
[21] In the final analysis, this Court agrees with a contention that Verhoef ought to have viewed the footage to enable him to assess its evidentiary weight. Having failed to do so, Verhoef committed an irregularity that vitiates his arbitration award. On this basis alone, the arbitration award issued by Verhoef does not pass the constitutional muster of reasonableness.
status of the documents to be included in the trial bundle
JR 269/2020
Mashigo v Safety and Security Sectoral Bargaining Council and Others (JR 269/2020) [2022] ZALCJHB 141 (1 June 2022)
[26] In Hillside Aluminium (Pty) Ltd v Mathuse and others[(2016) 37 ILJ 2082 (LC) at paras 56 62.] (Hillside), this Court considered the status of evidence and held that:[56] In litigation parties would prepare bundles of documents and the documents included in the trial bundles, would be included as documentary evidence which the parties intend to rely on in support of their respective cases. It is a common practice for parties to agree on the status of the documents to be included in the trial bundle.[57] In my view there are three possible scenarios.[58] The first scenario is where there is no agreement on the authenticity or status of documents or where the authenticity is disputed. In such instances the party wishing to produce a document and wants to rely on the document as evidence, has to prove the authenticity of the document by leading evidence and if the authenticity is not proved or admitted, the document is inadmissible, may not be used in cross-examination and cannot be considered as evidence.[59] The second scenario is where parties agree that documents are what they purport to be. This means that the party wishing to rely on the document, does not have to prove the authenticity of the document but may lead evidence and rely on the document on the basis that it is what it purports to be. In this instance documents must be introduced as evidence and cross-examination on such documents is permissible. The presiding officer can accept the document as evidence insofar as it was properly introduced by witnesses. Where a document is agreed to be what it purports to be, but no evidence is adduced on the document, the presiding officer cannot mero motu consider such document as evidence merely because it is included in a trial bundle.[60] The third scenario is where the parties agree that the documents in the bundle should be regarded as evidence. In this instance the presiding officer is entitled to accept the contents of the documentary evidence as if it were evidence adduced before him or her and even if no witness testifies about it, it can be considered as relevant and admissible evidence.[61] Where the document is a transcript or record of another proceeding, the same principles apply. Where the parties agreed that the transcript is what it purports to be and a true reflection of what purports to be recorded, it means that the record is authentic and correctly reflects that the proceedings indeed took place. In this scenario contradictions in testimony could be canvassed during cross-examination. The presiding officer is entitled to consider the portions of the transcribed record that were introduced by witnesses, either in evidence in chief or cross-examination, as evidence. The presiding officer cannot merely accept the entire record as evidence, but can accept as evidence those portions introduced by witnesses.[62] Where the parties agreed that the entire transcript should be regarded as evidence before the presiding officer, the entire record could be considered and accepted as if it was evidence that was adduced before the tribunal where it was introduced, without the need for evidence to be adduced on it. In this scenario the evidence given at the disciplinary hearing is regarded as evidence at the arbitration. This is an extraordinary scenario and requires an explicit and clear agreement between the parties.[27] In casu, the parties specifically agreed that the record of the disciplinary hearing and previous arbitration proceedings must be admitted as evidence of the arbitration and that no witnesses will be called. This agreement is in accordance with the third scenario, as set out in Hillside. The effect of the agreement is that the entire record, which included the transcript of the evidence previously adduced by the Applicant and the Respondents witnesses, could be considered and accepted as if it was evidence adduced before the arbitrator.
Evidence continue
polygraph test
JR823/20
Endeto Engineering (Pty) Ltd v Metal & Engineering Industries Bargaining Council and Others (JR823/20) [2023] ZALCJHB 26 (20 February 2023)
[55] As set out above, the result of Mr Lovett’s polygraph test was that no deception was detected. The Applicant’s recorded that Mr Lovett “was found to be truthful” is a step too far, particularly in the absence of expert evidence in this regard.
"[56] In DHL Supply Chain (Pty) Ltd v De Beer N.O and Others, the LAC held as follows concerning the import of polygraph testing:
‘[29] An example of a polygraph being used in a misconduct case is Truworths Ltd v CCMA (2009) 30 ILJ 677 (LC). In a review, the award was set aside for a myriad of irregularities, including a failure to have regard to all the evidence, amongst which was evidence of polygraph tests. (at para 38) Further, in that judgment, relying on the observations of Grogan A in Sosibo & others v Ceramic Tile Market (2001) 22 ILJ 677 (CCMA), it was held at para 37 that a polygraph is useless on its own but may be ‘taken into account’ together with ‘other supporting evidence’. The dictum goes on to say that a polygraph can serve as corroboration of other evidence."
[30] These considerations beg the question about what a failed polygraph test really produces by way of usable information. Only the inference to be drawn from the failure of the test is useful as material to determine probabilities. In the absence of expert evidence to explain what that inference is, either generically, or within the bounds of the specific instance itself, and also to justify the explanation of what that is, there is nothing usable at all that might contribute to the probabilities. In this appeal, DHL’s consent form, signed by the two respondents, states that the test would indicate that the worker was either involved or not involved in the stock loss. That premise is questionable, and to belabour the point, required the kind of expert evidence mentioned above to render it worthy of consideration.
[31] In summary, the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case.’
double jeopardy defence
JR 1211 / 2018
SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others (JR 1211 / 2018) [2023] ZALCJHB 56; (2023) 44 ILJ 1317 (LC) (13 March 2023)
[31] The defence of double jeopardy derives from criminal law and provides that an accused person cannot be tried twice for the same offence. In an employment context, the defence is to the effect that once an employer has imposed a sanction or a disciplinary penalty, the matter may not be re-opened to allow the employer the opportunity to revise the penalty, and in particular, to impose a more severe penalty.[A van Niekerk, M Christianson et al, ‘Law@work’, (LexisNexis South Africa), 5th ed, at pp 315 – 316.]
"[32] However, as will be illustrated infra, the courts have not adopted the double jeopardy defence in an employment context without qualification or reservation. Instead, the courts adopted an approach to the effect that if an employee has already been disciplined for an offence, it does not (automatically) mean that the employer is precluded from holding another disciplinary enquiry and imposing a more severe sanction or dismissing the employee for the same offence. The ultimate determining factor is fairness and a second hearing will be permissible if the circumstances justify it.
"
"[33] In BMW (SA) (Pty) Ltd v Van der Walt[(2000) 21 ILJ 113 (LAC). ] (Van der Walt), the majority of the LAC found that the question of whether a second disciplinary hearing may be held against an employee would depend on all the circumstances and whether it was, in all the circumstances, fair to do so. It was found not unfair to hold a second disciplinary enquiry where the full extent of the misconduct was not known to the employer at the time of the first disciplinary enquiry. The LAC held that:
‘… it is unnecessary to ask oneself whether the principles of autrefois acquit or res iudicata ought to be imported into labour law. They are public policy rules. The advantage of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law fairness and fairness alone is the yardstick.’[6]"
[35] In Branford v Metrorail Services (Durban) and others[(2003) 24 ILJ 2269 (LAC).] (Metrorail), the LAC was again faced with a case where an employee was issued with a written warning, but subsequently, the employer became aware of the fact that the misconduct for which the employee was given a written warning, was more serious and the employee was charged again and dismissed. The arbitrator found the employee’s dismissal unfair as he held the view that the warning issued to the employee was binding on the employer and that it was not permissible for the employer to later charge him in respect of the same conduct.
