Independent Communications Authority of South Africa v Malapane and Others (JR 1696/17) [2022] ZALCJHB 90 (7 April 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2068/19

In the matter between:

INDEPENDENT COMMUNICATIONS AUTHORITY

OF SOUTH AFRICA

Applicant

and

OLIVIA MALAPANE First

Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

Second Respondent

THEMEBEKILE NSIBANYONI N.O

Third Respondent

Heard: 03 February 2022

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 07 April 2022.

Summary: Review application – the reasonableness of the award is not necessarily an issue of a right or correct award but whether it falls within the range of reasonable decisions.

Study loan is not a basic condition of employment in terms of the BCEA – reliance on section 74(2) is misplaced.

Delay in instituting the disciplinary hearing – the fairness of the procedure was vitiated by the inordinate delay.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] The Applicant (ICASA), seeks an order reviewing and setting aside the arbitration award issued by the Third Respondent (Commissioner) under case number GAJB20398-18, dated 27 August 2019, under the auspices of the second respondent (CCMA). The Commissioner made the following order:

‘11.1. The dismissal of the applicant was procedurally and substantively unfair.

11.2. The Respondent is ordered to reinstate the Applicant retrospectively.

11.3. The Respondent is ordered to pay the Applicant R468 376.68…in backpay…

11.4. The Respondent is further ordered to reimburse the Applicant R100 000.00… for the study loan and 11 days leave in the amount of R19 831.19… that was not paid to her

11.5. In total the employer must pay the applicant the amount of R588 207.87… by not later than 2 September 2019.

11.6. The Applicant is instructed to report for duty on 09 September 2019

11.7. I make no order as to costs.’

[2] ICASA contends that the Commissioner committed a number of gross irregularities which led to her coming to a decision that a reasonable decision maker could not have come to. The First Respondent (Ms Malapane) is the only respondent opposing the application.

Factual Background

[3] Ms Malapane was employed as a Radio Frequency Specialist. She was dismissed on 23 August 2018, having been found guilty of the following charges:

‘Charge 1

Gross Negligence – In that on 22nd August 2016, you filled in a vehicle request form for your weekly duties (22-26 August 2016), where you requested to use an ICASA vehicle BY 57 YF GP, on the form you ticked that your house has a lock up garage. Thereby creating an impression the car would be kept safe and you failed to safeguard the employer’s property (Toyota – BY57YFGP) as indicated on the vehicle request form from 22 – 26 August 2016.

Charge 2

The charge that on 26 August 2016 you made false statement under oath about the employer and its employees specifically that an employee you suspect had an argument with the employer for why your line manager put you in his position and that “they were taking each other to court”, this jeopardise the employer’s reputation and the employee’s character which is tantamount to mislead the investigation process; and

Charge 3

Gross Dishonesty – In that you intentionally/willfully submitted dissimilar reports to the employer/line manager and to the police for investigation purpose, that the report to the line manager is limiting and does not provide the true reflection of events at the time of theft of the vehicle Toyota Bakkie – BY 57 YF GP on 26 August 2016.’[1]

[4] The genesis of the matter was the allocation of the ICASA vehicle with registration number BY 57 YF GP to Ms Malapane for work purposes on 23 August 2016. When filling the ICASA vehicle requisition form,

Ms Malapane, indeed, indicated that she had a lockable garage/carport at her residence and a fenced wall with a lockable gate.

[5] The ICASA vehicle was stolen from Ms Malapane’s residence during the early hours of the morning on 26 August 2016. Ms Malapane reported the stolen vehicle with the South African Police Service

(SAPS). The Police Officer came to her residence to take a statement immediately after the theft. Upon arrival at work that very same morning she was asked by Mr Clement Mametja (Mr Mametja), her line manager, to provide a statement regarding the events leading up to the theft of the ICASA vehicle, which she did.

[6] Ms Malapane’s statement that was taken by the Police Officer indicate that the garage door where the ICASA vehicle had been parked was ‘a little bit opened’ but the gate to the residence was locked; but everything was in order when she went to bed.[2] In the statement that was submitted to Mr Mametja, Ms Malapane did not mention all the details of the incident. That is the crux of the first and third charges.

