Malatji v The South African Local Government Bargaining Council and Others (JR 2816/2019) [2022] ZALCJHB 206 (1 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2816/2019

In the matter between:

STANLEY MALATJI

APPLICANT

and

THE SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

1ST RESPONDENT

JACQUES F.M VERHOEF

2ND RESPONDENT

GREATER TZANEEN MUNICIPALITY

3RD RESPONDENT

Heard: 28 July 2022

Delivered: 01 August 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 01 August 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to review and set aside an arbitration award issued by the second respondent (the arbitrator) on 25 October 2019. In his award, the arbitrator found that the applicant’s dismissal by the third respondent was substantively and procedurally fair.

[2] The material facts are summarized by the arbitrator, and I do not intend to repeat them here. The applicant was dismissed after an undercover operation conducted by the SAPS to investigate fraud and corruption in the issuing of drivers’ licences. At the hearing, an officer of the SAPS identified as Wendy testified that she had applied for a learners licence and spoke to Lesley, who explained the process. She paid Lesly R2000, who then explained to her that the examiner would swop answer sheets and complete the sheet that contained her details. The applicant was the examiner. The witness testified that she left her answer sheet on the desk, having shaded in answers in pencil. The applicant was the only person who remained in the examination room. Wendy was advised that she had passed the exam despite the fact that she had not circled in pen a single answer. There was further evidence that an answer to only 35 questions would mean that it was impossible for a candidate to pass. The applicant’s evidence was to deny any knowledge of the witness Wendy and that he had completed the test on her behalf.

[3] The arbitrator found that it was not in dispute that Wendy had applied for a code 14 licence and that a learner answering only 35 questions of a total of 68 could not possibly pass the test. He recorded that the issue in dispute was whether the applicant had failed properly to mark Wendy’s test. The arbitrator found that although Wendy’s evidence had not been corroborated by any other witness, she had been a credible and reliable witness. The applicant had been unable to dispute Wendy’s version, and conceded that he was the only person who remained in the examination room with the papers completed by the candidates. The arbitrator dismissed the applicant’s contention that Wendy would have given false evidence – she had no personal interest in the matter and was attached to the anti-corruption unit. The arbitrator considered that having regard to the evidence as a whole, and taking into account the reliability and credibility of the witnesses, the third respondent’s version was the more probable. The arbitrator found that the applicant’s dismissal was thus substantively fair. He also found that the dismissal was procedurally fair, after dismissing the applicant’s submission that the appointment of an external chairperson at the disciplinary hearing and representation of both parties by legal representatives was a contravention of the applicable collective agreement.

[4] The grounds for review amount to a contention that the arbitrator committed a reviewable irregularity by ignoring the fact that the applicant had been found guilty in his disciplinary hearing of a gross dereliction of duty rather than corruption. Further, the applicant submits that the arbitrator committed a reviewable irregularity in his assessment of the evidence before him, with the consequence that his award is not one to which a reasonable decision-maker could come on the available evidence.

[5] The test to be applied in review applications is clear. This court may intervene if and only if the applicant establishes that the decision to which the arbitrator came was so unreasonable that no reasonable decision-maker could come to it. In a matter such as the present, where the applicant relies on what are contended to be reviewable irregularities in the assessment of the evidence, the court must be cautious to ensure that the line between an appeal and a review is not crossed. In Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)), the Labour Appeal Court noted that a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgment). Specifically, the questions for a review court to ask are whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that he or she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with substantial merits of the dispute and whether the decision is one that another decision maker could reasonably have arrived at based on the evidence (see paragraph 20). In short, when an arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21).

[6] The arbitrator appreciated the nature of the case before him and the issues that he was required to decide. He also appreciated the test to be applied having regard to the dispute of fact that served before him, and in particular, he appreciated the nature and scope of the rule applicable to single witnesses. I fail to appreciate how it can

be said that the arbitrator misconceived the nature of the enquiry or committed any irregularity in relation to his assessment of the evidence. In so far as the applicant submits that the arbitrator failed to appreciate that the applicant had been dismissed for a gross dereliction of duty (as opposed to corruption) the award clearly states that the issue to be determined was whether the applicant failed to ‘properly mark’ Wendy’s test. To the extent that the applicant submits that there is an inconsistency in that the chairperson of the disciplinary hearing had found that the applicant had failed properly to mark Wendy’s

answer sheet and that the arbitrator had found that the applicant marked the answer sheet on her behalf, there is no merit in this

submission. In substance, the arbitrator was called upon to determine whether the chairperson of the disciplinary hearing had properly

found that the applicant failed to mark Wendy’s answer sheet properly. An arbitration is a hearing de novo, not an appeal. What the arbitrator was required to determine was whether the third respondent had discharged the onus of establishing that the applicant had committed an act of misconduct, and that dismissal was a fair sanction. In any event, there is no contradiction between the findings. The finding of the chairperson was that the applicant had failed to mark the answer sheet properly; the arbitrator’s

finding was that he completed the answer sheet on Wendy’s behalf.

[7] To the extent that the applicant contests the arbitrator’s finding on the credibility and reliability of witnesses, the record sustains the arbitrator’s finding that the applicant’s evidence was less credible and that in contrast, Wendy was a credible and reliable witness. A striking feature of the award is the undisputed conclusion that the applicant was the only examiner in the room, and that Wendy’s answer sheet was assessed immediately with a pass mark in circumstances where she did not complete the test, certainly not to the extent that it would have been possible for her to pass.

[8] In short, the arbitrator did not commit any reviewable irregularity in his assessment of the evidence and his conclusion falls within a band of decisions to which a reasonable decision-maker could come on the available evidence. The application thus stands to be dismissed.

[9] Finally, in relation to costs, this court has a broad discretion in terms of section 162 to make orders for costs according to the requirements of the law and fairness. This formulation has the consequence that unlike the civil courts, costs do not as a matter of course follow the result. In the present instance, the applicant is an individual employee, a factor that would ordinarily militate against an order for costs. In the present instance, I must necessarily take into account that the misconduct found to have been committed by the applicant is serious, and that the present application lacks merit to the point that it might be described as misguided. The integrity of the entire system of licensing drivers is placed at risk when examinations are not properly conducted and drivers’ licenses issued to candidates who have failed to meet the prescribed requirements. The third respondent has been obliged to incur costs in its opposition to the application, funded by its

ratepayers. I see no reason why the third respondent ought not to be indemnified, to the extent that a costs order can, for the costs that it has incurred.

I make the following order:

1. The application is dismissed, with costs.

André van Niekerk

Judge of the Labour Court of South Africa