NEHAWU obo Mojapelo v South African Revenue Services and Others (JR 642/19) [2022] ZALCJHB 31; (2022) 43 ILJ 1379 (LC) (16 February 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG)

Not Reportable

Case no: JR 642/19

In the matter between:

NEHAWU OBO MASELOPI PAULINE MOJAPELO

Applicant

and

THE SOUTH AFRICAN REVENUE SERVICE

First Respondent

GERHARD JANSEN VAN VUUREN N.O Second Respondent

THE COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Third Respondent

Heard:

1 July 2021

Date Delivered: 16 February 2022

Summary: Review application – dismissal based on dishonesty – arbitration award reasonable – review application dismissed.

JUDGMENT

YEATES, AJ

Introduction

[1] This is a review application in terms of section 145 of the Labour Relations Act 66 of 1995, as amended (''LRA'') to review and set aside the arbitration award made by the Second Respondent (''Commissioner'') under the auspices of the Third Respondent.

Factual background

[2] On 2 November 2001, the Applicant commenced employment with the First Respondent (''SARS'') as a Data Capturer and was later promoted to the position of an Inspector in SARS' Customs and Compliance Division.

[3] In essence, one of the primary tasks of an inspector is to inspect goods that arrive in containers at respective depots and to ensure that the goods align with the written documentation of each container.

[4] On or about 28 July 2014, the Applicant and two of her colleagues, namely Ms Precious Nomfundiso Kulati (''Kulati'') and Ms Tirhani

Prudence Nobela (''Nobela'') were dispatched to a depot in order to inspect and count boxes of imported items.

[5] The Applicant and Nobela proceeded to count a container with reference number KKFU 723 2602 and discovered that the container contained more than 500 cartons of shoes which had not been declared. The container in question belonged to a company, Alcari 209 CC (''Alcari'').

[6] The First Respondent alleged that the Applicant conspired with a man by the name of ''John'' who allegedly represented Alcari to accept a bribe in the amount of R60 000 in exchange for turning a 'blind eye' and/or misrepresenting the actual number of shoes contained in the aforesaid container. It is alleged that the Applicant, Nobela and Kulati would all receive a share of R20 000 for their efforts.

[7] The First Respondent's Operations Manager became suspicious of the examination report which found no discrepancies of the aforesaid

container. The Operations Manager's suspicions were premised on the fact that there had previously been declared discrepancies with Alcari's containers. The Operations Manager then ordered a re-examination of the container which discovered that there was in excess of approximately 586 cartons of shoes which were not declared in the examination report.

[8] Nobela confessed and implicated the Applicant in an alleged scheme to misrepresent the number of items in the aforesaid container belonging to Alcari in exchange for a bribe.

[9] The Applicant was subsequently charged with misconduct in relation to dishonesty and subsequently dismissed on or about 8 August 2016 following an internal disciplinary hearing.

[10] SARS also charged an employee by the name of Mr Kingdom Mhkize ('Mhkize'') with dishonesty in relation to the same facts as it was alleged that Mr Mhkize accompanied Nobela to the depot on 29 July 2014 to collect the bribe money from John.

[11] The Applicant, Mhkize and Kulati were all charged for their actions and subsequently dismissed. All three employees then referred an unfair dismissal dispute to the Third Respondent.

[12] The Commissioner found that the dismissals of Mhkize and Kulati were substantively unfair and ordered SARS to reinstate both employees.

However, the Commissioner found the dismissal of the Applicant to be substantively and procedurally fair and therefore dismissed her claim.

[13] The Applicant has now approached this court to review and set aside the Commissioner's findings that the Applicant's dismissal was both procedurally and substantively fair.

[14] SARS is also seemingly unhappy with the Commissioner's findings in respect of Mhkize and Kulati and has similarly launched review proceedings against the Commissioner's award in a separate review application

Grounds of review

[15] The Applicant relies on the following grounds of review in her heads of arguments, namely –

a) that the Commissioner has failed to apply his mind to the evidence and facts;

b) the Commissioner has failed to see 'indisputable evidence' in relation to Mhkize,

Kulati and the Applicant; and

c) The Commissioner has failed to 'disregard the evidence of a hostile witness' and took into account 'irrelevant' evidence.

Applicable laws and a brief discussion on case law

[16] The Constitutional Court (''Constitutional Court'') in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) settled the issue of which test to employ when determining whether or not an arbitration award is reviewable. In short, this test is determining whether the decision reached by the Commissioner is one that a reasonable decision-maker would have reached. The test therefore is not whether the Commissioner made the correct decision, but rather whether the Commissioner made a reasonable decision.

[17] More recently, the Constitutional Court held in Duncanmec (Pty) Ltd v Gaylard NO and Others [2018] 12 BLLR 1137 (CC) that –

''This test means that the reviewing court should not evaluate the reasons provided by the Arbitrator with a view to determine whether it agrees with them. That is not the role played by a court in review proceedings. The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by rational reasons.''

Analysis

[18] It is common cause that the Applicant and Nobela inspected the container in question and proceeded to misrepresent the actual number of shoes found in the container. Same was confirmed when a re-examination of the container found that in excess of 500 cartons of shoes were not declared (approximately 586 cartons of shoes), which is a substantial number. The Applicant, in an effort to account for her omission, alleged that the unaccounted shoes had been separated from the contents of the container.

[19] It is common cause that Nobela handed an amount of R20 000 to the South African Police Service

(''SAPS'') which is the ''cut'' that she claimed to have received in bribe money in exchange for misrepresenting the actual number of shoes in the said container.

[20] The Applicant argued in her papers that Nobela was a hostile witness. Nobela made various contradictory

statements to the SAPS and the Commissioner. I therefore agree with the Commissioner's findings that Nobela's evidence should be

approached with caution. Furthermore, the Applicant disputes the version of events stated by Nobela which resulted in the

Applicant and Nobela's versions of events being mutually destructive.

[21] To this end, I rely on the wisdom of the Supreme Court of Appeal (''SCA'') in the case of Stellenbosch Farmers' Winery Group Limited and Another v Martell and Cie SA and Others 2003, (1) SA 11 (SCA), (2002) JOL 10175 (SCA) which set out the technique to be adopted when resolving factual disputes, namely –

'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 findings 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 necessary in order of importance, such as (i) the witness' candour and demeanour in the witness box, (ii) has 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, 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 disputes issues.'

[22] Based on the above dictum, three things need to be established when one is faced with a potentially

untrustworthy witness, namely a) their credibility, b) their reliability and c) the probabilities. There are serious question marks over Nobela's credibility and reliability as she made numerous contradictory statements. However, on the question of probability,

the commissioner was faced with two versions and had to make a call on which version he felt to be more probable. Based on the evidence which was before the Commissioner during the arbitration proceedings, I am inclined to agree with the Commissioner that no other plausible explanation exists other than the Applicant misrepresenting the actual number of items in the container in exchange for a bribe.

[23] I base my view in this regard on two common cause facts, the first, being that a re-examination of the container discovered that there were in excess of 500 cartons of shoes which were not declared. From my reading of the record of proceedings, the Applicant failed to produce sufficient evidence to conjured up a defence and/or coherent explanation as to why there was an excess of 500 cartons of shoes not declared. At no point did the Applicant dispute that she was one of the people who counted the items in the container. The second, is that Nobela handed over an amount of R20 000 to SAPS. Where did Ms Nobela get such a large sum of money if it was not the money she received for a bribe? It is also hard to believe that any employee would voluntarily hand over such a sum of money for no reason.

[24] Furthermore, the test adopted by this Court is not whether a person is guilty beyond a reasonable

doubt (which has a higher onus), but rather which version of events is more probable, on a balance of probabilities. This principle was confirmed as far back as in the case of Early Bird Farms (Pty) Ltd v Mhlambo [1997] 5 BLLR 541 (LAC) which found that in cases pertaining to misconduct, an employer needs not prove with 'absolute certainty' that an employee was guilty of the alleged misconduct and that proof on a balance of probabilities was sufficient.

[25] Ultimately, it boils down whether the trust relationship has been irretrievably broken.

[26] Accordingly, I see no reason for this court to interfere with the findings of the Commissioner which I find to be reasonable giving the evidence led during the arbitration proceedings.

[27] In turning to appropriate sanction, I have taken note of the Applicant's employer, namely SARS, which is a critical organ of state tasked with, inter alia, collecting the taxes of citizens which will of course be used for the public good. Corruption is a cancer that is plaguing both the private and public sector, and when traces of it are found in the public sector, it becomes even more imperative to deal with it effectively and decisively.

[28] In Standard Bank of South Africa Ltd v CCMA and Others [1998] 6 BLLR 622 (LC), this Court confirmed the principle that an employee has a duty to act in good faith towards his or her employer and a breach of this duty in the form of dishonest conduct by the employee goes to the 'heart of relationship and is destructive of it.'

[29] In Toyota South Africa Motors (Pty) Ltd v Radebe and Others [2000] 3 BLLR 243 (LAC), the Honourable Zondo AJP (as he was then) remarked that –

'In my view, gross dishonesty must rank as one of the extreme cases of serious misconduct which an employee may make himself guilty of, and which an employer may have to deal with, in a workplace.'

[30] In Shoprite Checkers (Pty) Ltd v CCMA and Others (2008) 8 BLLR 838 (LAC), the LAC confirmed the principle set out in the Standard Bank case above and upheld that the dismissal of an employee who was caught consuming company food and then fabricating an explanation for his actions was fair.

[31] In City of Johannesburg v Jacobs NO and Others [2021] 6 BLLR 579 (LC), this Court upheld the dismissals of traffic officials who were illegally promoting candidates for learner driving licenses during their learner driver's test.

[32] In Bitou Municipality v Minister of Local Government, Environmental Affairs and Development Planning, Western Cape Provincial Government and Others [2021] 5 BLLR 435 (LAC), the LAC, inter alia, upheld the dismissal of a manager who was dismissed for financial misconduct and dishonesty.

[33] It is clear from the jurisprudence canvassed above that misconduct, in the form of dishonesty, is viewed in a serious light. Where employees are guilty of gross dishonesty, then more often than not, the trust relationship between the employer and the employee will be broken irretrievably.

[34] For the reasons set out above, I find that the Commissioner's award, as far as it relates to the Applicant, falls within the ambit of reasonableness and therefore the Applicant's review application is dismissed.

[35] In turning to the question of costs, it is by now trite that in this Court, costs do not always

follow the result, save in exceptional circumstances. I do not deem the present case worthy of deviation from this general rule and therefore I do not make an order as to costs.

Order

[36] Accordingly, I make the following order-

a. The Applicant's review application is dismissed.

b. There is no other as to costs.

_________________

YEATES AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

Advocate K van Heerden

Instructed by

Mdhuli, Pearce, Mdzikwa and Associates.

For the First Respondents: Jan Norval of Edward Nathan Sonnenbergs Inc