[7] Also on her statement to the Police Officer on 26 August 2017, Ms Malapane indicated that she suspected her colleague, Mr Sebastian Meyer (Mr Meyer), as the person behind the theft of the ICASA vehicle; hence the second charge. However, on 04 September 2016, she filed another statement with the SAPS wherein she retracted the allegations against Mr Meyer.

[8] In these proceedings ICASA impugns the award on the following grounds of review. First, the Commissioner completely disregarded all the evidence led by ICASA in relation to Charge 3. Second, the Commissioner failed to properly consider and determine the primary issue in dispute which was whether or not the ICASA vehicle was parked in a locked garage on the day the theft occurred. Third, the Commissioner interfered with and distorted evidence of witnesses. Fourth, the Commissioner exceeded her powers by ordering that Ms Malapane be reimbursed the for the study loan amount that was deducted from her salary. Fifth, the Commissioner unreasonably found that Ms Malapane’s dismissal was procedurally unfair.

Did the Commissioner fail to properly consider and determine the primary issue in dispute?

[9] I deal first with the second and third grounds of review. It is common cause that the ICASA’s Corporate Services investigation was conducted immediately after the incident. Mr Lizo Mvinjelwa (Mr

Mvinjelwa), the investigator, visited Ms Malapane’s residence. It was his evidence that Ms Malapane showed him the garage where the ICASA vehicle was parked and the marks on the door which she said were signs of forced entry where access was gained into the premises and the garage. He conceded under cross-examination that the all gates were lockable either through padlocks or remote control.

[10] Nothing much turned on the evidence of Mr Blackbeard Silahla (Mr Silahla), the other investigator, because his evidence contradicted that of his fellow investigator, Mr Mvinjelwa in respect of the signs of forced entry into the residence of Ms Malapane. Despite his concession that the padlocked had been damaged and replaced, he was still adamant that there was no forced entry.

[11] The main controversy pertained to the particular garage where the ICASA vehicle was packed between garages number three and four. It is common cause that garage number three was smaller and could not fit the ICASA vehicle; while garage number four was big enough.

[12] According to Mr Mvinjelwa, Ms Malapane told him that the ICASA vehicle had been parked in garage number three. Ms Malapane, on the other hand, was adamant that the stolen vehicle was parked in garage number four. This evidence was confirmed by both her witnesses, Mr Ronald Pilime (Mr Pilime), her ex-husband who was still married and residing at the place where the vehicle was stolen, and Mr Senzo Mpungose (Mr Mpungose), the security guard that was patrolling the area in the morning of the incident and the person who alerted Ms Malapane and her family about the crime.

[13] The Commissioner accepted the evidence of Ms Malapane and concluded that the ICASA vehicle was parked at garage number four, a lockable garage and that the gates were also lockable. The Commissioner also accepted the explanation provided by both Ms Malapane and Mr Mpungose about the contents of their statements relating the incident of 26 August 2016.

[14] Ms Malapane testified that she was traumatised by the incident and that her statement was drafted by the Police Officer who was listening to the description of what transpired mainly from Mr Mpungose. It was Mr Mpungose who told the Police Officer that the garage door was half open and that the ICASA vehicle was protruding when he passed the house during his second patrol. It was and during his third patrol that he noticed that the garage was wide open, gate padlock broken and the vehicle was gone. The Police Officer incorrectly attributed that statement to her.

[15] Ms Malapane was adamant during cross-examination that the ICASA vehicle was parked at of garage number four and that the garage door was completely closed and locked when she went to bed. After the incident, they discovered that the side door of garage number four was broken as well as the garage motor. This evidence was corroborated by Mr Pilime. He further testified that his own vehicle was parked at garage number three on the night of the incident and that was where he normally packed his vehicle. This evidence was not disputed.