"[36] The LAC clarified the test as set out in Van der Walt and made it clear that it was incorrect to contend that the test is that a second enquiry is only permissible in exceptional circumstances. It was confirmed that the test was one where fairness alone was the decisive factor in determining whether or not a second enquiry is justified. It was held that:
‘The concept of fairness, in this regard, applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case.’[8]"
[41] It is evident from the authorities that an employer can institute disciplinary action a second time for conduct that arose from the same set of facts and that fairness will determine whether the employer is justified in instituting disciplinary action a second time.
"[53] Furthermore, the charges in the first disciplinary hearing, centred on the several attempts to access the Municipality’s bank account, without authority to do so. The charges in the second disciplinary hearing centred on the sharing of a password and the failure to comply with the Respondent’s IT policy, which resulted in Mr Malatsi’s computer being used to do fraudulent activities and which exposed the Municipality to a serious risk.
[54] The misconduct charges in the first and second disciplinary hearings were distinct from each other, a clear reason why the principle of double jeopardy finds no application."
"[63] It is trite and has been accepted by this Court that an employer has the right to discipline its employees, of course in a lawful and fair manner. In fact, the disciplining of employees is the duty and the prerogative of the employer and an employer remains dominis litis in deciding whether an employee is to be charged for misconduct and if so, what the nature of the charges would be.
"
care is to be taken not to find against a person merely as punishment for untruthful evidence
JA101/2021
South African Revenue Service v National Education, Health And Allied Workers Union obo Kulati and Another (JA101/2021) [2023] ZALAC 11 (21 June 2023)
[25] It is useful to return to the legal maxims which form some of the foundations of our law. Pertinent to this case is the fact that the maxim semel mentitus, semper mentitur (once untruthful, always untruthful) and falsum in uno, falsum in omnibus (false in one thing, false in all) do not apply in our law of evidence.[7] Untruthful evidence or a false statement does not always justify the most extreme conclusion and the weight to be attached to such evidence must be considered having regard to the circumstances of each case,[8] which include the nature, extent, materiality and impact of the false testimony and the possible reasons why such testimony was given. In addition, care is to be taken not to find against a person merely as punishment for untruthful evidence.[9] Where a witness is shown to have deliberately lied on one point, it does not follow that a conclusion must be drawn that their evidence on another point cannot safely be relied upon.[10]
"[7] Rex v Gumede 1949 (3) SA 749 (A).
[8] S v Mtsweni 1985 (1) SA 590 (A).
[9] S v Burger and Others 2010 (2) SACR 1 (SCA) at para 30.
[10] S v Oosthuizen 1982 (3) SA 571 (T)."
authors of discovered documents are called as witnesses
DA27/22
State Information Technology Agency SOC Limited v Commission for Conciliation Mediation and Arbitration and Others (DA27/22) [2024] ZALAC 19 (26 March 2024)
[38] The Supreme Court of Appeal in Rautini v PRASA [2021] ZASCA 158 (8 November 2021)., interpreting a similar agreement, held that the phrase does not equate to admission of the contents of documents and parties are thus not exempt from proving the originality and authenticity of discovered documents to ensure their admissibility as evidence and to ensure that the authors of discovered documents are called as witnesses. As mentioned, the record shows that the admissibility of those documents was pertinently challenged by Mr de Freitas.
credibility finding / challenging authenticity of signatures
JA 32/23
Workforce Staffing (Pty) Ltd v Mjoli and Another (JA 32/23) [2024] ZALAC 9; [2024] 7 BLLR 734 (LAC); (2024) 45 ILJ 1627 (LAC) (11 April 2024)
"[25] Although an appeal Court will ordinarily be reluctant to disturb credibility findings made by a trial court, this is not an immutable rule. In Allie v Foodworld Stores Distribution Centre (Pty) Ltd and others[2004 (2) SA 433 (SCA); [2004] 1 All SA 369 (SCA) at para 38.] the SCA (per Navsa JA) said the following:
‘Of course, the judicial officer, who has sight of the witnesses and is able to assess the evidence from nearby, is the best person to gauge their demeanour. The record of such evidence, however, speaks for itself. If the witness is mendacious, contradictory or evasive, this will appear from the record. And if the judicial officer has justified criticism of a witness or of his or her evidence, the justification for such criticism will normally also appear from the record. Even more so will this be the case when a credibility finding is made against a particular witness. Although a Court of appeal is reluctant to interfere with credibility findings made by the court of first instance, it is not obliged to accept such findings if they should not appear to be justified.’"
"[24] In undertaking its credibility analysis, the Court lost sight of the necessity of considering the underlying probabilities. In National Employers’ General Insurance Co Ltd v Jagers[1984 (4) SA 437 (E); [1984] 4 All SA 622 (E) at 440D-441A.], Eksteen AJP observed:
‘It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance or probabilities favours the plaintiff, then the Court will accept his version as being probably true. If, however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.
It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact, as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is hard to an estimate of relative credibility apart from the probabilities.’"
[37] What the Court ignored in its assessment of the probabilities of the competing versions before it includes the fact that there were five signature samples that served before the Court, none of which were interrogated. The evidence by both Moalusi and Panman, during cross-examination, was that the signatures looked “the same”. These observations were not seriously challenged by the employees’ representative. The Court was required in the circumstances to have engaged in a comparison of the signatures of the employees on the documents that were before the Court. The Court’s failure to do so was a misdirection, and its conclusion that the separation agreements were fabricated was flawed.
[41] The employees’ attack on the separation agreements was limited to a denial of their signatures on the respective documents. They did not dispute that the terms of the agreements record the fact of a mutually agreed termination of employment on the stipulated terms, or raise any other basis for calling the content of the document into question. The agreements unequivocally provide for a mutually agreed termination of employment. That being so, there was no dismissal for the purposes of section 186 (1) of the LRA.
hearsay at CCMA / Polygraph tests inadmissible evidence
JA46/23
Numsa obo Mokase v Nissan South Africa Ltd and Others (JA46/23) [2024] ZALAC 16 (23 April 2024)
[14]...A commissioner is entitled in terms of section 138(1) of the Labour Relations Act[5] (LRA) to determine the manner in which an arbitration is to be conducted so as to determine the dispute fairly and quickly, with the minimum of legal formalities; and, in terms of section 138(2), to exercise a discretion as to the form of the proceedings during which evidence may be adduced.
