Collins v Anglogold Ashanti Tau Tona Mine and Others (JR 274/19) [2022] ZALCJHB 80 (4 April 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 274/19

In the matter between:

HARRY OLFERMAN COLLINS

Applicant

and

ANGLOGOLD ASHANTI TAU TONA MINE First Respondent

ANGELO RAYNARD N.O.

Second Respondent

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION Third

Respondent

Heard: 28 October 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 4 April 2022 at 17:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] In this application, the applicant (Collins) seeks an order reviewing and setting aside the arbitration award dated 11 December 2018, issued by the second respondent (Commissioner), acting under the auspices of the Commission for Conciliation Mediation and Arbitration (CCMA). The application is opposed by the first respondent, Anglo Gold Ashanti Tau Tona Mine (The Mine).

Background:

[2] Collins was employed at the Mine as an Underground Banksman. On 17 October 2017, he was charged with allegations of misconduct related to the dealing in or assisting other persons to unlawfully obtain gold bearing material from the Mine.[1]

[3] Following an internal disciplinary inquiry, he was found guilty and dismissed after 17 years of service. Aggrieved with his dismissal, Collins referred a dispute to the CCMA for conciliation. When conciliation failed, the matter was referred for arbitration and came before the Commissioner, resulting with the award which is the subject of this review application.

The arbitration proceedings:

[4] The Mine led the evidence of Mr Abrie Smith (Smith), its Security Officer in the Investigation Unit. His testimony can be summarised as follows;

4.1 Unlawful mining has become a scourge in the mining industry, as it resulted in significant

losses to the industry in the region of billions of Rands. These unlawful operations were generally executed by criminal syndicates

who worked closely with the employees of the Mine. The modus operandi of the syndicates was to approach employees of the Mine, who were offered relatively large amounts of money, in exchange for their cooperation in facilitating the criminals’ access into the Mine’s premises and explosives which were utilised for the

extraction of gold bearing materials.

4.2 The specific Mine employees who colluded with the syndicates included security officers,

onsetters, Human Resources Officials and the Banksmen.

4.3 The role of the Human Resources Officials of the Mine was to assist in providing the criminals with official employees’ access/clock cards to enable them access into the Mine premises and restricted areas. The Banksmen’s role was then to assist members of the syndicates with gaining access to underground operations and other similar restricted areas.

4.4 Collins as a Banksman was in control of level 100 or the decline shaft underground. Banksmen’s

responsibilities ordinarily include working closely with the Winding Engine Drivers and to provide access for employees, goods, material, equipment and/or explosives into the elevator/lift (referred to as a ‘Cage’). Banksmen also provide information in respect of the contents to be conveyed to the Winding Engine Drivers. In general terms, the Banksman has overall responsibility for the control of the access of personnel and material in and out of the ‘cage’ underground.

4.5 Smith and Collins have known each other for many years and are also neighbours in the same residential area. On 10 October 2017, and whilst at the workplace, Collins approached Smith and requested that they should meet and discuss some information that he (Collins) claimed to have obtained. Smith in the company of his colleague, Mr Hugo Beckmann met Collins at his residence. At that meeting, Collins said that he had certain information concerning unlawful mining activities which were taking place at the Cook 4 Shaft (Kloof 4 mine), one of the Sibanye Gold Operations.

4.6 Collins informed Smith that one of the alleged syndicate members is his future brother in law, one Mr Jaco Campher, who was at the time, an employee of a certain contractor that provided services at the Mine. Campher had allegedly informed Collins that he (Campher) together with another accomplice known as Bob could arrange clock cards and everything

needed to have members of the syndicate gain access into the Mine premises.

4.7 Collins further informed Smith that he had learnt about Campher’s unlawful mining

activities after he became curious about his purchase of multiple vehicles. Collins further stated that at some point, Campher had shown him a photograph of a bag full of banknotes, which Collins had estimated to have been in the region of R4 Million. Collins further told Smith that Campher had after showing him the bag of money, asked him to assist members of the syndicate to gain access to the underground area, and had promised that he would receive an amount of R30 000 for each illegal miner that he enabled access underground. Collins informed Smith that he had however resisted Campher’s advances, telling him that he was not interested in the conduct of illegal mining activities.