[16] Mr Mpungose testified that when he passed the area for the first time, the garage door was closed and the second time it was half open and the ICASA vehicle was protruding but the gate was locked. The third time the garage door was wide open, the padlock for the gate was broken and the vehicle was gone. His explanation about the incident as it unfolded was that he could have passed Ms Malapane’s residence during the act of theft when the garage was half open. He

was adamant during cross-examination that the tracker record of the time the engine of the ICASA vehicle was switched on, which was about an hour and half after his second patrol when he saw the stolen vehicle protruding from the garage, was not material because the criminals know how to temper with the tracking devices.

[17] ICASA’s main contention in this regard is that the Commissioner, confronted with these two conflicting versions, failed to assess and analyse the facts and evidence placed before her and decide which version was more probable.

[18] In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others,[3] it was said that:

‘On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' 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.’

[19] In my view, the Commissioner was alive to the fact that she had to look at the probabilities in order to decide which version to accept and which to reject. While she accepted that Mr Mvinjelwa testified that Ms Malapane informed him that that car was packed at garage number three, she was of the view that he still pointed at garage number four when he was showed the picture. Indeed, this was not the case as correctly contested by ICASA. The record does show that he pointed at garage number three.

[20] Did this error in the analysis of evidence vitiate the award? I don’t agree. In National Union of Mineworkers and Another v Rustenburg Platinum Mine (Mogalakwena Section) and Others,[4] the Labour Appeal Court (LAC) aptly noted that:

‘[27] A reasonable award is not necessarily a right or correct award. As long as it falls within the range of reasonable decisions that could be made based on the evidence before the decision-maker, there would be no reason to set the award aside. The reviewing court should always guard against substituting its views for those of the decision-maker. It is pre-eminently the task of the CCMA or Bargaining Council commissioners to determine the fairness or otherwise of the dismissal. Commissioners are not expected to give awards that are akin to judgments of the Supreme Court of Appeal or the Constitutional Court. Awards are not meant to be perfect or satisfactory in all respects. The mere fact that an award is unsatisfactory in one or more respects does not mean that it is unreasonable.

[28] When analysing an award, the reviewing court must look at all the material that was before the commissioner and not only the reasons

given by the latter in the award. Where the material before the commissioner shows that there are other reasons, except those mentioned by the commissioner, which render the award reasonable, the reviewing court must consider such evidence.’ (Emphasis added)

[21] As mentioned above, Ms Malapane’s evidence that the ICASA vehicle was parked at garage number 4 was corroborated by Mr Pilime and Mr Mpungose. It is, furthermore, instructive that the very same Investigation Report that was compiled by Mr Silahla records that “Ms. OP Malapane states that the vehicle was parked in the second (2) garage door No. four, next to her husband’s car…”[5] It is obvious that Ms Malapane’s version is more probable and was reasonably accepted by the Commissioner.

[22] Ms Malapane’s evidence that there was a forced entry into the premises and the garage where the ICASA vehicle was parked was not seriously challenged. In fact, Mr Mvinjelwa conceded under cross-examination that there were signs of forced entry. Also, he could not dispute the evidence of Ms Malapane that the gates and the garages were lockable and that garage were the ICASA vehicle was parked was locked in the morning of the incident.

[23] In my view, the Commissioner’s finding that Ms Malapane was not guilty of negligence because the garage where the ICASA vehicle was parked was indeed locked is reasonable and unassailable. Therefore, the explanation by Mr Mpungose that his observation during the second patrol could only mean that it was the criminal act of theft was being committed is not implausible as contended by ICASA.

Did the Commissioner completely disregard all the evidence led by ICASA in relation to Charge 3?

[24] ICASA contends that the Commissioner failed to consider Charge 3 as no mention is made of it at all in the award. The crux of its impugn in this regard is that the allegations pertaining to dishonesty were central to ICASA’s case and without which there would have been no reason to take issue with Ms Malapane’s conduct after the

theft of the ICASA vehicle.