[15] The general rule is that hearsay not admitted in accordance with the provisions of the LEAA is not evidence at all.[Ndhlovu and others v S [2002] ZASCA 70; [2002] 3 AII SA 760 (SCA) (Ndhlovu) at para 14.] While notionally a commissioner is not obliged to apply section 3 of the LEAA because of the discretion bestowed by section 138 of the LRA, this Court has recognised that it is prudent that section 3 be applied to ensure both a fair process and outcome at arbitration.[Exxaro Coal (Pty) Ltd and another v Chipana and others (2019) 40 ILJ 2485 (LAC) at paras 19 and 21.] This is so in that where it is not, it may lead to a decision which a reasonable decision-maker could not reach.
[17] The importance of a timeous ruling on the admissibility of the hearsay evidence is that it provides parties with the opportunity to make submissions on the issue and, if informed that such evidence is to be excluded, to consider whether it is possible to rely on other evidence or not. Given the nature of the evidence and the reliance placed on it in the proceedings before the commissioner, the failure to determine the issue and the decision later simply to exclude such evidence, without having regard to the provisions of section 3 or make a timeous ruling on its admissibility, constituted a material misdirection on the part of the commissioner and led to a gross irregularity in the conduct of the proceedings.[8]
"[19]...In the approach to and treatment of the evidence adduced, the commissioner was required to take cognisance of the fact that circumstantial evidence had been advanced in respect of which:
‘…two cardinal rules of logic … cannot be ignored:
(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.
(2) The proved 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 a doubt whether the inference sought to be drawn is correct.’[R v Blom 1939 AD 188 at 202 - 3.]"
[25] It follows that, although for different reasons, the Labour Court did not err in upholding the review application and setting aside the arbitration award. In its reasoning, the Labour Court erred in disregarding the decision of this Court in DHL Supply Chain (Pty) Ltd v De Beer NO and others[[2014] ZALC 15; (2014) 35 ILJ 2379 (LAC) at para 31.] (DHL) to find that the commissioner ought to have placed reliance on the polygraph tests conducted. The finding made by the Labour Court in this regard was erroneous given that no expert evidence had been put up pertaining to the manner in which such polygraph tests had been conducted or their results analysed. It followed that the commissioner cannot be faulted for disregarding the results of such tests.
searching the employee’s bag without his authorisation or permission and in his absence
JR2281/21
SACCAWU obo Dlamini v Commission for Conciliation, Mediation and Arbitration and Others (JR2281/21) [2024] ZALCJHB 180 (29 April 2024)
he removed the company’s property (lemon juice) without approval or authorisation.
[21] The company had to prove that the bottle allegedly removed from the employee’s bag contained lemon juice. The company failed to discharge its onus. The investigation, which involved taking and searching the employee’s bag without his authorisation or permission and in his absence was, in my view, not only clumsily and poorly conducted, but it also violated the employee’s fundamental right to privacy enshrined in the Constitution.[7]
where parties agree that the documents are what they purport
JR320/2022
Gauteng Film Commission v Commission for Conciliation, Mediation and Arbitration and Others (JR320/2022) [2024] ZALCJHB 229 (4 June 2024)
"22.4 The applicant correctly pointed out that, where parties agree that the documents are what they purport to be, this is simply an admission that such documents are authentic. The admission does not permit the commissioner to treat such documents as evidence, in the absence of evidence relating to such documents.[4] The references to evidence in the ruling can only mean that the commissioner had regard to the documents, and treated them as evidence.
22.5 The applicant contends that the commissioner, having found that there was a dismissal, failed to give it an opportunity to prove that the dismissal was substantively fair.[5] As a result, oral evidence was not presented by either party in respect of the disputes of fact - including those in the pre-arbitration minute. It is clearly prejudicial to have deprived the applicant of an opportunity to demonstrate that the dismissal was fair.
22.6 The applicant submits that, despite the fact that both parties were legally represented, the commissioner should, nevertheless, have insisted on oral evidence because evidence was required on key issues, including whether the third respondent held a belief that his employment contract would be renewed, and such belief was reasonable. I simply cannot accept that the commissioners must intervene to the same degree where parties are represented. Legal practitioners are trained professionals, and do not require the guidance of commissioners. The role of the commissioner is not to guide and assist all who appear before them. Instead, the role of the commissioner is “to perform a balancing act as there is a thin dividing line between the management of the arbitration and getting involved in the fray.” [6]
"
not adduce any reliable or credible evidence to show how Zulu had conspired against him
JR1219/2021
Khubeka v Metal Engineering Industries Bargaining Council and Others.rtf (JR1219/2021) [2024] ZALCJHB 249 (25 June 2024)
[16] The Arbitrator concluded that in the light of the common cause facts that the welding rods were found in his vehicle, the Applicant did not adduce any reliable or credible evidence to show how Zulu had conspired against him or had access to the rods in circumstances where on his own version, it was impossible for any unauthorised employee to access the material from the Stores.
Hearsay evidence: The arbitrator held that the failure to call the authors of the articles amounted to no evidence having been led against the employees. In this regard, he was correct as there was no application before him for its admission.
JA21/22
Pioneer Foods (Pty) Ltd t/a Essential Foods v Shear N.O. (JA21/22) [2024] ZALAC 46 (18 October 2024)
Newspaper and Facebook articles – Complaint of not admitting hearsay evidence – Appellant concedes that evidence it presented is hearsay – Contends arbitrator should have found it to be in interests of justice to admit such evidence – Arbitrator had no obligation to consider admission of hearsay evidence without an application for such admission – Appellant’s evidence was properly rejected – Appeal dismissed – Law of Evidence Amendment Act 45 of 1988, s 3(1).
[27] The appellant concedes that the newspaper and Facebook evidence it presented is hearsay but contends that the arbitrator should have applied section 3(3) of the Act and found it to be in the interests of justice to admit such evidence. I agree with the Labour Court that in the absence of a foundation having been laid for the admission of hearsay evidence in terms of the Act, the appellant’s evidence was properly rejected.
"[24] In S v Ndhlovu and others[[2002] ZASCA 70; 2002 (2) SACR 325 (SCA) at para 18.] (Ndhlovu), the Supreme Court of Appeal explained the rule as follows:
‘Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the court’s judgment, nor on appeal. The prosecution, before closing its case, must clearly signal its intention to invoke the provisions of the Act, and, before the State closes its case, the trial judge must rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.’"
[25] In Exxaro Coal (Pty) Ltd v Chipane and Others[[2019] ZALAC 52; (2019) 40 ILJ 2485 (LAC).], the Court applied Ndhlovu in an arbitration context and the Labour Appeal Court said that “[t]he same ought to be true for arbitration conducted in an adversarial fashion because fairness to both parties is paramount”.[9] The fact that the arbitrator rejected, without ruling on the admissibility of the hearsay evidence, does not warrant the setting aside of these proceedings. The case is distinguishable because the arbitrator was not called upon to decide the issue at any stage of proceedings. The arbitrator held that the failure to call the authors of the articles amounted to no evidence having been led against the employees. In this regard, he was correct as there was no application before him for its admission.