4.8 Collins wanted to show Smith the photograph of a bag full of banknotes that he took on his phone but he could however not locate it. It was at that point that Collins proceeded to search his WhatsApp chat history with Campher. He indicated to Smith that the WhatsApp messages commenced in August 2017. Whilst Collins was going through his WhatsApp messages, Smith was standing right beside him and had inquired from Collins whether he (Smith) could take a photograph of the messages. Collins had initially undertaken to forward the messages but after Smith insisted, he was allowed to take photographs of those messages with his mobile phone.

4.9 The exchange of WhatsApp messages between Collins and Campher, revealed that on 19 September 2017, Campher had enquired from Collins as to where he was stationed at the Mine. Collins had informed him that he was stationed at Tautona Dressage. Campher informed Collins that ‘he had six people who were ready, and that it would not be like the last time as these six individuals were his people, and that they only needed to get to level 100’.

4.10 In the WhatsApp message exchange of 20 September 2017, Campher asked Collins whether he would

be able to make ‘arrangements’ for that day. Collins’ response was that he was on leave and would revert to Campher with his plan as he was waiting for someone else to get back to him. The following day, Campher sent Collins a question mark. Collins’ response was that he will inform Campher as he was on his way to Pretoria. Again Campher asked Collins whether he was successful, and the latter’s response was that an unnamed person was going to consider and revert back to him

4.11 On 22 September 2017, Campher asked Collins about how to obtain the gold bearing material (‘stof’). Collins’ response was that they should take bags and a shovel, and go and load. When Campher asked Collins whether he would be able to get bags, the latter responded that he has. When Smith asked Collins what or which materials the message was referring to, the latter said that he did not know what Campher was referring to.

4.12 Smith further stated that Collins undertook to assist in apprehending members of the syndicate, and

even suggested wearing a listening device to ensure that they were caught in the act as they were about to exit the cage. Smith’s

response was that such an exercise would require considerable planning involving HOD together with the cooperation and assistance

of the law enforcement agencies. Smith thereafter told Collins to retain the WhatsApp messages and to further forward them to him.

Despite Collins’ undertaking, he subsequently deleted the messages..

4.13 Upon further investigation, Smith and his team subsequently came to the conclusion that Collins was directly involved in the unlawful mining activities and was not a whistle-blower. This conclusion was arrived at based on the nature of the exchange of WhatsApp messages with Campher, which related to enquiries about the levels underground; the latter’s messages that he had made all the arrangements; Campher’s message that there were six (6) individuals who were on standby and Campher’s message that ‘it won’t be like last time’ since these individuals were his people. Concerns were also raised in regards to Campher’s enquiries whether he could make the arrangements on the same date and to which Collins had replied that he was on leave of absence and further that he would inform him since he was travelling to Pretoria at that time. On 23 September 2017, there was message from Collins to Campher instructing him to ‘take a bag and shovel and go and load’.

4.14 On 11 October 2017, the HOD of Security had instructed Smith to arrange a meeting between them together with Collins in order to get clarity on certain aspects of the WhatsApp messages. This was more in particular Campher’s messages about ‘his own people and that it would not be the like last time’ or that he (Collins) was waiting on his unknown persons’. Collins’ response when asked about the meaning of these texts

was that he did not know what Campher was referring to. He also refused to disclose the identity of the third person he was

referring to in his exchange with Campher.

[5] Beckmann’s testimony was essentially to confirm his presence when Smith spoke to Collins. He had testified that Collins was further provided with an opportunity to explain the context of the messages and from this explanation, Beckmann held the view that there was not sufficient clarity by Collins on the nature of the exchange of

messages.

[6] Beckmann and Smith then proceeded with an investigation, which had revealed that there was a pending criminal case relating to illegal mining activities and also that of theft which occurred at Sibanye [Gold], in which Campher was a person of interest. He further confirmed that Collins had subsequent to their conversation, deleted the WhatsApp messages exchanged between him and Campher.

[7] Collins’ testimony was that;

7.1 In August 2017, he became curious about Campher’s lifestyle and had asked him about it. Following their further conversation, Campher showed him a bag full of banknotes and had further indicated that he was “busy” in a certain plant in Bekkersdal. Collins testified that it was at this point that he realised that Campher was involved in unlawful mining activities.

7.2 The WhatsApp exchange with Campher commenced on 19 September 2017. He had however not shown any interest in getting involved in illegal mining activities and his initial inclination was to be dismissive of Campher’s

advances. When Campher however suggested to him to load illegal materials, he had pretended as if he was interested in order to

solicit more information in respect of the unlawful activities.

7.3 On 10 October 2017, and upon his return from leave of absence, he approached Smith and Beckmann in order to report the matter to them. He confirmed that he met the two voluntarily and disclosed to them the WhatsApp messages between himself and Campher, which Smith had taken photographs of.

7.4 He further confirmed having been summoned to a meeting with the HOD on 11 October 2017, where he was questioned about the WhatsApp exchanges with Campher. Despite his cooperation however, he was then accused of being a co-conspirator in the unlawful mining activities. His response was that he was only trying to assist the Mine. He confirmed that when asked to produce the WhatsApp messages again, he had advised that he had deleted them because ‘they (investigators) had turned on him’. Subsequent thereto, his voluntary retirement agreement was withdrawn, and having been charged with misconduct, he was then dismissed.

The Commissioner’s award:

[8] In deciding that the dismissal of Collins was substantively and procedurally fair, the Commissioner

had observed that the charges against Collins emanated from the WhatsApp messages exchanged with Campher, which Collins had voluntarily disclosed to Smith and Beckmann, and from which inferences ought to be drawn.

[9] Citing the approach to inferential reasoning in Cooper and Another NNO v Merchant Trade Finance Ltd[2], and also in reference to Stellenbosch Farmers Winery Group Ltd and another v Martel et Cie and others[3] in making credibility findings, the Commissioner concluded that;

9.1 There were minimal contradictions between the versions of both Smith and Beckman, and their version was more credible than that of Collins. On the other hand, Collins’ evidence was improbable when viewed against the

content of the WhatsApp messages and his explanation in that regard for the following reasons;

9.1.1 His version was that when the WhatsApp messages with Campher started, his response was to ‘brush off’ Campher’s advances as he did not want to become involved. This version was however contradicted by the extent of the messages, their sequence and explanation in that regard.

9.1.2 Between 19 and 20 September 2017, Campher had made it explicit that he sought access to the mine shaft. Collins had in turn, informed him that he was still on leave of absence at the time, but that he would however solicit the assistance of a third party (whose identity Collins refused to disclose), and that he would revert to him with feedback on the issue.

9.1.3 These facts did not reveal a person that sought to ‘brush-off’ the advances by Campher. They

rather demonstrated that Collins was an active participant in the unlawful mining activities since he did not explicitly resist

Campher’s advances. This was further demonstrated in the exchange about the loading of the ‘stof’, and Collins’

message about how that should be done. It was therefore not probable that Collins had merely exchanged messages with Campher for the purposes of only encouraging him more to reveal more information or merely to brush him off as he had alleged.

9.1.4 A negative inference also ought to be drawn from the fact that Collins had deleted the WhatsApp messages when he was specifically asked to keep them for further investigations. This conduct according to the Commissioner, could not be associated with a person that purportedly sought to absolve himself from any wrongdoing or assist in the investigations. The more probable inference to be drawn from the facts and evidence was in favour of the Mine, in that Collins was indeed guilty of dealing in or assisting in the dealing of unlawful mining activities.

The grounds for review:

[10] Smith alleges that the Commissioner committed a gross irregularity in the conduct of the proceedings, and that her decision was irrational and unreasonable. In this regard, the submissions were that there was no evidence before the

Commissioner that directly linked him to the commission of illegal mining activities. He further submitted that when he reported his interactions with Campher voluntarily, he had requested that he should remain anonymous since the case involved members of his family. He further contended that his exchange of WhatsApp messages with Campher was not excessive, and at no stage was he required to apprehend Campher despite volunteering to assist to do so.

[11] He further submitted that the Commissioner from the unfounded allegations against him, had drawn

inferences that he was guilty of the misconduct in question, when there was no evidence to support that conclusion in drawing that inference. This was particularly so since nothing was found in his possession, and further since Campher was not called as a witness in the proceedings to corroborate the allegations against him.

The test on review and evaluation:

[12] The standard of review remains that as set out in Sidumo & Another v Rustenburg Platinum Mines Ltd & Others[4]. Accordingly, the enquiry is whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach. In South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality[5], it was further held that whether the decision of the Commissioner falls within a range of reasonableness, involves a broad evaluation of the merits of the dispute, and a consideration of whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator.

[13] In further determining whether the commissioner’s award falls within a band of reasonableness, the applicant’s grounds of review ought to be analysed within the context of the approach set out in Goldfields[6], which is that the review court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he or she arrived at[7].

[14] In this case, to the extent that Collins alleged that the Commissioner committed gross irregularities in the conduct of proceedings, the Supreme Court of Appeal (SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)[8] has since held that:

‘…The general principle is that a ‘gross irregularity’ concerns the conduct of the proceedings rather than the merits of the decision. A qualification to that principle is that a ‘gross irregularity’ is committed where decision-makers misconceive the whole nature of the enquiry and as a result misconceive their mandate or their duties in conducting the enquiry...’[9]

[15] The SCA in Herholdt,[10] further concluded that for a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. Furthermore, material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.

[16] Applying the above principles to the facts of this case, I did not understand Collins’ case to be that he was not afforded a full opportunity to have his say in respect of the dispute. Other than the complaints surrounding the inferential reasoning of the Commissioner, Collins’ complaint is that the arbitration proceedings were deprived of the evidence of Camper, since the Mine did not call him to corroborate its version, and that the Commissioner committed an irregularity by not insisting that Camper be called as a witness.

[17] It however needs to be said that there was nothing that compelled the Commissioner to dictate to the Mine which witnesses it should call upon to testify in its case, and furthermore, its case was simply based on Collins’ interactions

with Campher. To the extent that Collins might have sought to call Campher as a witness, nothing further prevented him from doing so either, especially since the Commissioner had afforded him an opportunity to do so. In fact, it was Collins who had more to gain by calling Campher, since in his founding affidavit, he had averred that Campher ‘would have gladly grabbed the opportunity of testifying against it (the Mine)’.

[18] To require Collins to have called upon Campher to testify would not in my view, and contrary to the submissions made by his counsel, have reversed the onus of proof on a balance of probabilities. In any event, it was common cause that Collins had for the purposes of the internal enquiry, initially secured Campher’s sworn affidavit in support of his case. In these circumstances, why then would the Mine have sought to jeopardise its case by calling a witness who on Collins’ own version, was a dodgy and questionable character, who had sought to involve him in illegal mining activities. It followed that there was no substance to the allegations that the dismissal was procedurally unfair as Campher was not called as a witness at the internal enquiry, or that the Commissioner had committed an irregularity in the conduct of proceedings by not insisting on Campher being called by the Mine.

[19] There can be no doubt that the Commissioner had properly identified the dispute she was required to arbitrate, understood the nature of the dispute she was required to arbitrate, and dealt with the substantial merits of the dispute. There can therefore be no question of the Commissioner having misconceived the nature of the enquiry or misconceived her duties and mandate.

[20] What Collins complains about is the manner with which the Commissioner had treated the evidence that was before her. Thus, the issue is whether the decision she had arrived at is one that another decision-maker could reasonably have arrived at based on the evidence that was placed before her.

[21] Collins had in the replying affidavit[11], averred that since he had voluntarily blown the whistle on Campher, the Mine had violated its whistle blowing code by accusing him of involvement in illegal mining activities instead of affording him the protection he was entitled to as a whistle-blower, and had also disregarded his precarious position as a future family member of Campher. He alleged that he ought to have been afforded the status as a whistle-blower and the protections under the provisions of the Protected Disclosure Act (The PDA)[12]. He further contended that the Commissioner, by failing to consider the relevant provisions of the PDA and conducting a proper enquiry into the nature of his disclosure, constituted gross misconduct

[22] It was correctly pointed out on behalf of the Mine that the issue of whether Collins was a whistle-blower was never pleaded in the founding affidavit, and was instead belatedly, and incorrectly so, raised in the replying affidavit. The fact of the matter remains that when referring his dispute to the CCMA, even if the issue of Collins having been a whistle-blower was raised, his case would then have been an issue that fell squarely within the realm of the definition of automatically unfair dismissal under section 187 (1)(h) of the LRA, or at most, an unfair labour practice within the meaning of section 186(2)(d) of the LRA.

[23] In respect of a dispute under section 187(1)(d) of the LRA, the CCMA would in any event, have

lacked jurisdiction beyond the conciliation stage, to arbitrate the matter. Had Collins pleaded his case as an unfair labour

practice at the CCMA, that is the issue that the Commissioner would have been seized with. Collins cannot therefore raise these issues within the context of a review, when these were not before the Commissioner. It follows that there is no substance to the contention that the Commissioner committed a misconduct when not determining the issue as one that fell within the provisions of the PDA. The Commissioner had no duty to enter that terrain.

[24] Collins was correct in pointing out that there was no direct evidence linking him to illegal mining activities or that nothing of an illegal nature was found in his possession. The Commissioner and the Mine equally agree with Collins in that regard. That in itself however ought not be the end of the case. Before the Commissioner was circumstantial evidence, and at the centre of this review is whether the inferential reasoning from the circumstantial evidence would have led the Commissioner to a finding that the dismissal of Collins was fair, i.e., that he was indeed involved in or linked to illegal mining activities.

[25] The Commissioner correctly referred to the approach to be adopted as summarised in Cooper and Another NNO v Merchant Trade Finance Ltd[13] when an inference is sought to be drawn from other facts, which is that;

“It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the Court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. In a criminal case, one of the 'two cardinal rules of logic' referred to by Watermeyer JA in R v Blom is that the proved facts should be such that they exclude every reasonable inference from them save the one 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. This rule is not applicable in a civil case. 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. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.[14] [Footnote omitted]

[26] Equally in AA Onderlinge Assurancie-Associasie BPK v De Beer[15], the then Appellate Division in citing with approval, the dictum in S v Naik[16] reiterated that an inference must be distinguished from conjecture or speculation, and any inferences must be based on objective facts, from which to infer the other facts which it is sought to establish.

[27] The undisputed facts that were before the Commissioner were that there was an exchange of WhatsApp

messages between Collins and Campher at least from August 2017 and 8 October 2017. Collins had voluntarily disclosed that exchange, and I fail to appreciate the reason it can be said that the evidence before the Commissioner in that regard was hearsay. Of course any other conversation or engagement that Collins had with Campher that Collins had disclosed to Smith, and that was not part of the WhatsApp messages, carried little or no weight in the overall assessment of the evidence.

[28] From the nature, extent and tone of that exchange, it was clear that Campher was involved in illegal mine activities as he appeared to be the facilitator between his members of the syndicate and internal Mine people. Collins was fully aware of the Mine’s whistle-blowing policies and procedures, and the reason that he proffered for not immediately alerting the Mine to these illegal activities following these exchanges with Campher did not make sense in the light to the nature of those exchanges.

[29] It is highly improbable that Collins could not in the first place, have known what Campher’s

intentions were and what he was referring to in his exchange. Campher had referred to his people having gained access to clock cards; had made enquiries about mine levels; about how to load the gold bearing material; and about arrangement and indicating that it would not be like the last time. For someone like Collins who is familiar with the mining operations not to have been aware of what Campher was referring to is clearly inconceivable.

[30] Collins was aware of the rules and the policies related to whistle-blowing. He must have been aware of the problem of illegal mining activities and on his own version, he was aware that Campher was a party to these activities. Why then would Collins have sought to continuously engage Campher in these exchanges and promises to him that he would get back to him once an unidentified third person had reverted to him? He had between August and 08 October 2017 to report Campher’s attempts at getting him involved and chose not to do so. This was even more pertinent as at 22 September 2017, when Campher told him to assist with the loading of gold bearing material, and he (Collins), had suggested that they should use a shovel and bags for loading.

[31] The Commissioner was correct in her observations that at no stage did Collins unequivocally state to Campher that he was not interested in his schemes and overtures. Thus, Collins’ contentions that by entertaining Campher’s

exchanges he merely sought to brush him off, or was being sarcastic, or had pretended that he was interested only in order to elicit more information from him is not only not supported by his conduct, but also through his deletion of the WhatsApp messages, when he was specifically asked to keep them. A person who had an interest in reporting these nefarious activities would clearly have reported them as soon as they came to his attention; kept the exchange of the WhatsApp messages as requested or at most, revealed the name of the persons he was allegedly waiting for when Campher kept asking him about the arrangements.

[32] In the end, the inferences drawn by the Commissioner from the contents of the WhatsApp exchanges between Collins and Campher, Collins’ explanation in that regard and his conduct of deleting those messages, did not amount to speculation. These inferences were reasonable and the most probable on a balance of probabilities, that indeed Collins was linked to and complicit in illegal mining activities. The contention that only Collins had personal knowledge of the facts and that therefore his version ought to have prevailed is unsustainable. The Commissioner was therefore correct in rejecting his version when drawing inferences.