[25] This ground of review is patently untenable in the light of the findings I have arrived at above. Obviously, the charge of dishonesty was stillborn as soon as ICASA failed to prove that the Ms Malapane negligently parked the ICASA vehicle in garage number three which could not fit the vehicle. Ms Malapane explained that she did not mention all the details of what transpired when the ICASA vehicle was stolen because some of the facts contained in her statement to the SAPS represented Mr Mpungose’s account of what he observed.

[26] Accordingly, this ground is devoid of merit and must fail.

Did the commissioner exceeding her powers by ordering payment of study loan assistance?

[27] ICASA contends that the Commissioner exceeded her powers by ordering that Ms Malapane be paid R100 000.00 to reimburse her for the study loan as Commissioners do not have any jurisdiction to entertain contractual claims of such a nature.

[28] It is common cause that in 2017 and 2018, Ms Malapane had received a total of R100 000.00 from ICASA towards her MBA studies. The study assistance was provided in terms of ICASA’s Study Assistance Policy. Ms Malapane signed an Acknowledgement of Debt (AOD) which clearly provides that the study assistance shall remain a loan until all conditions in the AOD were met. One of the primary conditions is that the person to whom study assistance is granted must work for ICASA for a period of one year after obtaining the qualification.

[29] It is common cause that at the time of Ms Malapane’s dismissal, she had not completed her qualification. As such, ICASA was authorised to deduct the amount from Ms Malapane’s salary in terms of the AOD. ICASA withheld payments from Ms Malapane in order to recover the R100 000.00 study assistance loan which had been extended to her. However, it would seem that ICASA was not able to recover the full amount owed by Ms Malapane.

[30] Ms Malapane, on the other hand, contends that the Commissioner had jurisdiction to order that she be reimbursed for the study loan in terms of section 74(2) of the Basic Conditions of Employment Act[6] (BCEA) which provides that:

‘If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act or the National Minimum Wage Act, 2018.’ (Emphasis added)

[31] Obviously, the question is whether the amount that was deducted from Ms Malapane’s salary in order to recover the study loan in terms of the AOD constitutes a statutory claim in terms of the BCEA so as to clothe the Commissioner with the jurisdiction in terms of section 74(2) of the BCEA. Notably, section 1 of the BCEA defines a ‘basic condition of employment’ to mean ‘a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment’.

[32] To my mind, the proper construction to be accorded to section 74(2), given the facts and context of this matter, is that its applicability is ousted by the fact that Ms Malapane’s claim for the amount that was deducted in relation to the study loan is not a claim of a basic condition of employment in terms of the BCEA.[7] Ms Malapane’s reliance on section 74(2) is obviously misplaced. Hence, the Commissioner had no jurisdiction to entertain Ms Malapane’s contractual claim.

Procedural fairness

[33] The Commissioner’s finding that delay of almost two years from the date of the incident was procedurally unfair cannot be faulted. In Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others,[8] the apex Court observed that:

‘[71] This also accords with the general principles of how delay impacts the fairness of disciplinary proceedings. The question whether a delay in finalisation of disciplinary proceedings is unacceptable is a matter that can be determined on a case-by-case basis. There can be no hard and fast rules. Whether the delay would impact negatively on the fairness of disciplinary proceedings would thus depend on the facts of each case.

[72] In Moroenyane, the Labour Court considered factors which this Court initially propounded in Sanderson in the context of assessing delays in criminal prosecutions, and applied those factors to determine what constituted an unfair delay in the context of disciplinary proceedings. It held:

“(a) The delay has to be unreasonable. In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.

(b) The explanation for the delay must be considered. In this respect, the employer must provide an explanation that can reasonably serve to excuse the delay. A delay that is inexcusable would normally lead to a conclusion of unreasonableness.

(c) It must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process. In other words, it would be a factor for consideration if the employee himself or herself stood by and did nothing.

(d) Did the delay cause material prejudice to the employee? Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.

(e) The nature of the alleged offence must be taken into account. The offence may be such that there is a particular imperative to have it decided on the merits. This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious. What it means is that the nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable.

(f) All the above considerations must be applied, not individually, but holistically.”’