Forensic Investor report
JR1575/21
Musawenkosi Mkhwanazi v Tokiso Dispute Settlement (Pty) Ltd (JR1575/21) [2024] ZALCJHB 271 (5 July 2024)
"[18] I cannot fault this finding in the least. In Cawood v Two Rivers Platinum Mine and others [(2023) 44 ILJ 1241 (LC) at para 29.] the Court held thus:
“In relation to Mr. Swanepoel, the applicant contends that the Commissioner erred in being guided by the evidence of Mr. Swanepoel because Mr. Swanepoel was not present or party to most of the issues he testified to. Mr Swanepoel was the investigating officer and was called to give evidence in his capacity as such. By design, investigators rely on evidence gathered during the investigation. They are seldom party to the issues they investigate and later testify on at an enquiry and/or court sitting. Their duty is to investigate and present their findings and/or recommendations to the presiding officer. Therefore, the applicant’s argument that Mr. Swanepoel was not present or party to most of the issues he testified about is untenable and falls to be rejected.”"
[19] The Labour Court made it clear in Cawood that the evidence of an investigating officer cannot be regarded as hearsay evidence. The award of the arbitrator aligns to this reasoning.
purpose of cross-examination
JR2548/19
Sandvik Mining and Construction (RSA) (pty) Ltd v Nkuna and others (JR2548/19) [2024] ZALCJHB 292 (22 July 2024)
"[79] In Platinum Mile Resources (Pty) Ltd v CCMA and Others[(JR 427/20) [2023] ZALCJHB 52 (1 March 2023) at paras [41] – [45].], the Court per Prinsloo J entrenched the following principles concerning versions not put to witnesses:
‘[41] After a witness has given his or her evidence in chief, the other party is given the opportunity to cross-examine the witness. The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.
[42] A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him.
[43] The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper.[7] Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence.[8] From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value.[9]
[44] A failure to cross-examine a witness on any aspect is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for cross-examination.[10] A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness.
[45] In Masilela v Leonard Dingler (Pty) Ltd,[11] the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that:
“The problem that I have with the applicant's version where it differs from that of Masina is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit.”
In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438:
“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.’’ [ Own emphasis]
"
Evidence continue
failing to call witness
AMCU obo Maluleke and Others v Gold Plat Recovery (Pty) Ltd (JS202/21) [2024] ZALCJHB 289; [2024] 10 BLLR 1043 (LC) (29 July 2024)
"36] In Brand v Minister of Justice and another[1959 (4) SA 712 (A) at 715] Ogilvie Thompson JA stated:
“Now where a witness, who is available and able to elucidate the facts, is not called by a party such failure 'leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him”. (Own emphasis)"
when commissioners are faced with contradicting versions
JR50/22
Tempest Car Hire v Lebyane and Others (JR50/22) [2024] ZALCJHB 283 (1 August 2024)
"27] In Sasol Mining (Pty) Ltd v Ngqeleni NO and others[6], this Court held that:
‘[7] Regrettably, the commissioner’s logic (or more accurately, the lack of it) permeates many of the awards that are the subject of review proceedings in this court. Some commissioners appear wholly incapable of dealing with disputes of fact - their awards comprise an often-detailed summary of the evidence, followed by an ‘analysis’ that is little more than a truncated regurgitation of that summary accompanied by a few gratuitous remarks on the evidence, followed by a conclusion that bears no logical or legal relationship to what precedes it. What is missing from these awards (the award under review in these proceedings is one of them) are essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as then was) observed in Lukhanji Municipality v Nonxuba NO & Others (2007) ILJ 886 (LC); (2007) 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.
[8] In SFW Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA), the proper approach to the resolution of factual disputes was explained by the Supreme Court of Appeal (per Nienaber JA) in the following terms at para 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 summarized 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, (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 ‘reliability will depend, apart from the other 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 therefor. 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 the 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.’"
[29] The commissioner only focused on credibility and did not deal with probabilities or improbabilities of the different versions, failed to take into consideration that the evidence of the applicant’s witnesses corroborated each other, and failed to establish the reliability of the evidence of the witnesses.
"credibility of a witness. In Santam Bpk v Biddulph, that:
‘However, the proper test is not whether a witness is truthful or indeed reliable in all that he says, but whether on a balance of probabilities the essential features of the story which he tells are true (cf R v Kristusamy 1945 AD 549 at 556 and H C Nicholas ‘Credibility of Witness’ (1985) 102 SALJ 32 especially at 32 – 35).‘"
"[33] In S v Mkohle[8], the Appellate Division held that:
‘Contradictions per se do not lead to the rejection of a witness’ evidence… [T]hey may simply be indicative of an error… [N]ot every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance and their bearing on other parts of the witness’ evidence.’"
[44] The finding by the commissioner that the evidence of the applicant was hearsay evidence materially affected the outcome of the arbitration proceedings. In terms of section 3(4) of the Law of Evidence Amendment Act[10] (LEAA), hearsay evidence means evidence whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.
rule 29 of the CCMA
JA98/22
Moolman v Commission For Conciliation, Mediation and Arbitration and Others (JA98/22) [2024] ZALCJHB 339 (22 August 2024)
[58] The test to apply in determining whether a document called upon to be disclosed or discovered is relevant to any matter under consideration was set out in the English case of Compagnie v Finance et Commerciale du Pacifique v Peruvian Guano Co (1882),[27] which was subsequently adopted and accepted as part of the South Africa law.[28]
"59] The test to apply in determining the relevancy of a document called upon to be disclosed is set out in Peruvian Guano [11 QBD 55.] as follows:
“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit (the document) either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”"
"[60] The process underlying the discovery and disclosure of relevant documents is underpinned by the consideration of ensuring a fair trial. This is noted by the Constitutional Court in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as amicus curiae) In re: Masetlha v President of the Republic of South Africa and another,[2008 (5) SA 31 (CC) at para 25.] when it said:
""Ordinarily courts would look favourably on a claim of a litigant to gain access to documents or other information reasonably required to assert or protect a threatened right or to advance a cause of action. This is so because courts take seriously the valid interest of a litigant to be placed in a position to present its case fully during the course of litigation. Whilst weighing meticulously where the interests of justice lie, courts strive to afford a party a reasonable opportunity to achieve its purpose in advancing its case. After all, an adequate opportunity to prepare and present one’s case is a time-honoured part of a litigating party's right to a fair trial.”"
[61] In the present matter, the Labour Court reviewed the commissioner's procedural ruling because the documents were irrelevant. The respondents' argument, which the Labour Court accepted, was that the appellant had failed to show the relevancy of the documents in question in relation to the dismissal dispute.
67] Furthermore, the Labour Court erred in reviewing and setting aside the commissioner's ruling in this matter because the respondents made no case that the commissioner committed a gross irregularity in ordering the disclosure of the documents. The commissioner had broad discretion to order or refuse the applicant's request to disclose the documents.