[33] In summary, the Commissioner considered the principal issue before her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decision she arrived at. There is therefore

no merit in the submissions that the Commissioner committed a misconduct or gross irregularities in the conduct of proceedings. The inferential reasoning adopted by the Commissioner based on the contents of the WhatsApp messages exchanged between Campher and Collins that the latter was linked to illegal mining activities was beyond reproach. To that end, it follows that the review application ought to fail.

[34] In regards to an award of costs, it was correctly pointed out on behalf of the Mine that the

Commissioner’s award was well reasoned, and that what Collins sought with this review was in fact an appeal, which is impermissible. Inasmuch as I agree with these contentions, upon a consideration of the requirements of law and fairness, I deem it not appropriate to make a costs order.

[35] Accordingly, the following order is made;

Order:

1. The applicant’s application to review and set aside the arbitration

award issued by the Second Respondent under case number GAJB2606 – 18 dated 11 December 2018 is dismissed.

2. There is no order as to costs

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

L. de Haan, instructed Mphatlalazana Attorneys

For the First Respondent: M.

Lennox, instructed by Beech Veldtman Incorporated (Heads of argument prepared by M. Hart)

[1] The charges inter alia read as follows: 1. On Tuesday 10 October 2017 at +/- 16:20, you breached the Company rule “Offences related to dishonesty, theft and fraud: 3. Employees must act honestly towards the Company at all times. 3.4 Dealing in or assisting others to obtain gold bearing material” when you conspired with other person/s for Illegal Miners (Zama-Zama’s) to proceed underground to 100 level. You further conspired with other person/s to illegally obtain “stof” / possible Gold Bearing Material and the arrangements to obtain the required equipment for collection. 2. …”

[1] The charges inter alia read as follows:

1. On Tuesday 10 October 2017 at +/- 16:20, you breached the Company rule “Offences related to dishonesty, theft and fraud: 3. Employees must act honestly towards the Company at all times. 3.4 Dealing in or assisting others to obtain gold bearing material” when you conspired with other person/s for Illegal Miners (Zama-Zama’s) to proceed underground to 100 level. You further conspired with other person/s to illegally obtain “stof” / possible Gold Bearing Material and the arrangements to obtain the required equipment for collection.

2. …”

[2] 2000 (3) SA 1009 (SCA)

[3] [2003] 1 SA 11 (SCA)

[4] 2008 (2) SA 24 (CC); [2007] 28 ILJ 2405 (CC) at para 110

[5] [2020] ZALAC 53 (2 December 2020) at para 27

[6] Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others (JA 2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC)

[7] At para 16; See also at para 20 where it was held that; ‘Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where an arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or considerations of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate(this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?(iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?’

[7] At para 16; See also at para 20 where it was held that;

‘Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where an arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or considerations of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate(this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?(iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?’

[8] (701/2012) [2013] ZASCA 97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA)

[9] At para 10

[10] (2013) 34 ILJ 2795 (SCA) at para 25.

[11] Paragraph 11.3

[12] Act 26 of 2000

[13] supra

[14] At para 7; 1027E – 1028D

[15] 1982 (2) SA 603 (A) at 620 E to G

[16] 1969 (2) SA 231(N) at 2345 C to E; See also Titus v Shield Insurance Company Limited 1980 (3) SA 119(A) at 133F to G, where it was held that; “It is clearly not an invariable rule that an adverse inference be drawn; in the final result the decision must depend in large measure upon “the particular circumstances of the litigation” in which the question arises. And one of the circumstances that must be taken into account and given due weight, is the strength or weakness of the case which faces the party who refrains from calling the witness. It would ordinarily be unsafe to draw an adverse inference against the Defendant when the evidence of the Plaintiff, at the close of the latter’s case, was so vague and ineffectual that the Court could, only by a process of speculation or very dubious inferential reasoning, attempt to find the facts”.

[16] 1969 (2) SA 231(N) at 2345 C to E; See also Titus v Shield Insurance Company Limited 1980 (3) SA 119(A) at 133F to G, where it was held that;

“It is clearly not an invariable rule that an adverse inference be drawn; in the final result the decision must depend in large measure upon “the particular circumstances of the litigation” in which the question arises. And one of the circumstances that must be taken into account and given due weight, is the strength or weakness of the case which faces the party who refrains from calling the witness. It would ordinarily be unsafe to draw an adverse inference against the Defendant when the evidence of the Plaintiff, at the close of the latter’s case, was so vague and ineffectual that the Court could, only by a process of speculation or very dubious inferential reasoning, attempt to find the facts”.