Astral Operations Ltd t/a National Chicks v Balkaran NO and Others (JA31/10) [2011] ZALAC 33 (27 May 2011)

JA31/10/ev 5 JUDGMENT

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: JA31/10

DATE: 2011-05-27

In the appeal between

ASTRAL OPERATIONS LTD t/a

NATIONAL CHICKS ..........................................................................................Appellant

and

SAROJINI BALKARAN N.O and others ..............................................First Respondent

CORAM: DAVIS JA, WAGLAY DJP ET MOCUMIE AJA

_____________________________________________________________

J U D G M E N T

DAVIS, JA:

This is an appeal against a judgment in the court a quo, in particular against the decision concerning a dismissal of an unopposed application to review an arbitration award in favour of fourth to ninth respondent. The issue before the first respondent was, in effect, whether the dismissal of the fourth to ninth

respondents was substantively fair and, in particular, whether on a balance of probabilities, these employees were guilty of an offence.

Briefly the facts involved the theft and slaughter of a chicken, in this case a Sentinel chicken. It appears that this chicken which was kept on the farm in question went missing during the weekend of 12 and 13 May 2007. It is common cause that the severed head of a Sentinel chicken together with another piece of the chicken's body was found on Sunday, 13 May 2007 at a worksite on a chicken farm where several thousand chickens and Sentinels were housed.

Each of these particular worksites has a dedicated team of employees each team being responsible for feeding the chickens in a particular enclosure. The particular site in question contains four houses, each of which holds approximately 6 000 chickens, including a number of Sentinel chickens. The Sentinel chickens are distinguished from the rest of the chickens housed on the site because they are not used for production, are significantly larger than the other chickens (apparently these Sentinels chickens weigh approximately four kilograms) and, are white in colour. They are housed separately from the other chicken and are used to detect disease and not used for the production of eggs. The head that was found on Sunday, 13 May was identified as being of a Sentinel chicken. There is no dispute insofar as this particular finding is concerned.

The key question before the first respondent concerned the determination of how this particular chicken came to be killed, have

its head severed and discarded outside of the particular site. There were, as Mr Lagrange who appears on behalf of the appellants,

submitted, one of four possibilities.

1. Someone from outside the company gained access to the pen, killed the Sentinel by cutting its head off and discarded the head outside of the site.

2. One or more of the employees who had access to the site stole the Sentinel or assisted in stealing the Sentinel.

3. Another animal gained access to the site and killed the Sentinel; or

4. The Sentinel escaped and was killed by an animal or some person outside of the site.

The evidence indicated that the Sentinel could not have escaped and that possibility can therefore, on the basis of any reasonable

inference, be discarded. That leaves one of the three other options which I have set out above. The problem with certain of these options are that it was not disputed that there was no breach of the security electric fence which encloses the site, nor were any of the locks broken, nor was the electric fence that encloses the site damaged nor the wire mesh fence outside the particular house damaged in any way. Therefore, absent any of these factors, it could not have been the case that an outsider gained entry into the site which would have then allowed such outsider to have stolen the chicken.

For these reasons therefore option 1, namely that a third party gained access to the pen can be discarded as a viable option. Similarly, no animal could have gained entry, without breaching the electric fence or damaging the wire mesh enclosing the particular

site. Accordingly, this option can also be disposed of without any further commentary. That leaves but one possibility, that it was one or more of the employees who had access to the particular site who entered the site seized and killed the chicken, and either disposed of it to a third party or to some other colleague.

In short, when the evidence is examined, as I have set it out there is only one reasonable inference that could possibly be drawn from these facts, that is an employee / employees who had access to the site secreted the chicken and killed it. That therefore means that the only inference to be drawn is that an employee or employees from were responsible for the theft which in turn justifies submission that no other inference could be drawn other than that the employees so charged were guilty of the offence.

The Court a quo, faced with the evidence that I have set out, was obliged to examine such evidence and the findings of the first respondent in terms of the test laid down in Sidumo v Rustenburg Platinum Mines and others 2007 (28) ILJ 2405 CC namely, whether the decision which was taken by first respondent meets the standard of a reasonable decision-maker, that is would a reasonable decision-maker, given the facts as I have set out, have come to a conclusion that some other inference could be drawn and accordingly the decision to

dismiss the respondents be set aside?

As I have indicated, there were only four possible inferences that could be drawn but only one reasonable inference which stands to be accepted on the undisputed evidence. For these reasons first respondent had failed the test of a reasonable decision-maker and the Court a quo should having applied the Sidumo test and set aside the decision of the first respondent.

For these reasons the appeal must succeed. The award which was handed down by the first respondent must therefore be reviewed and set aside. Accordingly the question arises once the award is set aside as to what cause of action should now be adopted by this Court? If as I have found only one inference can reasonably be drawn that, the Sentinel chicken was stolen by the employees in question, no purpose would be served to remit the matter to second respondent for a further arbitration.

For these reasons I would make the following order:

1. The appeal succeeds.

2. The decision of the first respondent is reviewed and set aside.

3. The decision to dismiss the fourth to ninth respondents is substantively fair and is therefore confirmed.

__________________

DAVIS JA

I agree

___________________

WAGLAY DJP

MOCUMIE AJA