"[72] The courts often resort to a confidentiality regime to balance the interests of parties in a dispute over discovery or disclosure. In Masetlha, the Constitutional Court held that whenever there is a claim for confidentiality over a call for discovery or disclosure of documents, consideration of fairness comes into play. In balancing the interests of both parties, the court will consider the protection of the property of the objecting party in the form of confidential information and the need to ensure that the other party is not hindered in presenting its case. [34] In Helen Suzman Foundation v Judicial Service Commission[35] the Constitutional Court held that:
“a court that has found the information in issue to be confidential has a discretion to make an order concerning access to it…”"
The test for absolution from the instance
JS795/2022
Solidarity obo Members v Eskom Holdings (JS795/2022) [2024] ZALCJHB 356 (5 September 2024)
24] The test for absolution from the instance sought at the close of the applicant’s case is not whether the evidence led by the applicant established what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence could or might (not should, or ought to) find for the applicant.[2] [25] This implies that the applicant has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim in order to survive absolution because, without such evidence, no Court could find for the applicant.[3]
[42] The Applicant accepted that the rate payable for overtime is an issue that is subject to negotiation and it was not disputed that Eskom reviews the conditions of employment annually. Given the wording and the context within which the settlement agreement was concluded, it is evidently not an eternal agreement to pay an overtime rate of 1,75, more so as the rate of overtime pay is subject to annual review and negotiation.
Hearsay evidence:
JR1615/21
Mabule v Commission for Conciliation, Mediation and Arbitration and Others (JR1615/21) [2024] ZALCJHB 365; [2024] 12 BLLR 1294 (LC) (13 September 2024)
[16] The Second Respondent relied upon the authority of Alpha Pharm (EC) (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[2], where the Court accepted that it was in the interests of justice for the Commissioner to admit the statement from a witness into evidence who was not called to come and testify during the arbitration and weigh its probability against the evidence tendered. However, the Respondent bore the evidentiary burden over and above mere reliance on hearsay.
[18] The question is therefore whether the Second Respondent was able to reach to an appropriate ruling without the testimony of Mrs Senna who according to the Third Respondent was the main witness in the internal disciplinary hearing.
"[20] In consideration of the submissions made by both the Applicant and the Third Respondent, it is noted that in paragraph 77, the Constitutional Court [Kapa v S[2023 (4) BCLR 370 (CC); [2023] ZACC 1.]]stated that:
‘the factors listed in Section 3(1)(c) of the Hearsay Act must be viewed holistically and weighed collectively in determining whether it is in the interests of justice to admit the hearsay evidence. The factors that bear consideration when a court is determining whether it is in the interest of justice for the statement to be admitted are:
(a) the nature of the proceedings;
(b) the nature of the evidence;
(c) the purpose for which the evidence is tendered as evidence;
(d) the probative value of the evidence;
(e) the reason why the evidence is not given by Ms Dasi;
(f) any prejudice which the admission of the evidence might entail for the Applicant; and
(g) any other factor which should, in the opinion of the court, be taken into account.’
"
[33] Having regard to the above analysis on the failure by the Second Respondent to holistically consider the factors enshrined under the provisions of Section 3(1)(c) of the Hearsay Act which led to an arbitration award to the exclusion of the testimony of Mrs Senna, this Honourable Court is not convinced that a proper and/or appropriate ruling could be reached.
Hearsay: Exxaro authority considered in a review case
JR1527/22
Sithole v Commission For Conciliation, Mediation and Arbitration and Others (JR1527/22) [2024] ZALCJHB 376 (20 September 2024)
"[27] Mr Itzkin argued on behalf of the Third Respondent that the incorrect admission or rejection of hearsay evidence was not in itself a silver bullet that meant every award that may incorrectly have dealt with such an issue needed to be set aside. He argued that the proper test was to consider the totality of the evidence before the Commissioner and whether the handling of hearsay evidence had a distorting effect on the outcome of the award.
[28] I agree with Mr Itzkin that even if the Commissioner commits an error in the assessment of evidence, the subsequent award will only be set aside if that error has a distorting effect on the outcome of the award or, in other words, the resulting award can be said to be unreasonable in light of all the evidence properly before the Commissioner.[4]
"
[30]... In other words, this is not a case where hearsay evidence the Applicant intended to rely on was belatedly rejected, but rather where evidence led that the Applicant did not want admitted but to which he had not objected was taken into account. The prejudice to the Applicant in those circumstances is different and the outcome of those two cases must be seen in that context. This is just to emphasize that the setting aside of an award does not immediately follow from a finding that hearsay evidence was not properly dealt with at the CCMA.
[35] To my mind, the Commissioner’s finding that the Applicant was involved in both of these illegal recruitments was in the circumstances reasonable.
Polygraph testing
JR 2734/19; JR 472/21
Rolfes Chemicals (Pty) Ltd v Moni N.O and Others (JR 2734/19; JR 472/21) [2024] ZALCJHB 408 (14 October 2024)
Dismissal – Stock losses – Investigation into losses by company – Attributable to theft by employees – Adopted method of polygraph testing – Refusal by employees to consent – Polygraph testing was rationally connected to purpose it sought to achieve – To establish cause of losses – Solid basis for company to harbour suspicions against employees – Request for consent for test not unreasonable – Failed to show loyalty and good faith – Dismissals substantively fair.
"Rolfes contend that about 60% of the employees had completed the consent forms and went through the test.
[7] The remaining 40%, which includes the dismissed employees, declined to complete the consent forms, and thus were not subjected to the polygraph test. Management then called all the employees who had refused to complete the consent forms to one-on-one meetings to again explain the process of testing and its purpose, and to impress upon them that they had a duty to assist management in determining the source of stock theft."
"[18] Against the background and the evidence before her, Commissioner Moni concluded that management had a prerogative to subject all employees to a polygraph test. She however concluded that there was no contractual obligation on the employees to subject themselves to the test, which was voluntary, and that their dismissals had nothing to do with the object and purpose of the polygraph testing exercise. The Commissioner further concluded that Rolfes sought to ‘run a blanket polygraph test’ without any genuine or legitimate reason to suspect the employees of any involvement in any wrongdoing.
[19] The Commissioner upon a consideration of the principles applicable to insubordination concluded that the instruction issued to the employees was unreasonable, and since Rolfes did not have any rules or regarding polygraphy testing. "
[33] The Commissioner reasoned that the use of the test was met with resistance, which further confirmed Rolfes’ suspicions that employees were involved in the thefts and activities of the syndicate. The Commissioner having had regard to inter alia the Code of Good Practice and CCMA Guidelines for Misconduct Arbitrations, concluded that Rolfes acted fairly in dismissing the employees for failing to adhere to the request to undertake the test, and for insubordinate behaviour and conduct that was not in its best interests. The Commissioner regarded the instruction as reasonable, which was further supported by the whistleblower’s statements about the syndicate that was operating in the premises.
51] In TMT Services and Supplies (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (TMT Services), it was held that defiance of authority can be proven by a single act of defiance, and that it is not necessary for the instruction to be issued on numerous occasions for an act of insubordination to occur. This was so in that the employer’s prerogative to command its subordinates is the principle that is protected by the class of misconduct labelled “insubordination”, and addresses operational requirements of the organisation that ensures that managerial paralysis did not occur.[10] In Sylvania Metals (Pty) Ltd v M.C Mello N.O and others[11], the LAC in reference to Palluci Home Depot (Pty) Ltd v Herskowitz and Others[12], reiterated that the sanction of dismissal should be reserved for instances of gross insolence and gross insubordination or the wilful flouting of the instructions of the employer[13].
53 A further reason advanced by the employees for refusing to complete the consent forms or subject themselves to the test was that they were waiting for minutes of previous meetings minutes to consider Rolfes’ proposals about the tests. This contention is a red herring, but it can only confirm that the employees had been fully appraised after several meetings were held with them and their representative union. That explanation in any event fell flat in view of the employees’ contention before Commissioner Docrat, that even if they were afforded more time, they would still have refused to complete the consent forms or subject themselves to the polygraph test
53] Against the above conclusions, it follows that the dismissal of the individual employees was substantively fair.
[93] Much of the evidence proffered by Mr Mabuza and his witness at the arbitration was not put to the applicant’s witnesses.
JR2948/19
Buscor (Pty) Ltd v Ntimbana N.O (JR2948/19) [2024] ZALCJHB 458 (22 November 2024)
"94] In Platinum Mile Resources (Pty) Ltd v CCMA and Others[(JR 427/20) [2023] ZALCJHB 52 (1 March 2023) at paras 41 – 45.], the Court per Prinsloo J entrenched the following principles concerning versions not put to witnesses:
‘[41] After a witness has given his or her evidence in chief, the other party is given the opportunity to cross-examine the witness. The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.
[42] A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him.
[43] The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper.[7] Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence.[8] From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value.[9]
[44] A failure to cross-examine a witness on any aspect is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for cross-examination.[10] A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness.
[45] In Masilela v Leonard Dingler (Pty) Ltd,[11] the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that:
“The problem that I have with the applicant's version where it differs from that of Masina is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit.”
In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438:
“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.’’ [Own emphasis]"
Evidence continue
Hearsay
DA 04/2024
CTP Gravure (Pty) a division of CTP Limited v Statutory Council for Printing Newspaper and Packaging Industry and Others (DA 04/2024) [2025] ZALAC 16 (20 March 2025)
26] There are three circumstances wherein hearsay evidence may be admitted: on consent between the parties; on provisional admittance with an understanding that the person upon whose credibility the probative value of the evidence depends is to testify at some future point in the proceedings; or by the court if the court, on consideration of relevant factors, is of the opinion that it would be in the interests of justice to admit the evidence.
"30] In applying the hearsay provisions of the Act, the Supreme Court of Appeal in S v Ndhlovu and Others[2002 (6) SA 305 (SCA).] (Ndhlovu) set out three safeguards to be applied:
‘[17] …
· First, a presiding judicial official is generally under a duty to prevent a witness heedlessly giving vent to hearsay evidence. More specifically under the Act, 'It is the duty of a trial Judge to keep inadmissible evidence out, [and] not to listen passively as the record is turned into a papery sump of ''evidence”’.
· Second, the Act cannot be applied against an unrepresented accused to whom the significance of its provisions have not been explained. …
[18] Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the court's judgment, nor on appeal. The prosecution, before closing its case, must clearly signal its intention to invoke the provisions of the Act, and, before the State closes its case, the trial Judge must rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.’"
"[31] This Court in Exxaro confirmed the applicability of the safeguards set out in Ndhlovu within the context of arbitration proceedings and held that:
‘Those safeguards and precautions, duly adapted, also apply to the application of s 3 of the LEAA in civil proceedings. Because of the similarities between civil proceedings and arbitration proceedings, the overwhelmingly, adversarial nature of arbitration proceedings under the LRA, and the overarching requirement that such proceedings be fair, those safeguards and precautions, duly adapted, apply equally to arbitration proceedings to ensure fairness and serve as an invaluable guide for commissioners and arbitrators when confronted with hearsay evidence, and, particularly, when applying s 3 of the LEAA. Adapted they would include the following: (1) section 3(1)(c) of the LEAA is not a licence for the wholesale admission of hearsay evidence in the proceedings; (2) in applying the section the commissioner must be careful to ensure that fairness is not compromised; (3) a commissioner is to be alert to the introduction of hearsay evidence and ought not to remain passive in that regard; (4) a party must as early as possible in the proceedings make known its intention to rely on hearsay evidence so that the other party is able to reasonably appreciate the evidentiary ambit, or challenge, that he/she or it is facing. To ensure compliance, a commissioner should at the outset require parties to indicate such an intention; (5) the commissioner must explain to the parties the significance of the provisions of s 3 of the LEAA, or of the alternative, fair standard and procedure adopted by the commissioner to consider the admission of the evidence; (6) the commissioner must timeously rule on the admission of the hearsay evidence and the ruling on admissibility should not be made for the first time at the end of the arbitration, or in the closing argument, or in the award. The point at which a ruling on the admissibility of evidence is made is crucial to ensure fairness in a criminal trial. The same ought to be true for an arbitration conducted in an adversarial fashion because fairness to both parties is paramount.’[4] (emphasis added)"
"[32] In National Union of Metalworkers of South Africa obo Mokase v Nissan South Africa (Pty) Ltd and others[5] (Nissan), this Court expanded on the importance of timeous rulings on the admission of the hearsay evidence:
‘The importance of a timeous ruling on the admissibility of the hearsay evidence is that it provides parties with the opportunity to make submissions on the issue and, if informed that such evidence is to be excluded, to consider whether it is possible to rely on other evidence or not. Given the nature of the evidence and the reliance placed on it in the proceedings before the commissioner, the failure to determine the issue and the decision later simply to exclude such evidence, without having regard to the provisions of section 3 or make a timeous ruling on its admissibility, constituted a material misdirection on the part of the commissioner and led to a gross irregularity in the conduct of the proceedings.’"
33] Although section 138 of the Labour Relations Act[6] gives an arbitrator discretion to conduct the arbitration proceedings in a manner that they consider appropriate to determine the dispute fairly and quickly, this does not mean that an arbitrator may treat evidence in a manner which is unfair to the parties.[7]
"[35]...This decision, according to the appellant, had the effect of prejudicing its case by delaying the timing of the ruling to after its case had closed and as such, as stated in Exxaro, “it was too late for either party to do anything to save their (respective) situations”[8].
[36] However, a late ruling on the admissibility of hearsay evidence may not necessarily warrant the setting aside of the award and for the matter to be remitted back to CCMA or the bargaining council for a hearing de novo. "
no evidence presented of any of the applicants actually having been witnessed or in any manner caught red handed in selling pallets at one of the pallet yards
JR1797/17
Mjoli and Others v Peters Papers (Pty) Ltd and Others (JR1797/17) [2025] ZALCJHB 56 (6 February 2025)
"[34] What must thus be considered is what is called the ‘inherent probabilities’.[23] The determination of probabilities entails an inference to be drawn from the evidence as a whole, on the following basis, as explained in SA Post Office v De Lacy and Another[24]:
‘The process of inferential reasoning calls for an evaluation of all the evidence and not merely selected parts. The inference that is sought to be drawn must be 'consistent with all the proved facts. If it is not, then the inference cannot be drawn' and it must be the 'more natural or plausible, conclusion from among several conceivable ones' when measured against the probabilities.’"
"[35] Deciding a matter on the probabilities thus entails a complete consideration of all the evidence, as a whole, in order to decide which outcome is the most logical, natural and plausible out of a number of possible different outcomes.[25] As said in Bates and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co[26]:
‘The process of reasoning by inference frequently includes consideration of various hypotheses which are open on the evidence and in civil cases the selection from them, by balancing probabilities, of that hypothesis which seems to be the most natural and plausible (in the sense of acceptable, credible or suitable).’"
"[37] All these probabilities, derived from the evidence as a whole, in my view established at least a proper prima facie case that the applicants perpetrated or were involved in the theft of the pallets, by selling the same at the various pallet yards situate at the DECOs. This was also the conclusion reached by the second respondent, and I believe he cannot be faulted for doing so. As held in Cooper and Another NNO v Merchant Trade Finance Ltd[27]:
‘… If the facts permit of more than one inference, the Court must select the most ""plausible"" or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment …’"
"[38] So where does this leave the applicants? As the second respondent correctly and rationally appreciated in his award, the duty then shifted onto the applicants to provide a plausible and acceptable explanation to the contrary, so as to avoid a final conclusion that they committed the misconduct. In Federal Cold Storage Co Ltd v Angehrn and Piel[28] the Court held that: ‘… Once the appellants had proved a prima facie case of misconduct on the part of the respondents in taking, in violation of their duty, a secret profit of the kind described, the dismissal stood prima facie justified, the burden of proof was shifted, and it lay upon the respondents … to prove the righteousness of the transaction. If they failed to discharge that burden satisfactorily, then the prima facie case against them must prevail and their guilt, justifying dismissal, must be taken to be established. …’. And as succinctly said in National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others[29]:
‘… the third respondent had at least made out a prima facie case. That meant that there was a duty on the second applicant to advance and provide a reasonable alternative explanation. His failure to do so in my view counts heavily against him. … ‘"
"40] Can these explanations be accepted? Obviously, and in this context, it would be required of the second respondent to determine the truth thereof. This entailed conducting the following exercise, as articulated in Sasol Mining (Pty) Ltd v Ngqeleni NO and others[30]:
‘One of the commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version. …’"
"[47]...But in the end, these two witnesses were never called, with no explanation for this failure. As the second respondent correctly found, this in all probability indicated that these witnesses would not support the applicants’ version, and this must count heavily against them. In ABSA Investment Management Services (Pty) Ltd v Crowhurst[33] the Court held:
‘... it is long established that the failure of a party to call an available witness may found an adverse inference, the inference being that the witness will not support - and may even damage - that party's case …’"
"[56]... The fact of the matter is that as a general proposition, dishonesty is the kind of misconduct that justifies the sanction of dismissal as an appropriate and fair sanction.[34] In SA Society of Bank Officials and Another v Standard Bank of SA and Others[35] it was held as follows:
‘Dishonesty as an aspect of misconduct is a generic term embracing all forms of conduct involving deception. This court in Nedcor Bank Ltd v Frank & others defined dishonesty as a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal. …’"
"[57]...There is little doubt that the applicants sought to escape responsibility based on contrived and false defences and explanations. This means, as appositely described in Malaka v General Public Service Sectoral Bargaining Council and Others[36], the following:
‘The evidence reveals that the appellant’s dishonest conduct rendered continued employment intolerable and incapable of restitution. Conduct, such as we have here, is incompatible with the trust and confidence necessary for the continuation of the employment relationship. The Department of Justice was entitled, in the circumstances, to end the employment relationship …’"
gross negligence
JR1199/21
Njobe v Commission for Conciliation, Mediation and Arbitration and Others (JR1199/21) [2025] ZALCJHB 81 (26 February 2025)
o ‘hold’ two other employees after they went through the X-ray system, which had indicated a ‘dark spot’ on their persons. The applicant is alleged to have failed to investigate and conduct physical searches on the two employees,
[20] In the light of the undisputed nature of the offence having taken place, the Court concludes that given the nature of Sibanye’s operations, the applicant’s misconduct, given his critical responsibilities, was clearly contrary to those responsibilities. He failed to comply with the standard of care that would have been exercised in the circumstances by a reasonable person.
"[21] The only issue is whether the negligence complained of was of a gross nature to deserve a sanction of dismissal. In Transnet Ltd t/a Portnet v MV ‘Stella Tingas[5], Scott JA held that;
“…[T]o qualify as gross negligence the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorized as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.”"
"[22] It was added in NUMSA[6] that;
“…whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. Those factors are inter alia whether the employee is persistently negligent; the seriousness of the act or omission; whether the act or omission is inexcusable; the employee’s awareness of the performance standard required or the procedure to be complied with; the seriousness of the consequences of the act or omission; damages caused and the skills and experience of the employee or the position held by the employee.”[7],"
23] I have already indicated that the applicant’s conduct involved a departure from the standard of the reasonable person in his position. Clearly as also indicated, a higher standard of care was required of the applicant in the performance of his duties, given the nature of Sibanye’s operations. It is safe to conclude that his conduct evinced a total failure to take care. In addition, it is concluded that his omission was of a serious nature, particularly since there was reason to believe the individual he had failed to further search and investigate after a ‘dark spot’ was detected on the X-ray viewer, may have concealed or attempted to remove material from the plant, and further since he had been previously warned and counselled in regard to similar previous incidents.
Contradictions
JR1981/20
Samancor Chrome Limited v NUMSA obo Mokoena and Others (JR1981/20) [2025] ZALCJHB 78 (28 February 2025)
"[43] The fact that Ms Mahlangu and Ms Hamule evidence was different in respect of what the employee discussed with them did not mean that they were not credible witnesses and that their evidence was to be rejected. It further did not mean that the essential features of their story were not true. In Santam Bpk v Biddulph[8], the SCA held that:
‘However, the proper test is not whether a witness is truthful or indeed reliable in all that he says, but whether on a balance of probabilities the essential features of the story which he tells are true (cf R v Kristusamy 1945 AD 549 AT 556 and H C Nicholas Credibility of Witness (1985) 102 SALJ 32 especially at 32 – 35)."
"[44] In S v Mkohle[9], the Appellate Division held that:
‘Contradictions per se do not lead to the rejection of a witness’ evidence… [T]hey may simply be indicative of an error… [N]ot every error made by a witness affects his credibility, in each case the trier of fact ha to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance and their bearing on other parts of the witness evidence.’"
necessary to draw inferences
JR1105/21
Mofokeng v Botha and Others (JR1105/21) [2025] ZALCJHB 102 (14 March 2025)
59] Hence, it is clear that both the third respondent, in dismissing the applicant, and the Commissioner, in finding that the applicant’s dismissal was substantively fair, drew and relied upon inferences based upon, primarily, the documentation discussed above.
"60] In the determination of disputes, it is acceptable and sometimes necessary to draw inferences. However, inferences must be based on proven facts and arrived at through logical reasoning. Inferences should not be mere conjecture or speculation.[11] In the oft-cited judgment in Caswell v Powell Duffryn Associated Collieries Ltd[12] it was put thus:
“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish... But if 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 conjecture.''"
"[61] As mentioned, in Securitas[13] the LAC pointed out that an arbitration award will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.
[62] Were the inferences in this matter reasonably drawn? A proper evaluation of the evidence before the Commissioner requires a step-by-step analysis of the inferences drawn by the third respondent, in dismissing the applicant, and by the Commissioner in finding that the dismissal was substantively fair. Specifically, three critical questions arise: (i) was there an actual fuel loss? (ii) if so, can it reasonably be attributed to theft? (iii) if so, what evidence establishes that the applicant, rather than Mr Gumede or someone else, was responsible?"
[67] These anomalies in the documentary evidence render the documents entirely unreliable. In my view, no facts relevant to the issues in casu are proven by these documents, and no reasonable inferences of fuel loss could thus be made from these reports. The only reasonable inference to be drawn from this documentary evidence is that the data inconsistencies, unexplained fluctuations in fuel levels, and contradictions among system-generated reports and uploaded data, indicate fundamental flaws in the reliability of the third respondent’s monitoring mechanisms. The evidence does not support a clear, objective, or verifiable record of the generator’s fuel levels at any given time.
"[76] It is so that our courts have long held that once an employer has made out a prima facie case of misconduct, the burden of rebuttal shifts to the employee to present a reasonable alternative explanation. In Federal Cold Storage Co Ltd v Angehrn and Piel[14], the Court held:
“Once the appellants had proved a prima facie case of misconduct on the part of the respondents in taking, in violation of their duty, a secret profit of the kind described, the dismissal stood prima facie justified, the burden of proof was shifted, and it lay upon the respondents … to prove the righteousness of the transaction. If they failed to discharge that burden satisfactorily, then the prima facie case against them must prevail and their guilt, justifying dismissal, must be taken to be established.”
[77] Similarly, in National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others[15], the Court emphasised:
“… the third respondent had at least made out a prima facie case. That meant that there was a duty on the second applicant to advance and provide a reasonable alternative explanation. His failure to do so in my view counts heavily against him. …”"
[78] While it is accepted that when an employer establishes a prima facie case of misconduct, an employee may have a duty to provide a reasonable alternative explanation, this principle only applies where a prima facie case has indeed been established. The key distinction in the present case is that a proper analysis of the evidence before the Commissioner reveals that the third respondent failed to establish even a prima facie case of wrongdoing on the part of the applicant in the first place. The Commissioner, therefore, erred in suggesting that the applicant bore an evidentiary burden to provide an alternative explanation, when no case had been made out against him to begin with.
polygraph testing
J409/2024
Harmony Gold Mining Company Limited v Commission for Conciliation, Mediation and Arbitration and Other (J409/2024) [2025] ZALCJHB 176 (5 May 2025)
"[57] The Labour Court in FAWU obo Kapesi and Others v Premier Foods Ltd t/a Ribbon Salt River[[2010] ZALC 61; (2010) 31 ILJ 1654 (LC) at para 86.] confirmed that polygraph test results have to be supported by direct evidence, and in the absence of direct evidence they cannot be relied upon to determine the guilt of the employee. The court held that:
‘In SATAWU & Others v Protea Security Services, Protea Security Services sought to place guards with a new client who insisted that security guards used by it had to pass a polygraph test. When the guards could not be persuaded to undergo polygraph testing the employer embarked upon a section189 consultative process. The Court held that before it could be fair to force employees to subject themselves to testing, the test or assessment used would need to be: (i) shown to be scientifically valid and reliable; (ii) shown to be capable of being fairly applied to employees; (iii) shown to not be biased against any employee or group. The court held that the employer had the onus to show that a dismissal was fair and therefore had to show that the test used is valid and reliable and not biased against any employee or group of employees. In Truworths v CCMA the Court expressed doubts as to the probative value of the polygraph on its own:
“[37] What appears from the aforegoing is that a polygraph test on its own cannot be used to determine the guilt of an employee (see also John Grogan Workplace Law 9th edition page 160.) However, a polygraph certainly may be taken into account where other supporting evidence is available provided also that there is clear evidence on the qualifications of the polygraphist and provided that it is clear from the evidence that the test was done according to acceptable and recognizable standards. At the very least, the result of a properly conducted polygraph is evidence in corroboration of the employer’s evidence and may be taken into account as a factor in assessing the credibility of a witness and in assessing the probabilities. The mere fact that an employee, however, refuses to undergo a polygraph is not in itself sufficient to substantiate an employee’s guilt.”"
[58]...The other issue is that polygraph tests for both Van Zyl and Evert were inconclusive, and this cannot translate to a conclusion that both witnesses were truthful. The Commissioner was correct to reject these inconclusive polygraph tests as evidence in the absence of the Appellant leading any direct evidence.
commissioner of oaths
2025/022233
Lowveld Packaging (Proprietary) Ltd v Heine and Others (2025/022233) [2025] ZALCJHB 190 (5 May 2025)
[44] It was furthermore submitted by the First Respondent that the Commissioner of Oaths, Lazarus Chakadzingwa, who administered the affidavit of Reginald Makasi on behalf of the Applicant, is ostensibly an employee of Modern Packaging Distribution in Tswane, Pretoria West, a company of which Makasi is also a director. Therefore, Chakadzingwa is conflicted, and the commissioning of the oath is in contravention of the Oaths Act, in that a commissioner of oaths who attests an affidavit is required to be impartial, unbiased, and entirely independent of the office where the affidavit was drawn up or signed.
"[45] The affidavit of Reginald Makasi shows that he is the Director of the Applicant, which is Lowveld Packaging (Proprietary) Limited, based in Nelspruit, whereas Lazarus Chakadzingwa indicated that he is the CA(SA) of Modern Packaging Distribution, Tshwane, Pretoria West. The First Respondent has not been able to successfully show the conflict of interest of the commissioner of oaths, but merely alleged that Makasi is ostensibly the employee of Modern Packaging Distribution without any substantiation to the allegations. Ostensibly means it appears, though not necessarily so or apparently. This is not factual and therefore cannot stand the certainty test of such facts.
[46] Therefore, the rule of impartiality, unbiasedness, and independence of the commissioner of oaths will not apply under the circumstances. Such submissions are therefore dismissed as they have not been proven by the First Respondent in any manner."
"[3] Further, an order interdicting and restraining the First Respondent and Second Respondent from divulging the Applicant’s confidential information, including but not limited to the Applicant’s customers, suppliers’ costing, new developments, patents, innovations and methods of conducting business to the Third Respondent or any other person.
[4] Furthermore, directing the First Respondent and Second Respondent to forthwith return the Applicant’s confidential information, including but not limited to the Applicant’s customers, suppliers’ costing, new developments, patents, innovations and methods of conducting business to the Applicant."
(Complete)
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