[34] ICASA struggled to explain the delay and vainly attributed it to its internal administrative lapses. Mr Mametja could not explain why he only became aware of the investigation into the theft of ICASA vehicle on 15 February 2018 when the final report was submitted on 14 March 2017. Clearly, he was grasping at straws when he attempted to hide behind the investigation. Mr Mvinjelwa testified that he was shocked when he was called as a witness, two years after the incident.

[35] Conversely, Ms Malapane testified that she had already forgotten about the incident and had thought that everyone had moved on. In the intervening time, her probationary period was confirmed and she was constantly allocated another ICASA vehicle which she parked in the same garage without any challenges. She was not aware that there was an adverse report against her has recommended her discipline up until she was summoned to a disciplinary enquiry in June 2018. So, she could not have done anything to fast-track the process.

[36] Grogan J[9] pertinently opined as follows in respect of delayed disciplinary proceedings:

‘…once the employer has established that an employee is guilty of misconduct, disciplinary proceedings should be instituted within a reasonable time. Excessive delay may estop the employer from dismissing the employee … The test, essentially one of fairness is whether the employee has been under the impression that the employer has forgiven them.’

[37] I subscribe to the above observations by the learned author. Likewise, in the present case, even if Ms Malapane was found guilty as charged, ICASA still failed to justify the appropriateness of the sanction of dismissal because of the delay.

[38] In sum, the Commissioner reasonably found that the fairness of the procedure was vitiated by the inordinate delay.

Conclusion

[39] In all the circumstances, Commissioner’s findings in relation to the first, second, third and fifth grounds of review are beyond reproach and must stand. Put otherwise, the part of the award that deals with to the first, second, third and fifth grounds of review falls within the range of reasonable decisions.

[40] However, the converse it true with it comes to the fourth ground of review. The Commissioner clearly misconceived the nature of the enquiry by incorrectly clothing herself with the jurisdiction she did not have when she dealt with Ms Malapane’s contractual claim in relation to the study loan. Consequently, the award in this regard stands to be reviewed and set aside and be substituted with the order that the CCMA had no jurisdiction to entertaining Ms Malapane’s contractual claim in relation to the study loan.

Costs

[41] In accordance with the requirements of the law and fairness, each party must carry its own costs.

[42] In the result I make the following order.

Order:

1. The arbitration award dated 27 August 2019 which issued under case number GAJB20398-18 is reviewed and set aside, only to the extent that the Commissioner misconceived the nature of the enquiry by incorrectly clothing herself with the jurisdiction she did not have, and is substituted with the following order:

‘The CCMA has no jurisdiction to entertaining Ms Malapane’s contractual claim in relation to the study loan.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr R N Searle of Faksen Attorneys

For the First Respondent: Advocate HA Nkopp SC with Advocate M Bezuidenhout

Instructed by:

Michael Krawitz & Co Attorneys

[1] See Charge Sheet, pages 23-24 of the record bundle.

[2] See Index to the Record Bundle, page 63.

[3] 2003 (1) SA 11 (SCA) at paragraph 5.

[4] [2014] ZALAC 62; [2015] 1 BLLR 77 (LAC) (Rustenburg Platinum) at paras 26-27. See also Heroldt v Nedbank 2013 (6) SA 224 (SCA) at para 25 referred to in Rustenburg Platinum where it was stated: ‘In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. 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 inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. 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.’ (Emphasis added)

[4] [2014] ZALAC 62; [2015] 1 BLLR 77 (LAC) (Rustenburg Platinum) at paras 26-27. See also Heroldt v Nedbank 2013 (6) SA 224 (SCA) at para 25 referred to in Rustenburg Platinum where it was stated:

‘In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. 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 inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. 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.’ (Emphasis added)

[5] See Index to the Record Bundle, page 30, para1.

[6] Act 75 of 1997, as amended.

[7] See Andrew Pandeka Chimphondah v Housing Investment Partners (Pty) Ltd and Others (JR 1195 of 2019) [2021] ZALCJHB 58 at paras 28-29.

[8] [2018] ZACC 3.

[9] Workplace Law (7ed) Juta at p183: